The document provides an overview of the National Labor Relations Act and key Supreme Court cases related to labor law and unions. It discusses the establishment of the NLRB, rights of employees to organize unions and engage in collective bargaining, and limitations on those rights established by right-to-work laws and Supreme Court decisions. The document also outlines strategies for employers regarding union organizing efforts.

1. 1
National Labor
Relations Act
John J. Sarno

2. 2
 Enacted in 1935
 a/k/a The Wagner Act
 Applies to private sector employers
engaged in “interstate commerce”.
National Labor Relations Act

3. 3
“The Congress shall have power….to
regulate commerce with foreign nations
and among several states, and with the
Indian tribes.”
Article I, Section 8
Congressional Power to Regulate Commerce

4. 4
Limitation on Congressional Power
Fifth Amendment
“No person shall be….deprived of
life, liberty or property, without due
process of law…”

5. 5
Adair v. United States
US Supreme Court (1908)
Congress passed law making it illegal to fire
employees for participating in a labor union.
Holding: Law was not a legitimate exercise of
Congressional authority to regulate commerce.
Fifth Amendment prevents Congress from
depriving a person from liberty or property without
due process of law.

6. 6
Loewe v. Lawlor
U.S. Supreme Court (1908)
Union violated Antitrust Act when it called
a strike, the purpose of which was to
unionize workers. The union was held to
be “a combination to restrain trade or
commerce”.

7. 7
Hammer v. Dagenhart
US Supreme Court (1918)
Federal Child Labor Act violates Commerce
Clause.
The law aimed to set a minimum age to work in
mining and manufacturing.
Holding: The production of articles intended for
interstate commerce is a matter of local
regulation.

8. 8
Duplex Printing Press v. Deering
U.S. Supreme Court (1921)
In 1914, union organizing is exempted from
Antitrust law, but boycott against products
of manufacturer still violates the law as a
conspiracy to restrain trade. “The business
of manufacturing printing presses and
selling them in commerce is a property
right, entitled to protection against unlawful
injury or interference.”

9. 9
NLRB v. Jones & Laughlin Steel Corp.
US Supreme Court (1937)
National Labor Relations Act, which
guarantees the right to organize labor
unions, does not violate Commerce
Clause.
Ensuring “labor peace” has a direct
impact on interstate commerce.

10. 10
Lauf v. Shinner
U.S. Supreme Court (1938)
Union demanded that employer enforce a
“closed shop”. When employer refused,
union pickets employer and engages in
other peaceful pressure tactics. Such “labor
disputes” are exempt from Antitrust law.

11. 11
Hunt v. Crumboch
U.S. Supreme Court (1946)
Union’s refusal to work for employer, which
led to loss of business, does not violate
Antitrust law. Workers “can sell or not sell
their labor as they please, and upon such
terms and conditions as they choose”.

12. 12
National Labor Relations Act
It shall be an unfair labor practice for an employer to refuse
to hire, or fire or to otherwise discriminate against an
employee in regard to any term or condition of employment
in order to discourage membership in any labor
organization…or to
…interfere with, restrain or coerce employees in the
exercise of their rights to form or assist labor unions and to
engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection.

13. 13
The NLRA establishes the National Labor Relations
Board (NLRB), which has jurisdiction over labor disputes
and which supervises elections.

14. 14
“Employee” means any employee, but not
an individual employed as a supervisor.
“Supervisor” means any individual having
authority, in the interest of the employer, to hire,
transfer, suspend, layoff, recall, promote,
discharge, assign, reward, or discipline other
employees, or to responsibly direct them, or to
adjust their grievances, or effectively to
recommend such action, if the exercise of such
authority is not a merely routine or clerical
nature, but requires the use of independent
judgment.

15. 15
“Concerted Activity” means activity
that furthers union organizing:
 Speaking with other employees
 Distributing literature
 Writing letters
 Holding meetings
 Petitions

16. 16
• Wages and Benefits
• Working Conditions
• Excessive Overtime
• Occupational Safety
• Harassment and Bullying
“Concerted Activity” also means speaking or
complaining on behalf of other employees about
terms and conditions of employment, including:

17. 17
Other “Concerted Activity”:
Strikes
Walk Outs
Pickets
Boycotts
Media Pressure
Legislative Pressure

18. 18
Percentage of the unionized workforce
has decreased every year since its peak
in 1955
(35%)
7.4% in 2006

19. 19

20. 20
Why Do Employee’s Join Unions?
 Job Dissatisfaction
 Employees lack influence in decision-making
 Favoritism
 Arbitrary decision-making
 Harsh or abusive supervisors
 Low pay
 Discrimination/Harassment

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In 2007, Unions had a 60% “win” rate

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Recognition of the Union
 An election where a majority of voters elect
the union in an NLRB election;
 Voluntary recognition often with an
informal election or count of union cards;
 Forced recognition imposed by the NLRB

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Union organizers are free to communicate
with employees about the cards

25. 25
Union organizers can engage in
misrepresentation
“What is an Authorization Card? An
authorization card is the first step in
turning a workplace dictatorship into a
democracy.”

26. 26
Communicating with Employees During
Card Authorization Drive
 Explain the purpose of the cards
 Explain that the cards can lead to forced
recognition
 Implementation of Distribution/Solicitation Policies
 Explain that employee’s cannot be coerced to sign
cards that it is their free choice
 Explain company’s free speech rights
 Routine Monitoring of workplace but no spying or
interrogation
 Set forth company’s position on wages and benefits
but no promises

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Interrogation/Questioning of Employees
Under certain circumstances, an employer may question employees about their union sympathies
Whether such questioning constitutes an unfair labor practice depends on the “totality of the
circumstances”
 Timing, i.e.: early in the organization campaign
 Who initiates conversation, i.e.: employees’ willingness to talk
 Relationship between the parties, i.e. friendly and amicable
 Where conversation takes place, i.e.: behind a closed door
 Is conversation casual, low-key
 Is conversation non-threatening
 Is employee an open supporter or intent on keeping support a secret (usually turns on who initiates
discussion, whether employee wears union button, etc.)
 Whether employee was advised that he/she was under no obligation to answer questions and that
decisions to answer would not effect employment
 Whether questioning occurs within the context of other unfair labor practices, i.e.: threats, promises,
or retaliation

28. 28
Interrogation/Questioning
of Employees
Employer cannot seek information from employees on which to take
adverse action against employee.
Employers’ questioning cannot tend to restrain, coerce or interfere with
the exercise of rights guaranteed by NLRA.
Employer may poll employees to determine whether majority support
union.
Caution: If employer finds out that a majority of employees support the
union, it may be required to abide by the result of this “independent poll”.
In that case, employer cannot refuse recognition demand.

29. 29
Employees have a right to engage in concerted
activity without being placed under surveillance.
During an organization drive, employer can engage in
routine monitoring but can not engage in spying,
interrogation or electronic surveillance.
An employer may also commit an unfair labor
practice by conveying the “impression of
surveillance”.

30. 30
Union will make a recognition demand based on authorization
cards signed by 50% of the proposed bargaining unit.
IMPORTANT: The authorization cards can be a vote for the
union without having an election, even if cards were signed
with a mistaken belief that the card authorized an election
only. In fact, the card will count for the union even if the
employee was told that the card’s purpose was to obtain an
election or that the union would seek an election.
Employer can recognize union voluntarily or reject demand for
recognition based on its “good faith belief” that union does not
represent majority.

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Evidence of the lack of good faith
 Unfair labor practices,
 Violating a verbal agreement or understanding with
union,
 Sequence of events, i.e.: a meeting with union
representatives, reviewing the cards,
 Time lapse between refusal to recognize and unlawful
conduct
 Confrontations with union representatives
 Statements of anti-union bias that falls outside of free
speech provisions of NLRA
 Not objecting to the validity of the cards in a timely
manner

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Repeated acts of employer bad faith or
blatant threats may result in union
recognition imposed by the NLRB.

33. 33
Where the employer in good faith rejects the recognition
demand in a timely manner, a NLRB-supervised secret-
ballot election is held within six weeks.

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NLRA preserves “free speech”:
Section 8(c): The expression of any views,
arguments, or opinion does not constitute
evidence of any unfair labor practice.

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Improper Campaigning
 Aggressive questioning of employees about union
 Threatening to discharge or discipline
 “Warning” employees about negative consequences
 Promising benefits or wage increases
 Surveillance and interrogation
 Threatening to shut down or relocate
 Engaging in discriminating treatment

36. 36
Loser has 7-days to object to election results
i.e.: fraud, intimidation

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Government contractors must have a
poster informing employees of their
rights under the NLRA.
Poster will be proposed in 2009 – 2010

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Union-Free Philosophy
 Fairness
 Integrity
 Competitive wages & benefits
 Open door
 Respect for the individual
 Non discrimination/harassment

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Fair and Equitable Pay
Decent Working Conditions
Fringe Benefits
-Healthcare
-Retirement
-Paid Time Off
-Disability Leave

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Employee Involvement
Give employees the opportunity to
have input into quality of work life.
IMPORTANT: CREATING OR MAINTAINING AN
EMPLOYER-DOMINATED UNION VIOLATES
THE NRLA.

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RESPOND PROMPTLY AND FAIRLY
TO EMPLOYEE COMPLAINTS
 OPEN DOOR
 PROGRESSIVE DISCIPLINE
 SOUND HR PRACTICES
Fair Performance Evaluations
Equitable Overtime
Minimum Favoritism

42. 42
Lincoln Federal Labor Union v.
Northeastern Iron & Metal
U.S. Supreme Court (1949)
Right to work laws, which prohibit
agreements between unions and
employers making union membership
as a condition of employment, are
constitutional.

43. 43
Right to Work States

44. 44
Pattern Makers v. NLRB
U.S. Supreme Court (1985)
Private sector union members have the
right to resign immediately (but could be
fired in a closed-shop).

45. 45
Communications Workers of America v. Beck
U.S. Supreme Court (1988)
Workers in a closed-shop (where a contract
states that union membership is a condition of
employment) can withhold dues for activities
unrelated to collective bargaining, re: political
activities. They are considered “service fee”
members.

46. 46
Davenport v. Washington Education
Association
U.S. Supreme Court (2007)
A state may require unions to obtain
affirmative consent before spending non-
member fees on political activities.