TreatiseAnswer Book

Labor Management Law Answer Book (2016 Edition)

 by Brian West Easley, David S Birnbaum, Donald J Munro, Jones Day LLP
 
 Copyright: 2015

 Product Details >> 

Product Details

  • ISBN Number: 9781402424083
  • Page Count: 690
  • Number of Volumes: 1
  •  

Labor Management Law Answer Book is a concise overview of the controlling provisions of the NLRA and the other major federal labor legislation. Reflecting the in-depth knowledge and experience of the authors, in question-and-answer format, it walks the reader through every requirement of federal law, including:

  • ·obligations under executive orders affecting labor relations of federal contractors
  • federal preemption of state regulation
  • reporting requirements of unions and employers
  • protected and unprotected activity
  • duty to bargain
  • unfair labor practice case procedures, and
  • regulation of union dues and administration.

Labor Management Law Answer Book also provides:

  • a concise guide to all of the requirements of the NLRA, LMRA, LMRDA and other federal statutes
  • detailed guidance on what is and is not permitted activity by both unions and employers in any negotiation
  • coverage of emerging issues of critical importance like collective bargaining in the public sector
  • the context and analysis necessary to effectively plan and execute a labor strategy against the backdrop of complex and constantly evolving federal law, and
  • relevant planning opportunities and strategies to optimize proactive decision-making.
  Table of Contents
  Table of Abbreviations
Chapter 1: Overview of U.S. Labor Law
  • Q 1.1 : What is “labor law”?2
    • Q 1.1.1 : How does “labor law” differ from “employment law”?3
  • Q 1.2 : What are the principal labor laws that govern employment in the private sector?4
    • Q 1.2.1 : What does the NLRA provide?4
    • Q 1.2.2 : What does the LMRA provide?5
    • Q 1.2.3 : What does the LMRDA provide?6
    • Q 1.2.4 : What is a “right-to-work” law?6
  • Q 1.3 : What kinds of employees are covered by the NLRA?7
    • Q 1.3.1 : Do you have to be a member of a union to be protected by the NLRA?7
  • Q 1.4 : Which workers are excluded from coverage under the NLRA?8
    • Q 1.4.1 : Who qualifies as an “agricultural laborer” excluded under the NLRA?8
    • Q 1.4.2 : Who qualifies as an employee in “domestic service” excluded under the NLRA?9
    • Q 1.4.3 : What does it mean under the NLRA for an individual to be “employed by a parent or spouse”?9
    • Q 1.4.4 : What is the test to determine whether an individual is an “independent contractor” excluded under the NLRA?10
    • Q 1.4.5 : Who is a “supervisor” excluded under the NLRA?10
    • Q 1.4.6 : Who qualifies as an employee of an entity subject to the Railway Labor Act?11
    • Q 1.4.7 : Who is a “managerial employee” excluded under the NLRA?11
    • Q 1.4.8 : Who is a “confidential employee” excluded under the NLRA?12
    • Q 1.4.9 : Does the definition of “employee” under the NLRA exclude contingent or temporary employees?12
    • Q 1.4.10 : … undocumented aliens?12
    • Q 1.4.11 : … retired employees?13
    • Q 1.4.12 : … “salts”?13
  • Q 1.5 : Who is an “employer” subject to the NLRA?13
    • Q 1.5.1 : Who is an “agent of an employer” under the NLRA?14
  • Q 1.6 : Which employers are not subject to the NLRA?14
    • Q 1.6.1 : Are there any exceptions to the rule that the federal government is not subject to the NLRA?15
    • Q 1.6.2 : Even though federal and state governments are not subject to the NLRA, do their employees have collective bargaining rights?15
    • Q 1.6.3 : When is an entity a “political subdivision” of a state?15
    • Q 1.6.4 : Which employers are subject to the RLA and thus excluded from the NLRA?16
    • Q 1.6.5 : How is the determination made as to whether an entity is subject to the RLA?16
    • Q 1.6.6 : Are labor organizations subject to the NLRA in their capacity as employers?17
    • Q 1.6.7 : Are Native American–owned and –operated enterprises subject to the NLRA?17
    • Q 1.6.8 : Are religious institutions subject to the NLRA?18
  • Q 1.7 : Does the NLRB have jurisdiction over labor disputes involving foreign countries?20
Chapter 2: Enforcement of the National Labor Relations Act
  • Q 2.1 : What does the NLRB do?26
  • Q 2.2 : How is the NLRB structured?27
  • Q 2.3 : What does the Office of the General Counsel do?27
  • Q 2.4 : What does the Board do?28
    • Q 2.4.1 : What role is played by the Office of the Executive Secretary?29
    • Q 2.4.2 : … the Office of the Solicitor?29
    • Q 2.4.3 : … Division of Judges?29
    • Q 2.4.4 : … the Office of Representation Appeals?30
  • Q 2.5 : How is the General Counsel’s Office organized?30
    • Q 2.5.1 : What role is played by the Division of Operations Management?30
    • Q 2.5.2 : … the Division of Advice?31
    • Q 2.5.3 : … the Division of Enforcement Litigation?32
  • Q 2.6 : Can the NLRB impose fines or other monetary penalties?32
  • Q 2.7 : How does the NLRB develop agency policy?32
  • Q 2.8 : How does the NLRB use rulemaking?32
  • Q 2.9 : How does the NLRB adjudication process work?34
  • Q 2.10 : Can the NLRB overrule its precedent without being asked by any party?34
  • Q 2.11 : Does the NLRB have the authority to decide cases with only two members?34
  • Q 2.12 : Can the NLRB reverse its prior decisions?36
  • Q 2.13 : Are NLRB decisions subject to judicial review?36
    • Q 2.13.1 : What is the scope of review when courts of appeals review NLRB decisions?37
Chapter 3: Protected and Unprotected Activity
  • Q 3.1 : What types of employees are afforded protection by the NLRA?42
  • Q 3.2 : What rights of employees are protected by the NLRA?43
    • Q 3.2.1 : What does “concerted activities” mean?44
    • Q 3.2.2 : What are activities “for the purpose of collective bargaining or other mutual aid or protection of employees”?44
    • Q 3.2.3 : What is an employee’s “right to refrain” from exercise of section 7 rights?46
  • Q 3.3 : Are employers required to post notices of employees’ section 7 rights?47
  • Q 3.4 : Are strikes and other work stoppages or slowdowns protected activity?47
  • Q 3.5 : Is an employee’s attending a political rally a protected activity?48
  • Q 3.6 : Do employees have a section 7 right to be represented in investigatory interviews that might result in discipline?50
  • Q 3.7 : What forms of employee communications are protected by the NLRA?50
    • Q 3.7.1 : What is “solicitation”?51
    • Q 3.7.2 : What are “distribution” rights?51
  • Q 3.8 : Are employees permitted to solicit on company property?51
  • Q 3.9 : Are employees permitted to distribute on company property?52
    • Q 3.9.1 : Can employees solicit on company property when they are off duty?52
    • Q 3.9.2 : Is the solicitation of co-workers to sign a petition protesting terms and conditions of employment a protected concerted activity?54
    • Q 3.9.3 : Do non-employee union organizers have the right to access company property to engage in solicitation and distribution?54
  • Q 3.10 : Can employees make statements outside of work to third parties about an employer’s business or products?55
  • Q 3.11 : Are employees’ social media posts considered protected activity?55
  • Q 3.12 : Can employees use an employer’s resources or facilities to communicate about union issues?56
  • Q 3.13 : Can employees wear union insignia while at work?57
    • Q 3.13.1 : What “special circumstances” may justify an employer policy that prohibits employees from wearing union insignia?57
    • Q 3.13.2 : What special rules about wearing union insignia apply to healthcare organizations?58
  • Q 3.14 : What kinds of employer conduct violate the NLRA?59
  • Q 3.15 : How does the NLRA govern employer speech?60
  • Q 3.16 : What types of employer speech constitute violations of section 8(a)(1) of the NLRA?60
    • Q 3.16.1 : When do predictions of plant closures or threats of lost jobs violate section 8(a)(1) of the NLRA?61
    • Q 3.16.2 : When do statements create an impression of surveillance in violation of section 8(a)(1) of the NLRA?62
    • Q 3.16.3 : How may an employer describe the collective bargaining process without violating section 8(a)(1) of the NLRA?62
    • Q. 3.16.4 : When do an employer’s state court lawsuits against employees and unions violate section 8(a)(1) of the NLRA?63
  • Q 3.17 : What types of company rules or handbook provisions could be considered to unlawfully interfere with employees’ section 7 rights?64
    • Q 3.17.1 : Can an employer’s confidentiality policy be found to interfere with employees’ right to engage in protected activity?65
    • Q 3.17.2 : Can an employer prohibit employees from communicating with third parties?67
    • Q 3.17.3 : Can an employer limit its employees’ use of social media?69
    • Q 3.17.4 : Can an anti-harassment or “non-negotiating” rule be found to interfere with employees’ section 7 rights?69
    • Q 3.17.5 : What constitutes discriminatory application of a policy limiting use of company resources or facilities?70
    • Q 3.17.6 : Can an employer require its employees to obey a “chain-of-command” when protesting employer decisions?72
    • Q 3.17.7 : Can an employer require its employees to agree to a provision prohibiting employees from filing joint, class, or collective claims?73
    • Q 3.17.8 : Can an employer require employees to waive their right to file unfair labor practice charges?73
    • Q 3.17.9 : Can an employer prohibit employees from leaving the premises during work hours?74
  • Q 3.18 : When is an employer engaged in unlawful surveillance of employee activity?74
  • Q 3.19 : Can an employer question its employees about their union activities?76
    • Q 3.19.1 : Can an employer instruct supervisors to poll subordinate employees regarding their feelings about unionization?76
  • Q 3.20 : Can a non-union employer use employee committees to discuss working conditions without violating section 8(a)(2) of the NLRA?77
  • Q 3.21 : When does an employer unlawfully grant a benefit or other improvement in terms of employment or a promise of such grant or improvement?78
  • Q 3.22 : When does an employer’s discharge or other discipline of an employee constitute “discrimination” in violation of section 8(a)(3) of the NLRA?78
    • Q 3.22.1 : Is denying employment to “salts” a discriminatory hiring practice in violation of the NLRA?80
  • Q 3.23 : When does an employer violate section 8(a)(4) for discriminating against an employee who has filed charges with or given testimony before the NLRB?81
    • Q 3.23.1 : Does section 8(a)(4) protect employees who have neither filed a charge nor testified before the NLRB?82
  • Q 3.24 : When does restraint or coercion of employees by a union constitute an unfair labor practice?83
  • Q 3.25 : Do union fines assessed on members violate the NLRA?85
    • Q 3.25.1 : Are there limits on the amount of a union fine?85
  • Q 3.26 : Can union discipline be unlawful?85
    • Q 3.26.1 : What forms of discipline are unlawful because they affect a member’s employment relationship with his employer?86
    • Q 3.26.2 : What forms of discipline impair a member’s access to the NLRB’s processes?86
    • Q 3.26.3 : What are the limits on union discipline of supervisor-members?87
    • Q 3.26.4 : Can the union discipline members after they resign?87
  • Q 3.27 : When will a union cause an employer to discriminate against employees in violation of section 8(b)(2) of the NLRA?88
Chapter 4: Representation Cases
  • Q 4.1 : What is a question concerning representation?103
  • Q 4.2 : Can an employer voluntarily recognize a union?103
  • Q 4.3 : What is a neutrality agreement?104
    • Q 4.3.1 : What do neutrality agreements typically provide?104
    • Q 4.3.2 : Are employers obligated to accept neutrality agreements?105
    • Q 4.3.3 : How are neutrality agreements enforced?105
  • Q 4.4 : What is a card check agreement?106
    • Q 4.4.1 : When are neutrality and card check agreements used by unions?106
    • Q 4.4.2 : Why do employers agree to neutrality and card check agreements?106
    • Q 4.4.3 : Are employers obligated to accept card check agreements?107
    • Q 4.4.4 : Can an employer and a union agree to substantive provisions to be included in a future CBA as part of their card check recognition agreement?109
  • Q 4.5 : Can an employer recognize a union’s majority status through polling?109
  • Q 4.6 : When may employees challenge an employer’s voluntary recognition of a union as bargaining representative?110
    • Q 4.6.1 : If a collective bargaining agreement is executed following an employer’s voluntary recognition, is the contract binding?111
  • Q 4.7 : Can a union ever agree not to organize?112
  • Q 4.8 : Can an employer withdraw recognition of a union without an election?112
    • Q 4.8.1 : What kind of evidence proves (or disproves) a union’s loss of majority support?115
  • Q 4.9 : Can an employer use a petition for election in an attempt to halt union organizing efforts?116
  • Q 4.10 : What is the NLRB’s new rule on representation case procedures?117
  • Q 4.11 : How does a party commence representation proceedings before the NLRB?118
  • Q 4.12 : What are the different types of representation petitions the parties can file?119
    • Q 4.12.1 : What is the RC petition?120
    • Q 4.12.2 : … the RD petition?120
    • Q 4.12.3 : … the UD petition?121
    • Q 4.12.4 : … the UC petition?121
    • Q 4.12.5 : … the AC petition?121
    • Q 4.12.6 : … the RM petition?121
  • Q 4.13 : What is a present demand for recognition?122
    • Q 4.13.1 : Does picketing constitute a present demand for recognition?122
  • Q 4.14 : When will the NLRB dismiss a representation petition?123
  • Q 4.15 : What is a contract bar?123
    • Q 4.15.1 : When does a contract bar expire?124
    • Q 4.15.2 : What is the “open period” when a collective bargaining agreement does not act as a bar to election?125
    • Q 4.15.3 : Does the contract bar continue if the parties extend the term of the agreement?125
  • Q 4.16 : What is the recognition bar?125
  • Q 4.17 : What is the statutory one-year election bar?126
  • Q 4.18 : What is the certification bar?127
  • Q 4.19 : What is the blocking-charge rule?127
  • Q 4.20 : When are election petitions dismissed because of unlawful employer conduct?128
  • Q 4.21 : When will a fluctuating work force require dismissal of an election petition?128
  • Q 4.22 : Can a union withdraw a representation petition?129
  • Q 4.23 : Can employees remove a union as their bargaining representative?130
    • Q 4.23.1 : What are the requirements for filing a decertification petition?130
    • Q 4.23.2 : Can employers “decertify” a union?130
    • Q 4.23.3 : Can employees remove a union security clause from their collective bargaining agreement?131
    • Q 4.23.4 : Can a union use a blocking-charge strategy to interfere with a decertification election?131
  • Q 4.24 : What is a pre-election agreement?132
    • Q 4.24.1 : What is a stipulated-election agreement?132
    • Q 4.24.2 : What is a consent-election agreement?133
    • Q 4.24.3 : What is a full-consent agreement?133
  • Q 4.25 : What is an NLRB representation hearing?134
    • Q 4.25.1 : Who presides over a representation hearing?134
    • Q 4.25.2 : What kinds of issues are adjudicated in NLRB representation hearings?134
    • Q 4.25.3 : Which parties are permitted to participate in an NLRB representation hearing?136
    • Q 4.25.4 : What is the order of proceedings in NLRB representation hearings?136
    • Q 4.25.5 : Are parties permitted to file post-hearing briefs after a representation hearing?137
    • Q 4.25.6 : How and when is a decision in a representation hearing issued?137
    • Q 4.25.7 : Can the decision in a representation hearing be reviewed?138
  • Q 4.26 : What is a bargaining unit?138
  • Q 4.27 : Why is the issue of unit determination important?139
  • Q 4.28 : Who determines the scope and composition of the appropriate unit?139
  • Q 4.29 : How does the NLRB determine what is an appropriate bargaining unit?140
    • Q 4.29.1 : In the determination of the appropriate unit, how much weight is given to prior bargaining history?141
    • Q 4.29.2 : … “extent of organization”?141
    • Q 4.29.3 : … the wishes of employees?142
    • Q 4.29.4 : … appropriateness of the organizational structure of the unit?142
    • Q 4.29.5 : May age, race, or gender be considered when determining the composition of a unit?142
    • Q 4.29.6 : What other factors affect the composition and scope of an appropriate voting unit?142
  • Q 4.30 : Does the NLRB have to choose the most appropriate bargaining unit?142
  • Q 4.31 : Can an NLRB determination of the appropriate unit be challenged?144
  • Q 4.32 : What is a presumptively appropriate unit?145
    • Q 4.32.1 : What kinds of employees cannot be included in a bargaining unit?145
    • Q 4.32.2 : What kinds of employees are considered “professional” employees?145
    • Q 4.32.3 : Can professional employees be included in a unit with non-professional employees?146
    • Q 4.32.4 : What kinds of employees are classified as “guards” under the NLRA?147
    • Q 4.32.5 : When will the NLRB determine that a single-facility unit is appropriate?147
    • Q 4.32.6 : When will the NLRB determine that a multi-facility unit is appropriate?148
    • Q 4.32.7 : Is an employer-wide unit appropriate?148
    • Q 4.32.8 : Are multi-employer units ever appropriate?149
  • Q 4.33 : What if the proposed unit does not include all of the employer’s employees?149
  • Q 4.34 : Can parties enter into agreements that exclude certain groups of employees from a proposed unit?150
  • Q 4.35 : What happens to an existing bargaining unit when the employer starts a new operation?150
    • Q 4.35.1 : What is the doctrine of accretion?150
  • Q 4.36 : Which employees may not be included in any bargaining unit?152
    • Q 4.36.1 : Who is considered an independent contractor?152
  • Q 4.37 : Can supervisors be included in a bargaining unit?153
    • Q 4.37.1 : Who are managerial employees?154
    • Q 4.37.2 : Can managerial employees be included in a bargaining unit?154
    • Q 4.37.3 : Can management trainees be included in a bargaining unit?154
    • Q 4.37.4 : Are relatives of management, owners, or stockholders allowed to be part of a bargaining unit?155
  • Q 4.38 : Which employees are considered “confidential employees” not allowed to be part of a bargaining unit?155
  • Q 4.39 : Who qualifies as a “temporary worker” who may be excluded from a bargaining unit?156
    • Q 4.39.1 : Can seasonal workers be included in a bargaining unit?157
    • Q 4.39.2 : When is a probationary employee or trainee included in a bargaining unit?157
  • Q 4.40 : Under what circumstances are strike replacement workers included in a bargaining unit?158
  • Q 4.41 : Are part-time employees included in a bargaining unit?159
  • Q 4.42 : What employees are considered “technical employees,” and in which bargaining unit do they belong?160
  • Q 4.43 : What is a “craft unit”?161
    • Q 4.43.1 : Do craft workers always have the right to be in their own unit?161
    • Q 4.43.2 : Can a union seek to sever a craft unit from a broader existing unit including non-craft workers?162
  • Q 4.44 : Can maintenance employees obtain a unit separate from production employees?163
  • Q 4.45 : Can warehouse employees be included in “wall-to-wall” units?163
  • Q 4.46 : Can truck drivers be part of a unit that includes other employees?164
  • Q 4.47 : Are clerical employees included in units with other kinds of employees?165
  • Q 4.48 : Can college faculty be excluded from bargaining units?166
    • Q 4.48.1 : Can part-time faculty be included in regular faculty units?167
    • Q 4.48.2 : Can graduate students be included in regular faculty units?167
  • Q 4.49 : What are the standard bargaining units for healthcare organizations?167
    • Q 4.49.1 : What is an “acute-care hospital”?169
    • Q 4.49.2 : How are units of healthcare employees determined outside the acute-care hospital setting?169
    • Q 4.49.3 : What issues arise in the composition of a unit of registered nurses?170
    • Q 4.49.4 : What issues arise in the composition of a unit of physicians?171
    • Q 4.49.5 : Which employees are typically included as “all other professional employees” under the Healthcare Rule?172
    • Q 4.49.6 : Which employees have been included in a healthcare unit of technical employees?172
    • Q 4.49.7 : What are the qualifications for inclusion in the skilled maintenance unit under the Healthcare Rule?174
    • Q 4.49.8 : Which employees are included in a healthcare business office clerical unit?175
    • Q 4.49.9 : What are the typical groups of employees included in a healthcare “all other non-professional employees” unit?176
  • Q 4.50 : What is the NLRB’s role in the campaign and election process?177
  • Q 4.51 : Are there restrictions on employer speech during a union organizing campaign?177
    • Q 4.51.1 : What is a “threat of reprisal”?177
    • Q 4.51.2 : Is conferral of benefits made during a campaign always prohibited?178
    • Q 4.51.3 : Can an employer withdraw, threaten to withdraw, or withhold employee benefits during a union organizing campaign?179
    • Q 4.51.4 : Are raffles permitted during union campaigns?180
  • Q 4.52 : Can an employer deliver a speech to employees on its premises during the lead-up to a union election?181
  • Q 4.53 : Can an employer lawfully ask employees whether they support or are affiliated with a union?182
  • Q 4.54 : Can an employer limit access to its premises during a union election campaign?183
  • Q 4.55 : Can an employer limit use of its email systems during a campaign?184
  • Q 4.56 : Can an employer conduct surveillance of employees during a campaign?185
  • Q 4.57 : Can an employer discipline or discharge a supervisor for engaging in union activity?185
  • Q 4.58 : Can an election be set aside based on a supervisor’s pro-union conduct?186
    • Q 4.58.1 : Can an election be overturned based on union interference during an organizing campaign?186
    • Q 4.58.2 : Can an election be set aside based on third-party conduct?187
    • Q 4.58.3 : Is an employer responsible for the conduct of third parties during a campaign?187
  • Q 4.59 : When are elections held?188
  • Q 4.60 : When and where does the Notice of Election have to be posted?188
  • Q 4.61 : Who is allowed to vote?190
    • Q 4.61.1 : Can the parties stipulate to a voter eligibility list?190
    • Q 4.61.2 : Can a voter’s eligibility be challenged?191
    • Q 4.61.3 : Are discharged employees allowed to vote in an NLRB election?192
    • Q 4.61.4 : Are employees on layoff allowed to vote in an NLRB election?192
    • Q 4.61.5 : Are strikers allowed to vote in an NLRB election?193
    • Q 4.61.6 : Is an employee on a leave of absence allowed to vote?193
    • Q 4.61.7 : Does the NLRB require voters to bring identification with them on election day?194
    • Q 4.61.8 : Can employees who have voluntarily resigned later vote in an NLRB election?194
  • Q 4.62 : Where are NLRB elections held?194
    • Q 4.62.1 : How long does it take to conduct an NLRB election?195
    • Q 4.62.2 : Under what circumstances is it appropriate to reschedule an election?195
  • Q 4.63 : How is the polling site controlled?195
  • Q 4.64 : Who is present during the voting process?196
    • Q 4.64.1 : Who are observers, and how are they selected?196
  • Q 4.65 : What sort of electioneering is allowed during an election?197
  • Q 4.66 : What does a ballot say?198
    • Q 4.66.1 : When are mail ballots used in elections?198
    • Q 4.66.2 : What is the procedure for counting the ballots?199
    • Q 4.66.3 : How are challenged ballots resolved?200
  • Q 4.67 : When do election results become final?202
  • Q 4.68 : What are election objections?202
    • Q 4.68.1 : Can election objections be filed against a union?202
    • Q 4.68.2 : Can election objections be filed against the NLRB?202
    • Q 4.68.3 : How are election objections adjudicated?203
  • Q 4.69 : What is the standard for determining whether objectionable conduct is sufficient to set aside an election?204
  • Q 4.70 : What happens if an election is overturned?206
  • Q 4.71 : Does the NLRB use any special remedies in election cases?206
Chapter 5: Duty to Bargain
  • Q 5.1 : When does the duty to bargain initially arise?225
  • Q 5.2 : What does the duty to bargain require when a union is first certified or recognized?225
    • Q 5.2.1 : Does the employer’s obligation to recognize and bargain with the union end after the one-year period?226
  • Q 5.3 : What does “good faith” mean?226
    • Q 5.3.1 : What types of employer conduct can be considered evidence of bad faith in violation of section 8(a)(5) of the NLRA?227
    • Q 5.3.2 : Are there any employer activities that, regardless of whether they were done in good or bad faith, are “per se violations” of the duty to bargain?227
    • Q 5.3.3 : When does a union refuse to bargain in good faith in violation of section 8(b)(3) of the NLRA?228
    • Q 5.3.4 : What are specific examples of violations of a union’s duty to bargain in good faith?229
  • Q 5.4 : Are employers required to bargain with the union before taking disciplinary action if the union requests it?229
  • Q 5.5 : What are “mandatory subjects” of bargaining, and what are the parties’ duties with respect to them?231
    • Q 5.5.1 : What are considered “rates of pay” or “wages”?232
    • Q 5.5.2 : Are bonuses considered “wages”?232
    • Q 5.5.3 : Which other employee benefits are considered “wages”?233
    • Q 5.5.4 : What kinds of employment terms fall within the scope of mandatory bargaining over “hours of employment”?234
    • Q 5.5.5 : What kinds of employment terms fall within the scope of mandatory bargaining over “other terms and conditions of employment”?234
  • Q 5.6 : Do mandatory subjects of bargaining include seniority, promotions, and transfers?235
    • Q 5.6.1 : … grievance procedures?236
    • Q 5.6.2 : … union security provisions, such as dues check-off and agency shop provisions?236
    • Q 5.6.3 : … hiring halls?238
    • Q 5.6.4 : … employee surveillance or monitoring?238
    • Q 5.6.5 : … “work rules”?238
    • Q 5.6.6 : … drug and alcohol testing for employees?239
    • Q 5.6.7 : … discretionary discipline?239
  • Q 5.7 : What are the permissive subjects of bargaining?239
    • Q 5.7.1 : What are a party’s rights and duties with respect to permissive subjects?240
    • Q 5.7.2 : Which employer decisions lie at the “core of entrepreneurial control” and, thus, are not subject to mandatory bargaining?241
    • Q 5.7.3 : When is an employer required to bargain over the effects of a permissive subject of bargaining?242
  • Q 5.8 : Do permissive subjects of bargaining include subcontracting?244
    • Q 5.8.1 : … relocation of unit work?245
    • Q 5.8.2 : … a “most-favored-nation” clause?246
    • Q 5.8.3 : … the scope of the unit?246
    • Q 5.8.4 : … interest arbitration?247
    • Q 5.8.5 : … provisions that deal with employee-union affairs?248
    • Q 5.8.6 : … retiree benefits?248
    • Q 5.8.7 : … a “zipper” clause?249
  • Q 5.9 : Are there subjects about which employers and unions are not permitted to bargain?249
    • Q 5.9.1 : What is a “closed shop” agreement?250
    • Q 5.9.2 : What is a “hot cargo” agreement?250
    • Q 5.9.3 : Are hot cargo agreements permissible subjects of bargaining?250
    • Q 5.9.4 : Are there types of “super-seniority” clauses that are illegal subjects of bargaining?251
    • Q 5.9.5 : When are terminable-at-will clauses impermissible bargaining subjects?251
    • Q 5.9.6 : Can an employer or union bargain over a “hold-harmless” clause?252
  • Q 5.10 : What is a unilateral change?252
    • Q 5.10.1 : Is an employer required to bargain with a union where a change to a non-unit employee’s benefit affects a unit employee?253
    • Q 5.10.2 : Can the employer make material changes to employees’ terms and conditions of employment after the union is recognized, but before the first contract is ratified?254
  • Q 5.11 : What are an employer’s statutory bargaining obligations with respect to providing information to the union?254
  • Q 5.12 : What type of information must the employer provide to the union?255
    • Q 5.12.1 : What types of information are considered presumptively relevant?255
    • Q 5.12.2 : Does an employer have to provide to a union information that is not presumptively relevant?256
  • Q 5.13 : What information can an employer refuse to provide a union?257
    • Q 5.13.1 : Does an employer have to provide its nonpublic financial information to a union?258
    • Q 5.13.2 : Does an employer have to provide confidential employee information, such as medical information?258
  • Q 5.14 : Is the union required to provide the employer with information as part of its statutory bargaining?259
  • Q 5.15 : What is “hard bargaining”?259
    • Q 5.15.1 : Is hard bargaining permissible?260
  • Q 5.16 : What is “surface bargaining”?260
    • Q 5.16.1 : Is surface bargaining permissible?261
  • Q 5.17 : What is “regressive bargaining”?261
    • Q 5.17.1 : Is regressive bargaining permissible?261
  • Q 5.18 : Can a unionized employer discuss bargaining issues directly with employees?262
    • Q 5.18.1 : What are the limits of an employer’s “free-speech rights” when it comes to employer-employee communications?263
    • Q 5.18.2 : When does an employer’s communication to employees become a form of “direct dealing” in violation of the duty to bargain with the union?264
    • Q 5.18.3 : Can employers directly seek employee input into bargaining proposals?264
  • Q 5.19 : What is a good-faith bargaining impasse?265
    • Q 5.19.1 : How do you know when parties have reached a good-faith bargaining impasse?266
  • Q 5.20 : What are the consequences of an employer declaring an impasse?267
    • Q 5.20.1 : Under what circumstances can a bona fide impasse be broken and the duty to bargain reawakened?269
    • Q 5.20.2 : Can employers make unilateral changes in the absence of a bona fide impasse?270
    • Q 5.20.3 : When will an employer’s ULP preclude the finding of an impasse?270
  • Q 5.21 : What does the duty to bargain require where a collective bargaining agreement already exists?270
    • Q 5.21.1 : What can a party do if it wishes to change a provision in the collective bargaining agreement?271
    • Q 5.21.2 : How does the NLRB determine whether an employer has modified a collective bargaining agreement in violation of sections 8(a)(5) and 8(d)?271
  • Q 5.22 : Can a union waive its right to bargain over an employer’s midterm modification, and if so, how?272
    • Q 5.22.1 : What constitutes “clear and unmistakable conduct” supporting a waiver of bargaining rights?273
    • Q 5.22.2 : How does a “reopener” clause affect a party’s duty to bargain during the term of a contract?273
    • Q 5.22.3 : How may a “zipper” clause be used to establish waiver of bargaining rights?274
    • Q 5.22.4 : What is a “management rights” clause, and how may it be used to establish waiver of bargaining rights?274
    • Q 5.22.5 : How does a party waive its right to bargain through conduct?275
    • Q 5.22.6 : Can a union waive its right to bargain through inaction?276
  • Q 5.23 : What types of changes can either party make in mandatory subjects after a union contract expires?277
  • Q 5.24 : What is a multi-employer bargaining unit?278
    • Q 5.24.1 : How can an employer withdraw from multi-employer collective bargaining?278
    • Q 5.24.2 : Will an employer still be considered a member of a multi-employer association if its contract is different from other association members’ contracts?280
    • Q 5.24.3 : When may an employer enter into a “me too” agreement with a union?281
    • Q 5.24.4 : Where other groups of employees are already represented on a multi-employer or multi-plant basis, are new units of employees limited to that same type of representation?281
    • Q 5.24.5 : May an employer challenge the majority status of a union as a result of the employer’s withdrawal from a multi-employer association?282
    • Q 5.24.6 : Can a multi-employer association and its members be liable for unfair labor practices during multi-employer bargaining?283
  • Q 5.25 : What are the duties of a “successor employer,” and when is an employer considered a “successor employer” for purposes of the NLRA?284
    • Q 5.25.1 : Is a purchaser bound by a “successorship clause” contained in the seller’s unexpired collective bargaining agreement?285
    • Q 5.25.2 : Is the seller bound by a successorship clause in the collective bargaining agreement?285
    • Q 5.25.3 : What steps can the purchaser take to avoid assuming or adopting a seller’s labor contract?286
    • Q 5.25.4 : When will an assets purchaser be unable unilaterally to set the initial terms and conditions of employment?286
  • Q 5.26 : What are the purchasing employer’s bargaining obligations with an incumbent union?288
  • Q 5.27 : What are the selling employer’s bargaining obligations with respect to selling or merging a company with union-represented employees?288
  • Q 5.28 : When an employer transfers represented employees to a new division or location, what are the employer’s responsibilities with respect to the union?289
  • Q 5.29 : Are there any defenses to purchaser liability for the seller’s unredressed unfair labor practices?290
    • Q 5.29.1 : When does an employer’s sale constitute an “alter ego” transaction?290
    • Q 5.29.2 : What factors will be considered when determining whether an employer’s sale constitutes an alter-ego transaction?291
  • Q 5.30 : What is an “accretion,” and what is an employer’s duty to bargain after accretion?291
Chapter 6: Collective Bargaining Agreements
  • Q 6.1 : What are the typical components of a collective bargaining agreement?302
  • Q 6.2 : What is a recognition clause?303
  • Q 6.3 : What is a management rights clause?304
  • Q 6.4 : Can collective bargaining agreements restrict strikes and lockouts during their term?305
  • Q 6.5 : What is a union security provision?306
  • Q 6.6 : What is an anti-discrimination clause?307
  • Q 6.7 : How does a collective bargaining agreement provide for the payment of wages?308
    • Q 6.7.1 : How do employee benefits provisions work?310
  • Q 6.8 : How are seniority rights typically defined in a collective bargaining agreement?312
    • Q 6.8.1 : Can seniority rights be transferred when, for example, a plant closes or is consolidated?313
    • Q 6.8.2 : What are super-seniority provisions?314
  • Q 6.9 : What kind of provisions in a collective bargaining agreement govern layoff and recall procedures?315
  • Q 6.10 : How do collective bargaining agreements typically define hours of work?315
  • Q 6.11 : What types of leave provisions may be included in collective bargaining agreements?317
    • Q 6.11.1 : What are typical provisions regarding family and medical leave?317
    • Q 6.11.2 : … jury duty?318
    • Q 6.11.3 : … voting leave?318
    • Q 6.11.4 : … military leave?318
    • Q 6.11.5 : … sick leave?319
    • Q 6.11.6 : … personal leave?319
    • Q 6.11.7 : … union leave?320
  • Q 6.12 : What type of safety and health provisions do collective bargaining agreements include?320
  • Q 6.13 : How are the issues of job transfers and promotions handled in collective bargaining agreements?322
  • Q 6.14 : How is the issue of union access addressed in collective bargaining agreements?322
  • Q 6.15 : How are the issues of discipline and discharge addressed in collective bargaining agreements?323
  • Q 6.16 : What type of subcontracting language is found in collective bargaining agreements?323
  • Q 6.17 : How are grievance procedures addressed in collective bargaining agreements?324
  • Q 6.18 : What is a “grievance”?324
  • Q 6.19 : How are grievances typically handled?325
    • Q 6.19.1 : Can an employer require employees to sign class action waivers?327
  • Q 6.20 : What are the steps in the pre-arbitration grievance process?327
  • Q 6.21 : What is grievance mediation?328
  • Q 6.22 : What are the prerequisites for submitting a dispute to arbitration?329
  • Q 6.23 : How are arbitrators selected?330
    • Q 6.23.1 : Can arbitrators issue declaratory judgments?331
  • Q 6.24 : Who represents the parties?331
  • Q 6.25 : Who determines the rules governing the arbitration process?331
  • Q 6.26 : Is an arbitration like a court trial?332
    • Q 6.26.1 : What obligations do parties have with regard to discovery?333
    • Q 6.26.2 : What is “expedited arbitration”?335
    • Q 6.26.3 : Can parties arbitrate multiple grievances?335
  • Q 6.27 : What is the union’s duty of fair representation?336
    • Q 6.27.1 : What is a “hybrid claim”?338
  • Q 6.28 : How is the duty to arbitrate enforced?338
    • Q 6.28.1 : What is the extent of a court’s authority in compelling arbitration and enforcing arbitration awards?340
    • Q 6.28.2 : Are arbitration awards subject to being overturned if wrongly decided?341
    • Q 6.28.3 : Can an individual be required to arbitrate an anti-discrimination claim pursuant to a collective bargaining agreement?342
    • Q 6.28.4 : Do arbitration provisions in collective bargaining agreements preclude state and federal agencies from filing discrimination charges?344
  • Q 6.29 : When may a court issue an injunction against a labor dispute?344
    • Q 6.29.1 : What is a “reverse Boys Markets” injunction?345
    • Q 6.29.2 : What are the requirements to obtain a Boys Markets injunction?346
Chapter 7: Strikes, Picketing, Boycotts, and Lockouts
  • Q 7.1 : What is a strike?352
  • Q 7.2 : Do employees have an absolute right to strike?353
  • Q 7.3 : Which strikes are generally protected under the NLRA?353
  • Q 7.4 : Which kinds of strikes are not protected under the NLRA?354
    • Q 7.4.1 : What is a sit-down strike?354
    • Q 7.4.2 : … an intermittent strike?355
    • Q 7.4.3 : … a partial strike?356
    • Q 7.4.4 : Are work slowdowns protected?357
    • Q 7.4.5 : Are strikes over permissive or illegal subjects of bargaining protected?357
    • Q 7.4.6 : What remedies does an employer have when a union violates a no-strike agreement?358
    • Q 7.4.7 : What is a “wildcat” strike?358
  • Q 7.5 : Can employees engage in a sympathy strike or honor the picket line of another striking union?359
  • Q 7.6 : What constitutes strike misconduct?359
  • Q 7.7 : What is the difference between an economic strike and a ULP strike?360
    • Q 7.7.1 : Can a strike be both an economic strike and a ULP strike?361
  • Q 7.8 : How can an employer lawfully respond to an economic strike?362
    • Q 7.8.1 : What are an employer’s obligations when hiring permanent replacements?362
    • Q 7.8.2 : Can replaced economic strikers ever get their jobs back?363
    • Q 7.8.3 : How can an employer lawfully respond to a ULP strike?363
  • Q 7.9 : Can employees walk out where they contend that the company is operating under abnormally dangerous conditions?364
  • Q 7.10 : When does an employee “abandon” his or her job during a strike?365
    • Q 7.10.1 : What if a striking employee accepts another job?365
  • Q 7.11 : What notices are required before a strike can occur?367
    • Q 7.11.1 : Are there special notices required for strikes against healthcare institutions?368
    • Q 7.11.2 : Does the Board treat strikes differently from other concerted actions for purposes of section 8(g) notice?368
  • Q 7.12 : What is labor picketing?369
  • Q 7.13 : Is picketing always lawful?371
  • Q 7.14 : What is recognitional or organizational picketing?371
    • Q 7.14.1 : How are recognitional and organizational picketing limited under the NLRA?372
  • Q 7.15 : What is informational or publicity picketing?372
    • Q 7.15.1 : When is informational/publicity picketing permitted?373
  • Q 7.16 : What is area standards picketing?374
    • Q 7.16.1 : How is area standards picketing limited under the NLRA?374
  • Q 7.17 : What is a secondary boycott?375
    • Q 7.17.1 : Is a secondary boycott legal?375
    • Q 7.17.2 : When does a secondary boycott become an illegal threat of coercion?376
    • Q 7.17.3 : When is a secondary boycott not prohibited?378
    • Q 7.17.4 : What will make a third party a “single employer” or “alter ego” of the primary employer?378
    • Q 7.17.5 : When is a third-party employer considered a “struck-work ally” of the primary employer?379
  • Q 7.18 : If a union threatens to picket or begins recognitional or organizational picketing, how may an employer lawfully respond?380
    • Q 7.18.1 : What is a section 10(l??) injunction?381
  • Q 7.19 : Can an employer discipline an employee who engages in lawful recognitional or organizational picketing or a strike?382
  • Q 7.20 : Where can a union picket?383
    • Q 7.20.1 : Where can the union picket at the primary employer’s site?383
    • Q 7.20.2 : How is common-situs picketing limited?383
    • Q 7.20.3 : How does a “reserve gate” system limit where a union can picket at a common situs?385
    • Q 7.20.4 : What happens if a primary employer uses the gate reserved for the neutral employer, or vice versa?386
    • Q 7.20.5 : Can the primary employer establish a secondary or neutral situs at the primary situs?387
    • Q 7.20.6 : Is the union permitted to follow and picket a primary employer’s employees from the primary situs to another site?388
  • Q 7.21 : What is handbilling?388
    • Q 7.21.1 : Does handbilling come within the secondary boycott prohibition of the NLRA?388
    • Q 7.21.2 : When does handbilling violate the NLRA?390
    • Q 7.21.3 : Can a union handbill on private property?390
    • Q 7.21.4 : Can union members handbill on the property of a third party where they regularly perform work?392
  • Q 7.22 : What is bannering?392
    • Q 7.22.1 : Does the NLRB consider bannering a protected activity under the NLRA?392
  • Q 7.23 : What is a corporate campaign?395
  • Q 7.24 : How can employers lawfully challenge certain corporate campaigns?395
    • Q 7.24.1 : How have employers pursued RICO claims against unions?396
    • Q 7.24.2 : When may an employer bring a defamation claim against a union?398
    • Q 7.24.3 : How have employers pursued privacy claims against unions?398
  • Q 7.25 : What is a lockout?399
    • Q 7.25.1 : When can an employer initiate a lockout?399
    • Q 7.25.2 : When will a lockout violate the NLRA?400
    • Q 7.25.3 : What is a whipsaw strike?400
    • Q 7.25.4 : Can an employer use replacement workers during a lockout?403
  • Q 7.26 : Can an employer lock out some employees and not others?403
Chapter 8: Unfair Labor Practice Case Procedures
  • Q 8.1 : What is an unfair labor practice?415
  • Q 8.2 : What kinds of employer actions are considered ULPs?416
    • Q 8.2.1 : What employer actions violate NLRA section 8(a)(1)?416
    • Q 8.2.2 : … section 8(a)(2)?417
    • Q 8.2.3 : … section 8(a)(3)?417
    • Q 8.2.4 : … section 8(a)(4)?418
    • Q 8.2.5 : … section 8(a)(5)?418
  • Q 8.3 : What kinds of actions by a labor organization are considered ULPs?418
    • Q 8.3.1 : When does a union commit violations of section 8(b)(1)?419
    • Q 8.3.2 : … section 8(b)(2)?420
    • Q 8.3.3 : … section 8(b)(3)?420
    • Q 8.3.4 : … section 8(b)(4)?420
    • Q 8.3.5 : … section 8(b)(5)?420
    • Q 8.3.6 : … section 8(b)(6)?421
    • Q 8.3.7 : … section 8(b)(7)?421
  • Q 8.4 : Who may file a ULP charge?421
  • Q 8.5 : Who is a charge filed with?421
  • Q 8.6 : What must a charge include?422
  • Q 8.7 : By what means may a charge be filed?423
  • Q 8.8 : When is a charge timely?423
  • Q 8.9 : How are filing deadlines calculated?425
    • Q 8.9.1 : Are deadlines the same for e-filing?426
    • Q 8.9.2 : May a party request an extension of time for filing?426
    • Q 8.9.3 : What documents must be received by the NLRB on or before the last day for filing?426
    • Q 8.9.4 : How are service deadlines calculated?427
  • Q 8.10 : How does the NLRB investigate a charge?427
    • Q 8.10.1 : During the investigation, can the NLRB request to take witness affidavits?428
    • Q 8.10.2 : Does the NLRB have authority to issue subpoenas to investigate charges?428
  • Q 8.11 : What is the charged party’s role in the investigation of a charge?429
  • Q 8.12 : How long is the typical investigation?429
  • Q 8.13 : How is the decision to issue a complaint made?429
  • Q 8.14 : How is a ULP complaint issued?430
    • Q 8.14.1 : Can a ULP complaint be amended?430
  • Q 8.15 : What happens if the regional director determines a charge should be dismissed?431
  • Q 8.16 : Can a charging party appeal a dismissal of a charge?432
  • Q 8.17 : Can a charge be resolved where the parties are covered by a grievance and arbitration procedure?432
  • Q 8.18 : What standards apply to deferral to arbitral decisions?433
  • Q 8.19 : Before Babcock, how would the NLRB determine where deferral to arbitration is appropriate?434
    • Q 8.19.1 : If the NLRB defers the charge under its Collyer deferral policy, does the charging party have any obligations?436
    • Q 8.19.2 : Are there any circumstances under which the NLRB will revoke its deferral and resume processing a charge?436
    • Q 8.19.3 : Can the charging party appeal the NLRB’s deferral?436
  • Q 8.20 : What types of cases does the NLRB not defer to arbitration?437
    • Q 8.20.1 : Why does the NLRA not defer disputes involving accretions or unit clarifications?437
    • Q 8.20.2 : What kinds of contract conflicts will cause the NLRB not to defer?437
    • Q 8.20.3 : What kinds of statutory issues will cause the NLRB not to defer?438
    • Q 8.20.4 : In what kinds of situations would arbitration be an inadequate remedy?438
    • Q 8.20.5 : When does relatedness make deferral inappropriate?439
    • Q 8.20.6 : When does failure to provide information prevent a dispute from being deferred?439
  • Q 8.21 : Using pre-Babcock standards, when will the NLRB defer to an existing arbitration award?440
    • Q 8.21.1 : When is an arbitrator’s decision “clearly repugnant” to the NLRA?440
    • Q 8.21.2 : When is a ULP “presented to and considered by the arbitration tribunal”?441
  • Q 8.22 : Under Babcock, how does the NLRB determine where deferral to arbitration is appropriate?441
  • Q 8.23 : Under Babcock, when will the NLRB defer to an existing arbitration award?442
    • Q 8.23.1 : Under the Babcock standard, what is meant by “explicitly authorized”?442
    • Q 8.23.2 : ... “presented with and considered the statutory issue”?442
    • Q 8.23.3 : ... “reasonably permits”?443
  • Q 8.24 : May the parties settle a charge without NLRB involvement?443
  • Q 8.25 : What form does a settlement take?443
    • Q 8.25.1 : What is a formal settlement of a charge, and when is it appropriate?443
    • Q 8.25.2 : What is an informal settlement of a charge, and when is it appropriate?444
    • Q 8.25.3 : What is a unilateral settlement, and when is it appropriate?445
  • Q 8.26 : What standards apply to deferral to settlement agreements?445
  • Q 8.27 : Under Alpha Beta, when will the NLRB defer to settlement agreements?445
  • Q 8.28 : Under Babcock, when will the NLRB defer to settlement agreements?445
  • Q 8.29 : What happens if a case is not dismissed, arbitrated, or settled?446
  • Q 8.30 : How does a respondent answer a ULP complaint?446
    • Q 8.30.1 : Can a party ask for a postponement of the ULP hearing?447
    • Q 8.30.2 : When may parties file motions for summary judgment on a ULP complaint?448
  • Q 8.31 : How is a ULP hearing conducted?448
    • Q 8.31.1 : How does a formal hearing compare to a federal court proceeding?449
    • Q 8.31.2 : What are the rights of the parties during the hearing?449
    • Q 8.31.3 : Where and when is a ULP hearing held?450
    • Q 8.31.4 : Does the NLRB issue subpoenas for ULP hearings?450
  • Q 8.32 : May a party file a brief after the close of the hearing?451
  • Q 8.33 : What must be included in the ALJ’s decision?451
    • Q 8.33.1 : What happens after the ALJ’s decision is delivered?451
    • Q 8.33.2 : How do parties file an exception to the ALJ’s decision?452
    • Q 8.33.3 : Can a party file a motion for reconsideration, rehearing, or reopening of the record?452
  • Q 8.34 : How can a party challenge the NLRB’s order?452
    • Q 8.34.1 : Are NLRB orders self-enforcing?453
    • Q 8.34.2 : What can the courts do with the NLRB’s order?453
  • Q 8.35 : Is preliminary injunctive relief available to enjoin ULPs?454
  • Q 8.36 : When are mandatory section 10(l ) injunctions available to remedy ULPs?454
    • Q 8.36.1 : What is the procedure in court for seeking a 10(l) injunction?455
  • Q 8.37 : Under what circumstances will the NLRB seek a discretionary injunction under section 10(j) of the NLRA?456
    • Q 8.37.1 : When will the NLRB seek a discretionary injunction related to interference with union organizational campaigns?457
    • Q 8.37.2 : When will allegations that an employer is undermining a bargaining representative lead the NLRB to seek a discretionary section 10(j) injunction?458
    • Q 8.37.3 : What will lead the NLRB to seek a section 10(j) injunction against a union?458
  • Q 8.38 : May a charging party request section 10(j) injunctive relief?459
  • Q 8.39 : How does the NLRB determine if seeking section 10(j) relief is warranted?459
    • Q 8.39.1 : If the regional office concludes that 10(j) relief is warranted, how does it pursue an injunction?459
  • Q 8.40 : Who is authorized to file section 10(j) petitions for injunctive relief with the court?460
  • Q 8.41 : What factors will a court consider when evaluating a petition for injunctive relief under section 10(j)?460
  • Q 8.42 : How long will a section 10(j) or section 10(l ) injunction remain in effect?461
  • Q 8.43 : What remedies are available for violations of the NLRA?461
  • Q 8.44 : What is a cease-and-desist order?462
  • Q 8.45 : When a party has committed a ULP, what notice must it post?462
    • Q 8.45.1 : Where and for how long does the notice need to be posted?463
    • Q 8.45.2 : What does a notice look like?463
  • Q 8.46 : What are some of the other forms of relief the NLRB might order?465
  • Q 8.47 : When does the NLRB order job placement or “instatement” as an affirmative remedy?465
    • Q 8.47.1 : When does the NLRB order reinstatement of a bargaining unit member?466
    • Q 8.47.2 : Are there instances where an employee will not be reinstated?466
  • Q 8.48 : Can the NLRB order backpay?467
    • Q 8.48.1 : How is backpay calculated?467
  • Q 8.49 : May the NLRB order a party to pay attorney fees and litigation costs?469
    • Q 8.49.1 : Are there other ways a party can recover attorney fees?470
  • Q 8.50 : What is a bargaining order?470
    • Q 8.50.1 : What is a Gissel bargaining order?471
    • Q 8.50.2 : How does the NLRB determine that a Gissel bargaining order is appropriate?471
    • Q 8.50.3 : What is the scope of a bargaining order?472
    • Q 8.50.4 : What happens if a party does not bargain in good faith?473
    • Q 8.50.5 : How do the NLRB and the courts determine whether a party is bargaining in good faith?473
  • Q 8.51 : Can the NLRB prevent a company from transferring or opening a facility as a remedy for a ULP charge?474
  • Q 8.52 : Can an individual be held liable for interfering with protected activity?474
  • Q 8.53 : When can two employers both be liable for interfering with protected activity?475
  • Q 8.54 : When are two employers considered a ”single employer”?475
    • Q 8.54.1 : What evidence is considered as part of the “functional integration of enterprises” and “centralized control of labor relations” factors when determining if two employers are a single employer?476
    • Q 8.54.2 : What evidence is considered as part of the “common management” and “common ownership” factors when determining if two employers are a “single employer”?476
    • Q 8.54.3 : What are the potential concerns associated with being considered a “single employer”?477
  • Q 8.55 : When are two employers considered “joint employers”?477
    • Q 8.55.1 : When does an employer “meaningfully affect matters” relating to the employment relationship of employees with another employer?478
    • Q 8.55.2 : How many aspects of another employer’s employees must an employer be able to affect to be considered a “joint employer”?478
  • Q 8.56 : Can a successor company be held liable for its predecessor’s unfair labor or employment practices?479
    • Q 8.56.1 : What remedies affect successor employers?479
Chapter 9: Railway Labor Act
  • Q 9.1 : Which employers does the RLA cover?488
    • Q 9.1.1 : Are all railroads and airlines considered “carriers” subject to the RLA?488
    • Q 9.1.2 : When does a company qualify as a derivative carrier?489
  • Q 9.2 : Which employees are covered by the RLA?489
  • Q 9.3 : Which employers and employees does the RLA exclude from coverage?490
    • Q 9.3.1 : Who decides whether a particular entity is subject to the RLA?490
  • Q 9.4 : Who administers the RLA?491
    • Q 9.4.1 : How does the NMB administer the RLA?491
    • Q 9.4.2 : Does the NMB have enforcement powers?492
  • Q 9.5 : How do representation elections work under the RLA?492
    • Q 9.5.1 : How is a bargaining unit determined under the RLA?492
    • Q 9.5.2 : What are the procedures related to initiating and conducting representation elections under the RLA?493
    • Q 9.5.3 : Can an employer voluntarily recognize an employee representative under the RLA?495
    • Q 9.5.4 : How can a union be “decertified” under the RLA?495
    • Q 9.5.5 : What limits does the RLA impose on carriers during a representation election?496
    • Q 9.5.6 : What rights does a carrier have to oppose the election of a union under the RLA?496
  • Q 9.6 : How are labor relations disputes resolved under the RLA?497
    • Q 9.6.1 : How are disputes classified under the RLA?497
  • Q 9.7 : What are “minor disputes”?497
    • Q 9.7.1 : How are minor disputes resolved under the RLA?498
  • Q 9.8 : What are “major disputes”?499
    • Q 9.8.1 : How are major disputes resolved under the RLA?499
  • Q 9.9 : Can employees covered under the RLA strike?500
    • Q 9.9.1 : What if a strike or other work stoppage threatens to substantially disrupt interstate commerce?500
  • Q 9.10 : How long do bargaining agreements under the RLA remain in effect?501
  • Q 9.11 : Is there a duty to bargain under the RLA?501
    • Q 9.11.1 : Which subjects are mandatory subjects of bargaining?502
    • Q 9.11.2 : Is multi-employer bargaining allowed under the RLA?502
  • Q 9.12 : Are union shop agreements permitted under the RLA?502
Chapter 10: Federal Preemption of State Regulation
  • Q 10.1 : What is Garmon preemption?506
    • Q 10.1.1 : What is the difference between “actually protected or prohibited” activity and “arguably protected or prohibited” activity?507
    • Q 10.1.2 : Are there any exceptions to the preemption of activities that are “arguably protected or prohibited” by the NLRA?508
    • Q 10.1.3 : What is the “compelling state or local interest” exception?509
    • Q 10.1.4 : … the “peripheral concern” exception?509
    • Q 10.1.5 : … the “market participant” exception?509
  • Q 10.2 : When does Machinists preemption apply?510
    • Q 10.2.1 : What are some examples of cases involving Machinists preemption?510
  • Q 10.3 : Are there any exceptions to Machinists preemption?511
    • Q 10.3.1 : What is the “minimum labor standard” exception?511
    • Q 10.3.2 : What is the “state or local interest of peripheral concern” exception?512
    • Q 10.3.3 : What is the “market participant” exception?512
  • Q 10.4 : What is section 301 preemption?512
    • Q 10.4.1 : When does a state law claim “depend on the meaning” of a collective bargaining agreement?513
    • Q 10.4.2 : Will a state law claim always be preempted where a collective bargaining agreement is consulted in the course of litigation?514
  • Q 10.5 : How does one determine which preemption doctrine applies in a particular case?515
Chapter 11: Regulation of Internal Union Affairs: Rights and Obligations of Unions and Union Members
  • Q 11.1 : What is the purpose and scope of the LMRDA?520
  • Q 11.2 : What are a union member’s rights with regard to internal union affairs?522
    • Q 11.2.1 : How can members enforce their Title I rights?524
  • Q 11.3 : What are a member’s rights with regard to elections?524
  • Q 11.4 : What requirements does the LMRDA impose on the election of union officers?525
    • Q 11.4.1 : Who are union officers that the LMRDA requires be elected?526
    • Q 11.4.2 : What limitations may be imposed on candidates for election as union officers?526
  • Q 11.5 : How are the LMRDA’s election requirements enforced?528
  • Q 11.6 : What are union dues?528
    • Q 11.6.1 : What are union dues used for?529
    • Q 11.6.2 : Can employees who are not members of a union be required to pay union dues?529
    • Q 11.6.3 : Can an employer stop deducting dues from employees’ paychecks after the collective bargaining agreement expires?529
  • Q 11.7 : What other types of fees may be assessed by unions?530
    • Q 11.7.1 : What is an initiation fee?530
    • Q 11.7.2 : What are agency fees?530
    • Q 11.7.3 : What is an assessment?530
  • Q 11.8 : Are there limits on the amount of dues a union can collect?531
  • Q 11.9 : What reporting obligations does the LMRDA impose on employers, unions, and labor relations consultants?531
    • Q 11.9.1 : What LMRDA reports are available publicly?532
  • Q 11.10 : What are an employer’s financial disclosure and reporting requirements under the LMRDA?532
    • Q 11.10.1 : What exceptions or conditions are these disclosure requirements subject to?533
  • Q 11.11 : What is a labor relations consultant?534
  • Q 11.12 : What are a labor relations consultant’s financial disclosure and reporting requirements under the LMRDA?534
  • Q 11.13 : What are a union’s financial disclosure and reporting requirements under the LMRDA?535
    • Q 11.13.1 : Who must file a Form LM-2?536
    • Q 11.13.2 : … Form LM-3?536
    • Q 11.13.3 : … Form LM-4?537
  • Q 11.14 : What are union officers’ and employees’ financial disclosure and reporting requirements under LMRDA?537
  • Q 11.15 : What records does OLMS recommend unions retain in association with their reporting obligations under LMRDA?538
    • Q 11.15.1 : When must a union disclose its constitution and bylaws to OLMS?539
    • Q 11.15.2 : What obligation does a union have to provide its members with information that is reported to OLMS?539
    • Q 11.15.3 : Does every employee of the union have reporting requirements?540
    • Q 11.15.4 : How are LMRDA reporting requirements enforced?541
  • Q 11.16 : What is a union security agreement?541
    • Q 11.16.1 : Can a union security agreement require union membership?542
    • Q 11.16.2 : What are the limitations of financial-core employees’ rights and obligations?542
    • Q 11.16.3 : Are financial-core employees required to support union interests?543
  • Q 11.17 : What is the legal status of union security agreements?543
    • Q 11.17.1 : Can employees vote to reject (de-authorize) a union security agreement?544
  • Q 11.18 : What is a Beck objection?545
    • Q 11.18.1 : What expenses qualify as unobjectionable “chargeable” expenses?546
    • Q 11.18.2 : What are some of the procedural issues involved in Beck objections?547
    • Q 11.18.3 : What obligations do unions have to notify employees of their Beck rights?548
    • Q 11.18.4 : What obligations do employers have to notify employees of their Beck rights?548
    • Q 11.18.5 : Is there any limitation on when employees may file Beck objections?549
    • Q 11.18.6 : How are expenditures properly documented?549
    • Q 11.18.7 : Can Beck objectors challenge a union’s expenditures?550
Chapter 12: Labor Relations of Federal Contractors
  • Q 12.1 : What is the required minimum wage rate for federal contractors under Executive Order 13658?557
    • Q 12.1.1 : Are all employees of a federal contractor eligible for the new minimum wage regardless of whether a contract is a federal contract?558
    • Q 12.1.2 : Will the minimum wage for government contractors increase again after January 1, 2015?558
    • Q 12.1.3 : Does the order affect tipped employees of government contractors?558
  • Q 12.2 : Does Executive Order 13658 affect prime contractors and subcontractors?559
  • Q 12.3 : How will the Department of Labor enforce the new minimum wage requirements?559
  • Q 12.4 : What notice are federal contractors required to post based on Executive Order 13496?561
    • Q 12.4.1 : What specific employee rights must be included in the notification?561
    • Q 12.4.2 : Are any federal contracts exempted from this requirement?562
  • Q 12.5 : How will the DOL determine compliance with the notice requirements?563
    • Q 12.5.1 : How does an employee of a covered contractor file a complaint alleging noncompliance?563
    • Q 12.5.2 : What are the consequences of noncompliance?563
  • Q 12.6 : What does it mean when costs in government contracts are unallowable?565
  • Q 12.7 : What costs in government contracts have been made unallowable under Executive Order 13494?566
    • Q 12.7.1 : What costs are allowable?566
    • Q 12.7.2 : Does the NLRA preempt Executive Order 13494?567
  • Q 12.8 : When must a successor federal contractor hire its predecessor contractor’s employees pursuant to Executive Order 13495?568
    • Q 12.8.1 : What are the consequences for noncompliance?568
    • Q 12.8.2 : Are any contracts exempted from this requirement?569
  • Q 12.9 : What are a predecessor contractor’s responsibilities under the proposed regulations?569
  • Q 12.10 : What are the awardee contractor’s responsibilities under the proposed regulations?570
    • Q 12.10.1 : Who is a qualified service employee?570
    • Q 12.10.2 : To which predecessor employees is an awardee contractor not required to make an offer?571
    • Q 12.10.3 : Must an awardee’s offer to a qualified predecessor employee be for the same position that employee previously held?572
  • Q 12.11 : How can an employee enforce its right of first refusal against an awardee contractor under Executive Order 13495?572
    • Q 12.11.1 : How is a complaint of a violation investigated?573
    • Q 12.11.2 : Can a contractor dispute the results of an investigation?573
    • Q 12.11.3 : What penalties may a successor contractor face for noncompliance?574
  • Q 12.12 : What is a project labor agreement?575
    • Q 12.12.1 : When is an executive agency allowed to require a PLA?576
    • Q 12.12.2 : What is considered a “construction” project?577
  • Q 12.13 : What factors should an agency consider when deciding whether to use a PLA for a particular construction project?577
    • Q 12.13.1 : How are the terms and conditions of the PLA determined?577
  • Q 12.14 : What do critics say will be the effect of Executive Order 13502 on construction projects?578
  • Q 12.15 : What does Executive Order 11246 require?579
    • Q 12.15.1 : Are there any contracts that are exempted from these requirements?580
    • Q 12.15.2 : How is compliance with the order enforced?580
  • Q 12.16 : What is the National Council on Federal Labor-Management Relations?581
    • Q 12.16.1 : What is the function of the council?582
    • Q 12.16.2 : How else does Executive Order 13522 seek to affect labor-management relationships regarding the delivery of government services?583
  Index

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