Chapter 8 - § 8.1 • THE LABOR-MANAGEMENT RELATIONS ACT

• Jurisdiction: Colorado

§ 8.1 • THE LABOR-MANAGEMENT RELATIONS ACT

§ 8.1.1—National Labor Relations Act — Section 7, Private Sector Employee Rights

The Labor-Management Relations Act, 29 U.S.C. §§ 141-187, contains the National Labor Relations Act (NLRA), the federal labor law that concerns issues related to private sector employees' terms and conditions of employment, including organizing and representation related to a union. The National Labor Relations Board (NLRB) is the federal agency authorized to apply and administer the NLRA.

The heart of the NLRA is found in Section 7, 29 U.S.C. § 157. It states:

Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 158(a)(3) of this title.

Section 7 makes clear that employees covered by the NLRA have the right to join or create a union to act as their exclusive representative in dealing with the employer concerning their terms and conditions of employment. It also protects employees who do not wish to participate in union activities.

Finally, Section 7 provides that employees may engage in "concerted activity" for "mutual aid or protection." This protects employees who are engaged in activities concerning their terms and conditions of employment even where it is not related to a union. In 1984, in a series of two decisions ("Meyers I" and "Meyers II"), the NLRB set forth a definition of concerted activity that is still followed by the NLRB and federal courts today. Meyers Indus., 268 N.L.R.B. 493 (1984); Meyers Indus. 281 N.L.R.B. 882 (1986); see also, e.g., Five Star Transp., Inc. v. NLRB, 522 F.3d 46 (1st Cir. 2008).

In Meyers I, the NLRB stated that an activity is concerted if it is "engaged in with or on the authority of other employees, and not solely by and on behalf of the employee himself." Meyers I, 268 N.L.R.B. at 497. The Meyers II Board further clarified that concerted activity "encompasses those circumstances where individual employees seek to initiate or to induce or to prepare for group action, as well as individual employees bringing truly group complaints to the attention of management." Meyers Indus, 281 N.L.R.B. at 887. Therefore, under Meyers I and Meyers II, an employee engages in concerted activity that is protected by the NLRA if the activity involves two or more employees acting together or one employee acting on behalf of himself or herself and other employees over the employees' terms or conditions of employment.

In Alstate Maintenance, LLC, 367 NLRB No. 68 (Jan. 11, 2019), the National Labor Relations Board restricted the scope of what constitutes protected concerted activity. The Alstate Board stated that an individual employee's complaint is protected activity only if, based on the totality of the circumstances, it is a "truly group complaint" rather than a "purely personal grievance" and it is "undertaken for the purpose of mutual aid or protection." Id. at 3, 8. Relevant factors for this analysis include whether

(1) the statement was made in an employee meeting called by the employer to announce a decision affecting wages, hours, or some other term or condition of employment; (2) the decision affects multiple employees attending the meeting; (3) the employee who speaks up in response to the announcement did so to protest or complain about the decision, not merely . . . to ask questions . . . ; (4) the speaker protested or complained about the decision's effect on the work force generally or some portion of the work force, not solely about its effect on the speaker him- or herself; and (5) the meeting presented the first opportunity employees had to address the decision, so that the speaker had no opportunity to discuss it with other employees beforehand.

Id. at 7.

The NLRB has two roles—conducting elections related to the selection or decertification of a union and enforcement of the statutory provisions that describe unfair labor practices.

§ 8.1.2—National Labor Relations Act — Section 9, Representation By A Union

Employees seeking union representation can do so through an employer voluntarily recognizing the union or by an election conducted by the NLRB. For an election conducted by the NLRB, Section 9 of the Act, 29 U.S.C. § 159, describes the right to petition for an election in order to be represented by a union. This petition is known as a representation petition.

Significant to the processing of these election petitions, in late 2014, the NLRB issued a final rule reforming the NLRB representation case procedures. Representation—Case Procedures, 79 Fed. Reg. 74,308 (Dec. 15, 2014) (to be codified at 29 C.F.R. pts. 101, 102, and 103). These election rules were issued with the intention of shortening the time between the filing of an election petition and the date the election is conducted. Some of the changes to the representation process made to increase the speed in which the election is held are:

• Electronic filing of the representation petition and the petitioner shall serve the employer at the same time that it files the petition;
• Copies of evidence in support of the representation petition (need at least 30 percent showing of interest by either cards or petition) are filed with the representation petition;
• Employer is required to fill out a position statement form regarding the appropriateness of petitioned-for unit, proposed exclusions, any other issues with petition and proposed election dates, and mechanics of election. Failure to state an adverse position may result in a waiver of arguments regarding that issue. This position statement form must be filed no later than noon on the day before the hearing;
• Hearing will be scheduled within eight days of the date that petition is filed;
• Regional Director may defer eligibility issues until after the election;
• Closing arguments instead of post-hearing briefs;
• Regional Director's decision will specify the election date and be transmitted electronically. The prior rule that an election could not be set until at least 25 days after Regional Director's decision has been eliminated. Instead the Regional Director will schedule the earliest date practicable;
• Can now file a request for review after election;
• If request for review is filed before the election, the Board will no longer impound ballots while that request is pending; and
• The Employer will provide Excelsior list (list of eligible employees) electronically within two business days of Regional Director's direction of election.

However, portions of the election rules are, as of August 2019, potentially in flux. On August 12, 2019, the NLRB issued a Notice of Proposed Rule Making (NPRM) in the Federal Register proposing amendments to Part 103 of its Rules and Regulations. As detailed in the NPRM, the Board majority is proposing three amendments:

• Blocking Charge Policy. The NPRM proposes replacing the current blocking charge policy with a vote-and-impound procedure. Elections would no longer be blocked by pending unfair labor practice charges, but the ballots would be impounded until the charges are resolved.
• Voluntary Recognition Bar. The NPRM proposes returning to the rule of Dana Corp., 351 NLRB 434 (2007). For voluntary recognition under Section 9(a) of the Act to bar a subsequent representation petition — and for a post-recognition collective-bargaining agreement to have contract-bar effect — unit employees must receive notice that voluntary recognition has been granted and a 45-day open period within which to file an election petition.
• Section 9(a) Recognition in the Construction Industry. The NPRM proposes that in the construction industry, where bargaining relationships established under Section 8(f) cannot bar petitions for a Board election, proof of a Section 9(a) relationship will require positive evidence of majority employee support and cannot be based on contract language alone, overruling Staunton Fuel, 335 NLRB 717 (2001).

Obviously, these proposed rules will be subject to public comment and are not yet finalized. Practitioners should check the NLRB website for updated information.

§ 8.1.3—National Labor Relations Act — Section 8, Unfair Labor Practices

Section 8 of the NLRA, 29 U.S.C. § 158, concerns the obligations and potential unfair labor practices of employers and unions. Section 8(a) of the Act, 29 U.S.C. § 158(a), concerns the employer's actions, and Section 8(b) of the Act, 29 U.S.C. § 158(b), concerns the union's actions. An employer who violates one of the subsections of Section 8(a) commits an unfair labor practice (ULP), and a union that violates one of the subsections of Section 8(b) commits a ULP.

Section 8(a)

Section 8(a) has five subsections, each one dealing with a different type of conduct.

Section 8(a)(1) states that it is a ULP for an employer to "interfere with, restrain, or coerce employees in the exercise of rights guaranteed by Section 7." 29 U.S.C. §158(a)(1). The Board's test for interference, restraint, and/or coercion under Section 8(a)(1) is an objective one (i.e., employer motive is irrelevant), and "depends on whether the employer engaged in conduct which, it may reasonably be said, tends to interfere with the free exercise of employee rights under the Act." Baptistas Bakery, Inc., 352 N.L.R.B. 72 (2008). Examples of conduct that tends to "interfere with the free exercise of employee rights" under the Act includes the following:

• Employer threats (direct or implied) that there are consequences (e.g., closing plant, loss of job, etc.) if the employee engages in union activity or protected concerted

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