Labor-Law-Estreicher-Fall04 - Labor Law Final Outline 1 THE...

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Unformatted text preview: Labor Law Final Outline 1. THE JURISDICTION, STRUCTURE, AND PROCEDURE OF THE NLRB 1(A). A Brief Overview of NLRB Structure and Procedure 1(A)(i). The Board and the General Counsel I. NLRB – 5 Washington members (typically 3/2 political parties – 1 chair). a. Regions – head of region is Regional Director (not a political appointment – hired job) – works for Board and Regional Counsel . II. General Counsel – separate from Board – GC issues complaints and NLRB deals with them. 1(A)(ii). Unfair Labor Practice and Representation Proceedings – given no private right of action, NLRB works primarily in two areas: I. §8 – Unfair Labor Practices (ULP, “complaint” proceedings) – procedure: 1)appeal to Regional Director by employees (can decide to issue complaint); 2)litigation in Regional office (Regional Counsel represents gov.); 3)ALJ (employee of Board but paid by OMB) makes finding of fact and law based on Board law; 4)passes to NLRB which may adopt ALJ’s reasoning or take account of the exceptions (General Counsel represents gov.); 5)NLRB order is not self-enforcing – needs to be enforced by Court of Appeals ( §10(e) ); 6)party may contest Board ruling with the circuit where the ULP occurred, the DC Circuit, or any circuit where the party resides or does business ( NLRA §10(f) ) – possibility of circuit shopping. a. Preliminary Injunctive Relief- §10(l) – for §§8(b)(4)(A-C),(b)(7),(e) – so called mandatory injunction – regional director must go to district court if he has “reasonable cause” to believe in violation (can proceed without NLRB OK) - §10(j) for all other ULPs, requires NLRB authorization to obtain temporary relief of restraining order. b. Remedies- §10(c) – allows taking of “affirmative action” to remedy. II. §9 – Representation Proceeding ( “nonadversary” – parties only “advise” Regional Director who advises Board and ex parte communications between parties is allowed) – requires filing a petition. a. Petitions : most common type is where union seeks representation authority through election (what Brown is about) – many issues can be brought up ( §9(b) ): 1)appropriate bargaining unit; 2)who is a part of the unit and gets to vote (look at “community of interests;” 3)who is excluded from the unit; 4)are there people ineligible to vote under the statute; 5)where/when is election held? i. Other petitions : 1)decertification by employer (“individual…acting in their behalf”) or employees ( §9(c)(1)(A(ii) ); 2)employer claim that more than one labor org. wants to be rep. ( §9(c)(1)(B) ). b. Procedure : 1)commenced at Regional level; 2)Regional Board grants review only where there is a substantial question of law or policy (decision in such a case is not real a violation of NLRA and amounts to more of a warning); 3)given “nonadversary” nature, can’t appeal decision, need to convert it into a ULP proceeding - §9(d) says that record in representation proceeding becomes record in ULP proceeding (therefore, need to raise all...
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This note was uploaded on 04/04/2008 for the course LAW ALL taught by Professor Multiple during the Fall '06 term at NYU.

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Labor-Law-Estreicher-Fall04 - Labor Law Final Outline 1 THE...

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