NLRA Outline

REMEMBER: The purpose of Labor law is to surrender ones individual rights to the collective in hopes of a
better deal

JURISDICTION
Section 2(2): “Employer” is defined as “any person acting as an agent of an employer, directly or indirectly,
but shall not include the US or any wholly owned Government, corporation, or any Federal Reserve Bank, or
any State or political subdivision thereof, or any person subject to the Railway Labor Act…or anyone acting in
the capacity of an officer or agent of such labor organization.”
- Public employers and employers covered by the RLA are excluded under Section 2(2)
- First Amendment concerns have allowed certain religious employers to avoid coverage under the
NLRA. See University of Great Falls v. NLRB (holding that a school will be exempt if it (a) holds itself
out to the public as a religious institution; (b) is non-profit; and (c) is religiously affiliated

Section 2(3): “Employee” is defined as “an employee shall include any employee, and shall not be limited to
the employees of a particular employer, unless the Act explicitly states otherwise, and shall include any
individual whose work has ceased as a consequence of, or in connection with, any current labor dispute or
because of any unfair labor practice, and who has not obtained any other regular and substantially equivalent
employment, but shall not include any individual employed as an agricultural laborer, or in the domestic service
of any family or person at his home, or any individual having the status of an independent contractor, or any
individual employed as a supervisor, or any individual employed by an employer subject to the RLA…”
- Look to Agency Law for the distinction between independent contractors and employees. See
Roadway Package System (holding that the drivers were “employees” under the Act. Though the drivers
may have had the entrepreneurial spirit, and they were allowed to use the trucks outside of work for their
own business pursuits, Roadway put up a lot of barriers to make it hard for the drivers to do that)
Rule—Restatement Section 220: Factors:
- (a) Extent of control which, by agreement, the master may exercise over the details of the work; (b)
whether or not the one employed is engaged in a distinct occupation or business; (c) the kind of
occupation, with reference to whether, in the locality, the work is usually done under the direction of the
employer or by a specialist without supervision; (d) the skill required in the particular occupation; (e)
whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the
person doing the work; (f) the length of time for which the person is employed; (g) the method of
payment, whether by the time or by the job; (h) whether or not the work is part of the regular business of
the employer; (i) whether or not the parties believe they are creating the relation of master and servant;
(j) whether the principal is or is not in the business
- Medical student/interns are covered by the NLRA. See Boston Medical (holding that medical
students/interns are covered by the NLRA. The Court considered the fact that the students were
compensated through a stipend, they do not pay tuition and are not subject to the usual grade
examinations, they also receive benefits reflective of employment status, and were subject to a work
schedule). Note: The existence of the label of student does not prohibit them from being “employees”
under the NLRA
- Grad Students at first were not covered. See Brown University (holding that grad students are not
covered by the NLRA, because their primary mission is academic. The pay they receive is more like a
scholarship than compensation. The Board ruled that the overall relationship between the graduate
student assistants and Brown is primarily an educational one, rather than an economic one)
 o But see Columbia ((overturning Brown and holding that grad student assistants are considered
employees under the NLRA. The Court reasoned that the Board is given the power to broadly
define the statute and who constitutes employees thereunder. Also, the fact that a person working
as an employee has a dual responsibility is not determinative. Lastly, the federal labor policy is
to encourage unionism)

Section 2(11): “Supervisor” is defined as “The term ‘supervisor’ means any individual having authority, in the
interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or
discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to
recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely
routine or clerical nature, but requires the use of independent judgment”
NOTE: Supervisors have the authority: (1) in the interest of the employer—to hire, transfer, suspend, etc.; (2)
assign or responsibly to direct; (3) if not routine but requires use of independent judgment
- Supervisors are specifically excluded from jurisdiction under the NLRA.
- An employee is found to be a supervisor when a substantial part of his/her regular duties involve the
exercise of true independent judgment (free from control of others) over functions outlined by Section
2(11), to assign time, place, and duty of others, and were accountable (responsible direction) for the
actions of those they assigned. See Oakwood Health Care

Section 2(12): “Professional Employee” is defined as “The term ‘professional employee’ means—(a) any
employee engaged in work (i) predominantly intellectual and varied in character as opposed to routine mental,
manual, mechanical, or physical work; (ii) involving the consistent exercise of discretion and judgment in its
performance; (iii) of such a character that the output produced or the result accomplished cannot be
standardized in relation to a given period of time; (iv) requiring knowledge of an advanced type in a field of
science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study
in an institution of higher learning or a hospital, as distinguished from a general academic education or from an
apprenticeship or from training in the performance of routine mental, manual, or physical processes; or—(b)
any employee, who (i) has completed the courses of specialized intellectual instruction and study…and (ii) is
performing related work under the supervision of a professional person to qualify himself to become a
professional employee as defined in paragraph (a)”
- Professional Employees are under the NLRA’s jurisdiction. The key here is predominantly intellectual
and varied in character as well as “consistent exercise of discretion”

Managers are not expressly excluded by the statute, but are excluded by the “common law” of the NLRA. See
Bell Aerospace (holding that Congress would have excluded managers because it would cause a conflict of
interest between ER and Union loyalties).
- To be a manager one must make operational decisions on behalf of the company. See NLRB v. Yeshiva
(holding that the full-time faculty members are managerial personnel and not employees. The faculty
exercised authority, which in any other context would be managerial—they decide courses, the schedule
of the courses, they debate teaching methods, grading policies, and matriculation standards. The faculty
determines within each school the product to be produced, the terms upon which they will be offered,
and the customers who will be served. Rationale: there could be a divided loyalty between the full-time
faculty being unionized because the University depends on the professional judgment of its faculty to
formulate and apply crucial policies. Also, the full-time faculty enjoyed a large measure of
independence, which could be problematic).
 - But see the Yeshiva DISSENT: The University always retains the ultimate decision-making authority.
Board has traditionally applied managerial status upon those employees “whose interests are closely
aligned with management as true representatives of management.”

Section 2(5): “Labor Organization” provides “The term ‘labor organization’ means any organization of any
kind, or any agency or employee representation committee or plan, in which employees participate and which
exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes,
wages, rates of pay, hours of employment, or conditions of work.”

SECTION 7
Employees shall have the right to self-organization, to form, join, or to 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 8(a)(3).

To determine if Section 7 is involved, ask:

(1) Concerted?
(2) Mutual aid or protection?
(3) Proper Objectives?
(4) Proper Means?

Concerted—met when two or more employees act together to achieve a common employment-related
goal
o Classically Concerted—when two or more employees are acting together (e.g. strike, [lawful]
picketing, etc.)
o Concerted—when an individual asserts a group right in the contract. See NLRB v. City Disposal
(holding that an individual can engage in concerted activity. Concerted activity is found (1) when
a claim is based upon a right in the contract; and (2) when it assists the entire unit—not just the
concerning individual)
 Rule: (1) An individual’s assertion of a right grounded in a collective bargaining
agreement is recognized as “concerted activity.” Assertion of a right contained in a
collective bargaining agreement is an extension of the concerted action that produced the
agreement. Assertion of such a right affects the rights of all employees covered by the
collective bargaining agreement; (2) An individual employee may be engaged in
concerted activity when he acts alone—(a) where the lone employee intends to induce
group activity; (b) where the employee acts as a representative of at least one other
employee
o Concerted—when a single employee is authorized by other employees to speak to the employer
over the terms. See NLRB v. City Disposal Systems, Inc.
o Probably Concerted—when a single employee urges others to sign a petition protesting the
work rule if the rule concerns the overall terms and conditions
o Probably Not Concerted—a single employee says that it is too hot to work, unless it is covered
by a contract addressing thermostat settings.

Mutual Aid and Protection

Employees have a statutory right to have a Union representative during an investigatory interview. This
would be considered concerted activity for the mutual aid or protection. See NLRB v. Weingarten
(holding that EEs have a right to have a Union representative during an investigatory interview, which is
inherent in the “right to mutual aid and protection.”)
Rule: EE must request representation and ER does not have to offer it. This only applies to situations
where the EE reasonably believes that the investigation will result in disciplinary action. ER does not
have to grant the right and can advise the EE that it will not proceed with the interview unless the EE is
willing to enter the interview unaccompanied by his representative (EE may refrain from participating in
the interview, thereby protecting his right to representation, but at the same time relinquishing any
benefit, which might be derived from the interview. The employer would then be free to act on the
basis of information from other sources. The ER has no duty to bargain with any union rep who may
be permitted to attend the investigatory interview.

But see IMB Corp. (holding that Weingarten does not extend to a workplace where the EEs are not
represented by a Union. The features of a contemporary workplace leads the Board to conclude that an
ER must be allowed to conduct its required investigations in a thorough, sensitive, and confidential
manner. The rationale for the holding is that the Union rep is typically accustomed to dealing with the
ER on a regular basis concerning matters other than those prompting the interview)

TAKEAWAY: Concerted activity protected by Sec. 7 can apply in Union and non-Union settings.
Individual can engage in concerted activity in any setting when it is clear that it is for the mutual aid and
protection. When individual action pertains only to that EE, it is concerted only if the action is rooted in
a bargained for right. Only Unionized EEs have the right to request U representation to attend a
disciplinary review

Legitimate Purpose/Proper Objectives

The purpose of the concerted activity must be related to EEs status as “workers.” See Eastex, Inc. v.
NLRB (holding that distributing newsletter asking employees to vote for certain legislation that would
increase the minimum wage/not be a right to work state is related to EEs status as “workers” in general
and is for the mutual aid and protection. It is up to the Board to decide whether or not the activity is too
“attenuated” to the employment relationship. Activities that merely tout a political candidate or party in
an election would not be covered, but direct appeals by Unions and EEs to legislators over uses of
general workplace concern would be protected)

Legitimate Means
The means do not have to be reasonable they just must be legitimate. See Trompler (Easterbrook
argued that reasonableness should not apply in determining whether an EE has engaged in protected
concerted activity using lawful means). “Disloyalty” and “product disparagement” are grounds for
firing. False speech loses protection of the Act, because disparagement is guaranteed to adversely affect
the business. EEs may be engaged in “concerted activity” for the “mutual aid or protection” that are
proper in its objectives, but nevertheless the activity is unprotected because it otherwise falls outside of
the NLRA (e.g. clearly committing a crime or an intentional tort would not be protected by the Act).
o Activities condemned by statute under Section 8(b) are unprotected (e.g. coercing EEs or illegal
picketing)
o A strike in breach of the contract/agreement is unprotected
 Exception: Strikes to protest sufficiently serious ULPs are protected (rare)
 o Any violence including in the picket line or during a strike is unprotected
o Criminal law violations
 Intentional torts
 Libel

See NLRB v. Local 1229, IBEW—Jefferson Standard Broadcasting Co. (holding that handing out
handbills in the public square, in barbershops, restaurants, and buses that discredited their ER was not a
proper means. The purpose of distributing the bills was undisclosed and they did not indicate that they
sought to secure any benefit for themselves by casting discredit upon their employer. The distribution of
the handbill was a demonstration of detrimental disloyalty as to provide “cause” for firing)

But see Sierra Publishing Co. (holding that a letter, which was directly and overtly related to the labor
dispute, which did not disparage ER’s product, and which disclosed no significant confidences, was not
so unreasonable to lose protection for concerted activity under the Act on the grounds of disloyalty)

Work slowdowns are not protected. See Elk Lumber (Board held that employee work slowdowns,
where EE purposefully slow down their work in order to place economic pressure of their ER is
unprotected)

SECTION 8
Section 8(a)(1): “It shall be an unfair labor practice for an employer—to interfere with, restrain, or
coerce employees in the exercise of the rights guaranteed in Section 7

Section 8(a)(2): “It shall be an unfair labor practice for an employer—to dominate or interfere with the
formation or administration of any labor organization or contribute financial or other support to it…an
employer shall not be prohibited from permitting employees to confer with him during working hours
without loss of time or pay”
See Electromation (holding that the action committees created by the ER constituted a labor
organization under Section 2(5) of the Act and that Electromation dominated it, and assisted it, and
contributed support, within the meaning of Section 8(a)(2). Electromation presents a two part test for
“domination”)
o Two-Part Test for Domination:
 (1) Is the group a “labor organization”? Is there Employee participation? Is the purpose to
deal with the ER? Note: An organization whose purpose is limited to performing
essentially a managerial or adjudicative function is not a labor organization under Section
2(5). Is it concerned with the conditions of employment or other statutory subjects? Does
it represent the employees in some way?
 (2) Does the ER “dominate or interfere” with the group? Is it created by management?
Are the structure and goals determined by management? Does the continued existence of
the group depend on management? Note: Anti-union motive is not critical to finding an
8(a)(2)

Section 8(a)(3): “It shall be an unfair labor practice for an employer—by discrimination in regard to
hire or tenure of employment or any term or condition of employment to encourage or discourage
membership in any labor organization.”
NOTE: It is a ULP to take specific, discriminatorily-related job action against employees for Section
7 related issues. To violate Section 8(a)(3) there must be some type of adverse employment action, and
the adverse employment action must have been motivated by “discrimination” that is intended to
“encourage or discourage membership in any labor organization.” All Section 8(a)(3) cases, if proved,
also support an 8(a)(1), but not the reverse.
FACTORS: Knowledge of union activity must be shown (timing of events is critical), attitude toward
unionization, unequal employment enforcement

Proving an 8(a)(3) Violation

The burden is on the Board to prove a violation by a preponderance of the evidence. See Wright
Line (holding that the GC must prove that an illegal motive played a substantial role in the
decision. Once proven, the burden shifts to the employer to prove that it would have made the
same decision based on lawful reasons)

NLRB v. Transportation Management (upholding Wright Line as being consistent with Section
10(c), which provides that the Board must prove an unlawful labor practice by a “preponderance
of the evidence.” The Court held that Board met its burden and showed that ER knew of
Santillo’s Union activity and promised to retaliate. The key finding of an 8(a)(3) was that others
were not fired for the same reason)
Factors: (1) The employer’s hostility to its employees’ union activity; (2) The presence of other
unfair labor practices; (3) The timing of the employer’s nondiscriminatory explanation; (4)
Disparate treatment of alleged victims compared to others or the employer’s past practice; (5)
Proportionality of the adverse action to the employer’s explanation; (6) Failure to investigate the
alleged misconduct

But see Budd v. NLRB (holding that ER had violated Sec. 8(a)(3) even though the EE had
engaged in egregious behavior—been drunk on the job, pimping, etc. The key finding here was
the timing. They put up with Weigand for a long time, and only decided to fire him after they
found out that he was involved with the Union)

Refusal-to-Hire Cases:
Section 8(a)(3) applies to job applicants as well. Job applicants must meet the threshold
definition of an employee as defined by Section 2(3).

Because of Union salts, the Board modified the burden of proof the GC must show in failure to
hire cases. See Toering
Rule—Toering: GC must prove (1) ER was hiring; (2) Applicants had experience or training
relevant to the announced or generally known requirements; (3) anti-union animus contributed to
the decision not to hire; and (4) proof of an applicant’s genuine job interest—(a) there was a
bona fide application for employment (individual actually applied for employment or that the
individual authorized someone to do so on his or her behalf); (b) the applicant had a genuine
interest in becoming employed by the employer (ER can rebut by raising “a reasonable question
as to the applicant’s actual interest in going to work for the employer ex. applicant recently
refused similar employment; made belligerent or offensive comments on his or her application;
engaged in disruptive, insulting, or antagonistic behavior during the application process)
Section 8(a)(5): “It shall be an unfair labor practice for an employer—to refuse to bargain collectively
with the representatives of his employees, subject to the provisions of section 9(a).
Section 8(d): “For the purposes of this section, to bargain collectively is the performance of the mutual
obligation of the employer and the representative of the employees to meet at reasonable times and
confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the
negotiation of an agreement or any question arising thereunder, and the execution of a written contract
incorporating any agreement reached if requested by either party, but such obligation does not compel
either party to agree to a proposal or require the making of a concession…”
Per se Violations: (1) (1) Refusal to deal with certified Union; (2) Direct dealing with represented
employees; (3) Early withdrawal of recognition

Subjects of Bargaining
Mandatory subjects
Mandatory subjects mean that the duty to bargain extends to each and every subject
relating to the “rates of pay, wages, hours of employment, or other conditions of
employment.” A ULP occurs if the ER refuses to bargain about these mandatory
subjects. With mandatory subjects, the ER cannot take unilateral or economic action
without impasse.
 Wages include virtually all forms of compensation—benefits, pension, bonuses
 Hours include shift times, scheduling, days, etc.
 Working Conditions include safety, heat, lighting
 “Terms and Conditions” includes pension plans, fringe benefits such as medical
insurance, drug testing policies, profit sharing, work loads, work rules, merit
increases, discipline, seniority, union security, and promotion standards

Management wants a smaller mandatory subjects bubble, which gives more deference
to management and means that they do not have to bargain about non-mandatory
subjects. ER can always implement a permissive term or condition without union
consent.

Management Economic decisions: “Subcontracting” “Partial Closings” “Relocations”—

Management need only bargain over the effects of a change affecting the workforce.
(1) Subcontracting—If the company makes an economic decision to contract work out,
it must bargain with the Union. See Fibreboard Paper Products Co. v. NLRB (holding
that it is a violation of Section 8(a)(5) to contract out work, because the work here was
the exact same work that still had to be done in the plant. It did not alter the basic
operation of the plant. The Union could offer concessions, so they must be given a
chance to negotiate). Those decisions that are at the core of entrepreneurial control are
outside the scope of mandatory bargaining.

(2) Partial Closings—There is no generalized duty to bargain over the decision to

partially close for economic reasons even if job security is threatened or destroyed. ER
need only bargain if it is destroying jobs “if the benefit for labor/management relations
and collective bargaining process outweighs the burden placed upon the conduct of the
business.” See First National Maintenance Corp. (holding that there is no generalized
duty to bargain over the decision to partially close for economic reasons even if job
 security is threatened or destroyed. ER’s need for unencumbered decision-making means
that bargaining required for job-killing decision is only needed “if the benefit for
labor/management relations and collective bargaining process outweighs the burden
placed upon the conduct of the business)
Three Types of Management Decisions: (1) No Duty to Bargain: Choice of advertising
and promotion, product type and design, financing arrangements that have only an
indirect and attenuated impact, not mandatory subjects; (2) Duty to Bargain: Order of
succession or layoffs and recalls, production quotas, and work rules, mandatory
subjects. The theory is that the Union might give concessions; (3) Decisions driven by
entrepreneurial/economic factors other than labor costs, BALANCE the likelihood of
bargaining success against the ER need to act

(3) Relocations
Dubuque Packing (Moving away from the balancing test and moved to a shifting burden
of proof. BD must prove that the relocation did not involve a basic change in the nature
of the ER operation. ER must rebut by (1) showing that the work performed at the former
location was discontinued of differs significantly form the work performed at the new
location OR (2) the ER can show that the decision was not based on labor costs, or that
if it was based on labor costs, the Union “would not have offered labor cost concessions
that would have changed the ER’s decision to relocation”

Permissive subjects
Permissive subjects are any subjects that fall outside the statutory language. This means
that there is no duty to bargain, and insisting on bargaining to impasse about these
permissive subjects is a per se violation of the Act

See NLRB v. Wooster Division of Borg-Warner Corp. (Upheld that the ballot clause was
not within the scope of mandatory bargaining, not “wages, hours, or terms and conditions
of employment.” The ballot clause relates only to the procedure to be followed before the
Union strikes. Therefore, it qualifies as non-mandatory. It is unlawful to insist to impasse
on non-mandatory subjects)
TAKEAWAY: Neither party can insist TO IMPASSE on a proposal of a non-mandatory
subject, at least if the insistence is expressed. Either party can offer or refuse to discuss a
non-mandatory subject. An ER can take unilateral action on a subject if it is non-
mandatory

Impasse
When two sides negotiating an agreement are unable to reach an agreement and become
deadlocked. Impasse requires an absence of other ULPs. Any unilateral implementation prior to
impasse is grounds for an 8(a)(5). NOTE: Once impasse is reached, the ER is permitted to
unilaterally implement the last proposal to the Union. ER unilateral implementation of final
offer means there is no CBA in place going forward, absent further negotiations or Union
acceptance of terms. EEs can either strike or work without a contract under the new terms.
Impasse is a judgment call and is determined by the BD after the fact—Factors: (1) Bargaining
history; (2) good faith at the table; (3) importance of issues as to which there is disagreement; (4)
contemporaneous understanding of parties regarding the state of negotiations; (5) continuation of
 bargaining; (6) fluidity of position; (7) duration of hiatus between bargaining sessions; (8)
whether strike has occurred or union has consulted employees about one; (9) union animus
evidenced by prior or concurrent acts; (10) other actions inconsistent with stalemate

NLRB v. Katz (holding that the unilateral implementation prior to impasse is grounds for an 8(a)
(5) regardless of ER intent. It does not matter if the implemented terms are better, because this
bypasses the exclusivity principle)

Surface Bargaining
Surface bargaining is bargaining that appears to be bargaining but the party is really just going
through the motions and has no real intent to reach an agreement. NOTE: The issue of hard
bargaining/surface bargaining usually comes up in the first contract. BD usually has trouble
winning these cases

NLRB v. American National Insurance Co. (Holding that a refusal to agree to make concession
on a proposal is not bad faith bargaining. Also, hard bargaining over certain terms to be left
entirely to ER (management rights clause) is not per se evidence of bad faith. Congressional
intent leaves it to the parties to determine what the terms and conditions should be as long as it’s
not statutorily prohibited. As a result, the agenda of items to cover in a given negotiation is itself
bargainable. Bd should look to the “totality of evidence” in determining whether the parties
bargained in good faith)
Red Flags (For Potential Abuse):
 Bargaining from scratch in the context of overall ER resistance
 Atypical, but overly broad management rights clauses—look to industry practice
 “Taking money off the table”
 ER starting negotiation with final offer (Boulwarism)

SECTION 9
Section 9(a): “Representatives designated or selected for the purposes of collective bargaining by the majority
of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the
employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of
employment, or other conditions of employment: Provided, That any individual employee or a group of
employees shall have the right at any time to present grievances to their employer and to have such grievances
adjusted, without the intervention of the bargaining representative, as long as the adjustment is not inconsistent
with the terms of a collective- bargaining contract or agreement then in effect: Provided further, That the
bargaining representative has been given opportunity to be present at such adjustment.”

Section 9(b): “The Board shall decide in each case whether, in order to assure to employees the fullest freedom
in exercising the rights guaranteed by this Act [subchapter], the unit appropriate for the purposes of collective
bargaining shall be the employer unit, craft unit, plant unit, or subdivision thereof: Provided, That the Board
shall not (1) decide that any unit is appropriate for such purposes if such unit includes both professional
employees and employees who are not professional employees unless a majority of such professional
employees vote for inclusion in such unit; or (2) decide that any craft unit is inappropriate for such purposes on
the ground that a different unit has been established by a prior Board determination, unless a majority of the
employees in the proposed craft unit votes against separate representation or (3) decide that any unit is
appropriate for such purposes if it includes, together with other employees, any individual employed as a guard
to enforce against employees and other persons rules to protect property of the employer or to protect the safety
of persons on the employer's premises; but no labor organization shall be certified as the representative of
employees in a bargaining unit of guards if such organization admits to membership, or is affiliated directly or
indirectly with an organization which admits to membership, employees other than guards.”

Section 9(c) [Hearings on questions affecting commerce; rules and regulations] (1) Whenever a petition shall
have been filed, in accordance with such regulations as may be prescribed by the Board--

 (A) by an employee or group of employees or any individual or labor organization acting in their behalf
alleging that a substantial number of employees (i) wish to be represented for collective bargaining and that
their employer declines to recognize their representative as the representative defined in section 9(a) [subsection
(a) of this section], or (ii) assert that the individual or labor organization, which has been certified or is being
currently recognized by their employer as the bargaining representative, is no longer a representative as defined
in section 9(a) [subsection (a) of this section]; or

 (B) by an employer, alleging that one or more individuals or labor organizations have presented to him a claim
to be recognized as the representative defined in section 9(a) [subsection (a) of this section]; the Board shall
investigate such petition and if it has reasonable cause to believe that a question of representation affecting
commerce exists shall provide for an appropriate hearing upon due notice. Such hearing may be conducted by
an officer or employee of the regional office, who shall not make any recommendations with respect thereto. If
the Board finds upon the record of such hearing that such a question of representation exists, it shall direct an
election by secret ballot and shall certify the results thereof.

 (2) In determining whether or not a question of representation affecting commerce exists, the same regulations
and rules of decision shall apply irrespective of the identity of the persons filing the petition or the kind of relief
sought and in no case shall the Board deny a labor organization a place on the ballot by reason of an order with
respect to such labor organization or its predecessor not issued in conformity with section 10(c) [section 160(c)
of this title].

 (3) No election shall be directed in any bargaining unit or any subdivision within which, in the preceding
twelve-month period, a valid election shall have been held. Employees engaged in an economic strike who are
not entitled to reinstatement shall be eligible to vote under such regulations as the Board shall find are
consistent with the purposes and provisions of this Act [subchapter] in any election conducted within twelve
months after the commencement of the strike. In any election where none of the choices on the ballot receives a
majority, a run-off shall be conducted, the ballot providing for a selection between the two choices receiving the
largest and second largest number of valid votes cast in the election.

 (4) Nothing in this section shall be construed to prohibit the waiving of hearings by stipulation for the purpose
of a consent election in conformity with regulations and rules of decision of the Board.

 (5) In determining whether a unit is appropriate for the purposes specified in subsection (b) [of this section] the
extent to which the employees have organized shall not be controlling.

Section 9(e): “Upon the filing with the Board, by 30 per centum or more of the employees in a bargaining unit
covered by an agreement between their employer and labor organization made pursuant to section 8(a)(3)
[section 158(a)(3) of this title], of a petition alleging they desire that such authorization be rescinded, the Board
shall take a secret ballot of the employees in such unit and certify the results thereof to such labor organization
and to the employer.”

Generally:
Elections are handled at the Regional Director level with BD and Court of App. review. When a petition is filed,
BD decides whether a question of representation exists (substantial number of employees wish to be
represented by the Union for purposes of collective bargaining). 30% of a proposed bargaining unit has to
request that the Union act as bargaining representative. Once there is support, the NLRB will investigate to
make sure that the BD has jurisdiction, the union is qualified and there are no existing labor contract or recent
elections that would bar the election. If BD finds a “question concerning representation” exists, it directs that an
election take place. ER can object on the grounds that the EE make up an inappropriate bargaining unit.

Grounds for not Proceeding with an Election:

I. Lack of Support for Union
o Historically, Unions will not file an election until they receive authorization cards from at least 60%
of EEs in the unit. ER campaigns tend to cause Unions to lose support during the average eight
weeks between the filing of the petition and holding of an election

II. Blocking Charge

o The commission of an un-remedied ULP. Union will file blocking charges to stop an election from
taking place until the pending unfair labor practice charges are remedied. This gives the union more
time to raise support

III. Election Bar (Union Loss)

o When there has been a prior valid election, Section 9(c)(3) prohibits an election within one year
o Reasons for Election Bar: ERs have time to regroup after an election. Employer does not have to
face recurrent campaigns and elections. It eases the administrative costs the board has to face dealing
with elections

IV. Contract Bar

o The existence of a valid collective bargaining agreement prevents an election from taking place for
up to three years. Contract must (a) have fixed terms; (b) be less than three years old for it to
restrict an election
 After three years, there is a presumption that the employees might want another Union or no
Union at all
o Reasons for Contract Bar: Union can press extreme employee demands without fear of being pitched
out. Employer does not have to face recurrent campaigns and elections. It eases the administrative
costs the board has to face dealing with elections

V. Certification Bar (Union Wins)

o Board rules bar another election for a year after the Union wins an election and is certified
o Reasons for Certification Bar: Gives parties the time to develop a mature relationship. Union can
press extreme employee demands without fear of being pitched out. Employer does not have to face
recurrent campaigns and elections. It eases the administrative costs the board has to face dealing
with elections
VI. Voluntary Recognition Bar
o Once ER voluntarily recognizes a Union, a subsequent election is barred for at least six months to a
year (Bowling says year)
o Reasons for Voluntary Recognition Bar: Employer does not have to face recurrent campaigns and
elections. It eases the administrative costs the board has to face dealing with elections

Alternative Grounds for Objecting to Union

ER may also object on the grounds that the EEs makes up an inappropriate bargaining unit. Some units are
inappropriate on its fact (all EEs including supervisors). The presumption though is that the bargaining unit is
appropriate.

Board determines the “appropriate bargaining unit” by showing that the EE group is united by a “community of
interest.” “Community of interest” is where the terms and conditions of employment are so intertwined and/or
shared that excluding certain jobs would make bargaining/contract administration unworkable
Factors: (1) similarity in the scale and manner of determining earnings; (2) conditions of employment; (3)
similarity in the kind of work performed; (4) similarity in the qualifications, skills and training of the
employees; (5) frequency of the contact or interchange among the employees; (6) geographic proximity; (7)
continuity or integration of production processes; (8) common supervision and determination of labor-relations
policy; (9) history of collective bargaining; (10) desires of the affected employees; (11) extent of union
organization

Board may also deem that employees at multiple store locations share a “community of interest.” See NLRB v.
Chicago Health & Tennis Clubs, Inc. (holding that a single retail store was inappropriate for Saxon Paint, where
the job classifications were the same at each store. EEs within a particular classification perform the same duties
and are required to have the same skills and experience. Store managers are given no authority and their
involvement in labor relations and personnel matters is severely limited—no authority to hire new employees;
grant promotions, wage increases or changes in job classifications; discharge or suspend employees for
disciplinary reasons; lay-off EEs. Holding that a single store was appropriate at Chicago Health Club, because
there are differences in the functional integration of the clubs and the local club managers are given different
degrees of autonomy).

NOTE: Unions tend to favor smaller units, because individual EEs are more effectively represented, and they
are easier to organize. ER tends to favor a wider electorate, because larger, more diversified unit increases
conflicts of interest.

After an Election
Party may file election objections. Even though the NLRB may fail to find a ULP, if the ERs conduct “created
an atmosphere calculated to prevent a free and untrammeled choice by the EEs,” then an election can be
reordered. See General Shoe (