How the NLRB determine if the bargaining unit proposed by the labor organization

Full Answer Section

Key factors the NLRB considers include (but are not limited to):

• Community of Interest: This is the primary consideration. Do the employees in the proposed unit share common interests regarding wages, hours, and other terms and conditions of employment? Factors indicating a community of interest include:

  • Similarities in wages, hours, and working conditions: Do they receive similar pay, work similar shifts, and have similar benefits?
  • Skills, duties, and training: Do they perform similar tasks, require similar qualifications, and have similar training?
  • Supervision: Are they subject to common supervision?
  • Workplace contact: Do they frequently interact with each other?
  • Interchangeability: Can employees easily move between different jobs within the proposed unit?
  • Geographic proximity: Are they located in the same or nearby physical locations?
  • Bargaining history: If there's a history of collective bargaining, what has been the scope of past units?
  • Employer's administrative structure: How is the employer organized departmentally or by function?

• Desires of the Employees (Extent of Organization): While not the sole factor, the NLRB considers the extent to which employees have organized. However, the Board cannot rely solely on the extent of union organization as the determining factor. The unit must still be appropriate even if only a portion of potential employees has shown interest.

• Exclusions: Certain employees are typically excluded from bargaining units because they do not share a community of interest with rank-and-file employees or are otherwise defined by the NLRA as outside the scope of its protection. These usually include:

  • Supervisors: Individuals who have authority to hire, fire, discipline, assign, or direct other employees, or effectively recommend such actions.
  • Managerial Employees: Employees who formulate and effectuate management policies.
  • Confidential Employees: Employees who assist and act in a confidential capacity to persons who formulate, determine, and effectuate management policies in the field of labor relations.
  • Guards: Employees who enforce rules to protect employer property.
  • Independent Contractors: Workers who are not considered employees under the NLRA.
  • Agricultural Laborers: Excluded by definition under the NLRA.

• Craft vs. Industrial Units: The NLRB often weighs whether a unit should consist of highly skilled craft employees (e.g., electricians, plumbers) who might prefer their own separate unit, or if they should be included in a broader industrial unit alongside less skilled workers. The NLRB generally allows craft severance where a distinct identity is maintained, and there's a strong desire for separate representation.

The NLRB's goal is to establish a unit that is stable, that minimizes fragmentation of the workforce, and that allows for effective collective bargaining without undue disruption to the employer's operations.

2. What are the restrictions upon management regarding interrogation and communication with employees during the organizing campaign?

During an organizing campaign, the National Labor Relations Act (NLRA) prohibits employers from engaging in unfair labor practices that interfere with employees' rights to organize, form, join, or assist a labor organization, or to engage in concerted activities for mutual aid or protection. These restrictions are often summarized by the acronym "TIPS":

• T - Threats: Management cannot threaten employees with adverse consequences if they support the union. This includes threats of:

  • Job loss or layoffs.
  • Wage reductions or loss of benefits.
  • Closure of the plant.
  • More onerous working conditions.
  • Loss of opportunities (e.g., promotions, training).

• I - Interrogation: Management cannot interrogate employees about their union activities or sentiments in a way that coerces or interferes with their rights. While simple, non-coercive questions about the union might be allowed in very specific, limited circumstances (e.g., to verify a union's claim of majority status), generally, direct questioning about union support, whether they signed a union card, or who else is involved, is illegal.

  • Factors indicating coercive interrogation: The employee's job status, the questioner's position, the context of the questioning (e.g., manager's office vs. break room), the nature of the information sought, the employee's reaction, and whether the employee was given assurance against reprisal.

• P - Promises: Management cannot promise employees benefits or improvements in working conditions if they reject the union. This includes promises of:

  • Wage increases.
  • Improved benefits.
  • Promotions.
  • Better working conditions.
  • These promises are seen as an attempt to buy votes or undermine union support.

• S - Spying/Surveillance: Management cannot engage in surveillance of employees' union activities or create the impression that they are doing so. This includes:

  • Attending union meetings (unless genuinely invited as a participant).
  • Monitoring employees' conversations about the union.
  • Taking notes on who attends union meetings or talks to organizers.
  • Using cameras or listening devices to observe union activity.

Beyond TIPS, management also cannot engage in:

• Discrimination: Firing, laying off, demoting, or otherwise discriminating against employees for their union activities or sympathies.
• Solicitation Rules: Implementing or enforcing rules against union solicitation or distribution that are more restrictive than rules applied to other forms of solicitation.
• Bypassing the Union: If a union is certified, management cannot bypass the union and deal directly with employees on mandatory bargaining subjects.

The key is that management's actions should not coerce employees in their decision regarding union representation. Employers have the right to express their opinions about unionization, provided they do so without threats, interrogation, promises, or surveillance.

3. What does bargaining in good faith entail and how does that apply to mandatory, permissive, and prohibited issues?

"Bargaining in good faith" is a fundamental legal obligation under the NLRA (Section 8(d)) that applies to both employers and unions once a bargaining relationship is established. It requires both parties to meet at reasonable times, confer in good faith about wages, hours, and other terms and conditions of employment, and execute a written contract incorporating any agreement reached. However, it does not compel either party to agree to a proposal or make a concession.

Sample Answer

Let's break down these crucial aspects of labor relations, focusing on the National Labor Relations Board (NLRB), management restrictions during organizing, good faith bargaining, and the economic impact on outcomes.

1. How does the NLRB determine if the bargaining unit proposed by the labor organization is appropriate?

The National Labor Relations Board (NLRB) determines if a proposed bargaining unit is "appropriate" by applying a standard that aims to ensure employees share a "community of interest." This standard is designed to allow employees to effectively exercise their rights to collective bargaining. While the NLRB does not require the most appropriate unit,