An Inside Look Into A Typical Federal Labor Law Practice

Peter is an attorney with the NLRB in a West Coast regional office. Immediately following his graduation from law school three years ago, he joined the NLRB. His responsibilities are quite varied and depend on requests for action from many different sectors of the work force.

Peter reports to the regional director of his office and works closely with Carol, one of the office's field examiners labor-management relations examiners, referred to as field examiners, are responsible for investigating all potential labor disputes, as well as arranging and conducting elections at the work site; some field examiners have legal training, although it is not a requirement of the position.

One labor matter on which Peter has been working involves the charges brought by a group of employees of a local book printing company, who were not reinstated after going out on strike to obtain higher wages and more vacation and sick day benefits. During this strike, the book printer had not fired but merely replaced the striking workers with other experienced workers to keep the plant open.

The striking workers, after a negotiated end to the strike, had asked to be reinstated in their old jobs. The employer refused their request and did not rehire any of them. Peter was asked to investigate the circumstances. After visiting the plant and speaking to both management and the striking workers, it was agreed that although the workers were considered "economic strikers" and thus entitled to full reinstatement, it was the employer's obligation, if they had not found other regular employment, to recall them for jobs for which they were qualified only as openings occurred.

Both Peter and Carol had spent a great deal of time with the representatives of the angry workers and the equally angry management before an agreement was reached. This particular case reflects the type of negotiation skills necessary for an NLRB attorney to have. The following monthly calendar provides a fair idea of a typical NLRB field attorney's schedule:

Monday, August 3:

Peter is called by the attorney who represents the owner of a hotel. It seems that the owner has been approached by representatives of two unions, each indicating that they are the selected collective bargaining agent of the employees. Both have presented a petition to the owner signed by at least 30 percent of the employees. Peter requests that the attorney submit a petition requesting an investigation.

The petition is obtained and filled out that afternoon. Peter asks Carol to begin the investigation by speaking with the two union-side attorneys.

Tuesday, August 4-Friday, August 7:

During this time, Peter is out of the office, investigating a charge filed by the employees of a taxi company against the drivers' union. The charge states that the union has been threatening employees with the loss of their jobs unless they pay a fee to the union for every week that they are given work. The employees also have charged the union dispatcher with giving longer, thus higher paying, jobs to certain preferred drivers who are very active in support of the union.

Peter speaks with the employees who have filed the charges and he reassures them that they should not lose their jobs as a result of filing the petition. He promises to keep them informed of the progress of the investigation. He then requests to see the dispatch logs and speaks to the union representative and the president of the company. After a thorough investigation of all the evidence, Peter recommends that a hearing be held before an administrative law judge. A judge is appointed from the list maintained at the NLRB office and the hearing is scheduled for Monday, August 24.

Monday, August 10:

Peter meets with Carol to discuss the results of her investigation of the hotel owner petition. After visiting the hotel and speaking with the employees, she has found that they are divided as to which union they wish to represent them. Carol recommends that an election be held as soon as possible to establish the collective bargaining unit. Peter agrees with her analysis of the situation. The unions' representatives and the owner of the hotel are then called to arrange a meeting on Wednesday, August 12 to discuss the election.

Tuesday, August 11:

Today, Peter meets with three teachers who have called to request an appointment. They arrive at the office very upset and excited. The school where they teach has just fired them without notice, not long after they had held a meeting to discuss joining a union. Peter, after listening to their story advises them to file a charge of unfair labor practice against the school.

Peter then speaks to the attorney who represents the town's school committee and superintendent. The attorney tells Peter that the firings had nothing to do with any union organizing. She explains that the town's student population has decreased; consequently, there is no longer a need for the services of these three particular teachers. Peter feels this explanation does not adequately explain why these three teachers were chosen to be dismissed.

In order to gain more time to investigate the situation, Peter decides to petition the U.S. District Court to grant an injunction to allow time for a formal hearing before the Board. Peter spends the afternoon drafting the proper documents and the next morning files them in District Court. The injunction is granted and the teachers are reinstated until the formal hearing can be arranged.

Wednesday, August 12:

After spending the morning at the U.S. District Court on behalf of the teachers, Peter and Carol meet with the representatives of the two unions and the attorneys representing the hotel owner. The two petitions, each with 30 percent of the employees' names, are again presented by both union representatives. After much conversation, it is agreed that an election will be held on Wednesday, August 26 in the hotel's main dining room at 5:00 p.m., a time when all employees can be present. Tables will be set up with a ballot box.

Each employee's name will be verified from a payroll list maintained by the hotel management. One representative from each union will be present, as will an attorney representing the hotel owner. The election will be run by Peter, with Carol's assistance. They agree to meet once more in the afternoon before the election to go over the final arrangements.

Thursday, August 13-Tuesday, August 18:

Peter works on a brief he is writing in preparation for a case he is taking to the U.S. Court of Appeals. It seems that the Board has ruled that an insurance company is in violation of fair labor practices because the company refused to recognize an employee collective bargaining unit. The employees presented a petition signed by more than 50 percent of the workers, signifying that they wished to be recognized as a collective bargaining unit.

The insurance company refused to deal with the employees, stating that they did not feel that these particular employees were truly representative of all of the workers. Although an election was held, the insurance company still refused to enter into collective bargaining. After requesting, to no avail, that the company bargain collectively, the NLRB is now preparing to take the matter to court. While the NLRB can request cooperation and can order that remedial action be taken, it cannot enforce its decision. If a party still refuses to cooperate, then the matter must be taken to court.

In this particular instance, the insurance company has requested a review by the U.S. Court of Appeals. The appellate court can review the decision, modify it, return it to the Board for reconsideration, or enforce the holding through a fine or imprisonment. Peter will prepare the case for the court hearing.

Wednesday, August 19:

Carol receives a call from a newspaper union requesting a petition to file a grievance against the owner of the paper for an unfair labor practice. After much conversation, Carol determines that this particular employee representative does not fall under the jurisdiction of the NLRB, because the newspaper has less than the mandated minimum amount of total annual business. Carol refers the caller to the state's labor commission, which handles all cases representing the interests of public employees, as well as all businesses that are not within the statutorily established jurisdiction of the NLRB.

Thursday, August 20:

A petition is filed by a clear majority of the employees of a local symphony orchestra. They are requesting a change in the union representing them in collective bargaining. After speaking with the union-side attorney, the employees who filed the petition and the symphony manager, Peter finds that there is no disagreement, processes the petition, and certifies the new group of employees as the collective bargaining unit for that employer.

Friday, August 21:

Peter and Carol spend the day preparing for Mon day's hearing. Peter will present the argument for the taxi company's employees. The judge will hear all of the evidence and will make a final recommendation to the Board. If the Board finds, based upon the recommendation of the judge that the union has engaged in unfair labor practices the Board is authorized to issue an order requesting the union to cease and desist its unfair labor practices and to refund all illegally collected fees, with interest.

Monday, August 24:

Peter and Carol attend the hearing. After presenting their case, which takes all morning and the early part of the afternoon, they both feel that the case has gone well. The dispatch logs have been a clear record, which both feel was helpful to their argument. They will now have to wait about two weeks for the administrative law judge's decision.

Tuesday, August 25:

The meeting with the hotel workers' unions and the attorney for the hotel takes place at 2:00 p.m. While Peter discusses the procedures for the next day's election, Carol takes a tour of the hotel facilities that are to be used for the site of the election. She explains to the staff members how the room is to be set up, including where each table should be located in order to provide secrecy in the voting area.

She makes sure that signs have been posted to inform workers of the date, time, and location of the election, and who will be eligible to vote. She also checks that there is a sample ballot printed on yellow paper, to differentiate it from the official ballots, which will be on white paper. As she is returning to the meeting room to join Peter and the other attorneys, one of the employees happens to mention to her that three of the workers speak no English; they speak and write only Greek. Carol reports this new information to the assembled representatives. They will somehow have to obtain ballots and instructions written in Greek before the election begins at 11:00 in the morning.

Peter recalls that a student in the office mentioned an aunt who spoke Greek. He calls the student and arranges to have the ballot translated and copied before the election in the morning.

Wednesday, August 26:

The election is held as scheduled at the hotel. Carol hands out the ballots, including the three written in Greek, as Peter verifies the eligibility of each employee by referring to the payroll list provided by the hotel's accounting office. As Peter and Carol handle the ballots, attorney representatives are present from each of the unions and from the hotel management. When the voting closes, Peter and Carol count the votes. One of the unions has achieved a clear majority and will be the collective bargaining representative for the employees. Peter certifies the results for the union.

Thursday, August 27-Monday, August 31:

Peter spends the rest of this time readying his brief for the U.S. Court of Appeals hearing to be held on Monday, August 31. He also spends a great deal of time on the telephone answering questions, advising attorneys of the results of previously filed petitions, and preparing for charges reviewed by the Board.