Definitions within Collective Bargaining Flashcards
Employee - NLRA
Section 2(3)
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 as not obtained any other regular and substantially equivalent employment
NOT an employee under NLRA
ag worker, domestic service of family or person at their home, individual employed by parent/spouse, independent contractor, supervisor, RLA employee
Implicit Exemption of employee
managerial and confidential employees
Contingent worker
NOT NLRA covered
no explicit contract of ongoing employment
Lease and subcontractors
Independent Contractors
NOT NLRA protected
Cannot bargain collectively by antitrust laws
Many IC’s do not have rights
Big advantage to companies
Economic Realities Test
Workers are employees under the NLRA if the realities if the situation, they economically dependent and would benefit from application of the Act
Congress did not like went to right to control
Is used in FLSA, FMLA
Right to Control Test
Comes from tort respondeat superior
Totality of the circumstances of wether the hiring party controls the manners and means of work
Right to Control Factors
skills required
source of instrumentality and tools
location of work
duration of work
whether right to assign additional projects
Hired part’s discretion over when/how long to work
method of payment
hired party’s role in hiring + $ assistants
work is part of the regular business of the hiring party
provision of employee benefits
tax treatment
Darden
Supreme court has stated the right to control is default test for looking at employee without further elaboration
Economic realities factors
degree of alleged employer’s right to control in the manner which the work to be performed
opportunity for profit or loss depending on managerial skill
employee investment in equipment/materials, or helpers
service requires special skill
degree of permanence of work
service is integral to employer’s business
Hybrid test
examine the facts of the work relationship and look for control or economic dependence
Totality of circumstances
ABC Test
interpreting STATE laws
NOT A TOC test
burden on the employer with presumption that one is an employee unless proven otherwise
Roadway Package Inc.
Looking at the totality of the circumstances and the common law control test, the functions of the drivers are essential to the business, have the company logo, not available outside business, no outside entrepreneurialism
Home Health Care Workers Getting Organized
Healthcare workers are often independent contractors, cannot unionize
Public authority model from CA
Leased employees
employer 1 leases employees from employer 2 to work in shop next to Employees of Employer 1
Oakwood
Employees can be employees of both employers, and employees need consent to bargain with multiple employers
Overruled Sturgis
Miller Anderson Inc.
No consent is needed consisting of employees who are both solely an jointly employed
Section 9(b)
Board can decide whether employees the fullest freedom in exercising rights, the unit appropriate to CS
KEY - community interest
Community interest in leased employees
KEY to be in bargaining unit
Employees of subcontractors
employees of a subcontractor, for the purpose of law, is an employee of contracting company if there is a common law community of interest
