The provisions of the National Labor Relations Act (NLRA) apply, with few exceptions, to all employers engaged in operations “affecting commerce.” Commerce is the buying and selling of goods. The Act does not cover those employers whose effect on commerce is extremely minimal.
The Board has set up administrative standards that are used to determine its jurisdiction. Non-retail businesses must have either direct or indirect sales of goods or services to consumers, the value of which exceeds $50,000. Retail businesses, on the other hand, must do an annual volume of business, including sales and excise taxes, of at least $500,000. For businesses engaged in both retail business and manufacturing (non-retail), the Act will apply if the business meets either the retail or non-retail standard. In addition, nursing homes, visiting nurse associations and related hospital and healthcare facilities with gross annual revenues of over $100,000 fall within the jurisdiction of the Board. Proprietary and nonprofit hospitals with gross annual revenues over $250,000 are under the Board’s jurisdiction.
The term “employee” is defined broadly by the Act. It includes any employee of any employer, even those whose actual work has ceased as a result of a labor dispute or unfair labor practice. Types of employees not covered by the Act are agricultural laborers, domestic employees, persons employed by employers subject to the Railway Labor Act, independent contractors and supervisors.
The National Labor Relations Act (NLRA) created the National Labor Relations Board (NLRB). The Board, consisting of five members who are appointed to staggered five-year terms by the President, subject to Senate confirmation, is responsible for administering the Act. In order to handle the day-to-day work of the Board, 33 regional offices have been set up across the country. The regional offices conduct elections and investigate and prosecute unfair labor practice charges. For more information, visit:
The NLRA states that employees have the right to engage in union activity, bargain collectively with their employer and engage in concerted activity for their mutual aid or protection. “Concerted” is a term used throughout the NLRA to refer to employee conduct or activity that is planned or accomplished together with other employees. The NLRA also states that employees are free to refrain from engaging in any of the above activities. It is the violation of these basic rights that gives rise to both employer and union unfair labor practices.
Employees have the right to band together to protest or strike over matters such as wages, benefits, working conditions and hours of work. There need not be a union at a facility for an employee to engage in protected concerted activity. Employees engaged in protected concerted activity are protected from discipline, discharge or other adverse action based on that activity.
But not all concerted activity is protected by the Act. Even if employees’ action is concerted and relates to terms and conditions of employment, the method used by the employees may not be protected. For instance, a sit-down strike may interfere with the employer’s lawful right to hire replacements and operate his business. Other examples of unprotected activity include violence by strikers, work slowdowns, “quickie” or intermittent strikes and partial strikes, such as a repeated refusal to work scheduled overtime. If employees engage in unprotected activity, they can be lawfully disciplined and/or discharged. In addition, if employees engage in a protected walkout over terms of employment, the employer has the right to replace them permanently with newly hired employees.
An economic striker, who can be permanently replaced as explained above, should not be confused with an unfair labor practice striker. Unfair labor practice strikers are employees who engage in a work stoppage that is caused or prolonged by their employer’s unfair labor practices. Once unfair labor practice strikers have made an unconditional offer to return to work, they are entitled to immediate reinstatement to their former jobs. An economic strike can be converted to an unfair labor practice strike by unlawful actions of the employer. The conversion of an economic strike to an unfair labor practice strike can have a profound effect on the reinstatement rights of striking employees.
A development in the area of protected concerted activity is the concept of “individual” concerted activity. The theory is that the law should also protect individuals, who, while acting alone, do so for the benefit of or out of concern for, their fellow employees. This theory has been received with varying degrees of success before the NLRB and the federal courts of appeals. The NLRB has held that only action that is engaged in with or on the authority of, other employees can truly constitute concerted activity. On the other hand, a case decided by the U.S. Supreme Court held that employees who individually engage in activity to assert rights under a collective bargaining agreement are engaged in protected concerted activity.
One extension of the concept of concerted activity concerns an employee’s right to request the presence of a representative during a disciplinary interview. The U.S. Supreme Court, in a case involving a union employer (Weingarten, Inc.), held that any time an employee is asked to attend a meeting to investigate a violation of a company rule and the employee can reasonably expect that discipline might occur, the employee has the right to request the presence of another employee. The right does not mean that the employee’s request must be granted. It merely means that, if the request has been made, the employer may not force the employee to go through the interview without the representative. The employer may, however, decline to conduct the interview and simply proceed to investigate the incident without interviewing the employee involved. The right to a witness is triggered only when an interview for purposes of investigation or questioning is scheduled. It is not triggered when a meeting with an employee is called merely to communicate or administer discipline already decided upon.
Several years ago, the NLRB held that the right to request the presence of a representative during an investigative interview should be extended to nonunion employees but this position was reversed. Under current law, non-union employees do not have the right to request employee representation.
An employer is under no obligation to provide company bulletin boards for its employees’ use. However, if employers do provide employees with access to bulletin boards, there must be a consistent and nondiscriminatory policy with regard to the employees’ use. Employers may not deny access by a pro-union employee when other employees are granted virtually free access to the bulletin boards. If employers provide bulletin boards for employee use, all employees must be guaranteed equal access.
Employers should consider a written policy, distributed to employees, restricting use of bulletin boards. No outside organizations should be permitted to solicit on the company bulletin boards. In addition, employers should monitor their bulletin boards and make sure the limitations set forth in the written policy are being followed.
Employees have a right to wear and display pro-union insignia unless safety concerns or other special circumstances are present. Wearing insignia that refers to unions or working conditions is generally a protected right under the NLRA.
However, you may prohibit the wearing of insignia if the insignia would cause safety problems, would affect employee discipline or is provocative in nature. For instance, a strict policy of Burger King Corp. prohibited employees from wearing any buttons or insignia on their uniforms, since Burger King wanted its employees to project a clean and professional image to the public. Since Burger King had enforced its policy in a nondiscriminatory manner in the past, the court found the policy necessary to project a proper image by Burger King and the rule against buttons and insignia was upheld. “Public image” policies would not apply, however, to production settings or other operations where the employees do not deal with the public.
In order to strike a balance between an employer’s private property rights and the rights of its employees to organize and belong to a labor organization, the Board and the courts have attempted to regulate the type and content of rules restricting solicitation and distribution of literature by employees. Non-employee solicitation/distribution is not protected to the same degree as employee solicitation/distribution. An employer may prohibit non-employee solicitation/distribution on company property at all times unless there is no other reasonable method for the non-employee (customarily a union organizer) to reach employees.
Distribution of literature by employees, as a general rule, may be prohibited by an employer in all working areas, since littering in work areas could have an adverse effect on production. However, limits on solicitation by employees may not be so broadly drawn. In order for a “no solicitation” provision to be valid, it may only prohibit solicitation during “working time.” A lawful rule may prohibit solicitation only during the time the soliciting employee or the employee being solicited is supposed to be performing assigned job tasks. The following are examples of lawful no solicitation/distribution rules:
A no solicitation/distribution rule must also be enforced in a nondiscriminatory manner. Allowing selected nonemployees to solicit on company property while not allowing non-employee union organizers similar access rights is discriminatory and, thus, may be held to be unlawful. For instance, enforcing the rule against pro-union employee solicitation while allowing solicitations such as the sale of Girl Scout cookies would clearly be unlawful. In order to be lawful, a no solicitation rule must be enforced uniformly and without exceptions. The only recognized and permitted exception is one that allows for charitable solicitations such as the United Way, which the Board found to be an acceptable exception to the rule.
Any unlawful conduct under the Act is referred to as an “unfair labor practice.” Section 8(a) of the Act makes five general types of activity unlawful if engaged in by an employer.
While the original intent of this section was clearly to prevent captive “inside unions” or company-dominated unions, the National Labor Relations Board reached a decision several years ago concerning employee action committees that have been used by some large corporations to handle a variety of employee disputes. The Board held that such committees were in violation of the Act because they were in reality labor organizations. The Board ordered the corporation (Electromation) to disband the employee committee immediately. The Board has established “safe havens” for lawful employee committees. Committees that are, in effect, brainstorming sessions are not unlawful, provided the committee does not make proposals to or otherwise “deal” with management. Other “safe havens” include information-gathering committees and suggestion box procedures.
In addition to the restrictions placed on management, the Act also prohibits unions from engaging in certain conduct. For instance, neither a union nor its agents may use violence or the threat of violence to threaten, intimidate or coerce employees. A union may not refuse to bargain in good faith. It is a violation of the Act for a union to attempt to coerce an employer to unlawfully discriminate against an employee because that employee is not a member of the union. Excessive or discriminatory fees or dues as a precondition to joining a particular union are also prohibited.
And it is unlawful for a union to engage in picketing for the purpose of recognition if any one of the following are true:
Boycotts and “area standards” picketing are unlawful if they induce persons not to perform services or to refuse to pick up or make deliveries for an employer. “Hot cargo agreements,” where a union forces an employer to cease from using, manufacturing, processing, transporting or otherwise handling the goods of another employer, are prohibited. Finally, it is unlawful for a union to engage in a “secondary boycott” where the union takes action against a neutral “secondary employer” in an effort to pressure the “primary employer” into agreeing to the union’s demands.
Once an unfair labor practice charge has been filed in the Board’s Regional Office, a member of the field staff will investigate the allegations in the charge. The Board representative will receive and review pertinent documents, interview witnesses and, if the charge appears to have merit, attempt to get the parties to settle the case without the issuance of a formal complaint. If a charge is filed against an employer, it is wise to obtain legal representation at the earliest possible time for advice concerning how to proceed with the Board representative.
If the Regional Office feels the case has no merit, the charge will be dismissed. If the NLRB Regional Director feels there is merit to a charge, a complaint will be issued and a date will be set for a hearing.
In an unfair labor practice case, there is generally a period of time between the issuance of a complaint and the actual date of the hearing before the administrative law judge (ALJ). After the hearing, the ALJ makes findings and recommends how the case should be decided. If the case is not appealed to the Board in Washington, the ALJ’s findings and recommendations become final. If an appeal is filed, the Board will review the ALJ’s findings and accept, reject or alter the recommendations. The Board decision can be appealed to a U.S. Circuit Court of Appeals. The final step in the appeal process is the U.S. Supreme Court that may or may not agree to hear the case.
All elections under the National Labor Relations Act must be preceded by the filing of a petition with the appropriate Regional Office of the National Labor Relations Board. Election petitions may be filed at the regional office closest to the employer’s location. The appropriate office for filing is dictated by the county in which the employer is located. The six different types of election petitions are discussed below.
The RC petition is a petition normally filed by a union seeking to represent the employees in the petitioned-for unit. The petition itself names the petitioner and the employer, describes the unit sought to be represented and lists the number of employees in the unit. The petition will be dismissed unless it is supported by a “showing of interest” from at least 30% of the employees in the petitioned-for unit. This showing of interest will usually take the form of signed and dated union authorization cards. If the documentation (cards) is insufficient, the petition will be dismissed. In some cases, the employer can contest the showing of interest by presenting evidence that the authorization cards were forged or were obtained through fear or misrepresentation or that the employees were otherwise fraudulently induced to sign the cards.
This petition seeks an election to determine whether a union currently representing a group of employees should continue to do so. It provides a method for employees to oust or decertify an incumbent union. Any employee, group of employees or individual representing employees may instigate an RD petition. As with an RC petition, the RD must be supported by a showing of interest from at least 30% of the bargaining unit employees. This showing of interest often takes the form of a paper signed and dated by at least 30% of the unit employees declaring that they no longer want the union to represent them.
There are very strict rules governing the amount of aid an employer may give to employees who are attempting to file an RD or decertification, petition. Broadly speaking, the employer is not permitted to originate or instigate the filing of the petition. If the petition is filed by an employer, one of its supervisors or a confidential employee, the petition will be dismissed. If the employee-petitioners are unlawfully aided by an employer, unfair labor practice charges may be filed against the employer that would block the processing of the petition. If, after a hearing, these charges are sustained, the decertification petition will be dismissed.
Not all conduct by an employer that aids employees in the filing of a decertification petition is unlawful. An employer is entitled to offer “ministerial aid,” such as:
The following employer conduct has been interpreted by the Board to be more than “ministerial aid” and therefore unlawful:
These lists are by no means exhaustive. Whether an employer will be found to have rendered more than “ministerial aid” in its efforts to ensure a decertification petition’s success will depend upon the facts in each case.
In addition to situations in which the employer is found to have unlawfully instigated or aided in the filing of the petition, there are three instances in which a decertification attempt will not be permitted under the Act:
The only time a decertification petition can be filed during the life of an existing collective-bargaining agreement is between the 90th and the 60th days prior to the expiration of the agreement and in the case of longer agreements, after the third year (even if the contract is still in effect). The “critical period” (the last 60 days of the agreement) is reserved for uninterrupted bargaining, free and clear of any petition to unseat the union.
The RM petition is the employer’s counterpart to the employees’ RD petition. Through an RM petition, the employer expresses doubt or uncertainty regarding the union’s continued majority status and requests an election to see if the employees wish to continue to be represented by the union. To be upheld, this petition must be supported by 30% of the bargaining unit employees and same further objective evidence indicating that the union has lost its majority support. This evidence might consist of:
The procedural rules for the RM petition are otherwise the same as for the RD petition discussed previously.
The UD petition, known as a de-authorization petition, can be filed by employees who desire an election to decide whether they wish to rescind a “union shop” arrangement. A union shop is an arrangement requiring union membership (or at least the payment of union dues) as a condition of employment.
A UC or unit clarification petition can be filed by either the employer or the employees’ certified union. The petition will arise when there is a need to clarify the scope of an existing bargaining unit. A typical question posed by a UC petition is whether several new job classifications should be included in the currently recognized bargaining unit.
If an employer or a certified union wishes to amend the union’s certification, either can seek to do so by filing an AC petition. Changed circumstances, such as a change in the name of the employer or the union, would be grounds for filing an AC petition.
Once a petition has been filed, the ground rules for the conduct of the election must be settled. One of the first matters that must be determined is the proper scope of the bargaining unit, such as who will be included and who will not. Once the scope of the unit has been determined, either by agreement between the parties or by a hearing, the parties must discuss several other ground rules. They must set the date for the election, the polling place, the number of election observers for each side, etc. If the parties cannot agree, the Board, through the Regional Director, may decide these issues. Typically, if the unit has been stipulated, the election will be held within 60 days of the filing of the petition. If the scope of the unit was determined by a hearing, the election normally will be held within approximately 30 days of the decision on the unit question.
The keys to combating a union organizing attempt effectively are preparation and hard work. Management must be able to pinpoint the issues that have caused the employees to turn to a union and then address and lawfully neutralize those issues, if possible. To do this, the company’s supervisors must help management anticipate the union’s campaign thrust by acting as management’s eyes and ears. However, supervisors must not threaten employees, interrogate them, make unlawful promises to them, spy on them or discriminate against them on account of their union activities. These acts may lead to the setting aside of an election won by the company.
The Act assures employers the right to campaign actively against a union and to voice their opposition to unions as long as these statements do not contain either threats of reprisal or promises of benefits.
Examples of acceptable campaign statements that an employer can make, include the right to:
The Board also monitors “objectionable” employer and union conduct in the election context. The standard for determining objectionable conduct is lower than that for determining unlawful conduct. It is possible for an employer to make statements to employees in an election context that will not be held unlawful, but may cause the election to be set aside if the union files timely objections.
The company should be sure to answer employees’ questions during the campaign as quickly and as directly as possible, taking care that answers are accurate. In addition, the company should respond immediately to any false or misleading statements made by the union. Continue to enforce all rules and regulations in accordance with past practice. Do not discriminate. Remember, any conduct by the company during the campaign that is classified as an unfair labor practice may cause an election to be set aside.
Once the date of the election has been set and all questions of voting eligibility have been decided, the employer must submit to the Board a list of the names and addresses of all employees who are eligible to vote in the election. The Board will then make this list available to the union. Submission of an inaccurate, incomplete or late list may be sufficient reason to set the election aside if the union loses. The employer is required to submit the list so that all employees can receive full communication from both parties during the course of the election campaign.
Approximately one week prior to the election, the Board’s Regional Director will send out a "notice of election," which the company is required to post conspicuously in the facility or plant where the voting will take place. This notice contains information for eligible voters concerning the election and a sample ballot. Copies of this notice must be posted at least three full working days prior to the election. If a sufficient number of employees cannot read English, the Regional Office will provide and the employer must post, bilingual election notices. Failure to post these notices within the specified time frame can constitute a legitimate reason for setting the election aside. The same result can occur if the “No” box is marked on the sample ballot.
Both the employer and the union are usually permitted to have election observers represent them at the polling place during the election. The observers must be nonsupervisory. The number of observers is usually determined by agreement, generally there are no more than two per side. Of course, in elections involving large numbers of voters, more observers may be needed. The duties of the observers include challenging ineligible voters, reporting improper or objectionable conduct in and around the voting area and observing the ballot count.
Approximately 30 minutes before the opening of the polling place, the NLRB agent responsible for conducting the election will hold a pre-election conference with the parties to go over any last-minute problems that may have arisen. One of the topics frequently discussed during this conference is the schedule for releasing the employees to vote. Another topic of discussion may be the voting eligibility of certain employees. Challenges may also be made by the Board agent conducting the election and by the observers as the voting takes place. If these challenges are not resolved at the conference and if they are sufficient in number to affect the outcome of the election, they can delay certification of the election results.
Even if all eligible employees have voted, the polling place will normally remain open until the predetermined closing time. Once the voting is over, the NLRB agent will count the ballots. If the number of challenged ballots is sufficient to affect the election results, the Regional Director will decide, after proper investigation or a hearing, whether the challenges should be sustained or overruled. Challenged ballots of voters ruled eligible will then be opened and counted, unless an exception to the decision is filed by the employer.
Either party to an election may object to the conduct of the election or to acts that the objecting party feels affected the results of the election. Objections may be filed with the Board’s Regional Director within seven days after the voting. Even when election results are tied up by challenged ballots and no result is yet available, objections must still be filed within seven days after the date of the election in order to be timely.
If some or all of the objections are considered justified by the Director, the election will normally be set aside. If, however, the objections are dismissed, the election results will stand.
The National Labor Relations Act (NLRA) makes it unlawful for an employer to “refuse to bargain collectively with the representatives of his employees.” Bargaining is defined as “the mutual obligation of the employer and the union to meet at reasonable times and confer in good faith with respect to wages, hours and other terms and conditions of employment.” Significantly, the obligation to bargain collectively “does not compel either party to agree to a proposal or require the making of a concession.”
The duty to bargain simply requires the employer to approach negotiations with an open mind and the intention of reaching agreement with the union if possible. For legitimate reasons, an employer can refuse to increase wages and/or benefits or even insist on reduced wages and/or benefits and still fulfill its obligation to bargain in good faith.
Good- or bad-faith bargaining is generally determined through the totality of conduct during negotiations. While some specific actions, viewed alone, might not support a charge of bad-faith bargaining, an employer’s overall course of conduct in negotiations may violate the Act.
The National Labor Relations Board (NLRB) examines the following factors to determine whether an employer has bargained in good or bad faith.
While the Act does not require an employer to make bargaining concessions, the following are examples of where refusal to make concessions that have been used as evidence of bad-faith:
The Board will consider the advancement of proposals as a factor in determining good faith bargaining. However, bad faith bargaining cannot be based solely on unacceptable proposals. As long as bargaining proposals do not prohibit future negotiations or are so harsh or patently unreasonable as to frustrate agreement, submitting such proposals will not constitute bad faith.
The duty to bargain in good-faith imposes an obligation to confer at reasonable times and intervals. The following delaying conduct has been found to be evidence of bad faith bargaining:
Attempts to place conditions upon bargaining or the execution of a contract are scrutinized closely by the NLRB. The following conditions have been found to be evidence of bad faith:
Where there are irreconcilable differences in the parties’ positions after exhaustive good-faith negotiations, the law recognizes the existence of impasse. The duty to bargain is suspended but not terminated during impasse. When impasse occurs, an employer is free to make unilateral changes in wages, hours and working conditions consistent with its rejected offers to the union.
An impasse may be broken by almost any changed condition or circumstance. For instance, a strike may change the bargaining atmosphere and require that bargaining be resumed. Under certain circumstances, an employer may, after reaching impasse, resort to a lockout of its employees to bring economic pressure to bear in support of legitimate bargaining positions. This is a highly complex area of the law and it is strongly suggested that employers seek competent legal representation for guidance in determining the circumstances under which a lockout may be appropriate and lawful.
The NLRB will find a refusal to bargain in good-faith if it concludes that an employer is merely going through the “motions” of bargaining or “surface bargaining.” The following conduct has been considered evidence of surface bargaining:
An employer violates the Act if a material change in the conditions of employment is made without consulting with the employees’ bargaining representative and providing a meaningful opportunity to bargain. Unlawful unilateral changes include the following:
It is an unfair labor practice for an employer to undermine a union by conducting a campaign among employees designed to bring pressure upon the union to accede to the employer’s bargaining demands. Such conduct has been considered unlawful and evidence of bad-faith bargaining. The obligation requires dealing with employees through the union, rather than dealing with the union through the employees.
Obviously, an employer’s obligation to bargain with the union does not absolutely prohibit communications with employees during contract negotiations. Employers may communicate facts, opinions and explanations about collective bargaining directly to employees. The communications must not contain promises or threats and, considered in context, must not show an effort to bypass the union.
An employer’s duty to bargain in good-faith includes a duty to supply a union with information that will enable it to negotiate effectively, when requested. The requested information must be relevant. For instance, information pertaining to wages, hours or conditions of employment must be disclosed in most circumstances. Financial information is not automatically subject to disclosure. But, an employer’s claims of financial inability to meet union demands may cause disclosure to be necessary so that the union can review the facts behind the employer’s claims. Also, an employer may be required by the Board to disclose a copy of the agreement of sale of its business to its union.
A distinction has evolved between mandatory and permissive subjects of bargaining. An employer has an obligation to bargain only with respect to wages, hours and other terms and conditions of employment that are “mandatory” subjects of bargaining. Conversely, if the proposed subject matter is a permissive subject – outside the mandatory subjects – a party has no right to insist on bargaining on such matters.
Certain topics are not proper subjects for bargaining under the Act. Examples of illegal subjects include:
A unionized employer is required to bargain with the union over decisions to transfer operations and the effects of the transfer if such decisions are motivated by a desire to escape high labor costs. However, once an employer satisfies his good-faith bargaining duty, he may proceed to transfer operations without reaching an agreement with the union. An employer has no duty to bargain over decisions to transfer operations if such decisions are motivated, not by high labor costs, but by a change in the nature or direction of business. While there is no duty to bargain over the decision to transfer operations in this situation, an employer is required to bargain over the effects of the transfer.
An employer must give a union an opportunity to bargain prior to implementing drug and alcohol testing for current employees, but not prior to beginning such testing of job applicants.
However, an employer is required to provide information to the union regarding applicants who tested positive or who refused to take the test. Any waiver by a union of the right to bargain over drug testing must be clear and unmistakable.
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Chapter 36: Unions