The National Labor Relations Act (NLRA) regulates private-sector unions, most private-sector employers who are engaged in interstate commerce, and their employees. It does not cover airline and railroad employees, who are covered by the Railway Labor Act (RLA), and it does not cover public employees. The NLRA is enforced by the National Labor Relations Board (NLRB).
The NLRA provides employees with the following rights:
- the right to form, join or assist labor organizations
- the right to bargain collectively through a designated collective bargaining representative
- the right to engage in, or refrain from engaging in, or concerted activities for the purpose of collective bargaining or other mutual aid protection.
These rights can include the right to strike. The NLRA also prohibits certain “unfair labor practices” that can be committed by both employers and unions.
The provisions of the 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 NLRB 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 located outside the state of Colorado, 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 more than $100,000 fall within the jurisdiction of the NLRB. Proprietary and non-profit hospitals with gross annual revenues more than $250,000 are under the NLRB’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 public employees, agricultural laborers, domestic employees, persons employed by employers subject to the NRLA, independent contractors, and supervisors.
The National Labor Relations Board
The NLRA created the NLRB. The NLRB, is made up of five members who are appointed to staggered five-year terms by the President of the United States, subject to confirmation by the U.S. Senate, and is responsible for administering the act. In order to handle the day-to-day work of the NLRB, 33 regional offices have been set up across the country. The regional offices conduct elections and investigate and prosecute unfair labor practice charges.
Colorado falls under Region 27, with its regional office in Denver, Colorado.
NLRB Regional Office
Byron Rogers Federal Office Building
1961 Stout Street, Suite 13-103
Denver, CO 80294
Phone: (303) 844-6249
Fax: (303) 844-6249
The NLRA states that employees have the right to:
- bargain collectively with their employer
- 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 these 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 regarding 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 its 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 previously, 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. Failure to reinstate will result in an award of back pay. An economic strike can be converted to an unfair labor practice strike by the unlawful actions of an 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 actions 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.
Employee's right to a witness (Weingarten rights)
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 non-union employees, but this position was reversed. Under current law, non-union employees do not have the right to request employee representation. The status of this issue should be reexamined at the time the request is made.
An employer is under no obligation to provide company bulletin boards for its employees’ use. However, if employees are provided with access to bulletin boards, there must be a consistent and non-discriminatory 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 the 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, employers 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 non-discriminatory 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.
No solicitation/distribution rules
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 NLRB 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 (for instance, 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:
- solicitation and/or distribution of literature by non-employees on company property is prohibited
- solicitation by employees on company property during working time, which in any way interferes with work, is prohibited
- distribution of literature by employees on company property in work areas is prohibited
- distribution of literature by employees on company property in non-working areas during working time, which in any way interferes with work, is prohibited.
A no solicitation/distribution rule must also be enforced in a non-discriminatory manner. Allowing selected non-employees 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 which allows for charitable solicitations such as the United Way, which the NLRB found to be an acceptable exception to the rule.
Prohibited employers practices
Any unlawful conduct under NLRA 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.
Interference with, restraint, or coercion of employees in their exercise of their rights guaranteed by Section 7. The four basic types of illegal activity covered by this section of the act are threats, interrogation, promises, and spying. The acronym “TIPS” is often used as a shorthand reference for the unfair labor practices prohibited. The conduct described in the following paragraphs is unlawful no matter when or where it occurs. Thus, regardless of whether the acts take place away from work, in a social setting, or even between relatives, a finding of illegality can, and usually does, result.
Threat - Any threat by an employer or its agent to take action against an employee because of his/her union or other protected concerted activity is unlawful. Again, concerted activity is employee conduct/activity that is planned or accomplished together with other employees. Examples of unlawful threats include threats to:
shut down a plant
not bargain with a union
reduce employees' pay or other benefits
give an employee less desirable or more difficult work
fire, demote, or otherwise discipline an employee because of his/her union or other protected concerted activity.
- Interrogation - The second element of the “TIPS” acronym is interrogation. It is unlawful to interrogate or question employees about their union activities or preferences, or the activities or preference of their fellow employees. This includes questions designed to find out who has been signing union cards, attending union meetings, or otherwise engaging in union activity. It is also unlawful to ask employees questions concerning what has transpired at union meetings, although if an employee spontaneously volunteers such information, it is perfectly permissible to listen. In the case of employees who are open in their union support (for instance, wearing pro-buttons, caps, or t-shirts at work), the NLRB has announced that it will review the circumstances before deciding whether a particular interrogation is unlawful. Employers should exercise extreme caution before discussing union activities with any employee, regardless of the openness of the employee’s union activity.
- Promises - The third unlawful practice encompassed within the “TIPS” acronym is the making of promises. It is unlawful for an employer to promise an employee a benefit, economic or otherwise, in return for refraining from engaging in union activity. Typical promises that fit within this prohibition are promises for promotions or better jobs, increased wages or other benefits, preferred shift assignments, or other special treatment. Promises of better wages or benefits if the union is defeated are also unlawful, whether made to the employer’s entire workforce, to small groups, or to a single employee.
- Spying or surveillance - The final element represented by the “TIPS” acronym is spying or surveillance. It is unlawful for an employer to spy on meetings or other union activity or to attempt to discover who is in attendance. Moreover, it is unlawful to make statements that create the impression that the company has been spying on its employees, even if such is not the case. Such statements might include remarks to the effect that the employer knew where the union meetings were being held and who was attending.
- Domination or interference in the formation or administration of a labor organization or contribution of financial or other support to it. This provision of the NLRA is intended to prohibit company dominated labor organizations. A labor organization, under this section, is any representative group that “deals” with the employer concerning grievances, wages, hours of work, or other terms and conditions of employment. The employer can be found to have unlawfully dominated or interfered with an employee group if:
- the formation of the group was initiated or fostered by the employer
- the employer dominates the group by granting it special use of company facilities and services or by giving it financial aid
- the company is involved in the administration or operation of the group.
- While the original intent of this section was clearly to prevent captive “inside unions” or company dominated unions, the NLRB reached a decision several years ago concerning employee action committees, which have been used by some large corporations to handle a variety of employee disputes. The NLRB held that such committees were in violation of the act because they were in reality labor organizations. The NLRB ordered the corporation (Electromation) to disband the employee committee immediately. The NLRB 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.
Discrimination against an employee in order to discourage or encourage membership in, or activity on behalf of, a union. This section prohibits employers from treating pro-union employees less favorably than similarly situated non-union employees. Thus, an employer may not discharge, demote, transfer, or in any manner punish an employee because of his/her union beliefs, support, or activity. The key factor is the motivation of the employer. If the employer is even partly motivated by anti-union considerations, then action taken against an employee will be unlawful. The act does not compel an employer to treat pro-union employees better than non-union employees. It merely requires that employees not be discriminated against because of their union feelings or activity. As long as similarly situated employees are treated substantially equal - regardless of union preference – a violation of this provision should not result.
- Discrimination against an employee for participation in NLRB proceedings. The act also prohibits an employer from retaliating against employees for participating in NLRB processes (for instance, investigations, hearings, trials, elections, etc.). It is unlawful to discipline employees because they gave testimony in an NLRB hearing, acted as a union observer in an election, or talked to an NLRB investigator.
- Refusing to bargain in good faith with the employees’ chosen representative. It is unlawful for an employer to refuse to meet and bargain with its employees’ chosen representative. The act defines collective bargaining as “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 ...” However, the obligation to bargain “does not compel either party to agree to a proposal.” It mandates only that an employer bargain with a willingness to reach agreement, if possible. The duty to bargain in good faith has been interpreted to impose on employers the duty to provide unions, upon request, with information needed by the union to bargain intelligently. Failure to provide such relevant information is generally a violation.
Prohibited union practices
In addition to the restrictions placed on management, the NLRA 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 NLRA 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 of the following situations exist:
- there is a currently certified union recognized by the employer whose rights are not subject to challenge
- a valid election was held during the preceding year
- no election petition is filed within 30 days of the commencement of the picketing.
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.
Unfair labor practice charges
Once an unfair labor practice charge has been filed in the NLRB’s Regional Office, a member of the field staff will investigate the allegations in the charge. The NLRB 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 NLRB 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 NLRB in Washington, the ALJ’s findings and recommendations become final. If an appeal is filed, the NLRB will review the ALJ’s findings and accept, reject, or alter the recommendations. The NLRB decision can be appealed to a U.S. Circuit Court of Appeals. The Tenth Circuit Court of Appeals, located in Denver, Colorado, has jurisdiction over all such cases in Colorado as does the District of Columbia Court of Appeals located in Washington, D.C. The final step in the appeal process is the U.S. Supreme Court, which may or may not agree to hear the case.
All elections under the NLRA must be preceded by the filing of a petition with the appropriate Regional Office of the NLRB. Election petitions in Colorado may be filed at the offices of Region 27 located in Denver, Colorado. 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 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 number of 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.
The RD 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, which 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:
- advising employees who request assistance in decertifying their union to write to the appropriate regional office of the NLRB
- allowing employees to circulate decertification petitions during non-working times and in non-working areas
- meeting with employees, at their request, and responding to their inquiries regarding withdrawal from the union.
The following employer conduct has been interpreted by the NLRB to be more than “ministerial aid” and therefore unlawful:
- circulating the petition or promoting or assisting in its circulation by employees
- soliciting or encouraging employees to sign the petition
- permitting employees to draft, circulate, or file the petition during working time
- permitting the petition to be circulated as a company sponsored document
- promising benefits to employees for their support in ousting the union
- threatening reprisals to employees if they fail to support the petition
- giving unrequested assistance to employees involved in a decertification attempt
- obtaining the appropriate forms, filling them out, and offering further legal services, whether at the employees’ request or otherwise.
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.
- If there has been a valid election in the past 12 months in the same unit (or a subdivision) the decertification petition will be dismissed. This is known as the election bar.
- A second barrier to a decertification election is the certification bar. The certification bar requires that the majority status of the union be honored for one year after certification as the employees’ exclusive representative. If an employer refuses to bargain in good faith, this period can be extended for the period of the refusal to bargain.
- A third barrier to a decertification election is known as the contract bar. This rule bars a decertification election for the term of a valid collective bargaining agreement - up to three years.
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 objective evidence indicating that the union has lost its majority support. This evidence might consist of:
- a decline in the check-off of union dues
- evidence of employee dissatisfaction with the union
- the limited extent of ongoing union activity.
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. In order for the petition to be processed to completion, it must be supported by 30% of the bargaining unit.
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.
Determining the appropriate unit
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. For instance, 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 NLRB’s Regional Director may decide these issues. Typically, if the unit has been stipulated, the election will be held within 48 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 election campaign
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 NLRA 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:
- tell employees the facts about the union, including its history of strikes and/or violence, without overemphasis
- tell employees about experiences others have had with unions – however, statements about discharges, layoffs, plant closure, etc., in connection with organizing or union activity in these “historical” accounts must be carefully worded
- explain to employees why it is believed that the union’s position on a certain issue is wrong, unfair, legally incorrect, etc.
- explain in terms of economics, profitability, business needs, etc., why the company is operating in the manner that it is, or why something has or has not been done at the plant
- tell employees they do not have to sign a union card to vote in an NLRB election
- tell employees the facts about bargaining in good faith, such as that the company does not have to agree to any proposal that is not in its own or the employees’ best long term interest
- point out that unions usually charge member dues, fees, and assessments and can impose disciplinary fines on their members.
The NLRB 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 a list of the names and addresses of all employees who are eligible to vote in the election to the NLRB. The NLRB 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.
Notice of election
Approximately one week prior to the election, the NLRB’s Regional Director will send out a Notice of Election that 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 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.
Counting the votes
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 the objecting party feels affected the results of the election. Objections may be filed with the NLRB’s Regional Director within seven days after the voting. Even when challenged ballots tie up election results 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 Regional Director, the election will normally be set aside. If, however, the objections are dismissed, the election results will stand.
The NLRA makes it unlawful for an employer to “refuse to bargain collectively with the representatives of its 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 faith bargaining
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 NLRB examines the following factors to determine whether an employer has bargained in good or bad faith.
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:
- refusal to attempt to reconcile differences between bargaining positions
- use of delaying tactics in bargaining
- failure to designate a bargaining agent with sufficient authority
- withdrawal of provisions already agreed upon.
While the NLRA 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:
- refusal to consider union proposals
- insistence that economic items not be discussed until all other terms are agreed upon
- pointing to futility of future negotiations unless the union accepts certain management proposals
- failure to offer “concessions of value.”
Proposals and demands
The NLRB 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 not so harsh or patently unreasonable as to frustrate agreement, submitting 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:
- unreasonable procrastination in executing an agreement
- delay in scheduling meetings
- initiating irrelevant discussions at bargaining time
- insistence that negotiations be held in a particular place when the union has requested to meet elsewhere
- willful avoidance of meetings.
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:
- demanding the union waive pending grievances
- refusal to negotiate during a strike
- requiring agreement on certain subjects as a prerequisite to further negotiations
- attempting to dictate the composition of union’s negotiating committee, or refusal to negotiate until a particular person on the committee is removed.
Unilateral changes in conditions
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:
- granting general wage increases
- elimination of an existing arbitration system
- discontinuing existing bonuses
- instituting a written warning system
- granting health insurance or similar benefits.
Direct communications with employees
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. Facts, opinions, and explanations about collective bargaining may be communicated directly to employees. However, the communications must not contain promises or threats and considered in context, must not show an effort to bypass the union.
The duty to furnish information
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 NLRB to disclose a copy of the agreement of sale of its business to its union.
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.
Issues subject to bargaining
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.
Illegal subjects of bargaining
Certain topics are not proper subjects for bargaining under the act. Examples of illegal subjects include:
- proposals that encourage or require discrimination against employees on the basis of race
- a contractual right to discharge employees for union activity (but an employer can prohibit union activity during working time)
- an employer’s insistence to impasse that the union accede to its unlawful recognition of another union in another unit.
- proposals that are unlawful under other applicable laws.
Relocation or transfer of work
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 its good faith bargaining duty, it 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.
Commonly asked questions
Q. I have a rule that employees must keep their pay information confidential, and may not discuss such matters with other employees. Is that okay?
A. No, the NLRA protects employees who engage in any "concerted" activity, such as discussion of working conditions or wages, even employees are not represented by a union at the time.
Q. Can I prevent employees from holding other jobs in addition to those at my place of business?
A. No, The NLRB has determined that to prevent "moonlighting" has a chilling effect on employees who wish to work on behalf of union organizations. Therefore, "moonlighting" cannot be prevented unless there is a direct conflict between the position that the employee holds and any other jobs he/she may have.
Where to go for more information
Visit the National Labor Relations Board website at:
Byron Rogers Federal Office Building
1961 Stout Street, Suite 13-103
Denver, CO 80294
Phone: (303) 844-3551
Fax: (303) 844-6249