Under federal law, unions may bargain with employers on behalf of their membership’s wages, hours and conditions of work. Labor unions in Illinois are covered by the National Labor Relations Act (NLRA), Labor Management Relations Act (LMRA) and in Illinois under the Labor Relations Section of Illinois Code.
The NLRA was enacted in 1935 as federal legislation to guarantee the rights of employees to bargain collectively with their employers and to engage in other protected concerted activity. Employees who are covered by the NLRA are protected from various conduct by employers and labor unions, which interfere with the employee’s enjoyment of their rights to from a union.
The National Labor Relations Act (NLRA) broadly covers any employer whose operations affect commerce. Commerce is also broadly defined as “buying and selling goods.”
The NLRA is enforced by the National Labor Relations Board (NLRB), whose jurisdiction to act is statutorily defined within the NLRA. The NLRB typically does not have jurisdiction over businesses, which have only a minimal effect on commerce. These limitations are exercised under the NLRB’s own authority. The statutory exclusion of enterprises that are exempt from NLRB jurisdiction include the following:
The NLRB’s jurisdictional standard also has a minimal standard to determine an effect on commerce. For non-retail businesses, the value of direct or indirect sales located outside the state of Illinois must exceed $50,000. Retail businesses must do an annual volume of business of at least $500,000. The NLRB has also established some business sector specific standards.
Example - In the healthcare industry, nursing homes must have gross annual revenue of $100,000 to come under NLRB jurisdiction. On the other hand, hospitals and other healthcare institutions must have an annual gross revenue of $250,000 for the NLRB to have jurisdiction.
Other industries of note that have their own jurisdictional standards, include:
The NLRA also sets standards for which type of employee is subject to the jurisdiction of the NLRB.
Example - Statutory exemptions from the NLRB include the following employees:
Despite the jurisdictional limitations, the net is broadly cast in determining which employer and employees are subject to the jurisdiction of the act.
When a charge has been filed for either a union election or for an unfair labor practice claim, the NLRB will shortly thereafter send a “commerce questionnaire” to determine if there is NLRB jurisdiction. The employer is asked to fill out the questionnaire and return it to the NLRB assigned to the matter. The questionnaire is used to determine if the employer meets the qualification so be engaged in interstate commerce for the purposes of jurisdiction under the NLRA. If the response to the questionnaire states that jurisdiction does not lie with the NLRB, the NLRB may elect to investigate whether jurisdiction actually exists with the employer. Should the NLRB determine that the jurisdictional standards have not been met, it will dismiss the case as a matter of course.
The NLRA is the source document for the creation of the National Labor Relations Board. The Board is located in Washington D.C. and is made up of five members who serve on staggered five-year terms. Members of the Board are appointed by the President and are subject to Senate approval.
The NLRB also operates 32 field offices located throughout the country. Each field office is responsible for a geographic region around the city it is located. Employees and entities who are litigating a matter under the NLRA are subject to the regional office located in their jurisdiction for initial relief. All cases and representation petitions must be filed within the proscribed jurisdictional NLRB office. Each regional office is in turn run by a Regional Director, who is in charge of issuing notices of hearing for union elections, running union elections, investigating and resolving unfair labor practice charges and pursuing injunctive relief as may be proscribed under the NLRA.
In Illinois, there are three NLRB offices that have jurisdiction divided by county. The three offices are:
One of the primary purposes of the NLRA is to hold employee elections to determine whether the employees have chosen to be represented by a union and to engage in collective bargaining with their employer for wages, hours and conditions of work. The NLRB assists in the election process and typically holds the election after the process outlined by the Board’s regulations. The NLRB deals with six different types of election petitions. Petitions dealing specifically with union representation elections are referred to commonly as R-cases. The six types of petitions are as follows:
In order to file a RC petition, the petitioner must demonstrate that at least 30% of the employees sought for representation support the petition in order to establish the required showing of interest. Normally, the union collects authorization cards from employees in order to demonstrate the proper showing of interest to the NLRB. The authorization cards are dated and signed by the employees seeking representation. The authorization cards should also clearly state the name of the union, which the employees want to represent them.
While employees may seek decertification of a bargaining unit, there are fairly strict rules for employers to follow with respect to decertifying a bargaining unit. The rule of thumb for employees in decertification situations is that the employer cannot instigate or provide aid to employees seeking to decertify their current representative. The decertification must come from an employee of the bargaining unit and not from a supervisor, confidential employee or other member of management. Petitions filed by non-bargaining unit members will be dismissed by the NLRB.
AC petition - An AC petition is used to amend the certification of a bargaining unit. Either the employer or the union may file an AC petition. An AC petition will typically be filed if there is an existing bargaining unit but some condition between the parties has changed.
Example - The name of the employer or union has changed. That is cause to file an AC petition.
When a union has a 30% showing of interest, they may request for an election from the NLRB. The union, employer and any other interested party will receive a copy of the petition. Once the petition is filed, it will be assigned internally at the NLRB to an agent at the regional office for investigation.
The NLRB will investigate several areas to determine the threshold question of jurisdiction and if they have jurisdiction, what is the appropriate bargaining unit for an election. As stated, the initial threshold requirement is that the filing party have a 30% showing of interest. The 30% showing of interest is an administrative matter for the Board and not subject to litigation. If the petitioning party does not have the 30% showing of interest, the petition is dismissed.
The NLRB will also send the employer a commerce questionnaire to determine if it will have jurisdiction over the employer. As stated previously, the NLRB has certain jurisdictional standards, which are determined by the size of the business of the employer. The commerce questionnaire is the tool sent by the NLRB to determine what type of business the employer has and if it meets the minimum threshold requirement for the NLRB to get involved.
Once the NLRB determines it has jurisdiction over the petition, it will seek to determine an appropriate bargaining unit for the election. Essentially, the NLRB is looking to limit the scope of the unit. The NLRB typically wants the parties to attempt to come to an agreement as to the scope of the bargaining unit. However, as coming to an agreement in these situations is usually difficult, the parties may go to a hearing at the NLRB to determine the appropriate unit.
When the appropriate unit is determined by the NLRB, the parties will be asked to stipulate to some rules for the election. These rules usually include the time and place for the election and the number of observers each party can have for the election.
The NLRB tries to hold a hearing within 30 days following a hearing on the scope of the bargaining unit. Once the date of the election has been set, the employer is required to provide a list of eligible voters, called the “excelsior list.” The list must be submitted within seven days of the NLRB determining an appropriate unit. The “excelsior list” contains the names and addresses of each employee eligible to vote in the election. The election will be held no earlier than 10 days after the “excelsior list” has been provided so as to allow each party enough time to contact the eligible employees regarding the union election.
Each party to the election may appoint election observers. The employer should make every effort to have election observers available. Election observers may be any employee who is not a manager. The duties of the election observer are to challenge improper voters and objectionable activity in and around the ballot area. The observers should also be present of the ballot count.
On election day, the voters will receive a ballot from the NLRB. It is a secret ballot election. The voters have the choice of voting for representation by the labor union or voting “no representation.” The NLRB will usually count the ballots just after the close of the polls. A simple majority of ballots will determine the winner of the election. During the course of the election, the observers may have challenged certain ballots. If there are a sufficient number of challenged ballots that it may impact the outcome of the election, the NLRB may investigate the cause of the challenged ballots. Ballot challenges may cause the certification of the election results to be delayed.
Employers have the ability to fight union organizing efforts. The election campaign is highly regulated and requires a large amount of effort by employers. If the employer violates any of the rules regulating union elections, the union may file an unfair labor practice charge. If the conduct is egregious enough, it may be the basis for setting aside the results of an election. In some instances, if the conduct is so egregious that the same laboratory conditions cannot be met, the NLRB may issue a bargaining order to the employer.
In order to run a successful campaign against a union, the management must pinpoint the issues, which have caused its employees to seek representation by a union. The front-line supervisors are key for the employer, as they serve as the eyes, ears and mouth of the organization. Management must use its supervisors to neutralize the issues causing the unionization in a lawful manner.
A useful mnemonic for determining what is legal and what is not during a union election is TIPS. The acronym stands for what is not allowed during a union campaign:
Employers cannot discriminate against employees if they support the union in the course of their employment.
While there are a lot of variables within that four-part acronym, if management can stay within those four points generally, they will be able to avoid trouble with the NLRB. However, there are many statements and tactics an employer may use during a union election campaign. The NLRA assures the rights of employers to explain their points of view and attempt to convince employees to vote against the union. Examples of acceptable campaign activity by employers includes:
Any questions employees have should be answered in a timely fashion. Management should also take care that each question is answered accurately, as misleading statements only aid the union and can bolster the union’s case if they file an unfair labor practice charge.
The bottom line is that the employer has many opportunities to talk to its employees during a union campaign and should set out early on a schedule and strategy for taking the lead on getting the employer’s point of view to its employees.
Parties who are in dispute over the NLRA may file an unfair labor practice (ULP) charge with their regional NLRB office. The ULP is the mechanism for the NLRB to act and enforce the NLRA. Any party may file a ULP, including the union, employer or employees.
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 and protection. Concerted activity is a term used throughout the NLRA to refer to employee conduct or activity that is accomplished or planned together with other employees.
Employees have the right to band together to protest or even strike over matters such as wages, benefits, working conditions and hours. Employees who have engaged in such conduct are protected from discipline, discharge or other adverse actions that were taken by the employer based upon the protected concerted activity.
Not all concerted activity is protected under the NLRA. Even if the employees’ action is concerted and relates to wages, hours or conditions of their work, the method used by the employees may not be protected.
If employees engage in unprotected activity, they may be disciplined or fired for participating. Also, if the employees walkout and the walkout is protected, the employer still has the option to replace those 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 which 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.
Most unfair labor practice charges stem from two sections of the NLRA, which are commonly referred to as 8(a)(1) and/or 8(a)(3) violations. Section 8(a)(1) is simply what was discussed previously, that is employees gain the protections of the NLRA if they are engaged in concerted activities for their own mutual aid or protection. Section 8(a)(3) makes it illegal to discriminate or discipline an employee to encourage or discourage that employee from membership in a labor organization. The main difference between the 8(a)(3) and 8(a)(1) charges is that to prove an employer acted unlawfully under 8(a)(3), the employer must be motivated by anti-union animus. Under an 8(a)(3) charge, the NLRB must demonstrate that the employer has all of the following:
The form of discrimination need not be only discipline or termination. The employee may allege that benefits were changed, shifts were changed or a demotion occurred, to name a few. If the employer is found to have committed an unfair labor practice, the NLRB will seek to make the employee whole by providing any back pay lost due to discriminatory activity, returning an employee to a job or otherwise placing the employee in the same situation he was in prior to the discriminatory activity. Employers are also frequently required to post notices to employees regarding their activity including notices that they will not engage in such activity in the future.
The NLRB has been more active in recent years in advocating for the rights of employees. In many instances, the NLRB is involved in workplace matters that do not involve a union.
Some workplace rules that may cause problems with the NLRB include:
In addition to restriction placed on the employer, the NLRA also prohibits unions from engaging in certain conduct.
Processing unfair labor practice charges at the NLRB is similar to the process the NLRB uses for election petitions. The party files a charge at the regional office, which is investigated by a member of the NLRB regional office. The NLRB may review documents and interview witnesses to determine if the allegations of the charge are meritorious.
If the allegations appear to have merit, the NLRB often wants the parties to come to an agreement to resolve the charge prior to filing a formal complaint. If the parties cannot do so, the NLRB will issue a complaint and a date will be set for hearing. If the NLRB believes the allegations do not have merit, it will simply dismiss the charge.
An Administrative Law Judge (ALJ) will heart the complaint and render a recommendation based on the law and facts of the case. If the case is not appealed to the full NLRB in Washington DC, the recommendations of the ALJ will be final. If the matter is appealed, the NLRB will review the recommendation and either reverse it, accept it or alter its recommendations. The NLRB decision may be appealed to the appropriate U.S. Circuit Court of Appeals. Cases in Illinois may be appealed to either the Seventh Circuit Court of Appeals in Chicago or to the Circuit Court in Washington, D.C. The final step in the appeals process is the U.S. Supreme Court, which may or may not agree to hear the case.
An employer is obligated under Section 8(a)(5) of the National Labor Relations Act (NLRA) to engage in good faith bargaining with the employee’s representative. 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. This obligation to bargain 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 an agreement with the union, if possible. An employer may refuse to increase wages or benefits or even demand a reduction in wages and benefits and still bargain in good faith with the union.
Good faith bargaining is defined as, “the obligation to participate actively in the deliberations so as to indicate a present intention to find a basis for agreement and a sincere effort must be made to reach a common ground.” Good faith bargaining is generally determined through the totality of the conduct of the parties through the entire negotiations. While some specific actions, when viewed alone, may not amount to a charge of bad faith bargaining, if the conduct pervades the entire negotiations, then there may be a basis for a bad faith bargaining charge. Some of the conduct which may become the basis of a bad-faith bargaining charge include:
An employer has an obligation to bargain only with respect to wages, hours and conditions of work. These are considered mandatory subjects of bargaining. The term “conditions of work” is interpreted broadly, however and encompasses a broad scope of topics. Wages can include bonuses, pensions, profit-sharing plans and other company provided benefits. However, if a proposed subject of bargaining is permissive or outside the scope of mandatory subjects of bargaining, a party has no right to insist on bargaining such matters. Certain topics which are illegal subjects of bargaining under the NLRA 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.
A strike means that a union may use economic force to encourage employers to concede or give on certain issues during the course of bargaining. A strike is technically defined as a concerted stoppage of work and any concerted slowdown or other concerted interruption of operations by employees.
Strikes typically occur during the course of bargaining when a labor contract has expired. In order for a strike to be protected, it must result as some sort of labor dispute between the parties.
There are two types of strikes that are protected under the NLRA. The first is an unfair labor practice strike, which as it is named, is the result of an unfair labor practice by the employer. When an unfair labor practice strike ceases or if the employees make an unconditional offer to return to work, ULP strikers must be returned to work. If the employer has hired replacement workers, those replacement workers are not entitled to continued employment.
The second type of strike is an economic strike. This type of strike occurs when a union is trying to use economic pressure on an employer to accede to its economic demands. Economic strikers have less protection then ULP strikers with respect to their opportunity to return to work. If the economic striker makes an unconditional offer to return to work, the employer need not return them to work if they have already hired permanent replacement workers. However, the economic strikers are still employees of the employer, but may only return to work to replace permanent replacement workers who have left the employer or to fill other open job opportunities, if qualified.
An economic strike may be converted to an unfair labor practice strike as a result of unlawful actions taken by the employer. The transformation of an economic strike to an unfair labor practice strike can have a profound effect on the reinstatement rights of striking employees.
Illinois has its own set of labor laws that complement the National Labor Relations Act (NLRA) and other federal labor laws.
Illinois is not a Right to Work state. A “right to work” state means that a person may not be denied employment based on membership or non-membership in a labor union. In Illinois, the relationship between the union, employer and the employees is bargained in the union contract. A union and employer can negotiate a contract requiring an employee to pay union dues as an agency fee payer.
Illinois has a few other laws that affect the employer-union relationship. Some of these laws include the following:
The Labor Dispute Act prevents restraining orders or injunctions to be issues in response to peaceful picketing or protests resulting from a labor dispute. The statute states that:
A union, union members, sympathizers and an employer’s employees have a right to communicate their dispute with a primary employer to the public by picketing the primary employer wherever they happen to be. The picketing may take place not only at the employer’s main facility, but at job sites as well.
Quite simply, the Collective Bargaining Successor Employment Act requires successor employers to assume the current collective bargaining agreement of the previous employer, if the collective bargaining agreement contains a successor clause. The statute states:
Where a collective bargaining agreement between an employer and a labor organization contains a successor clause, such clause shall be binding upon and enforceable against any successor employer who succeeds to the contracting employer’s business, until the expiration date of the agreement therein stated. No such successor clause shall be binding upon or enforceable against any successor employer for more than 3 years from the effective date of the collective bargaining agreement between the contracting employer and the labor organization.
If an employer has a collective bargaining agreement with its employees that has a clause binding the agreement to a successor employer, the successor employer is bound to the collective bargaining agreement. One wrinkle in the statute is the requirement for an employer who is a party to a collective bargaining agreement containing a successor clause has the affirmative duty to disclose the existence of such agreement and such clause to any successor employer.
The Advertisement for Strikebreakers Act prevents an employer from advertising to hire employees to replace employees on strike or locked out during any period when a strike or lockout is in progress, which strike or lockout has arisen out of a dispute between the management of the business and persons employed by such management at the time of such dispute who strike or are locked out as the result of failure in settling such dispute, unless the advertisement states that a strike or lockout is in progress at such place of business.
Illinois law prevents the hiring of employees who regularly offer themselves for employment on a temporary or permanent basis to act as strikebreakers or replacement workers. The Employment of Professional Strikebreakers Act is likely preempted by federal labor law but is on the books in Illinois.
This law states that, “An employer may not willfully and in bad faith fail to transfer employee-entitled funds to the designated employee trust fund that is lawfully entitled to receive the employee-entitled funds.” In sum, if an employer is a party to a collective bargaining agreement requiring contributions to a union plan, those payments must be made.
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 if the 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, an employer cannot prevent “moonlighting” unless there is a direct conflict between the business and any other jobs the employee holds.
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Appendix A: Recordkeeping requirements
Appendix B: Posting requirements