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Unions — Massachusetts

The National Labor Relations Act (NLRA)is a federal law that defines and protects the rights of employees and employers, regulates collective bargaining and prohibits certain practices by unions and management that are harmful to the general welfare. The National Labor Relations Board (NLRB), and often referred to as “the Board,” enforces the NLRA.


The provisions of the NLRA apply, with few exceptions, to all private employers engaged in the interstate buying and selling of goods. Practically speaking, this means that the NLRA covers the majority of non-governmental employers, including nonprofits, employee-owned businesses, labor organizations, non-union businesses and even businesses in states with “Right to Work” laws. The act does not apply to employers in the airline and railway industry (who are instead subject to the Railway Labor Act), agricultural employers or federal, state or local government employees. The board has set up administrative standards that are used to determine its jurisdiction and these standards vary by industry.

Importantly, the NLRA grants rights to “employees” as defined by the act. The term “employee” may include an employee, even if the employee is not working as a result of a seasonal layoff, labor dispute or unfair labor practice. The board has developed special formulas for employees working in cyclical industries, such as construction workers or adjunct faculty members.

Excluded from the act’s definition of “employee” are public employees, agricultural workers, domestic employees, persons employed by employers’ subject to the Railway Labor Act, independent contractors, casual employees, managers and supervisors. The NLRA defines “supervisors” as any individual having the authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward or discipline other employees or responsibility to direct them, or to adjust grievances, or effectively to recommend such action. The standard for a supervisor is a disjunctive one, meaning it is sufficient for the individual to perform one of these functions and there is no need of the supervisor to engage in all of these functions in order to be classified as a “supervisor.”

National Labor Relations Board

The federal agency charged with enforcing the NLRA is the National Labor Relations Board (NLRB). The board is made up of five members who are appointed to staggered five-year terms by the U.S. president, subject to Senate confirmation. In order to handle the day-to-day work of the board, 26 regional offices are set up across the country and some regional offices have one or more sub-regions. For example, Region 01 has a sub-regional office (sub-region 34) in Hartford. The regional offices conduct elections and investigate and prosecute unfair labor practice charges. Massachusetts falls under Region 01, with its main office in Boston:

NLRB Regional Office 01
10 Causeway Street, Room 601
Boston, MA 02222-1001
Phone: (617) 565-6700
Fax: (617) 565-6725
NLRB Subregional Office 34
450 Main Street
Hartford, CT 06103-3503
Phone: (860) 240-3522
Fax: (860) 240-3564

Employee rights

Concerted activity

Section 7 of the NLRA states that employees have the right to:

  • self-organize
  • form, join or assist unions (also known as labor organizations)
  • collectively bargain for changes in wages, working conditions and other terms and conditions of employment
  • engage in other concerted activity for their mutual aid or protection
  • refrain from protected concerted activities.

“Concerted” is a term used throughout the NLRA to refer to employee conduct or activity that is planned or accomplished together with other employees. It is the violation of these basic rights that gives rise to both employer and union unfair labor practices. Examples of protected concerted activity include:

  • An employee:
    • seeking a union representative’s help in confrontation with an employer
    • participating in a strike
    • wearing buttons, t-shirts and other clothing displaying slogans that protest the terms and conditions of employment
    • assisting a co-worker seeking unemployment compensation
    • refusing to drive a truck believed to be unsafe where the employee discussed the truck’s safety and concerns about driving with a co-worker.
  • A striking employee writing a letter to a newspaper criticizing an employer and attempting to elicit community support for the strike.
  • A work stoppage in support of an individual employee’s complaint about compensation after a larger group adopts the same goals.

An example of conduct not considered protected concerted activity includes an employee refusing to perform an assignment because equipment is believed to be unsafe, where no other employees refused to perform, and no other employees complained about the equipment’s safety.

Employees generally have the right to band together to protest or strike over matters such as wages, benefits, working conditions and hours of work. Employees have the right to engage in this protected concerted activity, even if the employees are not represented by a union. It is unlawful for an employer to discipline, discharge or otherwise discriminate against an employee because the employee engaged in protected concerted activity.

If employees engage in unprotected activity, they can be lawfully disciplined and/or discharged. Even if employees engage in a protected walkout over terms of employment, the employer may have the right to replace them permanently with newly hired 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. However, The NLRB has held that only action, which is engaged in with, or on the authority of, other employees can truly constitute concerted activity.

Union representation

The U.S. Supreme Court, in a case involving a union employer (NLRB v. J. 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 (an “investigatory interview”), 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, and it is only triggered upon the employee’s request – not the union’s request. 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. However, the employer may 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 employee is going to be questioned and it is not triggered when a meeting with an employee is called merely to communicate or administer discipline already decided upon. Nonunion employees do not have the right to request employee representation.

Section 7 rights and workplace rules

There are a number of common workplace rules and/or employer practices that may infringe on employees’ exercise of Section 7 rights. The NLRB consistently holds that an employer interferes with Section 7 rights and therefore engages in an unfair labor practice by:

  • Promulgating an employment policy, work rule, or employment agreement provision (collectively employment rule):
    • That explicitly restricts Sectin 7 activity; or
    • In respnse to union activity.
  • Applying an employment rule to restrict the exercise of Section 7 rights.


An employer can also violate the NLRA by simply maintaining a rule that would “reasonably tend to chill” employees from exercising their rights under the NLRA, including communicating about employment terms and conditions. This is true even where:

  • No employees engaged in concerted activity covered by the rule.
  • The employer does not enforce the rule.


The following list covers workplace rules and/or employer practices that are vulnerable to challenge.

Bulletin boards

An employer is under no obligation to provide company bulletin boards for its employees’ use. However, if an employer does provide employees with access to post on 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 third parties or outside organizations should be permitted to post 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. Employers should consider adopting a workplace rule requiring a copy of all posts be submitted to HR for approval prior to posting.

Pro-union insignia

Employees have a right to wear and display pro-union insignia unless safety concerns or other special circumstances are present, such as working within the healthcare industry in “direct patient care areas.” Wearing insignia which refers to unions or working conditions is generally a protected right under the NLRA, regardless of an employer’s written dress code policy.

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 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.

Non-solicitation/distribution rules

To strike a balance between an employer’s private property rights and the employees’ Section 7 rights 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 to employees.

Solicitations/distributions by non-employees are not protected to the same degree as solicitations/distributions by employees. An employer may prohibit non-employee solicitation/distribution on company property, to include parking lots, at all times unless there is no other reasonable method for the non-employee (customarily a union organizer) to reach employees.

Limits on solicitation, which is oral communication, by employees may not be so broadly drawn. In order for a “non-solicitation” provision to be valid, it may only prohibit solicitation during “working time.” Rules prohibiting solicitation during “work hours” have been held overly broad because they could be interpreted to include meal periods and break times. 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 non-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 non-solicitation/distribution rule must also be enforced in a nondiscriminatory manner to prohibit like or sufficiently similar solicitation. 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 during working time against pro-union employee solicitation while allowing sufficiently similar solicitation would be clearly unlawful. Employers should consult with experience labor counsel to determine whether permitting certain non-employee solicitation on company property has prohibited the employer from enforcing is distribution/solicitation rules against union organizing activity.

Access to employer email

The NLRB recently announced a new rule regarding employee access to employer email in its 2019 Caesars Entertainment decision. In that case, the Board explained that employees do not have the right to use employers’ email and other electronic resources to engage in non-work-related communications. Employers do have the right to control the use of their equipment, so long as they do not discriminate against union or other protected concerted communications. However, an employer may be required to allow employee access to the employer’s email where the use of employer-provided email is the only reasonable means for employees to communicate with one another on non-working time during the workday. This rule does not require employers to provide email to all employees, nor does it require employers to allow access to the email by non-employees.

Prohibited practices for employers

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.

  1. interference, restraint or coercion of employees
  2. domination or interference in the formation or administration of a labor organization or contribution of financial or other support to it
  3. discrimination against an employee in order to discourage or encourage membership in, or activity on behalf of, a union
  4. discrimination against an employee for participation in NLRB proceedings
  5. refusing to bargain in good faith with the employees’ chosen representative.

Interference, restraint or coercion of employees

The four basic types of illegal activity covered by this section of the act are:

  1. threats
  2. interrogation
  3. promises
  4. spying.

The acronym “TIPS” is often used as a shorthand reference for the unfair labor practices (ULPs) prohibited under the NLRA.

The conduct described herein is unlawful no matter when or where it occurs. Thus, regardless of whether the acts take place away from work, like in a social setting or even on social media, a finding of illegality can and usually does, result.


Any threat by an employer or its agent to take action against an employee because of his union or other protected concerted activity is unlawful. Again, concerted activity is employee conduct or 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 union or other protected concerted activity.


The second element of the “TIPS“ acronym is interrogation. It is unlawful to interrogate or question your 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, meeting with union organizers, attending union meetings, or otherwise engaging in union activity. It is also unlawful to ask employees questions concerning what 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 (wearing pro-buttons, caps or T-shirts at work, for instance), 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.


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. For instance, an employer is prohibited from photographing employees engaged in demonstrations “to ensure participants are acting in a safe manner.” Moreover, it is unlawful to make statements which 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. Recent cases of surveillance have involved Facebook. It is unlawful surveillance for an employer to search employee social media accounts, even if open to the general public, unless the employer has a practice of monitoring posts about the company.

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 which “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 one of the following apply:

  • 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, such as safety committees, which have been used by some large corporations to handle a variety of employee disputes. The NLRB defines a dominated group as one that is, by virtue of the employer’s specific acts of creating the organization itself, determines its structure and function. The board held that such committees were in violation of the act because they were effectively labor organizations. The board ordered the corporation (Electromation) to disband the employee committee immediately. However, the board has established “safe havens” for lawful employee committees. Committees that are, in effect, brainstorming sessions are not unlawful, provided that 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 nonunion employees. Thus, an employer may not discharge, demote, transfer or in any manner punish an employee because of his union beliefs, support or activity. The key factor is the motivation of the employer. Under the “Wright Line” analysis, the NLRB general counsel must first show, by a preponderance of evidence that the protected activity was a motivating factor in the employer’s adverse action against the employee. If established, the burden shifts to the employer to show that it would have taken the same action even in the absence of the protected activity. If the employer demonstrates a nondiscriminatory reason for the adverse action, the burden shifts back to the NLRB general counsel to establish that the employer’s reason is pretextual. The standard for union discrimination is similar to the McDonnel Douglas burden shifting analysis for other types of employment discrimination claims.

The act does not compel an employer to treat pro-union employees better than nonunion employees. It merely requires that an employer does not discriminate against employees because of their union feelings or activity. As long as similarly situated employees are treated substantially equally – regardless of union preference – there should not be a violation of this provision.

Discrimination against an employee for participation in NLRB proceedings

The act also prohibits an employer from retaliating against employees for participating in board processes (investigations, hearings, trials, elections, etc.). It is unlawful to discipline employees because they gave testimony in a board hearing, acted as a union observer in an election or talked to a board 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 that the union needs to bargain intelligently. Failure to provide such relevant information is generally a violation of the NLRA. The duty to bargain does not extend to a group of employees or a union, unless there has been a formal designation of an exclusive representative.

Prohibited practices for labor organizations

In addition to the restrictions placed on employers, the NLRA also prohibits labor organizations 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.

In addition, it is unlawful for a union to engage in picketing for the purpose of recognition if any one of the following apply:

  • 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 12 months.
  • No election petition is filed within 30 days of the commencement of the picketing.

On one hand, 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. On the other hand, “informational picketing,” with the purpose of informing the public at large of a fact about the employer (for instance, Wal-Mart uses nonunion labor), is protected free speech and, if conducted on public property (such as a sidewalk), may continue indefinitely.

Processing unfair labor practice charges

Once an employee, a labor organization, or employer has filed an unfair labor practice charge with 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 facially appears to have merit, the investigator will contact the “charged party” and request a position statement and may request affidavits from witnesses associated with the charged party. Many employers choose to have their attorneys write the position statement and be present for the affidavits. If the regional director determines there is merit to the charge, the board representative will attempt to get the parties to settle the case without the issuance of a formal complaint. If an employer receives notice that a charge is filed against it, 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 that the case has no merit, the charge will be dismissed. The charging party may appeal the regional office’s decision to dismiss a complaint. If the NLRB regional director feels that there is merit to a charge and settlement negotiations were unfruitful, a complaint will be issued, and a date will be set for a formal hearing.

In an unfair labor practice case, there is generally a period of time (usually several months) 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. The ALJ’s decision can be appealed to the NLRB. If the case is not appealed to the board in Washington D.C., 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. Massachusetts's employers may appeal a board decision to the First Circuit Court of Appeals, located in1 Courthouse Way, Boston, MA 02210, or to the District of Columbia Circuit 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.

Union representation elections

The NLRA sets out few details regarding the election process. However, the NLRB and the federal courts have developed an elaborate process in which employees have the opportunity to cast an informed vote in a secret ballot election that determines a union’s representation status.

Triggering the election

All elections under the NLRA must be preceded by the filing of a petition with the appropriate regional office of the NLRB or by electronically filing a petition with the NLRB. The appropriate office for filing is usually dictated by the state in which the employer is located. Election petitions in Massachusetts may be filed with the subregional office of Region 01. The NLRB requires that any petition filed by a union or individual be supported by a showing of interest through signed and dated authorization cards that must be simultaneously filed with the petition.

The NLRB has stated that in the absence of special factors, an election would serve no purpose unless the union has demonstrated support from at least 30% of the employees in an appropriate bargaining unit. A pre-election hearing may be held to determine if a question of representation exists. A bargaining unit’s appropriateness may be determined in a post-election hearing conducted by the NLRB or by agreement of the parties, but will not be determined in a pre-election hearing.

The NLRA gives the NLRB broad discretion in determining whether bargaining units are appropriate. However, the NLRB cannot certify a:

  • bargaining unit that includes both professional and non-professional employees, unless a majority of the professionals chooses to be part of that mixed unit
  • bargaining unit that includes security guard employees with non-guard employees
  • union as the representative of a guard bargaining unit if it is affiliated with a union that represents non-guard employees
  • bargaining unit that includes individuals who are not employees under the NLRA, including:
    • supervisors
    • independent contractors
    • agricultural workers
    • employees of rail and air carriers and certain enterprises owned or under the control of these carriers, who are covered by the RLA.

As a matter of policy, the NLRB excludes from bargaining units:

  • confidential employees, who assist persons who determine management policies for labor relations
  • managerial employees, who exercise discretion in making business operations decisions for management.

The NLRB has also established rules for appropriate bargaining units in acute care healthcare facilities, including eight prescribed appropriate bargaining units.

Approximately 90% of the elections held by the NLRB are conducted under a stipulated or consent election agreement. In a stipulated or consent election agreement, an employer and union agree to waive the pre-election hearing, also called the representation hearing. The parties may set an election place and date by mutual agreement; otherwise, the NLRB’s Regional Office sets each by order. The Board also has an infrequently used full-consent election agreement, where an employer and union agree to permit the Regional Director of the nearest NLRB Regional Office to make a final decision on all pre- and post-election disputes without a hearing.

Within two business days after an NLRB Regional Director directs an election or approves an election agreement, an employer must electronically transmit (so that it is received within two business days) a list of eligible voters to the NLRB Regional Director and the other parties containing:

  • names
  • home addresses
  • personal email addresses (if the employer has them)
  • personal phone numbers (if the employer has them)
  • shifts
  • job classifications
  • work locations

This list must be alphabetized and in an electronic format approved by the NLRB’s General Counsel (unless the employer certifies that it does not possess that capacity).

The date of the election is set for the earliest date practicable, normally at least 10 days after the date the list of eligible voters’ names and addresses is provided by the employer. At least three full working days before 12:01 a.m. on the date of the election, the employer must post copies of the Notice of Election in conspicuous places and distribute it electronically to all eligible voters, if the employer customarily communicates with employees in the unit electronically.

Campaign rules

The campaign leading up to an election and the conduct of the election itself are carefully regulated by the NLRB, which requires that “laboratory conditions” prevail. For example, the following employer conduct is prohibited:

  • making promises of benefits or threats of harm
  • implying that selection of the union in the election would be futile
  • surveilling organizing activity or creating the impression of such surveillance
  • conducting campaign meetings within 24 hours of the election at which employee attendance is mandatory
  • campaigning in the polling area
  • misusing or altering sample ballots in such a way as to compromise the NLRB’s neutrality.

Election day

The polling is conducted and supervised by an NLRB agent. On election day, employees vote by secret ballot either for or against union representation. The ballots ask: “Do you wish to be represented by [the union] for purposes of collective bargaining?”

A Yes vote is a vote for union representation; a No vote is a vote against union representation. If more than one union is on the ballot, employees also can vote for Neither or No Union.

To win, the union needs a majority of all votes counted, not a majority of those eligible to vote. In the event of a tie, there is no union representation.

Post-election considerations

Within five business days after the tally of ballots has been prepared and served on the employer and the union (generally the date of the election), the losing party can file objections concerning conduct that may have affected the election results. The party must simultaneously file evidence in support of the objections (offers of proof). Objections, but not offers of proof, must also be served by the objecting party on all other parties.

Objections must pertain either to the conduct of the election or conduct by one of the parties affecting the results of the election.

Once the objections are resolved through NLRB processes, if a union wins the election, it is certified as the exclusive representative for bargaining for all of the employees in the appropriate unit. If the union is certified, the NLRB will refuse to conduct another election for a period of one year from the date of certification

Voluntary recognition

While not common, if a union obtains signed authorization cards from a majority of employees in an appropriate bargaining unit, the employer may recognize the union as the exclusive representative of the employees without an election. Where an employer recognizes the union without an election, the NLRB does not issue a certification and there is no one-year certification bar. However, in the case of voluntary recognition, the NLRB has created a recognition bar to rival union petitions or decertification petitions to permit the parties to negotiate for a “reasonable period of time”

An employer can reject a union’s demand for recognition even if the union has signed authorization cards from a majority of the employees in the bargaining unit. If the employer rejects the union’s demand for recognition, the union’s only alternative to resolve the issue of representation is to file an election petition with the NLRB.

Collective bargaining

A collective bargaining agreement (CBA) is the labor contract between the employer and the union. The NLRA requires that the parties engage in a good-faith effort to reach a contract (also called the duty to bargain). However, the NLRA does not require parties to reach agreement on a CBA or dictate the terms of a CBA.

The key NLRA provisions that affect the bargaining relationship are:

  • section 8(a)(5), which compels an employer to bargain in good faith
  • section 8(b)(3), which sets out the union’s reciprocal duty to bargain in good faith
  • section 8(d), which defines good faith in the collective bargaining context.

Bargaining in good faith generally requires bargaining parties to “meet and confer” and negotiate with the goal of reaching an agreement. Bad faith bargaining violates the NLRA. Bad faith is judged from all of the circumstances surrounding the bargaining activity, including the parties’ conduct away from the bargaining table. Examples of failure to bargain in good faith, or bad faith bargaining, include:

  • bargaining directly with employees
  • refusing to sign a written agreement reached between the parties through collective bargaining
  • refusing to meet at reasonable times
  • refusing to schedule sufficient bargaining sessions
  • bargaining without intent to reach agreement (also known as surface bargaining).

When there are irreconcilable differences between the employer’s and the union’s positions, despite good-faith bargaining, there may be a lawful bargaining impasse. Impasse means both the employer and the union have presented their final contract proposals and are unwilling to make further concessions. If the parties reach an impasse, the employer may implement its final offer concerning employees’ wages, hours and working conditions without the union’s agreement.

Under the NLRA, subjects for collective bargaining are grouped into three categories:

  1. illegal subjects, which are contract provisions that would violate the NLRA or other laws, such as laws against discrimination
  2. permissive subjects, such as issues affecting supervisors or retirees
  3. mandatory subjects, including wages, benefits, and all terms and conditions of employment for bargaining unit employees.

Permissive subjects may be discussed but neither party must bargain over them. Mandatory subjects may be raised by either party, and both parties must bargain over them. It is an automatic unfair labor practice (ULP) to bargain over an illegal subject.

Unions and employers have an obligation to provide each other with information relevant to the administration and negotiation of their contract. These requests for information, most often related to wages, hours and terms and conditions of employment for unit employees, must be made in good faith and responded to with reasonably diligent efforts.

The decertification process

Decertification is the process by which a union loses its right to continue to represent the bargaining unit. After a union has been certified as the bargaining representative for at least one year, employees may file a decertification petition with the NLRB with evidence demonstrating that 30% or more of the employees in the unionized group support decertification.

The NLRB may dismiss decertification petitions in various circumstances, including where:

  • a CBA is in effect – absent special circumstances –(this so-called contract bar rule is intended to ensure stability during the life of a CBA).
  • a decertification petition was instigated, circulated or supported by an employer or its supervisors.

Unfair labor practices

The NLRA provides certain rules governing labor relations regardless of whether:

  • an employer’s workforce is represented by a union
  • an employer and union have negotiated a collective bargaining agreement (CBA).

The NLRA forbids employers from certain practices including interfering with, restraining or coercing employees in the exercise of rights relating to:

  • organizing, forming, joining or assisting a labor organization for collective bargaining purposes
  • engaging in protected concerted activities
  • refraining from any protected activity.

The NLRA’s mandates also apply to union conduct. It is an unfair labor practice (ULP) for a labor organization or its agents “to restrain or coerce employees in the exercise of the rights guaranteed” by the NLRA.

The NLRB investigates ULP allegations and holds hearings to determine whether a ULP has occurred. After a hearing, the NLRB has authority to order an employer or a union to both:

  • cease and desist the ULP
  • provide other remedies, including reinstatement and back pay to any employee whose employment is terminated in violation of the NLRA.

Economic weapons

Employees’ right to strike and employers’ rights to hire replacements or lock out the workforce are considered economic weapons that may be used by either party for practical business reasons or to gain a tactical advantage in collective bargaining or employee relations.


Employees have a general right under the NLRA to engage in protected activity in the form of strikes. It is common, however, for CBAs to contain no-strike provisions. In addition, there are circumstances under which striking employees may be subject to discipline or discharge, including:

  • employees who engage in a strike prohibited by contract or statute
  • employees who engage in serious misconduct while striking, including:
    • violence
    • threats of violence
    • prolonged blocking of entrances or exits.

Certain kinds of strikes are not protected under the NLRA. As a result, employees may be disciplined or discharged for engaging in such conduct. Unprotected strikes include:

  • partial strikes, where employees perform only some of their duties
  • sit-down strikes, where employees occupy a workplace but refuse to work
  • intermittent strikes, where employees engage in a series of short strikes.

Employers may continue operations during a strike and have a few options to do so. They may use supervisory employees, other existing employees who choose to cross the picket line or temporary or permanent replacements. Employers may discipline supervisors and managers who honor the picket line, but may not discipline non-management sympathy strikers or employees who are not in the bargaining unit but still choose to honor the picket line.


Picketing generally consists of walking or marching with signs at an employer’s premises in protest of the employer’s actions or to protest other labor issues. Like striking, picketing is generally considered protected activity under the NLRA and is lawful unless it violates a contractual provision or statute or involves violence. Certain state laws prohibit a union and its members from engaging in picketing activities that involve violence or threats of violence or prevent public access to an employer’s facility. If an employer can demonstrate a pattern of unlawful strike conduct, it may be able to obtain a temporary restraining order or injunction against the unlawful picketing activity.

A union can picket for various reasons, including:

  • recognitional picketing, when a union pickets an employer to gain the employer’s recognition of the union as a bargaining unit representative
  • organizational picketing, when a union pickets an employer in an effort to organize the employer’s employees.
  • picketing in support of a strike or in the absence of a CBA
  • picketing to protest an employer’s nonunion status.

A union may not engage in either recognitional or organizational picketing of an employer that has already recognized another union for one year following a representation election. In addition, a union may not picket a non-represented employer for more than 30 days without filing an election petition. Picketing to protest an employer’s nonunion status can continue indefinitely provided that the picketers do not induce employees to refrain from performing services for the employer.


A lockout is an employer-imposed work stoppage to prevent employees from working. Lockouts are generally lawful if not motivated by antiunion animus, although most CBAs prohibit lockouts during the term of an agreement. Where not prohibited by contract, an employer may lock out employees to exert economic pressure on a union in support of the employer’s legitimate bargaining position during contract negotiations or as a preemptive move in advance of a strike. An employer may hire temporary, not permanent, replacement workers to continue business operations during a lockout. Employees must be reinstated once the lockout ends.

Where to go for more information

It is important for employers to consult with experienced traditional labor counsel on issues related to the NLRA. Similar to workers’ compensation and ERISA, traditional labor law is significantly different from general employment law and employers are wise to contact an expert in this practice area. Employers may also access manuals and rules posted on the National Labor Relations Board website at:

or by contacting the sub-regional office at:

NLRB Subregional Office
310 West Wisconsin Avenue, Suite 700W
Milwaukee, WI 53203-2211
Phone: (414) 297-3861
Fax: (414) 297-3880