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Exclusive Bargaining Representatives National Labor Relations Act National Labor Relations Board Overly Broad Confidentiality Provisions Policies Against Union Insignia Practical Considerations for Employers Protected Activities Representation & Elections Process
Other Petitions & Elections Strikes and Picketing Unfair Labor Practices of Employers Unfair Labor Practices of Unions
Unfair Labor Practice Charges Union Organizing Tactics Unions Home HR Knowledge Central Home
Unfair Labor Practices by Employers
An employer, a union or an individual can file unfair labor practice charges with the Board’s regional office for the region in which the unfair labor practice has occurred. When an unfair labor practice charge is filed, the appropriate regional office conducts an investigation to determine whether there is reasonable cause to believe the NLRA has been violated. If the regional director determines that the charge lacks merit, it will be dismissed unless the charging party decides to withdraw the charge. A dismissal may be appealed to the General Counsel’s office in Washington, D.C. If the regional director finds reasonable cause to believe a violation of the NLRA was committed, the director will seek a voluntary settlement to remedy the alleged violations. If these settlement efforts fail, a formal complaint is issued and the case goes to hearing before an NLRB administrative law judge (ALJ). The ALJ issues a written decision, which may be appealed to the NLRB for a final agency determination. That final determination is subject to review in the federal circuit courts of appeals. Section 8(a) of the NLRA lists the unfair labor practices of employers and Section 8(b) lists those of labor organizations. Section 8(e) lists an unfair labor practice that can be committed only by an employer and a labor organization acting together. You can find all references to sections of the NLRA at 29 U.S.C. Section 158.
Overview
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Unfair Labor Practices of Employers: The unfair labor practices that may be attributable to employers generally prohibit conduct that interferes, restrains or coerces employees from engaging in any of the activities guaranteed by Section 7 of the NLRA. Section 8(a)(1) forbids an employer’s interference with the rights of employees to organize, to form, join or assist a labor organization, to bargain collectively, to engage in other concerted activities for mutual aid or protection or to refrain from any or all of these activities. Examples of Section 8(a)(1) violations include the following:
Because Section 8(a)(1) is a broad prohibition, employers may also violate this section whenever they commit any of the other employer unfair labor practices described below. This is called a “derivative violation” of Section 8(a)(1). Political Speech: Even though employee speech is generally not protected in private workplaces, the NLRA nevertheless may protect both union and non-union employees who speak out about employment issues.
Specifically, the NLRA protects employees from discipline if they have engaged in conduct relating to their wages, hours or working conditions. In addition, protection is extended to advocacy in which there is “direct nexus between the specific issue” being advocated and “a specifically identified employment concern of the participating employees.” So, for example, engaging in protests regarding minimum wage issues could be connected to the employee’s pay. In 2008, after a wave of unfair labor practice charges filed by employees who were disciplined for leaving work or for being absent to engage in political protests, the NLRB issued guidelines that explained when political activity is protected:
Retaliation for Filing Charges or Giving Testimony: Section 8(a)(4) of the NLRA makes it an unfair labor practice for an employer “to discharge or otherwise discriminate against an employee because he/she has filed charges or given testimony under [the] Act.” An employer violates the Act if the employer discharges, lays off or engages in other forms of discrimination in working conditions against employees who filed charges with the NLRB, supplied affidavits to NLRB investigators or testified at NLRB hearings. Violations of this section in most cases also constitute violations of Section 8(a)(3).
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Unlawful Employer Domination of or Illegal Interference With a Labor Organization: Section 8(a)(2) makes it unlawful for an employer “to dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it.”
This also makes it illegal for an employer to contribute money to a union or to give a union improper advantages denied to rival unions. A labor organization is considered dominated if an employer interfered with its formation and assisted and supported its operation and activities to such an extent that it must be looked upon as an employer creation instead of the true bargaining representative of the employees. Certain lesser kinds of employer assistance to a union may constitute unlawful “interference.” Employers cannot provide financial support to a union, either by direct payments or indirect financial aid. Permitting employees to confer with management and/or the union regarding grievances or other union business during working hours without loss of pay does not violate this prohibition. However, it is illegal to allow one of several unions seeking to represent employees to solicit on company premises during working hours and deny other unions the same privilege. When a union is found to be dominated by an employer, the Board will order the organization completely disbanded as a representative of employees. But if the organization is found only to have been supported by employer assistance amounting to less than domination, the Board usually orders an employer to stop such support and to withhold recognition from the organization until it has been certified by the Board as a bona fide representative of employees. It is also forbidden to recognize a union after an employer knows that a competing union filed a valid petition with the Board requesting a representation election.When rival unions compete to organize employees, an employer may not give the union that it favors privileges that are denied to the other union. However, when an employer and a union already have an established bargaining relationship, the employer must continue bargaining with the incumbent even though a rival union is attempting to organize the employees. In these circumstances, the rival’s filing of a petition does not prevent continued dealing between the employer and the incumbent unless the incumbent lost the support of a majority of the employees. Employer Unlawful Refusal to Bargain in Good Faith: Section 8(a)(5) of the NLRA makes it illegal for an employer to refuse to bargain in good faith about wages, rates of pay, hours of employment and other conditions of employment with any representative selected by a majority of the employees. A bargaining representative that seeks to enforce its right concerning an employer under this section must show that it has been designated by a majority of the employees, that the unit is appropriate, that there was a demand to bargain, and that the employer refused to do so. An employer that has objective reason to believe that a union lost favor with a majority of its employees can only test that loss of majority representative status by refusing to bargain with the union and forcing the union to file a refusal-to-bargain unfair labor practice charge. Alternatively, the employees can file their own petition for decertification if they believe the union no longer has majority status. An employer cannot lawfully withdraw recognition during the life of a collective bargaining agreement or the extension of a collective bargaining agreement, nor can it do so during the “certification year,” meaning the first year following the certification of a union’s new representative status. The Board has rejected a union’s unfair labor practice charge related to an employer’s withdrawal of recognition after it received a petition from a majority of its employees indicating they no longer wanted to have the union represent them shortly after the “certification year” expired. The Board found that although the employees’ signatures were gathered within the final hours of the certification year, the petition was not presented until after the close of the certification year, and the employer was within its rights to withdraw recognition. The Ninth Circuit Court of Appeals affirmed the Board’s decision.
An employer that believes it has objective evidence that a union has lost majority support — for example, due to a petition signed by a majority of employees — withdraws recognition at its peril. If the union contests the withdrawal of recognition in an unfair labor practice proceeding, the employer must prove that the union did, in fact, lose majority support at the time the employer withdrew recognition. If the employer fails to do so, the withdrawal of recognition will violate Section 8(a)(5). |
Discrimination to Encourage or Discourage Union Membership: Section 8(a)(3) of the NLRA makes it illegal to discriminate against employees with respect to “hire or tenure of employment or any term or condition of employment” to encourage or discourage membership in a labor organization. This section also prohibits discrimination because an employee refrained from taking part in such union or concerted activity. However,
Section 8(a)(3) provides that an employee may be terminated for failing to make certain lawfully required payments under a lawful union-security agreement. Employers may deduct these amounts from the wages of their employees and forward them to the union for each employee who voluntarily signed a dues “check-off” authorization. Such check-off authorizations may be made irrevocable for no more than one year. Employees may revoke check-off authorizations after a Board-conducted election in which the union loses its right to maintain a union-security agreement. If an employer disciplines an employee because the employee violated a work rule and engaged in protected union activity, the discipline is unlawful unless the employer can prove that the same discipline would have occurred even if the employee did not engage in the protected union activity. An employer engaged in good faith bargaining with a union may lock out the represented employees, sometimes even before impasse is reached in the negotiations, if it is done do so to further the employer’s position in bargaining. But a bargaining lockout may be illegal if the employer also unlawfully bargains in bad faith or completely refuses to bargain. It is also unlawful if the purpose of the lock out is to discourage employees in their union loyalties and activities. A lockout to defeat a union’s efforts to organize employees would violate the NLRA, as would the lockout of only those employees who are members of the union. On the other hand, lawful lockouts are those intended to prevent any unusual losses or safety hazards that would be caused by an anticipated “quickie” strike. Finally, a whipsaw strike against one employer engaged in multi-employer bargaining justifies a lockout by any of the other employers who are party to the bargaining. Examples of Section 8(a)(3) violations include the following:
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