The NLRB is an independent federal agency enforcing the National Labor Relations Act, which guarantees the right of most private sector employees to organize, to engage in group efforts to improve their wages and working conditions, to determine whether to have unions as their bargaining representative, to engage in group efforts to improve their wages and working conditions, to determine whether to have unions as their bargaining representative, to engage in collective bargaining, and to refrain from any of these activities. It acts to prevent and remedy unfair labor practices committed by private sector employers and unions.
Congress enacted the National Labor Relations Act (“NLRA”) in 1935 to protect the rights of employees and employers, to encourage collective bargaining, and to curtail certain private sector labor and management practices, which can harm the general welfare of workers, businesses and the U.S. economy.
Employees covered by the National Labor Relations Act are afforded certain rights to join together to improve their wages and working conditions, with or without a union.
Employees have the right to attempt to form a union where none currently exists, or to decertify a union that has lost the support of employees.
Examples of employee rights include:
- Forming, or attempting to form, a union in your workplace;
- Joining a union whether the union is recognized by your employer or not;
- Assisting a union in organizing your fellow employees;
- Refusing to do any or all these things.
- To be fairly represented by a union
Activity Outside a Union
Employees who are not represented by a union also have rights under the NLRA. Specifically, the National Labor Relations Board protects the rights of employees to engage in “concerted activity”, which is when two or more employees take action for their mutual aid or protection regarding terms and conditions of employment. A single employee may also engage in protected concerted activity if he or she is acting on the authority of other employees, bringing group complaints to the employer’s attention, trying to include group action, or seeking to prepare for group action.
A few examples of protected concerted activities are:
- Two or more employees addressing their employer about improving their pay.
- Two or more employees discussing work-related issues beyond pay, such as safety concerns, with each other.
- An employee speaking to an employer on behalf of one or more co-workers about improving workplace conditions.
More information, including descriptions of actual concerted activity cases, is available on the protected concerted activity page.
Who is Covered?
Most employees in the private sector are covered by the NLRA. However, the Act specifically excludes individuals who are:
- Employed by Federal, State or local government
- Employed as agricultural laborers
- Employed in the domestic service of any person or family in a home
- Employed in by a parent or spouse
- Employed as an independent contractor
- Employed as a supervisor (supervisors who have been discriminated against for refusing to violate the NLRA may be covered)
- Employed by an employer subject to the Railway Labor Act, such as railroads and airlines
- Employed by any other person who is not an employer as defined in the NLRA
Employer/Union Rights and Obligations
The National Labor Relations Act forbids employers from 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, or from working together to improve terms and conditions of employment, or refraining from any such activity. Similarly, labor organizations may not restrain or coerce employees in the exercise of these rights.
Examples of employer conduct that violates the law:
- Threatening employees with loss of jobs or benefits if they join or vote for a union or engage in protected concerted activity.
- Threatening to close the plant if employees select a union to represent them.
- Questioning employees about their union sympathies or activities in circumstances that tend to interfere with, restrain or coerce employees in the exercise of their rights under the Act.
- Promising benefits to employees to discourage their union support.
- Transferring, laying off, terminating, assigning employees more difficult work tasks, or otherwise punishing employees because they engaged in union or protected concerted activity.
- Transferring, laying off, terminating, assigning employees more difficult work tasks, or otherwise punishing employees because they filed unfair labor practice charges or participated in an investigation conducted by the NLRB.
Examples of labor organization conduct that violates the law:
- Threats to employees that they will lose their jobs unless they support the union.
- Seeking the suspension, discharge or other punishment of an employee for not being a union member even if the employee has paid or offered to pay a lawful initiation fee and periodic fees thereafter.
- Refusing to process a grievance because an employee has criticized union officials or because an employee is not a member of the union in states where union security clauses are not permitted.
- Fining employees who have validly resigned from the union for engaging in protected concerted activities following their resignation or for crossing an unlawful picket line.
- Engaging in picket line misconduct, such as threatening, assaulting, or barring non-strikers from the employer’s premises.
- Striking over issues unrelated to employment terms and conditions or coercively enmeshing neutrals into a labor dispute.
What rules govern collective bargaining for a contract?
After employees choose a union as a bargaining representative, the employer and the union are required to meet at a reasonable times to bargain in good faith about wages, hours, vacation time, insurance, safety practices and other mandatory subjects. Some managerial decisions such as subcontracting, relocating, and other operational changes may not be mandatory subjects of bargaining, but the employer must bargain about the decision’s effects on unit employees. It is an unfair labor practice for either party to refuse to bargain collectively with the other, but parties ar enot compelled to reach agreement or make concessions. If after sufficient good faith efforts, no agreement can be reached, the employer may declare impasse, and then implement the last offer presented to the union. However, the union may disagree that true impasse has been based and file a charge of an unfair labor practice for failing to bargain in good faith. The NLRB will determine whether true impasse has been reached based on the history of negotiations and the understandings of both parties. If the Agency finds that impasse was not reached, the employer will be asked to return to the bargaining table. In an extreme case, the NLRB may seek a federal court order to force the employer to bargain. The parties’ obligations do not end when the contract expires. They must bargain in good faith for a successor contract, or for the termination of the agreement, while terms of the expired contract continue. A party wishing to end the contract must notify the other party in writing 60 days before the expiration date, or 60 days before the proposed termination. The party must offer to meet and confer with the other party and notify the Federal Mediation and Conciliation Service of the existence of a dispute if no agreement has been reached by that time.
How is “good faith” bargaining determined?
There are hundreds, perhaps thousands, of NLRB cases dealing with the issue of the duty to bargain in good faith. In determining whether a party is bargaining in good faith, the Board will look at the totality of the circumstances. The duty to bargaining in good faith is an obligation to participate actively in the deliberation so as to indicate a present intention to find a basis for agreement. This implies both an open mind and a sincere desire to reach an agreement as well as a sincere effort to reach a common ground. The additional requirement to bargain in “good faith” was incorporated to ensure that a party did not come to the bargaining table and simply go through the motions. There are objective criteria that the NLRB will review and intervals and whether the parties are honoring their obligation to bargain in good faith, such as whether the party is willing to meet at reasonable times and intervals and whether th party is represented by someone who has the authority to make decisions at the table. Conduct away from the bargaining table may also be relevant. For instance, if an Employer were to make a unilateral change in the terms and conditions of employees employment without bargaining, that would be an indication of bad faith.
What are the rules about union dues?
The amount of dues collected from employees represented by unions is subject to federal and state laws and court rulings. The NLRA allows employers and unions to enter into union-security agreements, which require all employees in a bargaining unit to become union members and begin paying union dues and fees within 30 days of being hired. Even under a security agreement, employees who object to full union membership may continue as ‘core’ members and pay only that share of dues used directly for representation, such as collective bargaining and contract administration. Known as objectors, they are no longer full members but are still protected by the union contract. Unions are obligated to tell all covered employees about this option, which was created by a Supreme Court ruling and is known as the Beck right. An employee may object to union membership on religious grounds, but in that case, must pay an amount equal to dues to a nonreligious charitable organization.
What about Right to Work States?
7 states have banned union-security agreements by passing so-called “right to work” laws, it is up to each employee at a workplace to decide whether or not to join the union and pay dues, even though all workers are protected by collective bargaining agreement negotiated by the union.
All information provided on this page is direct from the National Labor Relations Board website. For further information please visit their site provided HERE.