8.1 National Labor Relations Act (NLRA)

The National Labor Relations Act (NLRA) is a cornerstone of U.S. labor law, protecting workers' rights to unionize and engage in collective bargaining. It establishes the National Labor Relations Board to enforce these rights and address unfair labor practices in the private sector.

The NLRA outlines key employee rights, including engaging in concerted activities and union membership. It also defines unfair labor practices for both employers and unions, regulates union representation elections, and governs the collective bargaining process between employers and certified unions.

Overview of NLRA

• Enacted in 1935, the National Labor Relations Act (NLRA) is the primary federal law governing labor relations in the private sector
• Establishes the rights of employees to organize, join unions, and engage in collective bargaining with their employers
• Creates the National Labor Relations Board (NLRB) to enforce the Act's provisions and investigate and remedy unfair labor practices

Rights of employees

Concerted activities

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• Employees have the right to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection
• Concerted activities include discussing wages, hours, and working conditions with coworkers, circulating petitions, and participating in strikes or picketing
• Employers are prohibited from interfering with, restraining, or coercing employees in the exercise of their rights to engage in concerted activities

Collective bargaining

• Employees have the right to bargain collectively with their employer through representatives of their own choosing
• Collective bargaining involves negotiating the terms and conditions of employment, such as wages, hours, benefits, and job security
• Employers are required to bargain in good faith with the chosen representative of the employees

Union membership

• Employees have the right to join or assist labor organizations, such as unions
• Employers cannot discriminate against employees based on their union membership or activities
• Employees also have the right to refrain from joining or assisting unions, and cannot be forced to join a union as a condition of employment (closed shop agreements are prohibited)

Unfair labor practices

Employer violations

• Interfering with, restraining, or coercing employees in the exercise of their rights under the NLRA (threatening or disciplining employees for union activities)
• Dominating or interfering with the formation or administration of a labor organization (creating a company-controlled union)
• Discriminating against employees to encourage or discourage union membership (firing or demoting employees for union activities)
• Retaliating against employees for filing charges or testifying under the NLRA (blacklisting employees who file complaints with the NLRB)
• Refusing to bargain collectively with the representative of the employees (engaging in surface bargaining or unilaterally changing terms of employment)

Union violations

• Restraining or coercing employees in the exercise of their rights under the NLRA (threatening employees who refuse to join the union)
• Causing or attempting to cause an employer to discriminate against an employee (pressuring the employer to fire non-union employees)
• Refusing to bargain collectively with the employer (failing to respond to the employer's bargaining requests or engaging in bad faith bargaining)
• Engaging in secondary boycotts (pressuring neutral employers to stop doing business with the primary employer involved in a labor dispute)
• Charging excessive or discriminatory membership fees (requiring new members to pay higher fees than existing members)

Union representation elections

Election petitions

• A union, employee, or employer can file a petition with the NLRB to hold a secret ballot election to determine if employees want union representation
• The petition must be supported by at least 30% of employees in the proposed bargaining unit (showing of interest)
• The NLRB investigates the petition to ensure it meets the requirements and that there are no existing labor contracts or recent elections that would bar a new election

Appropriate bargaining units

• The NLRB determines the appropriate bargaining unit for the election based on a community of interest among employees
• Factors considered include job duties, skills, working conditions, supervision, and bargaining history
• The bargaining unit should be composed of employees who share similar interests and can be effectively represented by a single union

Voting procedures

• The NLRB conducts a secret ballot election, typically on the employer's premises, to determine if employees want union representation
• Employees in the bargaining unit are eligible to vote, and the union must receive a majority of the votes cast to be certified as the exclusive bargaining representative
• The NLRB can set aside the election results if there is evidence of misconduct by the employer or union that interfered with the employees' free choice (captive audience meetings, threats, or promises)

Collective bargaining process

Duty to bargain in good faith

• Once a union is certified as the exclusive bargaining representative, the employer and union have a mutual obligation to bargain in good faith
• Good faith bargaining requires the parties to meet at reasonable times, discuss mandatory subjects of bargaining, and make a sincere effort to reach an agreement
• The parties are not required to make concessions or agree to any specific proposal, but they must engage in meaningful negotiations

Mandatory vs permissive subjects

• Mandatory subjects of bargaining include wages, hours, and other terms and conditions of employment that directly affect the employment relationship (health insurance, seniority, grievance procedures)
• Permissive subjects of bargaining are those that do not directly relate to the employment relationship and can be bargained over if both parties agree (union label on products, internal union affairs)
• The parties are not required to bargain over permissive subjects, and either party can refuse to discuss them without violating the duty to bargain in good faith

Impasse resolution

• If the parties reach an impasse in negotiations after bargaining in good faith, they can use economic weapons to pressure the other side to make concessions
• The employer can unilaterally implement its last offer, lock out employees, or hire permanent replacements for striking workers
• The union can call a strike, picket the employer, or engage in other concerted activities to pressure the employer to agree to its demands
• The parties can also use mediation or arbitration to resolve the impasse, either voluntarily or as required by their collective bargaining agreement

Strikes and lockouts

Economic strikes

• An economic strike is a work stoppage by employees to pressure the employer to agree to their demands in collective bargaining
• Economic strikers can be permanently replaced by the employer, but they are entitled to reinstatement when a position becomes available if they make an unconditional offer to return to work
• Employees who engage in an economic strike are not entitled to unemployment benefits, as the work stoppage is considered voluntary

Unfair labor practice strikes

• An unfair labor practice strike is a work stoppage by employees to protest an employer's unfair labor practices under the NLRA
• Unfair labor practice strikers cannot be permanently replaced and are entitled to immediate reinstatement upon making an unconditional offer to return to work
• Employees who engage in an unfair labor practice strike may be entitled to back pay and other remedies if the NLRB finds that the employer committed an unfair labor practice

Replacement workers

• During an economic strike, an employer can hire temporary or permanent replacement workers to continue operations
• Permanent replacements are entitled to keep their positions even after the strike ends, but the employer must place the returning strikers on a preferential hiring list
• During an unfair labor practice strike, an employer cannot hire permanent replacements and must reinstate the strikers upon their unconditional offer to return to work

NLRB enforcement

Unfair labor practice charges

• Employees, unions, or employers can file charges with the NLRB alleging that a party has engaged in an unfair labor practice
• The NLRB investigates the charges and, if it finds merit, issues a complaint and schedules a hearing before an administrative law judge
• The administrative law judge conducts a trial-like proceeding and issues a decision recommending whether the NLRB should find an unfair labor practice and order a remedy

Remedies for violations

• If the NLRB finds that a party has committed an unfair labor practice, it can order various remedies to effectuate the purposes of the NLRA
• Remedies may include cease and desist orders, posting of notices, reinstatement of discharged employees, back pay awards, and bargaining orders
• The NLRB can also seek temporary injunctions in federal court to prevent irreparable harm while the unfair labor practice case is pending

Judicial review of NLRB decisions

• Parties can appeal NLRB decisions to the federal courts of appeals, which have jurisdiction to enforce, modify, or set aside the NLRB's orders
• The courts apply a deferential standard of review, upholding the NLRB's findings of fact if they are supported by substantial evidence on the record as a whole
• The courts also give deference to the NLRB's interpretations of the NLRA, as long as they are rational and consistent with the Act's purposes
• The Supreme Court has the final say on the interpretation of the NLRA and can review decisions of the courts of appeals