3.1 National Labor Relations Act

The National Labor Relations Act, passed in 1935, is a cornerstone of U.S. labor law. It protects workers' rights to unionize, engage in collective bargaining, and take part in concerted activities. The Act also established the National Labor Relations Board to enforce these rights.

The NLRA aims to balance power between employers and employees. It defines unfair labor practices, outlines union organizing procedures, and sets rules for collective bargaining. Despite declining union membership, the NLRA remains crucial in shaping modern workplace relationships and labor disputes.

Overview of National Labor Relations Act

• Passed in 1935, the National Labor Relations Act (NLRA) is a foundational U.S. labor law that governs the relationships between unions, employees, and employers 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) as an independent federal agency to enforce the provisions of the NLRA and oversee union elections and labor disputes

Purpose of NLRA

Protection of employee rights

Top images from around the web for Protection of employee rights

• 

  File:LABOR DAY 1942 - NARA - 535654.jpg - Wikimedia Commons View original

  Is this image relevant?

• 

  The Labor Relations Process | OpenStax Intro to Business View original

  Is this image relevant?

• 

  National_Labor_Relations_Board_logo_-_color8 | Paul Swansen | Flickr View original

  Is this image relevant?

• 

  File:LABOR DAY 1942 - NARA - 535654.jpg - Wikimedia Commons View original

  Is this image relevant?

• 

  The Labor Relations Process | OpenStax Intro to Business View original

  Is this image relevant?

1 of 3

Top images from around the web for Protection of employee rights

• 

  File:LABOR DAY 1942 - NARA - 535654.jpg - Wikimedia Commons View original

  Is this image relevant?

• 

  The Labor Relations Process | OpenStax Intro to Business View original

  Is this image relevant?

• 

  National_Labor_Relations_Board_logo_-_color8 | Paul Swansen | Flickr View original

  Is this image relevant?

• 

  File:LABOR DAY 1942 - NARA - 535654.jpg - Wikimedia Commons View original

  Is this image relevant?

• 

  The Labor Relations Process | OpenStax Intro to Business View original

  Is this image relevant?

1 of 3

• Guarantees employees the right to form, join, or assist labor organizations and to engage in concerted activities for collective bargaining or other mutual aid or protection
• Prohibits employers from interfering with, restraining, or coercing employees in the exercise of their Section 7 rights
• Safeguards employees against retaliation for engaging in protected union activities

Encouragement of collective bargaining

• Promotes the practice of collective bargaining between employers and unions as the preferred means of establishing terms and conditions of employment
• Requires employers to bargain in good faith with the union chosen by a majority of employees in an appropriate bargaining unit
• Aims to level the playing field between labor and management and foster industrial peace through negotiated agreements

Curtailment of labor & management practices

• Defines and prohibits unfair labor practices by both unions and employers that undermine employee rights or the collective bargaining process
• Bans "company unions" dominated or controlled by the employer as a way to prevent genuine employee representation
• Outlaws discrimination against employees for union membership or activities

Key provisions of NLRA

Section 7 rights

• Establishes the core rights of employees under the NLRA to self-organization, collective bargaining, and engaging in concerted activities for mutual aid or protection
• Protects a broad range of employee conduct, including discussing wages and working conditions, circulating petitions, wearing union insignia, and participating in strikes or picketing
• Applies to most private sector employees, with limited exceptions (agricultural workers, independent contractors, supervisors)

Unfair labor practices

• Defines actions by employers or unions that violate the NLRA, such as:
  • Employer discrimination, threats, or retaliation based on union activity
  • Employer domination or support of a labor organization
  • Refusal to bargain collectively with a certified union
  • Union coercion of employees or secondary boycotts
• Allows the NLRB to investigate and remedy unfair labor practices through cease-and-desist orders, reinstatement of employees, and back pay awards

Exclusive representation

• Provides that a union chosen by a majority of employees in an appropriate bargaining unit shall be the exclusive representative of all employees in that unit for collective bargaining
• Requires the employer to bargain with the certified union and prohibits direct dealing with individual employees over terms and conditions of employment
• Allows employees to file a decertification petition to remove a union that has lost majority support

Role of National Labor Relations Board

Structure & composition

• Consists of a five-member Board appointed by the President and confirmed by the Senate, with staggered five-year terms
• Includes a General Counsel, also appointed by the President, who is responsible for investigating and prosecuting unfair labor practice cases
• Maintains regional offices across the country to handle representation elections, unfair labor practice charges, and other cases

Enforcement powers

• Empowered to investigate and remedy unfair labor practices by employers or unions
• Can issue complaints, hold hearings, and make findings of fact and conclusions of law
• Has authority to order a wide range of remedies, including cease-and-desist orders, posting of notices, reinstatement of employees, and back pay awards
• Can seek enforcement of its orders in federal appeals courts

Jurisdiction over labor disputes

• Covers most private sector employers involved in interstate commerce, with limited exceptions (airlines, railroads, agricultural enterprises)
• Has primary jurisdiction over representation elections and unfair labor practice cases, preempting state or local regulation
• Handles disputes over bargaining unit composition, voter eligibility, and election conduct
• Decides appeals from decisions by NLRB regional directors or administrative law judges

Union organizing under NLRA

Petition for election

• A union, employee, or employer may file a petition with the NLRB to hold a secret ballot election to determine if employees wish to be represented by a union
• The petition must be supported by a "showing of interest" from at least 30% of employees in the proposed bargaining unit, typically through signed authorization cards
• The employer can either consent to an election or challenge the appropriateness of the bargaining unit or other issues at a hearing before the NLRB

Election procedures

• The NLRB conducts a secret ballot election, usually at the workplace, to determine if a majority of employees in the bargaining unit wish to be represented by the union
• The employer and union can observe the election and challenge the eligibility of individual voters, with the NLRB resolving any disputes
• If the union receives a majority of votes cast, it is certified as the exclusive bargaining representative of the unit employees
• If the union loses, it cannot file a new petition for one year

Bargaining unit determination

• The NLRB determines the appropriate bargaining unit for an election based on a "community of interest" among the employees, considering factors such as:
  • Similarity of job duties, skills, and working conditions
  • Organizational structure and supervision
  • Employee interchange and contact
  • Bargaining history and extent of union organization
• The bargaining unit should be the largest grouping of employees who share a community of interest, avoiding unnecessary fragmentation
• The NLRB has established presumptively appropriate units for certain industries (acute care hospitals)

Collective bargaining process

Duty to bargain in good faith

• The NLRA requires both the employer and the union to bargain in good faith over mandatory subjects of bargaining, such as wages, hours, and other terms and conditions of employment
• Good faith bargaining involves meeting at reasonable times, exchanging relevant information, making proposals and counterproposals, and genuinely trying to reach an agreement
• Surface bargaining or going through the motions without a sincere desire to reach an agreement violates the duty to bargain in good faith

Mandatory vs permissive subjects

• Mandatory subjects of bargaining are those that directly relate to wages, hours, and working conditions, such as pay rates, benefits, work schedules, and seniority provisions
• Permissive subjects are those that do not directly relate to terms and conditions of employment, such as the basic scope of the enterprise or the union's internal affairs
• The parties are required to bargain over mandatory subjects, but can choose whether to bargain over permissive subjects
• Insistence to impasse on a permissive subject is an unfair labor practice

Impasse resolution

• When the parties have bargained in good faith but are deadlocked on one or more mandatory subjects, they have reached a legal impasse
• At impasse, the employer can unilaterally implement its last offer on mandatory subjects, and the union can call a strike or take other economic action
• The parties can use economic pressure or third-party assistance (mediation, fact-finding) to try to break the impasse and reach an agreement
• The NLRB can determine whether a genuine impasse exists based on the bargaining history, the good faith of the parties, and the importance of the issues

Strikes & lockouts

Economic vs unfair labor practice strikes

• An economic strike is one over wages, hours, or working conditions, while an unfair labor practice strike protests an employer's unfair labor practices
• Strikers in an economic strike can be permanently replaced (but not discharged), while unfair labor practice strikers are entitled to reinstatement upon an unconditional offer to return to work
• Employees in both types of strikes retain their status as employees and are protected against retaliation or discrimination

Replacement of striking workers

• In an economic strike, the employer can hire permanent replacements to continue operations, but cannot discriminate against strikers who offer to return to work
• Permanent replacements are entitled to keep their positions even after the strike ends, but the employer must place returning strikers on a preferential rehire list
• In an unfair labor practice strike, the employer cannot hire permanent replacements and must reinstate strikers upon an unconditional offer to return to work

Lockout rules & restrictions

• A lockout is a defensive action by an employer to shut down operations and prevent employees from working until a contract is reached
• Employers can use a lockout in response to a union's "inside game" tactics (work slowdowns, partial strikes) or to pressure the union to accept its bargaining demands
• Offensive lockouts are permitted if the employer has bargained in good faith to impasse and is not motivated by anti-union animus
• Hiring temporary replacements during a lockout is allowed, but the employer must reinstate locked-out employees upon a request to return to work

Amendments & modifications to NLRA

Taft-Hartley Act

• Passed in 1947, the Taft-Hartley Act amended the NLRA to add union unfair labor practices and restrict certain union tactics
• Prohibited jurisdictional strikes, secondary boycotts, and closed shop agreements requiring union membership as a condition of employment
• Allowed states to pass "right-to-work" laws banning union security agreements requiring payment of union dues
• Added emergency procedures for strikes that imperil national health or safety

Landrum-Griffin Act

• Enacted in 1959, the Landrum-Griffin Act (also known as the Labor-Management Reporting and Disclosure Act) regulated internal union affairs and added reporting requirements for unions and employers
• Established a "bill of rights" for union members, guaranteeing equal voting rights, freedom of speech and assembly, and due process in discipline cases
• Required unions to hold secret ballot elections for officers, file annual financial reports, and disclose potential conflicts of interest
• Imposed limits on picketing for recognition or organizational purposes

Other legislative changes

• The Health Care Amendments of 1974 extended NLRA coverage to employees of non-profit hospitals and established special procedures for bargaining unit determinations and strike notices in the health care industry
• The NLRB has used its rulemaking authority to modify its procedures for representation elections, including the 2014 "ambush election" rule streamlining the election process and the 2019 rule modifying the ambush election regulations
• Congressional riders and executive orders have limited the NLRB's authority on specific issues, such as prohibiting the use of funds to certify graduate student unions or requiring posting of notices informing employees of their NLRA rights

Impact of NLRA on labor relations

Union membership trends

• Union membership in the U.S. has declined significantly since the peak in the 1950s, falling from about 35% of the workforce to 10.3% in 2021
• Factors contributing to the decline include deindustrialization, globalization, technological change, and increased employer resistance to unionization
• The NLRA's weaknesses, such as the lack of strong penalties for violations and the ease of replacing strikers, have made it harder for unions to organize and maintain membership

Balance of power in negotiations

• The NLRA's protection of concerted activity and promotion of collective bargaining helped level the playing field between workers and employers and increase union bargaining power in the mid-20th century
• The Taft-Hartley Act and subsequent amendments, along with economic and political changes, have shifted the balance of power towards employers in many industries
• The threat of permanent replacement in economic strikes, the rise of "right-to-work" laws, and the decline of pattern bargaining have weakened unions' ability to secure favorable contracts

Legacy & ongoing relevance

• The NLRA established a framework for union organizing and collective bargaining that remains the foundation of U.S. labor law in the private sector
• The Act's core provisions protecting concerted activity and prohibiting discrimination continue to shape labor-management relations and provide a vehicle for worker voice on the job
• Debates over labor law reform, such as the proposed Protecting the Right to Organize (PRO) Act, reflect ongoing disagreements over the NLRA's effectiveness and the need for change
• The NLRB's decisions on issues such as joint employment, employee misclassification, and protected concerted activity on social media continue to adapt the NLRA to changing workplace realities