The () is a cornerstone of U.S. labor law, protecting workers' rights to unionize and engage in . It establishes the to enforce these rights and address in the private sector.
The NLRA outlines key employee rights, including engaging in and . It also defines unfair labor practices for both employers and unions, regulates 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 () 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 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, )
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
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 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 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