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Take care of your people and protect your business

From an HR perspective, unions and labor practices might seem intimidating. If you are part of a unionized organization, your employees are planning to start a union or initiate collective bargaining, or you feel unsure what is considered an unfair labor practice, this is the article for you.

What Is the National Labor Relations Act of 1935?

In 1935, the National Labor Relations Act (NLRA), also known as the Wagner Act, was passed by Congress to protect workers’ rights of organization and collective bargaining. The NLRA details the rights of employees, unfair labor practices, how to prevent unfair labor practices, representation and elections, and how investigations are conducted.

The main purpose of the National Labor Relations Act is to provide employees the right to seek better working conditions and representation without the fear of retaliation. Regardless of whether a company is unionized or not, employees have the right to organize, collectively bargain, and engage in protected concerted activities. Concerted activities are those in which two or more employees come together to improve working conditions, pay, benefits, or other areas within a company. Activities are also considered concerted when one employee acts or speaks on the behalf of others after engaging with co-workers.

The National Labor Relations Board (NLRB)

To enforce the National Labor Relations Act, the National Labor Relations Board (NLRB) was established. This board serves as the federal agency for hearing and resolving labor disputes. In addition, the NLRB oversees employee union elections and determines whether or not a union can represent employees in their collective bargaining with an employer.

Unfair Labor Practices

Several unfair labor practices for both employers and labor organizations are defined and prohibited in the NLRA.

What Employers Cannot Do

  1. Control or interfere with the administration or creation of a labor organization. Employers cannot dominate a labor organization that has formed or interfere in any way with the creation of a labor organization. This includes providing any sort of financial support for the labor organization.
  2. Coerce, restrain, or interfere with employees’ rights to join or organize labor organizations and bargain collectively for working conditions and/or wages. Employers aren’t allowed to prevent employees from joining or organizing a labor organization.
  3. Refuse to bargain collectively with employee representatives. Employers must bargain in good faith with labor organizations.
  4. Discriminate against employees to discourage or encourage them to support a labor organization. Employers can’t use union status as a reason for hiring or not hiring an employee. Employers can’t force employees to join a labor organization as a condition of employment or retaliate against an employee for refusing to join a labor organization.
  5. Discriminate or retaliate against employees who file charges or give testimony. Employers can’t fire or retaliate against any employee who files charges or gives testimony on behalf of the labor organization.

What Labor Organizations Cannot Do

  1. Restrain or coerce employees to join the labor organization
  2. Restrain or coerce the employer in the employer’s selection of representatives for collective bargaining or addressing grievances
  3. Attempt to cause or cause an employer to discriminate against an employee who has been denied membership or had their membership terminated to the labor organization due to failure to pay dues and initiation fees to maintain membership
  4. Refuse to collectively bargain with the employer
  5. Engage in or encourage employees to refuse to use, manufacture, process, transport, or handle any goods, materials, or perform services that will affect commerce
  6. Force or require an employer or self-employed individual to join a labor organization
  7. Force or require a person to cease dealing with products of other businesses or cease doing business with other companies
  8. Force or require an employer to recognize or bargain with a particular labor organization
  9. Force or require an employer to assign particular work to employees in a specific labor organization or particular profession rather than employees in a different labor organization or profession
  10. Require members to pay dues of an excessive or discriminatory amount (as determined by the NLRB)
  11. Cause or attempt to cause the employer to pay for services that aren’t performed
  12. Threaten to picket or picket an employer to force the employer to recognize or bargain with a particular labor organization as the representative of the employer’s employees
  13. Force or require employees of an employer to accept or select a particular labor organization as their representative

Why Is the National Labor Relations Act Important?

The NLRA protects both union and non-union workers. It ensures that employees’ fundamental right to seek better working conditions is protected and prevents employers from conducting unfair labor practices. By protecting the right of employees to organize and collectively bargain, commerce and companies are protected, as strikes and other forms of unrest can be prevented. Strikes and unrest can negatively impact commerce and companies by hindering efficiency, operations and safety, causing delays for material goods or increasing material costs, and therefore diminishing employment and wages.

How Can Employers Comply With the National Labor Relations Act?

Employers can comply with the NLRA by ensuring they don’t prevent labor organizations from forming or refusing to collectively bargain with employees. For employers who already have labor organizations in place, employers can make sure they don’t try to influence or control those organizations. Employers should follow the NLRA’s obligations for collective bargaining:

  1. Meet with the labor organizations at reasonable times.
  2. Confer in good faith about grievances, benefits, wages, working terms, and conditions, etc.
  3. If agreements are reached, have a written contract if requested by either party.

Consequences of Violating the National Labor Relations Act

If an employer violates the National Labor Relations Act (NLRA), different penalties can be applied depending on the violation.

Interfering With the Union

If an employer interfered with the organization of a union or employees’ rights to bargain collectively:

  • The National Labor Relations Board (NLRB) will issue a cease-and-desist order to the employer.
  •  A notice will be required to be posted for a consecutive 60 days on the employer’s premises.
  • The NLRB may issue a bargaining order if it finds that a fair election where employees decide whether to unionize or not can’t be held.
  • The bargaining order stops the election process, and the NLRB forces the employer to negotiate with a union.

Controlling the Union

If an employer controls a union:

  • The National Labor Relations Board may disband the union
  • The employer could be required to repay union dues that were taken from employees’ pay for membership to the employer-controlled union.

Discrimination Against Union Employees

If an employer discriminates against a union employee:

  • The National Labor Relations Board will require the employer to post a violation notice on the employer’s premises as well as an order to cease and desist.
  • The employer may be required to compensate the discriminated-against employee.
  • This compensation isn’t just in terms of wages that would have gone to the employee if not for the discrimination, but can include any other forms of compensation that were withheld from the employee, such as benefits.

Termination Because of Union Involvement

If an employer terminates an employee for being involved in union activity:

  • Similar to when an employer discriminates against an employee, the NLRB will issue a cease-and-desist order and order that the employee is reinstated with back pay.
  • The back pay would include wages owed and any other forms of compensation that would have gone to the employee if they hadn’t been terminated.

Lack of Good Faith Bargaining

If an employer doesn’t bargain in good faith:

  • The NLRB will order the employer to cease and desist and issue an affirmative order for the employer to resume bargaining with the union but in good faith this time.
  • The NLRB may also demand that the employer provide information to the union during the bargaining process, such as revenue and costs.

Extreme Violations

For more extreme violations, the National Labor Relations Board may issue more serious penalties, such as requiring the employer to pay union legal fees and expenses or litigation costs. The NLRB may also require the employer to grant access to the union so they can post notices or meet with employees during non-work time or require the employer to mail the order of the NLRB directly to every employee’s home.

Examples of National Labor Relations Act Violations by Employers

Wondering what violations of the National Labor Relations Act might look like? Here are a few examples of things employers could do that would violate the act. Needless to say, you don’t want anything like this going on in your business.

  • Forming a company union that undermines the rights of members of a real union that has been representing employees
  • Threatening employees that they will lose their jobs if they join a union
  • Bribing employees to discourage them from joining a union
  • Threatening to take away benefits if employees support a union
  • Assigning more difficult tasks to employees who filed unfair labor practice charges

Examples of National Labor Relations Act Violations by Labor Organizations

Here are some examples of things that labor organizations could do to violate the National Labor Relations Act.

  • Threatening employees that they will lose their jobs if they don’t join or support the union
  • Suspending an employee for not joining the union
  • Striking over issues that are unrelated to working conditions
  • Refusing to handle a grievance submitted by an employee because the employee disparaged union officials
  • Barring non-striking employees from entering their work locations

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Questions You’ve Asked Us About The National Labor Relations Act of 1935

The National Labor Relations Act influences fair employment by protecting employees’ right to form or join a labor organization, such as a union. By protecting this right, employees can perform activities such as strikes or picketing to address unfair labor practices and improve their working conditions, and employers are required to bargain in good faith with labor organizations. This ensures that grievances and poor working conditions are addressed and employment remains fair for employees.
In order for a strike to occur, there must be a collective group of employees or union in place. A single employee walking out wouldn’t count as a strike. If there is a union in place, the union can’t decide to strike on its own, nor can union employees strike without union approval. Instead, the union leaders have to call for strike action and put it to a vote. If the majority of the union (typically 80%) votes in favor of striking, then a strike can occur. Strikes are a protected collective activity in the NLRA as long as the strikes are lawful. This protection means employers can’t retaliate against or discipline employees who participated in the strike.
If union employees go on strike without getting their union’s approval, this is called a wildcat strike. While these types aren’t necessarily illegal, they are often a breach of collective bargaining agreements, and as such are not a protected activity. This means that employees who participate in a wildcat strike can be subject to employer discipline for participating in the strike.
It is up to the NLRB to determine whether or not a strike is considered lawful. A lawful strike is one in which employees go on strike for better working conditions, wages, hours, or to oppose unfair labor practices. Strikes may be considered unlawful for violating no-strike clauses, for taking place at the end of contract periods, or for having strikers who engage in misconduct such as violence and threats of violence.

Lauren began her career in HR as a recruiter working for a staffing agency. She quickly discovered her love for HR and went back to school for her MBA and became an HR Generalist upon graduation. She has a passion for employee engagement and being a culture champion for the companies she’s worked for. When Lauren isn’t promoting HR initiatives, she enjoys traveling and spending time with her friends and family.

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