If your business employs union workers or if employees are in the process of trying to organize, you should already have an experienced labor lawyer on retainer. When it comes to labor law issues involving unions and collective bargaining, no employer should try to wing it alone without the advice of legal counsel.

The Basics

The National Labor Relations Act ("NLRA") is the body of federal law that principally governs the rights of workers to unionize. Under Section 7 of the Act, American workers clearly have the right to self-organization, which includes the right to form or be a part of labor organizations.

Workers also have the right to bargain collectively through representatives of their own choosing, and to engage in other activities of a concerned nature for the purpose of collective bargaining, or for their mutual aid or protection. The NLRA protects the rights of workers to join the labor unions that will best represent their interests and to take action to defend their rights in the workplace.

The NLRA encourages collective bargaining and also places all kinds of legal restrictions on actions employers can take in response to efforts to unionize. The NLRA defines "unfair labor practices" to include:

  • Interfering, restraining or coercing workers
  • Dominating or seeking to control the union
  • Discriminating against workers for union activity
  • Discharging a worker for union activity
  • Refuses to bargain in good faith with a duly elected union

The Taft-Hartley Act restricts labor unions, making the following union activities illegal:

  • Coercing people to become union members
  • Using threats, intimidation, or violence
  • Forcing an employer to punish a worker for not being a union player
  • Charging excessive union dues
  • Refusing to bargain in good faith with the employer

The first step is for workers to show that there is an interest in and support for a union. One common way for this to be done is to have workers sign authorization cards. If enough interest is shown, a petition requesting an election may be filed with the regional office of the National Labor Relations Board ("NLRB"), which is the enforcement arm of the NLRA. The board determines if there is sufficient interest in forming a union (usually 30 percent of the work force). If there is sufficient interest, the NLRB will follow a somewhat complicated process to designate a bargaining unit and see that an election is held. If over 50 percent of the employees vote to join a particular union, the organization is "certified" and the employer is required to bargain with the organization.

Mandatory Bargaining Requirements

Basic duties of an employer in trying to reach a collective bargaining agreement include:

  • Meeting and conferring with union representatives on a collective bargaining agreement
  • Bargaining in good faith
  • Agreeing to cover specific subjects as may be required by the NLRA

While an employer isn't required to agree to anything in particular, failing to discuss or agree to fundamental provisions, or taking an unreasonable approach to negotiations on mandatory provisions, might be considered to be unfair labor practices. "Mandatory provisions" include:

  • Wages
  • Work conditions
  • Hours
  • Holidays, vacations, sick leave
  • Fringe benefits
  • Grievance procedures
  • Arbitration
  • Health and safety
  • Nondiscrimination clauses
  • No-strike/no-lockout clauses
  • Term and termination
  • Management rights
  • Discipline and discharge
  • Seniority
  • Union security
  • Remedies

Collective bargaining agreements are usually voluminous documents that cover many more topics that just those mentioned above. Specimen copies of such agreements are available on the Internet, as well as from any number of other sources, including government agencies, commercial providers and libraries. An employer should be familiar with what is typically contained in one of these agreements before ever sitting down at the bargaining table.

In addition, an employer's homework should include trying to anticipate how the labor organization is going to approach the negotiations. This effort should go beyond the terms of the contract itself. No doubt, labor representatives are going to do their homework not only on the contract itself, but also with respect to obtaining background information on the economic climate in general and the financial condition of the employer in particular.

Unfair Labor Practices

Any employer, employee or group of employees may file an unfair labor practice charge with the regional office of the National Labor Relations Board. A collective bargaining agreement doesn't necessarily have to be in place in order for charges to be filed. But a formal charge must be filed and served on the charged party within six months of the violation and contain a brief general description of what happened. Under the NLRB rules, the charging party has the responsibility for insuring that the charge is timely served on the charged party.

After a charge is filed, an NLRB investigator will look into it. The investigator's job will be to determine initially whether the claim was filed in the right NLRB office. Assuming that it was, the investigator will then investigate the facts of the case, and will interview workers, union representatives, the employer and other witnesses. The investigator can decide that the employer engaged in unfair labor practices for interfering with the investigation. The same holds true for the labor union itself.

After his or her investigation, the investigator will make a complete report to the NLRB's regional office. If the regional office finds there was no violation, it will ask for the charge to be withdrawn. If not withdrawn, it can dismiss the charge and this decision can be appealed to the General Counsel of the National Labor Relations Board in Washington, D.C.

If the regional office feels a violation did take place, it will issue a complaint to the charged party. If the manner can't be settled, the charged party may then demand a hearing, which is much like a court trial. The NLRB's own lawyers will present the case. The decision of the hearing can also be appealed.

If an employer or labor organization has committed an unfair labor practice, the NLRB has the power to order that the practice be stopped and to order compensation for the injured party. Common remedies include:

  • Job reinstatement, with or without back pay
  • Ordering new union elections
  • Requiring employers to post notices concerning the rights of their employees

The parties usually have the right to appeal, so it can take years before anything is resolved.

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