The National Labor Relations Act

Employers are seeing a surge in union activities these days. Three Starbucks locations unionized in one afternoon, according to Forbes. And, in a first for Amazon, workers at a Staten Island Amazon warehouse voted to unionize.

Some say the newfound interest in unions is being spurred by a recognition that employers have not properly valued workers’ contributions to businesses during the pandemic.

But while many employers oppose unions, business owners must comply with laws that regulate unionizing activity.

History

Congress passed the National Labor Relations Act (NLRA) in 1935.

The federal law provides employees in private-sector workplaces the right “to improve their wages and working conditions.”

Before the NLRA:

• Employers refused to recognize unions and bargain with them.
• Courts struck down employees’ right to strike.

The NLRA granted workers the right to unionize and collectively bargain.

However, by 1947, a number of employers, including those in the steel, automobile, and manufacturing industries, were successful in persuading Congress to amend the NLRA with the Taft-Hartley Act. The Taft-Hartley Act specified that unions could be sued for activities such as picketing and boycotting and that employees had the right to reject union membership.

Eligible employees

The NLRA protects private-sector employees, regardless of whether the workplace is unionized or non-unionized. The federal law also protects employees who don’t want to join a union.

The NLRA doesn’t cover:

• Agricultural and domestic workers
• Employees for rail and air carriers. TheRailway Labor Act covers rail and air carrier employees
• Independent contractors
• Public sector employees
• Supervisors

NLRA Enforcement

The National Labor Relations Board (Board) enforces the NRLA.

The Board has five members. It issues rulings based on administrative proceedings. The president of the United States appoints each Board member to a 5-year term after Senate confirmation. The expiration of each member’s term is staggered so that one member’s appointment expires each year.

The Board has several regional offices across the U.S. The main office is located in Washington, D.C.

NLRA details

There are three sections of the NLRA that are especially important for business owners:

• Section 7 outlines the rights of employees.
• The area of the act that describes unfair labor practices by employers is Section 8.
• In Section 9 you will find the information that governs bargaining relationships.

Below, we’ll look at each of these Sections to clarify what they mean to you.

The Rights of Employees

Section 7 of the NLRA defines protected activity. Protected activity includes:

• Forming a union
• Assisting a union’s attempts to organize employees
• Joining a union (the union does not have to be recognized by the employer)
• Collectively bargain
• Striking for better working conditions

Section 7 mentions concerted activity. The NLRA also protects “concerted activity.” According to the NLRB, such activity occurs when “two or more employees take action for their mutual aid or protection regarding terms and conditions of employment.” Examples of concerted activity include:

• Working together to improve working conditions
• Discussions between employees about wages and benefits
• Efforts to unionize

In the past, employers often had a policy forbidding workers from discussing pay, but such a policy is illegal.

The NLRB has repeatedly ruled that employer policies prohibiting employees from discussing wages are unlawful. Online discussions of wages and benefits are considered concerted activity.

Unfair labor practices

Section 8 of the NLRA defines “unfair labor practices” by employers. Basically, as an employer, you cannot engage in actions that would chill union activity.

Unfair labor practices include:

• Discouraging membership in a labor organization
• Discriminating in hiring and firing those who support the union or participate in union activities
• Discrimination in disciplinary actions such as demotions, transfers, suspensions for union supporters and participants
• Firing an employee for filing charges under the NLRA
• Interfering with the formation or administration of a union
• Interfering with the rights granted by the NLRA
• Refusing to bargain in good faith

Representatives

Section 9 states that unions are the exclusive representatives of employees if elected by a majority of workers.

How is a union formed?

According to the NLRB, union formation can happen in one of two ways:

• “If at least 30% of employees sign a petition or cards saying they want a union, the NLRB will hold an election. Then, if a majority of workers vote to unionize, the Board will certify the union as the representative for collective bargaining.”
• “The employer decides to recognize a union after seeing that most employees want one.”

After the union is formed, employers must bargain with the union in good faith.

Employees can file a petition to decertify the union as their representative which effectively disbands the union.

NLRA requirements for unions

The NLRA also places obligations on unions:

• The union must represent the employees in the bargaining unit fairly
• The federal law forbids unions from engaging in certain types of strikes

State and local laws

States generally don’t have jurisdiction over private-sector unions. However, the NLRA does allow the states to pass laws governing union fees.

State laws, however, do govern state and local government employee unions. The rules vary by state.

Recommendations for employers

Employers that ‘don’t want to contend with a union should pay attention to the criticisms and concerns of their workforce to address issues that might lead to unionization.