This Toolkit was reviewed in September 2012 by our editorial team as part of ongoing maintenance. This Toolkit is also continually monitored for any necessary changes due to legal or practice developments.
Labor Union Basics Toolkit
Resources to help employers comply with legal requirements of federal labor relations laws including primarily the National Labor Relations Act (NLRA).
In the private sector, labor relations, including relations with unions (www.practicallaw.com/2-502-9592), is principally governed by the National Labor Relations Act (www.practicallaw.com/2-382-3640) (NLRA). The NLRA covers virtually all private sector employers. In contrast, the Railway Labor Act (www.practicallaw.com/7-516-8509) (RLA), covers rail and air carriers and certain enterprises owned or under the control of those carriers.
The National Labor Relations Board (www.practicallaw.com/3-501-8649) (NLRB) has issued decisions that significantly change employers' obligations under the NLRA in both unionized and nonunionized workplaces. The NLRB has also used the agency rulemaking process to change its union election procedures and require employers to post notices about employees' rights under the NLRA. Although the posting requirement and new election procedures are on hold (see Legal Updates, NLRB Poster Rule Enjoined Indefinitely: DC Circuit (www.practicallaw.com/6-518-9734) and NLRB Union Election Rule Held Invalid for Lack of Quorum (www.practicallaw.com/1-519-4733)), the NLRB will likely continue to pursue implementing them.
This Toolkit provides resources to assist employers in understanding the significance of these developments and complying with these three areas of highly nuanced law:
Avoiding Interference with Employee Rights under the NLRA
One of the central purposes of the NLRA is to ensure private sector employees can engage in protected concerted activity (www.practicallaw.com/8-502-9594), which includes employees discussing and attempting to improve terms and conditions of their employment, with or without unions. Employees or their unions can enforce their rights under the NLRA by filing unfair labor practice (www.practicallaw.com/5-507-5808) (ULP) charges with the NLRB.
In the fiscal year ending in September 2011, the NLRB:
Received 22,177 ULP charges (with each possibly involving multiple claims affecting multiple employees).
Recovered $60,514,922 for employees in back pay and reimbursements.
Obtained reinstatement for 1,644 employees.
When investigating, prosecuting and adjudicating these numerous ULP charges, the NLRB has taken an expansive view of what activities are protected under the NLRA, including by:
Prohibiting employers from requiring as a condition of employment that employees waive their ability to pursue class or collective claims.
Broadening union organizers' rights to access employers' property for union organizing.
Permitting secondary "bannering" to publicly protest against an employer or a contractor that does business with that employer with which a union has a primary labor dispute (as distinguished from "secondary picketing," which is unlawful).
Claiming jurisdiction over employees' use of social media and making it a "hot topic" for ULP complaints.
(For analysis of each of these developments, see the Legal Updates Archive in the Unions Subtopic.)
In addition, the NLRB:
Continues to assert that it has authority to require employers to post a notice of employee rights under the NLRA (see NLRB News Release (Apr. 17, 2012)).
Launched an educational initiative, including setting up a new website and publishing brochures to inform nonunion workers of their rights under the NLRA (NLRB Justification of Performance Budget for Committee on Appropriations FY 2013, at 7-9).
In light of these developments, whether unionized or not, employers must:
Understand the scope of employees' rights under the NLRA.
Avoid disciplining employees for engaging in protected concerted activity.
Ensure that their employment policies do not interfere with these rights.
Prepare for an increased number of ULP charges and complaints.
In addition to the resources below, for information about designing employment policies to comply with the NLRA, see Practice Note, Employee Handbooks: Best Practices: Compliance with the National Labor Relations Act (www.practicallaw.com/4-513-9448).
Lawfully Responding to Union Organizing and Election Campaigns
Another purpose of the NLRA is to permit employees to support or refrain from supporting a union. The NLRB sets election procedures for secret ballot elections to allow employees to vote for or against union representation and determines whether employees have sufficiently similar jobs and interests to comprise an appropriate bargaining unit (www.practicallaw.com/1-504-3640). The NLRB has issued decisions that will likely make it easier to organize employees (see, for example, Legal Updates, NLRB Changes Standard for Determining an Appropriate Bargaining Unit (www.practicallaw.com/0-508-0666) and NLRB Sets Brightline Rule on Union-financed Lawsuits Near Representation Elections (www.practicallaw.com/8-507-6769)). It also continues to litigate about implementing regulations that would revamp its union election procedures (see Legal Update, NLRB Union Election Rule Held Invalid for Lack of Quorum (www.practicallaw.com/1-519-4733)). These regulations will likely:
Speed up initial processing of election petitions, so employers will have less time to express their views about a union.
Limit opportunities for employers to raise questions before an election about:
the appropriateness of a petitioned unit; and
the eligibility of voters.
In light of these prospective changes, employers should understand how:
The NLRB union election process works.
To lawfully respond to union organizing or a union election.
To develop a plan for responding to union organizing or an election petition.
Engaging in Good Faith Collective Bargaining
The NLRA also regulates how employers and unions negotiate collective bargaining agreements (www.practicallaw.com/4-504-1300) (CBA) (the agreements setting out the terms and conditions of union members' employment). The law governing collective bargaining (www.practicallaw.com/4-382-3347) is highly nuanced and employers must understand:
Under what circumstances they must bargain.
Requirements for bargaining in good faith.
How to prepare for and lawfully undertake negotiations with unions.