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C. Appropriate Bargaining Unit
The key consideration in establishing an appropriate employee bargaining unit is the community of
interest among the employees. The NLRB searches for an appropriate bargaining unit because
collective bargaining will not be stable and efficient if it involves employees with diverse interests.
Certain classes of employees, such as supervisors, are excluded from the bargaining unit. supervisors
are excluded because they act on behalf of the employer and, through their power to direct and assign
work and to discipline and discharge employees, exert control over their subordinates who are or may
be in the bargaining unit.
Independent contractors are not protected under the NLRA.
Solicitation
A 1992 Supreme Court decision in the Lechmere case made union organizing much more difficult
by ruling that employers do not have to allow on their property union organizers who are not
employees. One of the results of that decision has been an increase in salting, the practice of union
organizers applying for jobs with the intent of unionizing the other employees from the inside. The
Supreme Court’s 1995 Town & Country decision held that salts are employees, thus affording them
NLRA protection that forbids discrimination based on union affiliation, but a 2007 NLRB decision
limited protection under the NLRA to those salts who are “genuinely interested” in obtaining
employment.
Legal Briefcase: Wal-Mart Stores, Inc. v. National Labor Relations Board 400 F.3d 1093 (8th Cir.
2005)
D. The Election for Union Representative
The union may be selected only by a majority of the votes cast by the employees. The NLRB oversees
the election to ensure the process is carried on under “laboratory conditions.” In other words, elections
must be held under circumstances that, to the extent possible, are free from undue or unfair influence
by either the employer or by unions vying for the right to represent the bargaining unit.
In 2011, the NLRB passed rules that would have compressed the time between a call for a vote and
the election to determine union representation. In 2012, a federal court held that these were invalid,
because less than three of the five NLRB members had voted on the rules.
Employers have the right to speak out against unions in the form of ads, speeches, and the like.
Section 8(c) of the Taft–Hartley Act is designed to ensure employers’ and labor organizations’
traditional First Amendment rights as long as they do not overstep certain bounds.
Gosseplay?
During a union organizing campaign, a goose wandered from a company pond into the work area
where a worker “talked” to the goose and determined that it favored the union. Workers then put a
“Vote Yes” card around the goose’s neck and drove the goose around the plant on a forklift. The
workers were fired for disrupting work and creating a safety hazard. The union claimed the company
illegally fired the workers for engaging in union organizing. An administrative law judge agreed with the
union, but the NLRB reversed, saying, “Placing a ‘Vote Yes’ sign on a wild animal does not transform
otherwise unprotected ‘gooseplay’ into activity protected by the National Labor Relations Act.”
Source: NACCO Materials Handling Group, Inc., 331 NLRB No. 164 (August 25, 2000)
E. Threats of Reprisal or Force
Employers cannot discriminate in employment to encourage or discourage union membership. An
employer who tells employees, for example, that they will all be discharged if they engage in union
activity, has interfered with their rights. Similarly, an employer who interrogates employees about their
activities or spies on them while they attend union meetings has engaged in unlawful interference.
Problems often arise, however, in determining whether antiunion arguments by an employer are
legitimate or whether they contain veiled threats.
F. Promise of Benefit
Although threats of force or reprisal are clearly unlawful in union campaigns, the rationale behind the
prohibition against promises of benefit is not as intuitively obvious. In a dispute that reached the U.S.
Supreme Court, Exchange Parts sent its employees a letter shortly before a representation election
that spoke of “the empty promises of the union” and “the fact that it is the company that puts things in
your envelope.” After mentioning a number of benefits, the letter said, “The union can’t put any of
those things in your envelope—only the company can do that.” In the representation election two
weeks later, the union lost, but the outcome was challenged in court. Eventually the Supreme Court
ruled that the employer’s actions constituted an unfair labor practice reasoning that “well-timed
increases in benefits” provide a clear message that those who provide advantages are the same
people who can withdraw those benefits should their wishes not be followed.
Buying Votes?
An Atlantic City, New Jersey, limousine service held a union election-day raffle for a TV/VCR. The
NLRB ruled, 3–2, that the raffle was an unfair labor practice that might reasonably be interpreted to
be a reward that would influence voting. A new election was ordered. The NLRB order banned
election-day raffles, but minor “gifts” such as food, drinks, and buttons would be considered
case-by-case if an objection were lodged.
Source: Atlantic Limousine, 331 NLRB No. 134 (2000)
Legal Briefcase: Multi-Ad Services v. NLRB 255 F.3d 363 (7th Cir. 2001)
G. Union Persuasion
Unions, like employers, are restricted in the type of preelection persuasion they employ. In cases
involving promises of benefits made by the union, the NLRB has been more reluctant to set aside
elections than it has when such promises have been made by management. The Board’s reasoning is
that employees realize that union preelection promises are merely expressions of a union platform, so
to speak. Employees recognize that these are benefits for which the union intends to fight. Employers,
on the other hand, really do hold the power to confer or withdraw benefits.
H. Remedies for Election Misconduct
Unfair labor practices during a representation election can result in the imposition of penalties and
remedies. If the union loses the election and the employer engaged in wrongful behavior, a new
election or other remedies may be ordered.
I. Decertification
After a union has been certified or recognized, an employee or group of employees may continue to
resist the union or may lose confidence in it. If so, they can file a decertification petition with the NLRB.
The employees must be able to demonstrate at least 30 percent support for their petition. Once a
decertification petition is properly filed with the board the usual election rules are followed to determine
whether the union enjoys continuing majority support. If not, the union is decertified, and ordinarily at
least one year must pass before a new representation election can be conducted.
[For management advice about decertification, see http://www.nrtw.org/d/decert.htm]
J. Withdrawal of Recognition
An employer may unilaterally withdraw recognition of a union that has lost the support of a majority of
its members. Objective evidence such as a petition signed by a majority of its employees. The NLRB
will review the petition and its specific language, however, to make sure that it shows employees’
desire to decline union representation.
K. Escape the Union?
If a union clearly is about to win a representation election or already has done so, thus establishing its
right to collective bargaining, management sometimes continues to resist. One strategy is to declare
bankruptcy. That tactic may be lawful but only after bargaining sincerely with the union and only after
convincing the bankruptcy court that fairness requires modification or rejection of the
collective-bargaining agreement. Similarly, a company may simply choose to shut down its business
rather than engage in collective bargaining. Going out of business is fully lawful unless the reason for
doing so was to discourage union efforts at plants in other locations. Likewise companies sometimes
employ the runaway shop strategy in which the about-to-be-unionized plant is simply shut down and
replaced by another in a location less responsive to union interests.
L. The Union as Exclusive Bargaining Agent
Once a union has been elected and certified as the representative of a bargaining unit, it becomes the
exclusive agent for all the employees within that bargaining unit, whether they voted for the union or
not. The employer commits an unfair labor practice if she or he attempts to deal directly with the
employees or recognizes someone other than the workers’ chosen representative.
Part Four—Collective Bargaining
Section 8(a)(5) of the NLRA requires both the employer to engage in good-faith collective bargaining with
a representative of the employees, and Section 8(b)(3) imposes the same duty on labor organizations.
Failure to bargain by either an employer or representative of the employees constitutes an unfair labor
practice.
In collective bargaining, the parties are not required to reach an agreement. Thus, the NLRA governs only
the process, not the result, of collective bargaining.
I. Bargaining in Good Faith
The duty to bargain in good faith obligates the union and employer to participate actively in the
deliberations, showing a sincere and honest effort to reach common ground. Whether a party is
bargaining in good faith is determined by the totality of the circumstances. Some of the objective criteria
used by the NLRB in reviewing complaints asserting that this duty has been violated include whether the
party is willing to meet at reasonable times and intervals, and whether the party is represented by
someone who has the authority to make decisions at the table.
Mandatory Bargaining Subjects
Although employers and labor representatives are free to discuss whatever lawful subjects they
mutually choose, Section 8(d) of the NLRA clearly sets out some mandatory subjects over which
the parties must bargain. These are wages, hours, and “other terms and conditions of
employment.”
Generally, the board and the courts will balance three factors:
They look at the effect of a particular decision on the workers
They consider the degree to which bargaining would constitute an intrusion into
entrepreneurial interest or, from the opposite side, an intrusion into union affairs.
They examine the practice historically in the industry or the company itself.
Permissive and Prohibited Bargaining Subjects
Those matters not directly related to wages, hours, and terms and conditions of employment and
not falling within the category of prohibited subjects are considered permissive. Refusal to bargain
over a permissive subject does not constitute an NLRA violation, and permissive subjects must
simply be dropped if the parties do not reach agreement.
Permissive subjects ordinarily would include such items as alteration of a defined bargaining unit,
internal union affairs, and strike settlement agreements. Prohibited bargaining subjects are those
that are illegal under the NLRA or other laws.
Legal Briefcase: Colgate-Palmolive Co. 323 NLRB No. 82 (1997)
II. Administering the Agreement
Union–management bargaining does not end with the negotiation of a labor agreement. Rather,
bargaining continues daily as the parties work out the disputes and confusions and conflicting
interpretations that are bound to arise and that cannot be entirely provided for in the labor agreement.
Often this process of contract maintenance takes the form of resolving grievances. Those problems are
addressed through the grievance procedure that is included in collective-bargaining agreements. Often
the grievance procedure involves a series of steps beginning with informal discussion mechanisms.
A. Arbitration
If after negotiation, the parties cannot resolve their dispute, the collective-bargaining agreement
ordinarily provides for final and binding arbitration. Many court decisions have vigorously supported
the arbitration process as the means of settling labor–management contract maintenance disputes
and tend to find disputes arbitrable unless the labor agreement explicitly and unambiguously exempts
the subject at issue from the arbitration process. Furthermore, but for rare exceptions, neither the
company nor the union can turn to the courts to set aside arbitration decisions. However, in 2010 the
U.S. Supreme Court held that a dispute between a union and employer over the ratification date of a
collective-bargaining agreement containing an arbitration clause should be resolved by a court rather
than an arbitrator.
B. Fair Representation
Because grievance processing is part of a union’s bargaining responsibility, the union might breach its
duty if it declined to represent an employee’s grievance. An employee who feels wronged when a
union does not process his or her grievance has the option of appealing to the NLRB or to the courts.
Nevertheless, the U.S. Supreme Court ruled in 14 Penn Plaza LLC v. Pyett, that a union may
collectively bargain for an agreement providing that individual members’ employment discrimination
claims must be submitted to arbitration.
Part Five—Labor Conflict
Practicing Ethics: Union Loyalty, Employee Loyalty or Money?
The Writers Guild of America, the union for show business writers, struck the television and movie
industries in 2007 to 2008 pushing for a bigger share of revenues, particularly revenues from movies and
television shows distributed over the new media, such as the Internet. The late-night talk shows then
featuring David Letterman, Jay Leno, and others respected the union for weeks by confirming their
telecasts to reruns. After six weeks, Letterman’s production company, Worldwide Pants, was able to reach
its own agreement with the striking union, thus allowing Letterman to return to the air with his full staff,
including writers. The other talk shows decided to return to the air without their writers, although their
network and studio owners had not reached agreements with the Writers’ Guild.
Leno and others argued that they needed to return to the air even without a strike settlement because
they wanted to avoid laying off their many staff members who would have been without work if the shows
stayed off the air. Indeed, some of those shows and hosts had paid their staffs while not working during
the rerun period, but that financial burden reportedly could not be sustained.
The 100-day strike was settled in February 2008.
I. Strikes
Striking is an extremely drastic measure under which employees must bear an immediate loss of wages
and, in many instances, risk job loss. Similarly, employers bear the loss of a disruption to continued
operations. There are two kinds of strikes:
Unfair labor practice strikes are those instituted by workers in response to the employer’s
commission of an unfair labor practice such as interfering with legitimate union activities or failure
to bargain in good faith.
Economic strikes are those used purely as economic weapons to persuade employers to provide
more favorable benefits or better working conditions.
Legal Briefcase: Diamond Walnut Growers, Inc. v. NLRB 113 F.3d 1259 (D.C. Cir. 1997); cert. den.
118 S.Ct. 1299 (1998)
II. Picketing and Boycotts
Primary Picketing
In addition to striking, unions often picket or boycott to publicize their concerns and pressure
employers during the negotiating process. Picketing is the familiar process of union members
gathering and sometimes marching, placards in hand, at a place of business. Peaceful,
informational picketing for a lawful purpose is protected by the NLRA. Some kinds of picketing,
however, are forbidden, and all picketing can be regulated by the government to ensure public
safety. Primary picketing enjoys broad constitutional and statutory protection, but it may be unlawful
if violent or coercive.
Secondary Picketing/Boycotts
Secondary picketing or boycotting is directed to a business other than the primary employer, and
ordinarily it is unlawful. That is, unions are engaging in an unfair labor practice if they threaten or
coerce a third party with whom they are not engaged in a dispute in order to cause that third party
to put pressure on the firm that is the real target of the union’s concern.
Mock Funeral Source
The Sheet Metal Workers’ union staged a mock funeral outside a Florida hospital in 2004. One
person dressed in a “Grim Reaper” costume carrying a plastic sickle, and four pallbearers” carried
a prop coffin and handed out leaflets. The hospital filed an unfair labor practice charge against the
union claiming the funeral constituted illegal secondary picketing in violation of the NLRA. The
NLRB issued an order commanding the union to cease and desist. That decision was reviewed by
the federal District of Columbia Court of Appeals.
Source: Sheet Metal Workers’ International Association, Local 15, AFL-CIO v. National Labor Relations Board,
2007 U.S. App. LEXIS 14361
III. Lockouts
Sometimes management takes the initiative in labor disputes by locking its doors to some or all of its
employees. Both the NLRB and the courts allow lockouts as defensive acts to protect businesses against
sudden strikes and to prevent sabotage or violence.
Part Six—Employees’ Rights Within or Against the Union
A. The Union’s Duty of Fair Representation
The union is given statutory authority to be the exclusive bargaining agent for the employees in the
designated bargaining unit. This means that even if an individual employee in the bargaining unit does
not agree with union policies or is not a member of the union, he or she cannot bargain individually
with the employer. Such an employee is bound by the terms of the collective-bargaining agreement,
and the union has a duty to fairly represent that employee and all members of the bargaining unit,
whether or not they become members of the union.
B. The Bill of Rights of Labor Organization Members
The Bill of Rights for members of labor organizations is contained in Title 1, Section 101 of the
Labor–Management Reporting and Disclosure Act (LMRDA or Landrum–Griffin Act). The Bill of Rights
was designed to ensure equal voting rights, the right to sue the union, and the rights of free speech
and assembly.
I. Union Security Agreements and Right-to-Work Laws
To maintain their membership, unions typically seek a collective-bargaining clause requiring all employees
to become union members after they have been employed for some period—generally 30 days (union
shop agreements)—or, at the least, requiring them to pay union dues and fees (agency shop
agreements). These “union security arrangements” are lawful under the NLRA.
Under the 1988 Supreme Court decision in Communications Workers of America v. Beck nonunion
employees can be compelled to pay union dues and fees only for core collective bargaining activities.
Thus, nonunion employees’ agency shop dues and fees must be reduced by an amount equal to that
applied to such noncore purposes as lobbying and political campaigning. In its 2012 decision in Knox v.
SEIU, the U.S. Supreme Court reviewed whether a union’s special assessment for a “political fight-back
fund,” aimed at two ballot initiatives the union opposed, required the union to provide nonunion
employees with notice to allow them to opt out of paying into the fund. The court held that the union must
gain the affirmative consent of the nonunion employees before imposing such an assessment on them.
Right-to-Work
Twenty-four states including traditionally union strong-holds, Indiana and Michigan, have enacted
right-to-work laws that prohibit union security agreements in collective-bargaining agreements. In
these states, nonmembers do not pay dues or fees, but as members of the bargaining unit, they
must be represented by the union. Unions regard those employees as free riders, but right-to-work
supporters see the matter as one of personal freedom.
[For questions and answers on right-to-work laws, see http://www.nrtw.org/a/a_prime.htm]
Closed Shop
At one time, powerful unions insisted on a closed-shop arrangements wherein employers could hire
only individuals who already belonged to unions, but those arrangements are now forbidden by the
NLRA.
The Labor War and Dreamliner
Airplane manufacturer Boeing announced in 2009 its intention to open a second assembly line in a
nonunion South Carolina facility to supplement its production of the company’s wide-body “787
Dreamliner” at its union-organized Seattle-area plants. The expansion was not viewed by the
company as a dilution of work in Washington, since it has been adding jobs in that state.
In March 2010, the International Association of Machinists and Aerospace Workers filed unfair labor
practice charges against Boeing claiming that the decision to open the second production line in
South Carolina was made in retaliation for its workers’ past strikes in the state of Washington and
to discourage them from striking in the future. If the union claims are accurate, that strategy would
violate the National Labor Relations Act.
In April 2011, the NLRB issued a complaint against Boeing alleging a violation of federal labor law
for coercing employees and, in effect, discriminating against the union by being motivated to place
the new work in a right-to-work state in order to avoid the union presence. Section 8(a) of the NLRA
provides that it is an unfair labor practice to “interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed” under the act. In December 2011, the NLRB withdrew its
complaint against Boeing, after the company and the union entered a contract that included
building another jet in the Seattle area. The union leaders dropped their opposition to having some
787 Dreamliners built in South Carolina.
Sources: Susanna Ray and Holly Rosenkrantz, “Boeing NLRB Complaint Withdrawn as Political Fallout
Persists,” Bloomberg Businessweek, December 15, 2011
[http://www.businessweek.com/news/2011-12-15/boeing-nlrb-complaint-withdrawn-as-political-fallout-persists.
html]; “Boeing Complaint Fact Sheet,” National Labor Relations Board [http://www.nlrb.gov]; and Hans A. von
Spakovsky and James Sherk, “National Labor Relations Board Overreach against Boeing Imperils Jobs and
Investment,” Legal Memorandum 66, May 11, 2011.
Part Seven—Other Unions
A. Public-Sector Unions
The public sector is a growth area for union membership. In 2013, 7.2 million public-sector employees
belonged to a union, compared with 7.3 million union workers in the private sector. Legal regulation of
public-sector labor–management relations begins with state law. Although the specific provisions of
those laws vary, many NLRA concepts have been adopted. Some fundamental policies and doctrines
are quite different, however. A particular distinction lies in the ability of public-sector employees to
strike.
Some states prohibit those strikes and others permit them only under restricted conditions. In either
case, the rationale for treating public employees differently than private-sector employees is the role of
public employees as servants of the voters.
