Chapter 14
UNFAIR LABOR PRACTICES BY EMPLOYERS AND UNIONS
INTRODUCTION
Chapter fourteen focus on unfair labor practices by employers and unions. The unfair labor practices
CHAPTER OUTLINE
Unfair labor practices (ULPs) are actions by employers or unions that interfere with the rights of
employees under the National Labor Relations Act.
National Labor Relations Act
I. Rights of Employees
A. Section 7 of the NLRA
1. Employees shall have the right to self-organization, to form, join or assist
labor organizations, to bargain collectively through representatives of their own choosing,
and to engage in other concerted activities for the purpose of collective bargaining or
other mutual aid or protection, and shall also have the right to refrain from any or all such
activities.
2. All employees can exert Section 7 rights, regardless of whether they are
organized union members. In addition, Section 7 rights may not be waived by a union
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B. Limitations to Section 7 Rights
1. Limitations on Section 7 protection include employees acting individually and
CASE 14.1 NLRB V. CITY DISPOSAL SYSTEMS
465 U.S. 822 (1984)
Background: Employee truck driver, James Brown, was discharged when he refused to operate a truck in
which he reasonably believed was unsafe because of faulty brakes. Employee truck driver was a union
member and had a collective bargaining agreement which provided that an employer shall not require its
employees to operate vehicles with unsafe conditions and that it shall not be a violation for an employee
to refuse to operate such vehicles.
Issue: Whether Brown’s assertion of his right to be free of the obligation to drive unsafe trucks
constituted “concerted activity” within the meaning of Section 7 of the NLRA?
Decision: The NLRB held that Brown’s refusal was concerted activity within Section 7, and that his
ANSWERS TO CASE QUESTIONS
1. The collective bargaining process created the collective agreement that gave the employees the right
2. Brown’s refusal to operate the unsafe equipment was held to be concerted because it was an extension
of the bargaining process that resulted in creating that right⎯according to the Court, Brown was in
3. Individual action can be concerted within the meaning of §7 if the employee is invoking a right
created by the collective agreement or if the action had been authorized or approved by the other
employees.
b) Conduct that is illegal, destructive, or unreasonable conduct is not
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II. Sections 8(A)(1) and 8(B)(1)
C. Violation of Employee Rights by Employers or Unions
1. Sections 8(A)(1) and 8(B)(1) prohibit interference with, coercion, or restraint of
employees in the exercise of their Section 7 rights by employers or unions, respectively.
2. Antiunion Remarks by Employer
a) The expressing of any views, argument or opinion shall not constitute or
be evidence of an unfair labor practice under any of the provisions of this Act, if
such expression contains no threat of reprisal or force or promise of benefit.
Section 8(c)
(1) Any remarks about items that are within the control of the
employer is likely to be found by the Board to be implicit threats because
the employer is in a position to make those predictions come true.
3. Employer Limitations on Soliciting and Organizing
a) Organizing activities at the workplace may disrupt production and will
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CASE 14.2 LECHMERE, INC. V. NLRB
502 U.S. 527 (1992)
Facts: Local 919 was attempting to organize the employees at a Lechmere retail store in Newtington,
Connecticut. After several attempts to organize Lechmere employees, Local 919 was asked to leave by
Lechmere’s manager. On several occasions preceding, the union would send nonemployee organizers into
Issue: Whether Lechmere’s refusal to allow nonemployee union organizers onto its property to attempt to
organize the store’s employees an unfair labor practice?
Decision: Section 7 does not require that nonemployee organizers be granted access to the employer’s
property except in the rare case where “the inaccessibility of employees makes ineffective the reasonable
b) The Employer’s right to exclude union organizers comes from state
property law, not from the NLRA
4. Restrictions on Employees
a) Employer rules limiting soliciting activities must have a valid workplace
purpose, such as ensuring worker safety or maintaining the efficient operation of
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d) According to Martin Luther Mem. Home, Inc., an employer’s restrictive
work rule is in violation of Section 8(a)(1):
(1) If the work rule explicitly restricts protected activity under
Section 7, it is a violation;
(2) If the rule does not explicitly restrict protected activity, it is still
e) Employers may not restrict “visual–only” solicitations such as wearing
hats, buttons and the like without exceptional circumstances.
Employer Social Media Policies and Limitations on Employees’ Communications
A. The Board has generally taken a negative view of employer rules prohibiting employees
from discussing work-related matters with fellow workers, holding that they are overly restrictive
of protected activity.
CASE 14.3 PURPLE COMMUNICATIONS, INC. AND COMMUNICATIONS WORKERS OF
AMERICA, AFL-CIO
361 NLRB No. 126 (N.L.R.B. December 11, 2014)
Facts: Purple Communications, Inc. [the employer] provides sign-language interpretation services. The
company maintains an employee handbook that contains its electronic communications policy prohibiting
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Issue: Do employees have a statutory right to use an employer’s email system for Section 7 purposes?
Decision: A majority of the NLRB overruled the Board’s decision in Register Guard to the extent it holds
CASE 14.4 COSTCO WHOLESALE CORPORATION AND UNITED FOOD AND
COMMERCIAL WORKERS UNION, LOCAL 371
358 NLRB No. 106 (Sept. 7, 2012)
Facts: The employer, Costco Wholesale Corp., included a number of restrictions on employee activity as
part of its employee handbook [known as the Costco Employee Agreement]. One rule, section 11.9 of the
employee handbook, stated: “Any communication transmitted, stored or displayed electronically must
comply with the policies outlined in the Costco Employee Agreement. Employees should be aware that
statements posted electronically (such as [to]online message boards or discussion groups) that damage the
Issue: Does the employer’s restrictions on what employees may post on social media interfere with,
restrain, or coerce the employees’ exercise of their Section 7 rights?
g) In hospital settings, an employer may prohibit soliciting by employees in
patient-care areas, but prohibiting employees the right to solicit in non patient-
care areas, such as the hospital cafeteria is unlawful.
(1) Beth Israel Hospital v. NLRB is an example.
5. Other Sections 8(A)(1) Violations
a) When an employer seeks to conduct a poll to determine the legitimacy of
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(2) The employees must be informed of the purpose of the poll
b) In addition, the employer must not have created.
c) The polling should be done in manner that is not intimidating to the
employees and the poll must not be taken if a representation election is pending.
It must be conducted by secret ballot and only in response to a union claim for
voluntary recognition.
g) In order to exercise Weingarten rights, the employee must actually
request the presence of a representative to have the right and an employer who
violates an employee’s Weingarten rights is not prevented from disciplining the
employee, provided that the employer has independent evidence, not resulting
from the “tainted” interview, to justify the discipline.
*Weingarten Rights: are the rights of employees to have a representative of their choice present at
meetings that may result in disciplinary action against the employees.
h) Employer surveillance, including photographing or videotaping, of
6. Union Coercion of Employees and Employers
a) Section 8(b)(1)(A) prohibits union threats or violence directed at
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b) Section 8(b)(1)(B) protects employers from union coercion in their
choice of a representative for purposes of collective bargaining or the adjustment
of grievances.
7. Section 8(A)(2): Employer Domination of Labor Unions
a) Employer dominated in-house unions are prohibited. Employer
interference and any type of support, in the development of a union, are also
prohibited.
*Whipsaw strike is a strike by a union selectively pitting one firm in an industry against the other firms.
*In-house union is a union created and controlled by the employer.
b) In such an event in which an employer demonstrates any type of support
for a union, the employer may be ordered to terminate any sort of ties to the
union.
CASE 14.5 ELECTROMATION, INC. V. NLRB
35 F.3d 1148 (7th Cir. 1994)
Background: Electromation, a manufacturer of small electrical components, made significant changes in
employee schedule and pay. After considerable amount of discontent from the employees, Electromation
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decided to institute action committees, made up of employees and management to help resolve the issues.
After Local Union No. 1049 demanded recognition from the company, Electromation withdrew their
Issue: Whether the action committees instituted by Electromation constitute a “labor organization” within
the meaning of Section 2(5)?
Decision: Under [the] statutory definition [of labor organization, §2(5)] the action committees would
constitute labor organizations if: (1) the Electromation employees participated in the committees; (2) the
committees existed, at least in part, for the purpose of “dealing with” the employer; and (3) these dealings
concerned “grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work.”
Issue: Whether the employer dominated, influenced, or interfered with the formation or administration of
the organization or contributed financial or other support to it, in violation of Section 8(a)(2) and (1) of
the Act?
Decision: The Court held that substantial evidence supports the finding of company domination of the
action committees. First, the company proposed and essentially imposed the action committees upon its
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ANSWERS TO THE CASE QUESTIONS
1. The action committees were instituted to address employee concerns about wages, pay and bonuses,
attendance and absenteeism, and leave policy. The NLRB and the court of appeals held that the
2. A labor organization “deals with” an employer when it provides proposals regarding wages and so
on; “dealing with” encompasses more than bargaining, and does not require a formal organization
3. Electromation was held to have organized and controlled the action committees⎯it selected which
employees would be members, appointed a manager to coordinate and monitor the committee.
e) An employee committee that exists for the purpose of sharing
information with the employer and simply gathers information and makes no
proposals to the employer is not a labor union.
(1) NLRB v. Peninsula General Hospital Medical Center is an
example.
ETHICAL DILEMMA
Employee Involvement Group for Wydget?
Wydget Corporation, a small manufacturing firm, has been having difficult business conditions, which
have led to years of wage stagnation and reduced medical benefits. This, in turn, has led to low employee
morale and high turnover. The company is considering creating employee involvement group to provide
employees the opportunity to share their concerns and ideas with management and to discuss production
problems and working conditions. The employees are not unionized.
ANSWER:
The issue here is how to set up employee participation mechanisms that do not run afoul of S. 8(a)(2) and
8. Sections 8(A)(3) and 8(B)(2): Discrimination in Terms or Conditions of
Employment.
a) Under Section 8(a)(3) of the NLRA, employers are forbidden to
discriminate “in regard to hire or tenure or employment or any term or condition
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of employment to encourage or discourage membership in any labor
organization.”
b) Under Section 8(b)(2), unions are forbidden to: cause or attempt to cause
an employer to discriminate against an employee in violation of Subsection
CASE 14.6 NLRB V. TRANSPORTATION MANAGEMENT CORP.
462 U.S. 393 (1983)
Background: Sam Santillo, a bus driver for respondent TMC attempted to organize fellow employees into
joining the Teamster’s union. George Patterson, Santillo’s supervisor was upset over Santillo’s efforts and
promised to get even with him. Patterson told another employee, Ed west, that he took Santillo’s actions
personally and would take them into account when Santillo asked for favors. A few days later Santillo
was discharged for leaving his keys in the truck and for taking unauthorized breaks. Following his
discharge, he filed a complaint with the Board alleging that he had been discharged because of union
activities, contrary to Sections 8(a)(1) and 8(a)(3) of the NLRA.
Issue: Whether the burden placed on the employer in Wright Line is consistent with Sections 8(a)(1) and
8(a)(3), as well as with Section 10(c) of the NLRA, which provides that the Board must prove an
unlawful labor practice by a “preponderance of the evidence?”
Decision: The Board’s allocation of the burden of proof is clearly reasonable in this context. The
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ANSWERS TO CASE QUESTIONS
1. The employer claimed that it fired Santillo because he left his keys in the bus and took coffee breaks
2. The NLRB held that the employer did not know that Santillo left his keys in the bus until after it had
3. The Wright Line test applies when the employer claims that there are objective reasons for action
taken against an employee who alleges that she or he was subjected to the action because of her or
9. Discrimination in Employment to Encourage Union Membership
a) Union Security Agreements*
(1) Although it is a Section 8(a)(3) and Section 8(b)(2) violation for
(2) Section 8(a)(3) says that an employer can justifiably discharge
an employee for non-membership in a union only if membership was
*Union security agreement: Contract provisions requiring employees to join the union or pay union
dues in order to remain employees.
*Union shop agreement: Agreement requiring employees to join the union after a certain period of time.