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Dealing With Labor Unions

If your business employs union workers or your employees are in the process of trying to organize, you will need to understand your legal rights and obligations. This article explains some basic labor law concepts.

You will also need an experienced labor lawyer on retainer, however. When it comes to unions, organizing campaigns, and collective bargaining, no employer should try to go it alone without the advice of legal counsel.

The National Labor Relations Act

The National Labor Relations Act (NLRA) is the main federal law that protects the rights of workers to unionize and governs the dealings between unions and employers. The NLRA gives employees the basic right to organize and to negotiate with their employers over the terms and conditions of employment, which includes the right to be a part of a labor union.

Workers also have the right to bargain collectively (in other words, as a group rather than individually), through representatives of their own choosing. The NLRA prohibits employers from engaging in certain unfair labor practices that curtail employee efforts to unionize and negotiate with their employers.

An amendment to the NLRA called the “Taft-Hartley Act” also regulates unions in their dealings with employees and employers. Unions may not coerce employees into joining a union, use threats or violence to promote their agendas, charge excessive dues, or refuse to bargain in good faith with employers, among other things.

Union Elections

Employees who want to organize must show that there is worker interest in and support for a union. Often, union organizers do this by asking employees to sign authorization cards, stating that they want a particular union to represent them. If enough employees sign cards, the union will file an election petition with the local office of the National Labor Relations Board (NLRB), the federal agency that enforces the NLRA.

The NLRB will then designate a bargaining unit: a group of employees whose jobs and concerns are similar enough that it makes sense for one union to represent all of them. After a period in which the union and the employer can present their arguments for or against unionization, the bargaining unit will vote in a secret election. If more than half of the votes are in favor of joining the union, the union becomes the certified bargaining representative of the unit, and the employer must begin collective bargaining.

Your attorney can explain the election process, including what you may and may not say to employees and whether it makes sense to voluntarily recognize a union without an election. You can also check out our article on union elections to learn more.

Collective Bargaining

Collective bargaining is the negotiation process between a union and an employer to reach a contractual agreement governing the conditions and terms of employment for union members. Both union and employer have a duty to bargain in good faith.

While an employer isn't required to agree to anything in particular, failing to discuss mandatory bargaining topics, or taking an unreasonable approach to negotiations, might be considered to be unfair labor practices.

Mandatory bargaining topics are those that the union and employer must negotiate on with each other. Employers may not take unilateral action on these matters; they must bargain with the union. These topics include:

  • wages
  • working conditions
  • hours
  • holidays, vacations, sick leave
  • fringe benefits
  • grievance procedures and arbitration
  • health and safety
  • no-strike/no-lockout clauses
  • management rights
  • discipline and discharge, and
  • seniority.

Once the union and employer reach an agreement, a contract called a collective bargaining agreement (CBA) will be created. Your attorney can show you examples of CBAs in your industry and will help you negotiate the CBA. (To learn more, see our article on collective bargaining agreements.)

Unfair Labor Practices

As noted above, an unfair labor practice is an act by the employer (or the union) that is prohibited by the NLRA because it impedes employee rights or gives too much power to either side. For employers, unfair labor practices include interfering with an employee’s right to organize or to join with other employees (whether in a union or not) to try to improve the terms and conditions of employment; trying to dominate a union; firing or otherwise discriminating against union members; or refusing to bargain in good faith.

Any employee or group of employees may file an unfair labor practice charge against their employer with the regional office of the National Labor Relations Board. The charge must be filed within six months of the unfair practice. After a charge is filed, an NLRB investigator will investigate, by interviewing workers, union representatives, the employer, and other witnesses. It is an unfair labor practice for the employer to interfere with the investigation.

After the investigation, the investigator will make a complete report to the NLRB's regional office. If the regional office finds there was no violation, the employee will have an opportunity to withdraw the charge. Otherwise, the regional office will dismiss the charge, and the employee can appeal the decision to the General Counsel of the National Labor Relations Board in Washington, D.C.

If the regional office finds that a violation did take place, it will issue a complaint to the employer. At this point, the NLRB takes over as the employee’s representative. If the manner can't be settled, the employer may demand a hearing, which is much like a court trial. The NLRB's lawyers will present the case against the employer. The decision of the hearing can also be appealed by either side.

If an employer 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 employee(s). Common remedies include:

  • job reinstatement, with or without back pay
  • new union elections, or
  • requiring the employer to post notices concerning the rights of its employees.

Your lawyer can help you with every step of an unfair labor practices charge, from the initial investigation through the hearing and appeals process.

From Lawyers  Updated by Lisa Guerin, ​J.D., Boalt Hall at the University of California at Berkeley

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