Representation Before The National Labor Relations Board
Our Firm has represented businesses and labor organizations nationwide in matters before or involving the National Labor Relations Board (“NLRB”). The NLRB is a federal agency that enforces the National Labor Relations Act (“NLRA”) by prosecuting and hearing unfair labor practice cases and holding union elections.
The NLRA was passed in 1935 to protect the rights of employers and employees, to promote collective bargaining, and to curtail certain private sector labor and management practices that could harm the general welfare of workers, businesses and the U.S. economy. In 1947, Congress passed the Taft-Hartley Act, which amended the NLRA in order to add protections for employers against unfair labor practices of unions, to take a more neutral stance on collective bargaining, and to create the Federal Mediation and Conciliation Service (“FMCS”)—an independent federal agency primarily focused on labor relations dispute resolution and conflict management.
The NLRA contains several sections describing the nature and scope of employee rights, collective bargaining, union-security agreements, unfair labor practices of employers, unfair labor practices of labor unions, and how the law is enforced. The NLRA seeks to balance the rights of employers and employees in order to concomitantly facilitate industrial peace, improve working conditions, and maintain full economic production. The law is administered and enforced primarily by the NLRB and its General Counsel through regional and other field offices located in major cities across the country. The NLRB itself consists of five members, appointed by the President of the United States.
Protected Activities and Unfair Labor Practices
Both employers and employees should be very familiar with the rights and protections afforded by the NLRA and how they have been, and continue to be, interpreted over the decades since its enactment. Under the NLRA, employees 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.
Section 8(a)(1) of the NLRA makes it unlawful for an employer to interfere with, restrain, or coerce employees in the exercise of their rights. Section 8(a)(3) prohibits employers from encouraging or discouraging membership in any labor organization by discrimination in regard to hire or tenure of employment or any term or condition of employment. The precise contours of these various rights and prohibitions can and will vary depending upon the specific facts at issue in a case.
For decades, administrative law judges, the NLRB, and courts have themselves wrestled with the nature and scope of these provisions in deciding the respective rights of employees and employers in a wide variety of factual circumstances. National labor relations policy is shaped in large part in how the NLRB decides individual cases. Because the President of the United States appoints the members of the NLRB, many have observed and opined that the NLRB seems to decide cases in a partisan fashion. And this observation is often corroborated by the fact that decisions are often overturned when the political composition of the NLRB changes. Some have criticized such changes in legal precedent by the NLRB as causing instability and uncertainty for both individuals and businesses who are constantly trying to understand and comply with labor rights and obligations.
Nonetheless, one thing is clear from NLRB precedent and guidance: while the NLRA provides various (and often competing) rights to employers and employees, it also places limitations and qualifications on the exercise of said rights. For example, while the definition of “protected, concerted activity” is open-ended and broad, one must consider all the relevant circumstances, context, intentions and motives at play to determine whether such activity is occurring. Activity is “concerted” if it is engaged in with or on the authority of other employees, not solely by and on behalf of the employee himself, and it includes circumstances where a single employee seeks to initiate, induce, or prepare for group action, as well as where an employee brings a group complaint to the attention of management. And activity is “protected” if it concerns employees’ interests as employees. However, with that said, the NLRB has made clear that an employee who otherwise engages in protected, concerted activity may lose protection under the NLRA if he or she engages in misconduct or threatens serious injury to another.
The NLRB also provides some amount of guidance on the types of activities which would be clearly prohibited under the NLRA, such as:
- threatening employees with adverse consequences, such as loss of benefits or more onerous working conditions, if they support a union, engage in union activity, or select a union to represent them;
- threaten employees with adverse consequences if they engage in protected, concerted activity;
- spying, or creating the impression that you are spying, on employees’ union activities;
- coercively question employees about their own or coworkers’ union activities or sympathies; and
- prohibiting employees from talking about the union during working time, if you permit them to talk about other non-work-related subjects.
Nonetheless, determining whether a threat has occurred, whether questioning was coercive, or whether “spying” has taken place will almost always necessitate a fact-intensive analysis of all relevant circumstances, including the context in which the events or statements took place, the witnesses present, the specific words used, the motivations of those individuals involved, and other factors.
Common complaints that lead to a labor dispute before the NLRB include allegations of threats to employees, interrogation of employees regarding union activities, and discipline or termination of employees allegedly in relation to union activities. Whether a complaint or dispute involves union recognition or election concerns, safety issues, dues check-off disputes, concerted activities, retaliation or discrimination claims, or any type of alleged unfair labor practice(s), our Firm provides the legal counsel necessary to favorably resolve disputes and/or vindicate the labor rights of our clients.
Collective bargaining is one of the keystones of the NLRA. Section 8(d) of the NLRA describes the duty to collectively bargain as “the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment.” “Wages, hours, and other terms and conditions of employment” are frequently referred to as “mandatory subjects of bargaining.” These subjects include, but are not limited to, such matters as pensions, bonuses, group insurance, grievance procedures, safety practices, seniority, discharge procedures, layoffs, recalls, discipline and union security. In contrast, “permissive subjects of bargaining” include but are not limited to the scope of a bargaining unit, selection of a bargaining representative, internal union affairs, and settlement of unfair labor practice charges.
A failure of the employer to collectively bargain on mandatory subjects of bargaining will likely constitute an unfair labor practice under Section 8(a)(5). However, “such obligation does not compel either party to agree to a proposal or require the making of a concession.” In addition, Section 8(b)(3) makes it unlawful for a labor organization or its agents to refuse to bargain collectively with an employer. The NLRB has issued guidance on what this mutual obligation looks like by providing a series of examples of conduct that would constitute unfair labor practices, such as: failing to meet at reasonable times and reasonable intervals; failing to bargain in good faith concerning mandatory subjects of bargaining; or engage in bad-faith, surface, or piecemeal bargaining. And the NLRB has also issued guidance on conduct which would not constitute an unfair labor practice, such as: bargaining hard, provided an agreement is still sought in good faith; bargaining with the union concerning permissive subjects of bargaining, but not to impasse; or refusing to discuss or agree to any modification of the terms of an existing contract.
Our Firm has experience handling collective bargaining negotiations on behalf of both employers and labor organizations. Our current or former clients include a local union in the State of Missouri as well as businesses operating nationwide. We understand the contours of the rights and obligations set forth under the NLRA and know how to handle common tactics employed by both sides in trying to negotiate a collective bargaining agreement. We have successfully negotiated contracts in a wide variety of forums, with and without the involvement of third parties like the FMCS. Let us help you negotiate and secure a collective bargaining agreement which best serves your needs and goals.
Contact attorney Kevin J. Dolley to discuss an NLRB-related matter or dispute by telephone at (314) 645-4100 or by email at Kevin@dolleylaw.com.