In 1935, Congress enacted the National Labor Relations Act (“NLRA”) to protect the rights of employees and employers, to encourage collective bargaining, and to curtail certain private sector labor and management practices which can harm the general welfare of workers, businesses and the U.S. economy. The NLRA protects most employees, whether their employer is unionized or non-unionized. The National Labor Relations Board (the “NLRB” or “Board”) was created by the NLRA to oversee and enforce the NLRA to ensure fair labor practices.
Prior to the NLRA’s inception, employers were free to spy on, question, blacklist, and discharge employees and union members. In the 1930s, employee strikes took place and violent interactions between law enforcement (who were defending the employers) and the workers who were forming unions ensued. In the late 1930s, a total of nearly 800,000 women were in unions, which was three times more than in the late 1920s. By 1945, union membership was an at all-time high of 35% (currently in the US today, around 10% of workers are unionized), and for this reason, opponents of unions were attempting to weaken the NLRA. By 1947, a number of industries, to include the manufacturing, steel, automobile, electrical, and rubber industries succeeded in weakening the NLRA by supporting the passage of the Taft-Hartley Act. The Taft-Hartley Act specified that unions could be charged, prosecuted, and sued for various activities that included picketing and boycotting. The Taft-Hartley Act prohibited the “closed shop” (an arrangement that makes union membership a condition of employment), allowed states to prohibit the agency shop (an arrangement that requires employees who are not union members to pay fees to a union to cover the costs of its bargaining on their behalf), narrowed the definition of unfair labor practices, and specified unfair union practices. Following adoption of the Taft-Hartley Act, a number of states enacted so-called “right to work” laws, which banned both closed and agency shops.
While the NLRA is an act that is continually being reviewed and amended, there are several important sections for organizations, business owners and managers to focus on. Those sections of the NLRA include, Section 7, 8, and 9.
Section 7of the NLRA is the main component of the NLRA and defines what type of activity is protected. More specifically, section 7 states that states, “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 of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8(a)(3).” Examples of rights that are protected by Section 7 are:
- Forming or attempting to form a union among the employees of a company.
- Joining a union whether the union is recognized by the employer or not.
- Assisting a union to organize the employees of an employer.
- Going out on strike to secure better working conditions.
- Refraining from activity on behalf of a union.
Section 8 of the NLRA defines what an “unfair labor practice” is for employers. Unfair labor practices are defined by each subsection of Section 8 to include: Interference with Section 7 Rights, Domination or Illegal Assistance and Support of a Labor Organization, Discrimination Against Employees, Discrimination for NLRB Activity, and Refusal to Bargain in Good Faith. Throughout the aforementioned subsections, Section 8 of the NLRA states that organizations may not interfere with the union and its concerted activity. Additionally, it states that organizations may not take any disciplinary actions, to include: demotions, suspensions, discharges, or transfers. Under Section 8, organizations may not make any threats or warnings to prevent concerted activity from occurring. Therefore, such retaliation on behalf of the organization is illegal. It is also illegal for the organization to refuse to bargain with the union representatives that have been chosen under Section 7. These “refusals” may include: failure to negotiate, refusing to hold meetings, etc.
Last, Section 9 of the NLRA states that unions are exclusive representatives of all unit members. In other words, members of the union will not need to engage in any bargaining on their own as the union is represented by someone who will conduct such bargaining on behalf of the union. Additionally, Section 9 defines what is considered an appropriate bargaining unit. An appropriate bargaining unit per Section 9 of the NLRA is, “Is a group of two or more employees who share a community of interest and may reasonably be grouped together for purposes of collective bargaining. The determination of what is an appropriate unit for such purposes is, under the Act, left to the discretion of the NLRB. Section 9(b) states that the Board shall decide in each representation case whether, “in order to assure to employees the fullest freedom in exercising the rights guaranteed by this Act, the unit appropriate for the purposes of collective bargaining shall be the employer unit, craft unit, plant unit, or subdivision thereof.”
The NLRA is an important for all organizations and their employees to be aware of as it protects employees from unfair labor practices, allows them to participate in collective bargaining through a union representative, and ultimately protects employees’ rights.
For additional information related to the NLRA and its implications it may have on your organization and employees, please contact us at www.newfocushr.com or refer to the NLRB’s website at www.nlrb.gov
Written by: Patrick McKenna, SHRM-CP
HR Consultant
09/13/2021
