Congress created the National Labor Relations Board (NLRB) to administer the National Labor Relations Act of 1935 (NLRA), which covers unionization for most private-sector employees.65 (Certain classes of workers, such as managers and supervisors, independent contractors, agricultural employees, and domestic servants are excluded from the NLRA as a matter of law.66 ) The NLRB has jurisdiction over almost all labor disputes that affect commerce among the states, as mandated by the language of the NLRA itself.

The NLRB adjudicates private-sector labor disputes arising under the NLRA, including charges of "unfair labor practices." An unfair labor practice may be filed by either a union against an employer or an employer against a union. The following explains which actions by an employer or a union may constitute unfair labor practices under the NLRA.

Employer Unfair Labor Practices

The NLRA establishes a number of lawful employee activities under Section 7 of the statute, entitled "Rights of Employees," which employers may not interfere with. Section 7 is the heart of the NLRA and provides as follows:

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.67

Under the NLRA, employees may lawfully

  • form an employee union;

  • sign a union authorization card;

  • strike to secure better working conditions;

  • circulate a petition among employees for the redress of a grievance; or

  • refrain from any and all activity on behalf of a union.

There are five major categories of behavior for which an employer may be charged with an unfair labor practice.68 They are as follows:

1. Interfering with, restraining, or coercing employees attempting to exercise their rights as guaranteed in Section 7 of the NLRA. Examples of this include

  • questioning employees about their union activities or views in circumstances that tend to coerce the employees;

  • promising or implementing employee wage increases to discourage their union activity or support;

  • threatening plant closure to discourage union activity or support;

  • threatening employees with loss of benefits or promotional opportunities because of their union activities or support;

  • stating to employees that union bargaining is futile or a strike is inevitable;

  • spying on employee union activities or requesting employees to report on the union activity of others.

2. Dominating or interfering with the formation or administration of any labor organization or contributing financial or other support to it. Examples of this include

  • bringing pressure on employees to join a union; or

  • providing financial support to a union by direct monetary payments;

3. Discriminating against workers in their hiring, tenure of employment, or any other term or condition of employment with the purpose of either encouraging or discouraging membership in any labor organization. (This fundamentally prohibits employers from treating similar employees' situations differently if the difference is attributable to union activities or sympathies.) Examples of this include

  • discharging employees because they signed a union authorization card or urged other employees to join a union; or

  • demoting employees because they circulated a petition to redress an employee grievance.

4. Discharging or otherwise discriminating against any employees who file or give testimony under the NLRA.

5. Refusing to bargain collectively with employee representatives. Examples of this include

  • refusing to sign a contract after a full agreement is reached;

  • failing to furnish a union with relevant and necessary information for bargaining purposes;

  • announcing a wage increase before consulting the employees' bargaining representative.

Union Unfair Labor Practices

The NLRA is primarily concerned with the legal rights of employees to engage in union and collective bargaining activities, so the legal restrictions on labor unions' dealings with employees are less intrusive than those on employers' relationships with employees. However, there are still seven activities for which a labor union may be charged with an unfair labor practice.69 They are as follows:

1. Restraining or coercing employees who are attempting to exercise their rights guaranteed by the NLRA or interfering with an employer in the selection of his representatives for collective bargaining or grievance adjustment purposes. Examples of this include

  • acts of force or violence on the picket line or during a strike;

  • threatening employees with the loss of their jobs unless they support a union; or

  • fining employees for crossing a picket line after they resigned from the union.

2. Causing an employer to discriminate against an employee in violation of Subsection 8(a)(3) or to discriminate against an employee for whom membership in the union has been denied or terminated for reasons other than nonpayment of the periodic dues and initiation fees required under a union security clause. Examples of this include

  • seeking the discharge of an employee for failure to pay a union fine; or

  • causing an employer to discharge employees because they disagreed with union policy.

3. Refusing to bargain with employers in good faith. Examples of this include

  • refusing to negotiate a mandatory subject of bargaining; or

  • insisting on the inclusion of an illegal contract provision such as a closed shop.

4. Striking, picketing, or threatening such actions to force an employer to

  • cease doing business with another employer;

  • recognize or bargain with a labor union when a different labor union has already been certified;

  • assign particular work to employees represented by a particular union; or

  • join a labor organization or use only vendors or service suppliers whose employees are represented by a labor union.

Examples of this include

  • striking to force an employer to assign particular work to one union when the same work is claimed by another union; or

  • picketing an employer to force it to stop doing business with another employer who has refused to recognize the union.

5. Charging prospective members exorbitant or discriminatory initiation fees.

6. Causing or attempting to cause an employer to pay or deliver or agree to pay or deliver any money or other thing of value for services that are not performed or not to be performed. Examples of this include causing an employer to pay an employee for work not performed.

7. Picketing or threatening to picket an employer to force it to confer recognition on the picketing union as its employees' bargaining representative after

  • the employer has lawfully recognized a different labor union;

  • a certified NLRB election has been conducted in the past 12 months; or

  • the picketing has been conducted for 30 days without a petition for an election being filed with the NLRB.

Examples of this include

  • picketing by a union for organizational purposes shortly after the employer has entered a lawful contract with another union;

  • picketing by a union for organizational purposes within 12 months after a valid NLRB election was held and no union was selected.