The NLRB and Union Activity

The National Labor Relations Act (NLRA) is enforced by The National Labor Relations Board (NLRB). The NLRB is an independent agency of the federal government and is responsible for enforcing U.S. labor law and unfair labor practices for employees of union and non-union companies.

Section 7 of the National Labor Relations Act (“NLRA”) 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) of this title.

Basically, it is deemed an unfair labor practice for employers to interfere with, restrain, or coerce employees who are exercising their rights guaranteed in Section 7. The main concept being protected concerted activities. Concerted means discussions between two or more employees or one employee speaking on behalf of other employees. Protected means an activity that involves terms and conditions of employment wages, hours, benefits and other terms and conditions that may apply to employment status or working conditions. Any company rule or policy is unlawful if it restricts any protected activities in Section 7.

Some examples of protected activity include:

  • discussing wages, benefits, or other working conditions with co-workers
  • complaints on behalf of an employee or group of employees
  • preparing for union activity
  • encouraging other employees to engage in protected activity
  • walking out of the job as a protest against a policy
  • taking action to enforce a provision of an existing collective-bargaining agreement
  • communicating via email to discuss working conditions, benefits or complaints against management or policies

Some examples of unprotected activity include:

  • behavior that is insubordinate, abusive or disrupts the work process
  • displaying false information or malicious statements about the company
  • disclosure of confidential information

Coercion of employees (Section 8(b)(1)(A)) as stated by the NLRB…
Employees have the right to unionize and to join together to advance their interests as employees. They also have the right to refrain from such activity. It is unlawful for a labor union to restrain or coerce employees in the exercise of their rights. For example, you may not restrict employee-members’ freedom to resign from the union, or fine an employee-member for filing a decertification petition.

Section 8(b)(1)(A) of the Act makes it unlawful for a labor organization or its agents “to restrain or coerce employees in the exercise of the rights guaranteed them in Section 7 of the Act, provided that this paragraph shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein.”

Employers should make sure their supervisors are adequately trained to deal with employees engaging in union activity.

Supervisors should know the TIPS. Section 8(a) states they cannot:

Threaten to…

  • reduce wages or benefits due to union activity
  • discharge, demote, layoff, etc. due to union activity
  • shut down the company if the union wins
  • refuse to bargain in good faith
  • state that strikes are inevitable
  • strictly enforce rules if union wins
  • discontinue advantageous practices if union wins

Interrogate employees…

  • as to what they think about unions
  • what other employees think about unions
  • how they voted or intend to vote
  • whether they signed or would sign a union authorization card
  • whether they belong to or will join a union
  • what occurred at a union meeting or who attended
  • what problems led to them seek union status

Promise to…

  • give increases or add wages or benefits if union loses
  • remedy grievances
  • give promotion, better pay, etc. if union loses
  • do anything based on union losing or employees not supporting union

Spy on employees…

  •  includes on-and off-site surveillance
  • make comments regarding union meetings
  • encourage other employees to spy or report on union activity or employees
  • attend union meeting – even if invited
  • intentionally eavesdrop on employee conversations about unions
  • monitor employees engaged in union activity outside the facility
  • taking photographs, videos, or audio recordings of employees engage in union activity

So, what CAN a supervisor do?

Section 8(c) states:

“The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this subchapter, if such expression contains no threat of reprisal or force or promise of benefit.”

Supervisors can offer F.O E…
Facts:

  • facts about unions
  • union promises are just that, and cannot be fulfilled unless the company agrees
  • employees have an absolute right not to sign authorization cards, and to vote against the union even if they’ve signed cards
  • employees have a legal right to refuse to speak with the union organizers or pro-union employees
  • facts about authorization cards
  • facts about collective bargaining

Opinions:

  • not having a union is in the best interest of company and its employees
  • the union only wants our employees’ money and is not really interested in their welfare
  • if the union is voted in, leadership may not be from the employee ranks — the shots may be called by national leadership
  • you can’t just give the union a chance — once they’re in, they’re in
  • but be careful with, “in my opinion…”

Experience:

  • share personal experiences with unions
  • share experiences in strikes
  • it is ok to share the experience of a family member or friend
  • always be factual – credibility!!!

Warning signs of union organizing efforts can range from complaints being made by employees and distrust in management, to poor performance on their jobs or attendance at company events.

Below are some reasons employees think about unionizing. Proactively identifying and responding to these issues can prevent arguments in unionizing efforts.

  • Lack of recognition
  • Abusive supervisor or manager
  • Lack of supervisor or manager’s professionalism
  • Safety concerns
  • Inequality in enforcement of policies
  • Wages or benefits

Proactively identify issues and behaviors long before the need to react to a union campaign and take away, in advance, the arguments for organizing.


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