What Is The NLRA, And How Does It Apply To Me?
by Christopher L. Maberry
Labor law, which governs the relationship between employers and labor organizations, has recently played a prominent role in the news. One notable dispute involved an attempt by the National Labor Relations Board (NLRB) to prevent Boeing from building airplanes on a new assembly line in South Carolina. Another high-profile dispute arose from Wisconsin Governor Scott Walker’s reform of public employee unions, and the subsequent recall election it generated.
Enacted in 1935, the National Labor Relations Act (NLRA) is the primary federal statute in the field of labor law. The NLRA applies to virtually all private sector employers, and most of their employees—the major exceptions being agricultural laborers, domestic servants, independent contractors, managers and supervisors. If you are currently employed and do not work for a government, chances are, the NLRA applies to you.
Broadly speaking, the NLRA has two purposes. First, it gives employees certain rights, such as the right to join a union. Second, the NLRA prohibits certain practices by employers and unions.
Section 7 of the NLRA grants employees the rights to: (1) self-organize; (2) form, join, or assist unions; (3) bargain collectively through representatives they choose; (4) engage in concerted activities; and (5) not do any of the above.
A common misconception is that these rights only apply to employees in unionized workplaces. To the contrary, these rights apply to non-unionized employees as well, which can have a significant impact on an unknowing employer. For example, if a non-unionized employee complains about working conditions on a social media site such as Facebook or Twitter, and other employees join in the discussion, this activity is most likely protected under the NLRA.
In addition to granting rights to employees, the NLRA prohibits certain unfair labor practices (ULPs). Section 8(a) of the NLRA prohibits employers from: (1) interfering with employees' exercise of their Section 7 rights; (2) interfering with or assisting unions; (3) discriminating against an applicant or employee for the purpose of encouraging or discouraging membership in a union; (4) discriminating against an employee because they filed a ULP charge or gave testimony in an NLRB proceeding; and (5) refusing to bargain in good faith with employees' chosen representatives.
The NLRA also prohibits unions from engaging in specified activities deemed to be ULPs. Section 8(b) prohibits unions from: (1) interfering with employees’ exercise of their Section 7 rights; (2) attempting to cause an employer to discriminate on the basis of union membership; (3) refusing to bargain collectively with the employer; (4) engaging in secondary boycotts, in which the union attempts to coerce other neutral employers; (5) charging excessive or discriminatory initiation fees; (6) causing or attempting to cause an employer to pay for services that are not performed; and (7) picketing an employer for more than 30 days for the purpose of gaining recognition as the employees’ representative.
Moreover, Section 8(e) of the NLRA prohibits what are known as “hot cargo” clauses in collective bargaining agreements entered into between an employer and a union. Pursuant to a “hot cargo” clause, the employer agrees to stop doing business with another employer the union designates as “unfair,” usually because it is not unionized.
Union representation at a particular employer may be established in three different ways. First, an employer may voluntarily recognize a union where the union has support among the majority of employees in the “bargaining unit,” the unit being determined under a “community of interest” test. Second, in situations where an employer engaged in serious ULPs, the NLRB may order an employer to bargain with the union.
The third and most common way for unions to become the exclusive representative of employees is via an election petition filed with the NLRB, which is responsible for enforcing the NLRA. Most often, this petition is filed by a union seeking to represent employees at a particular employer, and requires a showing of interest of at least thirty percent of employees in the proposed bargaining unit.
After the filing of an election petition, the NLRB determines whether there is enough interest to justify an election. If there is sufficient interest, an election will occur. If the union receives a majority of votes, it will become the exclusive representative of the employees in the bargaining unit for a certain period of time.
In sum, the NLRA has an extremely broad application to most private sector employers and employees. It is therefore vital that all employers are cognizant of the rights and prohibitions contained in the NLRA.
Christopher L. Maberry, an associate at Bracewell & Giuliani LLP, represents employers in Labor & Employment Law. He can be reached at Christopher.Maberry@bgllp.com.