Employer Unfair Labor Practices under the National Labor Relations Act - ABA YLD 101 Practice Series

By Edward Holzwanger

Although the National Labor Relations Act applies to a large percentage of the nation's employers, young attorneys are generally less familiar with it than with other federal employment statutes like Title VII, the ADA, and the ADEA. While the NLRA covers both employers and unions, this article provides an overview of the types of employer conduct prohibited by the NLRA, the process by which this conduct is prosecuted, and the remedies available to employees whose rights have been violated. This article is not a comprehensive discussion of the NLRA; rather, it provides a very general overview of an employer's obligations under the NLRA, which, as you will see below, are many.

Rights Protected By the NLRA
Section 7 of the NLRA grants to employees "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 purposes of collective bargaining or other mutual aid or protection...." 29 U.S.C. § 157. It also grants to employees "the right to refrain from any or all such activities...." Ibid. This language covers a broad range of employee activity: forming, or attempting to form, a union; joining a union; assisting a union in organizing other employees; and other group activity concerning employee wages and working conditions.

It is important to remember that, contrary to the general understanding that the NLRA's reach is limited to employee activity related to unionization, the NLRA protects employees' exercise of their Section 7 rights without regard to whether a union is involved. The NLRA will apply to employee conduct so long as employees are engaged in "concerted protected activity," i.e., activity undertaken together by two or more employees, or by one on behalf of others, "when they seek to improve terms and condition of employment or otherwise improve their lot as employees...." See Patrick Hardin & John E. Higgins, 1 The Developing Labor Law 79-80 (4th ed. 2001) (quoting Eastex, Inc. v. NLRB, 437 U.S. 556, 565 (1962)).

Unfair Labor Practices by Employers
Section 8(a) of the NLRA proscribes employer conduct inimical to employees' Section 7 rights. Employer conduct prohibited by the NLRA includes:

  • Interference, Restraint, and Coercion
    Section 8(a)(1) of the NLRA makes it unlawful for an employer to "interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in [Section 7]." 29 U.S.C. § 158(a)(1). This section prohibits a wide variety of employer practices, including overly-broad or discriminatorily applied non-solicitation and non-distribution policies, interrogating employees about their union activity, threatening job loss or plant closure, promising benefits, soliciting grievances, surveilling employees or creating the impression that employees' union activities are under surveillance, and unjustified restrictions on the display of union paraphernalia.

Generally speaking, a finding of interference, restraint and coercion under Section 8(a)(1) does not turn on the employer's motive, the employee's reaction, or on whether the coercion succeeded or failed. Rather, the test is whether the employer engaged in conduct which, it may reasonably be said, tends to interfere with the free exercise of employee rights. See, e.g., Sunnyside Home Care Project, Inc., 308 NLRB 346 fn.1 (1992).

  • Discrimination
    Section 8(a)(3) of the NLRA proscribes employer "discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization." 29 U.S.C. §158(a)(3). This section prohibits any adverse employment action, including discharge, refusal to hire, layoff, discipline, demotion, and imposition of new job requirements, if the employer takes the adverse action because the employee engaged in union or other concerted protected activity.

Discriminatory motive in Section 8(a)(3) cases may be demonstrated by direct evidence; in most cases, however, unlawful motive is demonstrated by circumstantial evidence in accordance with the analysis set forth in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F. 2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). That analysis, which is similar to the McDonnell Douglas Corp. v. Green burden shifting analysis used in other employment discrimination cases, requires the General Counsel to show that the employee's protected activity was a motivating factor in the employer's action. If such a showing is made, the burden shifts to the employer to establish that it would have taken the same action even in the absence of the employee's protected conduct.

  • Refusal to Bargain
    Section 8(a)(5) makes it unlawful for an employer "to refuse to bargain collectively with the representative of his employees...." 29 U.S.C. § 158(a)(5). This section establishes an employer's duty to bargain with its employees' representative in good faith. Conduct in derogation of this duty includes: unilateral changes in employees' terms and conditions of employment; refusal to meet and confer with the employees' representative about mandatory subjects of bargaining (There is a substantial body of law relating specifically to what constitutes a mandatory subject of bargaining. Generally, mandatory subjects will be those relating to "wages, hours, or other terms and conditions of employment...." See NLRB v. Borg-Warner Corp., Wooster Division, 365 U.S. 342 (1958)); refusal to furnish information to the union; and dealing directly with employees about their terms and conditions of employment.

Analysis of Section 8(a)(5) allegations frequently turns on two factors: 1) whether the employer has a duty to recognize the union claiming to represent its employees; and 2) whether the employer has bargained in good faith. Generally, where a union has won an election and continues to enjoy the support of a majority of the employees it claims to represent, the employer is required to bargain with it about its employees' terms and conditions of employment. If that is the case, an employer's obligation to bargain in good faith will require it to confer with the union about terms and conditions of employment until a valid bargaining impasse has occurred.

The unfair labor practices described above represent only a small portion of the types of conduct that employees may allege as violations of the NLRA. When faced with an unfair labor practice charge, you should always include research on the National Labor Relations Board case law pertinent to the charge. Of course, because each case turns on the facts, it is also important to preserve a detailed record of the specific facts related to any unfair labor practice charges against your client.

Unfair Labor Practice Procedure
The NLRA does not create a private cause of action that an aggrieved employee may initiate in court. Instead, the various regional offices of the NLRB prosecute alleged violations of the Act. The NLRB does not initiate investigations into suspected unfair labor practice charges of its own accord; rather, it acts only upon the filing of an appropriate charge by an employee or a union.

After an employee files a charge, the NLRB will investigate the charge and determine whether a complaint should issue. If it determines that a complaint should not issue, then it will dismiss the charge. If, on the other hand, the NLRB decides that the charge appears to allege employer conduct that violates the Act, it will issue a complaint and set the case for hearing before an administrative law judge.

Upon conclusion of the hearing, the administrative law judge will issue a decision containing a presentation of the facts, conclusions of law, and a recommended remedy. If the employer takes exception to any of the factual findings or legal conclusions of the administrative law judge, it is allowed to appeal that decision to the NLRB, which is composed of five members. After analyzing the issues presented, the NLRB will issue its decision, which parties may appeal to the applicable federal circuit court of appeals.

Like the rules applicable to the federal district and state courts you are familiar with, the procedural niceties of litigation before the NLRB are many. If you are preparing to bring a case before the NLRB, you should make yourself familiar with the Rules and Regulations of the NLRB.

Remedies for Unfair Labor Practices
Although the NLRB has invested the Board with broad discretion to fashion remedial orders in unfair labor practice cases, the remedies available under the NLRA are somewhat limited. Congress did not empower the NLRB to order punitive damages. See Republic Steel Corp. v. NLRB, 311 U.S. 7, 10 (1940).Thus, the NLRB generally orders employers to "cease and desist" from engaging in the specific activity that constituted a violation of the NLRA. In cases where an employer has unlawfully discriminated against employees or unlawfully changed their terms and conditions of employment, the NLRB will order the employer to make whole the employees, including reinstatement for unlawfully discharged employees, or to reinstitute the terms and conditions of employment existing before the unlawful unilateral changes. Finally, where an employer has violated Section 8(a)(5) by refusing to bargain with the representative of its employees, the Board will order the employer to recognize the union and bargain with it as required by the NLRA.

The views presented in this article are those of the author and do not represent the views of the National Labor Relations Board or the United States Government.


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About the Author

Edward Holzwanger is Senior Counsel to Member Peter C. Schaumber of the National Labor Relations Board in Washington, D.C. Mr. Holzwanger is admitted to practice in Alabama and the District of Columbia. He is a member of the American Bar Association's Young Lawyers Division, the Alabama Bar Association, and the District of Columbia Bar Association.

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