General Practice, Solo & Small Firm DivisionMagazine

by Gregg D. Adler

© American Bar Association. All rights reserved.

Gregg D. Adler is a partner in the Hartford, Connecticut law firm of Livingston, Adler, Pulda & Meiklejohn, P.C., which represents individual employees and unions in labor and employment law matters.

General practitioners have traditionally been reluctant to get involved in unfair labor practice cases before the National Labor Relations Board (NLRB) because of the level of complexity and specialization involved in labor law. For the most part, this reticence is wise.

But today, practically every lawyer is expected to be able to provide advice in the area of employment law, and this requires at least a working knowledge of the basic employee rights created by the National Labor Relations Act (NLRA) as well as a general understanding of the enforcement procedures available through the NLRB.

The world of the NLRA can be complex and confusing, and structural impediments make the NLRB of only limited usefulness to lawyers. However, if you listen carefully to your client, you may find that the NLRA can be the source of substantive protections that are not available anywhere else. When these situations do arise, the NLRB can be a useful and effective vehicle for providing relief. If used strategically, the NLRA can be an important tool for empowering and protecting workers.

A History Lesson

The NLRA, otherwise known as the Wagner Act, was passed by Congress in 1935. The NLRA is the grandfather of employee rights legislation in the United States. Although passed primarily to create a peaceful system for unionization and collective bargaining, the NLRA was also the first federal employment discrimination statute-making it illegal for employers to discipline or discharge employees because they engage in union activity and other protected concerted activities.

Exclusive jurisdiction for enforcement of the NLRA was vested in a unique administrative agency-the NLRB. The NLRB was given broad authority to interpret and enforce the rights and obligations created by the NLRA, and to develop through case-by-case adjudication a body of law to govern labor-management relations.

The NLRA went through significant changes in 1947 when the Taft-Hartley Act added a set of provisions designed to regulate and disempower unions. The statutory scheme that exists today, the Labor Management Relations Act (LMRA), combines the original pro-labor provisions of the Wagner Act with the limitations on union activity established by Congress in 1947.

Lawyers who specialize in labor law become familiar with the NLRA and the NLRB very early in their careers. Virtually every aspect of the relationship between unions and employers is regulated by the NLRA-from the procedures for conducting union elections to the process of collective bargaining and contract administration.

Employee Rights Created by the NLRA

NLRA § 7 describes the essential employee rights underlying the act:

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....

NLRA § 8(a) describes employer unfair labor practices. NLRA § 8(b), enacted as part of the Taft-Hartley amendments, establishes union unfair labor practices. It is unlawful for an employer to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed by § 7 (§ 8(a)(1)); to interfere with or dominate in the formation or administration of a labor organization (§ 8(a)(2)); to discriminate against an employee because of her union membership (or nonmembership) activities (§ 8(a)(3)); or to retaliate against an employee who has filed charges with or testified before the NLRB (§ 8(a)(4)). An employer also violates the NLRA when it fails to bargain in good faith with a union when such negotiations are required (§ 8(a)(5)).

The union unfair labor practices contained in §§ 8(b)(1) through 8(b)(7) are actually significantly more complex than the employer prohibitions set forth in § 8(a), and most will be of little use to the general practitioner. NLRA §§ 8(b)(4) and 8(b)(7) regulate union picketing and secondary boycott activities; § 8(b)(5) prohibits excessive or discriminatory initiation fees; § 8(b)(6) prohibits "feather-bedding"; and § 8(b)(3), the parallel to § 8(a)(5), requires unions to engage in good-faith bargaining. Of more importance to general practitioners will be § 8(b)(1)(A), which prohibits unions from interfering with an employee's § 7 rights; and § 8(b)(2), which makes it unlawful for a union to cause or attempt to cause an employer to discriminate against an employee for exercising her § 7 rights.

Protected activities. All employees have the right to engage in organizing or other activities on behalf of a union, and to participate in other types of collective actions with their coworkers for their mutual aid and protection ("protected concerted activities"). Employees also have the right to refrain from engaging in union activities. It is an unfair labor practice for an employer or a union to interfere with any of these rights, or to discriminate against any employee who engages in these activities. The NLRA also prohibits retaliation-either by a union or by an employer-against an employee who files an unfair labor practice charge, or provides testimony to the NLRB.

Although it can take various forms, "union activities" are easy to recognize. Some of the union activities protected by § 7 include solicitation of coworkers to join or support a union; leafleting; attending union meetings; wearing buttons, shirts, hats, or other union insignia; acting as a union steward or grievance representative; attending union meetings; filing grievances under a union contract; and engaging in lawful picketing or strike activities. The NLRB has also determined that participation in internal union political activities is protected by § 7. This includes running for union office, opposing the policies or practices of union leaders, and supporting dissident candidates.

"Concerted" activities. A more difficult task, and one that is likely to be confronted by practitioners who don't specialize in labor law, is identifying the types of employee conduct that come under the rubric of other "protected concerted activities." The key to gaining the NLRA's protection is that the activity actually has to be "concerted." This means that the employee must be acting with or on the authority of other workers, not solely on her own behalf. This definition includes situations where individual employees seek to initiate, induce, or prepare for group action, as well as where an individual brings a truly group complaint to the attention of management.

To be protected, concerted activity must have a specific purpose. Mere griping about management without having a goal or objective in mind may not be considered concerted activity because of the absence of group action. Although in a nonunion environment, worker complaints about purely individual mistreatment are not protected, a union-represented employee who invokes a right he reasonably believes to be set forth in a collective bargaining agreement is engaged in "concerted activity." Thus, an employee's refusal to drive a truck she believes to be unsafe is protected concerted activity where a union contract contains appropriate safety language. However, the same conduct in a nonunion shop might not be protected by the NLRA.

Even with these limitations, the protected concerted activities aspect of § 7 can be an important source of rights for unorganized employees. Employees who have complaints or concerns about workplace issues such as promotional opportunities, shift assignment practices, health and safety, overtime, unfair or abusive supervisors, drug testing, wage and benefit levels, and the like should be counseled to voice their concerns collectively. Presenting such grievances together with a coworker makes the action concerted and provides the employee with protection against discharge or discipline that does not exist if she acts on her own.

Right to representation. NLRA § 7 has also been interpreted by the Supreme Court as creating a right to union representation at investigatory interviews conducted by the employer where the employee reasonably believes that disciplinary action might result. The employer does not have an affirmative duty to inform an employee of this right, but it is unlawful for an employer to discharge or discipline an employee for invoking his right to representation. The NLRB has waffled on the question of whether employees in a nonunion environment should be entitled to the presence of a coworker at an investigatory interview. Since 1988 the answer has been no. However, because this interpretation is plainly inconsistent with the policy and logic behind the "mutual aid and protection" language of § 7, the current General Counsel has indicated that he will ask the NLRB to again reconsider the issue.

Definitions of "employee" and "supervisor." These protections are not extended to all workers, but only to those who fit within the NLRA's definition of "employee." Most significantly, the statutory definition excludes supervisors, independent contractors, public sector employees, agricultural workers, and transportation workers covered by the Railway Labor Act.

There has been a great deal of litigation about who is a "supervisor" within the meaning of the NLRA. Excluded from coverage is anyone who has the authority to transfer, suspend, layoff, promote, discharge, or discipline employees; to adjust grievances; or to effectively recommend such action. The NLRB and the courts have also carved out an additional policy exception for managerial employees who may not neatly fit into the definition of supervisor but whose duties and responsibilities supposedly make them ill-suited for union representation and the protections of the NLRA.

Despite these limitations, the NLRB's General Counsel has recently been engaged in efforts to expand the NLRA's coverage by seeking to include graduate student teaching assistants and medical interns and residents as statutory employees, and through exposing situations where employers have categorized workers as "independent contractors" who really should be considered employees and entitled to the protections of the NLRA.

Filing an Unfair Labor Practice Charge

The NLRB has exclusive jurisdiction over all unfair labor practices. Like most administrative law systems, this has advantages and disadvantages. Unfair labor practice charges must be filed with one of the NLRB's regional offices within six months of the complained-of events. The charge may be filed by the individual whose rights have been violated or by any other person. Filing a charge is easy and free. Your local NLRB office has someone assigned to handle telephone and in-person inquiries. The intake officer explains the rules of the game and, in appropriate circumstances, prepares and processes the charge form.

In most cases the regional office will complete its investigation within about 60 days, and if the regional director determines that there is merit to the claim, an NLRB lawyer will be assigned to prosecute the case before an administrative law judge. However, because Congress made the NLRB's jurisdiction exclusive, an employee who is harassed, disciplined, or discharged because of her union activity or protected concerted activity is precluded from bringing such a claim to court. The NLRA preempts any state law claims where the activity in question is arguably protected or prohibited by the NLRA. Unfortunately for plaintiffs' employment lawyers, the NLRB's remedial scheme is limited, which means reinstatement and back pay. Neither compensatory damages nor attorney fees are available from the NLRB, and you never get to make a closing statement to a jury.

The Right to Union Representation

The rights and procedures relating to obtaining union representation are set forth in NLRA § 9. Representation proceedings before the NLRB are triggered by the filing of a petition in the regional office. In order to be entitled to an election, a labor organization must demonstrate that it has the support of at least 30 percent of the eligible employees. This "showing of interest" is not provided to the employer, and can be accomplished through the submission of union authorization cards signed by the employees.

The NLRB's election procedures have been the subject of much criticism. Most industrial countries have more efficient and effective mechanisms for obtaining union representation. The NLRB allows for substantial "due process," the effect of which is to allow employers to use delay as a device to undermine union support. The General Counsel has worked hard to make improvements in the timeliness of holding elections, but much of the problem is structural and can only be fixed by Congress. Employers can force a hearing on practically any issue-no matter how insignificant or frivolous.

After the election is completed, either side can file objections to the conduct of the election. Objections usually involve allegations that voters were coerced or intimidated by the employer or the union, or that events occurred that interfered with the "laboratory conditions" that are supposed to facilitate free choice.

Resolution of objections normally requires a hearing, followed by a decision from the regional director and then the inevitable appeal to the NLRB in Washington. If the union prevails in front of the NLRB the employer can refuse to bargain, thus triggering unfair labor practice proceedings, another appeal to the NLRB, and finally a petition for review or enforcement to the court of appeals. Mean-while, the employees who had voted for the union remain unrepresented throughout this terrific process.

Once union representation is achieved and a collective bargaining agreement is negotiated, employees gain many substantive rights that do not exist in the unorganized workplace. Union contracts generally include protections against discipline or discharge without "just cause," standardized pay and benefit increases, systems for promotions, seniority rights, and grievance and arbitration procedures, and other workplace rights.


The most important time for legal representation in an unfair labor practice proceeding is during the investigatory stage. The key is to convince the NLRB agent assigned to the case, and ultimately the regional director, that the facts warrant the issuance of a complaint. This requires a good knowledge of the relevant legal issues and an ability to guide the NLRB agent through the disputed facts while showing proper deference to her experience and expertise.

If the regional director decides your charge lacks merit, the NLRB agent who investigated the case will call you. She will explain the basis for the regional director's decision, and offer you the opportunity to withdraw the charge. If that option is rejected, you will get a dismissal letter and notification of your right to appeal that determination to the Office of the General Counsel in Washington.

Because the General Counsel exercises prosecutorial discretion on unfair labor practices, his ultimate determination that a charge lacks merit is not subject to judicial review. So if your case is important enough, and you believe the region's decision was clearly wrong, it is probably worth asking for a meeting with the regional director to try to convince him to reconsider. Although practices vary, most regional directors will agree to meet if there is a reasonable basis for your position.

Because the members of the NLRB are appointed by the president to five-year terms, the interpretation and application of the provisions of the NLRA are quite fluid. Different constellations of NLRB members regularly alter existing doctrine based upon their differing perspectives on policy. In addition, decisions about which legal doctrines should be challenged or presented to the NLRB members for reconsideration are made by the General Counsel, who is also appointed by the president.

Being an effective advocate during the processing of an unfair labor practice charge requires both a good knowledge of the most current case law on the particular issue involved, and an understanding of any relevant guidance or direction that has been provided by the incumbent General Counsel. -G.A.      

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