Union / Non-Union Rights

Congress enacted the National Labor Relations Act ("NLRA") in 1935 to protect the rights of employees and employers, to encourage collective bargaining, and to curtail certain private sector labor and management practices, which can harm the general welfare of workers, businesses and the U.S. economy.

The NLRA forbids employers from interfering with, restraining, or coercing employees in the exercise of rights relating to organizing, forming, joining or assisting a labor organization for collective bargaining purposes, or from working together to improve terms and conditions of employment, or refraining from any such activity. This protection extends to certain work-related posts and conversations conducted on social media such as Twitter and Facebook.

• Forming, or attempting to form a union in your workplace;

• Joining a union, whether or not that union is recognized by your employer;

• Assisting a union in organizing your fellow employees;

• Engaging in protected concerted activity regarding terms and conditions of employment;

Talking about your working conditions with your co-workers or the public (as long as your statements are not maliciously false or otherwise extremely profane, vulgar, or disruptive to the workplace).

Threatening employees with loss of jobs or benefits if they join or vote for a union or engage in protected concerted activity;

• Threatening to close the plant if employees select a union to represent them;

• Threatening, engaging in surveillance of union activities or questioning employees about their union sympathies or activities in circumstances that tend to interfere with, restrain or coerce employees in the exercise of their rights under the Act;

• Prohibiting you from talking to others about your wages, working conditions, or a union during non-working time, such as before or after work or during break times.

• Promising benefits to employees to discourage their union support;

• Transferring, laying off, terminating, assigning employees more difficult work tasks, or otherwise punishing employees because they engaged in union or protected concerted activity;

• Transferring, laying off, terminating, assigning employees more difficult work tasks, or otherwise punishing employees because they filed unfair labor practice charges or participated in an investigation conducted by the National Labor Relations Board (“NLRB”).

After employees choose a union as a bargaining representative, the employer and union are required to meet at reasonable times to bargain in good faith about wages, hours, vacation time, insurance, safety practices and other mandatory subjects. Some managerial decisions such as subcontracting, relocation, and other operational changes may not be mandatory subjects of bargaining, but the employer must bargain about the effects of those decisions on unit employees.

It is an unfair labor practice for either party to refuse to bargain collectively with the other, but parties are not compelled to reach agreement or make concessions.

If after sufficient good faith efforts, no agreement can be reached, the employer may declare impasse, and then implement the last offer presented to the union. However, the union may disagree that true impasse has been reached and file a charge of an unfair labor practice with the National Labor Relations Board for failure to bargain in good faith. The NLRB will determine whether true impasse was reached based on the history of negotiations and the understandings of both parties. If the NLRB finds that impasse was not reached, the employer will be asked to return to the bargaining table. In an extreme case, the NLRB may seek a federal court order to force the employer to bargain.

The parties' obligations do not end when the contract expires. They must bargain in good faith for a successor contract, or for the termination of the agreement, while terms of the expired contract continue.

The duty to bargain in good faith is an obligation to participate actively in the deliberations so as to indicate a present intention to find a basis for agreement. This implies both an open mind and a sincere desire to reach an agreement, as well as a sincere effort to reach common ground.

The additional requirement to bargain in "good faith" was incorporated to ensure that a party did not come to the bargaining table and simply go through the motions. Conduct away from the bargaining table may also be relevant. For instance, if an Employer were to make a unilateral change in the terms and conditions of employees employment without bargaining, that would be an indication of bad faith.