CHAPTER 5

Collective Bargaining Agreements

INTRODUCTION

Perhaps one of the most significant legislative achievements of the twentieth century for the protection of the private sector’s workforce was Congress’s passage of the National Labor Relations Act (“NLRA”). The history of the law’s development and evolution is discussed more fully in Chapter 4. While limited in scope to workers in the private sector (and thus inapplicable to public-sector employees at the federal, state, and municipal government levels, as well as to agricultural workers), the NLRA nevertheless provides an orderly system whereby employees may (1) choose to organize into bargaining units composed of workers with a similar community of interests thereby creating a new labor organization (“union”), or (2) select a preexisting union to represent them by means of free and transparent elections for collective bargaining purposes. Once a union has been selected it will thereafter represent the employees’ interests at the bargaining table by engaging their employer in negotiations over the terms of wages, hours, and other conditions of employment that ultimately are converted into a written collective bargaining agreement. This agreement will govern the employment relationship with the union member’s employer for a mutually agreed upon period of time.

The NLRA thirdly provides legal protections to workers and their union representatives so that they can engage in good-faith bargaining over the terms of collective bargaining agreements. The NLRA also protects these individuals’ participation in various forms of activities in furtherance of their exercise of rights protected by the NLRA. These activities include the right to quasi-judicial hearings before administrative law judges of the National Labor Relations Board (“NLRB”) to adjudicate various charges of alleged unfair labor practice violations of the NLRA.

IN PLAIN ENGLISH

Quasi-judicial means that it is not actually a traditional court. It resembles a court and follows similar procedures. An example of this would be a proceeding handled by an administrative law judge rather than a traditional state or federal judge.

This chapter, concerning collective bargaining in the private sector, is divided into three distinct but connected areas. First discussed is the law governing organizing workers into appropriate bargaining units and the conduct of free elections to determine whether bargaining unit members wish or do not wish to be represented by a union for collective bargaining purposes. Secondly, we shall discuss the law governing the rights of the union, if selected to represent the bargaining unit, when engaging in collective bargaining with an employer. These negotiations concern the terms and conditions of employment that later become the union contract and collective bargaining agreement. Lastly, we shall discuss the law governing the rights of employees to engage in protected activities on behalf of themselves and their coworkers without being discriminated against or otherwise penalized for their exercise of protected activities under the NLRA.

You should be aware of the fact that this chapter simply provides a general overview of this complex area of law governing collective bargaining relationships in the private sector. A far more detailed and comprehensive resource for research in this area may be found in The Developing Labor Law: The Board, the Courts, and the National Labor Relations Act by John Higgins and published by the American Bar Association. This is a very technical book and would likely be a good resource for your employment attorney. The best way for you to handle an employment-related problem is for you engage the services of a competent attorney, many of whom specialize in the area of traditional labor law and exclusively represent either individual employees and unions or employers.

THE NATIONAL LABOR RELATIONS ACT (NLRA)

The NLRA, it should be initially noted, is decidedly pro–collective bargaining in its vision concerning the national interest of providing an orderly mechanism for the resolution of disputes that inevitably arise within of the employer-employee relationship. Indeed, the NLRA’s stated purpose is to define and protect the rights of employees as well as employers, to encourage collective bargaining, and to eliminate certain practices on the part of labor and management that are harmful to the general public welfare.

The NLRA states and defines the rights of employees in the private sector to organize and bargain collectively with their employers through representatives of their own choosing or alternatively to decline to do so. To ensure that employees can freely choose their own representatives for purposes of collective bargaining (or choose not to be represented), the NLRA establishes procedures by which employees can exercise their choice by means of secret-ballot elections conducted by NLRB staff. Furthermore, to protect the rights of employees and employers alike, and to prevent labor disputes that would adversely affect the rights of the general public, Congress has defined certain practices of employers and unions as “unfair labor practices,” which are prohibited by the law.

The NLRA is principally administered and enforced by the National Labor Relations Board (NLRB) and its Office of the General Counsel acting through fifty-two regional and field offices located in major cities across the United States. The General Counsel and staff of the NLRB’s Regional Offices investigate and prosecute unfair labor practice cases on behalf of individuals and businesses that file complaints. The office also conducts representation elections to determine employee union representatives. The presidentally appointed five-member NLRB decides cases involving charges of unfair labor practices and determines representation election questions as referred from its regional offices.

IN PLAIN ENGLISH

This is an attorney appointed by the president of the United States for a four-year term to head the legal department for the National Labor Relations Board. The current general counsel is Peter B. Robb.

COLLECTIVE BARGAINING AND REPRESENTATION OF EMPLOYEES

Collective bargaining as defined by NLRA Section 8(d) requires an employer and the representative of its employees to meet at reasonable times, confer in good faith about certain matters, and to put into writing any agreement reached if requested by either party (all Section references in this chapter at to the National Labor Relations Act unless otherwise specified). The parties must confer in “good faith” (a term of art defined through NLRB and federal court cases) with respect to wages, hours, other terms or conditions of employment, the negotiation of an agreement, and any questions arising under an agreement.

IN PLAIN ENGLISH

“Good faith” is defined as an honest intent to do some action without taking advantage over another person or to fulfill a promise, even when some legal technicality is not satisfied. This term is used in many areas of the law and it has different meanings depending on the context in which it is used. For purposes of the National Labor Relations Act it is defined by numerous employment cases.

It is an unfair labor practice for either party to refuse to bargain collectively with the other. That obligation to bargain in good faith, however, does not compel either party to agree to a proposal of the other, nor does it require either party to make a concession to the other.

Section 9(a) provides that employee representatives “designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining.”

Appropriate Bargaining Units

What is an appropriate bargaining unit? A bargaining unit is a group of two or more employees who share a community of interest regarding their wages, hours, and other terms and conditions of employment and may reasonably be grouped together for purposes of collective bargaining. The determination of what is an appropriate unit for such purposes is, under the NLRA, left to the NLRB’s discretion. Section 9(b) states that the NLRB shall decide in each representation case whether, “in order to assure to employees the fullest freedom in exercising the rights guaranteed by this Act [NLRA], the unit appropriate for the purposes of collective bargaining shall be the employer unit, craft unit, plant unit, or subdivision thereof.”

Generally speaking, the appropriateness of a bargaining unit is determined on the basis of a community of interest of the employees involved. Those who have the same or substantially similar interests concerning wages, hours, and working conditions are grouped together in a bargaining unit. In determining whether a proposed unit is appropriate, the following factors are also considered:

• Any history of collective bargaining.

• The desires of the employees concerned.

• The extent to which the employees are organized. Section 9(c)(5), however, forbids the NLRB from giving this factor controlling weight.

Exclusions from Bargaining Units

Who can or cannot be included in a bargaining unit? A unit may cover the employees in one plant of an employer, or it may cover employees in two or more plants of the same employer. It should be noted that a bargaining unit can include only persons who are “employees” within the meaning of the NLRA. As referenced earlier, the NLRA excludes from its coverage certain individuals such as agricultural laborers, independent contractors, supervisors, and persons in managerial positions, from the meaning of “employees.” None of these individuals can thus be included in a bargaining unit established by the NLRB.

In addition, the NLRB, as a matter of policy, excludes from a bargaining unit an employee who acts in a confidential capacity (a confidential employee) to an employer’s labor relations officials.

Once an employee representative has been designated by a majority of the employees in an appropriate bargaining unit, the NLRA makes that representative the exclusive bargaining agent for all employees in the unit. As the exclusive bargaining agent for the unit, the union has a duty to represent all employees in the unit fairly and equally without regard to their union membership or activities (the duty of fair representation). Once a collective-bargaining representative has been designated or selected by its employees, it is illegal for an employer to bargain with anyone other than the designated representative for members of that unit or for the unit itself.

Section 9(a) provides that any individual employee or group of employees shall have the right at any time to present grievances to their employer and to have such grievances heard without the intervention of the bargaining representative, provided:

• The hearing is not inconsistent with the terms of any collective-bargaining agreement then in effect; and

• The bargaining representative has been given the opportunity to be present at such a hearing.

How Are Bargaining Representatives Selected

The NLRA requires that an employer bargain with the representative selected by its employees. The most common method by which employees can select a bargaining representative is a secret-ballot representation election conducted by the NLRB staff. There are a number of cases both in front of the administrative law judges and in traditional courts that involve these types of elections. This is a complex area of employment law, and if you are involved with union elections you should enlist the aid of an experienced attorney.

The Rights of Employees

The rights of employees are principally set forth in Section 7. Examples of the rights protected by Section 7 are as follows:

• Forming or attempting to form a union among the employees of a company.

• Joining a union whether the union is recognized by the employer as the representative of a bargaining unit or not.

• Assisting a union in organizing the employees of an employer.

• Going out on strike (a refusal to work) to secure better working conditions of employment.

• Refraining from activity on behalf of a union.

Union-Security Agreements

Pursuant to the NLRA, unions may be elected to provide representation services to members of a bargaining unit. In exchange for providing those services, however, a union will seek a form of payment (“union dues”) from bargaining unit members to defray the costs and expenses of providing those representational services.

The NLRA permits, under certain conditions, a union and an employer to enter into an agreement (a “union-security agreement”) that requires bargaining unit members to make certain payments to the union from their paychecks (dues checkoffs) for purposes of providing representation services in order to retain their jobs. A union-security agreement cannot, however, require an applicant for employment to become a union member in order to be hired, and such a union-security agreement can also not require employees to actually join or maintain membership in a union in order to retain their jobs.

Under a valid union-security agreement, employees choosing to not become dues-paying members of a union may, however, be required, as with employees who actually do join the union, to pay full initiation fees and dues following a “grace period” after a collective-bargaining agreement becomes effective or after a new employee is hired. However, the most that can be required of nonmembers of the union who advise the union representing them that they object to the use of their payments of dues for nonrepresentational activities (such as for political campaign contributions) is that they pay their fair share of the union’s costs resulting from providing actual representational services to all bargaining unit members. These services include collective bargaining with the employer, contract administration (“policing the agreement”), and grievance hearings (including arbitration through the grievance procedures in collective bargaining agreements).

Under a union-security agreement, employees who have religious objections to becoming union members or to financially supporting a union (“religious objectors”) may be excused from paying any union dues or initiation fees. Religious objectors, however, may be required to make a comparable financial contribution to a nonreligious, nonlabor, tax-exempt organization instead of making payments to a union. Unions representing such employees may also charge them the reasonable costs associated with any grievances under the collective bargaining agreement processed upon their behalves.

STRIKES

Section 7 furthermore states, in part, “[e]mployees shall have the right to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Strikes (the withholding of labor from an employer) are included among those concerted employee activities protected by this section. Section 13 also addresses the right to strike. It is clear from both Sections 7 and 13 that while the law guarantees the right of employees to strike, it does so cautiously. Sections 7 and 13 place limitations and qualifications on the exercise of an employee’s right to strike.

The lawfulness of a strike may depend on the object or purpose of the strike, on its timing, or upon the conduct of the strikers involved while on the picket line.

Employees and employers who anticipate being involved in a strike action should proceed with extreme caution. Furthermore, it is important to seek the advice of competent legal counsel as such activities are likely to result in serious ramifications to the parties’ ongoing labor-management relationship and could result in substantial economic damages.

Employees who strike for a lawful purpose fall into one of the following two classes: “economic strikers” and “unfair labor practice strikers.” Both classes of strikers continue as employees under the NLRA during the course of the strike, but unfair labor practice strikers possess greater rights to reinstatement to their jobs following conclusion of the strike than economic strikers.

If the object of a strike is to obtain from the employer some form of economic concession such as higher wages, shorter hours, or better working conditions, the striking employees are called “economic strikers.” Economic strikers retain their status as employees and cannot be discharged. They can, however, be replaced by their employer. If the employer has hired bona fide permanent replacements to fill the jobs of the economic strikers, then when the strikers apply to return to work unconditionally, the strikers are not legally entitled to immediate reinstatement at that time. If the economic strikers do not obtain regular and substantially equivalent employment with their employer, they are only entitled to recall to jobs for which they are qualified when such positions become available. As noted above, this is only if they, or their bargaining representative, make an unconditional request for reinstatement.

On the other hand, employees who strike in protest of an unfair labor practice committed by their employer are called “unfair labor practice strikers.” Unfair labor practice strikers can neither be discharged nor permanently replaced. When the strike ends, unfair labor practice strikers, absent serious misconduct on their part during the strike, are entitled to have their jobs back. This is true even if replacement employees hired during the strike must be discharged in order to do so. It should be noted that misconduct while participating as pickets on the picket line qualifies as serious misconduct that could override the right of reemployment.

Given the distinctions between the rights of economic versus unfair labor practice strikers, it is important to recognize the perilous positions both employers and unions may be placed in with respect to strikes. A strike following a period of negotiations at the bargaining table that has failed to achieve an agreement is likely to be accompanied by unfair labor practice charge(s) claiming the employer has failed to bargain in good faith with the union. If employees then strike against the employer, the union will likely argue they are unfair labor practice strikers and thus entitled to immediate reinstatement following conclusion of the strike. The employer, on the other hand, may respond that the employees are in fact striking in order to extract economic concessions from the employer that the union was otherwise unable to achieve at the bargaining table. Thus, the strikers are economic strikers who are not entitled to immediate reinstatement following conclusion of the strike.

Untangling a strike’s true intent is likely to be a complex, protracted, and legally expensive task, which must be adjudicated by the NLRB. Should the NLRB ultimately conclude that economic strikers or unfair labor practice strikers have unconditionally requested reinstatement and been unlawfully denied reinstatement by the employer, the NLRB may award such strikers back pay starting from the date they should have been reinstated. This can result in a substantial financial burden for employers.

The most logical, and potentially economically advantageous, solution to resolve such a legal dilemma, especially when the intent of a strike is ambiguous, is to draft the terms of striking employees’ reinstatement into an agreed-upon settlement that includes a successor collective bargaining agreement. The Federal Mediation and Conciliation Service, which has offices in major cities throughout the United States, maintains a staff of highly skilled and experienced mediators who may be dispatched at no cost to the parties to mediate and potentially resolve these and other types of labor disputes.

IN PLAIN ENGLISH

A mediator is an individual who is retained by the parties to a dispute to assist them in resolving the dispute. The mediator is impartial and acts like a referee. The mediator does not have to be an attorney, though most of them are. The mediator’s sole mission is to resolve the dispute. While services such as the Federal Mediation and Conciliation Service exist and offer their services free of charge, it is typical for mediation expenses to be equally divided between the parties in other situations.

A strike may be found unlawful, however, because an object or purpose of the strike is unlawful. For example, it is an unfair labor practice for an employer to discharge an employee for a failure to make certain lawful payments to the union when there is no union-security agreement in effect. A strike to compel an employer to do this in the absence of a lawful union-security agreement would be an example of a strike for an unlawful objective or purpose and, therefore, constitute an unlawful strike.

Furthermore, Section 8(b)(4) prohibits strikes for certain objectives even though the objectives are not necessarily unlawful when achieved by other means. For example, consider a strike to compel Employer A to cease doing business with Employer B. It would not be unlawful for Employer A to voluntarily stop doing business with Employer B. Nor is it unlawful for a union to merely request that it cease doing business with Employer B. It is, however, unlawful for the union to strike Employer A with an object of forcing that employer to cease doing business with Employer B.

A strike that violates a no-strike provision of a collective bargaining agreement is also not protected by the NLRA, and the striking employees can be discharged or otherwise disciplined for engaging in such a contractually prohibited strike. This is true unless the strike is called by the union to protest certain kinds of unfair labor practices being committed by the employer. It should also be noted that not all refusals to work are considered a “strike” and thus a violation of no-strike provisions of collective bargaining agreements. For example, a walkout by employees due to conditions abnormally dangerous to their health and safety, such as a defective ventilation system in a spray-painting shop, has been held not to violate a no-strike provision in the collective bargaining agreement.

Section 8(d) provides that when either party desires to terminate or change an existing collective bargaining agreement, it must comply with certain preconditions for doing so. If these preconditions are not met, however, a strike to terminate or change a contract is unlawful and participating strikers then lose their status as employees of the employer engaged in the labor dispute.

Strikers who engage in serious misconduct in the course of a strike may also be refused reinstatement to their former jobs with their employer. This applies to economic strikers and unfair labor practice strikers alike. Serious misconduct on the picket line has been held to include, for example, violence and threats of violence. The US Supreme Court has furthermore ruled that a so-called sit-down strike, that is, when employees stay inside an employer’s plant but refuse to work, thereby preventing the employer from continuing its operations by use of replacement workers and thus depriving the owner of the use of his property, is not protected by the NLRA. Furthermore, examples of serious misconduct that may cause employees involved in strike activities to lose their right to reinstatement are:

• Strikers physically blocking persons from either entering or leaving a struck plant.

• Strikers threatening violence against non-striking employees.

• Strikers attacking management representatives.

Likewise, the right to picket an employer’s premises is subject to certain limitations and qualifications. As with the right to strike, picketing can be prohibited due to its objective or timing, or due to misconduct while on the picket line.

UNFAIR LABOR PRACTICES OF EMPLOYERS

Potential unfair labor practices of employers are listed in Section 8(a) while those of unions are in Section 8(b). Section 8(e) furthermore lists an unfair labor practice that can be only be committed when both an employer and a union are acting in concert.

Section 8(a)(1)—Interference with Section 7 Rights

Any prohibited interference by an employer with the rights of employees to organize, form, join, or assist a labor organization, to bargain collectively, to engage in other concerted activities for mutual aid or protection, or to refrain from any or all of these activities, constitutes a violation of this section.

Examples of violations of Section 8(a)(1) includes employer conduct that may independently violate Section 8(a)(1). Examples of such independent violations are:

• Threatening employees with loss of jobs or benefits if they should join or vote for a union.

• Threatening to close down the plant if a union should be organized in it.

• Questioning employees about their union activities or membership in such circumstances as will tend to restrain or coerce the employees.

• Spying on union gatherings, or pretending to spy.

• Granting wage increases deliberately timed to discourage employees from forming or joining a union (the so-called “fist inside a velvet glove”).

Section 8(a)(2)—Domination or Illegal Assistance and Support of a Labor Organization

Section 8(a)(2) makes it unlawful for an employer “to dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it.” This section not only outlaws “company unions,” which are dominated by the employer, but also forbids an employer from contributing money to a union it favors or giving a union improper advantages that are denied to rival labor organizations.

An employer violates NLRA Section 8(a)(2) by:

• Taking an active part in organizing a union or forming a committee to represent employees.

• Bringing pressure on employees to support a union financially, except in the enforcement of a lawful union-security agreement.

• Allowing one of several unions, competing to represent employees, to solicit authorization cards for representation on company premises during working hours and denying other unions the same privilege.

• Soliciting and obtaining from employees and applicants for employment, during the hiring procedure, applications for union membership and signed authorizations for the check-off of union dues.

Section 8(a)(3)—Discrimination Against Employees

Section 8(a)(3) makes it an unfair labor practice for an employer to discriminate against employees “in regard to hire or tenure of employment or any term or condition of employment” for the purpose of encouraging or discouraging membership in a labor organization. In general, the NLRA makes it illegal for an employer to discriminate in employment because of an employee’s union or other group activity within the protection of the NLRA. A banding together of employees, even in the absence of a formal organization, may constitute a labor organization for purposes of Section 8(a)(3).

Discrimination within the meaning of the NLRA would include such action as refusing to hire, discharging, demoting, assigning to a less-desirable shift or job, or withholding benefits.

The NLRA does not limit an employer’s right to discharge for economic reasons. This section does not limit an employer’s right to discharge, transfer, or lay off an employee for genuine economic reasons or for such good cause as disobedience or deficient work performance. This right applies equally to employees who are active in support of a union and to those who are not.

Situations in which an employer disciplines an employee both because the employee has violated a work rule and because the employee has engaged in protected union activity are called “mixed motive cases.” In these cases the burden of proof is initially on the union to establish the essential elements of a prohibited discrimination unfair labor practice, then shifts to the employer, and the discipline will be found unlawful unless the employer can establish that the employee would have received the same discipline even if the employee had not engaged in protected union activity.

An employer who has engaged in good-faith bargaining with a union may lock out the represented employees, sometimes even before an “impasse” is reached in the parties’ negotiations if the employer does so to further its position in bargaining. A bargaining lockout may be found unlawful, however, if the employer is unlawfully refusing to bargain or is bargaining in bad faith.

IN PLAIN ENGLISH

“Impasse” refers to a situation in which no further progress is possible, especially because of disagreement; a deadlock.

Examples of illegal discrimination under Section 8(a)(3) include:

• Discharging employees because they urged other employees to join a union.

• Refusing to reinstate employees when jobs they are qualified to perform are open because they took part in a union’s lawful strike.

• Granting of “superseniority” to those hired to replace employees engaged in a lawful strike.

• Demoting employees because they circulated a union petition among other employees asking the employer for an increase in pay.

• Discontinuing an operation at one plant and discharging the employees involved followed by opening the same operation at another plant with new employees because the employees at the first plant joined a union (a so-called “runaway shop”).

• Refusing to hire qualified applicants for jobs because they belong to a union. It would likewise be a violation if the qualified applicants were refused employment because they did not belong to a union, or because they belonged to one union rather than another.

Section 8(a)(4)—Discrimination Due to NLRB Activity

Section 8(a)(4) makes it an unfair labor practice for an employer “to discharge or otherwise discriminate against an employee because the employee has filed charges or given testimony under [the National Labor Relations Act].”

Examples of violations of Section 8(a)(4) are:

• Refusing to reinstate employees when jobs they are otherwise qualified for are open because they filed charges with the NLRB claiming their layoffs were based on union activity.

• Demoting employees because they testified in an NLRB hearing.

Section 8(a)(5)—Refusal to Bargain in Good Faith

Section 8(a)(5) makes it illegal for an employer to refuse to bargain in good faith concerning wages, hours, and other conditions of employment with the representative selected by a majority of the employees in a bargaining unit appropriate for collective bargaining purposes.

Required subjects of bargaining are broadly interpreted by the NLRB. The duty to bargain in good faith covers all matters concerning rates of pay, wages, hours of employment, or other conditions of employment. These are called “mandatory” subjects of bargaining, about which the employer, as well as the employees’ representative, must bargain in good faith. Remember, however, the law does not require “either party to agree to a proposal or require the making of a concession.” In addition to wages and hours of work, mandatory subjects of bargaining include but are not limited to such matters as pensions for present employees, bonuses, group insurance, grievance procedures, safety practices, seniority, procedures for discharge, layoff, recall, or discipline, and union-security. Certain managerial decisions such as subcontracting, relocation, and other operational changes may not be mandatory subjects of bargaining, even though they affect employees’ job security and working conditions. With “nonmandatory” subjects, the parties are free to bargain and to agree, but neither party may insist on bargaining such subjects over the objection of the other party.

What constitutes a violation of NLRA Section 8(a)(5)? An employer will be found to have violated Section 8(a)(5) if its conduct in bargaining, viewed in its entirety, indicates the employer did not negotiate with a good-faith intention to reach agreement (so called “surface bargaining”). However, the employer’s good faith is not at issue when its conduct constitutes an out-and-out refusal to bargain on a mandatory subject of bargaining (a “per se bad faith” bargaining violation). For example, it is a violation for an employer, regardless of its good faith, to refuse to bargain about a subject that it believes is not a mandatory subject of bargaining, when in fact it is.

Finally, the duty of an employer to bargain in good faith includes the duty to refrain from unilateral action, that is, taking action on its own with respect to matters concerning which it is required to bargain, and from making changes in terms and conditions of employment without consulting the employees’ representative.

Examples of Section 8(a)(5) violations are as follows:

• Refusing to meet with the employees’ representative because the employees are out on strike.

• Insisting, until bargaining negotiations break down, on a contract provision that all employees will be polled by secret ballot before the union calls a strike.

• Refusing to supply the employees’ representative with cost and other data concerning a group insurance plan covering the employees.

• Announcing a wage increase without consulting the employees’ representative.

• Failing to bargain about the effects of a decision to close one of the employer’s plants.

UNFAIR LABOR PRACTICES OF UNIONS

Section 8(b)(1)(A)—Restraint and Coercion of Employees

Section 8(b)(1)(A) forbids a labor organization or its agents from “restrain[ing] or coerce[ing] employees in the exercise of the rights guaranteed [by the law].” The section notes it is not intended to “impair the rights of a labor organization to prescribe its own rules” concerning membership in the labor organization. Like Sections 8(a)(1) for employers, Section 8(b)(1)(A) is violated by union conduct that independently restrains or coerces employees in the exercise of their rights.

Union conduct that is reasonably calculated to restrain or coerce employees in their rights violates Section 8(b)(1)(A) whether or not it succeeds in actually restraining or coercing employees.

Examples of restraint or coercion that violate Section 8(b)(1)(A) when done by a union or its agents include the following:

• Mass picketing in such numbers that non-striking employees are physically barred from entering the plant.

• Acts of force or violence on the picket line, or in connection with a strike.

• Threats to do bodily injury to non-striking employees.

• Threats to employees that they will lose their jobs unless they support the union’s activities.

• Statements to employees who oppose the union that the employees will lose their jobs unless the union wins a majority in the plant.

• Entering into an agreement with an employer that recognizes the union as exclusive bargaining representative when it has not been chosen by a majority of the employees.

• Fining or expelling members for crossing a picket line that is unlawful under the NLRA or which violates a no-strike agreement.

• Fining employees for crossing a picket line after they have resigned from the union.

• Fining or expelling members for filing unfair labor practice charges with the NLRB or for participating in an investigation conducted by the NLRB.

The following are examples of restraint or coercion that violate Section 8(b)(1)(A) when done by a union that is the exclusive bargaining representative:

• Refusing to process a grievance in retaliation against an employee’s criticism of union officers.

• Maintaining a seniority arrangement with an employer under which seniority is based on the employee’s prior representation by the union elsewhere.

• Rejecting an application for referral to a job in a unit represented by the union based on the applicant’s race or union activities.

Section 8(b)(1)(B)—Restraint and Coercion of Employers

Section 8(b)(1)(B) prohibits a labor organization from restraining or coercing an employer in the selection of a bargaining representative.

Examples of violations of Section 8(b)(1)(B):

• Insisting on meeting only with a company’s owners and refusing to meet with the attorney the company has engaged to represent the company in contract negotiations, and threatening to strike to force the company to accept its demands.

• Striking members of an association of employers (such as the United Employers Association or the National Association of Colleges and Employers) that bargains with the union as the representative of the group of employers in order to compel the struck employers to sign individual contracts with the union.

• Insisting during contract negotiations that the employer agree to accept working conditions that will be established by a bargaining group to which it does not belong.

• Fining or expelling supervisors for the way they apply the bargaining contract while carrying out their supervisory functions or for crossing a picket line during a strike to perform their supervisory duties.

Section 8(b)(2)—Causing or Attempting to Cause Discrimination

Section 8(b)(2) makes it an unfair labor practice for a labor organization to cause an employer to discriminate against an employee in violation of Section 8(a)(3).

What violates Section 8(b)(2)? A union violates Section 8(b)(2), for example, by demanding an employer discriminate against employees because of their failure to make certain otherwise lawful payments to the union when there is no valid union-security agreement in effect. This section can also be violated by agreements or arrangements with employers that unlawfully condition employment or job benefits on union membership, on the performance of union membership obligations, or on arbitrary grounds. Union conduct affecting an employee’s employment in a way that is contrary to provisions of the bargaining contract may likewise be violations of this section.

Examples of violations of Section 8(b)(2) are:

• Causing an employer to discharge employees because they circulated a petition urging a change in the union’s method of selecting shop stewards.

• Causing an employer to discharge employees because they made speeches against a contract proposed by the union.

• Making a contract that requires an employer to hire only members of the union or employees “satisfactory” to the union.

• Causing an employer to reduce employees’ seniority because they engaged in antiunion acts.

• Refusing referral or giving preference on the basis of race or union activities in making job referrals to units represented by the union.

• Seeking the discharge of an employee under a union-security agreement for failure to pay a fine levied by the union.

Section 8(b)(3)—Refusal to Bargain in Good Faith

Section 8(b)(3) makes it illegal for a labor organization to refuse to bargain in good faith with an employer about wages, hours, and other conditions of employment if it is the representative of that employer’s employees. This section imposes on labor organizations the same duty to bargain in good faith that is imposed on employers by Section 8(a)(5).

Examples of violations of Section 8(b)(3). Section 8(b)(3) is violated by any of the following:

• Insisting on the inclusion of illegal provisions in a contract, such as a “closed shop” (must be a member of the union to be hired) or a discriminatory hiring hall.

• Refusing to negotiate on a proposal for a written contract.

• Striking against an employer who has bargained, and continues to bargain, on a multiemployer basis to compel it to bargain separately.

• Refusing to meet with the attorney designated by the employer as its representative in negotiations.

• Terminating an existing contract and striking for a new one without notifying the employer, the Federal Mediation and Conciliation Service, and the state mediation service, if any.

• Conditioning the execution of an agreement on inclusion of a provision that is not required such as a performance bond.

• Refusing to process a grievance because of the race, sex, or union activities of an employee for whom the union is the statutory bargaining representative.

IN PLAIN ENGLISH

A closed shop is a situation in which only members of the union involved are allowed to be employed. Most US states have laws prohibiting this conduct. These laws are often referred to as “right to work laws.”

Section 8(b)(4)—Prohibited Strikes and Boycotts

Section 8(b)(4) prohibits a labor organization from engaging in strikes or boycotts or taking other specified actions to accomplish certain unlawful objectives or “objects” as they are called in the NLRA. Because this is a very technical and complex area of the law, and, because the violation can be very serious, it is essential to enlist the aid of an experienced attorney with respect to these types of issues. A union commits an unfair labor practice if it takes any of the kinds of action listed in clauses (i) and (ii) as a means of accomplishing any of the objects listed in the four subparagraphs thereof.

Examples of violations of Section 8(b)(4)(B):

• Picketing an employer to force it to stop doing business with another employer who has refused to recognize the union.

• Asking the employees of a plumbing contractor not to work on connecting up air-conditioning equipment manufactured by a nonunion employer whom the union is attempting to organize.

• Urging employees of a building contractor not to install doors that were made by a manufacturer that is nonunion or that employs members of a rival union.

• Telling an employer that its plant will be picketed if that employer continues to do business with an employer the union has designated as “unfair.”

Section 8(b)(5)—Excessive or Discriminatory Membership Fees

Section 8(b)(5) makes it illegal for a union to charge employees who are covered by an authorized union-security agreement a membership fee “in an amount which the [NLRB] Board finds excessive or discriminatory under all the circumstances.”

Examples of violations of this section include:

• Charging old employees who do not join the union until after a union-security agreement goes into effect an initiation fee of $15 while charging new employees only $5.

• Increasing the initiation fee from $75 to $250 and thus charging new members an amount equal to about four weeks’ wages when other unions in the area charge a fee equal to about one half the employee’s first week’s pay.

Section 8(b)(6) (so-called “Featherbedding”)

Section 8(b)(6) forbids a labor organization “to cause or attempt to cause an employer to pay or deliver or agree to pay or deliver any money or other thing of value, in the nature of an exaction, for services which are not performed or not to be performed.”

IN PLAIN ENGLISH

Exaction is defined as demanding a payment or service from someone when such payment or service is not justified or otherwise required.

Section 8(b)(7)—Organizational and Recognitional Picketing by Noncertified Unions

Section 8(b)(7) prohibits a labor organization that is not currently certified as the employees’ representative from picketing or threatening to picket with an objective of obtaining recognition by the employer (“recognitional picketing”) or acceptance by its employees as their representative (“organizational picketing”).

Section 8(e)—Entering a “Hot Cargo Agreement”

Section 8(e) makes it an unfair labor practice for an employer or a labor organization to enter a “hot cargo agreement” pursuant to which an employer agrees not to work on or handle any freight or product coming from any other employer with which the union has a dispute. This section applies equally to both unions and to employers. This discussion of Section 8(e) as an unfair labor practice of employers applies equally as a discussion of an unfair labor practice committed by unions as well.

Section 8(g)—Striking or Picketing a Health-Care Institution Without Notice

Section 8(g) prohibits a labor organization from engaging in a strike, picketing, or other concerted refusal to work at any health-care institution without first giving at least ten days’ prior notice in writing to the institution and the Federal Mediation and Conciliation Service.

CONCLUSION

As discussed above, the objective of the NLRA is to avoid or reduce industrial strife and protect the public health, safety, and interest. The NLRA goal, can best be achieved by the parties or those who may become parties to an individual dispute. Voluntary adjustment of differences at the community and local levels is almost invariably the speediest, most satisfactory, and longest-lasting way of carrying out the objective of the NLRA. As noted throughout this book, it is essential for you to enlist the aid of an experienced attorney when dealing with the complex issues discussed in this chapter, because the penalties for violations may be significant, and the law is very complex.