Overview: Once a union is formed, management should strive to work with rather than against a union in order to avoid exposure to an unfair labor practice charge. An employer commits an unfair labor practice if it engages in certain activities, including interfering, restraining or coercing employees in their exercise of their rights under the National Labor Relations Act (NLRA) and refusing to bargain in good-faith with a union representative.
Other examples of violations of the NLRA include refusing to hire an applicant or discriminating against an employee in any way because of union support or status. However, a majority of discrimination claims involve disciplining employees and changes in conditions of work. Discrimination can also be in the form of refusing to withdraw charges once filed.
Therefore, effective union and labor management that avoids exposure to liability under the NLRA should occur when employers follow positive employee relations practices, such as instilling fairness and respect with employees, effectively communicating with employees, and training all supervisors on good management and employee relations practices. Employers should have HR and/or their legal department review the fairness and legality of every final warning, suspension and termination decision. These practices will solidify management decision making and the appearance of fairness to all which may have the result of decreasing the number of unfair labor practice charges filed and increasing the chances of success at the National Labor Relations Board (NLRB) in the event that an unfair labor practice charge is filed.
Trends: The number of complaints issued each year by the NLRB Regional Offices for unfair labor practices is on the rise. Although not all allegations in a complaint are held to have merit, employers still have to spend their time and resources defending against such claims. Therefore, employers with a unionized workforce should be proactive and carefully consider the potential consequences of each action taken--even if lawful - in order to avoid exposure to such claims.
Author: Melissa Boyce, JD, Legal Editor
In a startling move, the National Labor Board Office of the General Counsel (OGC) has announced that it authorized complaints on 43 unfair labor practice (ULP) charges against McDonald's franchisees and determined that McDonald's, USA, LLC, the franchisor, will be named as a "joint employer." The OGC's intention to proceed with ULP charges against a parent franchisor to hold it responsible for the employment practices of its franchisees conflicts with a decades-old legal standard and may have far-reaching implications for the current franchise model.
The Supreme Court in Harris v. Quinn struck down an Illinois law compelling home care personal assistants (PAs) working under the Illinois Rehabilitation Program to pay union dues despite being non-members but stopped short of stripping a state's ability to require non-union public sector workers to pay union dues. In a 5-4 decision, the Court narrowly ruled that the First Amendment prohibits the collection of "fair share" or agency fees from the PAs because they are "partial public employees" rather than "full-fledged public employees."
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