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HR Support on Unfair Labor Practices
Editor's Note: Both unions and employers should fairly engage in labor practices.
Overview: The National Labor Relations Act (NLRA) prohibits employers and unions from engaging in numerous unlawful actions, known as unfair labor practices. Avoiding these unfair labor practices is part of the labor management process.
An employer commits an unfair labor practice if it:
- Interferes with, restrains or coerces employees in their exercise of their NLRA rights;
- Encourages or discourages union membership;
- Discriminates against an employee for filing an administrative complaint or participating in the complaint process; and/or
- Refuses to bargain in good faith with a union representative.
A union commits an unfair labor practice if it:
- Refuses to bargain in good faith with an employer;
- Causes an employer to pay for services not to be performed (featherbedding);
- Attempts to restrain or coerce an employer in the election of its representatives for collective bargaining; or
- Pickets an employer for union recognition.
Neither party can require a clause that discriminates against individuals on the basis of race, sex, religion, disability or any other category protected by law.
If a union or an employer believes that an unfair labor practice has been committed, it must file an unfair labor practice charge with the National Labor Relations Board (NLRB). The NLRA contains procedures for investigating, prosecuting, hearing, finding, dismissing, remedying and enforcing solutions to unfair labor practices filed with the NLRB.
Trends: All employees are guaranteed the right to engage in protected concerted activity whether or not they belong to a union.
This means they may work together to present an issue to their employer concerning their wages, benefits, or terms and conditions of employment and an employer may not terminate them for this activity. In the new age of social media, this has become an increasingly important protection.
Even though social media postings may be read by persons beyond an individual's co-workers, the posting still may constitute protected concerted activity under the NLRA.
The NLRB has also recently ruled employers may violate the NLRA with an across the board prohibition against the discussion of internal investigations with co-workers. While the need for confidentiality may be paramount (i.e., evidence is at risk of being destroyed or a witness needs protection), employers may now need to argue confidentiality was "necessary."
Author: Melissa Boyce, JD, Legal Editor
Latest items in Unfair Labor Practices
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Not All Facebook Gripes and Complaints Constitute Protected Activity
Even though the Noel Canning decision regarding the NLRB's power to issue decisions is currently on its way to the US Supreme Court, the National Labor Relations Board (NLRB) continues to evaluate social media activity and whether or not such conduct is protected. The NLRB's Office of General Counsel recently released an Advice Memorandum assuring employers that under certain circumstances employee gripes, complaints and personal attacks may not rise to the level of protected concerted activity under Section 7 of the National Labor Relations Act. Tasker Healthcare Group, d/b/a Skinsmart Technology, 2013 NLRB GCM LEXIS 19 (May 8, 2013).
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NLRB Form 501 - Charge Against Employer
As mandated by the National Labor Relations Board, all employers must post NLRB Form 501 - Charge Against Employer.
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Another NLRB Ruling Protects Employee Social Media Complaints Regarding Supervisors
The National Labor Relations Board (NLRB) continues to send a strong message to employers that the right of both union and nonunion employees to engage in protected concerted activity extends to social media communications.
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HR Guide to National Labor Relations Board (NLRB) Organization and Procedure - Chart
An employer may not be clear on how a National Labor Relations Board (NLRB) decision relates to a General Counsel Memo or to an appellate court decision under the National Labor Relations Act. This Quick Reference chart helps employers navigate the NLRB organization and enforcement process.
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Transportation Resource Center for HR: Labor Relations
XpertHR's Transportation Resource Center for HR: Labor Relations helps transportation industry employers handle their most vexing employment issues by bringing relevant resources together in one place for easy access.
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Retail Resource Center for HR: Labor Relations
XpertHR's Retail Resource Center for HR: Labor Relations helps retail employers handle their most vexing employment issues by bringing relevant resources together in one place for easy access.
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Arbitration
Arbitration is a voluntary dispute resolution process that is preferred by many employers because it is quicker and cheaper than litigation. This section reviews the enforceability of arbitration agreements, arbitration programs, the arbitration process, labor arbitration, rights arbitration and interest arbitration.
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Union Pledges to Halt Attempts to Unionize Wal-Mart Employees
The National Labor Relations Board (NLRB) has announced that, for now, it will not decide Wal-Mart's unfair labor practice charge, which alleged that the United Food and Commercial Workers Union (Union) engaged in illegal picketing with the intent to unionize workers. Wal-Mart alleged in its charge that the Union violated the National Labor Relations Act (NLRA) by picketing at its stores for more than 30 days with the intent of forming a union.
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Obama's NLRB Recess Appointments Unconstitutional, Many Decisions Potentially Invalid
On Friday, January 25, 2013, the United States Circuit Court of Appeals for the District of Columbia Circuit determined that President Barack Obama's recess appointments to the National Labor Relations Board (NLRB) in January 2012 were invalid because the appointments were not duly approved by the Senate and because the Senate was not in recess.
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Expanded Labor Relations Employer Liability Content Now Live
XpertHR has expanded its already robust coverage of state private and public sector labor relations requirements by now providing subscribers information necessary to avoid liability in their everyday interactions with unions in the workplace. In the new Employer Liability sections, subscribers will learn state specific laws and regulations that address potential liability exposure and resulting penalties.
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HR guidance and support on unfair labor practices including interfering with, coercing or restraining employees in the exercise of their NLRA rights.