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
Updated to reflect an amendment regarding union dues, effective May 8, 2018.
Updated to reflect the NLRB reverting to the Browning-Ferris joint employer test.
Updated in light of the NLRB General Counsel Memo 18-02 concerning employer rules and other significant workplace issues.
Updated to reflect developments regarding the state's 'right to work law'.
Updated to reflect developments regarding West Virginia's 'right to work' status.
Updated to reflect development relating to Missouri's right to work status.
A unanimous three-judge panel of the 7th Circuit Court of Appeals upheld Wisconsin's "right to work" law.
Updated to reflect amendments regarding unemployment benefits eligibility during a labor dispute, effective July 1, 2017.
Updated to reflect state's law expressly permitting union security agreements, effective June 15, 2017.
HR and legal considerations for union and labor management. Support and advice on managing the many different aspects connected to labor relations.