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Navigating the National Labor Relations Act

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in Employment Law,Human Resources,Leaders & Managers,Management Training

Congress passed the National Labor Relations Act (NLRA) in 1935 largely as a way of raising depression-era wages. The law gives employees basic rights to participate in unions, bargain collectively about compensation/ work conditions and engage in other protected "concerted activities."

A dozen years later, Congress decided the original law gave unions too much power, so it passed the Taft-Hartley Act to provide a more even playing field for labor and management

What's new

The recent split among labor unions that spun off the "Change to Win" coalition of union groups has energized some parts of organized labor. Consequently, unions are trying innovative approaches to organizing.

One new tactic: Unions approach employers claiming to represent a minority of employees in that work force. They then ask to begin contract negotiations.

Additionally, the NLRB and the courts have increasingly ruled that the NLRA applies to nonunionized employers.

How to comply

Most employers run afoul of the NLRA when they're faced with a union organizing campaign. They go too far in their zeal to block the union bid and wind up facing an "unfair labor practice" charge.

Employers must remain calm when faced with organizing activities or protests among nonunion employees about wages or working conditions. Any attempt to retaliate against workers could land the employer in court.

Typical violations include threatening to fire, demote or cut pay for employees who vote for a union; threatening to close the business if a union is chosen; and promising benefits in exchange for a "no union" vote (see box below).

Beware new risk of "minority" unions. What if a union vote at your organization fell short? The NLRA doesn't require employers to recognize unions that do not represent a majority of eligible workers. Further, employers who do recognize those unions, known as minority unions, actually violate the NLRA.

You can meet with minority unions to discuss issues, but formal recognition is not permitted unless the union represents a majority of eligible workers.

Still, minority unions do have rights under the NLRA. You can't fire employees just because they join minority unions. And minority unions can call a strike to gain recognition so long as no other union is certified, no union election has been held in the last 12 months and the strike lasts no longer than 30 days.

Again, nothing in the NLRA requires you to recognize a minority union. But if you did, it probably would not be long before the union represented a majority of the work force. That's because it would be difficult for you to maintain two standards, one for unionized employees and one for others.

Offering similarly situated nonunion employees better employment terms than unionized employees would also violate the NLRA. So, if the employment terms were not equal, they'd have to be better under the collective-bargaining agreement. Once nonunion workers realized that, they would join the union.  

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