The National Labor Relations Act (NLRA)
What rules govern how I interact with union representatives?
May I support or assist a particular union?
Employees have the right to be represented by a union of their choice - not their employer's. For example, it is unlawful for employers to:
- Establish and control a "company union"
- Recognize a union after you are notified that another union has filed a valid election petition
- Recognize, bargain with, or execute an agreement with a union that lacks majority support among unit employees, except in certain cases involving employers in the construction industry
- Recognize, bargain with, or execute an agreement with a union whose majority status you helped it obtain through unlawful assistance
- Engage in conduct that benefits one union at the expense of another, or that reasonably tends to coerce employees to support or join a union. You may, however, tell your employees that you favor a particular union
- Require or encourage employees to sign dues checkoff authorizations. You may, however, give employees dues checkoff authorization forms pursuant to a collectively bargained dues-checkoff procedure
How are unions recognized or certified?
Under the National Labor Relations Act (NLRA), employers may voluntarily recognize a union based on the union’s showing of majority support. In these circumstances, a National Labor Relations Board (NLRB)-conducted election is not required. Additionally, employees may file a petition for a secret ballot election conducted by the NLRB. After the petition is filed, NLRB agents will investigate to make sure the NLRB has jurisdiction, the union is qualified, and there are no existing labor contracts or recent elections that would bar an election. The NLRB agents will seek an election agreement between the employer, union, and other parties setting the details for the election, such as date, time, place or manner of voting, and who is eligible to vote. Once an agreement is reached, the parties authorize the NLRB Regional Director to conduct the election. If no agreement is reached, the Regional Director will hold a hearing and then may order an election and set the conditions in accordance with the NLRB's rules and decisions. Typically, elections are held on the earliest practicable date after a Director's order or authorization, which will vary from case to case. A union will be certified as the employees’ bargaining representative if it receives a majority of votes cast in the election.
What if my unionized employees tell me they no longer wish to be represented by the union?
Under Section 9(a) of the NLRA, employers must recognize and bargain in good faith with a union that has been certified as the exclusive bargaining representative for an appropriate unit of employees. Unions enjoy an irrebuttable presumption of majority status for one year following the NLRB’s certification and, should a contract be reached, continue to have a conclusive presumption of majority status during the term of the collective bargaining agreement, up to three years.
However, if an employer receives objective evidence that a majority of its bargaining unit employees no longer wish to be represented by their union, such as a union-disaffection petition signed by a majority of bargaining unit employees, the employer may inform the union that it will withdraw recognition:
- In the case where the union and employer have not reached an agreement, after the initial one-year certification period
- In the case where the union and the employer have signed a collective bargaining agreement, the employer may inform the union of its decision to withdraw recognition no more than 90 days before the parties’ collective bargaining agreement expires. Under current law, if the union wishes to re-establish its majority status, it must file an election petition within 45 days of the notice with the NLRB. The employer may lawfully withdraw recognition when the collective bargaining agreement expires regardless of whether the union seeks an election
- An employer cannot provide more than ministerial aid in employees’ efforts to decertify a union and cannot solicit employees’ views on unionization
The union may file unfair labor practice charges against an employer who has announced its intent to withdraw recognition, whether immediately or upon expiration of a collective bargaining agreement. The union may allege that the employer initiated the union-disaffection petition or unlawfully assisted it, that the petition fails to make the employees’ representational wishes sufficiently clear, that the petition is tainted by serious unremedied unfair labor practices, or that the number of valid signatures on the disaffection petition fails to establish loss of majority status.
What obligations do I have to bargain with a union that I have voluntarily recognized or that has been certified to represent my employees?
After a union is certified or recognized, you will be required to bargain with the union about all mandatory subjects, e.g., wages, hours, and other terms and conditions of employment. Some examples of mandatory subjects include:
- Wages and other compensation. This includes bonuses, shift differentials, piece rates, commission, incentive pay plans, overtime pay, severance pay, holiday pay, paid time off, vacations, insurance, pensions, and other compensation items
- Scheduling. This includes work schedules, working time, breaks, vacations, and holidays
- Work rules. This encompasses safety practices, disciplinary rules and procedures, policies regarding employee monitoring, locker search policies, policies governing smoking, drug and alcohol testing, and any policy that may have compensation, discipline, or job security implications
- Work assignment and job protection provisions. This includes job assignments and layoff and recall rights
- Grievance and arbitration procedures. This includes any policy or procedure for resolution of labor-management disputes under a collective bargaining agreement
You are required to bargain over mandatory subjects in good faith, which includes the duty to provide relevant information to the union upon request and to refrain from unilaterally changing any of those terms and conditions without first notifying the union and bargaining with the union to lawful impasse. The duty to bargain in good faith does not mean, however, that you must reach agreement with the union on any proposals; rather, it merely requires you to approach bargaining with an open mind and desire to reach agreement, and that, if you reach an agreement, to sign the resulting written document.
You may also choose to bargain with the union about permissive subjects, which is anything that is not mandatory or unlawful. Examples include:
- Expansion of the bargaining unit
- Benefits for current retirees
- Provisions covering job applicants
- Contract ratification procedures
- Interest arbitration
- Neutrality and card-check provisions for non-unit employees
- Contributions to political action committees
- Contributions to training industry funds
- Use of a union label
May I enter an agreement with the union requiring employees to join the union?
Yes, The NLRA allows employers and unions to enter into union-security agreements, which require all employees in a bargaining unit to become union members and begin paying union dues and fees within 30 days of being hired.
Even under a security agreement, employees who object to full union membership may continue as 'core' members and pay only that share of dues used directly for representation, such as collective bargaining and contract administration. Known as objectors, they are no longer full members but are still protected by the union contract. Unions are obligated to tell all covered employees about this option, which was created by a Supreme Court ruling and is known as the Beck right.
An employee may object to union membership on religious grounds, but in that case, must pay an amount equal to dues to a nonreligious charitable organization. Twenty-seven states have banned union-security agreements by passing so-called "right to work" laws. In these states, it is up to each employee at a workplace to decide whether or not to join the union and pay dues, even though all workers are protected by the collective bargaining agreement negotiated by the union.
May I enter an agreement with the union to collect employees’ union dues?
Yes, employers may enter into an agreement with the union to collect union dues, commonly referred to as a “dues-checkoff provision,” under which the employer may withhold union dues from the paychecks of employees who have authorized the employer to do so, and then remit the dues directly to the union. Under such agreements, employers should ensure that they collect the correct amount from each employee and that they timely remit the money to the union.