National Labor Relations Act (NLRA)

National Labor Relations Act (NLRA): A Comprehensive Guide for Employee and Labor Relations

Why is the National Labor Relations Act (NLRA) Important?

The National Labor Relations Act (NLRA) is one of the most fundamental pieces of labor legislation in the United States. Enacted in 1935 during the Great Depression, it established the foundation for modern labor relations. Understanding the NLRA is crucial because it:

• Protects workers' rights to organize and engage in collective bargaining
• Governs the relationship between employers, employees, and labor unions
• Establishes unfair labor practices that both employers and unions must avoid
• Creates the National Labor Relations Board (NLRB) to enforce labor laws
• Impacts organizational management, HR practices, and workplace policies
• Affects your career prospects in HR, management, and labor relations fields

What is the National Labor Relations Act (NLRA)?

The NLRA is a federal law that grants workers the right to organize and collectively bargain with their employers. It establishes the legal framework for labor-management relations in the private sector (excluding railroads and airlines, which are covered by the Railway Labor Act).

Key Components of the NLRA:

• Section 7 Rights: Employees have the right to organize, form unions, bargain collectively, and engage in concerted activity for mutual aid or protection
• Section 8 - Unfair Labor Practices: Defines prohibited conduct by employers and unions
• National Labor Relations Board (NLRB): The federal agency that administers and enforces the NLRA
• Representation Elections: Procedures for employees to select union representation
• Collective Bargaining: The process by which employers and unions negotiate employment terms

How Does the NLRA Work?

1. Section 7 Rights - Employee Protections

The heart of the NLRA is Section 7, which protects employees' rights to:

• Self-organization: Form or join labor unions
• Collective bargaining: Negotiate wages, hours, and working conditions as a group
• Concerted activity: Engage in activities together for mutual benefit (strikes, work stoppages, protests)
• Refusal to participate: Choose not to join a union or engage in union activities

2. Section 8 - Unfair Labor Practices

Employer Unfair Labor Practices (Section 8(a)):

• Interfering with, restraining, or coercing employees in the exercise of Section 7 rights
• Dominating or interfering with labor organizations
• Discriminating against employees based on union activity or protected concerted activity
• Discharging or retaliating against employees for union activity
• Refusing to bargain collectively with union representatives

Union Unfair Labor Practices (Section 8(b)):

• Restraining or coercing employees to join unions
• Causing employers to discriminate against non-union employees
• Refusing to bargain collectively with employers
• Engaging in illegal strikes or picketing
• Excessive or discriminatory union dues

3. The Representation Election Process

When employees want union representation, the following process occurs:

• Petition Filing: Union organizers gather signatures (typically 30% of workers) and file with the NLRB
• Investigation: NLRB verifies the petition and determines the appropriate bargaining unit
• Election: Secret ballot election where employees vote for or against union representation
• Certification: If the union wins a majority vote, the NLRB certifies it as the exclusive bargaining representative
• Decertification: Employees can also vote to remove union representation through a decertification election

4. Collective Bargaining

Once a union is certified, employers must engage in good faith collective bargaining regarding:

• Wages and compensation
• Hours of work
• Working conditions and safety
• Grievance procedures
• Seniority and layoff procedures

5. Role of the National Labor Relations Board (NLRB)

The NLRB is the independent federal agency that:

• Investigates unfair labor practice charges
• Conducts representation elections
• Issues decisions and remedies for violations
• Enforces compliance with the NLRA

Important NLRA Concepts and Doctrines

Protected Concerted Activity

Employees have the right to engage in protected concerted activity, which includes:

• Strikes and work stoppages
• Group complaints about wages or working conditions
• Walkouts or sit-ins
• Collective refusal to work under certain conditions
• Discussion and coordination with coworkers about work-related issues

Note: Activity must be concerted (involving more than one employee) and must be for mutual aid or protection.

At-Will Employment Limitations

The NLRA limits at-will employment when it comes to union activity. Employers cannot terminate employees solely because they engage in protected union or concerted activity, even in at-will employment relationships.

Duty to Bargain

Employers have a legal obligation to bargain in good faith with certified unions over mandatory subjects of bargaining. Failing to do so constitutes an unfair labor practice.

Management Rights

Employers retain certain rights under the NLRA, including:

• Making decisions about business operations, investments, and product lines
• Setting workplace rules and discipline procedures
• Hiring and termination decisions (as long as union status is not the motivating factor)

Practical Examples of NLRA Application

Example 1: Protected Concerted Activity

A group of warehouse employees discusses and collectively complains to their manager about unsafe working conditions. This is protected concerted activity. The employer cannot retaliate against these employees for raising these concerns together.

Example 2: Unfair Labor Practice

An employer tells workers: "If you join the union, I will have to close this facility." This statement is likely an unfair labor practice because it threatens adverse consequences based on union activity, coercing employees and restraining their Section 7 rights.

Example 3: Good Faith Bargaining

After a union is certified, the employer must sit down with union representatives and negotiate wages and working conditions. Simply presenting a take-it-or-leave-it proposal without genuine discussion would violate the duty to bargain in good faith.

Common NLRA Violations

• Interrogation: Asking employees about union activities or sympathies
• Surveillance: Monitoring union activities or meetings
• Threats: Threatening adverse consequences (plant closure, discipline) for union activity
• Promises: Promising benefits if employees vote against union representation
• Retaliation: Terminating, disciplining, or reassigning employees for union activity
• Domination: Creating or controlling a company union
• Refusal to Bargain: Refusing to negotiate with certified unions on mandatory subjects

How to Answer NLRA Exam Questions

Exam Tips: Answering Questions on National Labor Relations Act (NLRA)

Tip 1: Identify the Legal Framework

Start by determining which section of the NLRA applies:

• Is this a Section 7 rights question (employee protections)?
• Is this a Section 8 unfair labor practices question?
• Is this about collective bargaining duties?
• Is this about representation elections?

Explicitly state which section or concept applies to establish your analytical framework.

Tip 2: Analyze the "Concerted Activity" Element

For protected activity questions, always address:

• Is there concerted activity? (More than one employee, or one employee acting on behalf of others)
• Is it for mutual aid or protection? (Related to wages, hours, or working conditions)
• Is the activity actually protected? (Some concerted activity can still be unprotected, such as violence or dishonesty)

Tip 3: Look for "But For" Causation

In unfair labor practice cases, ask: Would the adverse action have occurred "but for" the union or protected activity? If the answer is no, the activity was the motivating factor, and an unfair labor practice likely occurred.

Tip 4: Distinguish Between Employer and Union Violations

The exam may test both sides:

• Employer violations: Section 8(a) - Focus on anti-union actions, retaliation, and refusal to bargain
• Union violations: Section 8(b) - Focus on coercion of employees, discrimination, and refusal to bargain

Clearly identify which party is being accused and what they did wrong.

Tip 5: Apply the "Totality of Conduct" Test

Courts often consider the totality of conduct when determining violations. A single statement or action might be part of a pattern of unlawful conduct. In your answer, consider:

• What else has the employer/union done?
• Is there a pattern of behavior?
• How might employees perceive the conduct in context?

Tip 6: Address Good Faith Bargaining

For collective bargaining questions, evaluate:

• Mandatory subjects: Wages, hours, working conditions (must bargain)
• Permissive subjects: Other topics (may bargain, but not required)
• Illegal subjects: Cannot bargain (e.g., closed shops in right-to-work states)
• Good faith: Genuine negotiation, counterproposals, willingness to reach agreement

Tip 7: Know Key NLRB Doctrines and Cases

Familiarize yourself with important doctrines:

• Gissel Bargaining: Employers must bargain with unions in certain circumstances even without a formal election
• Weingarten Rights: Employees have the right to union representation during investigatory interviews
• Protected vs. Unprotected Activity: Understand when activity is no longer protected (violence, disloyalty, dishonesty)

Tip 8: Structure Your Answer

Use this framework for exam answers:

1. Issue: Clearly state what NLRA concept is at issue
2. Rule: Explain the relevant NLRA section or doctrine
3. Analysis: Apply the rule to the facts, considering all relevant elements
4. Conclusion: Directly answer whether an NLRA violation occurred and explain why

Example structure: "The issue is whether the employer engaged in an unfair labor practice under Section 8(a)(1) by interrogating employees about union sympathies. Section 8(a)(1) prohibits employers from interfering with, restraining, or coercing employees in the exercise of their Section 7 rights. The Supreme Court has held that interrogation about union sympathies can constitute coercion. Here, the employer asked [specific facts], which would likely coerce employees from engaging in protected activity. Therefore, this appears to be an unfair labor practice."

Tip 9: Recognize Employer "No-No's"

Remember the "TIPS" mnemonic for common employer violations:

• T - Threats: Threatening consequences for union activity
• I - Interrogation: Asking about union activity or sympathies
• P - Promises: Promising benefits for rejecting union
• S - Surveillance: Monitoring or watching union activities

If any of these TIPS appear in the fact pattern, likely an unfair labor practice has occurred.

Tip 10: Consider Context and Employer Intent

Exams often present ambiguous situations. Consider:

• Employer intent: Did the employer intend to restrain or coerce union activity?
• Employee perception: Would a reasonable employee feel threatened or coerced?
• Alternative explanations: Could there be legitimate, non-discriminatory reasons for the employer's conduct?
• Timing: Did the adverse action immediately follow protected activity? (Suggests causation)

Tip 11: Know the NLRB's Primary Role

Exam questions often ask about NLRB authority and processes. Remember:

• The NLRB investigates unfair labor practice charges
• The NLRB conducts representation elections
• The NLRB issues remedial orders (reinstatement, back pay)
• The NLRB does not have criminal authority (no jail time)
• Appeals of NLRB decisions go to federal Circuit Courts of Appeal

Tip 12: Address Remedies

When an NLRA violation is found, the exam may ask about appropriate remedies. Common remedies include:

• Reinstatement of terminated employees
• Back pay with interest
• Cease and desist orders
• Posting of notices informing employees of their rights
• Affirmative bargaining orders

Tip 13: Watch for "Close Call" Scenarios

Exam questions often present borderline cases. When analyzing:

• Acknowledge the competing interests (employee rights vs. employer management rights)
• Explain why the conduct might or might not be protected
• Reference standards courts use (reasonableness, employer justification)
• Avoid absolute statements; use qualifying language like "likely," "probably," or "potentially"

Tip 14: Don't Confuse NLRA with Other Laws

The exam may include distractors related to other laws. Remember:

• NLRA applies to private sector employees (except railroads and airlines)
• Title VII addresses discrimination based on protected characteristics
• ADA protects individuals with disabilities
• Fair Labor Standards Act governs wages and hours
• Public sector unions are often governed by different laws (e.g., state laws)

Ensure you're applying the correct legal framework.

Tip 15: Practice Fact Pattern Analysis

Develop your skills by:

• Reading the fact pattern carefully, underlining key facts related to union activity or protected conduct
• Identifying all potential legal issues before jumping to conclusions
• Applying multiple NLRA sections systematically
• Considering both employer and employee perspectives
• Practicing with actual NLRB decisions and exam questions

Summary Checklist for NLRA Exam Questions

• ☐ Identify which NLRA section applies (Section 7, Section 8, collective bargaining, elections)
• ☐ Determine if there is protected concerted activity or union activity involved
• ☐ Check if any TIPS violations occurred (Threats, Interrogation, Promises, Surveillance)
• ☐ Analyze causation: Would the adverse action have occurred "but for" the protected activity?
• ☐ Consider employer justifications and alternative non-discriminatory reasons
• ☐ Evaluate good faith in collective bargaining situations
• ☐ Identify appropriate remedies
• ☐ Apply NLRA standards, not other employment laws
• ☐ Structure your answer: Issue, Rule, Analysis, Conclusion
• ☐ Use specific facts from the scenario in your analysis

Conclusion

The National Labor Relations Act is a foundational statute in employee and labor relations. Success on NLRA exam questions requires understanding the balance between employee rights to organize and employer management prerogatives. By systematically analyzing fact patterns, identifying protected activity, applying relevant sections, and considering the totality of conduct, you can effectively answer even complex NLRA questions. Remember that the NLRA reflects a national policy favoring collective bargaining and protecting employee rights to self-organization, and this policy perspective should inform your analysis of ambiguous situations.