The National Labor Relations Act and Labor Relations
The National Labor Relations Act (NLRA) of 1935, also known as the Wagner Act, is the foundational federal law governing labor-management relations in the private sector. For SHRM exam candidates, the NLRA is a critical topic that covers employee rights to organize, the collective bargaining process, and prohibited unfair labor practices by both employers and unions.
Employee Rights Under Section 7
Section 7 of the NLRA guarantees employees the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, to engage in other concerted activities for mutual aid or protection, and to refrain from any or all of these activities. Importantly, Section 7 rights apply to all covered employees, not just those who are members of a union. This means that even in non-union workplaces, employees have the right to engage in "protected concerted activity."
Protected Concerted Activity
Protected concerted activity is a concept that HR professionals must understand thoroughly. An activity is "concerted" when two or more employees act together to improve their terms and conditions of employment, or when one employee acts on behalf of others. An activity is "protected" when it relates to wages, hours, or other terms and conditions of employment and is carried out through lawful means. Examples of protected concerted activity include:
- Discussing wages, benefits, or working conditions with coworkers.
- Circulating a petition about workplace concerns.
- Refusing to work in unsafe conditions as a group.
- Posting about working conditions on social media (in many circumstances).
- Joining with coworkers to approach management about workplace issues.
Employer Unfair Labor Practices (Section 8(a))
Section 8(a) of the NLRA identifies five types of unfair labor practices by employers:
- 8(a)(1): Interfering with, restraining, or coercing employees in the exercise of their Section 7 rights.
- 8(a)(2): Dominating or interfering with the formation or administration of any labor organization, or contributing financial or other support to it.
- 8(a)(3): Discriminating against employees to encourage or discourage membership in any labor organization.
- 8(a)(4): Discharging or otherwise discriminating against an employee for filing charges or giving testimony under the NLRA.
- 8(a)(5): Refusing to bargain collectively with the representative of the employees.
Union Unfair Labor Practices (Section 8(b))
The Taft-Hartley Act of 1947 amended the NLRA to also prohibit certain union unfair labor practices, including restraining or coercing employees in their Section 7 rights, causing an employer to discriminate against an employee, refusing to bargain collectively with an employer, engaging in prohibited strikes or boycotts, charging excessive initiation fees, and featherbedding (requiring payment for services not performed).
The Union Election Process
When employees seek union representation, the process typically follows these steps:
- An organizing campaign begins, often initiated by employees or an outside union.
- Authorization cards are collected; if at least 30% of employees in an appropriate bargaining unit sign cards, a petition can be filed with the National Labor Relations Board (NLRB).
- The NLRB determines the appropriate bargaining unit and schedules a secret-ballot election.
- During the campaign period, both the employer and the union may campaign, subject to restrictions.
- A majority vote determines whether the union is certified as the exclusive bargaining representative.
Employer Campaign Rules: TIPS and FOE
During a union organizing campaign, HR professionals should remember two helpful acronyms. Employers may not TIPS: Threaten employees with adverse consequences, Interrogate employees about union activities, Promise benefits to discourage union support, or Spy on union activities. However, employers may FOE: share Facts about unionization, express Opinions about unions (clearly labeled as opinions), and provide Examples of negative union experiences at other organizations.
SHRM Exam Tips
For the SHRM exam, focus on Section 7 rights and their application to non-union workplaces, the specific unfair labor practices under Sections 8(a) and 8(b), the TIPS/FOE framework for employer campaign conduct, and the election process. Remember that the NLRA does not cover public-sector employees, agricultural workers, domestic workers, independent contractors, or supervisors.