The federal laws broadly regulating unions—and the amendments to those laws—have dramatically changed the look and function of unions over time. The changing laws have also acted as political mirrors, alternately protecting employees from unfair labor practices and protecting employers from unfair union practices as unions’ influence in the workplace has ebbed and flowed.
Labor unions secured the legal right to represent employees in their relationships with their employers when the National Labor Relations Act (NLRA), passed in 1935. That federal act also created the National Labor Relations Board (NLRB) to police the relationships among employees, their unions, and their employers.
Under the NLRA, an employer may not:
- interfere with or restrain employees who are exercising their rights to organize, bargain collectively, and engage in other concerted activities for their own protection
- interfere with the formation of any labor organization—or contribute financial or other support to it
- encourage or discourage membership in a labor organization by discriminating in hiring, tenure, or employment conditions
- discharge or discriminate against employees who have filed charges or testified under the NLRA, or
- refuse to bargain collectively with the employees’ majority representative.
The NLRA requires most employers and unions to negotiate fairly with each other in good faith to try to agree to a contract that spells out the terms and conditions of employment for the workers who are members of the union. The agency enforces this requirement by using mediators, negotiators, administrative law judges, investigators, and others.
Who Is Covered
With the few exceptions mentioned below, the NLRA applies to all employers involved in interstate commerce, which generally means almost every company.
Who Is Excluded
Certain groups of employees are not covered by the NLRA. They include:
- confidential employees such as company accountants
- the families of employers
- government workers
- most domestic workers, and
- certain industry groups, such as railroad employees, whose work situations are regulated by other laws.
Managers and supervisors are also not protected by the NLRA, and cannot join unions or be part of the bargaining unit. These employees are considered to be part of a company’s management rather than its labor force.
In Oakwood Healthcare Inc., (348 N.L.R.B. 37 (2006)), the NLRB broadened the "supervisor" category, with the result that more employees will now be found to be supervisors. The Board found that employees who have the authority to make work assignments or direct the work of other employees may be supervisors if those tasks require some independent judgment and discretion, even if they spend only 10% to 15% of their time on these supervisory duties.
In Oakwood, the NLRB focused on two supervisory responsibilities: assigning work and directing the work of other employees. It found that an employee who assigns others to particular departments, shifts, or significant tasks is a supervisor, as long as making those assignments requires some independent judgment and discretion and is not simply clerical or routine in nature. An employee who responsibly directs others—that is, who oversees the work of other employees and is held accountable for their performance—also qualifies as a supervisor.
Since the decision, many employees who do not make hiring and firing decisions but exercise some authority over other employees will be classified as supervisors by the NLRB—even if they spend most of their time doing the same work as the employees they supervise. The decision is widely expected to exclude more employees from union membership.
The NLRA also contains some special exemptions for specific groups of workers within industries that are otherwise covered. Contact your local NLRB office for more information on whether your job is covered by the NLRA.
In the dozen years following enactment of the NLRA, Congress was bombarded with pleas to rein in union power in the workplace. Both employers and employees contended that they needed protection from union overreaching, such as coercing workers to join by using threats and violence. The public joined in the outcry, complaining about work stoppages that threatened health, safety, and the food supply.
In 1947, the Labor Management Relations Act, popularly known as the Taft-Hartley Act, was passed. It was aimed at preventing unfair union practices and banned unions from:
- restraining or coercing employees who were exercising their rights under the NLRA, including the right to select a bargaining representative
- causing or influencing an employer to discriminate against an employee because of membership or nonmembership in a union
- refusing to bargain in good faith with an employer if a majority of employees have designated a union bargaining agent
- inducing or encouraging employees to stop work to force special treatment of union matters, and
- charging excessive fees to employees and employers.
In a third attempt to right the balance among employees, employers, and unions, Congress passed the Labor Management Reporting and Disclosure Act of 1959. The most important contribution of that law is that it imposes a code of conduct for unions, union officers, employers, and management consultants—holding each to a standard of fair dealing.
You can take action against a union and an employer over violations of the NLRA, including unfair labor practices such as threatening workers who join or do not join a union and problems with union elections in the workplace. To begin the process, you must file a charge with a local office of the NLRB. (Get contact information from the agency’s website at www.nlrb.gov or check the Federal Government section of your telephone directory.)
NLRB staff will investigate your charge to determine whether there has been a legal violation. If it finds merit, it will attempt to settle the matter—or pursue a complaint. If it finds no merit to the claim, you may appeal that decision. However, you will probably need a lawyer’s help to do so. See Nolo's Lawyer Directory for help finding one.