A union, or more specifically, a �labor union,� is an association of workers that is recognized by law and that bargains for the rights and working conditions of its members with an employer. Unions must be recognized by an employer once they have been certified by the National Labor Relations Board (NLRB). When a bargaining unit is recognized, actions by most parts of the workplace will be impacted by the requirements of the NLRB.

When Human Resources (HR) is managing in a union setting, there are certain restrictions that must be observed, such as:

• Employers must not commit any unfair labor practices (ULPs); and
• Employers may not:
  • Interfere in union matters;
  • Restrain, coerce, intimidate, or threaten union members;
  • Dominate or support a specific union;
  • Discriminate against employees for participating in union activities;
  • Retaliate against an employee for exercising their union rights; or
  • Refuse to bargain mandatory subjects of bargaining with an NLRB-certified union.

Something as seemingly harmless as an employee participation committee may constitute an unfair labor practice if the group discusses with management any subjects that touch on:

• Wages
• Hours
• Benefits
• Working conditions

Perhaps the biggest restriction is in making changes. Any desired changes that are to be made in the benefits, wages, or any other mandatory subject of bargaining must first be negotiated with all affected unions. This limits a company�s flexibility to make sweeping changes company-wide, although it can be done over time.

HR must also be aware of union members� right to strike. While a strike is a method of last resort for the union, employers must be prepared for such an eventuality, and consider how to continue operations should a strike occur.

When HR deals with union matters, it is essential to have a good understanding of:

• The labor agreement, and
• Past practices.
  • This is the basis for future practice, meaning that if no specific provision in the collective bargaining agreement (CBA) provides guidance, whatever was done in the past is the controlling factor in any disagreement.

• Unions are often recognized through a secret-ballot election.
• It is illegal to refuse to hire, or to terminate, salts.

Experience has shown that labor disputes can be lessened if the parties involved recognize the legitimate rights of each other. To establish these rights under law, Congress enacted the National Labor Relations Act (NLRA).

The NLRA defines the rights of employees to organize and to bargain collectively with their employers through representatives of their own choosing, or not to do so. To ensure that employees can freely choose their own representatives, or choose not to be represented, the Act establishes a procedure by which they can exercise their choice at a secret-ballot election conducted by the National Labor Relations Board (NLRB), a federal agency created in 1935 by Congress to administer the NLRA.

Further, to protect the rights of employees and employers, Congress has defined certain practices of employers and unions as unfair labor practices.

How are unions formed?

Generally, unions are recognized through a secret-ballot election. A secret-ballot election will be conducted only:

• When a petition requesting an election is filed, and
• Where at least 30 percent of eligible employees in a prospective bargaining unit have signed authorization cards indicating they want union representation.

Before the election is conducted, or before the NLRB is petitioned to conduct an election, there is usually a lot of activity, both from the employer and the labor organization, trying to present their side to workers who are deciding whether to vote for union representation.

Common methods labor organizations use to gain support are:

• Offsite meetings,
• Distribution of pamphlets,
• Placing of “salts” (individuals who get hired into the workplace, but whose primary purpose is to convince workers to organize), and
• Internet campaigns (websites, emails, chat rooms).

Employers are limited as to what they can do to stop unionization. A qualified professional or labor lawyer should be consulted.

Are employers required to hire salts?

Yes, but only if they would otherwise be hired. It is illegal to refuse to hire, or to terminate, “salts” simply because they have a union agenda. However, employers can choose another candidate based on qualifications or similar factors.

• Employers and union representatives cannot refuse to bargain collective with each other.

Collective bargaining is the method whereby unions and employers determine the conditions of employment through direct negotiation. This process normally results in a collective bargaining agreement for a stipulated period (e.g., three years) that sets forth:

• Wages
• Hours
• Other conditions of employment

These obligations are imposed equally on the employer and the representative of its employees. It is an unfair labor practice for either party to refuse to bargain collectively with the other. The obligation does not, however:

• Compel either party to agree to a proposal by the other, or
• Require either party to make a concession to the other.

The National Labor Relations Act (NLRA) provides further that upon the expiration of a collective-bargaining agreement, no party to the contract can end or change the contract unless the party wishing to end or change it takes specific steps outlined in the NLRA.

Required subjects of collective bargaining

The duty to bargain covers all matters concerning mandatory subjects of bargaining, about which the employer, as well as the employees’ representative, must bargain in good faith. The law does not, however, require either party to agree to a proposal or require the making of a concession.

The mandatory subjects of bargaining include, but are not limited to:

• Pay;
• Wage;
• Hours of work;
• Certain conditions of employment;
• Pensions for present employees;
• Bonuses;
• Group insurance;
• Grievance procedures;
• Safety practices;
• Seniority;
• Procedures for discharge, layoff, recall, or discipline; and
• Union security.

Certain managerial decisions, such as subcontracting, relocation, and other operational changes not covered by an existing contract, may not need to be bargained, even though they affect employees’ job security and working conditions. The issue of whether these decisions require bargaining depends on the employer’s reasons for taking action.

Even if employers are not required to bargain about the decision itself, they must normally bargain about the decision’s effects on employees. On nonmandatory subjects, matters that are lawful but unrelated to wages, hours, and other conditions of employment, the parties are free to bargain and agree, but neither may insist on bargaining on such subjects over the objection of the other.

• Unions are made up of bargaining units.
• Only “employees” as defined by the Act can be included in a unit.

Unions are made up of bargaining units, which are groups of two or more employees who:

• Share a community of interest; and
• May reasonably be grouped together for purposes of collective bargaining.

The determination of what is an appropriate unit for such purposes is left to the discretion of the National Labor Relations Board (NLRB).

A bargaining unit may cover the employees in one plant, or it may cover employees in two or more plants of the same employer. In some industries in which employers are grouped together in voluntary associations, a unit may include employees of two or more employers in any number of locations.

It should be noted that a bargaining unit can include only people who are “employees” within the meaning of the Act. The Act excludes certain individuals, such as:

• Agricultural laborers
• Independent contractors
• Supervisors
• Managers

None of these individuals can be included in a bargaining unit established by the NLRB, and as a matter of policy, the NLRB excludes employees who act in a confidential capacity to an employer’s labor relations officials as well.

• Unfair labor practices refer to any practices that violate the NLRA.
• Both employers and labor organizations may not violate the NLRA.

Unfair labor practices refer to practices that are contrary to the National Labor Relations Act (NLRA), which regulates the relationship between, and practices of, employers, employees, and labor organizations (unions).

The NLRA forbids employers from:

• Interfering with, restraining, or coercing employees in the exercise of rights relating to organizing, forming, joining, or assisting a labor organization for collective bargaining;
• Engaging in concerted activities; or
• Refraining from any such activity.
  • Labor organizations also may not restrain or coerce employees in the exercise of these rights.

The unfair labor practices of employers are listed in Section 8(a) of the NLRA. Examples of employer conduct that violates the NLRA include:

• Threatening employees with loss of jobs or benefits if they join or vote for a union or engage in protected concerted activity;
• Threatening to close the plant if employees select a union to represent them;
• Questioning employees about their union sympathies or activities in circumstances that tend to interfere with, restrain, or coerce employees in the exercise of their rights;
• Promising benefits to employees to discourage their union support; and
• Transferring, laying off, terminating, or assigning employees more difficult work tasks because they engaged in union or protected concerted activity.

The unfair labor practices of labor organizations are listed in Section 8(b) of the Act. Examples of union conduct that violates the NLRA include:

• Threats to employees that they will lose their jobs unless they support the union’s activities;
• Refusing to process a grievance because an employee has criticized union officers;
• Fining employees who have validly resigned from the union for activity following their resignation;
• Seeking the discharge of employees for not complying with a union shop agreement when they have paid or offered to pay a lawful initiation fee and periodic dues; and
• Refusing referral or giving preference in a hiring hall based on race or union activities.

• The NLRB conducts an investigation when an unfair labor practice charge is filed.

When an unfair labor practice charge is filed, the appropriate field office of the National Labor Relations Board (NLRB) conducts an investigation to determine whether there is reasonable cause to believe the Act has been violated. If the NLRB regional director determines that the charge lacks merit, it will be dismissed unless the charging party decides to withdraw the charge. A dismissal may be appealed to the General Counsel’s office in Washington, D.C.

If the Regional Director finds reasonable cause to believe a violation of the law has been committed:

• The region seeks a voluntary settlement to remedy the alleged violations;
• If these efforts fail, a formal complaint is issued, and the case goes to hearing before an NLRB administrative law judge; and
• The judge issues a written decision that may be appealed to the five-member Board in Washington for a final agency determination.
  • The Board’s decision is subject to review in a U.S. Court of Appeals.

Depending upon the nature of the case, the General Counsel’s goal is to:

• Complete investigations; and
• Issue complaints if settlement is not reached within 7 to 15 weeks from the filing of the charge.
  • Of the total charges filed each year (about 35,000), approximately one-third are found to have merit, of which over 90 percent are settled.

• The NLRA empowers the NLRB to petition federal district courts for injunctions.

Section 10(j) of the National Labor Relations Act (NLRA) empowers the National Labor Relations Board (NLRB) to petition a federal district court for an injunction to:

• Temporarily prevent unfair labor practices by employers or unions; and
• Restore the status quo, pending the full review of the case by the Board.

In enacting this provision, Congress was concerned that delays inherent in the administrative processing of unfair labor practice charges, in certain instances, would frustrate the Act’s remedial objectives.

In determining whether the use of Section 10(j) is appropriate in a particular case, the principal questions are:

• Whether injunctive relief is necessary to preserve the Board’s ability to effectively remedy the unfair labor practice alleged; and
• Whether the alleged violator would otherwise reap the benefits of its violation.

Under NLRB procedures, after deciding to issue an unfair labor practice complaint, the General Counsel may request authorization from the five-member Board to seek injunctive relief. After considering documents submitted by the General Counsel, the Board votes on whether to authorize injunctive proceedings. If a majority votes to do so, the General Counsel, through their regional staff, files the case with an appropriate federal district court. The court may grant such temporary relief as it deems “just and proper.” The order, subject to appeal in a U.S. Court of Appeals, remains in effect while the Board fully adjudicates the merits of the unfair practice complaint or until the case is settled.

In addition, Section 10(l) of the Act requires the Board to seek a temporary federal court injunction against certain forms of union misconduct, principally involving:

• Secondary boycotts; and
• Recognitional picketing.

Finally, under Section 10(e), the Board may ask a federal court of appeals to enjoin conduct that the Board has found to be unlawful.

• Employers and unions are forbidden from acting together to withhold work or goods from “unfair” employers.

Section 8(e) of the National Labor Relations Act (NLRA), added to the Act in 1959, makes it an unfair labor practice for any labor organization and any employer to act together and enter into what is commonly called a “hot cargo” or “hot goods” agreement. It may also limit the restrictions that can be placed on the subcontracting of work by an employer.

The typical hot cargo or hot goods clause in use before the 1959 amendment to the Act provided that employees would not be required by their employer to handle or work on goods or materials going to, or coming from, an employer designated by the union as “unfair.” Such goods were said to be “hot cargo,” giving Section 8(e) its popular name. These clauses were most common in the construction and trucking industries.

Section 8(e):

• Forbids an employer and a labor organization to make an agreement whereby the employer agrees to stop doing business with any other employer; and
• Declares void and unenforceable any such agreement that is made.

It should be noted that violations of Section 8(b)(4) include a strike or picketing, or any other union action, or the threat of it, to:

• Force employers to agree to a hot cargo provision; or
• Force them to act in accordance with such a clause.

Exceptions are allowed in the construction and garment industries, and a union may seek, by contract, to keep within a bargaining unit work that is being done by the employees in the unit or to secure work that is “fairly claimable” in that unit.

• Employees are not required to be part of a union to become or remain employed.
• Nonmembers must pay their share of union costs for certain activities, such as collective bargaining.
• In right-to-work states, individuals cannot be required to join a union as a condition of employment.
• A state law may have an exception to the at-will employment doctrine with relation to unions.

The National Labor Relations Act (NLRA) permits a union and an employer to make an agreement, called a union-security agreement, which requires employees to make certain payments to the union to retain their jobs. A union-security agreement cannot:

• Require that applicants for employment be members of the union to be hired; and
• Require employees to join or maintain membership in the union to retain their jobs.

Under a union-security agreement, individuals choosing to be dues-paying nonmembers may be required, as may employees who join the union, to pay full initiation fees and dues within a certain period of time (a “grace period”) after the collective-bargaining contract takes effect or after a new employee is hired.

However, the most that can be required of nonmembers who inform the union that they object to the use of their payments for nonrepresentational purposes is that they pay their share of the union’s costs relating to representational activities, such as:

• Collective bargaining;
• Contract administration; and
• Grievance adjustment.

Some states have right-to-work laws which allow employees to decide for themselves whether they would like to join or financially support a union. These laws stipulate that individuals cannot be required to join a union as a condition of employment.

Find more state-related information here.

• Unions file grievances when they feel they have been wronged by their employers.
• If an agreement can’t be met regarding the grievance, it is taken to arbitration.

Grievances are filed by union members when they feel they have been wronged by their employer. They must be able to cite a specific provision of the collective bargaining agreement (CBA) as the basis for their grievance. Typically, there is a prescribed set of procedures outlined in the CBA for employees to file a grievance.

It generally begins at the lowest level of management (a verbal discussion with their immediate supervisor) and progresses upward through management ranks (and through union ranks as well) in the form of a written document. If the union and the employer can’t come to an agreement regarding the grievance, it will go to arbitration.

In arbitration, a neutral third party hears both sides and decides the outcome of the grievance.

• “Weingarten rights” refer to a union employee’s right to have a union representative present during an interview that might result in disciplinary action.
• This right may be extended to all employees.
• A state may have an exception to the employment at-will doctrine with relation to unions.

Occasionally, situations arise where it is necessary to discipline employees. This usually occurs when their conduct adversely affects the efficiency or operation of the workplace or the work environment. If employers operate in a union environment, they should consult the collective bargaining agreement (CBA) where discipline policies are concerned.

When imposing discipline in a union environment, employers must take the CBA into consideration. It usually spells out procedures for progressive discipline and will normally state that employers may discipline or terminate employees only “for cause.” This is a departure from employment-at-will, where they may fire someone for any reason, if it isn’t:

• Discriminatory; or
• Counter to any federal or state legal protection.

Weingarten Rights

The term “Weingarten rights” refers to a union employee’s right to have a union representative present during an interview that:

• Might result in disciplinary action; or
• The employee reasonably believes could lead to disciplinary action.

The term comes from the case National Labor Relations Board v. J. Weingarten, ruled on by the Supreme Court in 1975. The case came about when a clerk was questioned by her employer regarding allegations of theft. The employer denied several of her requests to include her shop steward in the investigation interview.

Currently, this right does not apply in a non-union operation. However, in the past, the National Labor Relations Board (NLRB) has extended it to all employees. Employers should check with their labor counsel for its current status before declining such a request.

This right does not apply to all meetings or interviews, only to those that could result in discipline. However, a few restrictions apply:

• The Weingarten right applies only to union representatives. It does not apply to attorneys, non-employees, or supervisors. In addition, the requested representative must be reasonably available.
  • In one case, an employee requested a friend who worked from home, 120 miles from the place of employment. The court found that the employer’s refusal to allow the friend’s presence did not violate the Weingarten right.
• Organizations are not obligated to remind an employee of Weingarten rights. However, employees do have the right to know the subject of an interview.
• The requested union representative must be available. Employees cannot delay an interview to wait for an unavailable representative. If the preferred representative is not available, they must choose another.
  • In one case, an employer refused a request for a union steward because the steward was on a lunch break. The court ruled that this was a violation because the steward was on the premises and was scheduled to finish the lunch break in 15 minutes. Therefore, the steward was “available.” Unfortunately, the court did not define availability beyond this ruling.
• Simply informing an employee of disciplinary action, without conducting an interview, does not violate the employee’s Weingarten rights.

At-will employment exceptions

The employment-at-will doctrine states that when employees do not have a written employment contract and the term of employment is of indefinite duration, employers can terminate them for:

• Good cause
• Bad cause
• No cause at all

Of course, that reason cannot be an illegal one, such as one based on discrimination because of:

• Age
• Sex
• Race
• Any other protected category

A state law may have an exception to the at-will doctrine with relation to unions.

Find more information about state at-will exceptions for Maine, New York, and Texas here.

• Every labor organization is required to keep current records of its members.

Every labor organization must keep current records identifying its members by:

• Name
• Address
• Date of birth

Also, they must keep for one year from the making the above records for any individual seeking membership in the organization. An individual seeking membership is a person who:

• Files an application for membership; or
• Indicates a specific intention to be considered for membership.

This does not include any individual who:

• Is serving for a stated limited probationary period prior to permanent employment and formal union membership; or
• Merely makes an inquiry about the labor organization or its general program.

• Any employer engaged in a transaction with a union, union official, employee, or labor relations consultant must file Form LM-10.
• Form LM-10 must be filed within 90 days after the end of the fiscal year.

The Labor-Management Reporting and Disclosure Act of 1959 (LMRDA), as amended, requires public disclosure of specific financial transactions or arrangements made between an employer and a labor organization, union official, employee, or labor relations consultant.

Every employer who has engaged in any such transaction or arrangement during the fiscal year must file a detailed report with the Secretary of Labor. The Secretary has prescribed the filing of the Employer Report, Form LM-10, for employers to satisfy this reporting requirement.

These reporting requirements only relate to the disclosure of specified payments, not whether specific payments, transactions, or arrangements are lawful or unlawful. Whether a particular payment, transaction, or arrangement is or is not required to be reported is not an indication of if it is subject to any legal prohibition.

Any employer, as defined by the LMRDA, who has engaged in certain financial transactions or arrangements of the type described in Section 203(a) of the Act with any labor organization, union official, employee, or labor relations consultant, or who has made expenditures for certain objects relating to activities of employees or a union, must file a Form LM-10. An employer required to file must complete only one Form LM-10 each fiscal year that covers all instances of reportable activity, even if activity occurs at multiple locations.

Recordkeeping and Form LM-10

Individuals required to file Form LM-10 are responsible for maintaining records which will provide, in sufficient detail, the information and data necessary to verify the accuracy and completeness of the report.

Employers must retain the records for at least five years after filing the report, as well as any record necessary to verify, explain, or clarify the report, including, but not limited to:

• Vouchers
• Worksheets
• Receipts
• Applicable resolutions

Reporting financial transactions

The types of financial transactions, arrangements, or expenditures which must be reported are set forth in Form LM-10. The LMRDA states that every employer involved in any such transaction or arrangement during the fiscal year must file a detailed report with the Secretary of Labor indicating the following:

• The date of each arrangement;
• The date and amount of each transaction;
• The name, address, and position of the person with whom the agreement or transaction was made; and
• A full explanation of the circumstances of all payments made, including the terms of any agreement or understanding pursuant to which they were made.

Form LM-10 is divided into two parts: Part A and Part B. Item 8 of Part A contains six questions pertaining to reportable employer activities. Before completing any portion of the report, employers should review these questions thoroughly and answer them, accounting for the exclusions listed in the instructions.

If the answer to each of these questions is “no,” employers should not file this report. But if the answer to any of these questions is “yes,” they should complete both Part A and a separate Part B for each “yes” answer. If any “yes” answer applies to more than one person or organization, they should complete a separate Part B for each one.

Employers must file Form LM-10 annually, and they must disclose:

• Payments or other financial arrangements made to any union, its officers, or its employees;
  • This does not include those permitted under Section 302(c) of the Labor Management Relations Act (LMRA), and payments and loans by banks and similar institutions;
• Payments to any employees for the purpose of causing them to persuade other employees with respect to their bargaining and representation rights, unless they are told about these payments before or at the time they are made;
• Payments for the purpose of:
  • Interfering with employees in the exercise of their bargaining and representation rights; or
  • Obtaining information on employee or union activities in connection with labor disputes involving their company; and
• Arrangements, and payments made under these arrangements, with a labor relations consultant or any other person for the purpose of:
  • Persuading employees with respect to their bargaining and representation rights; or
  • Obtaining information concerning employee activities in a labor dispute involving their company.

In addition to this report, the Secretary of Labor may require employers subject to the LMRDA to submit special reports on relevant information, including but not necessarily confined to, reports involving specifically identified personnel on particular matters referred to in the second paragraph of the instructions for Item 8.a.

While Section 203 of the LMRDA does not amend or modify the rights protected by the NLRA, it contains no provision exempting the protected activities from the reporting requirements. Therefore, employers must report activities of the type set forth in Item 8, since the LMRDA requires such reports, regardless of if the activities are protected by the NLRA.

Employers should note, however, that the information they are required to report in response to Item 8.c does not include expenditures relating exclusively to matters protected by Section 8(c) of the NLRA, because the definition in Section 203(g) of the LMRDA of the term “interfere with, restrain, or coerce,” which is used in Item 8.c, does not cover such matters.

Each employer, as defined in the LMRDA, who has engaged in any of the transactions or arrangements described in the form and instructions must file Form LM-10 within 90 days after the end of their fiscal year.

• Generally, employers are free to lay off or terminate employees as necessary due to business conditions if it is not done in a discriminatory manner.

Downsizing involves cutting back on staff to become more viable and/or operate a business more effectively. In general, employers are free to lay off or terminate employees as necessary due to business conditions, but the terminations may not be done in discriminatory manner. When a union is involved, employers must follow the company’s collective bargaining agreement (CBA) when contemplating or initiating a layoff so that no terms are violated.

Unions generally try to protect members’ jobs, while making wage and benefit concessions if necessary to keep them employed. Of course, the union may expect them to be rewarded for making sacrifices for the good of the company.

A union might negotiate recall rights in a CBA. In this case, the company will need to consider this when determining who to rehire after a layoff.