Unfair Labor Practices

The National Labor Relations Act (“NLRA”) provides employees with the rights to organize or join a union, to engage in collective bargaining, and to undertake other concerted activities for mutual aid and protection. Specifically, Section 7 of the NLRA provides that “Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection . . . .” If an employer interferes with or otherwise restrains an employee in the exercise of those rights, it has committed an unfair labor practice under the NLRA.

What is concerted activity? Conduct is concerted if it is undertaken by two or more employees, or by one employee on behalf of others. It does not include an activity by a single employee for that individual’s own personal benefit. Individual activity involving attempts to enforce the provisions of an existing collective bargaining agreement is concerted activity. Further, an individual who repeats a complaint previously expressed by a larger group of employees engages in concerted activity because this is a continuation of concerted activity.

When is concerted activity for the purpose of mutual aid or protection? Employees engage in conduct for the purpose of “mutual aid or protection” when their efforts are aimed at improving the terms and conditions of employment. Employees also act for mutual aid or protection when they seek to improve their position as employees through channels outside the immediate employee-employer relationship. The mutual aid or protection clause protects efforts to improve working conditions through resort to administrative and judicial forums, and appeals to legislators.

In what ways can an employer interfere with or restrain an employee’s rights under the NLRA? The NLRA applies to all types of work situations and any conduct that adversely impacts terms and conditions of employment. That includes hiring, firing, pay, job assignments, promotions, demotions, transfers, benefits, layoffs, harassment, and any other term or condition of employment.

What remedies are available to victims of unfair labor practices? Employees who can prove that they were subjected to an unfair labor practice may be entitled to reinstatement and backpay.

In what forum are unfair labor practice charges litigated? Unfair labor practices are brought before the National Labor Relations Board (“NLRB”). A trial is conducted before an administrative law judge and any appeals go to the NLRB. Parties may then appeal to a federal appellate court.

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