Allegation of unfair labor practices are investigated by the National Labor Relations Board. The courts may only become involved in such a case if a party wishes to appeal to a determination of the NLRB. What are the remedies? Remedies are confined to “make-whole” type remedies, including awards to the employee of any pay or other benefit lost as a result of the employer’s discrimination, and may include compensatory and punitive damages.
There are 5 types of conduct on the part of employers considered to be illegal, or unfair labor practices:
Interference with, restraint of, or coercion of employees in the exercise of their rights under the NLRA: This means that employers are prohibited from interfering with or otherwise acting against employees who attempt to exercise their rights to join unions and other labor organization, to act on behalf of unions or as union officers, to bargain collectively with their employers, or to engage in any other concerted activities.
Example: Four employees working as clerks in Company C’s finance department meet during a break and discuss their common belief that their employer is underpaying them. They decide that one of them, Becky, will approach their boss, Darla, and request that all four clerks be given a 25-cent-per-hour wage increase. This is a concerted activity. If the employer decided to punish the clerks for getting together to protest their wages by issuing them verbal reprimands, or decided to make an example of Becky by firing her because she acted on behalf of others when requesting a pay increase, then the employer’s acts would be unfair labor practices under the NLRA. This is because Becky and the other clerks are “restrained and coerced” by the employer for exercising their rights to act as a group, that is, to act concertedly in dealing with their employer on a matter concerning their wages, hours or working conditions.
Interference with and/or domination of a labor organization: The type of conduct prohibited by this type of unfair labor practice is an employer’s management forming or assisting in the formation of an “in-house” or “company” union to represent its employees, rather than allow employees to select their own collective-bargaining representative. Companies are also prohibited from providing any significant amount of financial or administrative assistance to unions.
Discrimination against employees to discourage them and other employees from joining or otherwise acting on behalf of unions: It is illegal for employers to discriminate against employees for engaging in such activities. Like other anti-discrimination laws, this does not meant that if an employee engages in union activities, he or she is immune from discharge or other adverse treatment by the employer for other actions.
Example: An employee is elected to be president of the local union at an employer’s facility and reports to work five minutes late one day, shortly after her election. She is issued a one-day suspension without pay for not reporting to work on time by the employer. Now suppose there are other employees who are not union officials and work the same type of job and routinely report to work five to ten minutes late, but are not subjected to any discipline at all, even after the employer is aware of their conduct. Based on these facts, it is likely that the local president could establish that she was illegally discriminated against under the NLRA because of holding a positing in the union.
Retaliation against employees for filing charges or testifying under the NLRA: The NLRA includes specific provisions to protect employees against employer retaliation if the employees either file charges with the NLRB or testify or provide information in connection with an unfair-labor-practice charge. The purpose of this type of unfair labor practice is to ensure that employees feel free to file charges against their employers if they feel their rights under the NLRA are being violated.
Refusal to bargain in good faith with collective-bargaining representative of the employees: Failure or refusal of an employer to bargain in good faith with its employees’ collective-bargaining representative. Another type of conduct often considered to constitute bad-faith bargaining is where an employer makes a unilateral change; that is, the employer’s management acts on its own, without consulting or bargaining with the union representing its employees, to change wages, salary, employee hours, or working conditions.
Even if the employer wishes to make a change that benefits its unionized employees, such as giving them an across-the-board wage increase, the employer is obligated to notify and bargain with the union before it can implement such a change. Otherwise, any changes by the employer would undermine the union’s legal role and responsibility to represent the employees and to provide their independent input.