What's the Law?

With certain exceptions, an employer may not enter into an agreement, express or implied, with a labor union whereby the employer agrees to cease or refrain from handling, using, selling, transporting, or otherwise dealing in the products of another employer.

Section 8(e) of the Act provides that "[i]t shall be an unfair labor practice for any labor organization and any employer to enter into any contract or agreement, express or implied, whereby such employer ceases or refrains or agrees to cease or refrain from handling, using, selling, transporting or otherwise dealing in any of the products of any other employer, or cease doing business with any other person," subject to two provisos, discussed below.

• This prohibition, enacted in 1959, complements Section 8(b)(4), enacted 12 years earlier. Section 8(b)(4) makes it unlawful for unions to engage in certain kinds of conduct with an object of forcing or requiring an employer to cease doing business with another employer. (For more on Section 8(b)(4), see "for unions" in this app.) Section 8(e) ensures that unions and employers cannot accomplish by agreement what Section 8(b)(4) outlaws unions from accomplishing by compulsion. With two exceptions, discussed below, Section 8(e) makes it unlawful for an employer and union to enter into an agreement in which the employer agrees to cease doing business with another employer. (Section 8(b)(4)(A), enacted in its present form at the same time as Section 8(e), closes a final loophole by prohibiting unions from forcing an employer to enter into an agreement to cease doing business with another employer.)
• Section 8(e) makes it unlawful to "enter into" certain kinds of agreements. For Section 8(e) purposes, an agreement is entered into when it is executed, and also every time it is reaffirmed or enforced.
• As interpreted by the Supreme Court, Section 8(e) outlaws agreements that come within the scope of its terms and have a secondary objective. If a contract clause has a primary objective of benefiting the contracting employer's own employees-such as by preserving work they customarily perform or recapturing work they used to perform-it is lawful even if it appears to be condemned by the literal terms of Section 8(e). The work in question must be "fairly claimable" by unit employees. Where the objective of an 8(e)-defective clause is not to preserve unit work but to acquire work that unit empIoyees have never performed and thus cannot fairly claim, Section 8(e) is violated.
• "Picket-line" clauses that permit employees to refuse to cross picket lines in support of lawful primary strikes are lawful. But picket-line clauses worded so broadly as to permit employees to refuse to cross picket lines in support of secondary boycotts violate Section 8(e). Thus, for example, a clause permitting employees to refuse to cross any picket line would be unlawful.
• "Struck-work" clauses in which an employer agrees, in essence, not to become an ally of a struck employer do not violate Section 8(e). (For more on the "ally doctrine", see "for unions" in this app.) Thus, for example, a clause providing that employees will not be required to handle work "farmed out" from a struck employer, while making clear that it does not apply to work the employer has customarily performed for such employer, would be lawful.
• Outside of the construction and garment manufacturing industries, union-signatory subcontracting clauses violate Section 8(e), but union-standards subcontracting clauses do not. Thus, a clause requiring the employer to subcontract work only to employers that have collective-bargaining agreements would be unlawful. But a clause requiring the employer to subcontract work only to employers that observe union-equivalent wages, hours, and benefits would not.
• The first or "construction industry" proviso to Section 8(e) exempts from its prohibition agreements in the construction industry relating to the contracting or subcontracting of work to be done at a construction site. Under the second proviso, Section 8(e) does not apply to certain agreements in the garment manufacturing industry.
• In Woelke & Romero Framing v. NLRB, 456 U.S. 645 (1982), the Supreme Court held that the construction industry proviso "shelters union signatory subcontracting clauses that are sought or negotiated in the context of a collective bargaining relationship." Thus, a general contractor and union that have a bargaining relationship (under either Section 9(a) or 8(f)) may enter into an agreement requiring the general contractor to subcontract construction-site work to union-signatory subcontractors. (A union may strike or picket to obtain such an agreement, but it may not do so (or threaten to do so) to enforce such an agreement.) In the absence of a collective-bargaining relationship, however, such an agreement is outside the shelter of the construction industry proviso.
• Under the second or "garment industry" proviso, Section 8(e) does not apply to certain agreements in the garment manufacturing industry. The purpose of the "garment industry" proviso is to protect agreements that prevent subcontracting "parts of an integrated process of production in the apparel and clothing industry" to sweatshops.

The Board will set aside an election if a party to the election (or, in rare cases, a third party) commits objectionable conduct that may have affected the outcome. Unfair labor practices, such as those described in the app pages about interfering with employee rights and discriminating against employees because of their union activities, are objectionable. In addition, conduct that is not an unfair labor practice may invalidate an election if it impermissibly interferes with employees' ability to freely choose whether to be represented by a union or which union to designate as a representative. For example, the Board may set aside an election, even if you have not engaged in any unfair labor practices, if you

• Make untruthful campaign statements using forged documents that leave employees unable to recognize election propaganda for what it is.
• Alter an official Board document to make it look like the Board favors a particular election outcome.
• Engage in excessive electioneering at or near the polls.
• Engage in prolonged conversations with employees waiting in line to vote, regardless of the subject.
• Keep a list of employees who have voted.
• Make irrelevant, inflammatory, and sustained appeals to ethnic or racial prejudice.
• Make an election speech on company time to a massed assembly of employees within 24 hours of the election.
• Change your paycheck distribution process within 24 hours of the election.
• Conduct a raffle within 24 hours of the election if eligibility to participate in the raffle is tied to voting or being at the election site on election day.
• Fail to timely provide to the Regional Director a list of the names and addresses of employees eligible to vote in the election.
• Participate in a union-organizing effort through prounion supervisory conduct, such as soliciting or requiring employees to sign authorization cards.
• Fail to post the Board's notice of election at least 3 full working days before the day of the election.

On the other hand, there are many things you may do, as an employer, before as well as after a union is certified or voluntarily recognized as the representative of a unit of your employees. Some of those are listed under "you may" in the Section 8(a)(3) and 8(a)(5) screens. In addition, you may

• Recognize a union that has uncoerced majority support. (Employers in the construction industry may contract with a union under Section 8(f) regardless of whether the union has majority support.)
• Agree with a union to recognize it if and when it demonstrates majority status.
• Agree with a union to maintain neutrality during the union organizing campaign, or choose not to so agree.
• Refuse to recognize a union voluntarily.
• File an election (RM) petition if a union asks for recognition.
• Poll your employees to determine the truth of a union's claim of majority status, provided that you observe certain safeguards. You must not have engaged in unfair labor practices or otherwise created a coercive atmosphere. In addition, you must (1) communicate to employees that the purpose of the poll is to determine whether the union enjoys majority support (and that must, in truth, be your purpose); (2) give employees assurances against reprisal; and (3) conduct the poll by secret ballot.
• Agree with a petitioning union to the terms of a Board-conducted representation election.
• Refuse to agree to the terms of an election and dispute the union's election petition at a regional hearing.
• Ask the Board to review the Regional Director's election decision.
• Communicate your views about unions or a specific union to your employees, provided you make no threats or promises.
• Predict the precise effects you believe unionization will have on your company, provided that the prediction is carefully phrased on the basis of objective fact to convey your belief as to demonstrably probable consequences beyond your control.
• Exclude nonemployee union organizers from your property, unless your workplace is inaccessible and therefore puts your employees beyond the reach of reasonable union efforts to communicate with them, or you discriminate against the union. (What "discriminate against the union" means in this context has been variously defined.)
• Continue unchanged a practice of soliciting grievances from employees during a union campaign if the practice was in place before the campaign began.
• Maintain and enforce nondiscriminatory rules prohibiting employees from engaging in solicitation on working time, and from distributing literature on working time or in working areas. (Special rules apply to hospitals, retail stores, and casinos.)
• Maintain a rule limiting access to your workplace by off-duty employees, if the rule (1) denies access only to the interior of the facility and outside working areas (if any); (2) is clearly disseminated to all employees; and (3) applies to off-duty employees seeking access for any purpose, not just for the purpose of engaging in union activity.
• Maintain and enforce other rules for your employees, provided the rules do not reasonably tend to inhibit them from exercising their rights under the Act.
• Restrict employee use of workplace communication media you own (such as bulletin boards, telephones, and digital devices), provided that you do not discriminate against union-related or other protected communications.
• Solicit employees to appear in a campaign video if (1) the solicitation takes the form of a general announcement that discloses the purpose of the video and assures employees that participation is voluntary, nonparticipation will not result in reprisals, and participation will not result in rewards or benefits; (2) employees are not pressured to make the decision in the presence of a supervisor; (3) you engage in no other coercive conduct in connection with the announcement; (4) you have not created a coercive atmosphere by engaging in serious or pervasive unfair labor practices; and (5) you do not go beyond soliciting consent by seeking information concerning union matters or otherwise interfering with employees' rights under the Act.
• Change employees' wages or benefits during a union campaign if you would have made the change had the union not been on the scene. (You may also postpone the change until after the election, provided that you make clear to employees that the change will occur whether or not they select the union, and that your sole purpose for postponing the change is to avoid any appearance of trying to influence the outcome of the election.)
• Have an observer at the election (but not a supervisor).
• Challenge, through your observer and for good cause, voters you believe to be ineligible.

Employers have a legal duty to bargain in good faith with their employees' representative and to sign any collective bargaining agreement that has been reached. This duty encompasses many obligations, including a duty not to make certain changes without bargaining with the union and not to bypass the union and deal directly with employees it represents. These examples barely scratch the surface.

Section 8(d) of the Act sets forth what is encompassed within the duty to bargain collectively. Section 8(a)(5) of the Act makes it an unfair labor practice for an employer "to refuse to bargain collectively with the representatives of its employees, subject to the provisions of Section 9(a)" of the Act. (An employer that violates Section 8(a)(5) also derivatively violates Section 8(a)(1).) For example, you may not

• Make changes in wages, hours, working conditions, or other mandatory subjects of bargaining before negotiating with the union to agreement or overall impasse, unless (1) the union prevents the parties from reaching agreement or impasse; (2) economic exigencies compel prompt action; or (3) the proposed change concerns a discrete, recurring event scheduled to recur in the midst of bargaining (such as an annual merit-wage review), and you give the union notice and opportunity to bargain over that matter.
• Fail to meet with the union at reasonable times and reasonable intervals.
• Fail to bargain in good faith concerning mandatory subjects of bargaining.
• Engage in bad-faith, surface, or piecemeal bargaining.
• Refuse to furnish information the union requests that is relevant to the bargaining process or to the employees' terms or conditions of employment.
• Refuse to sign a writing that incorporates a collective-bargaining agreement you have reached with the union.
• Modify any term of a collective-bargaining agreement without the union's consent.
• Make unilateral changes in terms and conditions of employment during the term of a collective-bargaining agreement, unless the union has clearly and unmistakably waived its right to bargain or the change is too minor to require bargaining. (Do not assume that a change you deem minor would be so viewed by the Board.)
• Refuse to bargain over the effects of a change in the scope and direction of your enterprise, even though you need not bargain over the change itself because it concerns a matter at the core of your entrepreneurial control of your business. (Whether a proposed change is a non-bargainable "scope and direction" change or a mandatory subject of bargaining may present a difficult legal question. However, subcontracting that merely substitutes one group of workers for another to do the same work under similar conditions of employment is not a non-bargainable "scope and direction" change.)
• Refuse to recognize and bargain with a union that represents employees of an employer whose business you are acquiring if you are a Burns successor. See NLRB v. Burns International Security Services, 406 U.S. 272 (1972). You are a Burns successor if you hire the majority of your employees from the predecessor's workforce, and from their perspective day-to-day life at work remains largely unchanged. (You may, however, before hiring your workforce, set initial terms and conditions of employment without bargaining with the union, unless you are a "perfectly clear" Burns successor. See below.)
• Set initial terms and conditions of employment before bargaining with the union if you are a "perfectly clear" Burns successor - that is, if you make it perfectly clear that you plan to retain all of the predecessor's employees, or at least enough of them to make it evident that the union's majority status will continue, without informing them that they will be expected to work under different terms.
• Refuse to recognize and bargain with a union that represents employees of an employer whose business you are acquiring, if you refuse to hire the predecessor's employees because they are unionized. In other words, if you discriminate in hiring to avoid becoming a Burns successor, you become a Burns successor - and a "perfectly clear" one at that. See below.
• Set initial terms and conditions of employment before bargaining with the union, if you acquire a business and refuse to hire employees of the predecessor to avoid becoming a Burns successor.
• Set initial terms and conditions of employment before bargaining with the union, if you are a Burns successor and you tell your employees that you will not permit them to be represented by the union.
• Evade your bargaining or contractual duties under the Act by transferring operations to a nominally different business entity that is merely the disguised continuance or "alter ego" of your former unionized business.
• Bypass the union and deal directly with employees. (However, you may communicate to your employees accurate information about your bargaining proposals.)
• Refuse to furnish, or unreasonably delay in furnishing, information the union requests that is relevant to and reasonably necessary for the performance of its representative functions, with certain exceptions.
• Insist to impasse on a proposal concerning a permissive subject of bargaining, or require agreement on a permissive subject as a precondition to further bargaining. Permissive subjects include, for example, unit scope, selection of a bargaining representative, internal union affairs, and settlement of unfair labor practice charges.
• Insist to impasse on a proposal concerning an illegal subject of bargaining, or include an illegal clause in a labor contract. Illegal subjects include, for example, a proposal to make the contract terminable at will or to give the employer the right to discharge employees for union activity.
• Lock out employees in support of an impermissible objective - e.g., to pressure the union to accept an illegal bargaining proposal, a bad-faith bargaining position, or terms unilaterally implemented absent a valid impasse.
• Lock out employees to pressure the union to consent to a midterm contract modification.
• Lock out employees over a permissive subject of bargaining.
• Lock out employees without clearly informing them of the conditions they must meet to be reinstated.
• Declare impasse and refuse to bargain where a valid impasse has not been reached.
• Declare impasse and implement terms where a valid impasse has not been reached.
• Declare impasse and implement terms not encompassed within a pre-impasse offer.
• Implement, upon impasse, a wage proposal vesting in you unlimited discretion over future pay increases, or any other proposal that would be unlawful under the Board's reasoning in McClatchy Newspapers, 321 NLRB 1386 (1996).
• File an election (RM) petition if you lack a good-faith, reasonable uncertainty that the incumbent union still enjoys majority support.
• Poll your represented employees concerning their support for the incumbent union if you lack a good-faith, reasonable uncertainty that the union still enjoys majority support.
• Withdraw recognition from a union that enjoys majority support.
• Withdraw recognition from a union that has lost majority support if you assisted the employees' antiunion petition effort or undermined their union support through unfair labor practices.
• File an election (RM) petition, poll your represented employees, or withdraw recognition from a Board-certified union during the union's certification year or Board-ordered extension thereof.
• File an election (RM) petition, poll your represented employees, or withdraw recognition from a union (1) you recognized voluntarily, or (2) with whom the Board has ordered you to bargain, or (3) with whom you have agreed to bargain as part of a settlement agreement, or (4) with whom you have acquired a bargaining relationship from a unionized predecessor before a reasonable time for bargaining has elapsed.
• File an election (RM) petition, poll your represented employees, or withdraw recognition from a union during the term of a collective-bargaining agreement, up to three years.
• Terminate or modify a collective-bargaining agreement without serving written notice on the union at least 60 days (90 days if you are a healthcare employer) before the expiration date of the contract.
• Terminate or modify a collective-bargaining agreement without giving notice to federal and state mediators within 30 days (60 days if you are a healthcare employer) of serving written notice on the union that you are terminating or modifying the contract.
• Lock out employees before 60 days have passed (90 days if you are a healthcare employer) after you serve written notice on the union that you are terminating or modifying the contract or before the expiration date of the contract, whichever is later.
• Lock out employees if you are the initiating party of a contract modification or termination, and you fail to give notice to federal and state mediators within 30 days (60 days if you are a healthcare employer) of serving written notice on the union that you are terminating or modifying the contract.
• Terminate or modify a collective-bargaining agreement without offering to meet and bargain concerning a new or modified contract.
• Change the status quo from the time a board of inquiry is appointed under Section 213 of the Labor Management Relations Act until 15 days after it issues its report (applies to healthcare employers only).

However, you may, for example

• Adopt or assume a unionized predecessor's collective-bargaining agreement when you acquire its business, continue its operations largely unchanged, and hire a majority of your employees from the predecessor's workforce. You may also decline to adopt or assume a predecessor's collective-bargaining agreement and set initial terms and conditions of employment without bargaining. The right to set initial employment terms ends once you have hired a substantial and representative complement of employees, a majority of whom are drawn from the predecessor's workforce. (You may not, however, set initial terms and conditions without bargaining if you are a "perfectly clear" Burns successor - that is, if you make it perfectly clear that you plan to retain all of the predecessor's employees, or at least enough of them to make it evident that the union's majority status will continue, without informing them that they will be expected to work under different terms.)
• Bargain with the union separately or through a multi-employer association (if all members of the multi-employer group agree to be bound and the union consents).
• Bargain hard, provided you seek in good faith to reach an agreement.
• Bargain with the union concerning permissive subjects of bargaining, but not to impasse.
• Lock out your employees where your sole purpose in doing so is to bring economic pressure to bear in support of a legitimate bargaining position.
• Implement terms encompassed within a pre-impasse offer if negotiations with the union have reached a valid impasse.
• Make changes in the scope and direction of your enterprise - matters that lie at the core of your entrepreneurial control of your business - without bargaining about the change. You must, however, bargain with the union concerning the effects of the change on unit employees. (Whether a particular change is a non-bargainable "scope and direction" change or a mandatory subject of bargaining may present a difficult legal question. However, subcontracting that merely substitutes one group of workers for another to do the same work under similar conditions of employment is not a non-bargainable "scope and direction" change.)
• Make unilateral changes that are minor, or where the union has clearly and unmistakably waived bargaining. (Do not assume that a change you deem minor would be so viewed by the Board.)
• Withdraw recognition from a union after the collective-bargaining agreement expires. This applies only to employers in the construction industry whose bargaining relationship with the union is governed by Section 8(f) of the Act, not Section 9(a).
• Withdraw recognition from a union that has actually lost majority support if the union's presumption of majority status is rebuttable. (A union enjoys an irrebuttable presumption of majority status (1) during the certification year and any extensions thereof; (2) for a "reasonable period" following voluntary recognition, Burns successorship, a settlement agreement in which you agree to bargain, or the Board's issuance of an affirmative bargaining order; and (3) during the term of a collective-bargaining agreement, up to 3 years.)
• Poll your employees concerning their support for the incumbent union if the union's presumption of majority status is rebuttable (see above), and you have a good-faith, reasonable uncertainty that the union still enjoys majority support. The union must be given reasonable advance notice of the time and place of the poll, and the poll must be conducted in accordance with certain safeguards. You must not have engaged in unfair labor practices or otherwise created a coercive atmosphere. In addition, you must (1) communicate to employees that the purpose of the poll is to determine whether the union enjoys majority support (and that must, in truth, be your purpose); (2) give employees assurances against reprisal; and (3) conduct the poll by secret ballot.
• Refuse to discuss or agree to any modification of the terms of an existing contract. You may also consent to do so.

The National Labor Relations Board has no power to investigate an employer (or union) on its own. We cannot do our job unless people come forward, file charges, cooperate with NLRB investigations, and testify in NLRB hearings. It is unlawful for employers to discriminate against employees for helping the NLRB do its job.

Section 8(a)(4) of the Act makes it an unfair labor practice for an employer "to discharge or otherwise discriminate against an employee because he has filed charges or given testimony under this Act." (An employer that violates Section 8(a)(4) also derivatively violates Section 8(a)(1).) For example, you may not

• Discharge or otherwise discriminate against employees for announcing an intent to file a charge, providing information or giving sworn statements to a Board agent investigating a charge, refusing to disclose the identity of a charge-filing coworker, talking to coworkers about future testimony, or refusing to testify voluntarily on your behalf.
• Discharge or otherwise discriminate against employees because you suspect or believe, correctly or not, that they had filed or were about to file a charge.

Employees have the right to be represented by a union of their choice - not their employer's. Thus, for example, it is unlawful for an employer to recognize a union that lacks majority employee support (except in the construction industry), or that has majority support only because an employer coerced it.

Section 8(a)(2) of the Act makes it an unfair labor practice for an employer "to dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it." (An employer that violates Section 8(a)(2) also derivatively violates Section 8(a)(1).) For example, you may not

• Establish and control a "company union."
• Recognize a union after you are notified that another union has filed a valid election petition. (If your employees are already represented, however, you must continue to recognize and bargain with the incumbent union - unless it has lost majority status - even after a rival union files a valid petition.)
• Recognize, bargain with, or execute an agreement with a minority union, unless you are an employer in the construction industry and the agreement is under Section 8(f) of the Act.
• Recognize, bargain with, or execute an agreement with a union whose majority status you helped it obtain through unlawful assistance.
• Engage in conduct that benefits one union at the expense of another, or that reasonably tends to coerce employees to support or join a union. (You may, however, tell your employees that you favor a particular union.)
• Require or encourage employees to sign dues checkoff authorizations. (You may, however, give employees dues checkoff authorization forms.)
• Remit dues to a union absent a validly executed dues checkoff authorization.
• Fail to honor a timely revocation of a dues checkoff authorization.

Employees have the right to unionize, to join together to advance their interests as employees, and to refrain from such activity. It is unlawful for an employer to interfere with, restrain, or coerce employees in the exercise of their rights. For example, employers may not respond to a union organizing drive by threatening, interrogating, or spying on pro-union employees, or by promising benefits if they forget about the union.

Section 7 of the National Labor Relations Act (the Act) guarantees employees "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," as well as the right "to refrain from any or all such activities."

Section 8(a)(1) of the Act makes it an unfair labor practice for an employer "to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7" of the Act. For example, you may not

• Threaten employees with adverse consequences, such as closing the workplace, loss of benefits, or more onerous working conditions, if they support a union, engage in union activity, or select a union to represent them.
• Threaten employees with adverse consequences if they engage in protected, concerted activity. (Activity is "concerted" if it is engaged in with or on the authority of other employees, not solely by and on behalf of the employee himself. It includes circumstances where a single employee seeks to initiate, induce, or prepare for group action, as well as where an employee brings a group complaint to the attention of management. Activity is "protected" if it concerns employees' interests as employees. An employee engaged in otherwise protected, concerted activity may lose the Act's protection through misconduct.)
• Promise employees benefits if they reject the union.
• Imply a promise of benefits by soliciting grievances from employees during a union organizing campaign. (However, if you regularly solicited employee grievances before the campaign began, you may continue that practice unchanged.)
• Confer benefits on employees during a union organizing campaign to induce employees to vote against the union.
• Withhold changes in wages or benefits during a union organizing campaign that would have been made had the union not been on the scene, unless you make clear to employees that the change will occur whether or not they select the union, and that your sole purpose in postponing the change is to avoid any appearance of trying to influence the outcome of the election.
• Coercively question employees about their own or coworkers' union activities or sympathies. (Whether questioning is coercive and therefore unlawful depends on the relevant circumstances, including who asks the questions, where, and how; what information is sought; whether the questioned employee is an open and active union supporter; and whether the questioning occurs in a context of other unfair labor practices.)
• Prohibit employees from talking about the union during working time, if you permit them to talk about other non-work-related subjects.
• Poll your employees to determine the extent of their support for a union, unless you comply with certain safeguards. You must not have engaged in unfair labor practices or otherwise created a coercive atmosphere. In addition, you must (1) communicate to employees that the purpose of the poll is to determine whether the union enjoys majority support (and that must, in truth, be your purpose); (2) give employees assurances against reprisal; and (3) conduct the poll by secret ballot.
• Spy on employees' union activities. ("Spying" means doing something out of the ordinary to observe the activity. Seeing open union activity in workplace areas frequented by supervisors is not "spying.")
• Create the impression that you are spying on employees' union activities.
• Photograph or videotape employees engaged in peaceful union or other protected activities.
• Solicit individual employees to appear in a campaign video.
• Promulgate, maintain, or enforce work rules that reasonably tend to inhibit employees from exercising their rights under the Act.
• Deny off-duty employees access to outside nonworking areas of your property, unless business reasons justify it.
• Prohibit employees from wearing union buttons, t-shirts, and other union insignia unless special circumstances warrant.
• Convey the message that selecting a union would be futile.
• Discipline or discharge a union-represented employee for refusing to submit, without a representative, to an investigatory interview the employee reasonably believes may result in discipline.
• Interview employees to prepare your defense in an unfair labor practice case, unless you provide certain assurances. You must communicate to the employee the purpose of the questioning, assure him against reprisals, and obtain his voluntary participation. Questioning must occur in a context free from employer hostility to union organization and must not itself be coercive. And questioning must not go beyond what is needful to achieve its legitimate purpose. That is, you may not pry into other union matters, elicit information concerning the employee's subjective state of mind, or otherwise interfere with employee rights under the Act.
• Initiate, solicit employees to sign, or lend more than minimal support to or approval of a decertification or union-disaffection petition.
• Discharge, constructively discharge, suspend, layoff, fail to recall from layoff, demote, discipline, or take any other adverse action against employees because of their protected, concerted activities.

Employers have a variety of ways to protect their legal rights under the NLRA. For example, you may ask the Board to review a regional director's decision directing an election, file charges with the Board, appeal to the Board an administrative law judge's decision, and seek review of a Board decision by a federal court of appeals.

You may

• Dispute the union's election petition at a regional hearing.
• Ask the Board to review the Regional Director's direction of an election.
• File an election (RM) petition if the union's presumption of majority status is rebuttable, and you have a good-faith, reasonable uncertainty that the incumbent union still enjoys majority support. (A union enjoys an irrebuttable presumption of majority status (1) during the certification year and any extensions thereof; (2) for a "reasonable period" following voluntary recognition, Burns successorship, a settlement agreement in which you agree to bargain, or the Board's issuance of an affirmative bargaining order; and (3) during the term of a collective-bargaining agreement, up to 3 years.)
• File an election (RM) petition if a union asks for recognition.
• File with the Board objections to the union's conduct during the run-up to the election.
• File with the Board objections to the conduct of the election itself.
• Seek review, in a federal court of appeals, of the Board's certification of the union. (You cannot do so directly. To obtain court review, you must refuse to bargain with the union, and then petition the court to review the Board's decision finding your refusal to bargain an unfair labor practice.)
• File charges with the Board alleging that a union has violated or is violating the Act.
• Interview employees to prepare your defense in an unfair labor practice case if you provide employees certain assurances. You must communicate to the employee the purpose of the questioning, assure him against reprisals, and obtain his voluntary participation. Questioning must occur in a context free from employer hostility to union organization and must not itself be coercive. And questioning must not go beyond what is needful to achieve its legitimate purpose. That is, you may not pry into other union matters, elicit information concerning the employee's subjective state of mind, or otherwise interfere with employee rights under the Act.
• Defend against unfair labor practice allegations in a hearing before an administrative law judge.
• Appeal the decision of an administrative law judge or Board hearing officer to the NLRB.
• Petition a federal court of appeals to review an adverse NLRB unfair labor practice decision.
• Sue a union in court under Section 301 of the Labor Management Relations Act (LMRA) for breach of a collective-bargaining agreement.
• Sue a union in court under Section 303 of the LMRA for damages caused by unlawful secondary activity. (Primary as well as secondary employers have a right of action under Section 303.) (For further information about secondary union activity, see "for unions" in this app.)