Employer/Union Rights and Obligations

The National Labor Relations Act 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 purposes, or from working together to improve terms and conditions of employment, or refraining from any such activity. Similarly, labor organizations may not restrain or coerce employees in the exercise of these rights.

Examples of employer conduct that violates the law:

• 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 under the Act.
• Promising benefits to employees to discourage their union support.
• Transferring, laying off, terminating, assigning employees more difficult work tasks, or otherwise punishing employees because they engaged in union or protected concerted activity.
• Transferring, laying off, terminating, assigning employees more difficult work tasks, or otherwise punishing employees because they filed unfair labor practice charges or participated in an investigation conducted by NLRB.
• View a presentation on best practices to prevent and address retaliation

Examples of labor organization conduct that violates the law:

• Threats to employees that they will lose their jobs unless they support the union.
• Seeking the suspension, discharge or other punishment of an employee for not being a union member even if the employee has paid or offered to pay a lawful initiation fee and periodic fees thereafter.
• Refusing to process a grievance because an employee has criticized union officials or because an employee is not a member of the union in states where union security clauses are not permitted.
• Fining employees who have validly resigned from the union for engaging in protected concerted activities following their resignation or for crossing an unlawful picket line.
• Engaging in picket line misconduct, such as threatening, assaulting, or barring non-strikers from the employer's premises.
• Striking over issues unrelated to employment terms and conditions or coercively enmeshing neutrals into a labor dispute.

What rules govern collective bargaining for a contract?

After employees choose a union as a bargaining representative, the employer and union are required to meet at reasonable times to bargain in good faith about wages, hours, vacation time, insurance, safety practices and other mandatory subjects. Some managerial decisions such as subcontracting, relocation, and other operational changes may not be mandatory subjects of bargaining, but the employer must bargain about the decision's effects on unit employees.

It is an unfair labor practice for either party to refuse to bargain collectively with the other, but parties are not compelled to reach agreement or make concessions.

If after sufficient good faith efforts, no agreement can be reached, the employer may declare impasse, and then implement the last offer presented to the union. However, the union may disagree that true impasse has been reached and file a charge of an unfair labor practice for failure to bargain in good faith. The NLRB will determine whether true impasse was reached based on the history of negotiations and the understandings of both parties.

If the Agency finds that impasse was not reached, the employer will be asked to return to the bargaining table. In an extreme case, the NLRB may seek a federal court order to force the employer to bargain.

The parties' obligations do not end when the contract expires. They must bargain in good faith for a successor contract, or for the termination of the agreement, while terms of the expired contract continue.

A party wishing to terminate or modify the contract must notify the other party in writing 60 days before the expiration date, or 60 days before the proposed termination or modification and party must offer to meet and confer with the other party for the purpose of negotiating a new contract or a contract containing the proposed modifications.

The party must also notify the Federal Mediation and Conciliation Service (FMCS) within 30 days after such notice of the existence of a dispute and simultaneously notify any State or Territorial agency established to mediate and conciliate disputes within the State or Territory where the dispute occurred.

The party should submit notice electronically via a platform provided by FMCS, currently available here. The party is also responsible for directly notifying any State or Territorial agency established to mediate and conciliate disputes within the State or Territory where the dispute occurred —the FMCS will not notify the State or Territorial agency. NLRB adjudicators have strictly applied this requirement even where the applicable state agency had no jurisdiction or did not generally take action upon receiving the notice. 

Finally, the parties must continue in full force and effect, without resorting to strike or lockout, all the terms and conditions of the existing contract for a period of 60 days after such notice is given or until the expiration date of such contract, whichever occurs later.

Please note that these timelines are different for collective bargaining which involves employees of a health care institution. See Sections 8(d)(4) & 8(g) of the National Labor Relations Act.

You can find additional collective bargaining resources here.

How is "good faith" bargaining determined?

There are hundreds, perhaps thousands, of NLRB cases dealing with the issue of the duty to bargain in good faith. In determining whether a party is bargaining in good faith, the Board will look at the totality of the circumstances. The duty to bargain in good faith is an obligation to participate actively in the deliberations so as to indicate a present intention to find a basis for agreement. This implies both an open mind and a sincere desire to reach an agreement as well as a sincere effort to reach a common ground.

The additional requirement to bargain in "good faith" was incorporated to ensure that a party did not come to the bargaining table and simply go through the motions. There are objective criteria that the NLRB will review to determine if the parties are honoring their obligation to bargain in good faith, such as whether the party is willing to meet at reasonable times and intervals and whether the party is represented by someone who has the authority to make decisions at the table.

Conduct away from the bargaining table may also be relevant. For instance if an Employer were to make a unilateral change in the terms and conditions of employees employment without bargaining, that would be an indication of bad faith.

What are the rules about union dues?

The amount of dues collected from employees represented by unions is subject to federal and state laws and court rulings.

The NLRA allows employers and unions to enter into union-security agreements, which require all employees in a bargaining unit to become union members and begin paying union dues and fees within 30 days of being hired.

Even under a security agreement, employees who object to full union membership may continue as 'core' members and pay only that share of dues used directly for representation, such as collective bargaining and contract administration. Known as objectors, they are no longer full members but are still protected by the union contract. Unions are obligated to tell all covered employees about this option, which was created by a Supreme Court ruling and is known as the Beck right.

An employee may object to union membership on religious grounds, but in that case, must pay an amount equal to dues to a nonreligious charitable organization.

What about Right to Work states?

27 states have banned union-security agreements by passing so-called "right to work" laws. In these states, it is up to each employee at a workplace to decide whether or not to join the union and pay dues, even though all workers are protected by the collective bargaining agreement negotiated by the union.