Employer Penalties for Violating the National Labor Relations Act


Employers found by the National Labor Relations Board (NLRB) to have violated the National Labor Relations Act (NLRA) can be subject to penalties. Portions of the NLRA that spell out violations, and result in unfair labor-practice charges, include:

Employers Interfering with the Organization of Unions

Section 8 (a)(1) restricts employers from interfering with, coercing or restraining any employees in their rights to organize a union or bargain collectively with employers. When an employer has been found to have committed a violation in this area, the NLRB will issue a cease and desist order. The NLRB also will require a notice to be posted for 60 consecutive days at the employer's premises. If an employer has been found to have interfered with the election process—which would decide whether the employees want to be unionized—to the point that the NLRB does not believe a fair election can be held, it may issue a bargaining order. With this order, the election process is stopped and the NLRB directs the employer to negotiate with the union.

Employer's are Prohibited from Controlling a Union

Section 8 (a)(2) prohibits an employer from dominating or controlling a union. The NLRB may order such a union disbanded should an employer violate this section. The NLRB also may require the employer to repay union dues withheld from the employees' pay on behalf of an employer-dominated union. If it is found that the employer assisted in forming the union, but did not assume a dominating or controlling position, NLRB may withhold recognition until it certifies that the union reflects employees' wishes. This is accomplished by holding an election.

Employers Cannot Discriminate Against a Union Employee

Section 8 (a)(3) restricts an employer from discriminating in hiring or retaining an employee based upon union membership or the lack thereof. Should an employer violate this section, the NLRB will issue a cease and desist order and require the posting of a violation notice at the employer's premises.

Also, an employer may be required to compensate an employee who has been discriminated against. Such relief can go beyond just dollars to any form of compensation an individual would have received but for the discrimination. In cases where an employer closed an operation rather than deal with a union, the NLRB has ordered employers to resume operations as an appropriate remedy. This order only applies when one location is closed, not when the employer shuts the entire business.

Termination of an Employee for Union Activity Prohibited

Section 8 (a)(4) prohibits the termination of an employee for activity in support of a union. Should the NLRB find a violation, it will issue a cease-and-desist order and/or order reinstatement of back pay for the employee. Just as under Section 8 (a)(3), this form of relief can go beyond dollars to any form of compensation the individual would have received but for the termination due to union activity.

Employer Required to Bargain in Good Faith

Section 8 (a)(5) requires employers to bargain in good faith with the union representative chosen by the employees. Should the NLRB determine a failure to bargain in good faith, it will issue a cease and desist order and an affirmative order directing the employer to resume bargaining—in good faith. The NLRB also may order an employer to supply information, such as revenue and costs, to the union during the collective bargaining process. In cases where an employer has terminated or altered its operation without negotiating with the union, the NLRB has ordered back pay, consistent with the same compensation provisions under sections 8(a)(3) and 8(a)(4), for the affected employees.

Extraordinary Remedies Available for Flagrant Violations

If the NLRB finds flagrant or egregious violations in any of the above-referenced sections, it can order extraordinary remedies. Such remedies may include requiring the employer to mail the NLRB's orders directly to each employee's home or granting the union access to the employer's premises to post notices or meet with employees on non-work time—none of which is normally required. The NLRB also can require the employer to pay litigation costs, attorney's fees and union expenses.

NLRB has Limitations

The NLRB's power is not omnipotent. It cannot, for example, order an employer to make concessions at the bargaining table, make violating the NLRA a crime or adjudicate issues outside a six-month statute of limitations.

Summary

The best way for an employer to minimize exposure to adverse rulings by the NLRB is to conduct its employer/employee/union relations in such a fashion that violations will be minimized. This does not mean an employer must give up its right to manage its business. In fact, management has a duty to its stakeholders not to abdicate its duty to the union or anyone else. Simply put, the employer's duty to manage must be accomplished in a fair and ethical manner.