Ch7. NLRA Deep Dive — Collective Bargaining, Strikes, and Unfair Labor Practices

Union Formation and Certification

Organizing Requirements:
Showing of interest (30% of employees sign authorization cards)
Petition for election filed with NLRB regional office

NLRB Election Process:
Election petition → NLRB schedules secret ballot election
Majority of votes cast → union certified as exclusive bargaining representative

Who May Organize:
Employees (including some non-traditional workers)
Supervisors and managers excluded (NLRA § 2(11))

Union Structures:
Single-employer (plant or company) unit
Industry-wide or craft units
National affiliates: AFL-CIO, Change to Win federation

Collective Bargaining

Duty to Bargain:
Employer must bargain in good faith on mandatory subjects
(wages, hours, and other terms and conditions of employment)
Refusal without good cause = ULP

Mandatory vs. Permissive vs. Illegal Subjects:
Mandatory: wages, benefits, hours, safety, discipline procedures
Permissive: management rights clauses, internal union matters
Illegal: closed-shop agreements, hot-cargo clauses (most)

Collective Bargaining Agreement (CBA):
Must be in writing and signed by both parties
Term: negotiated (typically 2–4 years)
Normative effect: CBA terms directly govern individual employment contracts

Strike Activity

Economic Strike:
Concerted work stoppage to improve wages, hours, or conditions
Strikers retain employee status; employer may hire permanent replacements

Unfair Labor Practice Strike:
Strike caused by employer's ULP
ULP strikers have absolute right to reinstatement on unconditional offer

Lockout:
Employer's defensive response to impasse or strike threat
Permissible after good-faith bargaining to impasse

Essential / Critical Infrastructure:
Hospitals, emergency services, utilities
Must maintain minimum staffing levels during labor disputes (8(d) notice requirements)

Strike Legality Requirements:
Purpose, participants, procedure, and conduct — all must be lawful

Unfair Labor Practices (ULPs)

Employer ULPs (NLRA § 8(a)):
Interference / coercion: threatening employees for union activity
Domination: financing or controlling a union
Discrimination: adverse action because of union membership
Retaliation: adverse action for NLRB charges or testimony
Refusal to bargain: not meeting and conferring in good faith

Filing a ULP Charge:
Within 6 months of the alleged ULP (§ 10(b))
File with NLRB regional office

Penalties:
Cease-and-desist order
Back pay and reinstatement
Posting of notice to employees

Strike Notice = 60 / 10 Days ★★★★★ : Economic strikers must give 60-day notice under § 8(d) (if CBA is in effect); healthcare employers require additional 10-day strike notice. Memory hook: strike notice = 60/10 days

CBA Term = Negotiated (Typically 2–4 Years) ★★★★★ : No federal maximum; most agreements run 2–4 years; after expiration, terms continue until new agreement or impasse. Memory hook: CBA = negotiated term

ULP Charge Deadline = 6 Months ★★★★☆ : NLRA § 10(b) requires ULP charge within 6 months of the alleged conduct. Memory hook: ULP = 6 months

Practice Quiz

Q. When is an employer’s refusal to bargain a ULP, and when is it lawful?

ULP refusal: rejecting a good-faith bargaining demand from a certified majority representative on a mandatory subject without legitimate reason. Lawful refusal: demand from an entity without valid certification; demand on a permissive subject (employer may refuse, not a ULP); procedural defects in the union’s demand; during the 60-day open-period before CBA expiration. The employer must clearly state any objection; a blanket refusal will generally be found to be a ULP.

Q. What makes an employer lockout lawful?

Lockout is permissible only after good-faith bargaining reaches a lawful impasse (not as a first move). It must be defensive in nature — a response to an economic dispute, not an attempt to destroy the union. The lockout applies only to bargaining-unit employees. No strike notice is required for a lockout. During a lawful lockout, the employer has no obligation to pay locked-out employees. An unlawful lockout (e.g., to chill organizing) triggers back-pay obligations from the date of the lockout.