The federal National Labor Relations Act (“NLRA”) is the primary federal law governing the relationship between employers, employees and labor unions. Its stated purpose is “…to promote the full flow of commerce, to prescribe the legitimate rights of both employees and employers in their relations affecting commerce, to provide orderly and peaceful procedures for preventing the interference by either with the legitimate rights of the other, to protect the rights of individual employees in their relations with labor organizations whose activities affect commerce, to define and proscribe practices on the part of labor and management which affect commerce and are inimical to the general welfare, and to protect the rights of the public in connection with labor disputes affecting commerce.”
In furtherance of that purpose, the NLRA provides that employees shall have 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. In addition, it protects the right of employees to refrain from any or all such activities.
The Act states that the term “employee” shall include any employee except:
- Agricultural laborers;
- Domestic servants;
- Any individual employed by his or her parent or spouse;
- Independent Contractors; and
The NLRA ensures the protection of these rights by prohibiting certain conduct by employers and unions called „unfair labor practices“ and by establishing specific procedures by which employees may select a labor organization as their exclusive representative for purposes of collective bargaining.
Generally, most employers‘ first exposure to the NLRA comes in one of two ways: they notice union organizing activity going on in their organization or they are confronted with a request by a union to be recognized as the exclusive representative of their employees. If an employer declines voluntary recognition, the union may file a petition for an election with the National Labor Relations Board (“NLRB”), the federal agency charged with enforcing the NLRA. The petition must describe the unit of employees it seeks to represent and the union must demonstrate to the NLRB by way of signed authorization cards that it has the support of at least 30% of the employees in that bargaining unit. If the union shows the required level of support, a representation election is held.
The election is conducted by way of a secret ballot that is supervised by an NLRB agent. No member of management or the union is allowed in the voting area and no electioneering can be conducted there, but both the employer and union may appoint observers to be present during the balloting process.
If a majority of the employees in the bargaining unit who cast their vote had voted in favor of union representation, the union gets the right of “exclusive” representation of all the employees in the bargaining unit (not only the employees who voted in favor of the union).
Once certified by the NLRB as the exclusive bargaining representative of the employees in the bargaining unit, the employer must begin bargaining for a collective bargaining agreement in good faith with the union as the employee’s exclusive bargaining agent.
Outside of the representation by a union, or as otherwise provided by a negotiated collective bargaining agreement, employees do not have an independent right to management or board representation. American law does not recognize work councils or other forms of employee representatives.