The National Labor Relations Act (NLRA) protects the rights of employees to engage in activities related to organizing for the purposes of collective bargaining with their employers. It prohibits employers from interfering with or restraining these activities. Once employees have formed or joined a union and designated it as their authorized representative, the NLRA requires their employer to negotiate with the union regarding issues affecting member employees. An employer violates the NLRA if it deals with represented employees directly rather than through the union. The National Labor Relations Board (NLRB) recently affirmed a ruling finding that an employer violated the NLRA by communicating with employees without notifying the union. If your employer is in discussions with individual employees rather than the union that represents them, reach out to a New Jersey employment lawyer to discuss the situation.
When a majority of employees within a particular unit select a representative for the purposes of collective bargaining, § 9(a) of the NLRA states that this will be those employees’ exclusive representative. A “unit,” according to § 9(b), could consist of all employees in a company, in a division of a company, at a particular plant or facility, or in other groups or divisions. Section 8(a)(5) of the NLRA states that an employer engages in an “unfair labor practice” when it refuses to negotiate with employees’ exclusive representative, as designated under § 9(a).
The NLRB’s interpretation of §8(a)(5) draws on a decision by the Second Circuit Court of Appeals from 1969, in which the court deal with a situation where an employer attempted “to deal with the Union through the employees, rather than with the employees through the Union.” The NLRB has developed a three-part test for identifying situations in which an employer dealt directly with employees in violation of § 8(a)(5):
1. The employer “communicate[d] directly with union-represented employees.”
2. The purpose of the communication was to “establish or chang[e] wages, hours, and terms and conditions of employment,” or to “undercut the union’s role in bargaining.”
3. The employer excluded the union from the communication.