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New Jersey Employer Unlawfully Dealt with Employees Instead of Union, NLRB Rules

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.

The recent case before the NLRB involved an employer that had formed from the merger of two healthcare companies in 2016. The merged employer had about 33,000 employees. Three thousand employees were represented by the union involved in the case “​​in six bargaining units across four facilities.” The employer sought to “harmonize” employee benefits and other matters across all of the facilities it operated.

The represented employees’ collective bargaining agreements (CBAs) were set to expire in 2018. In March of that year, the employer and the union held an “initial joint bargaining session” where the union opposed any plan to standardize all employees’ benefits. The two parties did not meet again until May, when the employer presented a “harmonization website” showing a plan that, if implemented would reportedly “modify certain contractual provisions on mandatory subjects of bargaining.” The website went live the next day, and the employer sent an email to all of its employees with a link to the site.

The union filed a complaint with the NLRB alleging that the employer’s email violated § 8(a)(5). An administrative law judge (ALJ) agreed, and the NLRB affirmed that ruling in September 2022. It found that the email constituted an unlawful direct communication with represented employees.

Workers who are involved in disputes with their employers in New Jersey and New York need knowledgeable advocates who can help them fight for their rights. The employment attorneys at the Resnick Law Group are available to answer your questions and discuss your options. To schedule a confidential consultation, please contact us today online, at 973-781-1204, or at 646-867-7997.

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