[Excerpt] The National Labor Relations Act (NLRA or “the Act”) recognizes the right of employees to engage in collective bargaining through representatives of their own choosing. By “encouraging the practice and procedure of collective bargaining,” the Act attempts to mitigate and eliminate labor-related obstructions to the free flow of commerce. Although union membership has declined dramatically since the 1950s, congressional interest in the NLRA remains significant. In the 112th Congress, over 30 bills have been introduced to amend the NLRA. Some of these bills address the timing of union representation elections, while others are concerned with varying aspects of the NLRA, such as the activities of the National Labor Relations Board (NLRB), which implements and administers the Act.
Since the NLRA’s enactment in 1935, the NLRB and the courts have considered a variety of issues arising under the Act. This report reviews selected decisions of the NLRB and the courts on three of them. Determining when an employee may be deemed a supervisor for purposes of coverage under the Act is important because the right to engage in collective bargaining is extended only to employees under the NLRA. Employees who are properly classified as supervisors are not afforded collective bargaining rights.
Both employers and unions are prohibited from restraining or coercing employees in the exercise of the rights guaranteed to them under the Act. In general, to determine whether an unfair labor practice has been committed by either an employer or union, a reviewing court asks whether the misconduct “reasonably tends” to restrain or coerce employees in the exercise of their rights under the NLRA. Courts have emphasized that the actual effect of the misconduct is immaterial.
Finally, pre-election communication with employees may influence the outcome of a representation election. While the NLRA does prohibit an employer from interfering with an employee’s collective bargaining rights, decisions discussed in this report indicate that an employer does not violate the Act in all cases when it denies a union access to its property.