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John, Employment Lawyer
Category: Employment Law
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Experience:  Exclusively practice labor and employment law.
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Discuss the five major employer unfair labor practices

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Discuss the five major employer unfair labor practices enumerated in the Wagner Act and comment on the NLRB’s and the courts’ success in interpreting them.
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Section 8(a)(1) prohibits an employer from interfering with employees as they engage in concerted activity. Section 8(a)(2) prohibits an employer from dominating or assisting a labor union. Section 8(a)(3) prohibits an employer from discriminating against any worker because of union activity. Section 8(a)(4) prohibits an employer from retaliating against an employee for filing involvement with the filing of charges with the NLRB. Section 8(a)(5) requires the employer to bargain collectivity in good faith with the union.
In regard to 8(a)(1) violations the Board and courts have developed a fairly substantial body of law protecting employees in their right to create and vote for or elect a union, and to strike for purposes of unfair labor practices. However, unions’ ability to protest or strike for reason to make gains in job conditions has largely been hampered by court decisions. In relation to pre-election and election activity the premises of laboratory conditions and keeping the status quo have been successful. Similarly there are anti-employee surveillance and Weingarten (right to have fellow employees present during possible disciplinary meetings with management) rights that further protect employee rights to protest.
In regard to 8(a)(2) violations the Board and courts have largely made unremarkable interpretations of the law. The interpretation has mainly been to require that the employer no support or have a position in a union, but also not to support one union over another. The employer must maintain neutrality and/or otherwise refrain from evincing support for one union over the other.
In regard to 8(a)(3) and (4) violations the Board and courts have adopted a burden-shifting scheme wherein a prima facie case of discrimination is met where an employee can show union involvement, employment knowledge of that involvement, and adverse treatment. Then the employer would have the burden to show that it did not have prohibited motives or otherwise would have made the adverse employment decision absent regardless of the employee’s protected activity. Because discrimination is not always blatant or direct, this burden shifting model is a good way to sift through the evidence and allow more possible claims to surface; as opposed to allowing cases with only the most blatant of discrimination to pass muster.
In regard to 8(a)(5) violations the Board and courts have developed a wide body of law addressing the myriad of issues that can occur during and in relation to bargaining. The main premise of this body of law is an underlying good faith and fair dealing – in providing information and documents, in maintaining the status quo while bargaining, in meeting with the other party and negotiating, in providing economic pressure (on the part of the employer but not on the union side as stated above) , and the declaration of impasse. Within all of these the board and courts are consistently examining whether there was a genuine attempt by the party to meet its obligation. For example in impasse, the examination is to determine whether the parties were in good faith crystallized in their bargaining positions and could not make a deal otherwise.
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