The Definition of “Supervisor” Under the National Labor Relations Act

§ 2(11)
https://fas.org/sgp/crs/misc/RL34350.pdf

Interfering with employee rights (Section 7 & 8(a)(1))

Employees have the right to unionize, to join together to advance their interests as employees,
and to refrain from such activity. It is unlawful for an employer to interfere with, restrain, or
coerce employees in the exercise of their rights. For example, employers may not respond to a
union organizing drive by threatening, interrogating, or spying on pro-union employees, or by
promising benefits if they forget about the union.

Section 7 of the National Labor Relations Act (the Act) guarantees employees "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," as well as the right "to refrain from
any or all such activities."

Section 8(a)(1) of the Act makes it an unfair labor practice for an employer "to interfere with,
restrain, or coerce employees in the exercise of the rights guaranteed in Section 7" of the Act.
For example, you may not

 Threaten employees with adverse consequences, such as closing the workplace, loss of
benefits, or more onerous working conditions, if they support a union, engage in union
activity, or select a union to represent them.
 Threaten employees with adverse consequences if they engage in protected, concerted
activity. (Activity is "concerted" if it is engaged in with or on the authority of other
employees, not solely by and on behalf of the employee himself. It includes
circumstances where a single employee seeks to initiate, induce, or prepare for group
action, as well as where an employee brings a group complaint to the attention of
management. Activity is "protected" if it concerns employees' interests as employees. An
employee engaged in otherwise protected, concerted activity may lose the Act's
protection through misconduct.)
 Promise employees benefits if they reject the union.
 Imply a promise of benefits by soliciting grievances from employees during a union
organizing campaign. (However, if you regularly solicited employee grievances before
the campaign began, you may continue that practice unchanged.)
 Confer benefits on employees during a union organizing campaign to induce employees
to vote against the union.
 Withhold changes in wages or benefits during a union organizing campaign that would
have been made had the union not been on the scene, unless you make clear to employees
that the change will occur whether or not they select the union, and that your sole purpose
in postponing the change is to avoid any appearance of trying to influence the outcome of
the election.
 Coercively question employees about their own or coworkers' union activities or
sympathies. (Whether questioning is coercive and therefore unlawful depends on the
relevant circumstances, including who asks the questions, where, and how; what
 information is sought; whether the questioned employee is an open and active union
supporter; and whether the questioning occurs in a context of other unfair labor
practices.)
 Prohibit employees from talking about the union during working time, if you permit them
to talk about other non-work-related subjects.
 Poll your employees to determine the extent of their support for a union, unless you
comply with certain safeguards. You must not have engaged in unfair labor practices or
otherwise created a coercive atmosphere. In addition, you must (1) communicate to
employees that the purpose of the poll is to determine whether the union enjoys majority
support (and that must, in truth, be your purpose); (2) give employees assurances against
reprisal; and (3) conduct the poll by secret ballot.
 Spy on employees' union activities. ("Spying" means doing something out of the ordinary
to observe the activity. Seeing open union activity in workplace areas frequented by
supervisors is not "spying.")
 Create the impression that you are spying on employees' union activities.
 Photograph or videotape employees engaged in peaceful union or other protected
activities.
 Solicit individual employees to appear in a campaign video.
 Promulgate, maintain, or enforce work rules that reasonably tend to inhibit employees
from exercising their rights under the Act.
 Deny off-duty employees access to outside nonworking areas of your property, unless
business reasons justify it.
 Prohibit employees from wearing union buttons, t-shirts, and other union insignia unless
special circumstances warrant.
 Convey the message that selecting a union would be futile.
 Discipline or discharge a union-represented employee for refusing to submit, without a
representative, to an investigatory interview the employee reasonably believes may result
in discipline.
 Interview employees to prepare your defense in an unfair labor practice case, unless you
provide certain assurances. You must communicate to the employee the purpose of the
questioning, assure him against reprisals, and obtain his voluntary participation.
Questioning must occur in a context free from employer hostility to union organization
and must not itself be coercive. And questioning must not go beyond what is needful to
achieve its legitimate purpose. That is, you may not pry into other union matters, elicit
information concerning the employee's subjective state of mind, or otherwise interfere
with employee rights under the Act.
 Initiate, solicit employees to sign, or lend more than minimal support to or approval of a
decertification or union-disaffection petition.
 Discharge, constructively discharge, suspend, layoff, fail to recall from layoff, demote,
discipline, or take any other adverse action against employees because of their protected,
concerted activities.

Discriminating against employees because of their union activities or sympathies (Section

8(a)(3))
It is unlawful to discourage (or encourage) union activities or sympathies "by discrimination in
regard to hire or tenure of employment or any term or condition of employment." For example,
employers may not discharge, lay off, or discipline employees, or refuse to hire job applicants,
because they are pro-union.

Section 8(a)(3) of the Act makes it an unfair labor practice for an employer, "by discrimination
in regard to hire or tenure of employment or any term or condition of employment[,] to
encourage or discourage membership in any labor organization." (An employer that violates
Section 8(a)(3) also derivatively violates Section 8(a)(1).) For example, you may not

 Discharge, constructively discharge, suspend, lock out, lay off, fail to recall from layoff,
demote, discipline, or take any other adverse action against employees because they
support the union or engage in union activities.
 Engage in discriminatory conduct that is inherently destructive of employee rights under
the Act, unless you can show a legitimate and substantial business justification for your
conduct that outweighs the invasion of employee rights.
 Close one of your facilities, if your motive is to chill unionism at any remaining facility
and such an effect is reasonably foreseeable.
 Transfer work (e.g., to another plant or other employees) in order to avoid your
obligations under the Act.
 Refuse to hire or consider job applicants because of their union membership, activities, or
sympathies.
 Refuse to hire union-represented employees of a business you have acquired to avoid
succeeding to an obligation to bargain with the union.
 Refuse promptly to reinstate returning unfair labor practice strikers, or returning
economic strikers who have not been permanently replaced, unless they engaged in strike
misconduct sufficiently grave to lose the Act's protection (such as assaults, destruction of
property, or threats of serious injury).
 Fail to accord returning economic strikers who have been permanently replaced their
reinstatement rights under Laidlaw Corp., 171 NLRB 1366 (1968), unless they engaged
in strike misconduct sufficiently grave to lose the Act's protection.
 Grant a benefit to nonstrikers and/or replacements that is withheld from strikers, or
impose a burden on strikers that is not placed on nonstrikers or replacements.
 Permanently replace locked-out employees.

However, you may, for example,

 Lock out your employees defensively - e.g., in response to an unprotected intermittent or

partial strike - provided that you are not motivated by a purpose to interfere with and
defeat union activity.
 Lock out your employees defensively in response to a "whipsaw" strike against a fellow
member of a multi-employer association.
 Lock out your employees offensively where your sole purpose in doing so is to bring
economic pressure to bear in support of a legitimate bargaining position.
 Hire temporary replacements to continue operations during a strike or a lawful lockout.
 Hire permanent replacements to continue operations during an economic strike.
  Comply with a union demand under a union-security agreement, subject to certain
exceptions (see below).
 Discharge employees who engage in an unprotected or prohibited strike. Unprotected
strikes include sit-down strikes, partial strikes (such as slowdowns), and intermittent
strikes. Prohibited strikes include strikes that violate Section 8(b)(4)(D), 8(b)(6), or 8(b)
(7) of the Act (see the "for unions" sections of this app), strikes that fail to comply with
the mandates of Section 8(d) or 8(g), and strikes that violate a contractual no-strike
provision (unless the strike is in protest of serious unfair labor practices).
 Discharge sympathy strikers - i.e., employees who refuse to cross a picket line at another
employer - if (1) the primary strike is unprotected or prohibited; (2) a sympathy strike
violates the no-strike provision of your collective-bargaining agreement; or (3) the
sympathy striker's refusal to cross the picket line disrupts your business so significantly
as to clearly outweigh the striker's right to honor a picket line in a protected strike.
 Discharge or discipline strikers who engage in misconduct that would reasonably tend to
intimidate or coerce, such as assaults, destruction of property, or threats of serious injury.
 Choose to go out of business entirely, even if your decision to do so is motivated by
antiunion considerations.

Section 8(a)(3) contains two provisos. The first proviso exempts lawful union-security
agreements. The second proviso places limits on the enforcement of such agreements. For
example, you may not:

 Enter into a union-security agreement with a minority union or a union whose majority
status you helped it obtain through unlawful assistance.
 Discharge an employee under a union-security agreement if you know or reasonably
suspect that the union failed to give the employee notice of his dues delinquency and an
opportunity to pay.
 Discharge an employee under a union-security agreement if you reasonably believe that
union membership was not available to him on the same terms the union applies to other
employees.
 Discharge an employee under a union-security agreement if you reasonably believe the
union's demand is for reasons other than the employee's failure to tender dues or fees.
 Discharge an employee under a union-security agreement if you reasonably believe that
his union membership was denied or terminated for reasons other than his failure to pay
dues or initiation fees. (In other words, if a union expels an employee from membership
for a reason other than nonpayment of dues or fees - for example, because he led a
decertification effort - it may not thereafter seek his discharge for nonpayment of dues or
fees, and you may not discharge him for nonpayment.)

Secondary boycotts (Section 8(b)(4))

The NLRA protects the right to strike or picket a primary employer - an employer with whom a
union has a labor dispute. But it also seeks to keep neutral employers from being dragged into
the fray. Thus, it is unlawful for a union to coerce a neutral employer to force it to cease doing
business with a primary employer. That is only one aspect, however, of a complex legal picture.
Section 8(b)(4) of the Act makes it unlawful for a labor organization or its agents "(i) to engage
in, or induce or encourage any individual employed by any person engaged in commerce or in an
industry affecting commerce to engage in, a strike or a refusal in the course of his employment to
use, manufacture, process, transport, or otherwise handle or work on any goods, articles,
materials, or commodities or to perform any services; or (ii) threaten, coerce, or restrain any
person engaged in commerce or in an industry affecting commerce, where in either case an
object thereof is (A) forcing or requiring any employer or self-employed person to join any labor
or employer organization or to enter into any agreement which is prohibited by Section 8(e) of
the Act; (B) forcing or requiring any person to cease using, selling, handling, transporting, or
otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease
doing business with any other person, or forcing or requiring any other employer to recognize or
bargain with a labor organization as the representative of his employees unless such labor
organization has been certified as the representative of such employees under the provisions of
Section 9; provided that nothing contained in clause (B) shall be construed to make unlawful,
where not otherwise unlawful, any primary strike or primary picketing; (C) forcing or requiring
any employer to recognize or bargain with a particular labor organization as the representative of
his employees if another labor organization has been certified as the representative of such
employees under the provisions of Section 9; (D) forcing or requiring any employer to assign
particular work to employees in a particular labor organization or in a particular trade, craft, or
class rather than to employees in another labor organization or in another trade, craft, or class,
unless such employer is failing to conform to an order or certification of the Board determining
the bargaining representative for employees performing such work." (Section 8(b)(4) also
includes two provisos, discussed below.)

As stated, Section 8(b)(4)(A) makes it unlawful to engage in certain conduct with an object of
"forcing or requiring any employer or self-employed person to join any labor or employer
organization." The rest of this section refers to Section 8(e) and is explained below in connection
with that statutory provision.
Section 8(b)(4)(C) is self-explanatory and rarely violated. It will not be further discussed here.
Section 8(b)(4)(D)'s main function is to set in motion the procedure the Board follows to resolve
"jurisdictional" or work-assignment disputes under Section 10(k) of the Act. Those two sections,
and the Board's jurisdictional dispute procedure, are addressed below.
Despite the mind-numbing wording of Section 8(b)(4), its essential aim is not difficult to grasp.
It prohibits certain kinds of "secondary" conduct - that is, conduct aimed at a "secondary"
employer (or secondary employees) in order to exert pressure on a "primary" employer. A
"primary" employer is an employer with whom you directly have a labor dispute. A "secondary"
employer - also called a "neutral" - is any employer that is not a primary employer, unless it is an
"ally" of a primary employer. (For more about the ally doctrine, see below.)
The first proviso to Section 8(b)(4) preserves the protected right of employees of a secondary
employer to refuse to cross a primary picket line. However, a sympathy striker will lose that
protection and render himself vulnerable to discharge if (1) the primary strike is unprotected or
prohibited; (2) a sympathy strike violates a contractual no-strike provision; or (3) the sympathy
striker's refusal to cross the primary picket line disrupts his employer's business so significantly
as to clearly outweigh the striker's right to honor a protected primary picket line.
Section 8(b)(4)(i) concerns conduct directed at secondary employees. It prohibits you from
inducing or encouraging, with an object proscribed in subsection (A), (B), (C), or (D), "any
individual employed by any person" to do certain things. For example, you may not, with a
proscribed object of forcing a neutral employer to cease doing business with a primary employer,
induce or encourage the neutral's employees to strike. Doing so would violate Section 8(b)(4)(i)
(B).
Section 8(b)(4)(ii) concerns conduct directed at secondary (neutral) employers. It prohibits you
from threatening, coercing, or restraining, with an object proscribed in subsection (A), (B), (C),
or (D), "any person engaged in commerce." For example, you may not threaten, coerce, or
restrain a neutral employer with a proscribed object of forcing that employer to cease doing
business with a primary employer. Doing so would violate Section 8(b)(4)(ii)(B).
Notice that all it takes to violate Section 8(b)(4)(i) (assuming the other elements are met) is
inducement or encouragement, whereas Section 8(b)(4)(ii) isn't violated unless you threaten,
coerce, or restrain. Thus, for example, you may encourage the manager of a neutral business not
to do business with a primary employer. In that case, you are approaching the manager as a
person engaged in commerce, so your conduct would be evaluated under Section 8(b)(4)(ii), and
no violation would lie because you have not threatened, coerced, or restrained. However, since
that manager is also "an individual employed" by that neutral, you may not induce or encourage
him to refuse to work in order to pressure the neutral to cease doing business with the primary.
Now, it would not matter that you did not threaten, coerce, or restrain because your conduct
would be evaluated under Section 8(b)(4)(i).
To "coerce or restrain" for purposes of Section 8(b)(4)(ii), union activity must involve more than
mere persuasion. Picketing involves more than mere persuasion. "Picketing" includes what that
word typically calls to mind: persons patrolling at the entrance to a targeted business, carrying
signs affixed to sticks. But it is not limited to such conduct. Picketing has been found where
signs were stuck in a snow bank and people sat in nearby cars, getting out to answer questions or
talk to delivery drivers. It has been found where there were no signs at all, simply a large crowd
shouting appeals for action. On the other hand, demonstrations and marches have been found not
to be picketing when there were no signs or patrolling.
"Bannering" is not picketing and does not coerce or restrain for Section 8(b)(4)(ii) purposes.
Peaceful consumer handbilling does not involve more than mere persuasion and is not coercion
or restraint for Section 8(b)(4)(ii) purposes. See Edward J. DeBartelo Corp. v. Florida Gulf Coast
Building Trades Council, 485 U.S. 568 (1988).
A second proviso to Section 8(b)(4), the "publicity" proviso, may be safely ignored. The
Supreme Court's above-cited DeBartelo decision exempting peaceful consumer handbilling from
the scope of Section 8(b)(4)(ii)(B) effectively made that proviso superfluous.
Handbilling may come within the prohibition of Section 8(b)(4) under certain circumstances,
such as where the union handbills and pickets, or where the handbills are directed not at
consumers but at employees of a neutral to induce or encourage them to withhold their services.
Notwithstanding the general prohibition against picketing a neutral, you may picket a neutral to
persuade its customers not to buy a struck product. For example, suppose you have a labor
dispute with a dairy. The dairy sells its products to a grocery store, which sells them to the
public. You may picket the grocery store to discourage its customers from buying the struck
dairy products. You may not picket to encourage a general boycott of the store. Also, you may
not picket a struck product where that product accounts for all or almost all of the neutral's
business, so that an appeal to the public not to buy the struck product would threaten the neutral
with ruin or substantial loss.
To be unlawful under Section 8(b)(4)(B), conduct must be undertaken with an object of "forcing
or requiring any person to . . . cease doing business with any other person . . . ." Read literally,
this language might suggest that so long as your aim is something less than to bring about a total
cessation of business between a neutral and primary, pressure exerted on the neutral is lawful.
This language is not read literally. A "cease doing business" object may be found where the aim
is something less than a total cessation of business between neutral and primary. However, a
union's goal in exerting pressure on a neutral may be so limited, and the likely consequences of
its conduct on the neutral so slight, as to make its secondary conduct permissible.
Section 8(b)(4)(B) makes certain conduct unlawful where an object is to force or require a
neutral to "cease doing business" with a primary. "An object" means what it says. The fact that
challenged secondary conduct has more than one object is no defense so long as a "cease doing
business" object is one of them.
Section 8(b)(4)(B) permits otherwise unlawful secondary activity where the union "has been
certified as the representative" of the primary's employees. In other words, suppose you are the
certified representative of A's employees, and A refuses to recognize and bargain with you. You
may picket neutral B to force B to cease doing business with A to pressure A to recognize and
bargain with you. Doing so would not violate Section 8(b)(4)(ii)(B).
Picketing at the site of the primary employer may impact secondary employers, but that doesn't
make it into unlawful secondary activity. Suppose, for example, that you are on strike against A,
whose employees you represent. Truck drivers employed by neutral B arrive at A's plant to pick
up products A has sold to B. B's drivers honor the picket line, and consequently B's business is
impacted. Nonetheless, the picketing remains lawful primary activity.
So-called "common situs" cases raise the question of how a union may engage in lawful primary
picketing where the primary shares a worksite with one or more neutral employers. For example,
a common situs situation exists where employees of the primary are working on a secondary
employer's premises, or where the primary is a trucking company whose trucks make stops at
neutrals' loading docks. (The latter scenario is sometimes called an "ambulatory situs", which is a
type of common situs.) The general guideline for common situs situations is to minimize the
impact of picketing on neutrals without substantially impairing the effectiveness of lawful
primary picketing.
To translate this general guideline into specific guidance, the Board adopted the following
standards in Moore Dry Dock, 92 NLRB 547 (1950), and they still apply today. "[P]icketing of
the premises of a secondary employer is primary," the Board said, "if it meets the following
conditions: (a) The picketing is strictly limited to times when the situs of the dispute is located
on the secondary employer's premises; (b) at the time of the picketing the primary employer is
engaged in its normal business at the situs; (c) the picketing is limited to places reasonably close
to the location of the situs; and (d) the picketing discloses clearly that the dispute is with the
primary employer."
Common-situs picketing that complies with Moore Dry Dock standards is presumed lawful, and
common-situs picketing that does not is presumed unlawful. In both situations, the presumption
is rebuttable.
When a primary is engaged in operations on a secondary employer's worksite, the secondary
typically reserves a separate gate for the primary's employees and suppliers. Where that has been
properly done and the reserved gate system is honored, picketing must be confined to the gate
reserved for the primary. Picketing at neutral gates falls afoul of the Moore Dry Dock
requirement that picketing at a common situs be limited to places reasonably close to the site of
the dispute with the primary.
What about the converse scenario, where a neutral employer is engaged in operations on the
premises of a struck primary, and the primary reserves a gate for the neutral's employees?
Picketing at the premises of a struck primary is garden-variety primary activity. That a neutral
also is present does not make this a "common situs" situation, and the Moore Dry Dock
standards do not apply. Instead, the primary or secondary nature of picketing at the neutral's
reserved gate is determined under the "related-work" test. Under that test, picketing at the gate
reserved for neutrals remains primary unless (1) the work done by employees of the neutral is
unrelated to the normal operations of the primary, and (2) the work is of a kind that would not, if
done when the primary is engaged in normal business operations, require that those operations be
curtailed. For example, suppose employees of a neutral are constructing a new manufacturing
facility on the primary's worksite. Meanwhile, manufacturing continues as usual in the primary's
existing facility. Picketing at a gate reserved for the neutral's employees would be secondary and
unlawful because their work would be unrelated to normal operations in the primary's existing
facility and would not require curtailing those operations. But suppose a primary has outsourced
routine maintenance of its manufacturing equipment to Company M. In that case, picketing at a
gate reserved for employees of M would be primary and lawful because routine maintenance of
the struck primary's equipment relates to the primary's normal business operations.
Not every employer formally distinct from a primary is necessarily a neutral. Under the "ally
doctrine," an asserted neutral may be so closely related to a primary as to make primary and
lawful union conduct aimed at the asserted neutral.
An asserted neutral is an ally of a primary and unprotected by Section 8(b)(4)(B) if (1) it accepts
and performs struck work that, but for the strike, the primary would not have sent to it, or (2) the
asserted neutral and primary constitute a single employer.
If you violate Section 8(b)(4), you may be sued for damages caused by your unlawful secondary
activity under Section 303 of the Labor Management Relations Act.

Bargaining in good faith with employees' union representative (Section 8(d) & 8(a)(5))
Employers have a legal duty to bargain in good faith with their employees' representative and to
sign any collective bargaining agreement that has been reached. This duty encompasses many
obligations, including a duty not to make certain changes without bargaining with the union and
not to bypass the union and deal directly with employees it represents. These examples barely
scratch the surface. Given the complexity and importance of this subject, employers should . . .

Section 8(d) of the Act sets forth what is encompassed within the duty to bargain collectively.
Section 8(a)(5) of the Act makes it an unfair labor practice for an employer "to refuse to bargain
collectively with the representatives of its employees, subject to the provisions of Section 9(a)"
of the Act. (An employer that violates Section 8(a)(5) also derivatively violates Section 8(a)(1).)
For example, you may not

 Make changes in wages, hours, working conditions, or other mandatory subjects of

bargaining before negotiating with the union to agreement or overall impasse, unless (1)
the union prevents the parties from reaching agreement or impasse; (2) economic
exigencies compel prompt action; or (3) the proposed change concerns a discrete,
 recurring event scheduled to recur in the midst of bargaining (such as an annual merit-
wage review), and you give the union notice and opportunity to bargain over that matter.
 Fail to meet with the union at reasonable times and reasonable intervals.
 Fail to bargain in good faith concerning mandatory subjects of bargaining.
 Engage in bad-faith, surface, or piecemeal bargaining.
 Refuse to furnish information the union requests that is relevant to the bargaining process
or to the employees' terms or conditions of employment.
 Refuse to sign a writing that incorporates a collective-bargaining agreement you have
reached with the union.
 Modify any term of a collective-bargaining agreement without the union's consent.
 Make unilateral changes in terms and conditions of employment during the term of a
collective-bargaining agreement, unless the union has clearly and unmistakably waived
its right to bargain or the change is too minor to require bargaining. (Do not assume that a
change you deem minor would be so viewed by the Board.)
 Refuse to bargain over the effects of a change in the scope and direction of your
enterprise, even though you need not bargain over the change itself because it concerns a
matter at the core of your entrepreneurial control of your business. (Whether a proposed
change is a nonbargainable "scope and direction" change or a mandatory subject of
bargaining may present a difficult legal question. However, subcontracting that merely
substitutes one group of workers for another to do the same work under similar
conditions of employment is not a nonbargainable "scope and direction" change.)
 Refuse to recognize and bargain with a union that represents employees of an employer
whose business you are acquiring if you are a Burns successor. See NLRB v. Burns
International Security Services, 406 U.S. 272 (1972). You are a Burns successor if you
hire the majority of your employees from the predecessor's workforce, and from their
perspective day-to-day life at work remains largely unchanged. (You may, however,
before hiring your workforce, set initial terms and conditions of employment without
bargaining with the union, unless you are a "perfectly clear" Burns successor. See below.)
 Set initial terms and conditions of employment before bargaining with the union if you
are a "perfectly clear" Burns successor - that is, if you make it perfectly clear that you
plan to retain all of the predecessor's employees, or at least enough of them to make it
evident that the union's majority status will continue, without informing them that they
will be expected to work under different terms.
 Refuse to recognize and bargain with a union that represents employees of an employer
whose business you are acquiring, if you refuse to hire the predecessor's employees
because they are unionized. In other words, if you discriminate in hiring to avoid
becoming a Burns successor, you become a Burns successor - and a "perfectly clear" one
at that. See below.
 Set initial terms and conditions of employment before bargaining with the union, if you
acquire a business and refuse to hire employees of the predecessor to avoid becoming a
Burns successor.
 Set initial terms and conditions of employment before bargaining with the union, if you
are a Burns successor and you tell your employees that you will not permit them to be
represented by the union.
 Evade your bargaining or contractual duties under the Act by transferring operations to a
nominally different business entity that is merely the disguised continuance or "alter ego"
of your former unionized business.
 Bypass the union and deal directly with employees. (However, you may communicate to
your employees accurate information about your bargaining proposals.)
 Refuse to furnish, or unreasonably delay in furnishing, information the union requests
that is relevant to and reasonably necessary for the performance of its representative
functions, with certain exceptions.
 Insist to impasse on a proposal concerning a permissive subject of bargaining, or require
agreement on a permissive subject as a precondition to further bargaining. Permissive
subjects include, for example, unit scope, selection of a bargaining representative,
internal union affairs, and settlement of unfair labor practice charges.
 Insist to impasse on a proposal concerning an illegal subject of bargaining, or include an
illegal clause in a labor contract. Illegal subjects include, for example, a proposal to make
the contract terminable at will or to give the employer the right to discharge employees
for union activity.
 Lock out employees in support of an impermissible objective - e.g., to pressure the union
to accept an illegal bargaining proposal, a bad-faith bargaining position, or terms
unilaterally implemented absent a valid impasse.
 Lock out employees to pressure the union to consent to a midterm contract modification.
 Lock out employees over a permissive subject of bargaining.
 Lock out employees without clearly informing them of the conditions they must meet to
be reinstated.
 Declare impasse and refuse to bargain where a valid impasse has not been reached.
 Declare impasse and implement terms where a valid impasse has not been reached.
 Declare impasse and implement terms not encompassed within a preimpasse offer.
 Implement, upon impasse, a wage proposal vesting in you unlimited discretion over
future pay increases, or any other proposal that would be unlawful under the Board's
reasoning in McClatchy Newspapers, 321 NLRB 1386 (1996).
 File an election (RM) petition if you lack a good-faith, reasonable uncertainty that the
incumbent union still enjoys majority support.
 Poll your represented employees concerning their support for the incumbent union if you
lack a good-faith, reasonable uncertainty that the union still enjoys majority support.
 Withdraw recognition from a union that enjoys majority support.
 Withdraw recognition from a union that has lost majority support if you assisted the
employees' antiunion petition effort or undermined their union support through unfair
labor practices.
 File an election (RM) petition, poll your represented employees, or withdraw recognition
from a Board-certified union during the union's certification year or Board-ordered
extension thereof.
 File an election (RM) petition, poll your represented employees, or withdraw recognition
from a union (1) you recognized voluntarily, or (2) with whom the Board has ordered you
to bargain, or (3) with whom you have agreed to bargain as part of a settlement
agreement, or (4) with whom you have acquired a bargaining relationship from a
unionized predecessor before a reasonable time for bargaining has elapsed.
  File an election (RM) petition, poll your represented employees, or withdraw recognition
from a union during the term of a collective-bargaining agreement, up to three years.
 Terminate or modify a collective-bargaining agreement without serving written notice on
the union at least 60 days (90 days if you are a healthcare employer) before the expiration
date of the contract.
 Terminate or modify a collective-bargaining agreement without giving notice to federal
and state mediators within 30 days (60 days if you are a healthcare employer) of serving
written notice on the union that you are terminating or modifying the contract.
 Lock out employees before 60 days have passed (90 days if you are a healthcare
employer) after you serve written notice on the union that you are terminating or
modifying the contract or before the expiration date of the contract, whichever is later.
 Lock out employees if you are the initiating party of a contract modification or
termination, and you fail to give notice to federal and state mediators within 30 days (60
days if you are a healthcare employer) of serving written notice on the union that you are
terminating or modifying the contract.
 Terminate or modify a collective-bargaining agreement without offering to meet and
bargain concerning a new or modified contract.
 Change the status quo from the time a board of inquiry is appointed under Section 213 of
the Labor Management Relations Act until 15 days after it issues its report (applies to
healthcare employers only).

However, you may, for example

 Adopt or assume a unionized predecessor's collective-bargaining agreement when you

acquire its business, continue its operations largely unchanged, and hire a majority of
your employees from the predecessor's workforce. You may also decline to adopt or
assume a predecessor's collective-bargaining agreement and set initial terms and
conditions of employment without bargaining. The right to set initial employment terms
ends once you have hired a substantial and representative complement of employees, a
majority of whom are drawn from the predecessor's workforce. (You may not, however,
set initial terms and conditions without bargaining if you are a "perfectly clear" Burns
successor - that is, if you make it perfectly clear that you plan to retain all of the
predecessor's employees, or at least enough of them to make it evident that the union's
majority status will continue, without informing them that they will be expected to work
under different terms.)
 Bargain with the union separately or through a multi-employer association (if all
members of the multi-employer group agree to be bound and the union consents).
 Bargain hard, provided you seek in good faith to reach an agreement.
 Bargain with the union concerning permissive subjects of bargaining, but not to impasse.
 Lock out your employees where your sole purpose in doing so is to bring economic
pressure to bear in support of a legitimate bargaining position.
 Implement terms encompassed within a preimpasse offer if negotiations with the union
have reached a valid impasse.
 Make changes in the scope and direction of your enterprise - matters that lie at the core of
your entrepreneurial control of your business - without bargaining about the change. You
must, however, bargain with the union concerning the effects of the change on unit
 employees. (Whether a particular change is a nonbargainable "scope and direction"
change or a mandatory subject of bargaining may present a difficult legal question.
However, subcontracting that merely substitutes one group of workers for another to do
the same work under similar conditions of employment is not a nonbargainable "scope
and direction" change.)
 Make unilateral changes that are minor, or where the union has clearly and unmistakably
waived bargaining. (Do not assume that a change you deem minor would be so viewed by
the Board.)
 Withdraw recognition from a union after the collective-bargaining agreement expires.
This applies only to employers in the construction industry whose bargaining relationship
with the union is governed by Section 8(f) of the Act, not Section 9(a).
 Withdraw recognition from a union that has actually lost majority support if the union's
presumption of majority status is rebuttable. (A union enjoys an irrebuttable presumption
of majority status (1) during the certification year and any extensions thereof; (2) for a
"reasonable period" following voluntary recognition, Burns successorship, a settlement
agreement in which you agree to bargain, or the Board's issuance of an affirmative
bargaining order; and (3) during the term of a collective-bargaining agreement, up to 3
years.)
 Poll your employees concerning their support for the incumbent union if the union's
presumption of majority status is rebuttable (see above), and you have a good-faith,
reasonable uncertainty that the union still enjoys majority support. The union must be
given reasonable advance notice of the time and place of the poll, and the poll must be
conducted in accordance with certain safeguards. You must not have engaged in unfair
labor practices or otherwise created a coercive atmosphere. In addition, you must (1)
communicate to employees that the purpose of the poll is to determine whether the union
enjoys majority support (and that must, in truth, be your purpose); (2) give employees
assurances against reprisal; and (3) conduct the poll by secret ballot.
 Refuse to discuss or agree to any modification of the terms of an existing contract. You
may also consent to do so.