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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.)

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