Section 9 Discrimination Based on Union Membership or Support

• Library: Employer-Employee Law 2008

NLRA § 8(a)(3), 29 U.S.C. § 158(a)(3), provides that it is 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.” Applicants as well as employees are protected under this section. Phelps Dodge Corp. v. NLRB,313 U.S. 177 (1941).

In general, the NLRA makes it unlawful for an employer to discriminate in employment because of an employee’s union or other group activity within the protection of the NLRA. A banding together of employees, even in the absence of a formal organization, may constitute a labor organization for purposes of NLRA § 8(a)(3). This section also prohibits discrimination against an employee who has refrained from taking part in such union or group activity, except matters concerning the payment of union dues when a valid union-shop agreement is in effect.

Discriminatory acts within the meaning of NLRA § 8(a)(3) include, e.g.:

• discharge
• suspension
• the threat of either discharge or suspension
• transfer
• demotion;
• denial of preferred job assignments or promotions;
• denial of overtime or sick leave;
• withholding of benefits; and
• refusal to hire.

In National Labor Relations Board v. Town & Country Electric, Inc., 516 U.S. 85 (1995), the Supreme Court held that paid union organizers, known as “salts,” are entitled to the...