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Basic Guide to the National Labor Relations Act |
General Principles of Law Under the Statute and
Procedures of the National Labor Relations Board
This is a revised edition of a pamphlet
originally issued in 1962. It provides a basic framework for a better
understanding of the National Labor Relations Act and its administration.
A special chart that arranges systematically
the types of cases in which an employer or a labor organization may be involved
under the Act, including both unfair labor practice cases and representation
election proceedings, appears in the booklet.
Prepared in the Office of the
General Counsel
NATIONAL LABOR RELATIONS BOARD
U.S. GOVERNMENT
PRINTING OFFICE WASHINGTON. . 1997
For sale by the
Superintendent of Documents, U.S. Government Printing Office Washington, D.C.
20402
Table of
Contents
Summary of the Act........................................................................................................... 1–1
Purpose of
the Act............................................................................................................................................................. 1
What the Act
provides...................................................................................................................................................... 1
How the Act
is enforced.................................................................................................................................................... 1
How this
material is organized.......................................................................................................................................... 1
The Rights of Employees.................................................................................................. 2–5
The Section 7 Rights,................................................................................................................................................ 2
Examples
of Section 7 rights............................................................................................................................. 2
Union Security............................................................................................................................................................ 2
Union-security
agreements............................................................................................................................... 2
Requirements
for union-security agreements................................................................................................ 2
Prehire
agreements in the construction industry........................................................................................... 2
The Right to Strike................................................................................................................................................... 3
Lawful
and unlawful strikes.............................................................................................................................. 3
Strikes
for a lawful object.................................................................................................................................. 4
Economic
strikers defined................................................................................................................................. 4
Unfair
labor practice strikers defined............................................................................................................... 4
Strikes
unlawful because of purpose............................................................................................................... 4
Strikes
unlawful because of timing—Effect of no-strike contract............................................................... 4
Same—Strikes
at end of contract period......................................................................................................... 5
Strikes
unlawful because of misconduct of strikers...................................................................................... 5
The Right to Picket................................................................................................................................................... 5
Collective Bargaining and Representation of Employees........................................ 6–13
Collective Bargaining............................................................................................................................................... 6
Duty
to bargain imposed on both employer and union................................................................................ 6
Bargaining
steps to end or change a contact................................................................................................. 6
When
the bargaining steps are not required.................................................................................................. 6
The Employee Representative.................................................................................................................................. 7
What
is an appropriate bargaining unit.......................................................................................................... 7
How
the appropriateness of a unit is determined.......................................................................................... 7
Who
can or cannot be included in a unit........................................................................................................ 7
Duties
of bargaining representative and employer....................................................................................... 8
How
a Bargaining Representative Is Selected...................................................................................................... 8
Petition
for certification of representatives.................................................................................................... 8
Petition
for decertification election.................................................................................................................. 8
Union-security
deauthorization........................................................................................................................ 8
Purpose
of investigation and hearing............................................................................................................. 8
Jurisdiction
to conduct an election.................................................................................................................. 9
Expedited
elections under Section 8(b)(7)(C)................................................................................................. 9
Showing
of interest required............................................................................................................................. 9
Existence
of question of representation.......................................................................................................... 9
Who
can qualify as bargaining representative.............................................................................................. 9
Bars to Election.......................................................................................................................................................... 10
Existing
collective-bargaining contract........................................................................................................... 10
Time
provisions.................................................................................................................................................. 10
When
a petition can be filed if there is an existing contract........................................................................ 10
Effect
of certification.......................................................................................................................................... 10
Effect
of prior election........................................................................................................................................ 11
When
a petition can be filed if there has been a prior election................................................................... 11
The Representation Election.................................................................................................................................... 11
Consent-election
agreements........................................................................................................................... 11
Who
determines election matters..................................................................................................................... 11
Who
may vote in a representation election.................................................................................................... 11
When
strikers may be allowed to vote............................................................................................................ 12
When
elections are held.................................................................................................................................... 12
Conduct
of elections.......................................................................................................................................... 12
Unfair Labor Practices of Employers........................................................................... 14–22
Section 8(a)(1)—Interference with Section 7 Rights......................................................................................... 14
Examples
of violations of Section 8(a)(1)........................................................................................................ 14
Section 8(a)(2)—Domination or Illegal Assistance and Support
of a Labor
Organization............................................................................................................................................................ 14
Domination.......................................................................................................................................................... 14
Illegal
assistance and support.......................................................................................................................... 14
Examples
of violations of Section 8 (a) (2)...................................................................................................... 15
Remedy
in cases of domination differs from that in cases of illegal assistance
and support...................................................................................................................................................... 15
Section 8(a)(3)—Discrimination Against Employees......................................................................................... 15
The
union-security exception to Section 8(a)(3)............................................................................................ 15
The
Act does not limit employer’s right to discharge for economic reasons........................................... 16
Examples
of violations of Section 8(a)(3)........................................................................................................ 16
Section 8(a)(4)—Discrimination for NLRB Activity.......................................................................................... 16
Examples
of violations of Section 8 (a) (4)...................................................................................................... 17
Section 8(a)(5)—Refusal to Bargain in Good Faith............................................................................................. 17
Types
of Cases...................................................................................................................................................... 18–19
Required
subjects of bargaining...................................................................................................................... 20
Duty
to bargain defined..................................................................................................................................... 20
What
constitutes a violation of Section 8 (a) (5)........................................................................................... 20
Duty
to meet and confer.................................................................................................................................... 20
Duty
to supply information............................................................................................................................... 20
Multiemployer
bargaining................................................................................................................................. 20
Duty
to refrain from unilateral action............................................................................................................... 20
Duty
of successor employers........................................................................................................................... 21
Examples
of violations of Section 8 (a) (5)...................................................................................................... 21
Section 8(e)—Entering a Hot Cargo Agreement................................................................................................. 21
What
is prohibited.............................................................................................................................................. 21
Exceptions
for construction and garment industries.................................................................................... 21
Unfair Labor Practices of Labor Organizations......................................................... 23–32
Section 8(b)(1)(A)—Restraint and Coercion of Employees................................................................................ 23
Section
8(b)(1)(A) compared with Section 8(a)(1)......................................................................................... 23
What
violates Section 8(b)(1)(A)..................................................................................................................... 23
Examples
of violations of Section 8(b)(1)(A).................................................................................................. 23
Section 8(b)(1)(B)—Restraint and Coercion of Employers................................................................................ 24
Examples
of violations of Section 8(b)(1)(B).......................................................................................................... 24
Section 8(b)(2)—Causing or Attempting to Cause Discrimination................................................................. 24
What
violates Section 8(b)(2)........................................................................................................................... 25
Illegal
hiring hall agreements and practices.................................................................................................... 25
Illegal
union-security agreements.................................................................................................................... 25
Examples
of violations of Section 8(b)(2)........................................................................................................ 25
Section 8(b)(3)—Refusal to Bargain in Good Faith............................................................................................. 26
Examples
of violations of Section 8(b)(3)........................................................................................................ 26
Section 8(b)(4)—Prohibited Strikes and Boycotts.............................................................................................. 27
Proscribed
action: Inducing or encouraging a strike work stoppage, or boycott.................................... 27
Proscribed
action: Threats, coercion, and restraint....................................................................................... 27
Subparagraph
(A)—Prohibited object: Compelling membership in an employer
or labor organization or compelling a hot
cargo agreement...................................................................... 28
Examples
of violations of Section 8(b)(4)(A).................................................................................................. 28
Subparagraph
(B)—Prohibited object: Compelling recognition of an uncertified
union.................................................................................................................................................................. 28
Examples
of violations of Section 8(b)(4)(B).................................................................................................. 28
When
an employer is not protected from secondary strikes or boycotts................................................. 28
When
a union may picket an employer who shares a site with another employer................................... 29
Picketing
contractors’ gates............................................................................................................................. 29
Subparagraph
(B)—Prohibited object: Compelling recognition of an uncertified
union.................................................................................................................................................................. 30
Subparagraph
(C)—Prohibited object: Compelling
recognition of a union if
another union has been certified................................................................................................................... 30
Subparagraph
(D)—Prohibited object: Compelling assignment of certain work to
certain employees............................................................................................................................................ 30
Publicity
such as handbilling allowed by Section 8(b)(4)............................................................................ 30
Section 8(b)(5)—Excessive or Discriminatory Membership Fees.................................................................... 30
Examples
of violations of Section 8(b) (5)....................................................................................................... 30
Section 8(b)(6)—”Featherbedding”....................................................................................................................... 31
Section 8(b)(7)—0rganizational and Recognitionai Picketing by
Noncertifled
Unions....................................................................................................................................................................... 31
Publicity
picketing.............................................................................................................................................. 31
Expedited
elections under Section 8(b)(7) (C)................................................................................................ 31
Examples
of violations of Section 8(b) (7)....................................................................................................... 32
Section 8(e)—Entering a Hot Cargo Agreement................................................................................................. 32
Section 8(g)—Striking or Picketing a Health Care Institution
Without Notice.......................................... 32
How the Act Is Enforced.................................................................................................. 33–39
Organization of the NLRB....................................................................................................................................... 33
The Board-The General
Counsel-The Regional Offices............................................................................... 33
Functions of the NLRB...................................................................................................................................... 33
Authority of the NLRB.............................................................................................................................................. 33
Enterprises
whose operations affect commerce............................................................................................. 33
What
is commerce.............................................................................................................................................. 33
When
the operations of an employer affect commerce................................................................................ 33
The
Board does not act in all cases affecting commerce.............................................................................. 34
NLRB
jurisdictional standards.......................................................................................................................... 34
The
Act does not cover certain individuals................................................................................................... 35
Supervisor
defined............................................................................................................................................. 36
The
Act does not cover certain employers.................................................................................................... 36
NLRB Procedures..................................................................................................................................................... 36
Procedure
in representation cases................................................................................................................... 36
Procedure
in unfair labor practice cases......................................................................................................... 37
The
6-month rule limiting issuance of complaint........................................................................................... 37
Appeal
to the General Counsel if complaint is not issued........................................................................... 37
Powers of the NLRB.................................................................................................................................................. 37
Powers
concerning investigations................................................................................................................... 37
The
Act is remedial, not criminal...................................................................................................................... 38
Affirmative
action may be ordered by the Board........................................................................................... 38
Examples
of affirmative action directed to employers................................................................................... 38
Examples
of affirmative action directed to unions......................................................................................... 38
Special Proceedings in Certain Cases.................................................................................................................. 38
Proceedings
in jurisdictional disputes............................................................................................................ 38
The
investigation of certain charges must be given priority....................................................................... 39
Injunction
proceedings under Section 10(1).................................................................................................. 39
Injunctive
relief may be sought in other cases.............................................................................................. 39
Court Enforcement of Board Orders...................................................................................................................... 39
In
the U.S. court of appeals............................................................................................................................... 39
Review
by the U.S. Supreme Court.................................................................................................................. 39
Conclusion.......................................................................................................................... 40
Supplements
Chart, “Types of Cases”...................................................................................................................................... 18–19
List of Regional Directors and addresses
of Regional Offices............................................................................ 41
The Regional Offices of the
National Labor Relations Board have found that, more than six decades after its
enactment, there is still a lack of basic information about the National Labor
Relations Act. Staff members have expressed a need for a simply stated
explanation of the Act to which anyone could be referred for guidance. To meet
this demand, the basic law under the Act has been set forth in this pamphlet in
a nontechnical way so that those who may be affected by it can better
understand what their rights and obligations are.
Any effort to state basic
principles of law in a simple way is a challenging and unenviable task. This is
especially true about labor law, a relatively complex field of law. Anyone
reading this booklet must bear in mind several cautions.
First, it must be emphasized that
the Office of the General Counsel does not issue advisory opinions and this
material cannot be considered as an official statement of law. It represents
the view of the Office of the General Counsel as of the date of publication
only. It is important to note that the law changes and advances. In fact, it is
the duty of the Agency to keep its decisions abreast of changing conditions,
yet within the basic statute. Accordingly, with the passage of time no one can
rely on these statements as absolute until and unless a check has been made to
see whether the law may have been changed substantially or specifically.
Furthermore, these are broad
general principles only and countless subprinciples and detailed rules are not
included. Only by evaluation of specific fact situations in the light of
current principles and with the aid of expert advice would a person be in a
position to know definitely where the proposed conduct may fit under the
statute. No basic primer or text can constitute legal advice in particular fact
situations. This effort to improve basic education about the statute should not
be considered as such. Many areas of the statute remain untested. Legal
advisers and other experts can find the total body of “Board law” reported in
other Agency publications.
One other caution: This material
does not deal with questions arising under other labor laws, but only with the
National Labor Relations Act. Laws administered by other Government agencies,
such as the Labor-Management Reporting and Disclosure Act of 1959, the Employee
Retirement Income Security Act, the Occupational Safety and Health Act, the
Railway Labor Act, the Fair Labor Standards, Walsh-Healey and Davis-Bacon Acts,
Title VII of the Civil Rights Act of 1964, Americans with Disabilities Act, the
Federal Mine Safety and Health Act, and the Veterans’ Preference Act, are not
treated herein.
Lastly, this material does not
reflect the view of the National Labor Relations Board as the adjudicating
agency that in the end will decide each case as it comes before it.
It is hoped that with this
cautionary note this booklet may be helpful to those in need of a better basic
understanding of the National Labor Relations Act.
Summary of the Act
The Rights of Employees
The Section 7 Rights. The rights of employees are set forth
principally in Section 7 of the Act, which provides as follows:
Sec. 7. Employees shall have
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, and shall also have the right to refrain
from any or all of such activities except to the extent that such right may be
affected by an agreement requiring membership in a labor organization as a
condition of employment as authorized in section 8(a)(3).
Examples of Section 7 rights. Examples of the rights protected by this section are the following:
Union Security. The Act permits, under certain conditions, a
union and an employer to make an agreement, called a union-security agreement,
that requires employees to make certain payments to the union in order to
retain their jobs. A union-security agreement cannot require that applicants
for employment be members of the union in order to be hired, and such an
agreement cannot require employees to join or maintain membership in the union
in order to retain their jobs. Under a union-security agreement, individuals
choosing to be dues-paying nonmembers may be required, as may employees who
actually join the union, to pay full initiation fees and dues within a certain
period of time (a “grace period”) after the collective-bargaining contract
takes effect or after a new employee is hired. However, the most that can be
required of nonmembers who inform the union that they object to the use of
their payments for nonrepresentational purposes is that they pay their share of
the union’s costs relating to representational activities (such as collective
bargaining, contract administration, and grievance adjustment).
Union-security agreements. The grace period, after which the
union-security agreement becomes effective, cannot be less than 30 days except
in the building and construction industry. The Act allows a shorter grace period of 7 full days in the building
and construction industry (Section 8(f). A union-security agreement that
provides a shorter grace period than the law allows is invalid, and any
employee discharged because he or she has not complied with such an agreement
is entitled to reinstatement.
Requirements for union-security
agreements. Under a
union-security agreement, employees who have religious objections to becoming
members of a union or to supporting a union financially may be exempt from
paying union dues and initiation fees. These employees may, however, be
required to make contributions to a nonreligious, nonlabor tax exempt
organization instead of making payments to a union. Unions representing such
employees may also charge them the reasonable cost of any grievances processed
at the employees’ request.
Prehire agreements in the
construction industry. For a
union-security agreement to be valid, it must meet all the following
requirements:
1. The union must not have been assisted or
controlled by the employer (see Section 8(a)(2) under “Unfair Labor Practices
of Employers” on pp. 14–15).
2. The union
must be the majority representative of the employees in the appropriate
collective-bargaining unit covered by such agreement when made.
3. The
union’s authority to make such an agreement must not have been revoked within
the previous 12 months by the employees in a Board election.
4. The
agreement must provide for the appropriate grace period.
Section 8(f) of the Act
allows an employer engaged primarily in the building and construction industry
to sign a union-security agreement with a union without the union’s having been
designated as the representative of its employees as otherwise required by the
Act. The agreement can be made before the employer has hired any employees for
a project and will apply to them when they are hired. As noted above, however,
the union-security provisions of a collective-bargaining contract in the
building and construction industry may become effective with respect to new
employees after 7 full days. If the agreement is made while employees are on
the job, it must allow existing employees the same 7-day grace period to
comply. As with any other union-security agreement, the union involved must be
free from employer assistance or control.
Collective-bargaining contracts in
the building and construction industry can include, as stated in Section 8(f),
the following additional provisions:
1. A requirement that the employer notify the union concerning job
openings.
2. A
provision that gives the union an opportunity to refer qualified applicants for
such jobs.
3. Job
qualification standards based on training or experience.
4. A
provision for priority in hiring based on length of service with the employer,
in the industry, or in the particular geographic area.
These four hiring provisions may
lawfully be included in collective-bargaining contracts which cover employees
in other industries as well.
Finally, pursuant to Section 14(b)
of the Act, individual States may prohibit, and some States have prohibited,
certain forms of union-security agreements.
The Right to Strike. Section 7 of the Act states in part,
“Employees shall have the right. . . to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid or protection.”
Strikes are included among the concerted activities protected for employees by
this section. Section 13 also concerns the right to strike. It reads as
follows:
Nothing
in this Act, except as specifically provided for herein, shall be construed so
as either to interfere with or impede or diminish in any way the right to
strike, or to affect the limitations or qualifications on that right.
It is clear from a reading of
these two provisions that: the law not only guarantees the right of employees
to strike, but also places limitations and qualifications on the exercise of
that right. See for example, restrictions on strikes in health care
institutions, page 32.
Lawful and unlawful strikes. The lawfulness of a strike may depend on the
object, or purpose, of the strike, on its timing, or on the conduct of the
strikers. The object, or objects, of a strike and whether the objects are
lawful are matters that are not always easy to determine. Such issues often
have to be decided by the National Labor Relations Board. The consequences can
be severe to striking employees and struck employers, involving as they do
questions of reinstatement and backpay.
It must be emphasized that
the following is only a brief outline. A detailed analysis of the law
concerning strikes, and application of the law to all the factual situations
that can arise in connection with strikes, is beyond the scope of this
material. Employees and employers who anticipate being involved in strike
action should proceed cautiously and on the basis of competent advice.
Strikes for a lawful object. Employees who strike for a lawful object
fall into two classes “economic strikers” and “unfair labor practice strikers.”
Both classes continue as employees, but unfair labor practice strikers have
greater rights of reinstatement to their jobs.
Economic strikers defined. If the object of a strike is to obtain from
the employer some economic concession such as higher wages, shorter hours, or
better working conditions, the striking employees are called economic strikers.
They retain their status as employees and cannot be discharged, but they can be
replaced by their employer. If the employer has hired bona fide permanent
replacements who are filling the jobs of the economic strikers when the
strikers apply unconditionally to go back to work, the strikers are not
entitled to reinstatement at that time. However, if the strikers do not obtain
regular and substantially equivalent employment, they are entitled to be
recalled to jobs for which they are qualified when openings in such jobs occur
if they, or their bargaining representative, have made an unconditional request
for their reinstatement.
Unfair labor practice strikers
defined. Employees who strike
to protest an unfair labor practice committed by their employer are called
unfair labor practice strikers. Such strikers can be neither discharged nor
permanently replaced. When the strike ends, unfair labor practice strikers,
absent serious misconduct on their part, are entitled to have their jobs back
even if employees hired to do their work have to be discharged.
If the Board finds that economic
strikers or unfair labor practice strikers who have made an unconditional
request for reinstatement have been unlawfully denied reinstatement by their
employer, the Board may award such strikers backpay starting at the time they
should have been reinstated.
Strikes unlawful because of
purpose. A strike may be
unlawful because an object, or purpose, of the strike is unlawful. A strike in
support of a union unfair labor practice, or one that would cause an employer
to commit an unfair labor practice, may be a strike for an unlawful object. For
example, it is an unfair labor practice for an employer to discharge an employee
for failure to make certain lawful payments to the union when there is no
union-security agreement in effect (Section 8(a)(3). A strike to compel an
employer to do this would be a strike for an unlawful object and, therefore, an
unlawful strike. Strikes of this nature will be discussed in connection with
the various unfair labor practices in a later section of this guide.
Furthermore, Section 8(b)(4) of
the Act prohibits strikes for certain objects even though the objects are not
necessarily unlawful if achieved by other means. An example of this would be a
strike to compel Employer A to cease doing business with Employer B. It is not
unlawful for Employer A
voluntarily to stop doing business with Employer B, nor is it unlawful for a
union merely to request that it do so. It is, however, unlawful for the union
to strike with an object of forcing the employer to do so. These points will be
covered in more detail in the explanation of Section 8(b)(4). In any event,
employees who participate in an unlawful strike may be discharged and are not
entitled to reinstatement.
Strikes unlawful because of
timing—Effect of no-strike contract. A strike that violates a no-strike provision of a contract is not
protected by the Act, and the striking employees can be discharged or otherwise
disciplined, unless the strike is called to protest certain kinds of unfair
labor practices committed by the employer. It should be noted that not all
refusals to work are considered strikes and thus violations of no-strike
provisions. A walkout because of conditions abnormally dangerous to health,
such as a defective ventilation system in a spray-painting shop, has been held
not to violate a no-strike provision.
Same—Strikes at end of contract
period. Section 8(d) provides
that when either party desires to terminate or change an existing contract, it
must comply with certain conditions. If these requirements are not met, a
strike to terminate or change a contract is unlawful and participating strikers
lose their status as employees of the employer engaged in the labor dispute. If
the strike was caused by the unfair labor practice of the employer, however,
the strikers are classified as unfair labor practice strikers and their status
is not affected by failure to follow the required procedure.
Strikes unlawful because of
misconduct of strikers.
Strikers who engage in serious misconduct in the course of a strike may be
refused reinstatement to their former jobs. This applies to both economic
strikers and unfair labor practice strikers. Serious misconduct has been held
to include, among other things, violence and threats of violence. The U.S.
Supreme Court has ruled that a “sitdown” strike, when employees simply stay in
the plant and refuse to work, thus depriving the owner of property, is not
protected by the law. Examples of serious misconduct that could cause the
employees involved to lose their right to reinstatement are:
The Right to Picket. Likewise the right to picket is subject to
limitations and qualifications. As with the right to strike, picketing can be
prohibited because of its object or its timing, or misconduct on the picket
line. In addition, Section 8(b)(7) declares it to be an unfair labor practice
for a union to picket for certain objects whether the picketing accompanies a
strike or not. This will be covered in more detail in the section on union
unfair labor practices.
Collective Bargaining and Representation of Employees
Collective bargaining is one of the keystones of the Act. Section 1 of
the Act declares that the policy of the United States is to be carried out “by
encouraging the practice and procedure of collective bargaining and by
protecting the exercise by workers of full freedom of association,
self-organization, and designation of representatives of their own choosing,
for the purpose of negotiating the terms and conditions of their employment or
other mutual aid or protection.”
Collective bargaining. Collective bargaining is defined in the Act.
Section 8(d) requires an employer and the representative of its employees to
meet at reasonable times, to confer in good faith about certain matters, and to
put into writing any agreement reached if requested by either party. The
parties must confer in good faith with respect to wages, hours, and other terms
or conditions of employment, the negotiation of an agreement, or any question arising
under an agreement.
Duty to bargain imposed on both
employer and union. These
obligations are imposed equally on the employer and the representative of its
employees. It is an unfair labor practice for either party to refuse to bargain
collectively with the other. The obligation does not, however, compel either
party to agree to a proposal by the
other, nor does it require either party to make a concession to the
other .
Section 8(d) provides further that
when a collective-bargaining agreement is in effect no party to the contract
shall end or change the contract unless the party wishing to end or change it
takes the following steps:
Bargaining
steps to end or change a contract.
1. The party
must notify the other party to the contract in writing about the proposed
termination or modification 60 days before the date on which the contract is
scheduled to expire. If the contract is not scheduled to expire on any
particular date, the notice in writing must be served 60 days before the time
when it is proposed that the termination or modification take effect.
2. The party
must offer to meet and confer with the other party for the purpose of
negotiating a new contract or a contract containing the proposed changes.
3. The party
must, within 30 days after the notice to the party, notify the Federal
Mediation and Conciliation Service of the existence of a dispute if no
agreement has been reached by that time. Said party must also notify at the
same time any State or Territorial mediation or conciliation agency in the
State or Territory where the dispute occurred.
4. The party
must continue in full force and effect, without resorting to strike or lockout,
all the terms and conditions of the existing contract until 60 days after the
notice to the other party was given
or until the date the contract is scheduled to expire, whichever is later.
(In the case of a health care
institution, the requirement in paragraphs 1 and 4 is 90 days, and in paragraph
3 is 60 days. In addition, there is a 30-day notice requirement to the agencies
in paragraph 3 when a dispute arises in bargaining for an initial contract.)
When the bargaining steps are
not required. The
requirements of paragraphs 2, 3, and 4, above, cease to apply if the NLRB
issues a certificate showing that the employees’ representative who is a party
to the contract has been replaced by a different representative or has been
voted out by the employees. Neither party is required to discuss or agree to
any change of the provisions of the contract if the other party proposes that
the change become effective before the provision could be reopened according to
the terms of the contract.
As has been pointed out, any
employee who engages in a strike within the notice period loses status as an
employee of the struck employer. This loss of status ends, however, if and when
that individual is reemployed by the same employer.
The Employee Representative. Section 9(a) provides that the employee
representatives that have been “designated or selected for the purposes of
collective bargaining by the majority of the employees in a unit appropriate
for such purposes, shall be the exclusive representatives of all the employees
in such unit for the purposes of collective bargaining.”
What is an appropriate
bargaining unit. A unit of employees
is a group of two or more employees who share a community of interest and may
reasonably be grouped together for purposes of collective bargaining. The
determination of what is an appropriate unit for such purposes is, under the
Act, left to the discretion of the NLRB. Section 9(b) states that the Board
shall decide in each representation case whether, “in order to assure to
employees the fullest freedom in exercising the rights guaranteed by this Act,
the unit appropriate for the purposes of collective bargaining shall be the
employer unit, craft unit, plant unit, or subdivision thereof.”
This broad discretion is, however,
limited by several other provisions of the Act. Section 9(b)(1) provides that
the Board shall not approve as appropriate a unit that includes both
professional and nonprofessional employees, unless a majority of the
professional employees involved vote to be included in the mixed unit.
Section 9(b)(2) provides that the
Board shall not hold a proposed craft unit to be inappropriate simply because a
different unit was previously approved by the Board, unless a majority of the
employees in the proposed craft unit vote against being represented separately.
Section 9(b)(3) prohibits the
Board from including plant guards in the same unit with other employees. It
also prohibits the Board from certifying a labor organization as the
representative of a plant guard unit if the labor organization has members who
are nonguard employees or if it is “affiliated directly or indirectly” with an
organization that has members who are nonguard employees.
How the appropriateness of a
unit is determined.
Generally, the appropriateness of a bargaining unit is determined on the basis
of a community of interest of the employees involved. Those who have the same
or substantially similar interests concerning wages, hours, and working
conditions are grouped together in a bargaining unit. In determining whether a
proposed unit is appropriate, the following factors are also considered:
1. Any
history of collective bargaining.
2. The
desires of the employees concerned.
3. The
extent to which the employees are organized. Section 9(c)(5) forbids the Board
from giving this factor controlling weight.
Finally, with regard to units in the health care industry, the Board
also is guided by Congress’ concern about preventing disruptions in the
delivery of health care services, and its directive to minimize the number of
appropriate bargaining units.
Who can or cannot be included
in a unit. A unit may cover
the employees in one plant of an employer, or it may cover employees in two or
more plants of the same employer. In some industries in which employers are
grouped together in voluntary associations, a unit may include employees of two
or more employers in any number of locations. It should be noted that a
bargaining unit can include only persons who are “employees” within the meaning
of the Act. The Act excludes certain individuals, such as agricultural
laborers, independent contractors, supervisors, and persons in managerial
positions, from the meaning of “employees.” None of these individuals can be
included in a bargaining unit established by the Board. In addition, the Board,
as a matter of policy, excludes from bargaining units employees who act in a
confidential capacity to an employer’s labor relations officials.
Duties of bargaining
representative and employer. Once an employee representative has been designated by a majority of
the employees in an appropriate unit, the Act makes that representative the
exclusive bargaining agent for all employees in the unit. As exclusive
bargaining agent it has a duty to represent equally and fairly all employees in
the unit without regard to their union membership or activities. Once a
collective-bargaining representative has been designated or selected by its
employees, it is
illegal for an employer to bargain with individual employees, with a group of
employees, or with another employee representative.
Section 9(a) provides that
any individual employee or a group of employees shall have the right at any
time to present grievances to their employer and to have such grievances
adjusted without the intervention of the bargaining representative provided:
1. The
adjustment is not inconsistent with the terms of any collective-bargaining
agreement then in effect.
2. The
bargaining representative has been given the opportunity to be present at such
adjustment.
How a Bargaining Representative
is Selected. The Act requires that an employer bargain
with the representative selected by its employees. The most common method by
which employees can select a bargaining representative is a secret-ballot
representation election conducted by the Board.
Petition for certification of
representatives. The NLRB can
conduct such an election only when a petition has been filed requesting one. A
petition for certification of representatives can be filed by an employee or a
group of employees or any individual or labor organization acting on their
behalf, or it can be filed by an employer. If filed by or on behalf of
employees, the petition must be supported by a substantial number of employees
who wish to be represented for collective bargaining and must state that their
employer declines to recognize their representative. If filed by an employer,
the petition must allege that one or more individuals or organizations have
made a claim for recognition as the exclusive representative of the same group
of employees.
Petition for decertification
election. The Act also
contains a provision whereby employees or someone acting on their behalf can
file a petition seeking an election to determine if the employees wish to
retain the individual or labor organization currently acting as their
bargaining representative, whether the representative has been certified or voluntarily
recognized by the employer. This is called a decertification election.
Union-security deauthorization. Provision is also made for the Board to
determine by secret ballot whether the employees covered by a union-security
agreement desire to withdraw the authority of their representative to continue
the agreement. This is called a union-security deauthorization election and can
be brought about by the filing of a petition signed by 30 percent or more of
the employees covered by the agreement.
If you will refer to the
“Types of Cases” on pages 18 and 19, you may find it easier to understand the
differences between the six types of petitions that can be filed under the Act.
Purpose of investigation and
hearing. The same petition
form is used for any kind of Board election. When the petition is filed, the
NLRB must investigate the petition, hold a hearing if necessary, and direct an
election if it finds that a question of representation exists. The purpose of
the investigation is to determine, among other things, the following:
1. Whether
the Board has jurisdiction to conduct an election.
2. Whether
there is a sufficient showing of employee interest to justify an election.
3. Whether a
question of representation exists.
4. Whether
the election is sought in an appropriate unit of employees.
5. Whether
the representative named in the petition is qualified.
6. Whether
there are any barriers to an election in the form of existing contracts or
prior elections.
Jurisdiction to conduct an
election. The jurisdiction of
the NLRB to direct and conduct an election is limited to those enterprises that
affect commerce. (This is discussed in greater detail at pp. 33–36.) The other
matters listed above will be discussed in turn.
Expedited elections under
Section 8(b)(7)(C). First,
however, It should be noted that Section 8(b)(7)(C) provides, among other
things, that when a petition is filed within a reasonable period, not to exceed
30 days, after the commencement of recognitional or organizational picketing,
the NLRB shall “forthwith” order an election and certify the results. This is
so if the picketing is not within the protection of the second proviso to
Section 8(b)(7)(C). When an election under Section (8)(b)(7)(C) is appropriate,
neither a hearing nor a showing of interest is required, and the election is
scheduled sooner than under the ordinary procedure.
Showing of interest required. Regarding the showing of interest, it is the
policy to require that a petitioner requesting an election for either
certification of representatives or decertification show that at least 30
percent of the employees favor an election. The Act also requires that a
petition for a union-security deauthorization election be filed by 30 percent
or more of the employees in the unit covered by the agreement for the NLRB to
conduct an election for that purpose. The showing of interest must be
exclusively by employees who are in the appropriate bargaining unit in which an
election is sought.
Existence of question of
representation. Section 9(c)(1)
authorizes the NLRB to direct an election and certify the results thereof,
provided the record shows that a question of representation exists. Petitions
for certification of representatives present a question of representation if,
among other things, they are based on a demand for recognition by the employee
representative and a denial of recognition by the employer. The demand for
recognition need not be made in any particular form; in fact, the filing of a
petition by the representative itself is considered to be a demand for
recognition. The NLRB has held that even a representative that is currently
recognized by the employer can file a petition for certification and that such
petition presents a question of representation provided the representative has
not previously been certified.
A question of representation is
also raised by a decertification petition that challenges the representative
status of a bargaining agent previously certified or currently recognized by
the employer. However, a decertification petition filed by a supervisor does
not raise a valid question of representation and must be dismissed.
Who can qualify as bargaining
representative. Section 2(4)
of the Act provides that the employee representative for collective bargaining
can be “any individual or labor organization.” A supervisor or any other
management representative may not be an employee representative. It is NLRB
policy to direct an election and to issue a certification unless the proposed
bargaining agent fails to qualify as a bona fide representative of the
employees. In determining a union’s qualifications as bargaining agent, it is
the union’s willingness to represent the employees rather than its constitution
and bylaws that is the controlling factor. The NLRB’s power to certify a labor
organization as bargaining representative is limited by Section 9(b)(3) which
prohibits certification of a union as the representative of a unit of plant
guards if the union “admits to membership, or is affiliated directly or
indirectly with an organization which admits to membership, employees other
than guards.”
Bars to Election—Existing collective-bargaining contract.
The NLRB has established the policy of not directing an election among
employees presently covered by a valid collective-bargaining agreement except
in accordance with certain rules. These rules, followed in determining whether
or not an existing collective-bargaining contract will bar an election, are
called the NLRB contract bar rules. Not every contract will bar an election.
Examples of contracts that would not bar an election are:
·
The contract is not in writing, or is not
signed.
·
The
contract has not been ratified by the members or the union, if such is
expressly required.
·
The
contract does not contain substantial terms or conditions of employment
sufficient to stabilize the bargaining relationship.
·
The
contract can be terminated by either party at any time for any reason.
·
The
contract contains a clearly illegal union-security clause.
·
The
bargaining unit is not appropriate.
·
The union that
entered the contract with the employer is no longer in existence or is unable
or unwilling to represent the employees.
·
The
contract discriminates between employees on racial grounds.
·
The
contract covers union members only.
·
The contracting
union is involved in a basic internal conflict at the highest levels with
resulting unstabilizing confusion about the identity of the union.
·
The employer’s
operations have changed substantially since the contract was executed.
Time provisions. Under the NLRB rules a valid contract for a
fixed period of 3 years or less will bar an election for the period covered by
the contract. A contract for a fixed period of more than 3 years will bar an
election sought by a contracting party during the life of the contract, but
will act as a bar to an election sought by an outside party for only 3 years
following its effective date. A contract of no fixed period will not act as a
bar at all.
When a petition can be filed if
there is an existing contract.
If there is no existing contract, a petition can bring about an election if it
is filed before the day a contract is signed. If the petition is filed on the
same day the contract is signed, the contract bars an election, provided the
contract is effective immediately or retroactively and the employer has not
been informed at the time of execution that a petition has been filed. Once the
contract becomes effective as a bar to an election, no petition will be
accepted until near the end of the period during which the contract is
effective as a bar. Petitions filed not more than 90 days but over 60 days
before the end of the contract-bar period will be accepted and can bring about
an election. These time periods for filing petitions involving health care
institutions are 120 and 90 days, respectively. Of course, a petition can be
filed after the contract expires. However, the last 60 days of the contract-bar
period is called an “insulated” period. During this time the parties to the
existing contract are free to negotiate a new contract or to agree to extend
the old one. If they reach agreement in this period. petitions will not be
accepted until 90 days before the end of the new contract-bar period.
Effect of certification. In
addition to the contract-bar rules, the NLRB has established a rule that when a
representative has been certified by the Board, the certification will
ordinarily be binding for at least 1
year and a petition filed before the end of the certification year will be
dismissed. In cases in which the certified representative and the employer
enter a valid collective-bargaining contract during the year, the contract
becomes controlling, and whether a petition for an election can be filed is
determined by the Board’s contract-bar rules.
Effect of prior election. Section 9(c)(3) prohibits the holding of an
election in any collective-bargaining unit or subdivision thereof in which a
valid election has been held during the preceding 12-month period. A new
election may be held, however, in a larger unit, but not in the same unit or
subdivision in which the previous election was held. For example, if all the
production and maintenance employees in Company A, including draftsmen in the
company’s engineering office, are included in a collective-bargaining unit, an election
among all the employees in the unit would bar another election among all the
employees in the unit for 12 months. Similarly, an election among the draftsmen
only would bar another election among the draftsmen for 12 months. However, an
election among the draftsmen would not bar a later election during the 12-month
period among all the production and maintenance employees including the
draftsmen.
When a petition can be filed if
there has been a prior election.
It is the Board’s interpretation that Section 9(c)(3) prohibits only the
holding of an election during the 12-month period, but does not prohibit the
filing of a petition. Accordingly, the NLRB will accept a petition filed not
more than 60 days before the end of the 12-month period. The election cannot be
held, of course, until after the 12-month period. If an election is held and a
representative certified, that certification is binding for 1 year and a
petition for another election in the same unit will be dismissed if it is filed
during the 1-year period after the certification. If an election is held and no
representative is certified, the election bars another election for 12 months.
A petition for another election in the same unit can be filed not more than 60
days before the end of the 12-month period and the election can be held after
the 12-month period expires.
The Representation Election. Section 9(c)(1) provides that if a question
of representation exists, the NLRB must make its determination by means of a
secret-ballot election. In a representation election employees are given a
choice of one or more bargaining representatives or no representative at all.
To be certified as the bargaining representative, an individual or a labor
organization must receive a majority of the valid votes cast.
Consent-election agreements. An election may be held by agreement
between the employer and the individual or labor organization claiming to
represent the employees. In such an agreement the parties would state the time
and place agreed on, the choices to be included on the ballot, and a method to
determine who is eligible to vote. They would also authorize the NLRB Regional
Director to conduct the election.
Who determines election matters. If the parties are unable to reach an
agreement, the Act authorizes the NLRB to order an election after a hearing.
The Act also authorizes the Board to delegate to its Regional Directors the
determination on matters concerning elections. Under this delegation of
authority the Regional Directors can determine the appropriateness of the unit,
direct an election, and certify the outcome. Upon the request of an interested
party, the Board may review the action of a Regional Director, but such review
does not stop the election process unless the Board so orders. The election
details are left to the Regional Director. Such matters as who may vote, when
the election will be held, and what standards of conduct will be imposed on the
parties are decided in accordance with the Board’s rules and its decisions.
Who may vote in a representation
election. To be entitled to
vote, an employee must have worked in the unit during the eligibility period
set by the Board and must be employed in the unit on the date of the election.
Generally, the eligibility period is the employer’s payroll period just before
the date on which the election was directed. This requirement does not apply,
however, to employees who are ill, on vacation, or temporarily laid off, or to
employees in military service who appear in person at the polls. The NLRB rules
take into consideration the fact that employment is typically irregular in
certain industries. In such industries eligibility to vote is determined
according to formulas designed to permit all employees who have a substantial
continuing interest in their employment conditions to vote. Examples of these
formulas, which differ from case to case, are:
When strikers may be allowed to
vote. Section 9(c)(3)
provides that economic strikers who have been replaced by bona fide permanent
employees may be entitled to vote in “any election conducted within 12 months
after the commencement of the strike.” The permanent replacements are also
eligible to vote at the same time. As a general proposition, a striker is
considered to be an economic striker unless found by the NLRB to be on strike
over unfair labor practices of the employer. Whether the economic striker is
eligible to vote is determined on the facts of each case.
When elections are held. Ordinarily, elections are held within 30 days
after they are directed. Seasonal drops in employment or any change in
operations that would prevent a normal work force from being present may cause
a different election date to be set. Normally an election will not be conducted
when unfair labor practice charges have been filed based on conduct of a nature
which would have a tendency to interfere with the free choice of the employees
in an election, except that, in certain cases, the Board may proceed to the
election if the charging party so requests.
Conduct of elections. NLRB elections are conducted in accordance
with strict standards designed to give the employee voters an opportunity to
freely indicate whether they wish to be represented for purposes of collective
bargaining. Election details, such as time, place, and notice of an election,
are left largely to the Regional Director who usually obtains the agreement of
the parties on these matters. Any party to an election who believes that the
Board election standards were not met may, within 7 days after the tally of
ballots has been furnished, file objections to the election with the Regional
Director under whose supervision the election was held. In most cases, the
Regional Director’s rulings on these objections may be appealed to the Board
for decision.
An election will be set aside if
it was accompanied by conduct that the NLRB considers created an atmosphere of
confusion or fear of reprisals and thus interfered with the employees’ freedom
of choice. In any particular case the NLRB does not attempt to determine
whether the conduct actually interfered with the employees’ expression of free
choice, but rather asks whether the conduct tended to do so. If it is
reasonable to believe that the conduct would tend to interfere with the free
expression of the employees’ choice, the election may be set aside. Examples of
conduct the Board considers to interfere with employee free choice are:
·
Threats of loss of jobs or benefits by an
employer or a union to influence the votes or union activities of employees.
·
A grant of
benefits or promise to grant benefits to influence the votes or union
activities of employees.
·
An employer
firing employees to discourage or encourage their union activities or a union
causing an employer to take such action.
·
An employer or a
union making campaign speeches to assembled groups of employees on company time
within the 24-hour period before the election.
·
The incitement
of racial or religious prejudice by inflammatory campaign appeals made by
either an employer or a union.
·
Threats or the
use of physical force or violence against employees by an employer or a union
to influence their votes.
·
The occurrence
of extensive violence or trouble or widespread fear of job losses which
prevents the holding of a fair election, whether caused by an employer or a
union.
Unfair Labor Practices of Employers
The unfair labor practices of
employers are listed in Section 8(a) of the Act; those of labor organizations
in Section 8(b). Section 8(e) lists an unfair labor practice that can be
committed only by an employer and a labor organization acting together. The
“Types of Cases” chart at pages 18–19 may be helpful in getting to know the
relationship between the various unfair labor practice sections of the Act.
Section 8(a)(1)—Interference
with Section 7 Rights. Section
8(a)(1) forbids an employer “to interfere with, restrain, or coerce employees
in the exercise of the rights guaranteed in section 7.” Any prohibited
interference by an employer with the rights of employees to organize, to form,
join, or assist a labor organization, to bargain collectively, to engage in
other concerted activities for mutual aid or protection, or to refrain from any
or all of these activities, constitutes a violation of this section. This is a
broad prohibition on employer interference, and an employer violates this
section whenever it commits any of the other employer unfair labor practices.
In consequence, whenever a violation of Section 8(a)(2), (3), (4), or (5) is
committed a violation of Section 8(a)(1) is also found. This is called a
“derivative violation” of Section 8(a)(1).
Examples of violations of
Section 8(a)(1). Employer
conduct may, of course, independently violate Section 8(a)(1). Examples of such
independent violations are:
·
Threatening
employees with loss of jobs or benefits if they should join or vote for a
union.
·
Threatening to
close down the plant if a union should be organized in it.
·
Questioning
employees about their union activities or membership in such circumstances as
will tend to restrain or coerce the employees.
·
Spying
on union gatherings, or pretending to spy.
·
Granting wage
increases deliberately timed to discourage employees from forming or joining a
union.
Section 8(a)(2)—Domination or
Illegal Assistance and Support of a Labor Organization. Section 8(a)(2) makes it unlawful for an
employer “to dominate or interfere with the formation or administration of any
labor organization or contribute financial or other support to it.” This
section not only outlaws “company unions” that are dominated by the employer,
but also forbids an employer to contribute money to a union it favors or to
give a union improper advantages that are denied to rival unions.
Domination. A labor organization is considered dominated
within the meaning of this section if the employer has interfered with its
formation and has assisted and supported its operation and activities to such
an extent that it must be looked at as the employer’s creation instead of the
true bargaining representative of the employees. Such domination is the result
of a combination of factors and has been found to exist where there is not only
the factor of the employer getting the organization started, but also such
other factors as the employer deciding how the organization will be set up and
what it will do, or representatives of management actually taking part in the
meetings and activities of the organization and trying to influence its actions
and policies.
Illegal assistance and support. Certain lesser kinds of employer assistance
to a union may constitute unlawful “interference” even if the union is not
“dominated” by the employer. For example, an employer may not provide financial
support to a union either by direct payments or indirect financial aid. (But an
employer does not violate this prohibition by permitting employees to confer
with it and/or the union regarding grievances or other union business during working
hours without loss of pay.)
When rival unions are competing to
organize an employer’s employees, the employer is forbidden to give the union
it favors privileges it denies to the other union. It is also forbidden to
recognize either union once it knows that one of the unions has filed a valid
petition with the Board requesting a representation election. When an employer
and a union already have an established bargaining relationship, however, the
employer is required to continue bargaining with the incumbent even though a
rival union is attempting to organize the employees. In these circumstances,
the rival’s filing of a petition does not prevent continued dealing between the
employer and the incumbent unless the incumbent has lost the support of a majority
of the employees.
Examples of violation of
Section 8(a)(2). An employer violates Section 8(a)(2) by:
Remedy in cases of domination
differs from that in cases of illegal assistance and support. In remedying such unfair labor practices, the
NLRB distinguishes between domination of a labor organization and conduct which
amounts to no more than illegal assistance. When a union is found to be
dominated by an employer, the Board has announced it will order the
organization completely disestablished as a representative of employees. But,
if the organization is found only to have been supported by employer assistance
amounting to less than domination, the Board usually orders the employer to
stop such support and to withhold recognition from the organization until such
time as it has been certified by the Board as a bona fide representative of
employees.
Section 8(a)(3)—Discrimination
Against Employees. Section
8(a)(3) makes it an unfair labor practice for an employer to discriminate
against employees “in regard to hire or tenure of employment or any term or
condition of employment” for the purpose of encouraging or discouraging
membership in a labor organization. In general, the Act makes it illegal for an
employer to discriminate in employment because of an employee’s union or other
group, activity within the protection of the Act. A banding together of
employees, even in the absence of a formal organization, may constitute a labor
organization for purposes of Section 8(a)(3). It also prohibits discrimination
because an employee has refrained from taking part in such union or group
activity except where a valid union-security agreement is in effect.
Discrimination within the meaning of the Act would include such action as
refusing to hire, discharging, demoting, assigning to a less desirable shift or
job, or withholding benefits.
The union security exception to
Section 8(a)(3). As previously noted, Section 8(a)(3) provides
that an employee may be discharged for failing to make certain lawfully
required payments to the exclusive bargaining representative under a lawful union-security agreement. For a
fuller discussion of this issue, see pages 2–3, above.
Even when there is a valid
union-security agreement in effect, an employer may not pay the union the dues
and fees owed by its employees. The employer may, however, deduct these amounts
from the wages of its employees and forward them to the union for each employee
who has voluntarily signed a dues “checkoff” authorization. Such
checkoff authorization may be made irrevocable for no more than a year. But
employees may revoke their checkoff authorizations after a Board-conducted
election in which the union’s authority to maintain a union-security agreement
has been withdrawn.
The Act does not limit employer’s right to discharge for economic
reasons. This section does
not limit an employer’s right to discharge, transfer, or layoff an employee for
genuine economic reasons or for such good cause as disobedience or bad work.
This right applies equally to employees who are active in support of a union
and to those who are not.
In situations in which an employer
disciplines an employee both because the employee has violated a work rule and
because the employee has engaged in protected union activity, the discipline is
unlawful unless the employer can show that the employee would have received the
same discipline even if he or she had not engaged in the protected union
activity.
An employer who is engaged in
good-faith bargaining with a union may lock out the represented employees,
sometimes even before impasse is reached in the negotiations, if it does so to
further its position in bargaining. But a bargaining lockout may be unlawful if
the employer is at that time unlawfully refusing to bargain or is bargaining in
bad faith. It is also unlawful if the employer’s purpose in locking out its
employees is to discourage them in their union loyalties and activities, that
is, if the employer is motivated by hostility toward the union. Thus, a lockout
to defeat a union’s efforts to organize the employer’s employees would violate
the Act, as would the lockout of only those of its employees who are members of
the union. On the other hand, lockouts are lawful that are intended to prevent
any unusual losses or safety hazards that would be caused by an anticipated
“quickie” strike. And a whipsaw strike against one employer engaged in
multiemployer bargaining justifies a lockout by any of the other employers who
are party to the bargaining.
Examples of violations of
Section 8(a)(3). Examples of
illegal discrimination under Section 8(a)(3) include:
Section 8(a)(4)—Discrimination
for NLRB Activity. Section
8(a)(4) makes it an unfair labor practice for an employer “to discharge or
otherwise discriminate against an employee because he has filed charges or
given testimony under this Act.” This provision guards the right of employees
to seek the protection of the Act by using the processes of the NLRB. Like the
previous section, it forbids an employer to discharge, layoff, or engage in
other forms of discrimination in working conditions against employees who have filed
charges with the NLRB, given affidavits to NLRB investigators, or testified at
an NLRB hearing. Violations of this section are in most cases also violations
of Section 8(a)(3).
Examples of violations of
Section 8(a)(4) are:
Section 8(a)(5)—Refusal to
Bargain in Good Faith.
Section 8(a)(5) makes it illegal for an employer to refuse to bargain in good
faith about wages, hours, and other conditions of employment with the
representative selected by a majority of the employees in a unit appropriate
for collective bargaining. A bargaining representative which seeks to enforce
its right concerning an employer under this section must show that it has been
designated by a majority of the employees, that the unit is appropriate, and
that there has been both a demand that the employer bargain and a refusal by
the employer to do so.
TYPES OF CASES |
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I. CHARGES OF UNFAIR LABOR PRACTICES (C
Cases) |
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Charge Against Employer |
Charge
Against Labor Organization
|
|
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Section of the
Act CA
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Section of the
Act CB
|
Section of the
Act CC
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Section of the
Act CD
|
|
8(a)(1) To
interfere with, restrain, or coerce employees in exercise of their rights
under Section 7 (to join or assist a labor organization or to refrain). 8(a)(2) To
dominate or interfere with the formation or administration of a labor
organization or contribute financial or other support to it. 8(a)(3) 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. 8(a)(4) To
discharge or otherwise discriminate against employees because they have given
testimony under the Act. 8(a)(5) To refuse
to bargain collectively with representatives of its employees. |
8(b)(1)(A)
To
restrain or coerce employees in exercise of their rights under Section 7 (to
join or assist a labor organization or to refrain). 8(b)(1)(B) To
restrain or coerce an employer in the selection of its representatives for
collective bargaining or adjustment of grievances. 8(b)(2) To cause
or attempt to cause an employer to discriminate against an employee. 8(b)(3) To refuse
to bargain collectively with an employer. 8(b)(5) To
require or employees the payment of excessive or discriminatory fees for
membership. 8(b)(6) To cause
or attempt to cause an employer to pay or agree to pay money or other thing
of value for services which are not performed or not to be performed. |
8(b)(4)(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, work
stoppage, or boycott, or (ii) to threaten, coerce, or restrain any person
engaged in commerce or in an industry affecting commerce, where in either
case an object is: (A) To force or require any employer or self-employed
person to join any labor or employer organization or to enter into any
agreement prohibited by Section 8(e) (B) To force or require 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 force or require any other employer to recognize or
bargain with a labor organization as the representative of its employees
unless such labor organization has been so certified. (C) To force or require any employer to recognize or
bargain with a particular labor organization as the representative of its
employees if another labor organization has been certified as the
representative. |
8(b)(4)(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, work
stoppage, or boycott, or (ii) to threaten, coerce, or restrain any person
engaged in commerce or in an industry affecting commerce, where in either
case an object is: (D) To force or require 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 trade,
craft, or class, unless such employer is failing to conform to an appropriate
Board order or certification. |
|
Section of the ActCG
|
|
|||
8(g) To strike, picket, or otherwise
concertedly refuse to work at any health care institution without notifying
the institution and the Federal Mediation and Conciliation Service in writing
10 days prior to such action.
|
|
|||
|
TYPES OF CASES—Continued |
|
|||
1. CHARGES OF UNFAIR LABOR PRACTICES
(C CASES) |
2. PETITIONS FOR CERTIFICATION OR
DECERTIFICATION OF REPRESENTATIVES (R CASES) |
3. OTHER PETITIONS |
|
|
Charge Against
Labor Organization |
Charge Against Labor
Organization and Employer |
By or on Behalf
of Employees |
By or on Behalf
of Employees |
|
Section of the
Act CP
|
Section of the
Act CE
|
Section of the
Act RC
|
Section of the
Act UD
|
|
8(b)(7) To
picket, or cause or threaten the picketing of, any employer where an object
is to force or require an employer to recognize or bargain with a labor
organization as the representative of its employees, or to force or require
the employees of an employer to select such labor organization as their
collective-bargaining representative, unless such labor organization is
currently certified as the representative of such employees: (A) where the employer has lawfully recognized any
other labor organization and a question concerning representation may not
appropriately be raised under Section 9(c). (B) where within the preceding 12 months a valid
election under Section 9(c) has been conducted, or (C) where picketing has been conducted without a
petition under Section 9(c) being filed within a reasonable period of time
not to exceed 30 days from the commencement of the picketing; except where
the picketing is for the purpose of truthfully advising the public (including
consumers) that an employer does not employ members of, or have a contract
with, a labor organization, and it does not have an effect of interference
with deliveries or services. |
8(e) To enter
into any contract or agreement (any labor organization and any employer)
whereby such employer ceases or refrains or agrees to cease or refrain from
handling or dealing in any product of any other employer, or to cease doing
business with any other person. |
9(c)(1)(A)(i) Alleging that a substantial number of
employees wish to be represented for collective bargaining and their employer
declines to recognize their representative.* |
9(e)(1) Alleging
the employees (30 percent or more of an appropriate unit) wish to rescind an
existing union security agreement. |
|
Section of the
Act RD
|
By a Labor Organization
or an Employer |
|
||
9(c)(1)(A)(ii)
Alleging that a substantial number of employees assert that the
certified or currently recognized bargaining representative is no longer
their representative.* |
Board RulesUC |
|
||
Subpart C Seeking
clarification of an existing bargaining unit. |
|
|||
By an
Employer
|
Board RulesAC |
|
||
Section of the ActRM
|
|
|||
Subpart C Seeking
amendment of an outstanding certification of bargaining representative.
|
|
|||
9(c)(1)(B) Alleging
that one or more claims for recognition as exclusive bargaining
representative have been received by the employer.* |
|
|||
|
||||
|
||||
*If an 8(b)(7) charge has been filed involving the
same employer, these statements in RC, RD, and RM petitions are not required. |
|
Charges filed with the National
Labor Relations Board are letter-coded and numbered. Unfair labor practice
charges are classified as “C” cases and petitions for certification or
decertification or representatives as “R” cases. This chart indicates the letter codes used for “C” cases, at
left, and “R” cases, above, and also presents a summary of each section
involved.
Required subjects of bargaining. The duty to bargain covers all matters
concerning rates of pay, wages, hours of employment, or other conditions of
employment. These are called “mandatory” subjects of bargaining about which the
employer, as well as the employees’ representative, must bargain in good faith,
although the law does not require “either party to agree to a proposal or
require the making of a concession.” In addition to wages and hours of work,
these mandatory subjects of bargaining include but are not limited to such
matters as pensions for present employees, bonuses, group insurance, grievance
procedures, safety practices, seniority, procedures for discharge, layoff,
recall, or discipline, and union security. Certain managerial decisions such as
subcontracting, relocation, and other operational changes may not be mandatory
subjects of bargaining, even though they affect employees’ job security and
working conditions. The issue of whether these decisions are mandatory subjects
of bargaining depends on the employer’s reasons for taking action. Even if the
employer is not required to bargain about the decision itself, it must bargain
about the decision’s effects on unit employees. On “nonmandatory” subjects,
that is, matters that are lawful but not related to “wages, hours, and other
conditions of employment,” the parties are free to bargain and to agree, but
neither party may insist on bargaining on such subjects over the objection of
the other party.
Duty to bargain defined. An employer who is required to bargain under
this section must, as stated in Section 8(d), “meet at reasonable times and
confer in good faith with respect to wages, hours, and other terms and
conditions of employment, or the negotiation of an agreement or any question
arising thereunder, and the execution of a written contract incorporating any
agreement reached if requested by either party.”
What constitutes a violation of
Section 8(a)(5). An employer,
therefore, will be found to have violated Section 8(a)(5) if its conduct in
bargaining, viewed in its entirety, indicates that the employer did not
negotiate with a good faith intention to reach agreement. However, the
employer’s good faith is not at issue when its conduct constitutes an
out-and-out refusal to bargain on a mandatory subject. For example, it is a
violation for an employer, regardless of good faith, to refuse to bargain about
a subject that it believes is not a mandatory subject of bargaining, when in
fact it is.
Duty to meet and confer. The duty of an employer to meet and confer
with the representative of its employees includes the duty to deal with whoever
is designated by the employees’ representative to carry on negotiations. An
employer may not dictate to a union its selection of agents or representatives
and the employer must, in general, recognize the designated agent.
Duty to supply information. The employer’s duty to bargain includes the
duty to supply, on request, information that is “relevant and necessary” to
allow the employees’ representative to bargain intelligently and effectively
with respect to wages, hours, and other conditions of employment.
Multiemployer bargaining. When there is a history of bargaining between
a union and a number of employers acting jointly, the employees who are thus
represented constitute a multiemployer bargaining unit. Once such a unit has
been established, any of the participating employers—or the union—may retire
from this multiemployer bargaining relationship only by mutual assent or by a
timely submitted withdrawal. Withdrawal is considered timely if unequivocal
notice of the withdrawal is given near the termination of a
collective-bargaining agreement but before bargaining begins on the next
agreement.
Duty to refrain from unilateral action. Finally, the duty of an employer to bargain
includes the duty to refrain from unilateral action, that is, taking action on
its own with respect to matters concerning which it is required to bargain, and
from making changes in terms and conditions of employment without consulting
the employees’ representative.
Duty of successor employers. An employer who purchases or otherwise
acquires the operations of another may be obligated to recognize and bargain
with the union that represented the employees before the business was
transferred. In general, these bargaining obligations exist—and the purchaser
is termed a successor employer—when there is a substantial continuity in the
employing enterprise despite the sale and transfer of the business. Whether the
purchaser is a successor employer is dependent on several factors, including
the number of employees taken over by the purchasing employer, the similarity
in operations and product of the two employers, the manner in which the
purchaser integrates the purchased operations into its other operations, and
the character of the bargaining relationship and agreement between the union
and the original employer .
Examples of violations of
Section 8(a)(5) are as
follows:
Section 8(e)—Entering a Hot
Cargo Agreement. Section
8(e), added to the Act in 1959, makes it an unfair labor practice for any labor
organization and any employer to enter into what is commonly called a “hot
cargo” or “hot goods” agreement. It may also limit the restrictions that can be
placed on the subcontracting of work by an employer. The typical hot cargo or
hot goods clause in use before the 1959 amendment to the Act provided that
employees would not be required by their employer to handle or work on goods or
materials going to, or coming from, an employer designated by the union as
“unfair.” Such goods were said to be “hot cargo” thereby giving Section 8(e)
its popular name. These clauses were most common in the construction and
trucking industries.
What is prohibited. Section 8(e) forbids an employer and a labor
organization to make an agreement whereby the employer agrees to stop doing
business with any other employer and declares void and unenforceable any such
agreement that is made. It should be noted that a strike or picketing, or any
other union action, or the threat of it, to force an employer to agree to a hot
cargo provision, or to force it to act in accordance with such a clause, has
been held by the Board to be a violation of Section 8(b)(4). Exceptions are
allowed in the construction and garment industries, and a union may seek, by
contract, to keep within a bargaining unit work that is being done by the
employees in the unit or to secure work that is “fairly claimable” in that
unit.
Exceptions for construction and
garment industries. In the
construction industry a union and an employer in the industry may agree to a
provision that restricts the contracting or subcontracting of work to be done
at the construction site. Such a clause contained in the agreement between the
employer and the union typically provides that if work is subcontracted by the
employer it must go to an employer who has an agreement with the union. A union
in the construction industry may engage in a strike and picketing to obtain,
but not to enforce, contractual restrictions of this nature. Similarly, in the
garment industry an employer and a union can agree that work to be done on the
goods or on the premises of a jobber or manufacturer, or work that is part of
“an integrated process of production in the apparel and closing industry,” can
be subcontracted only to an employer who has an agreement with the union. This
exception, unlike the previous one concerning the construction industry, allows
a labor organization in the garment industry, not only to seek to obtain, but also to enforce, such a
restriction on subcontracting by striking, picketing, or other lawful actions.
Unfair Labor Practices of Labor Organizations
Section 8(b)(1)(A)—Restraint
and Coercion of Employees. Section
8(b)(1)(A) forbids a labor organization or its agents “to restrain or coerce
employees in the exercise of the rights guaranteed in section 7.” The section
also provides that it is not intended to “impair the rights of a labor
organization to prescribe its own rules” concerning membership in the labor
organization.
Section 8(b)(1)(A) compared
with Section 8(a)(1). Like Section 8(a)(1) , Section 8(b)(1)(A) is
violated by conduct that independently restrains or coerces employees in the
exercise of their Section 7 rights regardless of whether the conduct also
violates other provisions of Section 8(b). But whereas employer violations of
Section 8(a)(2), (3), (4), and (5) are held to be violations of Section 8(a)(1)
too, the Board has held, based on the intent of Congress when Section
8(b)(1)(A) was written, that violation of Section 8(b)(2) through (7) do not
also “derivatively” violate Section 8(b)(1)(A). The Board does hold, however,
that making or enforcing illegal union-security agreements or hiring agreements
that condition employment on union membership not only violates Section 8(b)(2)
but also Section 8(b)(1)(A), because such action restrains or coerces employees
in their Section 7 rights.
Union conduct that is reasonably
calculated to restrain or coerce employees in their Section 7 rights violates
Section 8(b)(1)(A) whether it succeeds in actually restraining or coercing
employees.
A union may violate Section
8(b)(1)(A) by coercive conduct of its officers or agents, of pickets on a
picket line endorsed by the union, or of strikers who engage in coercion in the
presence of union representatives who do not repudiate the conduct.
What violates Section
8(b)(1)(A). Unlawful coercion
may consist of acts specifically directed at an employee such as physical
assaults, threats of violence, and threats to affect an employee’s job status.
Coercion also includes other forms of pressure against employees such as acts
of a union while representing employees as their exclusive bargaining agent
(see Section 9(a), p. 8). A union that is a statutory bargaining representative
owes a duty of fair representation to all the employees it represents. It may
exercise a wide range of reasonable discretion in carrying out the
representative function, but it violates Section 8(b)(1)(A) if, while acting as
the employees’ statutory bargaining representative, it takes or withholds
action in connection with their employment because of their union activities or
for any irrelevant or arbitrary reason such as an employee’s race or sex.
Section 8(b)(1)(A) recognizes the
right of unions to establish and enforce rules of membership and to control
their internal affairs. This right is limited to union rules and discipline
that affect the rights of employees as union members and that are not enforced
by action affecting an employee’s employment. Also, rules to be protected must
be aimed at matters of legitimate concern to unions such as the encouragement
of members to support a lawful strike or participation in union meetings. Rules
that conflict with public policy, such as rules that limit a member’s right to
file unfair labor practice charges, are not protected. And a union may not fine
a member for filing a decertification petition although it may expel that
individual for doing so. A rule that prohibits a member from resigning from the
union is unlawful. The union may not fine a former member for any protected
conduct engaged in after he or she resigns.
Examples of violations of
Section 8(b)(1)(A). Examples
of restraint or coercion that violate Section 8(b)(1)(A) when done by a union
or its agents include the following:
The following are examples of
restraint or coercion that violate Section 8(b)(1)(A) when done by a union that
is the exclusive bargaining representative:
·
· Refusing to process a grievance in retaliation
against an employee’s criticism of union officers.
Section 8(b)(1)(B)—Restraint
and Coercion of Employers.
Section 8(b)(1)(B) prohibits a labor organization from restraining or coercing
an employer in the selection of a bargaining representative. The prohibition
applies regardless of whether the labor organization is the majority
representative of the employees in the bargaining unit. The prohibition extends
to coercion applied by a union to a union member who is a representative of the
employer in the adjustment of grievances. This section is violated by such
conduct as the following:
Examples of violations of
Section 8(b)(1)(B).
Section 8(b)(2)—Causing or
Attempting to Cause Discrimination. Section 8(b)(2) makes it an unfair labor practice for a labor
organization to cause an employer to discriminate against an employee in
violation of Section 8(a)(3). As discussed earlier, Section 8(a)(3) prohibits
an employer from discriminating against an employee in regard to wages, hours,
and other conditions of employment for the purpose of encouraging or
discouraging membership in a labor organization. It does allow, however, the
making of union-security agreements under certain specified conditions. (See
pp. 2–3, above.)
What violates Section 8(b)(2). A union violates Section 8(b)(2), for
example, by demanding that an employer discriminate against employees because
of their failure to make certain otherwise lawful payments to the union when
there is no valid union-security agreement in effect. (See pp. 2–3, above.) The
section can also be violated by agreements or arrangements with employers that
unlawfully condition employment or job benefits on union membership, on the
performance of union membership
obligations, or on arbitrary grounds. Union conduct affecting an employee’s
employment in a way that is contrary to provisions of the bargaining contract
may likewise be violative of the section. But union action that causes
detriment to an individual employee in that individual’s employment does not
violate Section 8(b)(2) if it is consistent with nondiscriminatory provisions
of a bargaining contract negotiated for the benefit of the total bargaining unit
or if it is for some other legitimate purpose.
To find that a union caused an
employer to discriminate, it is not necessary to show that any express demand
was spoken. A union’s conduct, accompanied by statements advising or suggesting
that action is expected of an employer, may be enough to find a violation of
this section if the union’s action can be shown to be a causal factor in the
employer’s discrimination.
Illegal hiring hall agreements
and practices. Contracts or
informal arrangements with a union under which an employer gives preferential
treatment to union members are violations of Section 8(b)(2). It is not
unlawful for an employer and a union to enter into an agreement whereby the
employer agrees to hire new employees exclusively through the union hiring hall
so long as there is neither a provision in the agreement nor a practice in
effect that discriminates against nonunion members in favor of union members or
otherwise discriminates on the basis of union membership obligations. Both the
agreement and the actual operation of the hiring hall must be
nondiscriminatory: referrals must be made without reference to union membership
or irrelevant or arbitrary considerations such as race. Referral standards or
procedures, even if nondiscriminatory on their face, are unlawful when they
continue previously discriminatory conditions of referral. However, a union
may, in setting referral standards, consider legitimate aims such as sharing
available work and easing the impact of local unemployment. It may also charge
referral fees if the amount of the fee is reasonably related to the cost of
operating the referral service.
Illegal union-security
agreements. Union-security
agreements that require employees to make certain lawfully required payments to
the union after they are hired are permitted by this section as previously
discussed. Union-security agreements that do not meet all the requirements
listed on page 2 will not support a discharge. A union that attempts to force
an employer to enter into an illegal union-security agreement, or that enters
into and keeps in effect such an agreement, violates Section 8(b)(2), as does a
union that attempts to enforce such an illegal agreement by bringing about an
employee’s discharge. Even when a union-security provision of a bargaining
contract meets all statutory requirements so that it is permitted by Section
8(a)(3), a union may not lawfully require the discharge of employees under the provision unless the employees had been
informed of the union-security agreement and of their specific obligation under
it. And a union violates Section 8(b)(2) if it tries to use the union-security
provisions of a contract to collect payments other than those that lawfully may
be required. (See pp. 2–3, above.) Assessments, fines, and penalties may not be
enforced by application of a union-security agreement.
Examples of violations of
Section 8(b)(2) are:
·
Causing an
employer to discharge employees because they circulated a petition urging a
change in the union’s method of selecting shop stewards.
·
Causing an
employer to discharge employees because they made speeches against a contract
proposed by the union.
·
Making a
contract that requires an employer to hire only members of the union or
employees “satisfactory” to the union.
·
Causing an
employer to reduce employees’ seniority because they engaged in antiunion acts.
·
Refusing
referral or giving preference on the basis of race or union activities in
making job referrals to units represented by the union.
·
Seeking
the discharge of an employee under a union-security agreement for failure to
pay a fine levied by the union.
Section 8(b)(3)—Refusal to
Bargain in Good Faith.
Section 8(b)(3) makes it illegal for a labor organization to refuse to bargain
in good faith with an employer about wages, hours, and other conditions of
employment if it is the representative of that employer’s employees. This
section imposes on labor organizations the same duty to bargain in good faith
that is imposed on employers by Section 8(a)(5). Both the labor organization
and the employer are required to follow the procedure set out in Section 8(d)
before terminating or changing an existing contract (see p. 6).
A labor organization that is the
employees’ representative must meet at reasonable times with the employer or
his designated representative, must confer in good faith on matters pertaining
to wages, hours, or other conditions of employment, or the negotiation of an
agreement, or any question arising under an agreement, and must sign a written
agreement if requested and if one is reached. The obligation does not require
the labor organization or the employer to agree to a proposal by the other
party or make a concession to the other party, but it does require bargaining
with an open mind in an attempt to reach agreement. So, while a union may try
in contract negotiations to establish wages and benefits comparable to those contained in other bargaining agreements in
the area, it may not insist on such terms without giving the employer an
opportunity to bargain about the terms. Likewise, a union may seek voluntary
bargaining on nonmandatory subjects of bargaining (p. 20), such as a
provision for an industry promotion fund, but may not insist on
bargaining about such subjects or condition execution of a contract on the
reaching of agreement on a nonmandatory subject.
When a union has been bargaining
with a group of employers in a multiemployer bargaining unit, it may withdraw
at any time from bargaining on that basis and bargain with one of the employers
individually if the individual employer and the multiemployer group agree to
the union’s withdrawal. And even in the absence of employer consent, a union
may withdraw from multiemployer bargaining by giving the employers unequivocal
notice of its withdrawal near the expiration of the agreement but before
bargaining on a new contract has begun.
Section 8(b)(3) not only requires
that a union representative bargain in good faith with employers, but also
requires that the union carry out its bargaining duty fairly with respect to
the employees it represents. A union, therefore, violates Section 8(b)(3) if it
negotiates a contract that conflicts with that duty, such as a contract with
racially discriminatory provisions, or if it refuses to handle grievances under
the contract for irrelevant or arbitrary reasons.
Examples of violations of Section 8(b)(3). Section 8(b)(3) is violated by any of the
following:
Section 8(b)(4)—Prohibited
Strikes and Boycotts. Section
8(b)(4) prohibits a labor organization from engaging in strikes or boycotts or
taking other specified actions to accomplish certain purposes or “objects” as
they are called in the Act. The proscribed action is listed in clauses (i) and
(ii), the objects are described in subparagraphs (A) through (D). A union
commits an unfair labor practice if it takes any of the kinds of action listed
in clauses (i) and (ii) as a means of accomplishing any of the objects listed in
the four subparagraphs.
Proscribed action: Inducing or
encouraging a strike work stoppage or boycott. Clause (i) forbids a union to engage in a
strike, or to induce or encourage a strike, work stoppage, or a refusal to
perform services by “any individual employed by any person engaged in commerce
or in an industry affecting commerce” for one of the objects listed in
subparagraphs (A) through (D). The words “induce and encourage” are considered
by the U. S. Supreme Court to be broad enough to include every form of
influence or persuasion. For example, it has been held by the NLRB that a work
stoppage on a picketed construction project was “induced” by a union through
its business agents who, when they learned about the picketing, told the job
stewards that they (the business agents) would not work behind the picket line.
It was considered that this advice not only induced the stewards to leave the
job, but caused them to pass the information on to their fellow employees, and
that such conduct informed the other employees that they were expected not to
work behind the picket line. The world “person” is defined in Section 2(1) as
including “one or more individuals, labor organizations, partnerships,
associations, corporations,” and other legal persons. As so defined, the word
“person” is broader than the word “employer.” For example, a railroad company,
although covered by the Railway Labor Act, is excluded from the definition of
“employer” in the National Labor Relations Act and, therefore, neither the
railroad company nor its employees are covered by the National Labor Relations
Act. But a railroad company is a “person engaged in commerce” as defined above
and, therefore, a labor organization is forbidden to “induce or encourage”
individuals employed by a railroad company to engage in a strike, work
stoppage, or boycott for any of the objects in subparagraphs (A) through (D).
Proscribed action: Threats,
coercion, and restraint.
Clause (ii) makes it an unfair labor practice for a union to “threaten, coerce,
or restrain any person engaged in commerce or in an industry affecting
commerce” for any of the proscribed objects. Even though no direct threat is
voiced by the union, there may nevertheless be coercion and restraint that
violates this clause. For example, when a union picketed a construction job to
bring about the removal of a nonunion subcontractor in violation of Section
8(b)(4)(B), the picketing induced employees of several other subcontractors to
stop work. When the general contractor
asked what could be done to stop the picketing, the union’s business agent
replied that the picketing would stop only if the nonunion subcontractor were
removed from the job. The NLRB held this to be “coercion and restraint” within
the meaning of clause (ii).
Subparagraph (A)—Prohibited
object: Compelling membership in an employer or labor organization or
compelling a hot cargo agreement. Section 8(b)(4)(A) prohibits unions from engaging in clause (i) or (ii)
action to compel an employer or self-employed person to join any labor or
employer organization or to force an employer to enter a hot cargo agreement
prohibited by Section 8(e). Examples of violations of this section are:
Examples of violations of
Section 8(b)(4)(A).
Subparagraph (B)—Prohibited
object: Compelling recognition of an uncertified union. Section 8(b)(4)(B) contains the Act’s
secondary boycott provision. A secondary boycott occurs if a union has a
dispute with Company A and, in furtherance of that dispute, causes the
employees of Company B to stop handling the products of Company A, or otherwise
forces Company B to stop doing business with Company A. The dispute is with
Company A, called the “primary” employer, the union’s action is against Company
B, called the “secondary” employer, hence the term “secondary boycott.” In many
cases the secondary employer is a customer or supplier of the primary employer
with whom the union has the dispute. In general, the Act prohibits both the
secondary boycott and the threat of it. Examples of prohibited secondary
boycotts are:
Examples of violations of
Section 8(b)(4)(B).
·
Urging employees
of a building contractor not to install doors that were made by a manufacturer
that is nonunion or that employs members of a rival union.
·
Telling an
employer that its plant will be picketed if that employer continues to do business
with an employer the union has designated as “unfair.”
The prohibitions of Section
8(b)(4)(B) do not protect a secondary employer from the incidental effects of
union action that is taken directly against the primary employer. Thus, it is
lawful for a union to urge employees of a secondary supplier at the primary
employer’s plant not to cross a picket line there. Section 8(b)(4)(B) also does
not proscribe union action to prevent an employer from contracting out work
customarily performed by its employees, even though an incidental effect of
such conduct might be to compel that employer to cease doing business with the
subcontractor.
When an employer is not
protected from secondary strikes and boycotts. In order to be protected against the union
action that is prohibited under this subparagraph, the secondary employer has
to be a neutral as concerns the dispute between the union and the primary
employer. For secondary boycott purposes an employer is considered an “ally” of
the primary employer and, therefore, not protected from union action in certain
situations. One is based on the ownership and operational relationship between
the primary and secondary employers. Here, a number of factors are considered,
particularly the following: Are the primary and secondary employers owned and
controlled by the same person or persons? Are they engaged in “closely
integrated operations?” May they be treated as a single employer under the Act?
Another test of the “ally” relationship is based on the conduct of the secondary
employer. If an employer, despite its claim of neutrality in the dispute, acts
in a way that indicates that it has abandoned its “neutral” position, the
employer opens itself up to primary action by the union. An example of this
would be an employer who, claiming to be a neutral, enters into an arrangement
with a struck employer whereby it accepts and performs farmed. out work of that
employer who would normally do the work itself, but who cannot perform the work
because its plant is closed by a strike.
When a union may picket an
employer who shares a site with another employer. When employees of a primary employer and
those of a secondary employer work on the same premises, a special situation is
involved and the usual rules do not apply. A typical example of the shared site
or “common situs” situation is when a subcontractor with whom a union has a
dispute is engaged at work on a construction site alongside other
subcontractors with whom the union has no dispute. Picketing at a common situs
is permissible if directed solely against the primary employer. But it is
prohibited if directed against secondary employers regularly engaged at that
site. To assist in determining whether picketing at a common situs is
restricted to the primary employer and therefore permissible, or directed at a
secondary employer and therefore violative of the statute, the NLRB and the
courts have suggested various guidelines for evaluating the object of the
picketing, including the following.
Subject to the qualification noted
below, the picketing would appear to be primary picketing if the picketing is:
1. Limited
to times when the employees of the primary employer are working on the
premises.
2. Limited
to times when the primary employer is carrying on its normal business there.
3. Confined
to places reasonably close to where the employees of the primary employer are
working.
4. Conducted
so that the picket signs, the banners, and the conduct of the pickets indicate
clearly that the dispute is with the primary employer and not with the
secondary employer.
These guidelines are known as the Moore
Dry Dock standards from the case in which they were first formulated by the
NLRB. However, the NLRB has held that picketing at a common situs may be
unlawful notwithstanding compliance with the Moore Dry Dock standards if
a union’s statements or actions otherwise indicate that the picketing has an
unlawful objective.
Picketing contractors’ gates. In some situations a company may set aside, or reserve, a certain plant
gate, or entrance to its premises, for the exclusive use of a contractor. If a
union has a labor dispute with the company and pickets the company’s premises,
including the gate so reserved, the union may be held to have violated Section
8(b)(4)(B). The U.S. Supreme Court has stated the circumstances under which
such a violation may be found as follows:
There must be a separate gate,
marked and set apart from other gates; the work done by the employees who use
the gate must be unrelated to the normal operations of the employer, and the
work must be of a kind that would not, if done when the plant were engaged in
its regular operations, necessitate curtailing those operations.
However, if the reserved gate is
used by employees of both the company and the contractor, the picketing would
be considered primary and not a violation of Section 8(b)(4)(B).
Subparagraph (B)—Prohibited
object: Compelling recognition of an uncertified union. Section 8(b)(4)(B) also prohibits secondary
action to compel an employer to recognize or bargain with a union that is not
the certified representative of its employees. If a union takes action
described in clause (i) or (ii) against a secondary employer, and the union’s
object is recognition by the primary employer, the union commits an unfair labor
practice under this section. To establish that the union has an object of
recognition, a specific demand by the union for recognition need not be shown;
a demand for a contract, which implies recognition or at least bargaining, is
enough to establish an 8(b)(4)(B) object.
Subparagraph (C)—Prohibited
object: Compelling recognition of a union if another union has been certified. Section 8(b)(4)(C) forbids a labor
organization from using clause (i) or (ii) conduct to force an employer to
recognize or bargain with a labor organization other than the one that is
currently certified as the representative of its employees. Section 8(b)(4)(C)
has been held not to apply when the picketing union is merely protesting
working conditions that are substandard for the area.
Subparagraph (D)—Prohibited
object: Compelling assignment of certain work to certain employees. Section 8(b)(4)(D) forbids a labor
organization from engaging in action described in clauses (i) and (ii) for the
purpose of forcing any employer to assign certain 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.” The Act sets up a special procedure for handling disputes over work
assignments that will be discussed later in this material (see p. 38).
Publicity such as handbilling
allowed by Section 8(b)(4). The
final provision in Section 8(b)(4) provides that nothing in Section 8(b)(4)
shall be construed “to prohibit publicity, other than picketing, for the
purpose of truthfully advising the public, including consumers and members of a
labor organization, that a product or products are produced by an employer with
whom the labor organization has a primary dispute and are distributed by
another employer.” Such publicity is not protected if it has “an effect of
inducing any individual employed by any persons other than the primary
employer” to refuse to handle any goods or not to perform services. The Supreme
Court has held that this provision permitted a union to distribute handbills at
the stores of neutral food chains asking the public not to buy certain items
distributed by a wholesaler with whom the union had a primary dispute.
Moreover, it has also held that peaceful picketing at the stores of a neutral
food chain to persuade customers not to buy the products of a struck employer
when they traded in these stores was not prohibited by Section 8(b)(4).
Section 8(b)(5)—Excessive or
Discriminatory Membership Fees.
Section 8(b)(5) makes it illegal for a union to charge employees who are
covered by an authorized union-security agreement a membership fee “in an
amount which the Board finds excessive or discriminatory under all the
circumstances.” The section also provides that the Board in making its finding
must consider among other factors “the practices and customs of labor organizations in the particular
industry, and the wages currently paid to the employees affected.”
Examples of violations of
Section 8(b)(5). Examples of violations of this section
include:
·
Charging old
employees who do not join the union until after a union-security agreement goes
into effect an initiation fee of $15 while charging new employees only $5.
·
Increasing the
initiation fee from $75 to $250 and thus charging new members an amount equal
to about 4 weeks’ wages when other unions in the area charge a fee equal to
about one-half the employee’s first week’s pay.
Section
8(b)(6)—“Featherbedding.” Section
8(b)(6) forbids a labor organization “to cause or attempt to cause an employer
to pay or deliver or agree to pay or deliver any money or other thing of value,
in the nature of an exaction, for services which are not performed or not to be
performed.”
Section 8(b)(7)—Organizational
and Recognitional Picketing by Noncertified Unions. Section 8(b)(7) prohibits a labor
organization that is not currently certified as the employees’ representative
from picketing or threatening to picket with an object of obtaining recognition
by the employer (recognitional picketing) or acceptance by his employees as
their representative (organizational picketing). The object of picketing is
ascertained from all the surrounding facts including the message on the picket
signs and any communications between the union and the employer.
“Recognitional” picketing as used in Section 8(b)(7) refers to picketing to
obtain an employer’s initial recognition of the union as bargaining
representative of its employees or to force the employer, without formal
recognition of the union, to maintain a specific and detailed set of working
conditions. It does not include picketing by an incumbent union for continued
recognition or for a new contract. Neither does it include picketing that seeks
to prevent the employer from undermining area standards of working conditions
by operating at less than the labor costs which prevail under bargaining
contracts in the area.
Recognitional and organizational
picketing are prohibited in three specific instances.
A. A. When the employer has lawfully recognized another
union and a representation election would be barred by either the provisions of
the Act or the Board’s Rules, as in the case of a valid contract between the
employer and the other union (8(b)(7)(A). (A union is considered lawfully
recognized when the employer’s recognition of the union cannot be attacked
under the unfair labor practice provisions of Section 8 of the Act.)
B. B. When a valid NLRB representation election has
been held within the previous 12 months (8(b)(7)(8)).
C. C. When a representation petition is not filed
“within a reasonable period of time not to exceed thirty days from the
commencement of such picketing” (8(b)(7)(C)).
Publicity picketing. Subparagraph (C) is subject to an exception,
called a proviso, which permits picketing “for the purpose of truthfully
advising the public (including consumers)” that an employer does not employ
union members or have a contract with a labor organization. However, such
picketing loses the protection of this proviso if it has a substantial effect on
the employer’s business because it induces “any individual employed by any
other person” to refuse to pick up or deliver goods or to perform other
services.
Expedited elections under
Section 8(b)(7)(C). If an
8(b)(7)(C) charge is filed against the picketing union and a representation
petition is filed within a reasonable time after the picketing starts,
subparagraph (C) provides for an election to be held forthwith. This election
requires neither a hearing nor a showing of interest among the employees. As a
consequence the election can be held and the results obtained faster than in a
regular election under Section 9(c), and for this reason it is called an
“expedited” election. Petitions filed more than a reasonable time after
picketing begins and petitions filed during picketing protected by the
8(b)(7)(C) proviso, discussed above, are processed under normal election
procedures and the election will not be expedited. The reasonable period in
which to file a petition cannot exceed 30 days and may be shorter, when, for
instance, picketing is accompanied by violence.
Examples of violations of
Section 8(b)(7) are as
follows:
Section 8(e)—Entering a Hot
Cargo Agreement. Section 8(e)
makes it an unfair labor practice for an employer or a labor organization to
enter a hot cargo agreement. This section applies equally to unions and to
employers. The discussion of this
section as an unfair labor practice of employers has been treated as a
discussion of an unfair labor practice of unions as well. (See pp. 21 and 22.)
Section 8(g)—Striking or
Picketing a Health Care Institution Without Notice. Section 8(g) prohibits a labor organization
from engaging in a strike, picketing, or other concerted refusal to work at any
health care institution without first giving at least 10 days’ notice in
writing to the institution and the Federal Mediation and Conciliation Service.
How the Act Is Enforced
The rights of employees declared
by Congress in the National Labor Relations Act are not self-enforcing. To ensure
that employees may exercise these rights, and to protect them and the public
from unfair labor practices, Congress established the NLRB to administer and
enforce the Act.
Organization of the NLRB—The Board, the General Counsel, the Regional
Offices. The NLRB includes
the Board, which is composed of five members with their respective staffs, the
General Counsel and staff, and the Regional, Subregional, and Resident Offices.
The General Counsel has final and independent authority on behalf of the Board,
in respect to the investigation of charges and issuance of complaints. Members
of the Board are appointed by the President, with consent of the Senate, for
5-year terms. The General Counsel is also appointed by the President, with
consent of the Senate, for a 4-year term. Offices of the Board and the General
Counsel are in Washington, D.C. To assist in administering and enforcing the
law, the NLRB has established 33 regional and a number of other field offices.
These offices, located in major cities in various States and Puerto Rico, are
under the general supervision of the General Counsel.
Functions of the NLRB. The Agency has two main functions: to conduct
representation elections and certify the results, and to prevent employers and
unions from engaging in unfair labor practices. In both kinds of cases the
processes of the NLRB are begun only when requested. Requests for such action
must be made in writing on forms provided by the NLRB and filed with the proper
Regional Office. The form used to request an election is called a “petition,”
and the form for unfair labor practices is called a “charge.” The filing of a
petition or a charge sets in motion the machinery of the NLRB under the Act.
Before discussing the machinery established by the Act, it would be well to
understand the nature and extent of the authority of the NLRB.
Authority of the NLRB—Enterprises whose operations affect commerce. The NLRB gets its authority from Congress by
way of the National Labor Relations Act. The power of Congress to regulate
labor-management relations is limited by the commerce clause of the United
States Constitution. Although it can declare generally what the rights of employee are or should be, Congress can make
its declaration of rights effective only in respect to enterprises whose
operations “affect commerce” and labor disputes that “affect commerce.” The
NLRB, therefore, can direct elect ions and certify the results only in the case
of an employer whose operations affect commerce. Similarly, it can act to
prevent unfair labor practices only in cases involving labor disputes that
affect, or would affect, commerce.
What is commerce. “Commerce” includes trade, traffic,
transportation, or communication within the District of Columbia or any
Territory of the United States; or between any State or Territory and any other
State, Territory, or the District of Columbia; or between two points in the
same State, but through any other State, Territory, the District of Columbia,
or a foreign country. Examples of enterprises engaged in commerce are:
·
A
manufacturing company in California that sells and ships its product to buyers
in Oregon.
·
A company in
Georgia that buys supplies in Louisiana.
·
A trucking
company that transports goods from one point in New York State through
Pennsylvania to another point in New York State.
·
A radio station
in Minnesota that has listeners in Wisconsin.
When the operations of an
employer affect commerce.
Although a company may not have any direct dealings with enterprises in any
other State, its operations may nevertheless affect commerce. The operations of
a Massachusetts manufacturing company that sells all of its goods to
Massachusetts wholesalers affect commerce if the wholesalers ship to buyers in
other States. The effects of a labor dispute involving the Massachusetts
manufacturing concern would be felt in other States and the labor dispute
would, therefore, “affect” commerce. Using this test, it can be seen that the
operations of almost any employer can be said to affect commerce. As a result,
the authority of the NLRB could extend to all but purely local enterprises.
The scope of the commerce clause
is limited, however, by the first amendment’s prohibition against Congress’
enacting laws restricting the free exercise of religion. Because of this potential
conflict, and because Congress has not clearly expressed an intention that the
Act cover lay faculty in church-operated schools, the Supreme Court has held
that the Board may not assert jurisdiction over faculty members in such
institutions.
The Board does not act in all
cases affecting commerce.
Although the National Labor Relations Board could exercise its powers to
enforce the Act in all cases involving enterprises whose operations affect
commerce, the Board does not act in all such cases. In its discretion it limits
the exercise of its power to cases involving enterprises whose effect on commerce is substantial. The
Board’s requirements for exercising its power or jurisdiction are called
“jurisdictional standards.” These standards are based on the yearly amount of
business done by the enterprise, or on the yearly amount of its sales or of its
purchases. They are stated in terms of total dollar volume of business and are
different for different kinds of enterprises. The Board’s standards in effect on
July 1, 1990, are as follows:
NLRB jurisdictional standards.
1.
Nonretail
business: Direct sales of
goods to consumers in other States, or indirect sales through others (called
outflow), of at least $50,000 a year; or direct purchases of goods from suppliers
in other States, or indirect purchases through others (called inflow), of at
least $50,000 a year.
2.
Office
buildings: Total annual
revenue of $100,000 of which $25,000 or more is derived from organizations that
meet any of the standards except the indirect outflow and indirect inflow
standards established for nonretail enterprises.
3.
Retail
enterprises: At least
$500,000 total annual volume of business.
4.
Public
utilities: At least $250,000
total annual volume of business, or $50,000 direct or in direct outflow or
inflow.
5.
Newspapers: At least $200,000 total annual volume of
business.
6.
Radio,
telegraph, television, and telephone enterprises: At least $100,000 total annual volume of
business.
7.
Hotels,
motels, and residential apartment houses: At least $500,000 total annual volume of business.
8.
Privately
operated health care institutions: At least $250,000 total annual volume of business for hospitals; at
least $100,000 for nursing homes, visiting nurses associations, and related
facilities; at least $250,000 for all other types of private health care
institutions defined in the 1974 amendments to the Act. The statutory
definition includes: “any hospital, convalescent hospital, health maintenance
organizations, health clinic, nursing home, extended care facility or other
institution devoted to the care of the sick, infirm, or aged person.” Public
hospitals are excluded from NLRB jurisdiction by Section 2(2) of the Act.
9.
Transportation
enterprise, links and channels of interstate commerce: At least $50,000 total annual income from
furnishing interstate passenger and freight transportation services; also
performing services valued at $50,000 or more for businesses which meet any of the jurisdictional standards except the
indirect outflow and indirect inflow of standards established for nonretail
enterprises.
10.
Transit
systems: At least $250,000
total annual volume of business.
11.
Taxicab
companies: At least $500,000
total annual volume of business.
12.
Associations:
These are regarded as a
single employer in that the annual business of all association members is
totaled to determine whether any of the standards apply.
13.
Enterprises
in the Territories and the District of Columbia: The jurisdictional standards apply in the
Territories; all businesses In the District of Columbia come under NLRB
jurisdiction.
14.
National
defense: Jurisdiction is
asserted over all enterprises affecting commerce when their operations have a
substantial impact on national defense, whether the enterprises satisfy any
other standard.
15.
Private
universities and colleges: At
least $1 million gross annual revenue from all sources (excluding contributions
not available for operating expenses because of limitations imposed by the
grantor).
16.
Symphony
orchestras: At least $1
million gross annual revenue from all sources (excluding contributions not
available for operating expenses because of limitations imposed by the
grantor).
17.
Law firms and
legal assistance programs: At
least $250,000 gross annual revenues.
18.
Employers
that provide social services: At
least $250,000 gross annual revenues.
Through enactment of the 1970
Postal Reorganization Act, jurisdiction of the NLRB was extended to the United
States Postal Service, effective July 1, 1971.
In addition to the above-listed
standards, the Board asserts jurisdiction over gambling casinos when these
enterprises are legally operated, when their total annual revenue from gambling
is at least $500,000.
Ordinarily, if an enterprise does
the total annual volume of business listed in the standard, it will necessarily
be engaged in activities that “affect” commerce. The Board must find, however,
based on evidence, that the enterprise does in fact “affect” commerce.
The Board has established the
policy that when an employer whose operations “affect” commerce refuses to
supply the Board with information concerning total annual business, the Board
may dispense with this requirement and exercise jurisdiction.
Finally, Section 14(c)(1)
authorizes the Board, in its discretion, to decline to exercise jurisdiction
over any class or category of employers when a labor dispute involving such
employees is not sufficiently substantial to warrant the exercise of
jurisdiction, provided that it cannot refuse to exercise jurisdiction over any
labor dispute over which it would have asserted jurisdiction under the
standards it had in effect on August 1, 1959. In accordance with this provision
the Board has determined that it will not exercise jurisdiction over
racetracks, owners, breeders, and trainers of racehorses, and real estate brokers.
The Act does not cover certain
Individuals. In addition to
the foregoing limitations, the Act states that the term “employee” shall
include any employee except the following:
·
Agricultural
laborers.
·
Domestic
servants.
·
Any
individual employed by his parent or spouse.
·
Independent
contractors.
·
Supervisors.
·
Individuals
employed by an employer subject to the Railway Labor Act.
·
Government
employees, including those employed by the U .S. Government, any Government
corporation or Federal Reserve Bank, or any State or political subdivision such
as a city, town, or school district.
Supervisor defined. Supervisors are excluded from the definition
of “employee” and, therefore, not covered by the Act. Whether an individual is
a supervisor for purposes of the Act depends on that individual’s authority
over employees and not merely a title. A supervisor is defined by the Act as
any individual who has the authority, acting in the interest of an employer, to
cause another employee to be hired, transferred, suspended, laid off, recalled,
promoted, discharged, assigned, rewarded, or disciplined, either by taking such
action or by recommending it to a superior; or who has the authority
responsibly to direct other employees or adjust their grievances; provided, in
all cases, that the exercise of authority is not of a merely routine or
clerical nature, but requires the exercise of independent judgment. For
example, a foreman who determined which employees would be laid off after being
directed by the job superintendent to layoff four employees would be considered
a supervisor and would, therefore, not be covered by the Act; a “strawboss”
who, after someone else determined which employees would be laid off, merely
informed the employees of the layoff and who neither directed other employees nor adjusted their grievances would not be
considered a supervisor and would be covered by the Act.
“Managerial” employees are also
excluded from the protection of the Act. A managerial employee is one who
represents management interests by taking or recommending actions that
effectively control or implement employer policy.
The Act does not cover certain employers. The term “employer” includes any person who
acts as an agent of an employer, but it does not include the following:
·
The
United States or any State Government, or any political subdivision of either,
or any Government corporation or Federal Reserve Bank.
·
Any
employer subject to the Railway Labor Act.
NLRB Procedures. The authority of the NLRB can be brought to bear in a representation
proceeding only by the filing of a petition. Forms for petitions must be
signed, sworn to or affirmed under oath, and filed with the Regional Office in
the area where the unit of employees is located. If employees in the unit
regularly work in more than one regional area, the petition may be filed with
the Regional Office of any of such regions.
Procedure in representation
cases. Section 9(c)(1)
provides that when a petition is filed, “the Board shall investigate such
petition and if it has reasonable cause to believe that a question of
representation affecting commerce exists shall provide for an appropriate
hearing upon due notice,” if the Board finds from the evidence presented at the
hearing that “such a question of representation exists, it shall direct an
election by secret ballot and shall certify the results thereof.” When there
are three or more choices on the ballot and none receives a majority, Section
9(c)(3) provides for a runoff between the choice that received the largest and
the choice that received the second largest number of valid votes in the
election. After the election, if a union receives a majority of the votes cast,
it is certified; if no union gets a majority, that result is certified. A union
that has been certified is entitled to be recognized by the employer as the
exclusive bargaining agent for the employees in the unit. If the employer fails
to bargain with the union, it commits an unfair labor practice.
Procedure in unfair labor
practice cases. The procedure
in an unfair labor practice case is begun by the filing of a charge. A charge
may be filed by an employee, an employer, a labor organization, or any other
person. Like petitions, charge forms, which are also available at Regional
Offices, must be signed, sworn to or affirmed under oath, and filed with the
appropriate Regional Office that is, the Regional Office in the area where the
alleged unfair labor practice was committed. Section 10 provides for the issuance of a complaint stating the
charges and notifying the charged party of a hearing to be held concerning the
charges. Such a complaint will issue only after investigation of the charges
through the Regional Office indicates that an unfair labor practice has in fact
occurred.
In certain limited circumstances
when an employer and union have an agreed-upon grievance arbitration procedure
that will resolve the dispute, the Board will defer processing an unfair labor
practice case and await resolution of the issues through that grievance
arbitration procedure. If the grievance arbitration process meets the Board’s
standards, the Board may accept the final resolution and defer that decision.
If the procedure fails to meet all the Board standards for deferral, the Board
may then resume processing of the unfair labor practice issues.
An unfair labor practice hearing
is conducted before an NLRB administrative law judge in accordance with the
rules of evidence and procedure that apply in the U.S. district courts. Based
on the hearing record, the administrative law judge makes findings and
recommendations to the Board. All parties to the hearing may appeal the
administrative law judge’s decision to the Board. If the board considers that
the party named in the complaint has engaged in or is engaging in the unfair
labor practices charged, the Board is authorized to issue an order requiring
such person to cease and desist from such practices and to take appropriate
affirmative action.
The 6-month rule limiting
issuance of complaint. Section
10(b) provides that “no complaint shall issue based upon any unfair labor
practice occurring more than 6 months prior to the filing of the charge with
the Board and the service of a copy thereof upon the person against whom such
charge is made.” An exception is made if the charging party “was prevented from
filing such charge by reason of service in the armed forces, in which event the
6-month period shall be computed from the day of his discharge.” It should be
noted that the charging party must, within 6 months after the unfair labor
practice occurs, file the charge with the Regional Office and serve copies of
the charge on each person against whom the charge is made. Normally service is
made by sending the charge by registered mail, return receipt requested.
Appeal to the General Counsel
if complaint is not issued.
If the Regional Director refuses to issue a complaint in any case, the person
who filed the charge may appeal the decision to the General Counsel in
Washington. Section 3(d) places in the General Counsel “final authority, on
behalf of the Board, in respect of the investigation of charges and issuance of
complaints.” If the General Counsel reverses the Regional Director’s decision, a complaint will be issued. If the
General Counsel approves the decision not to issue a complaint, there is no
further appeal.
Powers of the NLRB. To enable the NLRB to perform its duties
under the Act, Congress delegated to the Agency certain powers that can be used
in all cases. These are principally powers having to do with investigations and
hearings.
Powers concerning
investigations. As previously
indicated, all charges that are filed with the Regional Office are
investigated, as are petitions for representation elections. Section 11
establishes the powers of the Board and the Regional Offices in respect to
hearings and investigations. The provisions of Section 11(1) authorize the
Board or its agents to:
·
Examine and copy “any evidence of any person
being investigated or proceeded against that relates to any matter under
investigation or in question.”
·
Issues
subpoenas, on the application of any party to the proceeding, requiring the
attendance and testimony of witnesses or the production of any evidence.
·
Administer
oaths and affirmations, examine witnesses, and receive evidence.
·
Obtain
a court order to compel the production of evidence or the giving of testimony.
The Act is remedial, not
criminal. The National Labor
Relations Act is not a criminal statute. It is entirely remedial. It is
intended to prevent and remedy unfair labor practices, not to punish the person
responsible for them. The Board is authorized by Section 10(c) not only to
issue a cease-and-desist order, but “to take such affirmative action including
reinstatement of employees with or without back pay, as will effectuate the
policies of this Act.”
Affirmative action may be
ordered by the Board. The
object of the Board’s order in any case is twofold: to eliminate the unfair
labor practice and to undo the effects of the violation as much as possible. In
determining what the remedy will be in any given case, the Board has
considerable discretion. Ordinarily, its order in regard to any particular
unfair labor practice will follow a standard form that is designed to remedy
that unfair labor practice, but the Board can, and often does, change the
standard order to meet the needs of the case. Typical affirmative action of the
Board may include orders to an employer who has engaged in unfair labor
practices to:
Examples of affirmative action directed to
employers.
·
Disestablish an employer-dominated union.
·
Offer certain
named individuals immediate and full reinstatement to their former positions
or, if those positions no longer exist, to substantially equivalent positions
without prejudice to their seniority and other rights and privileges, and with
backpay, including interest.
·
On request,
bargain collectively with a certain union as the exclusive representative of
the employees in a certain described unit and sign a written agreement if an
understanding is reached.
Examples of affirmative action
directed to unions. Examples
of affirmative action that may be required of a union that has engaged in
unfair labor practices include orders to:
·
Notify
the employer and the employees that it has no objection to reinstatement of
certain employees, or employment of certain applicants, whose discriminatory
discharge, or denial of employment, was caused by the union.
·
Refund dues or
fees illegally collected, plus interest.
·
On request,
bargain collectively with a certain employer and sign a written agreement if
one is reached.
The Board’s order usually includes
a direction to the employer or the union or both requiring them to post notices
in the employer’s plant or the union’s office notifying the employees that they
will cease the unfair labor practices and informing them of any affirmative
action being undertaken to remedy the violation. Special care is taken to be
sure that these notices are readily understandable by the employees to whom
they are addressed.
Special Proceedings in Certain
Cases. Special proceedings
are required by the Act in certain kinds of cases. These include the
determination of jurisdictional disputes under Section 10(k) and injunction
proceedings under Section 10(1) and (j).
Proceedings in jurisdictional
disputes. Whenever it is charged
that any person has engaged in an unfair labor practice in violation of Section
8(b)(4)(D), the Board must hear and determine the dispute out of which the
unfair labor practice arises. Section 8(b)(4)(D) prohibits unions from striking
or inducing a strike to compel an employer to assign particular work to
employees in one union, or in one trade or craft, rather than another. For a
jurisdictional dispute to exist, there must be real competition between unions
or between groups of employees for certain work. In effect, Section 10(k)
provides an opportunity for the parties to adjust the dispute during a 10-day
period after notice of the 8(b)(4)(D) charge has been served. At the end of
this period if the parties have not submitted to the Board satisfactory
evidence that they have adjusted, or agreed on a method of adjusting, the
dispute, the Board is “empowered and directed” to determine which of the
competing groups is entitled to have the work.
The investigation of certain
charges must be given priority.
Section 10(1) provides that whenever a charge is filed alleging a violation of
certain sections of the Act relating to boycotts, picketing and work stoppages,
the preliminary investigation of
the charge must be given priority over all other types of cases in the Regional
Office where it is filed. The unfair labor practices subject to this priority
concerning the investigation are those defined in Section 8(b)(4)(A), (B), or
(C), all three subparagraphs of Section 8(b)(7), Section 8(e) and, where
appropriate, 8(b)(4)(D), Section 10(m) requires that second priority be given
to charges alleging violations of Section 8(a)(3), the prohibition against
employer discrimination to encourage or discourage membership in a union, and
Section 8(b)(2), which forbids unions to cause or attempt to cause such
discrimination.
Injunction proceedings under
Section 10(l). If the
preliminary investigation of any of the first priority cases shows that there
is reasonable cause to believe that the charge is true and that a complaint
should issue, Section 10(l) further requires the Board to petition a U.S.
district court to grant an injunction pending the final determination of the
Board. The section authorizes the court to grant “such injunctive relief or
temporary restraining order as it deems just and proper.” Another provision of
the section prohibits the application for an injunction based on a charge of
violation of Section 8(b)(7) (the prohibition on organizational or
recognitional picketing in certain situations) if a charge against an employer
alleging violation of Section 8(a)(2) has been filed and the preliminary
investigation establishes reasonable cause to believe that such charge is true.
Injunctive relief may be sought
in other cases. Section 10(j)
allows the Board to petition a Federal district court for an injunction to
temporarily prevent any unfair labor practice after a complaint has been issued
and to restore the status quo. pending the full review of the case by the
Board. This section does not require that injunctive relief be sought, but only
makes it possible for the Board to do so in cases when it is considered
appropriate.
Court Enforcement of Board
Orders—In the U.S. court of appeals. If an employer or a union fails to comply
with a Board order, Section 10(e) empowers the Board to petition the U.S. court
of appeals for a court decree enforcing the order of the Board enjoining
conduct that the Board has found to be unlawful. Section 10(l) provides that
any person aggrieved by a final order of the Board granting or denying in whole
or in part the relief sought may obtain a review of such order in any
appropriate circuit court of appeals. When the court of appeals hears a
petition concerning a Board order, it may enforce the order, remand it to the
Board for reconsideration, change it, or set it aside entirely. If the court of
appeals issues a judgment enforcing the Board order, failure to comply may be
punishable by fine or imprisonment for contempt of court.
Review by the U.S. Supreme
Court. In some cases the U.S.
Supreme Court may be asked to review the decision of a circuit court of
appeals, particularly when there is a conflict in the views of different courts
on the same important problem.
Conclusion
In this material the entire Act has been covered, but, of necessity, the
coverage has been brief. No attempt has been made to state the law in detail or
to supply you with a textbook on labor law. We have tried to explain the Act in
a manner intended to make it easier to understand what the basic provisions of
the Act are and how they may concern you. If it helps you to recognize and know
your rights and obligations under the Act, and aids in determining whether you
need expert assistance when a problem arises, its purpose will have been
satisfied. More than that, the objective of the Act will have been furthered.
The objective of the National
Labor Relations Act, to avoid or reduce industrial strife and protect the
public health, safety, and interest, can best be achieved by the parties or
those who may become parties to an individual dispute. Voluntary adjustment of
differences at the community and local level is almost invariably the
speediest, most satisfactory, and longest lasting way of carrying out the
objective of the Act.
Efforts are being made in all our
Regional Offices to increase the understanding of all parties about what the
law requires of them. Long experience has taught us that when the parties fully
understand their rights and obligations, they are more ready and able to adjust
their differences voluntarily. Seldom do individuals go into a courtroom, a
hearing, or any other avoidable contest, knowing that they are in the wrong and
that they can expect to lose the decision. No one really likes to be publicly
recorded as a law violator (and a loser too). Similarly, it is seldom that
individuals refuse to accept an informal adjustment of differences that is
reasonable, knowing that they can obtain no better result from the formal
proceeding, even if they prevail.
The consequences of ignorance in
these matters—formal proceedings that can be time consuming and costly, and
that are often followed by bitterness and antagonism—are economically wasteful,
and usually it is accurate to say that neither party really wins. It is in an
attempt to bring about more widespread awareness of the basic law and thus help
the parties avoid these consequences that this material has been prepared and
presented as a part of a continuing program to increase understanding of the
National Labor Relations Act.
NATIONAL LABOR RELATIONS BOARD
DIRECTORY*
Region 1 10 Causeway Street—6th Floor Boston MA 02222–1072 (617) 565–6700 |
Region 13 200 West Adams Street—Suite 800 Chicago IL 60606–5208 (312) 353–7570 |
Region 24 La Torre de Plaza, Suite 1002 525 F. D. Rossevelt Avenue San Juan PR 00918–1002 (787) 766–5347 |
Region 2 26 Federal Plaza—Room 3614 New York NY 10278–0104 (212) 264–0300 |
Region 14 1222 Spruce Street, Room 8.302 St. Louis MO 63103–2829 (314) 539–7770 |
Region 25 575 N. Pennsylvania Street—Room 238 Indianapolis IN 46204–1577 (317) 226–7381 |
Region 3 111 West Huron Street—Room 901 Buffalo NY 14202–2387 (716) 551–4931 |
Region 15 1515 Poydras Street—Room 610 New Orleans LA 70112–3723 (504) 589–6361 |
Region 26 1407 Union Avenue—Room 800 Memphis TN 38104–3627 (901) 544–0018 |
Region 4 615 Chestnut Street—7th Floor Philadelphia PA 19106–4404 (215) 597–7601 |
Region 16 819 Taylor Street—Room 8A24 Fort Worth TX 76102-6178 (817) 978-2921 |
Region 27 600 17th Street—7th Floor, North Tower Denver CO 80202–5433 (303) 844–3551 |
Region 5 The Appraisers Store Building 103 South Gay Street—8th Floor Baltimore MD 21202–4026 (410) 962–2822 |
Region 17 8600 Farley Street—Suite 100 Overland Park KS 66212–4677 (913) 967–3000 |
Region 28 234 North Central Avenue—Suite 440 Phoenix AZ 85004–2212 (602) 379–3361 |
Region 6 1000 Liberty Avenue—Room 1501 Pittsburgh PA 15222–4173 (412) 395–4400 |
Region 18 330 Second Avenue South Minneapolis MN 55401–2221 (612) 348–1757 |
Region 29 One Metro Tech Center (North) Jay Street and Myrtle Avenue—10th Floor Brooklyn NY 11201–4201 (718) 330–7713 |
Region 7 477 Michigan Avenue—Room 300 Detroit MI 48226–2569 (313) 226–3200 |
Region 19 915 2nd Avenue—Room 2948 Seattle WA 98174–1078 (206) 220–6300 |
Region 30 310 West Wisconsin Avenue—Suite 700 Milwaukee WI 53203–2211 (414) 297-3861 |
Region 8 1240 East 9th Street—Room 1695 Cleveland OH 44199–2086 (216) 522–3716 |
Subregional Office 36—Region 19 601 SW 2nd Avenue–Suite 1910 Portland OR 97204–3170 (503) 326–3085 |
Region 31 11150 West Olympic Blvd.—Suite 700 Los Angeles CA 90064–1824 (310) 235–7352 |
Region 9 550 Main Street—Room 3003 Cincinnati OH 45202–3271 (513) 684–3686 |
Region 20 901 Market Street–Room 400 San Francisco CA 94103–1735 (415) 356–5130 |
Region 32 1301 Clay Street—Room 300N Oakland CA 94612–5211 (510) 637–3300 |
Region 10 Harris Tower—Suite 1000 233 Peachtree St., NE Atlanta GA 30303–1531 (404) 331–2896 |
Subregional Office 37—Region 20 300 Ala Moana Boulevard—Room 7-245 Honolulu HI 96850–4980 (808) 541–2814 |
Region 33 300 Hamilton Boulevard—Suite 200 Peoria IL 61602–1246 (309) 671–7080 |
Region 11 Republic Square, Suite 200 4035 University Parkway Winston-Salem NC 27106–3325 (910) 631–5201 |
Region 21 888 Figueroa Street—9th Floor Los Angeles CA 90011–5449 (213) 894–5200 |
Region 34 280 Trumbull St.—21st Floor Hartford CT 06103–3503 (860) 240–3522 |
Region 12 South Trust Plaza—Suite 530 201 East Kennedy Boulevard Tampa, FL 336025824 (813) 228–2641 |
Region 22 20 Washington Place—5th Floor Newark, NJ 07102–3110 |
|
For addresses and telephone numbers of various subregional offices
please consult your local telephone directory or our web site at www.nlrb.gov.