Sunday, July 10, 2011

The National Labor Relations Act

The principal labor law in the United States is the National Labor Relations Act (NLRA). Before its passage in 1935, employers were free to spy on, interrogate, discipline, fire, and blacklist union members. Nonetheless, during the Great Depression workers took over factories, engaged in citywide general strikes, and battled police and private security forces. Some historians believe that Congress adopted the NLRA to steer labor struggles away from potentially revolutionary confrontations. 

The NLRA declares collective bargaining as an official policy of the United States.1 Employers are forbidden from discriminating against workers who join unions, exercise leadership, or engage in strikes.

The NLRA spurred organizing in the automobile, steel, electrical, meatpacking, rubber, and other industries. By 1945, union contracts covered a third of the private sector workforce.

In 1945 and 1946, a great wave of strikes swept the country. In response, business interests petitioned Congress to amend the NLRA. The Taft-Hartley Act of 1947 prohibited solidarity strikes, closed shops, and secondary picketing. The Landrum-Griffin Act of 1959 imposed further restrictions.

Key Provisions
The NLRA has 41 sections. The most important are Sections 7, 8, and 9.
Stripped to its essentials, Section 7 reads:


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 and protection.

Section 8(a) defines employer violations. These are known as “unfair labor practices” or “ULPs.” Five types of conduct are prohibited:
  • Interference, restraint, or coercion directed against union or other collective activity [Section 8(a)(1)]
  • Creation or domination of a labor organization [Section 8(a) (2)]
  • Discrimination against employees to discourage support for a union [Section 8(a)(3)]
  • Retaliation for filing ULP charges or cooperating with the NLRB [Section 8(a)(4)]
  • Refusal to bargain in good faith with union representatives [Section 8(a)(5)]
Threats and interference in union activity violate Section 8(a) (1). Discharges and suspensions violate Sections 8(a)(1) and (3). Unilateral changes, refusals to supply information, and denials of union assistance during investigatory interviews violate Sections 8(a)(1) and (5).

Section 8(b) proscribes union unfair labor practices, including unfair representation, bargaining in bad faith, and secondary picketing.

Section 9 sets out procedures for union certification elections.

National Labor Relations Board
The National Labor Relations Board (NLRB) enforces the NLRA. The NLRB has 52 regional and sub-regional offices. See addresses in Appendix A.

A five-person board heads the NLRB. The President of the United States, with Senate consent, appoints Board members to staggered five-year terms (one memberÕs term expires each year). The President also appoints a General Counsel, who is in charge of prosecuting unfair labor practices.

ULP Charges
Union attorneys, officers, and stewards can file unfair-labor-practice charges. The charge must be filed within six months of the event or conduct that forms the basis of the charge. Charge forms can be requested from an NLRB office or downloaded from the NLRB website.

Procedure. A ULP charge can be hand written or typed. The easiest method is to fill it in on the NLRB website. Print and sign it, then mail, fax, or hand deliver the charge to the Regional Office with jurisdiction over the worksite. The NLRB will serve a copy on your employer. (The union should do this itself if near the end of the six-month limitations period.)

NOTE: Despite instructions on the form, mailing or faxing multiple copies of ULP charges is not required; a single copy is sufficient.

Investigation. Board agents investigate ULP charges by interviewing witnesses and reviewing documents. When the investigation is complete, the agent and his supervisor make a recommendation to the Regional Director to issue a complaint, defer, or dismiss the charge.

Complaint. If the Regional Director concludes that a complaint is warranted, the Board agent will inform the employer and attempt to bring about a settlement. If these efforts fail, a complaint will issue and the matter will go to hearing before an Administrative Law Judge (ALJ). An NLRB attorney will prosecute. The ALJ can order the employer to cease its illegal conduct, make up for any harm, and post a notice promising not to commit further violations. The ALJ cannot impose imprisonment or issue a fine.

The employer or the union (or both) can appeal an ALJ decision to the five-member Board in Washington. Further appeals can be taken to a U.S. circuit court and the U.S. Supreme Court.

Deferral to arbitration. Under a policy called “deferral,” Regional Directors hold up investigations of ULP charges if the matter appears resolvable under the parties’ grievance and arbitration procedure. The NLRB justifies deferral as a way of conserving resources. Unions contend that the policy takes away their right to have ULPs rectified by the NLRB and forces them to incur arbitration expenses for matters that may not be covered by the contract. The NLRB applies its deferral policy to most ULPs by employers that occur while a contract is in effect. The following are exceptions:
  • Refusals to furnish requested information
  • Violations of Weingarten rights (see Chapter 5)
  • Retaliation against employees for filing NLRB charges Deferral may also be withheld if the deadline for a grievance has expired and the employer refuses to allow a late filing; if the employer has exhibited hostility to the grievance and arbitration process; or if animosity between the union and the grievant could affect the union’s handling of a matter.


Despite the likelihood that a Regional Director will defer, there are several reasons to file ULP charges:
  • The NLRB’s preliminary investigation may induce the employer to rectify the violation.
  • If the charge is deferred, the union grieves, and the case is taken to arbitration, the arbitrator will be more likely to apply NLRA precedent when deciding the matter.
  • If the arbitrator rules against the grievance, the union can ask the Regional Director to revoke deferral, reopen the ULP investigation, and issue a complaint.2
Dismissal. In addition to lack of merit, a Regional Director can dismiss a ULP charge because the violation is technical, minor, or of limited duration, and no other meritorious ULP charges have been filed against the employer for the past several years.3

Click to enlarge.
Questions and Answers

FILLING IN CHARGE FORM
Q. One part of the NLRB charge form is confusing. Question 1h asks for the subsections of Section 8(a) that the employer has violated. What if we are not sure of the correct numbers?
A. Type “all,” or call the Regional office for assistance.

DESCRIBING VIOLATION
Q. When completing the “Basis of Charge” section of the ULP form, should we describe the violation in detail?
A. No. A sentence or two is usually sufficient. Do not list your witnesses.

CATCH-ALL
Q. Why does the second paragraph of the sample charge above allege other violations “over the past six months”?
A. During its investigation, the Region may discover violations beyond those listed on the face of the charge. By including a catch-all claim going back the maximum period, you enable the NLRB to prosecute these infractions.

UNION POINTER: If the Region decides to dismiss your charge, the Board agent will probably ask you to accept a “short form” dismissal letter. If you intend to appeal, ask for the “long form” instead. Forcing the Region to state its reasons for dismissal will help you in framing the appeal. But be warned: A copy of the letter will be sent to your employer, who may introduce it at an arbitration proceeding.

SIX-MONTH RULE
Q. A year ago the employer ended employee discounts without prior notice to the union. For several months after, they gave conflicting signals about their plans. Is it too late to file a ULP charge?
A. Not necessarily. The NLRB strictly enforces its six-month filing deadline, but it does not start the period until the union has Òclear and unequivocal noticeÓ that the Act has been violated.4 If your employer was ambiguous about its intentions -- for example, making promises to reconsider its decision -- he filing period may still be in open.

BOARD ACTION
Q. If we win before an ALJ and the employer appeals, how long could it take before the Board issues a ruling?
A. Two years, or even longer.

UNSYMPATHETIC DIRECTOR
Q. The NLRB Director in our region does not take complaints seriously. She dismisses union ULP charges on nit-picking grounds yet when an employer files a charge, she rushes to court for an injunction. What can we do about her?
A. One recourse is to appeal dismissals to the NLRB General Counsel. Other measures include meeting with the Director, complaining to a congressperson or senator, and picketing the Regional office.

TERRITORIES
Q. Does the NLRA apply to private sector workers in Puerto Rico and the Virgin Islands?
A. Yes.

UNION POINTER: Several techniques can help to persuade a Regional Director to issue a complaint:
• Telephone the Board agent assigned to the charge; offer to come in for a face-to-face interview.
• Inform the agent of ULPs by the employer in previous years.
• Volunteer to bring in witnesses.
• Call periodically to ask how the investigation is going and to find out if you can do anything to help. Inform the agent of Board decisions that support your position.
• If you have trouble with the agent, or if the agent seems indifferent, speak to the agentÕs supervisor.
• If the agent asks you to withdraw your charge, ask if the Regional Director has reviewed the matter. If not, tell the agent that you want the Director to decide the case.
• Ask the Regional Director to meet in person.


Notes
1. 29 U.S.C. §151. Note: The NLRA was initially known as the Wagner or Wagner-Connery Act, in recognition of its congressional sponsors. Some call it the Taft-Hartley Act because of amendments sponsored by Senator Taft and Congressman Hartley in 1947. Another title is the Labor Management Relations Act (LMRA).
2. For cases revoking deferral, see Ceiba-Geigy Pharmaceuticals Division, 264 NLRB 1013, 1016 (1982) (unilateral change); Union Fork & Hoe Co., 241 NLRB 907, 907-908 (1979) (discharge of steward); Garland Coal & Mining Co., 276 NLRB 963, 965 (1985) (discharge of union president). Note: A Regional Director may not revoke deferral unless the arbitrator’s decision is “clearly repugnant” to the policies and purposes of the NLRA. Olin Corp., 268 NLRB 573, 574 (1984).

3. See GC Memo 02-08 (September 18, 2002).

4. See Sterling Nursing Home, 316 NLRB 413, 416 (1995).

7 comments:

  1. Union attorneys, officers, and stewards can file unfair-labor-practice charges.

    So too, can Employees file charges against one or both of - the Employer OR the Union.

    Individual charges can be dismissed. Two or more individuals filing is a protected/concerted activity - and charges cannot be dismissed.

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  3. Mastro 250 US 270 (1956) & the UBCJA, the Nations highest Court stated:

    "This contract was made in the light of that declared policy. A similar dual purpose is emphasized as follows in 1 of the National Labor Relations Act, as amended:

    "It is hereby declared to be the policy of the United States to eliminate the causes of certain substantial obstructions to the free flow of commerce and to mitigate and eliminate these obstructions when they [350 U.S. 270, 280] have occurred 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." 61 Stat. 137, 29 U.S.C. 151. See also, the declaration of policy in 1 (b) of the Labor Management Relations Act, 1947, 61 Stat. 136, 29 U.S.C. 141 (b).

    The two policies are complementary. They depend for their foundation upon assurance of "full freedom of association." Only after that is assured can the parties turn to effective negotiation as a means of maintaining "the normal flow of commerce and . . . the full production of articles and commodities . . . ." 61 Stat. 136, 29 U.S.C. 141 (b).

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