Unfair Labor Practices by Unions

Unfair Labor Practices by Unions

An employer, a union or an individual can file unfair labor practice charges with the Board’s regional office for the region in which the unfair labor practice has occurred. When an unfair labor practice charge is filed, the appropriate regional office conducts an investigation to determine whether there is reasonable cause to believe the NLRA has been violated. If the regional director determines that the charge lacks merit, it will be dismissed unless the charging party decides to withdraw the charge. A dismissal may be appealed to the General Counsel’s office in Washington, D.C. If the regional director finds reasonable cause to believe a violation of the NLRA was committed, the director will seek a voluntary settlement to remedy the alleged violations. If these settlement efforts fail, a formal complaint is issued and the case goes to hearing before an NLRB administrative law judge (ALJ). The ALJ issues a written decision, which may be appealed to the NLRB for a final agency determination. That final determination is subject to review in the federal circuit courts of appeals. Section 8(a) of the NLRA lists the unfair labor practices of employers and Section 8(b) lists those of labor organizations. Section 8(e) lists an unfair labor practice that can be committed only by an employer and a labor organization acting together. You can find all references to sections of the NLRA at 29 U.S.C. Section 158.

Overview

Unfair Labor Practices of Unions: Union unfair labor practices largely parallel those of employers, with some exceptions that relate to the power that unions may attempt to influence over their members and over employers other than those whose employees they represent. The exceptions prohibit conduct that:

Discriminates or retaliates against employees who engage or refuse to engage in union activity or who use the NLRB’s processes
Interferes with the free selection of a union as collective bargaining representative
Inhibits the collective bargaining process
Involves inappropriate parties in labor disputes
Involves an illegal strike

Restraint and Coercion of Employees:
Section 8(b)(1)(A) of the NLRA forbids a labor organization or its agents “to restrain or coerce employees in the exercise of the rights guaranteed in section 7.” Union conduct that is reasonably calculated to restrain or coerce employees in their Section 7 rights violates Section 8(b)(1)(A) regardless of 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. 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.
Making or enforcing illegal union-security agreements or hiring agreements that condition employment on union membership violates Section 8(b)(1)(A), because such action restrains or coerces employees in their Section 7 rights as well as Section 8(b)(2).
A union 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 it takes or withholds action on their behalf because of their union activities, refusal to support or engage in union activities or for an 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 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 must address matters of legitimate concern to unions, such as encouraging members to support a lawful strike or participation in union meetings. 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/she resigns. Examples of Section 8(b)(1)(A) violations include:

Mass picketing in such numbers that non-striking employees are physically barred from entering the plant
Acts of force or violence on the picket line or in connection with a strike
Threats of bodily injury to non-striking employees
Threats to employees that they will lose their jobs unless they support the union’s activities
Statements to employees who oppose the union that the employees will lose their jobs if the union wins a majority in the plant
Entering into an agreement with an employer that recognizes the union as exclusive bargaining representative before it has been chosen by a majority of the employees
Fining or expelling members for crossing a picket line that is unlawful under the NLRA or that violates a no-strike agreement
Fining employees for crossing a picket line after they resigned from the union
Fining or expelling members for filing unfair labor practice charges with the board or for participating in an investigation conducted by the board
Refusing to process a grievance in retaliation against an employee’s criticism of union officers
Maintaining a seniority arrangement with an employer, under which seniority is based on the employee’s prior representation by the union elsewhere
Rejecting an application for referral to a job in a unit represented by the union based on the applicant’s race or union activities

Union Refusal to Bargain in Good Faith:
Section 8(b)(3) makes it illegal for a labor organization that represents the employer’s workers to refuse to bargain in good faith with that employer about wages, hours and other conditions of employment. This section imposes on labor organizations the same duty to bargain in good faith imposed on employers by Section 8(a)(5). Although a union’s contract negotiators might try to establish wages and benefits comparable to those contained in other bargaining agreements in the area, the union may not insist on such terms without giving the employer an opportunity to bargain about the terms. When a union bargains with a group of employers in a multi-employer bargaining unit, the union may withdraw at any time from bargaining on that basis and bargain with one of the employers individually if the individual employer and the multi-employer group agree to the union’s withdrawal. In the absence of employer consent, a union may withdraw from multi-employer bargaining by giving the employers notice of its withdrawal near the expiration of the agreement but before bargaining on a new contract has begun. Section 8(b)(3) also requires the union to carry out its bargaining duty fairly with respect to the employees it represents. A union violates Section 8(b)(3) if it negotiates a contract with racially discriminatory provisions, or if it refuses to handle grievances under the contract for irrelevant or arbitrary reasons. Examples of other Section 8(b)(3) violations include:

Insisting on including illegal provisions in a contract, such as a closed shop or a discriminatory hiring hall
Refusing to negotiate on a proposal for a written contract
Striking against an employer who bargained, and continues to bargain, on a multi-employer basis to compel it to bargain separately
Refusing to meet with the attorney designated by the employer as its representative in negotiations
Terminating an existing contract and striking for a new one without notifying the employer, the Federal Mediation and Conciliation Service and the state and territorial mediation services, if any
Conditioning the execution of an agreement on inclusion of a non-mandatory provision, such as a performance bond
Refusing to process a grievance because of the race, sex or union activities of an employee for whom the union is the statutory bargaining representative

Prohibited Strikes and Boycotts: Unions do not have an absolute right to call a strike. Section 8(b)(4) prohibits a labor organization from engaging in strikes or boycotts or taking other specified actions to accomplish certain “objects,” as listed in the NLRA. A union commits an unfair labor practice if it takes any actions listed in clauses (i) and (ii) as a means of accomplishing any of the objects listed in subparagraphs (A)-(D) of Section 8(b)(4). Congress’ purpose in drafting Section 8(b)(4) was to preserve the right of labor organizations to bring pressure to bear on offending employers in primary labor disputes and shield unoffending employers and others from pressure in controversies not their own. Clauses (i) and (ii) forbid a union from:

Engaging in a strike or inducing or encouraging 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”
Threatening, coercing or restraining any person engaged in commerce or in an industry affecting commerce

Section 8(b)(4)(i) essentially makes it illegal, under certain conditions, for a union to:

Engage in a strike or work stoppage
Induce or encourage others to engage in a strike or work stoppage

Section 8(b)(4)(ii) prohibits threats, coercion and restraint. But the activities specified in subsections (i) and (ii) will not rise to the level of an unfair labor practice under section 8(b)(4) unless they have one of the following secondary objectives:

Require an employer or self-employed person to join any union or employer organization or to force an employer to enter a “hot cargo” agreement prohibited by Section 8(e) [see Section 8(b)(4)(A)].
A union pickets or threatens to picket an employer (one not in the construction and garment industries) to compel that employer to enter into an agreement whereby the employer will only do business with people who have an agreement with a union.

Enforce a “secondary boycott.” A secondary boycott occurs if a union has a dispute with Company A and 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. Specifically, Section 8(b)(4)(B) states the following is unlawful union activity:

Forcing or requiring any person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person; forcing or requiring any other employer to recognize or bargain with a labor organization as the representative of his employees unless such labor organization has been certified as the representative of such employees under the provisions of section 9 [section 159 of this title], if nothing contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing.

Examples of Section 8(b)(4)(B) violations include the following:

Picketing an employer to force it to stop doing business with another employer who refused to recognize the union
Asking the employees of a plumbing contractor not to work on connecting air-conditioning equipment manufactured by a nonunion employer that the union is attempting to organize
Urging employees of a building contractor not to install doors 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 designated as “unfair”
Unlawful action against a secondary employer where the union’s object is recognition by the primary employer.
Force or require any employer to recognize or bargain with a particular labor organization as the representative of his employees if another labor organization has been certified as the representative of such employees [See Section 8(b)(4)(C)]
Force 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” [See Section 8(b)(4)(D)]

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. A union may not coerce a member who acts as a representative of the employer in the adjustment of grievances.
Examples of Section 8(b)(1)(B) violations include:

Insisting on meeting only with a company’s owners, refusing to meet with the attorney the company engaged to represent the company in contract negotiations and threatening to strike to force the company to accept its demands
Striking on members of an employer association that bargains with the union as the representative of the employers to compel the employers to sign individual contracts with the union
Insisting, during contract negotiations, that the employer agree to accept working conditions that will be established by a bargaining group to which the employer does not belong
Fining or expelling supervisors for the way they apply the bargaining contract while carrying out their supervisory functions or for crossing a picket line during a strike to perform their supervisory duties

Causing or Attempting to Cause Discrimination: Section 8(b)(2) makes it an unfair labor practice for a labor organization to cause or attempt to cause an employer to discriminate against an employee in violation of Section 8(a)(3). The section is violated by agreements or arrangements with employers, other than lawful union-security agreements, that condition employment or job benefits on union membership, on the performance of union membership obligations or on arbitrary grounds. But union action that causes detriment to an individual employee 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 the action is based on some other legitimate purpose. 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.
Contracts or informal arrangements with a union under which an employer gives preferential treatment to union members also violate Section 8(b)(2). However, an employer and a union may agree that the employer will hire new employees exclusively through the union hiring hall if there is no discrimination against nonunion members on the basis of union membership obligations. In setting referral standards, a union may consider legitimate aims such as sharing available work and easing the impact of local unemployment. The union may also charge referral fees if the amount of the fee is reasonably related to the cost of operating the referral service. 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, also 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, a union may not lawfully require the discharge of employees under the provision unless they were informed of the union-security agreement and their specific obligation under it. 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 lawfully required, such as assessments, fines and penalties. Other examples of Section 8(b)(2) violations include:

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 anti-union acts
Refusing referral or giving preference on the basis of race or union activities when 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

Political Speech: Even though employee speech is generally not protected in private workplaces, the NLRA nevertheless may protect both union and non-union employees who speak out about employment issues. Specifically, the NLRA protects employees from discipline if they have engaged in conduct relating to their wages, hours or working conditions. In addition, protection is extended to advocacy in which there is “direct nexus between the specific issue” being advocated and “a specifically identified employment concern of the participating employees.” So, for example, engaging in protests regarding minimum wage issues could be connected to the employee’s pay. In 2008, after a wave of unfair labor practice charges filed by employees who were disciplined for leaving work or for being absent to engage in political protests, the NLRB issued guidelines that explained when political activity is protected:

Non-disruptive political advocacy for or against a specific issue related to a specific employment concern occurring during non-work time and in non-work areas is generally protected
On-duty political advocacy related to a specifically identified employment concern can be subject to restrictions imposed by an organization’s work rules as long as they are lawful and neutrally applied.
Leaving or stopping work to engage in political advocacy may also be subject to a company’s restrictions

Retaliation for Filing Charges or Giving Testimony: Section 8(a)(4) of the NLRA makes it an unfair labor practice for an employer “to discharge or otherwise discriminate against an employee because he/she has filed charges or given testimony under [the] Act.” An employer violates the Act if the employer discharges, lays off or engages in other forms of discrimination in working conditions against employees who filed charges with the NLRB, supplied affidavits to NLRB investigators or testified at NLRB hearings. Violations of this section in most cases also constitute violations of Section 8(a)(3).