Unfair Labor Practices (ULPs)



Unfair Labor Practices (ULPs)

Professor Bruce Fortado

University of North Florida

MAN 4401/6411 Labor Relations

The National Labor Relations Act (Wagner), 1935, and the subsequent revisions in the Labor Management Relations Act (Taft-Hartley), 1947, created the prevailing employer and union unfair labor practices (ULPs).

The NLRA, Section 7 provides “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 (or refrain from) concerted activities for the purpose of collective bargaining or other mutual aid or protection.”

The employer ULPs are listed in Section 8(a) of the NLRA.

Section 8(a) (1). It shall be an unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed by section 7.”

What does this passage refer to?

• Threatening to terminate or otherwise harm employees if they should join or vote for a union.

• Provoking violence.

• Threatening to close down the plant if the union prevails in an election.

• Questioning employees about their union sympathies and activities under threatening circumstances.

• Spying on union members and/or organizers, or giving the impression of spying.

• Giving an unscheduled raise shortly before a representation election.

• Withholding a raise that normally would have been given.

Section 8(a) (2). It shall be an unfair labor practice for an employer “to dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it.”

What does this passage refer to?

• Providing finances, a lawyer or other support for an “employee organization.”

• Exerting pressure on employees to join a specific union.

• Recognizing an independent “inside” union over a national union.

• Permitting one union access to company property to solicit members, while refusing access to another union.

Section 8(a) (3). It shall be an unfair labor practice for an employer to discriminate “in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization.”

What does this passage refer to?

• Discharging employees who encouraged others to join a union.

• Refusing to reinstate employees who took part in a lawful strike when they are qualified for openings.

• Giving strike replacements “superseniority,” which erodes the rights of lawful strikers.

• Closing a facility after the union won an election, discharging the workers, and opening an operation doing the same thing elsewhere, hiring a new staff.

• Refusing to hire qualified applicants, because they are or have been union members.

Section 8(a) (4). It shall be an unfair labor practice for an employer “to discharge or otherwise discriminate against employees because they have filed charges or given testimony under this Act.”

Section 8(a) (5). It shall be an unfair labor practice for an employer “to refuse to bargain collectively with the representatives of the employees.”

“Collective bargaining” is more specifically described in Section 8(d): “to 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, but such obligation does not compel either party to agree to a proposal or require the making of a concession.”

What do these passages refer to?

• Initially presenting a firm, fair and final offer, and then going directly to the employees to sell them on it (Boulwarism).

• Surface bargaining, meaning making few if any concessions, not having a person with sufficient authority to make decisions at the table and delaying.

• After claiming an inability to pay, failing to provide the requested relevant financial information to confirm the truth of this claim.

• An employer unilaterally implementing a drug and alcohol policy.

• Refusing to meet with union negotiators, because they threatened to go on strike.

• Insisting that the union negotiating team be only composed of current employees (not allowing any staff or legal support to be present).

• Insisting the union drop a request for a union shop or no more negotiation sessions will be held.

• Announcing a wage increase without consulting with the union.

• Subcontracting the work done by certain employees without notifying the union representing the impacted employees and allowing them an opportunity to bargain over the change in their working conditions.

The union ULPs are listed in Section 8(b) of the LMRA.

Section 8(b) (1) (A) It shall be an unfair labor practice for a labor organization “to restrain or coerce employees in the exercise of the rights guaranteed in section 7.” However, it was not intended to “impair the rights of a labor organization to prescribe its own rules” concerning membership in the labor organization.

What do these passages refer to?

• Mass picketing in such numbers that employees who want to enter the workplace are prevented from doing so.

• Threatening employees with adverse consequences if they do not vote for the union and the union eventually wins the representation election.

• Threatening non-striking employees or replacement workers.

• Committing acts of violence during a strike.

• Obtaining recognition as the exclusive bargaining representative of the employees from the employer, when the organization has not been chosen by a majority of the employees.

• Fining or expelling members for filing a ULP.

• Failing to process a grievance in retaliation for an employee criticizing union leaders.

Section 8(b) (2). It shall be an unfair labor practice for a labor organization “to cause or attempt to cause an employer to discriminate against an employee in violation of subsection (a) (3) or to discriminate against an employee with respect to whom membership in such organization has been denied or terminated on some ground other than his failure to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership.”

What do these passages refer to?

• Getting an employer to discharge employees because they opposed the union leadership or spoke against a contract endorsed by the union leadership.

• Making a contract where the employer will only hire members of the union or people the union leaders endorse.

• Having an employer give preference to union activists.

Section 8(b) (3). It shall be an unfair labor practice for a labor organization “to refuse to bargain collectively with an employer.”

What does this passage refer to?

• Refusing to meet with an attorney the employer has designated as its representative.

• Insisting on a contract provision that is illegal (closed shop, etc.).

• Striking an employer who has historically bargained on a multi-employer basis to compel it to bargain individually.

• Conditioning an agreement on including a non-mandatory provision.

Section 8(b) (4). It shall be an unfair labor practice for a labor organization to engage in secondary boycotts and certain types of strikes and picketing to force recognition of an uncertified union, substitute another bargaining representative for one certified by the NLRB, and deal with jurisdictional disputes.

What does this passage refer to?

• Picketing an employer to force him to cease doing business with another employer who has not yet recognized the union.

• Directing union truckers not to service a plant where another union was selected in an NLRB election.

• Picketing a retail chain to compel the employer to use only delivery services that have an agreement with said union.

Section 8(b) (5). It shall be an unfair labor practice for a labor organization “to require of employees … the payment, as a condition precedent to becoming a member of such organization, of a fee in an amount which the Board finds excessive or discriminatory under all the circumstances.”

Section 8(b) (6). It shall be an unfair labor practice for 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 an exaction, for services, which are not performed or not to be performed.”

Section 8(b) (7). It shall be a unfair labor practice for a labor organization that has not been certified as the bargaining agent to picket or threaten to picket an employer for the purpose of obtaining recognition from the employer and acceptance by the employees when a certified union exists and an election has been conducted in the past 12 months, or a representation petition has not been filed with the Board within a reasonable period of time not to exceed 30 days.

Section 8(e). Both labor organizations and employers are forbidden to enter into “hot cargo agreements.” These are agreements not to handle, use sell, transport or deal on any of the products of another employer as required or forced by the labor organization. Both the construction and garment industry are exempt from the conditions of this section.

Section 8(f). A union and employer in the construction industry may enter into an agreement requiring employees to join the union within 7 days of hire. The parties can adopt this provision without having established the majority status of the union.

An unfair labor practice charge must be filed with the NLRB within six months of the date of the occurrence. An agent will be assigned to investigate. The Regional Director will try to resolve the matter if it is found to have substance. If no resolution is achieved, a full hearing will be conducted in front of an Administrative Law Judge (ALJ). If the ALJ finds an unfair labor practice has occurred, he will issue a finding and a remedial order. If this decision is appealed, the NLRB will hear the case. NLRB decisions may be enforced via federal district court. Appeals can be filed with federal appeals court and ultimately the Supreme Court. The vast majority of cases are settled at the lower levels.

There are a number of other points one should keep in mind. If a union can establish a strike is an unfair labor practice strike, rather than just an economic strike, it is very advantageous. In an unfair labor practice strike, all the workers are entitled to reinstatement and back pay. In an economic strike, those who strike and were replaced will not receive back pay, and may have to wait for an opening to arise, since the employer often has brought in strike replacements.

If an employer has bargained to an impasse, the last offer may be communicated to the employees and implemented without fear of it being deemed an unfair labor practice. This may dissuade some workers from striking, and lure replacement workers.

The concerted activities mentioned in Section 7 refer to work related activities. This is normally broadly interpreted. However, illegal acts, such as strike violence, can result in discharges that withstand ULP challenges. The Weingarten rule refers to the right of an employee who is undergoing questioning that might result in disciplinary action has to request a union representative be present. This representative may serve as a witness, and advise on what the person should and should not say. However, the union representative has a very limited role at this point, and may not impede the process.

Union members may resign from a union during a strike and return to work without having to fear a fine. Imposing such a fine would be a ULP.

Actions by employees that were not sanctioned by the union cannot subject the individual to an unfair labor practice charge.

After prevailing in a representation election, the union must request to bargain in order to activate the employer obligation to bargain in good faith. The NLRB uses a “totality of conduct” test to decide if a party has bargained in good faith. Since one is not obligated to make a concession, how is bad faith bargaining determined? A willingness to make concessions on certain issues may show good faith, assuming all the concessions involved are not trivial in nature. Making counterproposals on issues where there is disagreement often indicates a party is bargaining in good faith. One should not tell the other side to take-it-or-leave-it in an initial session, and then refuse to meet or cancel the scheduled sessions. Even simply insisting on continuing existing practices could be interpreted as not being open minded and responsive.

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