Unfair labor practices and the National Labor Relations Act
By Joe Twarog
Associate Director, Labor Education & Training
Union members are familiar with the process of when and how to file a grievance. A grievance addresses employer violations of the contract. However, in the private sector, workers are also able to file unfair labor practice (ULP) charges if the employer violates the National Labor Relations Act (NLRA). In the public sector in Massachusetts, employer violations are addressed in the state labor law, or Chapter 150(e).
The grievance procedure is an internal process, unique to that particular contract and between the parties: the union and the employer. The process remains internal until the final step of the procedure in which an arbitrator hears the case and makes a final ruling on the matter.
A ULP charge claims that there has been a violation of labor law, and is litigated in an entirely different forum. The NLRA is administered and enforced by the National Labor Relations Board (NLRB or Board), a Federal agency.
The difference between a grievance and a ULP is that a grievance involves a violation of the collective bargaining agreement while a ULP involves a violation of Federal law. Both a grievance and an unfair labor practice charge can be filed simultaneously and pursued at the same time through separate avenues. However, not all contract violations are violations of the NLRA and vice versa. However, the NLRB all too often defers a ULP charge to arbitration (the so-called Collyer doctrine).
This NLRB deferral doctrine means that if there is a contract violation, the NLRB directs the union to complete the grievance and arbitration procedure before the NLRB continues its investigation of the charge. Once the arbitration award is final, the NLRB may continue pursuing the charges alleged in the ULP charge. This always means extensive delays in the ULP process.
Filing a ULP is not any more difficult than filing a grievance form. The ULP form calls for (in addition to the usual basic identification information) a statement of what the union believes occurred that is a violation of the law and a citation of what section of the NLRA was violated.
Examples of NLRA violations are:
- Failure to provide information requested by the union to investigate a grievance or for collective bargaining
- Unilateral changes of working conditions
- Discrimination for union activity
- Threatening employees of a loss of jobs if they support the union
- Questioning employees about their union sympathies in such a manner that impacts their rights
- Formation of a “company union” that undercuts the exclusive representative of the workers by a real union
Private sector employer violations
Section 8(a) of the NLRA defines employer violations. Five types of conduct are prohibited. The examples listed above fall under one of these sub-sections of the law.
- Interference, restraint, or coercion directed against union or other collective activity
- Creation or domination of a labor organization
- Discrimination against employees to discourage support for a union
- Retaliation for filing ULP charges or cooperating with the NLRB
- Refusal to bargain in good faith with union representatives
Timelines for filing
A charge claiming a violation of labor law must be filed within six months of the event giving rise to the violation. However, it is always advisable to file the charge as early as possible after the event, especially in the case of a unilateral change in working conditions instituted by the employer.
The procedure for filing a charge with the NLRA begins the process. A charge simply is a claim that the law has been violated. It is the starting point. It involves filling out a form (available on line) that is not unlike a standard grievance form. The key difference is that instead of citing a contract article that was violated, one cites the section of the labor law violated – as listed above. There is also a statement of fact—what the union claims that the violation is, including when the event occurred.
An investigation by the NLRB follows to determine probable cause— whether there is in fact a violation. The NLRB assigns an agent who will take a written statement from the union witness(es). The NLRB will then take a statement from the employer also. The NLRB will then review the findings and decide whether or not to issue a “complaint”. This complaint signifies that the NLRB believes that there is probably a violation of law. If the board finds that there are insufficient facts to uphold the union’s claim of a violation of law, it will advise the Union and then the union can withdraw the charge, or the board will dismiss the charge.
Once a complaint issues, the employer is put on notice that the violation cited by the union is justified and will proceed to a formal trial or hearing in which an NLRB administrative law judge will hear the case and make a ruling. Another difference from the grievance procedure is that at this point, the board takes the case over and becomes the advocate for the union. This is unlike the grievance process in which the union decides whether or not to advance a case to the next step.
NLRB trials in fact are rare. In most cases when a complaint is issued, the board will explore terms of a settlement between the parties. If a settlement is reached, an official NLRB posting is published and then posted in a prominent area of the employer for 60 days. All too often these are so-called non-admission settlements, meaning that the employer does not admit to any violations of the law, but states that it will not do so again.
Why file an unfair labor practice
The NLRA is not a punitive law. This means that the penalties for violations are often mild. Some employers and union-busters may simply view the NLRA as an annoyance and factor in potential violations and any rare remuneration (i.e. back pay) involved as the “cost of doing business.” The process is often slow and frustrating, but nonetheless, it holds the employer accountable for violations and holds them up to a microscope. The simple act of filing a ULP charge is newsworthy, and also becomes a public record for all to see. It is a powerful statement by the union and provides an additional avenue and source of leverage to control the employer.