Unfair Labor Practices

Scope

Unfair labor practices generally center on employers or unions interfering with, restraining, or coercing employees in the exercise of rights relating to organizing, forming, joining, or assisting a labor organization for collective bargaining purposes, or engaging in concerted activities, or refraining from any such activity.

Regulatory citations

• None

Key definitions

• Hot cargo: Goods or materials going to, or coming from, an employer designated by the union as “unfair.”

Summary of requirements

Examples of employer conduct that violate the NLRA. The unfair labor practices of employers are listed in Section 8(a) of the National Labor Relations Act. Examples of employer conduct that violate the NLRA include:

• Threatening employees with loss of jobs or benefits if they join or vote for a union or engage in protected concerted activity.
• Threatening to close the business or facility if employees select a union to represent them.
• Questioning employees about their union sympathies or activities in circumstances that tend to interfere with, restrain or coerce employees in the exercise of their rights under the Act.
• Promising benefits to employees to discourage their union support.
• Transferring, laying off, terminating, or assigning employees more difficult work tasks because they engaged in union or other protected concerted activity.

Examples of union conduct that violate the NLRA. The unfair labor practices of labor organizations are listed in Section 8(b) of the Act. Examples of union conduct that violate the NLRA include:

• Threats to employees that they will lose their jobs unless they support the union’s activities.
• Refusing to process a grievance because an employee has criticized union officers.
• Fining employees for engaging in protected activity including after their resignation from the union.
• Seeking the discharge of an employee for not complying with a union shop agreement when the employee has paid or offered to pay a lawful initiation fee and periodic dues.
• Refusing referral or giving preference in a hiring hall on the basis of race or protected activities.

Conduct between the union and labor organization. Section 8(e) of the NLRA lists an unfair labor practice that can be committed only by an employer and a labor organization acting together. This rule, 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 stated 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. 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.

How are unfair labor practice cases processed? When an unfair labor practice charge is filed, the appropriate field office of the National Labor Relations Board (NLRB) conducts an investigation to determine whether there is reasonable cause to believe the Act has been violated. If the NLRB 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 law has been committed, the region seeks 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. The judge issues a written decision that may be appealed to the five-Member Board in Washington for a final agency determination. The Board’s decision is subject to review in a U.S. Court of Appeals. Depending upon the nature of the case, the General Counsel’s goal is to complete investigations and, where further proceedings are warranted, issue complaints if settlement is not reached within 7 to 15 weeks from the filing of the charge. Of the total charges filed each year [about 35,000], approximately one-third are found to have merit of which over 90% are settled.

Court orders. Section 10(j) of the National Labor Relations Act empowers the NLRB to petition a federal district court for an injunction to temporarily prevent unfair labor practices by employers or unions and to restore the status quo, pending the full review of the case by the Board. In enacting this provision, Congress was concerned that delays inherent in the administrative processing of unfair labor practice charges, in certain instances, would frustrate the Act’s remedial objectives. In determining whether the use of Section 10(j) is appropriate in a particular case, the principal question is whether injunctive relief is necessary to preserve the Board’s ability to effectively remedy the unfair labor practice alleged, and whether the alleged violator would otherwise reap the benefits of its violation.

Under NLRB procedures, after deciding to issue an unfair labor practice complaint, the General Counsel may request authorization from the five-member Board to seek injunctive relief. After considering documents submitted by the General Counsel, the Board votes on whether to authorize injunctive proceedings. If a majority votes to do so, the General Counsel, through the Counsel’s regional staff, files the case with an appropriate federal district court. The court may grant such temporary relief as it deems “just and proper.” The order, subject to appeal in a U.S.

Court of Appeals, remains in effect while the Board fully adjudicates the merits of the unfair practice complaint or until the case is settled.

In addition, Section 10(l) of the Act requires the Board to seek a temporary federal court injunction against certain forms of union misconduct, principally involving “secondary boycotts” and “recognitional picketing.” Finally, under Section 10(e), the Board may ask a federal court of appeals to enjoin conduct that the Board has found to be unlawful.