1

A guide to basic law and procedures

under the

NATIONAL

LABOR

RELATIONS

ACT
2

This is a revised edition of a pamphlet originally issued in 1962. It provides

a basic framework for a better understanding of the National Labor Relations

Act and its administration.

A special chart that arranges systematically the types of cases in which an

employer or a labor organization may be involved under the Act, including

both unfair labor practice cases and representation election proceedings, appears

in the booklet.

U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON . . 1997

For sale by the Superintendent of Documents, U.S. Government Printing Office

Washington, D.C. 20402
3

A guide to basic law and procedures

under the

NATIONAL LABOR

RELATIONS ACT

Prepared in the Office of the General Counsel

NATIONAL LABOR RELATIONS BOARD
iii

Table of Contents

Summary of the Act 1–2

Purpose of the Act, 1 . . . What the Act provides, 1 . . . How the Act is enforced,

1 . . . How this material is organized, 1.

The Rights of Employees 2–6

The Section 7 Rights, 2 . . .

Examples of Section 7 rights, 2.

Union Security, 2 . . .

Union-security agreements, 3 . . . Requirements or union-security Agreements, 3 . . .

Prehire agreements in the construction industry, 3.

The Right to Strike, 4 . . .

Lawful and unlawful strikes, 4 . . . Strikes for a lawful object, 5 . . . Economic strikers

defined, 5 . . . Unfair labor practice strikers defined, 5 . . . Strikes unlawful because of

purpose, 5 . . . Strikes unlawful because of timing—Effect of no-strike contract, 6 . . .

Same—Strikes at end of contract period, 6 . . . Strikes unlawful because of misconduct

of strikers, 6.

The Right to Picket, 6.

Collective Bargaining and Representation of Employees 7–17

Collective Bargaining, 7 . . .

Duty to bargain imposed on both employer and union, 7 . . . Bargaining steps to

end or change a contact, 7 . . . When the bargaining steps are not required, 8.

The Employee Representative, 8 . . .

What is an appropriate bargaining unit, 8 . . . How the appropriateness of a unit

is determined, 9 . . . Who can or cannot be included in a unit, 9 . . . Duties of bargaining

representative and employer, 9.
iv

How a Bargaining Representative Is Selected, 10 . . .

Petition for certification of representatives, 10 . . . Petition for decertification election,

10 . . . Union-security deauthorization, 10 . . . Purpose of investigation and hearing, 11

. . . Jurisdiction to conduct an election, 11 . . . Expedited elections under Section 8(b)(7)(C),

11 . . . Showing of interest required, 11 . . . Existence of question of representation,

12 . . . Who can qualify as bargaining representative, 12.

Bars to Election, 12 . . .

Existing collective-bargaining contract, 12 . . . Time provisions, 13 . . . When a petition

can be filed if there is an existing contract, 13 . . . Effect of certification, 13 . . . Effect

of prior election, 14 . . . When a petition can be filed if there has been a prior election,

14.

The Representation Election, 14 . . .

Consent-election agreements, 14 . . . Who determines election matters, 15 . . . Who

may vote in a representation election, 15 . . . When strikers may be allowed to vote,

16 . . . When elections are held, 16 . . . Conduct of elections, 16.

Unfair Labor Practices of Employers 17–27

Section 8(a)(1)—Interference with Section 7 Rights, 17 . . .

Examples of violations of Section 8(a)(1), 17.

Section 8(a)(2)—Domination or Illegal Assistance and Support of a Labor Organization, 18 . . .

Domination, 18 . . . Illegal assistance and support, 18 . . . Examples of violations

of Section 8(a)(2), 19 . . . Remedy in cases of domination differs from that in cases of

illegal assistance and support, 19.

Section 8(a)(3)—Discrimination Against Employees, 19 . . .

The union-security exception to Section 8(a)(3), 19 . . . The Act does not limit employer’s right to discharge for economic reasons, 20 . . . Examples of violations of Section

8(a)(3), 20.

Section 8(a)(4)—Discrimination for NLRB Activity, 21 . . .

Examples of violations of Section 8(a)(4), 21.
v

Section 8(a)(5)—Refusal to Bargain in Good Faith, 21 . . .

Required subjects of bargaining, 24 . . . Duty to bargain defined, 24 . . . What constitutes a violation of Section 8(a)(5), 24 . . . Duty to meet and confer, 24 . . . Duty

to supply information, 25 . . . Multiemployer bargaining, 25 . . . Duty to refrain from

unilateral action, 25 . . . Duty of successor employers, 25 . . . Examples of violations

of Section 8(a)(5), 25.

Section 8(e)—Entering a Hot Cargo Agreement, 26 . . .

What is prohibited, 26 . . . Exceptions for construction and garment industries, 26.

Unfair Labor Practices of Labor Organizations 27–40

Section 8(b)(1)(A)—Restraint and Coercion of Employees, 27 . . .

Section 8(b)(1)(A) compared with Section 8(a)(1), 27 . . . What violates Section

8(b)(1)(A), 27 . . . Examples of violations of Section 8(b)(1)(A), 28.

Section 8(b)(1)(B)—Restraint and Coercion of Employers, 29 . . .

Examples of violations of Section 8(b)(1)(B), 29.

Section 8(b)(2)—Causing or Attempting to Cause Discrimination, 29 . . .

What violates Section 8(b)(2), 30 . . . Illegal hiring hall agreements and practices,

30 . . . Illegal union-security agreements, 30 . . . Examples of violations of Section 8(b)(2),

31.

Section 8(b)(3)—Refusal to Bargain in Good Faith, 31 . . .

Examples of violations of Section 8(b)(3), 32.

Section 8(b)(4)—Prohibited Strikes and Boycotts, 33 . . .

Proscribed action: Inducing or encouraging a strike, work stoppage, or boycott, 33

. . . Proscribed action: Threats, coercion, and restraint, 33 . . . Subparagraph (A)—Prohibited

object: Compelling membership in an employer or labor organization or compelling a hot

cargo agreement, 34 . . . Examples of violations of Section 8(b)(4)(A), 34 . . . Subparagraph

(B)—Prohibited object: Compelling recognition of an uncertified union, 34 . . . Examples

of violations of Section 8(b)(4)(B), 34 . . . When an employer is not protected from secondary strikes or boycotts, 35 . . . When a union may picket an employer who shares a

site with another employer, 35 . . . Picketing contractors’ gates, 36 . . . Subparagraph

(B)—Prohibited object: Compelling recognition of an uncertified union, 36 . . . Subparagraph
vi

(C)—Prohibited object: Compelling recognition of a union if another union has been certified,

37 . . . Subparagraph (D)—Prohibited object: Compelling assignment of certain work to

certain employees, 37 . . . Publicity such as handbilling allowed by Section 8(b)(4), 37.

Section 8(b)(5)—Excessive or Discriminatory Membership Fees, 37 . . .

Examples of violations of Section 8(b)(5), 38.

Section 8(b)(6)—‘‘Featherbedding,’’ 38.

Section 8(b)(7)—Organizational and Recognitional Picketing by Noncertified Unions,

38 . . .

Publicity picketing, 39 . . . Expedited elections under Section 8(b)(7)(C), 39 . . . Examples of violations of Section 8(b)(7), 39.

Section 8(e)—Entering a Hot Cargo Agreement, 39.

Section 8(g)—Striking or Picketing a Health Care Institution Without Notice, 40.

How the Act Is Enforced 40–49

Organization of the NLRB, 40 . . .

The Board—The General Counsel—The Regional Offices, 40 . . . Functions of the NLRB,

40.

Authority of the NLRB, 40 . . .

Enterprises whose operations affect commerce, 41 . . . What is commerce, 41 . . .

When the operations of an employer affect commerce, 41 . . . The Board does not act

in all cases affecting commerce, 41 . . . NLRB jurisdictional standards, 42 . . . The Act

does not cover certain individuals, 44 . . . Supervisor defined, 44 . . . The Act does not

cover certain employers, 45.

NLRB Procedures, 45 . . .

Procedure in representation cases, 45 . . . Procedure in unfair labor practice cases,

45 . . . The 6-month rule limiting issuance of complaint, 46 . . . Appeal to the General

Counsel if complaint is not issued, 46.

Powers of the NLRB, 47 . . .

Powers concerning investigations, 47 . . . The Act is remedial, not criminal, 47 . . .

Affirmative action may be ordered by the Board, 47 . . . Examples of affirmative action

directed to employers, 47 . . . Examples of affirmative action directed to unions, 48.
vii

Special Proceedings in Certain Cases, 48 . . .

Proceedings in jurisdictional disputes, 48 . . . The investigation of certain charges must

be given priority, 49 . . . Injunction proceedings under Section 10(1), 49 . . . Injunctive

relief may be sought in other cases, 49.

Court Enforcement of Board Orders, 49 . . .

In the U.S. court of appeals, 49 . . . Review by the U.S. Supreme Court, 49.

Conclusion 50

Supplements

Chart, ‘‘Types of Cases,’’ 22–23 . . . Map showing regional areas and offices, 51 . . .

List of Regional Directors and addresses of Regional Offices, 52.
viii

Foreword

The Regional Offices of the National Labor Relations Board have found that, more than

six decades after its enactment, there is still a lack of basic information about the National

Labor Relations Act. Staff members have expressed a need for a simply stated explanation

of the Act to which anyone could be referred for guidance. To meet this demand, the basic

law under the Act has been set forth in this pamphlet in a nontechnical way so that those

who may be affected by it can better understand what their rights and obligations are.

Any effort to state basic principles of law in a simple way is a challenging and unenviable

task. This is especially true about labor law, a relatively complex field of law. Anyone reading

this booklet must bear in mind several cautions.

First, it must be emphasized that the Office of the General Counsel does not issue advisory

opinions and this material cannot be considered as an official statement of law. It represents

the view of the Office of the General Counsel as of the date of publication only. It is important

to note that the law changes and advances. In fact, it is the duty of the Agency to keep

its decisions abreast of changing conditions, yet within the basic statute. Accordingly, with

the passage of time no one can rely on these statements as absolute until and unless a check

has been made to see whether the law may have been changed substantially or specifically.

Furthermore, these are broad general principles only and countless subprinciples and detailed

rules are not included. Only by evaluation of specific fact situations in the light of current

principles and with the aid of expert advice would a person be in a position to know definitely

where the proposed conduct may fit under the statute. No basic primer or text can constitute

legal advice in particular fact situations. This effort to improve basic education about the statute

should not be considered as such. Many areas of the statute remain untested. Legal advisers

and other experts can find the total body of ‘‘Board law’’ reported in other Agency publications.

One other caution: This material does not deal with questions arising under other labor

laws, but only with the National Labor Relations Act. Laws administered by other Government

agencies, such as the Labor-Management Reporting and Disclosure Act of 1959, the Employee

Retirement Income Security Act, the Occupational Safety and Health Act, the Railway Labor

Act, the Fair Labor Standards, Walsh-Healey and Davis-Bacon Acts, Title VII of the Civil Rights

Act of 1964, Americans with Disabilities Act, the Federal Mine Safety and Health Act, and

the Veterans’ Preference Act, are not treated herein.
ix

Lastly, this material does not reflect the view of the National Labor Relations Board as

the adjudicating agency that in the end will decide each case as it comes before it.

It is hoped that with this cautionary note this booklet may be helpful to those in need

of a better basic understanding of the National Labor Relations Act.

11

A Guide to Basic Law and Procedures Under the National Labor Relations Act

It is in the national interest of the United States to maintain full production in its economy.

Industrial strife among employees, employers, and labor organizations interferes with full production and is contrary to our national interest. Experience has shown that labor disputes can

be lessened if the parties involved recognize the legitimate rights of each in their relations

with one another. To establish these rights under law, Congress enacted the National Labor

Relations Act. Its purpose is to define and protect the rights of employees and employers,

to encourage collective bargaining, and to eliminate certain practices on the part of labor and

management that are harmful to the general welfare.

The National Labor Relations Act states and defines the rights of employees to organize

and to bargain collectively with their employers through representatives of their own choosing

or not to do so. To ensure that employees can freely choose their own representatives for

the purpose of collective bargaining, or choose not to be represented, the Act establishes a

procedure by which they can exercise their choice at a secret-ballot election conducted by

the National Labor Relations Board. Further, to protect the rights of employees and employers,

and to prevent labor disputes that would adversely affect the rights of the public, Congress

has defined certain practices of employers and unions as unfair labor practices.

The law is administered and enforced principally by the National Labor Relations Board

and the General Counsel acting through 52 regional and other field offices located in major

cities in various sections of the country. The General Counsel and the staff of the Regional

Offices investigate and prosecute unfair labor practice cases and conduct elections to determine

employee representatives. The five-member Board decides cases involving charges of unfair labor

practices and determines representation election questions that come to it from the Regional

Offices.

The rights of employees, including the rights to self-organization and collective bargaining

that are protected by Section 7 of the Act, are presented first in this guide. The Act’s provisions

concerning the requirements for union-security agreements are covered in the same section,

which also includes a discussion of the right to strike and the right to picket. The obligations

of collective bargaining and the Act’s provisions for the selection of employee representatives

are treated in the next section. Unfair labor practices of employers and of labor organizations

are then presented in separate sections. The final section, entitled ‘‘How the Act Is Enforced,’’

sets forth the organization of the NLRB; its authority and limitations; its procedures and powers

How this material is organized

How the Act is enforced

What the Act provides

Purpose of the Act

Summary of the Act
12

in representation matters, in unfair labor practice cases, and in certain special proceedings

under the Act; and the Act’s provisions concerning enforcement of the Board’s orders.

The rights of employees are set forth principally in Section 7 of the Act, which provides

as follows:

Sec. 7. 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 or protection, and shall also have the right to refrain from any

or all of such activities except to the extent that such right may be affected by

an agreement requiring membership in a labor organization as a condition of employment

as authorized in section 8(a)(3).

Examples of the rights protected by this section are the following:

• Forming or attempting to form a union among the employees of a company.

• Joining a union whether the union is recognized by the employer or not.

• Assisting a union to organize the employees of an employer.

• Going out on strike to secure better working conditions.

• Refraining from activity on behalf of a union.

The Act permits, under certain conditions, a union and an employer to make an agreement,

called a union-security agreement, that requires employees to make certain payments to the

union in order to retain their jobs. A union-security agreement cannot require that applicants

for employment be members of the union in order to be hired, and such an agreement cannot

require employees to join or maintain membership in the union in order to retain their jobs.

Under a union-security agreement, individuals choosing to be dues-paying nonmembers may

be required, as may employees who actually join the union, to pay full initiation fees and

dues within a certain period of time (a ‘‘grace period’’) after the collective-bargaining contract

takes effect or after a new employee is hired. However, the most that can be required of

nonmembers who inform the union that they object to the use of their payments for nonrepresentational purposes is that they pay their share of the union’s costs relating to representational activities (such as collective bargaining, contract administration, and grievance adjustment).

The grace period, after which the union-security agreement becomes effective, cannot be

less than 30 days except in the building and construction industry. The Act allows a shorter

Union-security agreements

Union Security

Examples of Section 7 rights

The Section 7 Rights

The Rights of

Employees
13

grace period of 7 full days in the building and construction industry (Section 8 (f)). A unionsecurity agreement that provides a shorter grace period than the law allows is invalid, and

any employee discharged because he or she has not complied with such an agreement is

entitled to reinstatement.

Under a union-security agreement, employees who have religious objections to becoming

members of a union or to supporting a union financially may be exempt from paying union

dues and initiation fees. These employees may, however, be required to make contributions

to a nonreligious, nonlabor tax exempt organization instead of making payments to a union.

Unions representing such employees may also charge them the reasonable cost of any grievances

processed at the employees’ request.

For a union-security agreement to be valid, it must meet all the following requirements:

1. The union must not have been assisted or controlled by the employer (see Section

8(a)(2) under ‘‘Unfair Labor Practices of Employers’’ on pp. 19–20).

2. The union must be the majority representative of the employees in the appropriate

collective-bargaining unit covered by such agreement when made.

3. The union’s authority to make such an agreement must not have been revoked within

the previous 12 months by the employees in a Board election.

4. The agreement must provide for the appropriate grace period.

Section 8(f) of the Act allows an employer engaged primarily in the building and construction

industry to sign a union-security agreement with a union without the union’s having been

designated as the representative of its employees as otherwise required by the Act. The agreement

can be made before the employer has hired any employees for a project and will apply to

them when they are hired. As noted above, however, the union-security provisions of a collectivebargaining contract in the building and construction industry may become effective with respect

to new employees after 7 full days. If the agreement is made while employees are on the

job, it must allow existing employees the same 7-day grace period to comply. As with any

other union-security agreement, the union involved must be free from employer assistance or

control.

Collective-bargaining contracts in the building and construction industry can include, as

stated in Section 8(f), the following additional provisions:

1. A requirement that the employer notify the union concerning job openings.

Prehire agreements in the

construction industry

Requirements for union-security

agreements
14

2. A provision that gives the union an opportunity to refer qualified applicants for such

jobs.

3. Job qualification standards based on training or experience.

4. A provision for priority in hiring based on length of service with the employer, in

the industry, or in the particular geographic area.

These four hiring provisions may lawfully be included in collective-bargaining contracts

which cover employees in other industries as well.

Finally, pursuant to Section 14(b) of the Act, individual States may prohibit, and some

States have prohibited, certain forms of union-security agreements.

Section 7 of the Act states in part, ‘‘Employees shall have the right . . . to engage in

other concerted activities for the purpose of collective bargaining or other mutual aid or protection.’’ Strikes are included among the concerted activities protected for employees by this section.

Section 13 also concerns the right to strike. It reads as follows:

Nothing in this Act, except as specifically provided for herein, shall be construed

so as either to interfere with or impede or diminish in any way the right to strike, or

to affect the limitations or qualifications on that right.

It is clear from a reading of these two provisions that: the law not only guarantees the

right of employees to strike, but also places limitations and qualifications on the exercise of

that right. See, for example, restrictions on strikes in health care institutions, page 41.

The lawfulness of a strike may depend on the object, or purpose, of the strike, on its

timing, or on the conduct of the strikers. The object, or objects, of a strike and whether

the objects are lawful are matters that are not always easy to determine. Such issues often

have to be decided by the National Labor Relations Board. The consequences can be severe

to striking employees and struck employers, involving as they do questions of reinstatement

and backpay.

It must be emphasized that the following is only a brief outline. A detailed analysis of

the law concerning strikes, and application of the law to all the factual situations that can

arise in connection with strikes, is beyond the scope of this material. Employees and employers

who anticipate being involved in strike action should proceed cautiously and on the basis

of competent advice.

Lawful and unlawful strikes

The Right to Strike
15

Employees who strike for a lawful object fall into two classes ‘‘economic strikers’’ and

‘‘unfair labor practice strikers.’’ Both classes continue as employees, but unfair labor practice

strikers have greater rights of reinstatement to their jobs.

If the object of a strike is to obtain from the employer some economic concession such

as higher wages, shorter hours, or better working conditions, the striking employees are called

economic strikers. They retain their status as employees and cannot be discharged, but they

can be replaced by their employer. If the employer has hired bona fide permanent replacements

who are filling the jobs of the economic strikers when the strikers apply unconditionally to

go back to work, the strikers are not entitled to reinstatement at that time. However, if the

strikers do not obtain regular and substantially equivalent employment, they are entitled to

be recalled to jobs for which they are qualified when openings in such jobs occur if they,

or their bargaining representative, have made an unconditional request for their reinstatement.

Employees who strike to protest an unfair labor practice committed by their employer

are called unfair labor practice strikers. Such strikers can be neither discharged nor permanently

replaced. When the strike ends, unfair labor practice strikers, absent serious misconduct on

their part, are entitled to have their jobs back even if employees hired to do their work

have to be discharged.

If the Board finds that economic strikers or unfair labor practice strikers who have made

an unconditional request for reinstatement have been unlawfully denied reinstatement by their

employer, the Board may award such strikers backpay starting at the time they should have

been reinstated.

A strike may be unlawful because an object, or purpose, of the strike is unlawful. A

strike in support of a union unfair labor practice, or one that would cause an employer to

commit an unfair labor practice, may be a strike for an unlawful object. For example, it is

an unfair labor practice for an employer to discharge an employee for failure to make certain

lawful payments to the union when there is no union-security agreement in effect (Section

8(a)(3)). A strike to compel an employer to do this would be a strike for an unlawful object

and, therefore, an unlawful strike. Strikes of this nature will be discussed in connection with

the various unfair labor practices in a later section of this guide.

Furthermore, Section 8(b)(4) of the Act prohibits strikes for certain objects even though

the objects are not necessarily unlawful if achieved by other means. An example of this would

be a strike to compel Employer A to cease doing business with Employer B. It is not unlawful

Strikes unlawful because of

purpose

Unfair labor practice strikers

defined

Economic strikers defined

Strikes for a lawful object
16

for Employer A voluntarily to stop doing business with Employer B, nor is it unlawful for

a union merely to request that it do so. It is, however, unlawful for the union to strike

with an object of forcing the employer to do so. These points will be covered in more detail

in the explanation of Section 8(b)(4).In any event, employees who participate in an unlawful

strike may be discharged and are not entitled to reinstatement.

A strike that violates a no-strike provision of a contract is not protected by the Act, and

the striking employees can be discharged or otherwise disciplined, unless the strike is called

to protest certain kinds of unfair labor practices committed by the employer. It should be

noted that not all refusals to work are considered strikes and thus violations of no-strike provisions.

A walkout because of conditions abnormally dangerous to health, such as a defective ventilation

system in a spray-painting shop, has been held not to violate a no-strike provision.

Section 8(d) provides that when either party desires to terminate or change an existing

contract, it must comply with certain conditions. (See p. 8.) If these requirements are not

met, a strike to terminate or change a contract is unlawful and participating strikers lose their

status as employees of the employer engaged in the labor dispute. If the strike was caused

by the unfair labor practice of the employer, however, the strikers are classified as unfair

labor practice strikers and their status is not affected by failure to follow the required procedure.

Strikers who engage in serious misconduct in the course of a strike may be refused reinstatement to their former jobs. This applies to both economic strikers and unfair labor practice

strikers. Serious misconduct has been held to include, among other things, violence and threats

of violence. The U.S. Supreme Court has ruled that a ‘‘sitdown’’ strike, when employees simply

stay in the plant and refuse to work, thus depriving the owner of property, is not protected

by the law. Examples of serious misconduct that could cause the employees involved to lose

their right to reinstatement are:

• Strikers physically blocking persons from entering or leaving a struck plant.

• Strikers threatening violence against nonstriking employees.

• Strikers attacking management representatives.

Likewise the right to picket is subject to limitations and qualifications. As with the right

to strike, picketing can be prohibited because of its object or its timing, or misconduct on

the picket line. In addition, Section 8(b)(7) declares it to be an unfair labor practice for a

union to picket for certain objects whether the picketing accompanies a strike or not. This

will be covered in more detail in the section on union unfair labor practices.

The Right to Picket

Strikes unlawful because of

misconduct of strikers

Same—Strikes at end of contract

period

Strikes unlawful because of

timing—Effect of no-strike contract
17

Collective bargaining is one of the keystones of the Act. Section 1 of the Act declares

that the policy of the United States is to be carried out ‘‘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.’’

Collective bargaining is defined in the Act. Section 8(d) requires an employer and the

representative of its employees to meet at reasonable times, to confer in good faith about

certain matters, and to put into writing any agreement reached if requested by either party.

The parties must confer in good faith with respect to wages, hours, and other terms or conditions

of employment, the negotiation of an agreement, or any question arising under an agreement.

These obligations are imposed equally on the employer and the representative of its employees. It is an unfair labor practice for either party to refuse to bargain collectively with the

other. The obligation does not, however, compel either party to agree to a proposal by the

other, nor does it require either party to make a concession to the other.

Section 8(d) provides further that when a collective-bargaining agreement is in effect no

party to the contract shall end or change the contract unless the party wishing to end or

change it takes the following steps:

1. The party must notify the other party to the contract in writing about the proposed

termination or modification 60 days before the date on which the contract is scheduled

to expire. If the contract is not scheduled to expire on any particular date, the notice

in writing must be served 60 days before the time when it is proposed that the termination

or modification take effect.

2. The party must offer to meet and confer with the other party for the purpose of

negotiating a new contract or a contract containing the proposed changes.

3. The party must, within 30 days after the notice to the party, notify the Federal Mediation

and Conciliation Service of the existence of a dispute if no agreement has been reached

by that time. Said party must also notify at the same time any State or Territorial mediation

or conciliation agency in the State or Territory where the dispute occurred.

4. The party must continue in full force and effect, without resorting to strike or lockout,

all the terms and conditions of the existing contract until 60 days after the notice

Bargaining steps to end or change

a contract

Duty to bargain imposed on both

employer and union

Collective Bargaining

Collective Bargaining

and Representation

of Employees
18

to the other party was given or until the date the contract is scheduled to expire,

whichever is later.

(In the case of a health care institution, the requirement in paragraphs 1 and 4 is 90

days, and in paragraph 3 is 60 days. In addition, there is a 30-day notice requirement to

the agencies in paragraph 3 when a dispute arises in bargaining for an initial contract.)

The requirements of paragraphs 2, 3, and 4, above, cease to apply if the NLRB issues

a certificate showing that the employees’ representative who is a party to the contract has

been replaced by a different representative or has been voted out by the employees. Neither

party is required to discuss or agree to any change of the provisions of the contract if the

other party proposes that the change become effective before the provision could be reopened

according to the terms of the contract.

As has been pointed out, any employee who engages in a strike within the notice period

loses status as an employee of the struck employer. This loss of status ends, however, if and

when that individual is reemployed by the same employer.

Section 9(a) provides that the employee representatives that have been ‘‘designated or

selected for the purposes of collective bargaining by the majority of the employees in a unit

appropriate for such purposes, shall be the exclusive representatives of all the employees in

such unit for the purposes of collective bargaining.’’

A unit of employees is a group of two or more employees who share a community of

interest and may reasonably be grouped together for purposes of collective bargaining. The

determination of what is an appropriate unit for such purposes is, under the Act, left to the

discretion of the NLRB. Section 9(b) states that the Board shall decide in each representation

case whether, ‘‘in order to assure to employees the fullest freedom in exercising the rights

guaranteed by this Act, the unit appropriate for the purposes of collective bargaining shall

be the employer unit, craft unit, plant unit, or subdivision thereof.’’

This broad discretion is, however, limited by several other provisions of the Act. Section

9(b)(1) provides that the Board shall not approve as appropriate a unit that includes both

professional and nonprofessional employees, unless a majority of the professional employees

involved vote to be included in the mixed unit.

Section 9(b)(2) provides that the Board shall not hold a proposed craft unit to be inappropriate simply because a different unit was previously approved by the Board, unless a majority

of the employees in the proposed craft unit vote against being represented separately.

What is an appropriate

bargaining unit

The Employee

Representative

When the bargaining steps are not

required
19

Section 9(b)(3) prohibits the Board from including plant guards in the same unit with

other employees. It also prohibits the Board from certifying a labor organization as the representative of a plant guard unit if the labor organization has members who are nonguard employees

or if it is ‘‘affiliated directly or indirectly’’ with an organization that has members who are

nonguard employees.

Generally, the appropriateness of a bargaining unit is determined on the basis of a community

of interest of the employees involved. Those who have the same or substantially similar interests

concerning wages, hours, and working conditions are grouped together in a bargaining unit.

In determining whether a proposed unit is appropriate, the following factors are also considered:

1. Any history of collective bargaining.

2. The desires of the employees concerned.

3. The extent to which the employees are organized. Section 9(c)(5) forbids the Board

from giving this factor controlling weight.

Finally, with regard to units in the health care industry, the Board also is guided by Congress’

concern about preventing disruptions in the delivery of health care services, and its directive

to minimize the number of appropriate bargaining units.

A unit may cover the employees in one plant of an employer, or it may cover employees

in two or more plants of the same employer. In some industries in which employers are

grouped together in voluntary associations, a unit may include employees of two or more

employers in any number of locations. It should be noted that a bargaining unit can include

only persons who are ‘‘employees’’ within the meaning of the Act. The Act excludes certain

individuals, such as agricultural laborers, independent contractors, supervisors, and persons in

managerial positions, from the meaning of ‘‘employees.’’ None of these individuals can be included

in a bargaining unit established by the Board. In addition, the Board, as a matter of policy,

excludes from bargaining units employees who act in a confidential capacity to an employer’s

labor relations officials.

Once an employee representative has been designated by a majority of the employees

in an appropriate unit, the Act makes that representative the exclusive bargaining agent for

all employees in the unit. As exclusive bargaining agent it has a duty to represent equally

and fairly all employees in the unit without regard to their union membership or activities.

Once a collective-bargaining representative has been designated or selected by its employees,

Duties of bargaining

representative and employer

Who can or cannot be included in

a unit

How the appropriateness of a unit

is determined
20

it is illegal for an employer to bargain with individual employees, with a group of employees,

or with another employee representative.

Section 9(a) provides that any individual employee or a group of employees shall have

the right at any time to present grievances to their employer and to have such grievances

adjusted without the intervention of the bargaining representative provided:

1. The adjustment is not inconsistent with the terms of any collective-bargaining agreement

then in effect.

2. The bargaining representative has been given the opportunity to be present at such

adjustment.

The Act requires that an employer bargain with the representative selected by its employees.

The most common method by which employees can select a bargaining representative is a

secret-ballot representation election conducted by the Board.

The NLRB can conduct such an election only when a petition has been filed requesting

one. A petition for certification of representatives can be filed by an employee or a group

of employees or any individual or labor organization acting on their behalf, or it can be filed

by an employer. If filed by or on behalf of employees, the petition must be supported by

a substantial number of employees who wish to be represented for collective bargaining and

must state that their employer declines to recognize their representative. If fled by an employer,

the petition must allege that one or more individuals or organizations have made a claim for

recognition as the exclusive representative of the same group of employees.

The Act also contains a provision whereby employees or someone acting on their behalf

can file a petition seeking an election to determine if the employees wish to retain the individual

or labor organization currently acting as their bargaining representative, whether the representative

has been certified or voluntarily recognized by the employer. This is called a decertification

election.

Provision is also made for the Board to determine by secret ballot whether the employees

covered by a union-security agreement desire to withdraw the authority of their representative

to continue the agreement. This is called a union-security deauthorization election and can

be brought about by the filing of a petition signed by 30 percent or more of the employees

covered by the agreement.

Union-security deauthorization

Petition for decertification election

Petition for certification of

representatives

How a Bargaining

Representative Is

Selected
21

If you will refer to the ‘‘Types of Cases’’ on pages 22 and 23 of this booklet you may

find it easier to understand the differences between the six types of petitions that can be

filed under the Act.

The same petition form is used for any kind of Board election. When the petition is

filed, the NLRB must investigate the petition, hold a hearing if necessary, and direct an election

if it finds that a question of representation exists. The purpose of the investigation is to determine,

among other things, the following:

1. Whether the Board has jurisdiction to conduct an election.

2. Whether there is a sufficient showing of employee interest to justify an election.

3. Whether a question of representation exists.

4. Whether the election is sought in an appropriate unit of employees.

5. Whether the representative named in the petition is qualified.

6. Whether there are any barriers to an election in the form of existing contracts or prior

elections.

The jurisdiction of the NLRB to direct and conduct an election is limited to those enterprises

that affect commerce. (This is discussed in greater detail at pp. 42–46.) The other matters

listed above will be discussed in turn.

First, however, it should be noted that Section 8(b)(7)(C) provides, among other things,

that when a petition is filed within a reasonable period, not to exceed 30 days, after the

commencement of recognitional or organizational picketing, the NLRB shall ‘‘forthwith’’ order

an election and certify the results. This is so if the picketing is not within the protection

of the second proviso to Section 8(b)(7)(C). When an election under Section (8)(b)(7)(C) is

appropriate, neither a hearing nor a showing of interest is required, and the election is scheduled

sooner than under the ordinary procedure.

Regarding the showing of interest, it is the policy to require that a petitioner requesting

an election for either certification of representatives or decertification show that at least 30

percent of the employees favor an election. The Act also requires that a petition for a unionsecurity deauthorization election be filed by 30 percent or more of the employees in the unit

covered by the agreement for the NLRB to conduct an election for that purpose. The showing

of interest must be exclusively by employees who are in the appropriate bargaining unit in

which an election is sought.

Showing of interest required

Expedited elections under Section

8(b)(7)(C)

Jurisdiction to conduct an election

Purpose of investigation and

hearing
22

Section 9(c)(1) authorizes the NLRB to direct an election and certify the results thereof,

provided the record shows that a question of representation exists. Petitions for certification

of representatives present a question of representation if, among other things, they are based

on a demand for recognition by the employee representative and a denial of recognition by

the employer. The demand for recognition need not be made in any particular form; in fact,

the filing of a petition by the representative itself is considered to be a demand for recognition.

The NLRB has held that even a representative that is currently recognized by the employer

can file a petition for certification and that such petition presents a question of representation

provided the representative has not previously been certified.

A question of representation is also raised by a decertification petition that challenges the

representative status of a bargaining agent previously certified or currently recognized by the

employer. However, a decertification petition filed by a supervisor does not raise a valid question

of representation and must be dismissed.

Section 2(4) of the Act provides that the employee representative for collective bargaining

can be ‘‘any individual or labor organization.’’ A supervisor or any other management representative may not be an employee representative. It is NLRB policy to direct an election and to

issue a certification unless the proposed bargaining agent fails to qualify as a bona fide representative of the employees. In determining a union’s qualifications as bargaining agent, it is the

union’s willingness to represent the employees rather than its constitution and bylaws that

is the controlling factor. The NLRB’s power to certify a labor organization as bargaining representative is limited by Section 9(b)(3) which prohibits certification of a union as the representative

of a unit of plant guards if the union ‘‘admits to membership, or is affiliated directly or indirectly

with an organization which admits to membership, employees other than guards.’’

The NLRB has established the policy of not directing an election among employees presently

covered by a valid collective-bargaining agreement except in accordance with certain rules.

These rules, followed in determining whether or not an existing collective-bargaining contract

will bar an election, are called the NLRB contract-bar rules. Not every contract will bar an

election. Examples of contracts that would not bar an election are:

• The contract is not in writing, or is not signed.

• The contract has not been ratified by the members or the union, if such is expressly

required.

Existing collective-bargaining

contract

Bars to Election

Who can qualify as bargaining

representative

Existence of question of

representation
23

• The contract does not contain substantial terms or conditions of employment sufficient

to stabilize the bargaining relationship.

• The contract can be terminated by either party at any time for any reason.

• The contract contains a clearly illegal union-security clause.

• The bargaining unit is not appropriate.

• The union that entered the contract with the employer is no longer in existence

or is unable or unwilling to represent the employees.

• The contract discriminates between employees on racial grounds.

• The contract covers union members only.

• The contracting union is involved in a basic internal conflict at the highest levels

with resulting unstabilizing confusion about the identity of the union.

• The employer’s operations have changed substantially since the contract was executed.

Under the NLRB rules a valid contract for a fixed period of 3 years or less will bar

an election for the period covered by the contract. A contract for a fixed period of more

than 3 years will bar an election sought by a contracting party during the life of the contract,

but will act as a bar to an election sought by an outside party for only 3 years following

its effective date. A contract of no fixed period will not act as a bar at all.

If there is no existing contract, a petition can bring about an election if it is filed before

the day a contract is signed. If the petition is filed on the same day the contract is signed,

the contract bars an election, provided the contract is effective immediately or retroactively

and the employer has not been informed at the time of execution that a petition has been

filed. Once the contract becomes effective as a bar to an election, no petition will be accepted

until near the end of the period during which the contract is effective as a bar. Petitions

filed not more than 90 days but over 60 days before the end of the contract-bar period will

be accepted and can bring about an election. These time periods for filing petitions involving

health care institutions are 120 and 90 days, respectively. Of course, a petition can be filed

after the contract expires. However, the last 60 days of the contract-bar period is called an

‘‘insulated’’ period. During this time the parties to the existing contract are free to negotiate

a new contract or to agree to extend the old one. If they reach agreement in this period,

petitions will not be accepted until 90 days before the end of the new contract-bar period.

In addition to the contract-bar rules, the NLRB has established a rule that when a representative has been certified by the Board, the certification will ordinarily be binding for at least Effect of certification

When a petition can be filed if

there is an existing contract

Time provisions
24

1 year and a petition filed before the end of the certification year will be dismissed. In cases

in which the certified representative and the employer enter a valid collective-bargaining contract

during the year, the contract becomes controlling, and whether a petition for an election can

be filed is determined by the Board’s contract-bar rules.

Section 9(c)(3) prohibits the holding of an election in any collective-bargaining unit or

subdivision thereof in which a valid election has been held during the preceding 12-month

period. A new election may be held, however, in a larger unit, but not in the same unit

or subdivision in which the previous election was held. For example, if all the production

and maintenance employees in Company A, including draftsmen in the company’s engineering

office, are included in a collective-bargaining unit, an election among all the employees in

the unit would bar another election among all the employees in the unit for 12 months. Similarly,

an election among the draftsmen only would bar another election among the draftsmen for

12 months. However, an election among the draftsmen would not bar a later election during

the 12-month period among all the production and maintenance employees including the

draftsmen.

It is the Board’s interpretation that Section 9(c)(3) prohibits only the holding of an election

during the 12-month period, but does not prohibit the filing of a petition. Accordingly, the

NLRB will accepta petition filed not more than 60 days before the end of the 12-month period.

The election cannot be held, of course, until after the 12-month period. If an election is held

and a representative certified, that certification is binding for 1 year and a petition for another

election in the same unit will be dismissed if it is filed during the 1-year period after the

certification. If an election is held and no representative is certified, the election bars another

election for 12 months. A petition for another election in the same unit can be filed not

more than 60 days before the end of the 12-month period and the election can be held

after the 12-month period expires.

Section 9(c)(1) provides that if a question of representation exists, the NLRB must make

its determination by means of a secret-ballot election. In a representation election employees

are given a choice of one or more bargaining representatives or no representative at all. To

be certified as the bargaining representative, an individual or a labor organization must receive

a majority of the valid votes cast.

An-election may be held by agreement between the employer and the individual or labor

Consent-election agreements organization claiming to represent the employees. In such an agreement the parties would

The Representation

Election

When a petition can be filed if

there has been a prior election

Effect of prior election
25

state the time and place agreed on, the choices to be included on the ballot, and a method

to determine who is eligible to vote. They would also authorize the NLRB Regional Director

to conduct the election.

If the parties are unable to reach an agreement, the Act authorizes the NLRB to order

an election after a hearing. The Act also authorizes the Board to delegate to its Regional Directors

the determination on matters concerning elections. Under this delegation of authority the Regional

Directors can determine the appropriateness of the unit, direct an election, and certify the

outcome. Upon the request of an interested party, the Board may review the action of a

Regional Director, but such review does not stop the election process unless the Board so

orders. The election details are left to the Regional Director. Such matters as who may vote,

when the election will be held, and what standards of conduct will be imposed on the parties

are decided in accordance with the Board’s rules and its decisions.

To be entitled to vote, an employee must have worked in the unit during the eligibility

period set by the Board and must be employed in the unit on the date of the election. Generally,

the eligibility period is the employer’s payroll period just before the date on which the election

was directed. This requirement does not apply, however, to employees who are ill, on vacation,

or temporarily laid off, or to employees in military service who appear in person at the polls.

The NLRB rules take into consideration the fact that employment is typically irregular in certain

industries. In such industries eligibility to vote is determined according to formulas designed

to permit all employees who have a substantial continuing interest in their employment conditions

to vote. Examples of these formulas, which differ from case to case, are:

• In one case, employees of a construction company were allowed to vote if they

worked for the employer at least 65 days during the year before the ‘‘eligibility

date’’ for the election.

• In another case longshoremen who worked at least 700 hours during a specified

contract year, and at least 20 hours in each full month between the end of that

year and the date on which the election was directed, were allowed to vote.

• Radio and television talent employees and musicians in the television film, motion

picture, and recording industries have been held eligible to vote if they worked

in the unit 2 or more days during the year before the date on which the election

was directed.

Who may vote in a representation

election

Who determines election matters
26

Section 9(c)(3) provides that economic strikers who have been replaced by bona fide permanent employees may be entitled to vote in ‘‘any election conducted within 12 months after

the commencement of the strike.’’ The permanent replacements are also eligible to vote at

the same time. As a general proposition, a striker is considered to be an economic striker

unless found by the NLRB to be on strike over unfair labor practices of the employer. Whether

the economic striker is eligible to vote is determined on the facts of each case.

Ordinarily, elections are held within 30 days after they are directed. Seasonal drops in

employment or any change in operations that would prevent a normal work force from being

present may cause a different election date to be set. Normally an election will not be conducted

when unfair labor practice charges have been filed based on conduct of a nature which would

have a tendency to interfere with the free choice of the employees in an election, except

that, in certain cases, the Board may proceed to the election if the charging party so requests.

NLRB elections are conducted in accordance with strict standards designed to give the

employee voters an opportunity to freely indicate whether they wish to be represented for

purposes of collective bargaining. Election details, such as time, place, and notice of an election,

are left largely to the Regional Director who usually obtains the agreement of the parties on

these matters. Any party to an election who believes that the Board election standards were

not met may, within 7 days after the tally of ballots has been furnished, file objections to

the election with the Regional Director under whose supervision the election was held. In

most cases, the Regional Director’s rulings on these objections may be appealed to the Board

for decision.

An election will be set aside if it was accompanied by conduct that the NLRB considers

created an atmosphere of confusion or fear of reprisals and thus interfered with the employees’

freedom of choice. In any particular case the NLRB does not attempt to determine whether

the conduct actually interfered with the employees’ expression of free choice, but rather asks

whether the conduct tended to do so. If it is reasonable to believe that the conduct would

tend to interfere with the free expression of the employees’ choice, the election may be set

aside. Examples of conduct the Board considers to interfere with employee free choice are:

• Threats of loss of jobs or benefits by an employer or a union to influence the

votes or union activities of employees.

• A grant of benefits or promise to grant benefits to influence the votes or union

activities of employees.

Conduct of elections

When elections are held

When strikers may be allowed to

vote
27

• An employer firing employees to discourage or encourage their union activities or

a union causing an employer to take such action.

• An employer or a union making campaign speeches to assembled groups of employees

on company time within the 24-hour period before the election.

• The incitement of racial or religious prejudice by inflammatory campaign appeals

made by either an employer or a union.

• Threats or the use of physical force or violence against employees by an employer

or a union to influence their votes.

• The occurrence of extensive violence or trouble or widespread fear of job losses

which prevents the holding of a fair election, whether caused by an employer or

a union.

The unfair labor practices of employers are listed in Section 8(a) of the Act; those of

labor organizations in Section 8(b). Section 8(e) lists an unfair labor practice that can be committed only by an employer and a labor organization acting together. The ‘‘Types of Cases’’ chart

at pages 22–23 may be helpful in getting to know the relationship between the various unfair

labor practice sections of the Act.

Section 8(a)(1) forbids an employer ‘‘to interfere with, restrain, or coerce employees in

the exercise of the rights guaranteed in section 7.’’ Any prohibited interference by an employer

with the rights of employees to organize, to form, join, or assist a labor organization, to bargain

collectively, to engage in other concerted activities for mutual aid or protection, or to refrain

from any or all of these activities, constitutes a violation of this section. This is a broad prohibition

on employer interference, and an employer violates this section whenever it commits any of

the other employer unfair labor practices. In consequence, whenever a violation of Section

8(a) (2), (3), (4), or (5) is committed a violation of Section 8(a)(1) is also found. This is

called a ‘‘derivative violation’’ of Section 8(a)(1).

Employer conduct may, of course, independently violate Section 8(a)(1). Examples of such

independent violations are:

• Threatening employees with loss of jobs or benefits if they should join or vote

for a union.

• Threatening to close down the plant if a union should be organized in it.

Examples of violations of Section

8(a)(1)

Section 8(a)(1)—

Interference with Section

7 Rights

Unfair Labor

Practices of

Employers
28

• Questioning employees about their union activities or membership in such circumstances as will tend to restrain or coerce the employees.

• Spying on union gatherings, or pretending to spy.

• Granting wage increases deliberately timed to discourage employees from forming

or joining a union.

Section 8(a)(2) makes it unlawful for an employer ‘‘to dominate or interfere with the

formation or administration of any labor organization or contribute financial or other support

to it.’’ This section not only outlaws ‘‘company unions’’ that are dominated by the employer,

but also forbids an employer to contribute money to a union it favors or to give a union

improper advantages that are denied to rival unions.

A labor organization is considered dominated within the meaning of this section if the

employer has interfered with its formation and has assisted and supported its operation and

activities to such an extent that it must be looked at as the employer’s creation instead of

the true bargaining representative of the employees. Such domination is the result of a combination of factors and has been found to exist where there is not only the factor of the employer

getting the organization started, but also such other factors as the employer deciding how

the organization will be set up and what it will do, or representatives of management actually

taking part in the meetings and activities of the organization and trying to influence its actions

and policies.

Certain lesser kinds of employer assistance to a union may constitute unlawful ‘‘interference’’

even if the union is not ‘‘dominated’’ by the employer. For example, an employer may not

provide financial support to a union either by direct payments or indirect financial aid. (But

an employer does not violate this prohibition by permitting employees to confer with it and/

or the union regarding grievances or other union business during working hours without loss

of pay.)

When rival unions are competing to organize an employer’s employees, the employer is

forbidden to give the union it favors privileges it denies to the other union. It is also forbidden

to recognize either union once it knows that one of the unions has filed a valid petition

with the Board requesting a representation election. When an employer and a union already

have an established bargaining relationship, however, the employer is required to continue

bargaining with the incumbent even though a rival union is attempting to organize the employees.

In these circumstances, the rival’s filing of a petition does not prevent continued dealing between

Illegal assistance and support

Domination

Section 8(a)(2)—

Domination or Illegal

Assistance and Support

of a Labor Organization
29

the employer and the incumbent unless the incumbent has lost the support of a majority

of the employees.

An employer violates Section 8(a)(2) by:

• Taking an active part in organizing a union or a committee to represent employees.

• Bringing pressure on employees to support a union financially, except in the enforcement of a lawful union-security agreement.

• Allowing one of several unions, competing to represent employees, to solicit on

company premises during working hours and denying other unions the same privilege.

• Soliciting and obtaining from employees and applicants for employment, during the

hiring procedure, applications for union membership and signed authorizations for

the check-off of union dues.

In remedying such unfair labor practices, the NLRB distinguishes between domination of

a labor organization and conduct which amounts to no more than illegal assistance. When

a union is found to be dominated by an employer, the Board has announced it will order

the organization completely disestablished as a representative of employees. But, if the organization is found only to have been supported by employer assistance amounting to less than

domination, the Board usually orders the employer to stop such support and to withhold recognition from the organization until such time as it has been certified by the Board as a bona

fide representative of employees.

Section 8(a)(3) makes it an unfair labor practice for an employer to discriminate against

employees ‘‘in regard to hire or tenure of employment or any term or condition of employment’’

for the purpose of encouraging or discouraging membership in a labor organization. In general,

the Act makes it illegal for an employer to discriminate in employment because of an employee’s

union or other group, activity within the protection of the Act. A banding together of employees,

even in the absence of a formal organization, may constitute a labor organization for purposes

of Section 8(a)(3). It also prohibits discrimination because an employee has refrained from

taking part in such union or group activity except where a valid union-security agreement

is in effect. Discrimination within the meaning of the Act would include such action as refusing

to hire, discharging, demoting, assigning to a less desirable shift or job, or withholding benefits.

As previously noted, Section 8(a)(3) provides that an employee may be discharged for

failing to make certain lawfully required payments to the exclusive bargaining representative

The union-security exception to

Section 8(a)(3)

Section 8(a)(3)—

Discrimination Against

Employees

Remedy in cases of domination

differs from that in cases of illegal

assistance and support

Examples of violation of Section

8(a)(2)
30

under a lawful union-security agreement. For a fuller discussion of this issue, see pages 2–

4, above.

Even when there is a valid union-security agreement in effect, an employer may not pay

the union the dues and fees owed by its employees. The employer may, however, deduct

these amounts from the wages of its employees and forward them to the union for each

employee who has voluntarily signed a dues ‘‘checkoff’’ authorization. Such checkoff authorization may be made irrevocable for no more than a year. But employees may revoke their checkoff

authorizations after a Board-conducted election in which the union’s authority to maintain a

union-security agreement has been withdrawn.

This section does not limit an employer’s right to discharge, transfer, or lay off an employee

for genuine economic reasons or for such good cause as disobedience or bad work. This right

applies equally to employees who are active in support of a union and to those who are

not.

In situations in which an employer disciplines an employee both because the employee

has violated a work rule and because the employee has engaged in protected union activity,

the discipline is unlawful unless the employer can show that the employee would have received

the same discipline even if he or she had not engaged in the protected union activity.

An employer who is engaged in good-faith bargaining with a union may lock out the

represented employees, sometimes even before impasse is reached in the negotiations, if it

does so to further its position in bargaining. But a bargaining lockout may be unlawful if

the employer is at that time unlawfully refusing to bargain or is bargaining in bad faith. It

is also unlawful if the employer’s purpose in locking out its employees is to discourage them

in their union loyalties and activities, that is, if the employer is motivated by hostility toward

the union. Thus, a lockout to defeat a union’s efforts to organize the employer’s employees

would violate the Act, as would the lockout of only those of its employees who are members

of the union. On the other hand, lockouts are lawful that are intended to prevent any unusual

losses or safety hazards that would be caused by an anticipated ‘‘quickie’’ strike. And a whipsaw

strike against one employer engaged in multiemployer bargaining justifies a lockout by any

of the other employers who are party to the bargaining.

Examples of illegal discrimination under Section 8(a)(3) include:

• Discharging employees because they urged other employees to join a union.

Examples of violations of Section

8(a)(3)

The Act does not limit employer’s

right to discharge for economic

reasons
31

• Refusing to reinstate employees when jobs they are qualified for are open because

they took part in a union’s lawful strike.

• Granting of ‘‘superseniority’’ to those hired to replace employees engaged in a lawful

strike.

• Demoting employees because they circulated a union petition among other employees

asking the employer for an increase in pay.

• Discontinuing an operation at one plant and discharging the employees involved

followed by opening the same operation at another plant with new employees because

the employees at the first plant joined a union.

• Refusing to hire qualified applicants for jobs because they belong to a union. It

would also be a violation if the qualified applicants were refused employment because

they did not belong to a union, or because they belonged to one union rather

than another.

Section 8(a)(4) makes it an unfair labor practice for an employer ‘‘to discharge or otherwise

discriminate against an employee because he has filed charges or given testimony under this

Act.’’ This provision guards the right of employees to seek the protection of the Act by using

the processes of the NLRB. Like the previous section, it forbids an employer to discharge,

lay off, or engage in other forms of discrimination in working conditions against employees

who have filed charges with the NLRB, given affidavits to NLRB investigators, or testified at

an NLRB hearing. Violations of this section are in most cases also violations of Section 8(a)(3).

Examples of violations of Section 8(a)(4) are:

• Refusing to reinstate employees when jobs they are otherwise qualified for are open

because they filed charges with the NLRB claiming their layoffs were based on union

activity.

• Demoting employees because they testified at an NLRB hearing.

Section 8(a)(5) makes it illegal for an employer to refuse to bargain in good faith about

wages, hours, and other conditions of employment with the representative selected by a majority

of the employees in a unit appropriate for collective bargaining. A bargaining representative

which seeks to enforce its right concerning an employer under this section must show that

it has been designated by a majority of the employees, that the unit is appropriate, and that

there has been both a demand that the employer bargain and a refusal by the employer to

do so.

Section 8(a)(5)—Refusal

to Bargain in Good Faith

Examples of violations of Section

8(a)(4)

Section 8(a)(4)—

Discrimination for NLRB

Activity
32
33

TYPES OF CASES

I. CHARGES OF UNFAIR LABOR PRACTICES

(C CASES)

Charge Against Employer Charge Against Labor Organization

Section of

the Act CA

Section of

the Act CB

Section of

the Act CC

Section of

the Act CD

8(a)(1) To interfere with, restrain, or coerce employees in exercise of their rights

under Section 7 (to join or assist a labor

organization or to refrain).

8(a)(2) To dominate or interfere with the

formation or administration of a labor organization or contribute financial or other

support to it.

8(a)(3) By discrimination in regard to hire

or tenure of employment or any term or

condition of employment to encourage or

discourage membership in any labor organization.

8(a)(4) To discharge or otherwise discriminate against employees because they

have given testimony under the Act.

8(a)(5) To refuse to bargain collectively

with representatives of its employees.

8(b)(1)(A) To restrain or coerce employees in exercise of their rights under Section 7 (to join or assist a labor organization or to refrain).

8(b)(1)(B) To restrain or coerce an employer in the selection of its representatives for collective bargaining or adjustment of grievances.

8(b)(2) To cause or attempt to cause an

employer to discriminate against an employee.

8(b)(3) To refuse to bargain collectively

with an employer.

8(b)(5) To require of employees the payment of excessive or discriminatory fees

for membership.

8(b)(6) To cause or attempt to cause an

employer to pay or agree to pay money

or other thing of value for services which

are not performed or not to be performed.

8(b)(4)(i) To engage in, or induce or encourage any individual employed by any

person engaged in commerce or in an industry affecting commerce to engage in,

a strike, work stoppage, or boycott, or

(ii) to threaten, coerce, or restrain any

person engaged in commerce or in an industry affecting commerce, where in either case an object is:

(A) To force or require any employer

or self-employed person to join any labor

or employer organization or to enter into

any agreement prohibited by Section

8(e).

(B) To force or require 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, or force or require any other employer to recognize or

bargain with a labor organization as the

representative of its employees unless

such labor organization has been so certified.

(C) To force or require any employer to

recognize or bargain with a particular

labor organization as the representative

of its employees if another labor organization has been certified as the representative.

8(b)(4)(i) To engage in, or induce or encourage any individual employed by any

person engaged in commerce or in an industry affecting commerce to engage in,

a strike, work stoppage, or boycott, or

(ii) to threaten, coerce, or restrain any

person engaged in commerce or in an industry affecting commerce, where in either case an object is:

(D) To force or require any employer

to assign particular work to employees in

a particular labor organization or in a particular trade, craft, or class rather than to

employees in another trade, craft, or

class, unless such employer is failing to

conform to an appropriate Board order

or certification.

lllllllllllllllllll

Section of

the Act CG lllllllllllllllllll

8(g) To strike, picket, or otherwise

concertedly refuse to work at any health

care institution without notifying the institution and the Federal Mediation and

Conciliation Service in writing 10 days

prior to such action.
34
35

TYPES OF CASES—Continued

1. CHARGES OF UNFAIR LABOR PRACTICES

(C CASES)

2. PETITIONS FOR CERTIFICATION OR DECERTIFICATION OF REPRESENTATIVES (R CASES)3. OTHER PETITIONS

Charge Against Labor Organization Charge Against Labor

Organization and Employer

By or on Behalf

of Employees

By or on Behalf

of Employees

Section of

the Act CP

Section of

the Act CE

Section of

the Act RC

Section of

the Act UD

8(b)(7) To picket, or cause or threaten the

picketing of, any employer where an object

is to force or require an employer to recognize or bargain with a labor organization as

the representative of its employees, or to

force or require the employees of an employer to select such labor organization as

their collective-bargaining representative,

unless such labor organization is currently

certified as the representative of such employees:

(A) where the employer has lawfully recognized any other labor organization and a

question concerning representation may not

appropriately be raised under Section 9(c).

(B) where within the preceding 12

months a valid election under Section 9(c)

has been conducted, or

(C) where picketing has been conducted

without a petition under Section 9(c) being

filed within a reasonable period of time not

to exceed 30 days from the commencement

of the picketing; except where the picketing is for the purpose of truthfully advising

the public (including consumers) that an

employer does not employ members of, or

have a contract with, a labor organization,

and it does not have an effect of interference with deliveries or services.

8(e) To enter into any contract

or agreement (any labor organization and any employer)

whereby such employer

ceases or refrains or agrees to

cease or refrain from handling

or dealing in any product of

any other employer, or to

cease doing business with any

other person.

9(c)(1)(A)(i) Alleging that a substantial number of

employees wish to be represented for collective

bargaining and their employer declines to recognize

their representative.*

lllllllllllllllllllllll

Section of

the Act RD lllllllllllllllllllllll

9(c)(1)(A)(ii) Alleging that a substantial number of

employees assert that the certified or currently recognized bargaining representative is no longer their

representative.*

lllllllllllllllllllllll

By an Employer lllllllllllllllllllllll

Section of

the Act RM lllllllllllllllllllllll

9(c)(1)(B) Alleging that one or more claims for recognition as exclusive bargaining representative have

been received by the employer.*

lllllllllllllllllllllll

*If an 8(b)(7) charge has been filed involving the same

employer, these statements in RC, RD, and RM petitions are not required.

9(e)(1) Alleging the employees (30 percent or more of an appropriate unit)

wish to rescind an existing union security agreement.

llllllllllllllllll

By a Labor Organization

or an Employer llllllllllllllllll

Board

Rules RM llllllllllllllllll

Subpart C Seeking clarification of an existing bargaining unit.

llllllllllllllllll

Board

Rules RM llllllllllllllllll

Subpart C Seeking amendment of an

outstanding certification of bargaining

representative.

Charges filed with the National Labor Relations Board are letter-coded and numbered. Unfair labor practice charges are classified as ‘‘C’’ cases and petitions for certification or decertification of representatives as ‘‘R’’ cases. This chart indicates the letter codes used for ‘‘C’’ cases, at left, and ‘‘R’’ cases, above, and also presents a summary of each section involved.
36

The duty to bargain covers all matters concerning rates of pay, wages, hours of employment,

or other conditions of employment. These are called ‘‘mandatory’’ subjects of bargaining about

which the employer, as well as the employees’ representative, must bargain in good faith,

although the law does not require ‘‘either party to agree to a proposal or require the making

of a concession.’’ In addition to wages and hours of work, these mandatory subjects of bargaining

include but are not limited to such matters as pensions for present employees, bonuses, group

insurance, grievance procedures, safety practices, seniority, procedures for discharge, layoff, recall,

or discipline, and union security. Certain managerial decisions such as subcontracting, relocation,

and other operational changes may not be mandatory subjects of bargaining, even though they

affect employees’ job security and working conditions. The issue of whether these decisions

are mandatory subjects of bargaining depends on the employer’s reasons for taking action.

Even if the employer is not required to bargain about the decision itself, it must bargain about

the decision’s effects on unit employees. On ‘‘nonmandatory’’ subjects, that is, matters that

are lawful but not related to ‘‘wages, hours, and other conditions of employment,’’ the parties

are free to bargain and to agree, but neither party may insist on bargaining on such subjects

over the objection of the other party.

An employer who is required to bargain under this section must, as stated in Section

8(d), ‘‘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.’’

An employer, therefore, will be found to have violated Section 8(a)(5) if its conduct in

bargaining, viewed in its entirety, indicates that the employer did not negotiate with a goodfaith intention to reach agreement. However, the employer’s good faith is not at issue when

its conduct constitutes an out-and-out refusal to bargain on a mandatory subject. For example,

it is a violation for an employer, regardless of good faith, to refuse to bargain about a subject

that it believes is not a mandatory subject of bargaining, when in fact it is.

The duty of an employer to meet and confer with the representative of its employees

includes the duty to deal with whoever is designated by the employees’ representative to carry

on negotiations. An employer may not dictate to a union its selection of agents or representatives

and the employer must, in general, recognize the designated agent.

Duty to meet and confer

What constitutes a violation of

Section 8(a)(5)

Duty to bargain defined

Required subjects of bargaining
37

The employer’s duty to bargain includes the duty to supply, on request, information that

is ‘‘relevant and necessary’’ to allow the employees’ representative to bargain intelligently and

effectively with respect to wages, hours, and other conditions of employment.

When there is a history of bargaining between a union and a number of employers acting

jointly, the employees who are thus represented constitute a multiemployer bargaining unit.

Once such a unit has been established, any of the participating employers—or the union—

may retire from this multiemployer bargaining relationship only by mutual assent or by a timely

submitted withdrawal. Withdrawal is considered timely if unequivocal notice of the withdrawal

is given near the termination of a collective-bargaining agreement but before bargaining begins

on the next agreement.

Finally, the duty of an employer to bargain includes the duty to refrain from unilateral

action, that is, taking action on its own with respect to matters concerning which it is required

to bargain, and from making changes in terms and conditions of employment without consulting

the employees’ representative.

An employer who purchases or otherwise acquires the operations of another may be obligated

to recognize and bargain with the union that represented the employees before the business

was transferred. In general, these bargaining obligations exist—and the purchaser is termed

a successor employer—when there is a substantial continuity in the employing enterprise despite

the sale and transfer of the business. Whether the purchaser is a successor employer is dependent

on several factors, including the number of employees taken over by the purchasing employer,

the similarity in operations and product of the two employers, the manner in which the purchaser

integrates the purchased operations into its other operations, and the character of the bargaining

relationship and agreement between the union and the original employer.

Examples of violations of Section 8(a)(5) are as follows:

• Refusing to meet with the employees’ representative because the employees are out

on strike.

• Insisting, until bargaining negotiations break down, on a contract provision that all

employees will be polled by secret ballot before the union calls a strike.

• Refusing to supply the employees’ representative with cost and other data concerning

a group insurance plan covering the employees.

• Announcing a wage increase without consulting the employees’ representative.

Examples of violations of Section

8(a)(5)

Duty of successor employers

Duty to refrain from unilateral

action

Multiemployer bargaining

Duty to supply information
38

• Failing to bargain about the effects of a decision to close one of the employer’s

plants..

Section 8(e), 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 provided 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.

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 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.

In the construction industry a union and an employer in the industry may agree to a

provision that restricts the contracting or subcontracting of work to be done at the construction

site. Such a clause contained in the agreement between the employer and the union typically

provides that if work is subcontracted by the employer it must go to an employer who has

an agreement with the union. A union in the construction industry may engage in a strike

and picketing to obtain, but not to enforce, contractual restrictions of this nature. Similarly,

in the garment industry an employer and a union can agree that work to be done on the

goods or on the premises of a jobber or manufacturer, or work that is part of ‘‘an integrated

process of production in the apparel and closing industry,’’ can be subcontracted only to an

employer who has an agreement with the union. This exception, unlike the previous one concerning the construction industry, allows a labor organization in the garment industry, not only

Exceptions for construction and

garment industries

What is prohibited

Section 8(e)—Entering a

Hot Cargo Agreement
39

to seek to obtain, but also to enforce, such a restriction on subcontracting by striking, picketing,

or other lawful actions.

Section 8(b)(1)(A) forbids a labor organization or its agents ‘‘to restrain or coerce employees

in the exercise of the rights guaranteed in section 7.’’ The section also provides that it is

not intended to ‘‘impair the rights of a labor organization to prescribe its own rules’’ concerning

membership in the labor organization.

Like Section 8(a)(1), Section 8(b)(1)(A) is violated by conduct that independently restrains

or coerces employees in the exercise of their Section 7 rights regardless of whether the conduct

also violates other provisions of Section 8(b). But whereas employer violations of Section 8(a)(2),

(3), (4), and (5) are held to be violations of Section 8(a)(1) too, the Board has held, based

on the intent of Congress when Section 8(b)(1)(A) was written, that violation of Section 8(b)(2)

through (7) do not also ‘‘derivatively’’ violate Section 8(b)(1)(A). The Board does hold, however,

that making or enforcing illegal union-security agreements or hiring agreements that condition

employment on union membership not only violates Section 8(b)(2) but also Section 8(b)(1)(A),

because such action restrains or coerces employees in their Section 7 rights.

Union conduct that is reasonably calculated to restrain or coerce employees in their Section

7 rights violates Section 8(b)(1)(A) 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. Coercion also includes

other forms of pressure against employees such as acts of a union while representing employees

as their exclusive bargaining agent (see Section 9(a), p. 10). A union that is a statutory bargaining

representative 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, while acting as the employees’ statutory bargaining representative,

it takes or withholds action in connection with their employment because of their union activities

or for any irrelevant or arbitrary reason such as an employee’s race or sex.

What violates Section 8(b)(1)(A)

Section 8(b)(1)(A) compared with

Section 8(a)(1)

Section 8(b)(1)(A)—

Restraint and Coercion of

Employees

Unfair Labor

Practices of Labor

Organizations
40

Section 8(b)(1)(A) recognizes the right of unions to establish and enforce rules of membership

and to control their 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 to be protected must be aimed at matters of legitimate

concern to unions such as the encouragement of members to support a lawful strike or participation in union meetings. Rules that conflict with public policy, such as rules that limit a member’s

right to file unfair labor practice charges, are not protected. And 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 or she resigns.

Examples of restraint or coercion that violate Section 8(b)(1)(A) when done by a union

or its agents include the following:

• Mass picketing in such numbers that nonstriking employees are physically barred

from entering the plant.

• Acts of force or violence on the picket line, or in connection with a strike.

• Threats to do bodily injury to nonstriking employees.

• Threats to employees that they will lose their jobs unless they support the union’s

activities.

• Statement 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 when it has not been chosen by a majority of the employees.

• Fining or expelling members for crossing a picket line that is unlawful under the

Act 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.

The following are examples of restraint or coercion that violate Section 8(b)(1)(A) when

done by a union that is the exclusive bargaining representative:

• Refusing to process a grievance in retaliation against an employee’s criticism of union

officers.

Examples of violations of Section

8(b)(1)(A)
41

• 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.

Section 8(b)(1)(B) prohibits a labor organization from restraining or coercing an employer

in the selection of a bargaining representative. The prohibition applies regardless of whether

the labor organization is the majority representative of the employees in the bargaining unit.

The prohibition extends to coercion applied by a union to a union member who is a representative of the employer in the adjustment of grievances. This section is violated by such conduct

as the following:

• Insisting on meeting only with a company’s owners and refusing to meet with the

attorney the company has engaged to represent the company in contract negotiations,

and threatening to strike to force the company to accept its demands.

• Striking members of an employer association that bargains with the union as the

representative of the employers to compel the struck 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 it 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.

Section 8(b)(2) makes it an unfair labor practice for a labor organization to cause an employer

to discriminate against an employee in violation of Section 8(a)(3). As discussed earlier, Section

8(a)(3) prohibits an employer from discriminating against an employee in regard to wages,

hours, and other conditions of employment for the purpose of encouraging or discouraging

membership in a labor organization. It does allow, however, the making of union-security agreements under certain specified conditions. (See pp. 2–4, above.)

A union violates Section 8(b)(2), for example, by demanding that an employer discriminate

against employees because of their failure to make certain otherwise lawful payments to the

union when there is no valid union-security agreement in effect. (See pp. 2–4, above.) The

section can also be violated by agreements or arrangements with employers that unlawfully

condition employment or job benefits on union membership, on the performance of union

Section 8(b)(2)—Causing

or Attempting to Cause

Discrimination

Examples of violations of Section

8(b)(1)(B)

Section 8(b)(1)(B)—

Restraint and Coercion of

Employers
42

membership obligations, or on arbitrary grounds. Union conduct affecting an employee’s employment in a way that is contrary to provisions of the bargaining contract may likewise be violative

of the section. But union action that causes detriment to an individual employee in that individual’s employment 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 it is for some other legitimate purpose.

To find that a union caused an employer to discriminate, it is not necessary to show

that any express demand was spoken. 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 are violations of Section 8(b)(2). It is not unlawful for an employer

and a union to enter into an agreement whereby the employer agrees to hire new employees

exclusively through the union hiring hall so long as there is neither a provision in the agreement

nor a practice in effect that discriminates against nonunion members in favor of union members

or otherwise discriminates on the basis of union membership obligations. Both the agreement

and the actual operation of the hiring hall must be nondiscriminatory; referrals must be made

without reference to union membership or irrelevant or arbitrary considerations such as race.

Referral standards or procedures, even if nondiscriminatory on their face, are unlawful when

they continue previously discriminatory conditions of referral. However, a union may, in setting

referral standards, consider legitimate aims such as sharing available work and easing the impact

of local unemployment. It may also charge referral fees if the amount of the fee is reasonably

related to the cost of operating the referral service.

Union-security agreements that require employees to make certain lawfully required payments

to the union after they are hired are permitted by this section as previously discussed. Unionsecurity agreements that do not meet all the requirements listed on page 3 will not support

a discharge. A unionthat attempts to force an employer to enter into an illegal union-security

agreement, or that enters into and keeps in effect such an agreement, 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 so that it is permitted by Section 8(a)(3), a union may not lawfully require the

Illegal union-security agreements

Illegal hiring hall agreements and

practices

What violates Section 8(b)(2)
43

discharge of employees under the provision unless the employees had been informed of the

union-security agreement and of their specific obligation under it. And 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 that lawfully may be required. (See pp. 2–4, above.) Assessments, fines, and penalties

may not be enforced by application of a union-security agreement.

Examples of violations of Section 8(b)(2) are:

• 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 antiunion acts.

• Refusing referral or giving preference on the basis of race or union activities in

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.

Section 8(b)(3) makes it illegal for a labor organization to refuse to bargain in good faith

with an employer about wages, hours, and other conditions of employment if it is the representative of that employer’s employees. This section imposes on labor organizations the same duty

to bargain in good faith that is imposed on employers by Section 8(a)(5). Both the labor

organization and the employer are required to follow the procedure set out in Section 8(d)

before terminating or changing an existing contract (see p. 8).

A labor organization that is the employees’ representative must meet at reasonable times

with the employer or his designated representative, must confer in good faith on matters pertaining to wages, hours, or other conditions of employment, or the negotiation of an agreement,

or any question arising under an agreement, and must sign a written agreement if requested

and if one is reached. The obligation does not require the labor organization or the employer

to agree to a proposal by the other party or make a concession to the other party, but it

does require bargaining with an open mind in an attempt to reach agreement. So, while a

union may try in contract negotiations to establish wages and benefits comparable to those

Section 8(b)(3)—Refusal

to Bargain in Good Faith

Examples of violations of Section

8(b)(2)
44

contained in other bargaining agreements in the area, it may not insist on such terms without

giving the employer an opportunity to bargain about the terms. Likewise, a union may seek

voluntary bargaining on nonmandatory subjects of bargaining (p. 24), such as a provision for

an industry promotion fund, but may not insist on bargaining about such subjects or condition

execution of a contract on the reaching of agreement on a nonmandatory subject.

When a union has been bargaining with a group of employers in a multiemployer bargaining

unit, it may withdraw at any time from bargaining on that basis and bargain with one of

the employers individually if the individual employer and the multiemployer group agree to

the union’s withdrawal. And even in the absence of employer consent, a union may withdraw

from multiemployer bargaining by giving the employers unequivocal notice of its withdrawal

near the expiration of the agreement but before bargaining on a new contract has begun.

Section 8(b)(3) not only requires that a union representative bargain in good faith with

employers, but also requires that the union carry out its bargaining duty fairly with respect

to the employees it represents. A union, therefore, violates Section 8(b)(3) if it negotiates a

contract that conflicts with that duty, such as a contract with racially discriminatory provisions,

or if it refuses to handle grievances under the contract for irrelevant or arbitrary reasons.

Section 8(b)(3) is violated by any of the following:

• Insisting on the inclusion of 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 has bargained, and continues to bargain, on a

multiemployer 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 mediation

service, if any.

• Conditioning the execution of an agreement on inclusion of a nonmandatory 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.

Examples of violations of Section

8(b)(3)
45

Section 8(b)(4) prohibits a labor organization from engaging in strikes or boycotts or taking

other specified actions to accomplish certain purposes or ‘‘objects’’ as they are called in the

Act. The proscribed action is listed in clauses (i) and (ii), the objects are described in subparagraphs (A) through (D). A union commits an unfair labor practice if it takes any of the kinds

of action listed in clauses (i) and (ii) as a means of accomplishing any of the objects listed

in the four subparagraphs.

Clause (i) forbids a union to engage in a strike, or to induce or encourage 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’’ for one of the objects listed in subparagraphs

(A) through (D). The words ‘‘induce and encourage’’ are considered by the U.S. Supreme Court

to be broad enough to include every form of influence or persuasion. For example, it has

been held by the NLRB that a work stoppage on a picketed construction project was ‘‘induced’’

by a union through its business agents who, when they learned about the picketing, told

the job stewards that they (the business agents) would not work behind the picket line. It

was considered that this advice not only induced the stewards to leave the job, but caused

them to pass the information on to their fellow employees, and that such conduct informed

the other employees that they were expected not to work behind the picket line. The world

‘‘person’’ is defined in Section 2(1) as including ‘‘one or more individuals, labor organizations,

partnerships, associations, corporations,’’ and other legal persons. As so defined, the word ‘‘person’’ is broader than the word ‘‘employer.’’ For example, a railroad company, although covered

by the Railway Labor Act, is excluded from the definition of ‘‘employer’’ in the National Labor

Relations Act and, therefore, neither the railroad company nor its employees are covered by

the National Labor Relations Act. But a railroad company is a ‘‘person engaged in commerce’’

as defined above and, therefore, a labor organization is forbidden to ‘‘induce or encourage’’

individuals employed by a railroad company to engage in a strike, work stoppage, or boycott

for any of the objects in subparagraphs (A) through (D).

Clause (ii) makes it an unfair labor practice for a union to ‘‘threaten, coerce, or restrain

any person engaged in commerce or in an industry affecting commerce’’ for any of the proscribed

objects. Even though no direct threat is voiced by the union, there may nevertheless be coercion

and restraint that violates this clause. For example, when a union picketed a construction

job to bring about the removal of a nonunion subcontractor in violation of Section 8(b)(4)(B),

the picketing induced employees of several other subcontractors to stop work. When the general

Proscribed action: Threats,

coercion, and restraint

Proscribed action: Inducing or

encouraging a strike, work

stoppage, or boycott

Section 8(b)(4)—

Prohibited Strikes and

Boycotts
46

contractor asked what could be done to stop the picketing, the union’s business agent replied

that the picketing would stop only if the nonunion subcontractor were removed from the

job. The NLRB held this to be ‘‘coercion and restraint’’ within the meaning of clause (ii).

Section 8(b)(4)(A) prohibits unions from engaging in clause (i) or (ii) action to compel

an employer or self-employed person to join any labor or employer organization or to force

an employer to enter a hot cargo agreement prohibited by Section 8(e). Examples of violations

of this section are:

• In an attempt to compel a beer distributor to join a union, the union prevents

the distributor from obtaining beer at a brewery by inducing the brewery’s employees

to refuse to fill the distributor’s orders.

• In an attempt to secure for its members certain stevedoring work required at an

employer’s unloading operation, the union pickets to force the employer to join

an employer association with which the union has a contract.

• A union pickets an employer (one not in the construction and garment industries),

or threatens to picket it, to compel that employer to enter into an agreement whereby

the employer will only do business with persons who have an agreement with a

union.

Section 8(b)(4)(B) contains the Act’s secondary boycott provision. A secondary boycott occurs

if a union has a dispute with Company A and, in furtherance of that dispute, 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. The dispute is with Company A, called

the ‘‘primary’’ employer, the union’s action is against Company B, called the ‘‘secondary’’

employer, hence the term ‘‘secondary boycott.’’ In many cases the secondary employer is a

customer or supplier of the primary employer with whom the union has the dispute. In general,

the Act prohibits both the secondary boycott and the threat of it. Examples of prohibited

secondary boycotts are:

• Picketing an employer to force it to stop doing business with another employer

who has refused to recognize the union.

• Asking the employees of a plumbing contractor not to work on connecting up airconditioning equipment manufactured by a nonunion employer whom the union is

attempting to organize.

Examples of violations of Section

8(b)(4)(B)

Subparagraph (B)—Prohibited

object: Compelling recognition of

an uncertified union

Examples of violations of Section

8(b)(4)(A)

Subparagraph (A)—Prohibited

object: Compelling membership in

an employer or labor organization

or compelling a hot cargo

agreement
47

• Urging employees of a building contractor not to install doors that were 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 has designated as ‘‘unfair.’’

The prohibitions of Section 8(b)(4)(B) do not protect a secondary employer from the incidental effects of union action that is taken directly against the primary employer. Thus, it is lawful

for a union to urge employees of a secondary supplier at the primary employer’s plant not

to cross a picket line there. Section 8(b)(4)(B) also does not proscribe union action to prevent

an employer from contracting out work customarily performed by its employees, even though

an incidental effect of such conduct might be to compel that employer to cease doing business

with the subcontractor.

In order to be protected against the union action that is prohibited under this subparagraph,

the secondary employer has to be a neutral as concerns the dispute between the union and

the primary employer. For secondary boycott purposes an employer is considered an ‘‘ally’’

of the primary employer and, therefore, not protected from union action in certain situations.

One is based on the ownership and operational relationship between the primary and secondary

employers. Here, a number of factors are considered, particularly the following: Are the primary

and secondary employers owned and controlled by the same person or persons? Are they

engaged in ‘‘closely integrated operations’’? May they be treated as a single employer under

the Act? Another test of the ‘‘ally’’ relationship is based on the conduct of the secondary

employer. If an employer, despite its claim of neutrality in the dispute, acts in a way that

indicates that it has abandoned its ‘‘neutral’’ position, the employer opens itself up to primary

action by the union. An example of this would be an employer who, claiming to be a neutral,

enters into an arrangement with a struck employer whereby it accepts and performs farmedout work of that employer who would normally do the work itself, but who cannot perform

the work because its plant is closed by a strike.

When employees of a primary employer and those of a secondary employer work on

the same premises, a special situation is involved and the usual rules do not apply. A typical

example of the shared site or ‘‘common situs’’ situation is when a subcontractor with whom

a union has a dispute is engaged at work on a construction site alongside other subcontractors

with whom the union has no dispute. Picketing at a common situs is permissible if directed

solely against the primary employer. But it is prohibited if directed against secondary employers

When a union may picket an

employer who shares a site with

another employer

When an employer is not protected

from secondary strikes and

boycotts
48

regularly engaged at that site. To assist in determining whether picketing at a common situs

is restricted to the primary employer and therefore permissible, or directed at a secondary

employer and therefore violative of the statute, the NLRB and the courts have suggested various

guidelines for evaluating the object of the picketing, including the following.

Subject to the qualification noted below, the picketing would appear to be primary picketing

if the picketing is:

1. Limited to times when the employees of the primary employer are working on the

premises.

2. Limited to times when the primary employer is carrying on its normal business there.

3. Confined to places reasonably close to where the employees of the primary employer

are working.

4. Conducted so that the picket signs, the banners, and the conduct of the pickets indicate

clearly that the dispute is with the primary employer and not with the secondary

employer.

These guidelines are known as the Moore Dry Dock standards from the case in which

they were first formulated by the NLRB. However, the NLRB has held that picketing at a

common situs may be unlawful notwithstanding compliance with the Moore Dry Dock standards

if a union’s statements or actions otherwise indicate that the picketing has an unlawful objective.

In some situations a company may set aside, or reserve, a certain plant gate, or entrance

to its premises, for the exclusive use of a contractor. If a union has a labor dispute with

the company and pickets the company’s premises, including the gate so reserved, the union

may be held to have violated Section 8(b)(4)(B). The U.S. Supreme Court has stated the circumstances under which such a violation may be found as follows:

There must be a separate gate, marked and set apart from other gates; the work done

by the employees who use the gate must be unrelated to the normal operations of the

employer, and the work must be of a kind that would not, if done when the plant were

engaged in its regular operations, necessitate curtailing those operations.

However, if the reserved gate is used by employees of both the company and the contractor,

the picketing would be considered primary and not a violation of Section 8(b)(4)(B).

Section 8(b)(4)(B) also prohibits secondary action to compel an employer to recognize

or bargain with a union that is not the certified representative of its employees. If a union

takes action described in clause (i) or (ii) against a secondary employer, and the union’s object

Subparagraph (B)—Prohibited

object: Compelling recognition of

an uncertified union

Picketing contractors’ gates
49

is recognition by the primary employer, the union commits an unfair labor practice under

this section. To establish that the union has an object of recognition, a specific demand by

the union for recognition need not be shown; a demand for a contract, which implies recognition

or at least bargaining, is enough to establish an 8(b)(4)(B) object.

Section 8(b)(4)(C) forbids a labor organization from using clause (i) or (ii) conduct to

force an employer to recognize or bargain with a labor organization other than the one that

is currently certified as the representative of its employees. Section 8(b)(4)(C) has been held

not to apply when the picketing union is merely protesting working conditions that are substandard for the area.

Section 8(b)(4)(D) forbids a labor organization from engaging in action described in clauses

(i) and (ii) for the purpose of forcing 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.’’ The Act sets up a special

procedure for handling disputes over work assignments that will be discussed later in this

material (see p. 50).

The final provision in Section 8(b)(4) provides that nothing in Section 8(b)(4) shall be

construed ‘‘to prohibit publicity, other than picketing, for the purpose of truthfully advising

the public, including consumers and members of a labor organization, that a product or products

are produced by an employer with whom the labor organization has a primary dispute and

are distributed by another employer.’’ Such publicity is not protected if it has ‘‘an effect of

inducing any individual employed by any persons other than the primary employer’’ to refuse

to handle any goods or not to perform services. The Supreme Court has held that this provision

permitted a union to distribute handbills at the stores of neutral food chains asking the public

not to buy certain items distributed by a wholesaler with whom the union had a primary

dispute. Moreover, it has also held that peaceful picketing at the stores of a neutral food

chain to persuade customers not to buy the products of a struck employer when they traded

in these stores was not prohibited by Section 8(b)(4).

Section 8(b)(5) makes it illegal for a union to charge employees who are covered by

an authorized union-security agreement a membership fee ‘‘in an amount which the Board

finds excessive or discriminatory under all the circumstances.’’ The section also provides that

the Board in making its finding must consider among other factors ‘‘the practices and customs

Section 8(b)(5)—

Excessive or

Discriminatory

Membership Fees

Publicity such as handbilling

allowed by Section 8(b)(4)

Subparagraph (D)—Prohibited

object: Compelling assignment of

certain work to certain employees

Subparagraph (C)—Prohibited

object: Compelling recognition of a

union if another union has been

certified
50

of labor organizations in the particular industry, and the wages currently paid to the employees

affected.’’

Examples of violations of this section include:

• Charging old employees who do not join the union until after a union-security agreement goes into effect an initiation fee of $15 while charging new employees only

35.

• Increasing the initiation fee from $75 to 1250 and thus charging new members

an amount equal to about 4 weeks’ wages when other unions in the area charge

a fee equal to about one-half the employee’s first week’s pay.

Section 8(b)(6) forbids 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 the nature

of an exaction, for services which are not performed or not to be performed.’’

Section 8(b)(7) prohibits a labor organization that is not currently certified as the employees’

representative from picketing or threatening to picket with an object of obtaining recognition

by the employer (recognitional picketing) or acceptance by his employees as their representative

(organizational picketing). The object of picketing is ascertained from all the surrounding facts

including the message on the picket signs and any communications between the union and

the employer. ‘‘Recognitional’’ picketing as used in Section 8(b)(7) refers to picketing to obtain

an employer’s initial recognition of the union as bargaining representative of its employees

or to force the employer, without formal recognition of the union, to maintain a specific and

detailed set of working conditions. It does not include picketing by an incumbent union for

continued recognition or for a new contract. Neither does it include picketing that seeks to

prevent the employer from undermining area standards of working conditions by operating

at less than the labor costs which prevail under bargaining contracts in the area.

Recognitional and organizational picketing are prohibited in three specific instances.

A. When the employer has lawfully recognized another union and a representation election

would be barred by either the provisions of the Act or the Board’s Rules, as in

the case of a valid contract between the employer and the other union (8(b)(7)(A)).

(A union is considered lawfully recognized when the employer’s recognition of the

union cannot be attacked under the unfair labor practice provisions of Section 8

of the Act.)

Section 8(b)(7)—

Organizational and

Recognitional Picketing

by Noncertified Unions

Section 8(b)(6)—

‘‘Featherbedding’’

Examples of violations of Section

8(b)(5)
51

B. When a valid NLRB representation election has been held within the previous 12

months (8(b)(7)(B)).

C. When a representation petition is not filed ‘‘within a reasonable period of time not

to exceed thirty days from the commencement of such picketing’’ (8(b)(7)(C)).

Subparagraph (C) is subject to an exception, called a proviso, which permits picketing

‘‘for the purpose of truthfully advising the public (including consumers)’’ that an employer

does not employ union members or have a contract with a labor organization. However, such

picketing loses the protection of this proviso if it has a substantial effect on the employer’s

business because it induces ‘‘any individual employed by any other person’’ to refuse to pick

up or deliver goods or to perform other services.

If an 8(b)(7)(C) charge is filed against the picketing union and a representation petition

is filed within a reasonable time after the picketing starts, subparagraph (C) provides for an

election to be held forthwith. This election requires neither a hearing nor a showing of interest

among the employees. As a consequence the election can be held and the results obtained

faster than in a regular election under Section 9(c), and for this reason it is called an ‘‘expedited’’

election. Petitions filed more than a reasonable time after picketing begins and petitions filed

during picketing protected by the 8(b)(7)(C) proviso, discussed above, are processed under

normal election procedures and the election will not be expedited. The reasonable period in

which to file a petition cannot exceed 30 days and may be shorter, when, for instance, picketing

is accompanied by violence.

Examples of violations of Section 80(7) are as follows:

• Picketing by a union for organizational purposes shortly after the employer has entered

a lawful contract with another union (8(b)(7)(A)).

• Picketing by a union for organizational purposes within 12 months after a valid

NLRB election in which a majority of the employees in the unit voted to have

no union (8(b)(7)(B)).

• Picketing by a union for recognition continuing for more than 30 days without

the filing of a representation petition wherein the picketing stops all deliveries by

employees of an other employer (8(b)(7)(C)).

Section 8(e) makes it an unfair labor practice for an employer or a labor organization

to enter a hot cargo agreement. This section applies equally to unions and to employers. The

Section 8(e)—Entering a

Hot Cargo Agreement

Examples of violations of Section

8(b)(7)

Expedited elections under Section

8(b)(7)(C)

Publicity picketing
52

discussion of this section as an unfair labor practice of employers has been treated as a discussion

of an unfair labor practice of unions as well. (See pp. 26 and 27.)

Section 8(g) prohibits a labor organization from engaging in a strike, picketing, or other

concerted refusal to work at any health care institution without first giving at least 10 days’

notice in writing to the institution and the Federal Mediation and Conciliation Service.

The rights of employees declared by Congress in the National Labor Relations Act are

not self-enforcing. To ensure that employees may exercise these rights, and to protect them

and the public from unfair labor practices, Congress established the NLRB to administer and

enforce the Act.

The NLRB includes the Board, which is composed of five members with their respective

staffs, the General Counsel and staff, and the Regional, Subregional, and Resident Offices. The

General Counsel has final and independent authority on behalf of the Board, in respect to

the investigation of charges and issuance of complaints. Members of the Board are appointed

by the President, with consent of the Senate, for 5-year terms. The General Counsel is also

appointed by the President, with consent of the Senate, for a 4-year term. Offices of the Board

and the General Counsel are in Washington, D.C. To assist in administering and enforcing

the law, the NLRB has established 33 regional and a number of other field offices. These

offices, located in major cities in various States and Puerto Rico, are under the general supervision

of the General Counsel.

The Agency has two main functions: to conduct representation elections and certify the

results, and to prevent employers and unions from engaging in unfair labor practices. In both

kinds of cases the processes of the NLRB are begun only when requested. Requests for such

action must be made in writing on forms provided by the NLRB and filed with the proper

Regional Office. The form used to request an election is called a ‘‘petition,’’ and the form

for unfair labor practices is called a ‘‘charge.’’ The filing of a petition or a charge sets in

motion the machinery of the NLRB under the Act. Before discussing the machinery established

by the Act, it would be well to understand the nature and extent of the authority of the

NLRB.

The NLRB gets its authority from Congress by way of the National Labor Relations Act.

The power of Congress to regulate labor-management relations is limited by the commerce

clause of the United States Constitution. Although it can declare generally what the rights of

Authority of the NLRB

Functions of the NLRB

The Regional Offices

The General Counsel

The Board

Organization of the NLRB

How the Act Is

Enforced

Section 8(g)—Striking or

Picketing a Health Care

Institution Without Notice
53

employees are or should be, Congress can make its declaration of rights effective only in respect

to enterprises whose operations ‘‘affect commerce’’ and labor disputes that ‘‘affect commerce.’’

The NLRB, therefore, can direct elect ions and certify the results only in the case of an employer

whose operations affect commerce. Similarly, it can act to prevent unfair labor practices only

in cases involving labor disputes that affect, or would affect, commerce.

‘‘Commerce’’ includes trade, traffic, transportation, or communication within the District

of Columbia or any Territory of the United States; or between any State or Territory and

any other State, Territory, or the District of Columbia; or between two points in the same

State, but through any other State, Territory, the District of Columbia, or a foreign country.

Examples of enterprises engaged in commerce are:

• A manufacturing company in California that sells and ships its product to buyers

in Oregon.

• A company in Georgia that buys supplies in Louisiana.

• A trucking company that transports goods from one point in New York State through

Pennsylvania to another point in New York State.

• A radio station in Minnesota that has listeners in Wisconsin.

Although a company may not have any direct dealings with enterprises in any other State,

its operations may nevertheless affect commerce. The operations of a Massachusetts manufacturing

company that sells all of its goods to Massachusetts wholesalers affect commerce if the wholesalers

ship to buyers in other States. The effects of a labor dispute involving the Massachusetts manufacturing concern would be felt in other States and the labor dispute would, therefore, ‘‘affect’’

commerce. Using this test, it can be seen that the operations of almost any employer can

be said to affect commerce. As a result, the authority of the NLRB could extend to all but

purely local enterprises.

The scope of the commerce clause is limited, however, by the first amendment’s prohibition

against Congress’ enacting laws restricting the free exercise of religion. Because of this potential

conflict, and because Congress has not clearly expressed an intention that the Act cover lay

faculty in church-operated schools, the Supreme Court has held that the Board may not assert

jurisdiction over faculty members in such institutions.

Although the National Labor Relations Board could exercise its powers to enforce the Act

in all cases involving enterprises whose operations affect commerce, the Board does not act

in all such cases. In its discretion it limits the exercise of its power to cases involving enterprises

The Board does not act in all cases

affecting commerce

When the operations of an

employer affect commerce

What is commerce

Enterprises whose operations

affect commerce
54

whose effect on commerce is substantial. The Board’s requirements for exercising its power

or jurisdiction are called ‘‘jurisdictional standards.’’ These standards are based on the yearly

amount of business done by the enterprise, or on the yearly amount of its sales or of its

purchases. They are stated in terms of total dollar volume of business and are different for

different kinds of enterprises. The Board’s standards in effect on July 1, 1990, are as follows:

1. Nonretail business: Direct sales of goods to consumers in other States, or indirect sales

through others (called outflow), of at least $50,000 a year; or direct purchases of goods

from suppliers in other States, or indirect purchases through others (called inflow), of

at least $50,000 a year.

2. Office buildings: Total annual revenue of $100,000 of which S25,000 or more is derived

from organizations that meet any of the standards except the indirect outflow and indirect

inflow standards established for nonretail enterprises.

3. Retail enterprises: At least $500,000 total annual volume of business.

4. Public utilities: At least $250,000 total annual volume of business, or $50,000 direct

or in direct outflow or inflow.

5. Newspapers: At least $200,000 total annual volume of business.

6. Radio, telegraph, television, and telephone enterprises: At least S100,000 total annual

volume of business.

7. Hotels, motels, and residential apartment houses: At least $500,000 total annual volume

of business.

8. Privately operated health care institutions: At least $250,000 total annual volume of

business for hospitals; at least $100,000 for nursing homes, visiting nurses associations,

and related facilities; at least $250,000 for all other types of private health care institutions

defined in the 1974 amendments to the Act. The statutory definition includes: ‘‘any

hospital, convalescent hospital, health maintenance organizations, health clinic, nursing

home, extended care facility or other institution devoted to the care of the sick, infirm,

or aged person.’’ Public hospitals are excluded from NLRB jurisdiction by Section 2(2)

of the Act.

9. Transportation enterprise, links and channels of interstate commerce: At least $50,000

total annual income from furnishing interstate passenger and freight transportation services;

also performing services valued at $50,000 or more for businesses which meet any

NLRB jurisdictional standards
55

of the jurisdictional standards except the indirect outflow and indirect inflow of standards

established for nonretail enterprises.

10. Transit systems: At least $250,000 total annual volume of business.

11. Taxicab companies: At least $500,000 total annual volume of business.

12. Associations: These are regarded as a single employer in that the annual business of

all association members is totaled to determine whether any of the standards apply.

13. Enterprises in the Territories and the District of Columbia: The jurisdictional standards

apply in the Territories; all businesses in the District of Columbia come under NLRB

jurisdiction.

14. National defense: Jurisdiction is asserted over all enterprises affecting commerce when

their operations have a substantial impact on national defense, whether the enterprises

satisfy any other standard.

15. Private universities and colleges: At least $1 million gross annual revenue from all

sources (excluding contributions not available for operating expenses because of limitations imposed by the grantor).

16. Symphony orchestras: At least $1 million gross annual revenue from all sources (excluding contributions not available for operating expenses because of limitations imposed

by the grantor).

17. Law firms and legal assistance programs: At least $250,000 gross annual revenues.

18. Employers that provide social services: At least $250,000 gross annual revenues.

Through enactment of the 1970 Postal Reorganization Act, jurisdiction of the NLRB was

extended to the United States Postal Service, effective July 1, 1971.

In addition to the above-listed standards, the Board asserts jurisdiction over gambling casinos

when these enterprises are legally operated, when their total annual revenue from gambling

is at least S500,000.

Ordinarily, if an enterprise does the total annual volume of business listed in the standard,

it will necessarily be engaged in activities that ‘‘affect’’ commerce. The Board must find, however,

based on evidence, that the enterprise does in fact ‘‘affect’’ commerce.

The Board has established the policy that when an employer whose operations ‘‘affect’’

commerce refuses to supply the Board with information concerning total annual business, the

Board may dispense with this requirement and exercise jurisdiction.
56

Finally, Section 14(c)(1) authorizes the Board, in its discretion, to decline to exercise jurisdiction over any class or category of employers when a labor dispute involving such employees

is not sufficiently substantial to warrant the exercise of jurisdiction, provided that it cannot

refuse to exercise jurisdiction over any labor dispute over which it would have asserted jurisdiction under the standards it had in effect on August 1, 1959. In accordance with this provision

the Board has determined that it will not exercise jurisdiction over racetracks, owners, breeders,

and trainers of racehorses, and real estate brokers.

In addition to the foregoing limitations, the Act states that the term ‘‘employee’’ shall

include any employee except the following:

• Agricultural laborers.

• Domestic servants.

• Any individual employed by his parent or spouse.

• Independent contractors.

• Supervisors.

• Individuals employed by an employer subject to the Railway Labor Act.

• Government employees, including those employed by the U.S. Government, any

Government corporation or Federal Reserve Bank, or any State or political subdivision

such as a city, town, or school district.

Supervisors are excluded from the definition of ‘‘employee’’ and, therefore, not covered

by the Act. Whether an individual is a supervisor for purposes of the Act depends on that

individual’s authority over employees and not merely a title. A supervisor is defined by the

Act as any individual who has the authority, acting in the interest of an employer, to cause

another employee to be hired, transferred, suspended, laid off, recalled, promoted, discharged,

assigned, rewarded, or disciplined, either by taking such action or by recommending it to

a superior; or who has the authority responsibly to direct other employees or adjust their

grievances; provided, in all cases, that the exercise of authority is not of a merely routine

or clerical nature, but requires the exercise of independent judgment. For example, a foreman

who determined which employees would be laid off after being directed by the job superintendent

to lay off four employees would be considered a supervisor and would, therefore, not be

covered by the Act; a ‘‘strawboss’’ who, after someone else determined which employees would

be laid off, merely informed the employees of the layoff and who neither directed other employees

Supervisor defined

The Act does not cover certain

individuals
57

nor adjusted their grievances would not be considered a supervisor and would be covered

by the Act.

‘‘Managerial’’ employees are also excluded from the protection of the Act. A managerial

employee is one who represents management interests by taking or recommending actions that

effectively control or implement employer policy.,

The term ‘‘employer’’ includes any person who acts as an agent of an employer, but

it does not include the following:

• The United States or any State Government, or any political subdivision of either,

or any Government corporation or Federal Reserve Bank.

• Any employer subject to the Railway Labor Act.

The authority of the NLRB can be brought to bear in a representation proceeding only

by the filing of a petition. Forms for petitions must be signed, sworn to or affirmed under

oath, and filed with the Regional Office in the area where the unit of employees is located.

If employees in the unit regularly work in more than one regional area, the petition may

be filed with the Regional Office of any of such regions.

Section 9(c)(1) provides that when a petition is filed, ‘‘the Board shall investigate such

petition and if it has reasonable cause to believe that a question of representation affecting

commerce exists shall provide for an appropriate hearing upon due notice.’’ If the Board finds

from the evidence presented at the hearing that ‘‘such a question of representation exists,

it shall direct an election by secret ballot and shall certify the results thereof.’’ When there

are three or more choices on the ballot and none receives a majority, Section 9(c)(3) provides

for a runoff between the choice that received the largest and the choice that received the

second largest number of valid votes in the election. After the election, if a union receives

a majority of the votes cast, it is certified; if no union gets a majority, that result is certified.

A union that has been certified is entitled to be recognized by the employer as the exclusive

bargaining agent for the employees in the unit. If the employer fails to bargain with the onion,

it commits an unfair labor practice.

The procedure in an unfair labor practice case is begun by the filing of a charge. A

charge may be filed by an employee, an employer, a labor organization, or any other person.

Like petitions, charge forms, which are also available at Regional Offices, must be signed, sworn

to or affirmed under oath, and filed with the appropriate Regional Office—that is, the Regional

Office in the area where the alleged unfair labor practice was committed. Section 10 provides

Procedure in unfair labor practice

cases

Procedure in representation cases

NLRB Procedures

The Act does not cover certain

employers
58

for the issuance of a complaint stating the charges and notifying the charged party of a hearing

to be held concerning the charges. Such a complaint will issue only after investigation of

the charges through the Regional Office indicates that an unfair labor practice has in fact

occurred.

In certain limited circumstances when an employer and union have an agreed-upon grievance

arbitration procedure that will resolve the dispute, the Board will defer processing an unfair

labor practice case and await resolution of the issues through that grievance arbitration procedure.

If the grievance arbitration process meets the Board’s standards, the Board may accept the

final resolution and defer that decision. If the procedure fails to meet all the Board standards

for deferral, the Board may then resume processing of the unfair labor practice issues.

An unfair labor practice hearing is conducted before an NLRB administrative law judge

in accordance with the rules of evidence and procedure that apply in the U.S. district courts.

Based on the hearing record, the administrative law judge makes findings and recommendations

to the Board. All parties to the hearing may appeal the administrative law judge’s decision

to the Board. If the board considers that the party named in the complaint has engaged in

or is engaging in the unfair labor practices charged, the Board is authorized to issue an order

requiring such person to cease and desist from such practices and to take appropriate affirmative

action.

Section 10(b) provides that ‘‘no complaint shall issue based upon any unfair labor practice

occurring more than six months prior to the filing of the charge with the Board and the

service of a copy thereof upon the person against whom such charge is made.’’ An exception

is made if the charging party ‘‘was prevented from filing such charge by reason of service

in the armed forces, in which event the six-month period shall be computed from the day

of his discharge.’’ It should be noted that the charging party must, within 6 months after

the unfair labor practice occurs, file the charge with the Regional Office and serve copies

of the charge on each person against whom the charge is made. Normally service is made

by sending the charge by registered mail, return receipt requested.

If the Regional Director refuses to issue a complaint in any case, the person who filed

the charge may appeal the decision to the General Counsel in Washington. Section 3(d) places

in the General Counsel ‘‘final authority, on behalf of the Board, in respect of the investigation

of charges and issuance of complaints.’’ If the General Counsel reverses the Regional Director’s

Appeal to the General Counsel if

complaint is not issued

The 6-month rule limiting issuance

of complaint
59

decision, a complaint will be issued. If the General Counsel approves the decision not to

issue a complaint, there is no further appeal.

To enable the NLRB to perform its duties under the Act, Congress delegated to the Agency

certain powers that can be used in all cases. These are principally powers having to do with

investigations and hearings.

As previously indicated, all charges that are filed with the Regional Office are investigated,

as are petitions for representation elections. Section 11 establishes the powers of the Board

and the Regional Offices in respect to hearings and investigations. The provisions of Section

11(1) authorize the Board or its agents to:

• Examine and copy ‘‘any evidence of any person being investigated or proceeded

against that relates to any matter under investigation or in question.’’

• Issues subpoenas, on the application of any party to the proceeding, requiring the

attendance and testimony of witnesses or the production of any evidence.

• Administer oaths and affirmations, examine witnesses, and receive evidence.

• Obtain a court order to compel the production of evidence or the giving of testimony.

The National Labor Relations Act is not a criminal statute. It is entirely remedial. It is

intended to prevent and remedy unfair labor practices, not to punish the person responsible

for them. The Board is authorized by Section 10(c) not only to issue a cease-and-desist order,

but ‘‘to take such affirmative action including reinstatement of employees with or without back

pay, as will effectuate the policies of this Act.’’

The object of the Board’s order in any case is twofold: to eliminate the unfair labor practice

and to undo the effects of the violation as much as possible. In determining what the remedy

will be in any given case, the Board has considerable discretion. Ordinarily, its order in regard

to any particular unfair labor practice will follow a standard form that is designed to remedy

that unfair labor practice, but the Board can, and often does, change the standard order to

meet the needs of the case. Typical affirmative action of the Board may include orders to

an employer who has engaged in unfair labor practices to:

• Disestablish an employer-dominated union.

• Offer certain named individuals immediate and full reinstatement to their former

positions or, if those positions no longer exist, to substantially equivalent positions

without prejudice to their seniority and other rights and privileges, and with backpay,

including interest.

Examples of affirmative action

directed to employers

Affirmative action may be ordered

by the Board

The Act is remedial, not criminal

Powers concerning investigations

Powers of the NLRB
60

• On request, bargain collectively with a certain union as the exclusive representative

of the employees in a certain described unit and sign a written agreement if an

understanding is reached.

Examples of affirmative action that may be required of a union that has engaged in unfair

labor practices include orders to:

• Notify the employer and the employees that it has no objection to reinstatement

of certain employees, or employment of certain applicants, whose discriminatory discharge, or denial of employment, was caused by the union.

• Refund dues or fees illegally collected, plus interest.

• On request, bargain collectively with a certain employer and sign a written agreement

if one is reached.

The Board’s order usually includes a direction to the employer or the union or both requiring

them to post notices in the employer’s plant or the union’s office notifying the employees

that they will cease the unfair labor practices and informing them of any affirmative action

being undertakento remedy the violation. Special care is taken to be sure that these notices

are readily understandable by the employees to whom they are addressed.

Special proceedings are required by the Act in certain kinds of cases. These include the

determination of jurisdictional disputes under Section 10(k) and injunction proceedings under

Section 10(1) and (j).

Whenever it is charged that any person has engaged in an unfair labor practice in violation

of Section 8(b)(4)(D), the Board must hear and determine the dispute out of which the unfair

labor practice arises. Section 8(b)(4)(D) prohibits unions from striking or inducing a strike to

compel an employer to assign particular work to employees in one union, or in one trade

or craft, rather than another. For a jurisdictional dispute to exist, there must be real competition

between unions or between groups of employees for certain work. In effect, Section 10(k)

provides an opportunity for the parties to adjust the dispute during a 10-day period after notice

of the 8(b)(4)(D) charge has been served. At the end of this period if the parties have not

submitted to the Board satisfactory evidence that they have adjusted, or agreed on a method

of adjusting, the dispute, the Board is ‘‘empowered and directed’’ to determine which of the

competing groups is entitled to have the work.

Section 10(l) provides that whenever a charge is filed alleging a violation of certain sections

of the Act relating to boycotts, picketing, and work stoppages, the preliminary investigation

Proceedings in jurisdictional

disputes

Special Proceedings in

Certain Cases

Examples of affirmative action

directed to unions
61

of the charge must be given priority over all other types of cases in the Regional Office

where it is filed. The unfair labor practices subject to this priority concerning the investigation

are those defined in Section 8(b)(4)(A), (B), or (C), all three subparagraphs of Section 8(b)(7),

Section 8(e) and, where appropriate, 8(b)(4)(D). Section 10(m) requires that second priority

be given to charges alleging violations of Section 8(a)(3), the prohibition against employer discrimination to encourage or discourage membership in a union, and Section 8(b)(2), which forbids

unions to cause or attempt to cause such discrimination.

If the preliminary investigation of any of the first priority cases shows that there is reasonable

cause to believe that the charge is true and that a complaint should issue, Section 10(l) further

requires the Board to petition a U.S. district court to grant an injunction pending the final

determination of the Board. The section authorizes the court to grant ‘‘such injunctive relief

or temporary restraining order as it deems just and proper.’’ Another provision of the section

prohibits the application for an injunction based on a charge of violation of Section 8(b)(7)

(the prohibition on organizational or recognitional picketing in certain situations) if a charge

against an employer alleging violation of Section 8(a)(2) has been filed and the preliminary

investigation establishes reasonable cause to believe that such charge is true.

Section 10(j) allows the Board to petition a Federal district court for an injunction to

temporarily prevent any unfair labor practice after a complaint has been issued and to restore

the status quo, pending the full review of the case by the Board. This section does not require

that injunctive relief be sought, but only makes it possible for the Board to do so in cases

when it is considered appropriate.

If an employer or a union fails to comply with a Board order, Section 10(e) empowers

the Board to petition the U.S. court of appeals for a court decree enforcing the order of

the Board enjoining conduct that the Board has found to be unlawful. Section 10(f) provides

that any person aggrieved by a final order of the Board granting or denying in whole or

in part the relief sought may obtain a review of such order in any appropriate circuit court

of appeals. When the court of appeals hears a petition concerning a Board order, it may

enforce the order, remend it to the Board for reconsideration, change it, or set it aside entirely.

If the court of appeals issues a judgment enforcing the Board order, failure to comply may

be punishable by fine or imprisonment for contempt of court.

In the U.S. court of appeals

Court Enforcement of

Board Orders

Injunctive relief may be sought in

other cases

Injunction proceedings under

Section 10(l)

The investigation of certain

charges must be given priority
62

In some cases the U.S. Supreme Court may be asked to review the decision of a circuit

court of appeals, particularly when there is a conflict in the views of different courts on

the same important problem.

In this material the entire Act has been covered, but, of necessity, the coverage has been

brief. No attempt has been made to state the law in detail or to supply you with a textbook

on labor law. We have tried to explain the Act in a manner intended to make it easier to

understand what the basic provisions of the Act are and how they may concern you. If it

helps you to recognize and know your rights and obligations under the Act, and aids in determining whether you need expert assistance when a problem arises, its purpose will have been

satisfied. More than that, the objective of the Act will have been furthered.

The objective of the National Labor Relations Act, to avoid or reduce industrial strife and

protect the public health, safety, and interest, can best be achieved by the parties or those

who may become parties to an individual dispute. Voluntary adjustment of differences at the

community and local level is almost invariably the speediest, most satisfactory, and longest

lasting way of carrying out the objective of the Act.

Efforts are being made in all our Regional Offices to increase the understanding of all

parties about what the law requires of them. Long experience has taught us that when the

parties fully understand their rights and obligations, they are more ready and able to adjust

their differences voluntarily. Seldom do individuals go into a courtroom, a hearing, or any

other avoidable contest, knowing that they are in the wrong and that they can expect to

lose the decision. No one really likes to be publicly recorded as a law violator (and a loser

too). Similarly, it is seldom that individuals refuse to accept an informal adjustment of differences

that is reasonable, knowing that they can obtain no better result from the formal proceeding,

even if they prevail.

The consequences of ignorance in these matters—formal proceedings that can be timeconsuming and costly, and that are often followed by bitterness and antagonism—are economically

wasteful, and usually it is accurate to say that neither party really wins. It is in an attempt

to bring about more widespread awareness of the basic law and thus help the parties avoid

these consequences that this material has been prepared and presented as a part of a continuing

program to increase understanding of the National Labor Relations Act.

Conclusion

Review by the U.S. Supreme Court
63

MAP SHOWING REGIONAL BOUNDARIES
64
65

NATIONAL LABOR RELATIONS BOARD DIRECTORY*

Region 1

10 Causeway Street—6th Floor

Boston MA 02222–1072

(617) 565–6700

Region 2

26 Federal Plaza—Room 3614

New York NY 10278–0104

(212) 264–0300

Region 3

111 West Huron Street—Room 901

Buffalo NY 14202–2387

(716) 846–4931

Region 4

615 Chestnut Street—7th Floor

Philadelphia PA 19106–4404

(215) 597–7601

Region 5

The Appraisers Store Building

103 South Gay Street—8th Floor

Baltimore MD 21202–4026

(410) 962–2822

Region 6

1000 Liberty Avenue—Room 1501

Pittsburgh PA 15222–4173

(412) 644–2977

Region 7

477 Michigan Avenue—Room 300

Detroit MI 48226–2569

(313) 226–3200

Region 8

1240 East 9th Street—Room 1695

Cleveland OH 44199–2086

(216) 522–3715

Region 9

550 Main Street—Room 3003

Cincinnati OH 45202–3272

(513) 684–3686

Region 10

101 Marietta Street NW—Suite 2400

Atlanta GA 30323–3301

(404) 331–2896

Region 11

Republic Square, Suite 200

4035 University Parkway

Winston-Salem NC 27106–3325

(910) 631–5201

Region 12

Enterprise Plaza—Suite 530

201 East Kennedy Boulevard

Tampa FL 33602–5824

(813) 228–2641

Region 13

200 West Adams Street—Suite 800

Chicago IL 60606–5208

(312) 353–7570

Region 14

1222 Spruce Street, Room 8.302

St. Louis MO 63103–2829

(314) 539–7770

Region 15

1515 Poydras Street—Room 610

New Orleans LA 70112–3723

(504) 589–6361

Region 16

819 Taylor Street—Room 8A24

Fort Worth TX 76102–6178

(817) 978–2921

Region 17

8600 Farley Street—Suite 100

Overland Park KS 66212–4677

(913) 967–3000

Region 18

110 South 4th Street—Room 316

Minneapolis MN 55401–2291

(612) 348–1757
66

*For addresses and telephone numbers of various subregional offices please consult your local telephone directory.

Region 19

915 2nd Avenue—Room 2948

Seattle WA 98174–1078

(206) 220–6300

Subregional Office 36—Region 19

222 SW Columbia Street—Room 401

Portland OR 97201–6604

(503) 326–3085

Region 20

901 Market Street—Room 400

San Francisco CA 94103–1735

(415) 356–5130

Subregional Office 37—Region 20

300 Ala Moana Boulevard—Room 7318

Honolulu HI 96850–4980

(808) 541–2814

Region 21

888 Figueroa Street—9th Floor

Los Angeles CA 90017–5449

(213) 894–5200

Region 22

970 Broad Street—Room 1600

Newark NJ 07102–2570

(201) 645–2100

Region 24

La Torre de Plaza

Plaza Las Americas, Suite 1002

525 F. D. Rossevelt Avenue

Hato Rey PR 00918–1002

(787) 766–5347

Region 25

575 N. Pennsylvania Street—Room 238

Indianapolis IN 46204–1577

(317) 226–7430

Region 26

1407 Union Avenue—Room 800

Memphis TN 38104–3627

(901) 544–0018

Region 27

600 17th Street—3rd Floor, South Tower

Denver CO 80202–5433

(303) 844–3551

Region 28

234 North Central Avenue—Suite 440

Phoenix AZ 85004–2212

(602) 379–3361

Region 29

One MetroTech Center

Jay Street and Myrtle Avenue—10 Floor

Brooklyn NY 11201–4201

(718) 330–7713

Region 30

310 West Wisconsin Avenue—Suite 700

Milwaukee WI 53202–2211

(414) 297–3861

Region 31

11000 Wilshire Boulevard—Room 12100

Los Angeles CA 90024–3682

(310) 235–7352

Region 32

1301 Clay Street—Room 300N

Oakland CA 94612–5211

(510) 637–3300

Region 33

300 Hamilton Boulevard—Suite 200

Peoria IL 61602–1246

(309) 671–7080

Region 34

One Commercial Plaza—21st Floor

Hartford CT 06103–3599

(860) 240–3522