ULTRA: Unfair Labor Practices

The law is clear in its intent but weak and convoluted in practice. Courts generally attempt a “balancing” of rights between workers and employers. For example, in access cases dealing with property rights, employers are given a right to act by the Board regardless of the destructive or adverse effects in some situations such as when they use of permanent replacements during a strike.

What employers can’t do (Word document)

Interference, restraint or coercion
3 categories of employer action:

	“inherently destructive” of employee rights
	“adverse impact” on employee rights
	“legitimate business justification”

Domination or interference in a labor organization
This is the problem of company unions, those that give the appearance of independence but are, in fact, controlled by the employer. The law supports arms length bargaining and enlightened self interest.

Discrimination based on union activity
also 8(b)(2)
Unions represent all workers, not just those employers consider to be model employees.
Wright Line standards of proof in mixed motive discipline cases

Constructive discharge
Weigand case from Edward C Budd Mfg co v. NLRB 138 F2d 86 (3rd Cir 1943)

Plant closings
If the employer’s decision is motivated by anti-union animus, there may be grounds for a ULP charge.

Retaliation for exercising rights
Although supervisors are not covered by the NLRA, ULP charges have been issued in cases where employers retaliate against supervisors who give testimony in ULP cases. Supervisors also have legal rights that can be raised when they have been discharged for refusing to commit ULPs or for failure to prevent union organizing.

Causes of withdrawal and dismissal of ULP charges

	Violations occurred but necessary evidence was not produced
	Violations occurred but NLRB regional office personnel not sufficiently familiar with Act to recognize evidence
	Violations did not occur but charges were filed anyway by an organizer not sufficiently familiar with the Act
	Independent 8(a)(1) violations not alleged on charge form

ULPs during an election campaign

	Failure to provide an Excelsior list
	24-hour rule against “captive audience” meetings
	Misuse of Board documents
	Contaminated election conditions
	Community interference
	Appeals to racial prejudice
	Campaign interference

Board remedies

	Order a new election
	Cease and desist order
	Mail notices to all employees concerning misconduct
	Issue a bargaining order (Gissel Packing Co 395 U.S. 575, 591 (1969)
	Granting union organizers access during work time
	Pay attorney costs for filing frivolous and dilatory appeals

ULP Procedure

Evidence of employer misconduct considered by a Board agent when processing a charge:

TIPS

	Threats
	Interrogation
	Promises
	Spying

NOTE: The Board often dismisses good cases.

Principle is use it or lose it!

	Organizers can be creative under existing limited framework
	Using Board for more than election procedures helps build case for adequate funding.
	Alternative to administrative agency structure is review by judiciary which is far more hostile to worker rights.

How a Charge is Processed

Filing unfair labor practice charges

	The time limit is 180 days (six months) for filing charges.
	Charges may be amended beyond this limit if additional violations occur.
	After case is filed, board agent handles.
	It is better to have the union file charges; there is a greater right of participation in proceedings.
	May review affidavits (formal statements given by witnesses)
	May be able to sit in during depositions -cannot participate directly, but may call for strategic recesses
	The court may impose some limits to participation.
	The union should file a position statement prior to regional directors' decision to issue a charge.
	Avoid disclosing factual information in charge itself

Deferral Doctrine
Collective bargaining agreements rarely provide for arbitration of statutory disputes. This presents the possibility of a conflict between the Board authority versus that of the arbitrator to interpret basic statutory rights. According to the doctrine established in Collyer Wire [Collyer Insulated Wire, 192 NLRB 837 (1971)], a determination of a ULP violation depends on interpretation of the contract. The Board normally will defer a ULP case as long as the employer is willing to arbitrate the underlying dispute and will not assert any procedural arbitration defenses. Deferring a charge is advantageous for moving caseloads forward. However, the Board must assert jurisdiction over enforcement unless specific arbitration criteria are followed.

The NLRB must consider the following Spielberg Criteria [Spielberg Mfg. Co., 112 NLRB 1080 (1955)] for deferral

	There must be a fair hearing.
	The contract provides for mandatory and binding arbitration.
	The result is consistent with Board policies (not repugnant to the Act).
	There is specific consideration of ULP issues.
	There is no deferral for representation issues (coverage of accretion to unit) or for information requests.