Filing An Unfair Labor Practice Charge
Section 8 of the National Labor Relations Act sets forth the types of unfair labor practices prohibited by the Act. In deciding whether you should file a charge, it is suggested that you contact the Information Officer located at the closest Regional office, who will first listen to what concerns you and then fully explain what is and what is not covered by the Act.
Examples of Employer Conduct Which Violate the NLRA 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.
- 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 creating an impression of surveillance.
- Videotaping and/or photographing Union organizers and employees who are engaged in lawful handbilling.
- Restricting discussions pertaining to the Union, without uniform enforcement of a written rule that employees are not allowed to discuss nonwork topics.
- Granting wage increases deliberately timed to discourage employees from forming or joining a Union.
- Promising benefits to employees to discourage their Union support.
- Promising to reward employees for aid in campaigning against the Union.
- Promising improved working conditions if the Union is defeated.
- Transferring, laying off, terminating or assigning employees more difficult work tasks because they engaged in Union or protected concerted activity, such as supporting a Union.
Examples of Labor Organization Conduct Which Violate the NLRA Are:
- 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.
- Refusing to process a grievance in retaliation against an employee’s criticism of union officers.
- Rejecting an application for referral to a job in a unit represented by the union based on the applicant’s race or union activities.
Jurisdiction
Before the Board can process a charge, it must determine if it has jurisdiction. As a federal agency, the Board becomes involved only in those matters which have an impact on interstate commerce. Basically, this means that the employer must be deriving revenues in excess of certain standard levels set by the Board, and there must be more than a minimal amount of business derived from the flow of goods or services across state lines. Furthermore, because the Board does not have jurisdiction over public entities, with the exception of the Postal Service, it will process charges only involving private, non-agricultural enterprises (this includes non-profit businesses).
Statute of Limitations
Also critical in the initial filing stage is when the alleged violation occurred. Normally, by statute, only charges filed and served within six (6) months of the date of the event or conduct, which is the subject of the charge, will be processed by the NLRB.
The Charging Party's Responsibilities
If you find it necessary to file a charge, the Information Officer with whom you speak will assist you in filling out the appropriate charge form. Be prepared to supply at least the name, address (including ZIP code), and telephone number of the employer or Union against which the charge is to be filed.
If you file a charge with the Board -- Section 102.14 of the Board's Rules and Regulations state that it is the responsibility of the individual, employer or Union filing the charge to timely and properly serve a copy of the charge on the person, employer or Union against whom such charge is made. After the charge is filed, you will be contacted by the Board agent assigned to your case to arrange for the submission of your supporting evidence. Your cooperation in the investigation of a charge is essential. Failure to provide your evidence in a timely manner may result in the dismissal of your charge.
When A Charge Is Filed With The NLRB
The party filing the charge is called the "charging party." The employer or Union against whom the charge is filed is called the "charged party."
We will conduct an investigation of the charge, securing necessary witness statements and other necessary evidence upon which to decide the charge.
Among other things, the charging party must be prepared to provide us with details of necessary events, including dates, times, places and names of witnesses. The charging party may be requested to provide additional evidence and/or information as the investigation progresses.
The charged party will be requested to provide relevant information and, if the evidence warrants, will be asked to make its witnesses available for an interview. The charged party may be requested to provide additional evidence and/or information as the investigation progresses.
Where appropriate, we will explain to both sides the issues which have been raised in the case. We may ask the parties to submit their legal arguments.
We will complete the investigation, decide whether the case has merit, and implement our decision as promptly as possible, allowing for a thorough and complete investigation.
All parties will be expected to submit their evidence promptly so that we may complete the investigation in a timely manner. We may give a party a deadline to submit their evidence and arguments. We will try to be flexible, consistent with our duty to complete the investigation in a timely manner.
The length of time it takes to decide whether a case has merit may vary depending upon our case load, the distance between the NLRB office and the site of the dispute, the priority of the case (and other cases in the NLRB office), the number of witnesses to be interviewed and the complexity of legal and factual issues raised. We would rather take longer to complete the investigation if that is necessary to do a good job.
We will evaluate cases to determine whether we should ask for a court injunction to stop the alleged unfair labor practices temporarily until the NLRB is able to decide the case.
Following an investigation, approximately 65 percent of all unfair labor practice charges are dismissed or voluntarily withdrawn for lack of merit. Of the remaining charges, every effort is made to resolve the case through an appropriate settlement. We have been successful in achieving settlements in such cases 86 percent of the time.
Where There Is A Decision That The Charge Does Not Have Merit
If the Regional Director decides that the charge does not have merit, we will explain the reasons to the charging party and offer the charging party an opportunity to withdraw the charge. If the charging party prefers, the Regional Director will dismiss the charge, with or without detailed reasons at the charging party's request, and the charging party can appeal. The dismissal letter will tell the charging party how to file such an appeal.
From the time a charge is first filed, you should expect in such no-merit cases that a withdrawal will be approved or a dismissal letter will issue within 7 to 15 weeks in the majority of cases.
If the charging party appeals the dismissal to the General Counsel's Office of Appeals in Washington, a decision will be issued within 60 days from the date the appeal is received by the Office of Appeals in a majority of cases, although cases involving very complex facts and/or novel or difficult legal issues, or remands to the Regional Offices for further investigation, may take longer.
Where There Is A Decision That The Charge Has Merit
If the decision is that the charge has merit, we will explain the decision and offer the charged party an opportunity to settle before a formal complaint is issued. We will continue to try to settle the case after issuance of the complaint. In addition, you should bring settlement possibilities to our attention as they develop.
From the time a charge is first filed, you should expect in such cases a complaint, settlement or adjustment within 7 to 15 weeks in the majority of cases.
If the charge proceeds to trial, an Agency attorney will prepare and present the case to an NLRB Administrative Law Judge (ALJ). Other parties to the case may be present, be represented by counsel if they so choose, and may examine witnesses and present relevant evidence. The length of time before trial will vary depending on a number of factors, including how many other cases are set for trial.
After the trial is concluded, the ALJ will issue a written decision and recommended order, which can be appealed to the Board in Washington and ultimately to the federal courts. The length of time until decisions of the ALJ and the Board issue will vary depending on a number of factors, including the length of the trial and the complexity of the issues.
In the majority of all cases heard by an ALJ, the judge's decision will issue in less than 4 months.
In the majority of all cases decided by the Board, the Board's decision will issue in less than 4 months.
