COLLECTIVE BARGAINING DEFINED

Section 8(d) defines the type of collective bargaining required by the law as

the performance of the mutual obligation of the employer and the representative of the employees to 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, but such obligation does not compel either party to agree to a proposal or require the making of a concession. The Board and the courts have ruled that pensions and group insurance plans come within the scope of subjects on which the law requires an employer to bargain with the representative of his employees.

BARGAINING STEPS TO CHANGE OR TERMINATE A CONTRACT

Section 8(d) provides a special procedure for the termination of contracts or the negotiation of contracts to replace existing ones. There are four specific steps which must be observed.

The party desiring to terminate or modify an existing contract covering employees in an industry affecting commerce must

1. Serve the other party to the contract with a written notice of the proposed termination or modification. This must be served at least 60 days before the termination date or agreed reopening date of the contract. Or, if the contract contains no expiration date, 60 days before the time it is proposed to make such termination or modification.

2. Offer to meet and confer with the other party for the purpose of negotiating a new contract or a contract containing the proposed modifications.

3. If no agreement has been reached 30 days after the notice was served, notify the Federal Mediation and Conciliation Service that a dispute exists. Any State or Territorial mediation or conciliation service within the State where the dispute occurs also must be notified.

4. 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 was given or until the contract expires, whichever occurs later.

This section also provides further that:

Any employee who engages in a strike within the sixty-day period shall lose his status as an employee of the employer engaged in the particular labor dispute, for the purposes of sections 8, 9, and 10 of this Act, as amended, but such loss of status for such employee shall terminate if and when he is reemployed by such employer.

JURISDICTIONAL DISPUTES

The Act forbids jurisdictional strikes and boycotts as an unfair labor practice and provides special machinery for deciding disputes over assignment of work.

Section 8(b) (4) (D) makes it an unfair labor practice for a labor organization or its agents

(i) to engage in, or to induce or encourage any individual employed by any person engaged in commerce or in an industry affecting commerce to engage in, a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services; or

(ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is:

(D) forcing or requiring 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 labor organization or in another trade, craft, or class, unless such employer is failing to conform to an order or certification of the Board determining the bargaining representative for employees performing such work.

Section 10(k) gives the Board authority to hear and make determinations in cases involving disputes over jurisdiction of work. This section also provides that the parties be given 10 days in which to agree on the means of settlement or to reach a voluntary settlement among themselves.

If they make such a voluntary adjustment, the Act provides that the unfair labor practice charge shall be dismissed. If they do not make such adjustment, a hearing under this section is then held.

Should the parties fail to reach agreement and should they fail to abide by a Board determination under section 10(k) thereafter, the procedure before the Board is the same as in any other unfair labor practice case.

PROCEDURE IN UNFAIR LABOR PRACTICE CASES

If an employee believes that an employer or a union is engaged in one or more of the unfair labor practices outlined above, he may file charges with the appropriate regional office of the National Labor Relations Board on forms supplied by that office.

A union or an employer also may file charges.

After the charges are filed, the procedure followed by the regional office and the Board is:

1. Charges are investigated by field examiners. During this investigation, charges may be adjusted, withdrawn, dismissed, or otherwise closed without formal action.

2. A formal complaint is issued if charges are found to be well grounded and the case is not settled by adjustment.

3. Public hearing is held before a trial examiner.

4. The trial examiner's findings and recommendations are served upon the parties and sent to the Board in Washington in the form of an intermediate report. At this point the case is transferred to the Board in Washington. Unless either of the parties files a statement of exceptions to the trial examiner's findings within 20 days, his order takes the full effect of an order by the Board. Parties who except to the examiner's findings also may file a brief to support their exceptions and may request oral argument before the Board. Exceptions are in effect an appeal from the intermediate report.

5. The Board reviews the case and makes a decision.

6. In case a union or employer fails to comply with a Board order, the Board may ask the appropriate U.S. Court of Appeals for a decree enforcing its order. Also, any party to the case who is aggrieved by the Board's order may appeal to an appropriate U.S. Court of Appeals. 7. The Board or an aggrieved party may petition the Supreme Court of the United States to review the decision of the Courts of Appeals. Failure to obey a final court decree is punishable as either civil or criminal contempt of court, or both.

The regional director issues the complaint which begins formal proceedings in an unfair labor practice case. This complaint is issued after investigation of the charges filed by the party which alleges that an unfair labor practice has been committed. If, however, the regional director refuses to issue a complaint, the charging party may appeal to the General Counsel in Washington, D.C., who has final authority over the issuance of complaints. Ordinarily, 10 days are allowed for making such an appeal, which should be accompanied by a full statement of the facts in the case and the reasons why it is believed that the regional director erred.

REMEDIES IN UNFAIR LABOR PRACTICE CASES

When the Board finds that an employer or union or the agents of either have engaged in unfair labor practices, the Board is empowered by section 10 (c) to issue an order requiring such person or organization to "cease and desist from such unfair labor practice, and to take such affirmative action including reinstatement of employees with or without back pay, as will effectuate the policies of this Act."

The purpose of the Board's orders is remedial-to undo the effect of the unfair labor practices and to direct such action as will dissipate the effect of violations of the Act. In fashioning remedies for unfair labor practices, the Board has broad discretion. The Board ordinarily frames its orders on patterns appropriate to each general type of unfair labor practice, but the Board may vary the remedy in order to fit it more precisely to the needs of a particular case.

There are no penalties or fines as such under Title I of the Act. It is only after a court has upheld a Board order and an employer or union has refused to comply that either may be held in contempt of court and subject to penalties.

Typical affirmative action ordered by the Board may include orders to the employer to

Disestablish a company-dominated union.

Reinstate immediately all persons discharged, laid off, or demoted, to their former positions without prejudice to seniority rights or other privileges enjoyed before the unfair labor practices, and, if necessary, discharge any person hired in place of those discriminated against.

Pay backpay for time lost since the employee was discharged. The amount of backpay awarded an employee is usually the difference between his net earnings since discharge and what he would have earned had he not been discharged, ascertained on a quarterly basis. A discharged employee must try to find a new job while awaiting reinstatement.

Affirmative action required of a union may include orders to

Notify the employer and the employee that it withdraws any objection to reinstatement or employment of an employee who has been subjected to illegal discrimination.

Reimburse the employee for any wages he has lost as a result of the discrimination.

Refund dues or fees illegally collected.

Employers or unions also are usually ordered to post notices in their offices or plants notifying the employees that they will cease the unfair labor practices and announcing the action being taken to remedy the violations.

An employer and a union also may be held jointly and severally liable for backpay due an employee suffering unlawful discrimination.

INJUNCTION PROCEDURE

Section 10 (j) and (1) of the Act enables the Board or the General Counsel to petition the appropriate U.S. District Court for an injunction to stop any conduct alleged to constitute an unfair labor practice. Section 10(j) confers discretion on the Board to petition for an injunction against any type of conduct, of either an employer or a union, which is alleged to constitute an unfair labor practice forbidden by the Act. Such a restraining order may be sought upon issuance of a formal complaint in the case by the General Counsel. The court may grant "such temporary relief or restraining order as it deems just and proper."

Section 10(1) makes it mandatory for the General Counsel to seek an injunction whenever charges are filed alleging that certain unfair labor practices are being committed, if the General Counsel's investigation reveals "reasonable cause to believe such charge is true and that a complaint should issue. . . .” The unfair labor practices subject to this provision include strikes or picketing to

1. compel an employer to recognize one union when another has been certified by the Board as bargaining agent for the employees; 2. enforce a secondary boycott aimed at compelling any person to stop doing business with another;

3. force an employer other than the employer of the employees engaging in the strike or boycott to bargain with a union which has not been certified by the Board;

4. force an employer or self-employed person to join any labor or employer organization; or

5. compel employees to accept or an employer to recognize a union not certified by the Board as the employees' representative, except under certain limited circumstances (8(b)(7)).

The mandatory injunction provision of section 10(1) also applies to cases in which a union threatens, coerces, or restrains any person engaged in commerce or in an industry affecting interstate commerce to achieve any of the first four objects listed above. This injunction provision also applies to the making of a "hot cargo" or boycott agreement by an employer and a union. Such an agreement violates section 8(e) except under certain conditions in the building and construction and garment manufacturing industries.

However, there is a proviso that a restraining order shall not be sought against recognition or organizational picketing if a charge of

illegal assistance or domination of a labor organization has been filed against the employer involved and there is reasonable cause to believe that such charge is true.

DETERMINATION OF COLLECTIVE-BARGAINING REPRESENTATIVE

The Labor Management Relations Act follows the principle of majority rule in determining the representation of employees bargaining with their employer as a group. The representative may be an individual or a labor organization, but not a supervisor or other representative of an employer.

The Act requires that an employer bargain with the representative selected by a majority of his employees in a unit appropriate for collective bargaining.

The Act does not require that the representative be selected by any particular procedure, as long as the representative is clearly the choice of a majority of the employees.

As one method for employees to select a majority representative, the Act authorizes the Board to conduct representation elections. However, the Board may conduct such an election only when a petition has been filed by the employees or any individual or labor organization acting in their behalf, or by an employer who has been confronted with a claim of representation from an individual or labor organization.

Under the law, the Board may certify the choice of the majority of employees for a bargaining representative only after a secret-ballot election.

In a representation election, the employees are given a choice of one or more bargaining representatives or no representative at all. To be chosen as bargaining representative, a labor organization or an individual must receive a majority of the valid votes cast.

RIGHTS OF BARGAINING REPRESENTATIVE

Section 9(a) provides that the representative designated by a majority of employees in a unit appropriate for collective bargaining shall be the exclusive representative of the employees in bargaining. When a majority representative has been chosen, it is illegal for an employer to bargain with individual employees or minority groups. The statute states:

Representatives 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 in respect to rates of pay, wages, hours of employment, or other conditions of employment.

ADJUSTMENT OF GRIEVANCES

However, section 9(a) which sets forth the rights of the bargaining representative also contains a proviso permitting employees to present grievances directly to the employer.