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HOW TO HANDLE
INVESTIGATIONS OF UNFAIR LABOR PRACTICE
CHARGES BY THE NATIONAL LABOR RELATIONS
BOARD
I. STRUCTURE OF THE NLRB - 5 Members (Judges) based in Washington, D.C., appointed by the
President, confirmed by
the Senate for staggered 5 year terms. These Judges
essentially make up an appeals court to review decisions of Administrative Law
Judges who are trial judges employed by the NLRB.
- General Counsel based in Washington, D.C., appointed by the President,
confirmed by the
Senate, who acts
essentially as a Prosecutor of unfair labor
practices. - Regional Directors spread throughout the United States who run Regional
Offices where unfair
labor practice cases
are tried and elections held to determine if
employees want unions to
represent them. - Administrative Law Judges based in different sections of the United
States who act as trial
judges in unfair
labor practice cases. II. WHAT TO DO WHEN YOU RECEIVE AN UNFAIR
LABOR PRACTICE CHARGE
FROM THE NLRB A. Review and analyze the contents of the Charge Form.
- Timeliness of Charge/Statute of Limitations.
- Section 10(b) of the National Labor Relations
Act provides “(t)hat 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....”
- Jurisdiction of the Board.
- Determination whether the Company is a covered
“Employer” under the Act.
- Determine whether the Company comes within the
Board’s “jurisdictional standards”.
- If the charge alleges discrimination against an
employee, determine whether the individual
meets the definition of
“Employee” under the Act. Examples of some
individuals who are
not covered include:
a. Agricultural laborers
b. Domestics
c. Individuals employed by their
parents or spouse
d. Independent contractors
e. Supervisors
f. Managerial employees
g. Confidential employees
- SUPERVISORS – Under Section 2(11) of the Act,
“The term “supervisor” means any
individual having authority, in
the interest of the employer, to hire,
transfer, suspend, lay
off, recall, promote, discharge,
assign, reward, or discipline other
employees, or
responsibly to direct them, or to adjust their
grievances, or effectively to recommend
such
action, if in connection with the foregoing
the exercise of such authority is not of
a
merely routine or clerical nature, but requires
the use of independent judgment.”
- The Board and the Courts have held that Section
2(11) is to be interpreted in the
disjunctive and that “the possession of any
one of the authorities listed places the
employee vested with this authority in the
supervisory class.”
- Also, in each case, the differentiation must be
made between the exercise of
independent judgment and the routine
following of instructions, between effective
recommendation and forceful suggestion and between
the appearance of supervision
and
supervision in fact.
B. Obtain from the Board Agent all facts alleged by Charging Party in
support of the Charge. If
the Charge alleges a violation of Section
8(a)(3) of the Act, such as a refusal to
hire because
of union membership, determine whether:
a. the employee has applied for a job,
b. the Company refused to hire the employee,
c. the Company knew or suspected that the employee was a
union member or a union
sympathizer,
d. the Company maintained an animus against it, and
e. the Company refused to hire the applicant because of such
animus.
If the charge alleges a violation of
Section 8(a)(1) of the Act, such as threats,
interrogation,
promises of benefits or spying (TIPS),
determine:
- When the alleged violation
occurred,
- Who is alleged to have committed
it,
- Where it occurred,
- What allegedly was said or done,
and
- Who was Present to witness it.
C. Obtain from the Board Agent the legal theory or theories relied upon
by the Charging Party.
D. Conduct an investigation to ascertain the truth of the matters
alleged.
1. Interview all company representatives who are alleged to
have engaged in unlawful conduct.
2. Interview all other company representatives who may have
evidence regarding the
allegations.
3. Review all company documents that are relevant to the
defense of the charge.
4. Interview employees who may have evidence that bears on
the charge. However, in order
to avoid any additional Unfair Labor
Practice Charges, certain safeguards must be
observed
in questioning employees:
a. The purpose of the questioning must be
communicated to the employee.
b. An assurance of no reprisal must be given.
c. The employee’s participation must be obtained
on a voluntary basis.
d. The questioning must take place in an
atmosphere free from anti-union animus.
e. The questioning itself must not be coercive in
nature.
f. The questions must be relevant to the issues
involved in the Charge or Complaint.
g. The employee’s subjective state of mind must
not be probed.
h. The questions must not “otherwise interfere
with the statutory rights of employees”.
5. Other sources of evidence.
a. Testimony in prior lawsuits.
b. Texas Workforce Commission Claims, Transcripts
and Decisions.
The National Labor Relations
Board has held that testimony given by
witnesses in such
state hearings may be used to
test the credibility of such witnesses in
Labor Board
proceedings. Further, the
decisions of such state agencies are
relevant to the issues to be
determined in a Labor Board
proceeding.
E. Form of Presentation of Evidence to the Board
1. Affidavits taken by Board Agent.
2. Affidavits taken by Charged Party (Company).
3. Statement of Position.
4. Letter Brief.
F. The NLRB’s Decision Making Process at the Regional Level
- Complaint or Dismissal of Charge.
1. Final Investigation Report.
2. Agenda.
G. Appeal by Charging Party of Regional Director’s Decision to Dismiss
Charge to NLRB’s
General Counsel
H. Settlement of Case Where Regional Director’s Decision is to Issue a
Complaint
1. Board Settlements.
2. Non-Board Settlements.
I. Trial of Case to an NLRB
Administrative Law Judge. |
