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.

  1. 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....”
     
  2. 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.

 

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