Filing NLRB Charges: A Tool for Rights But No Quick Fix

One of the main laws that protect the union rights of workers in the U.S. is the National Labor Relations Act (NLRA). It applies to most private sector workers. Airline and railroad workers, who are covered under the Railway Labor Act, are excluded.

The NLRA protects workers’ right to form, join and assist unions; to bargain collectively; and to organize together with coworkers for “mutual aid or protection.” This includes the right to organize within your union, like TDU members do. The National Labor Relations Board (NLRB) enforces the NLRA.

Workers can file unfair labor practice charges (“ULP charges”) against a company or union with the regional NLRB office in their area.

Filing ULP charges is rarely the best solution to a workplace problem. The NLRB has become increasingly oriented in favor of employer interests over the years. Direct pressure or effective use of the grievance procedure is usually better.

But ULP charges can be another means of putting pressure on the employer if they are violating your rights.

This article covers the basics regarding ULP charges. If you have more questions, call TDU at 313-842-2600.

Is It a ULP?

Not all workplace injustices or contract violations are also unfair labor practices. If management violates the contract by giving everyone extra overtime, it is probably not a ULP. But if they only make the union steward who stood up to the supervisor work overtime, it probably is a ULP.

To be a ULP, management’s action must interfere with the exercise of your right to organize together with your coworkers, or discriminate against you for exercising that right.

For example, the NLRB recently filed a complaint against Roadway Express and Teamster Local 891 in Meridian,Miss. for prohibiting workers from posting TDU literature on an employee bulletin board where other postings—like flyers for carwashes and lawn service—were allowed.

  • Here are other examples of employer unfair labor practices:
  • firing or disciplining workers for being union activists,
  • refusing to let workers have a union steward present at a disciplinary interview,
  • refusing to bargain with the union over workplace issues,
  • refusing to provide information requested to process a grievance or monitor contract enforcement,
  • holding union stewards or activists to a higher work standard,
  • prohibiting distribution of union or TDU literature on non-work time and in non-work areas.
  • Examples of union unfair labor practices include:
  • filing internal union charges, fining, or expelling a member for most internal union activity;
  • getting an employer to discriminate against a member because of their internal union activity;
  • threats or violence.

Filing Charges

ULP charges are filed on standardized forms provided by the NLRB. The forms are available from your regional NLRB office or from the NLRB website (www.nlrb.gov).

You don’t need an attorney to file ULP charges.

Talking to an NLRB agent ahead of time, or calling TDU, can help you determine whether your complaint is actually a ULP and can also help you to fill out the charge correctly.

The ULP charge form is not the place to list all the details of your case. Just give the date and a brief description of what happened. For example, “On or about Jan. 1, 2005, the employer suspended union steward Mary Martin in retaliation for her union activities.”

You have six months from the date on which an incident happened to file a ULP charge. That’s six months from the incident, not six months from when your grievance is decided. The clock does not stop ticking while you try to resolve a dispute through internal union charges either.

Investigation

After you file a ULP charge, an NLRB agent will contact you to investigate it. They may take a statement from you. They will also contact the employer to get their side of the story.

It is risky to assume that the NLRB agent assigned to your case will do a thorough investigation. Assume that it is your responsibility to put together all the facts needed to convince the NLRB agent and the Regional Director that a complaint should be issued.

That means providing them with a clear description of the relevant events, documentation, signed statements from witnesses, and phone numbers for people who can provide verification.

Always ask the board agent for a copy of your affidavit, and ask your witnesses to get copies of their affidavits.

Grievance Procedure

Actions by the company that constitute Unfair Labor Practices can often be grieved as violations of the contract, too. If you have filed ULP charges over something that you filed or could have filed a grievance over, the NLRB can choose not to review your charge until after the grievance procedure is complete. This is called pre-arbitral deferral, or Collyer deferral.

After you have a final grievance decision, you can ask the NLRB to review it. Again, they can choose to defer to the arbitration award.

Two important areas in which the NLRB will not defer to the grievance procedure are information requests and Weingarten rights.

If the union asks for information reasonably needed to process a grievance or monitor enforcement of the contract, management is required to provide it. If they don’t, they are committing an 8(a)(5) violation. The NLRB will not defer to the grievance procedure on information request charges because unless the employer provides information, the grievance procedure cannot work correctly.

Similarly, they will not defer in cases where workers are denied the right to representation by a union steward at an investigatory interview.

The NLRB’s policy in regards to when they will or won’t defer to the grievance procedure is complicated. If you have specific questions, call TDU or ask the NLRB agent assigned to your case.

Complaint and Trial

Within a few weeks or sometimes months of your filing a charge, the NLRB Regional Director will decide whether to defer to the grievance procedure, issue a complaint or dismiss the charge.

If a complaint is issued, the employer or the union will often agree to a settlement to avoid having to go to trial. For instance if you were fired, the employer might agree to a settlement reinstating you with back pay. The NLRB can settle a case even if the person who filed the charge opposes the settlement.

If the NLRB issues a complaint, an NLRB attorney will be assigned to prepare your case for trial. Few charges filed with the NLRB actually end up being heard before a judge.

Cases are heard before an administrative law judge appointed by the NLRB. Attorneys for the NLRB and the parties can call and cross-examine witnesses and introduce documents.

As the charging party, you can hire your own attorney to represent you in NLRB proceedings. Though attorneys representing the NLRB will usually work closely with a charging party, the NLRB’s interests are not always identical to yours.

Justice Delayed

After the hearing, and after taking written arguments from the parties, the judge will issue a written decision.

Getting a decision from the judge is often not the end of the story. An employer can drag their feet.

Any party to the hearing can ask the five-member board that heads the NLRB to review the judge’s decision. This board, appointed by the president, is not fast; they have been sitting on some cases for years.

If an employer or union refuses to comply with an NLRB order, the NLRB can go to federal court to seek enforcement.

This waiting game hurts workers and unions who turn to the NLRB for help. Justice delayed is often justice denied.

Pros and Cons

Going to the NLRB can give union members some leverage that they would not have otherwise. TDU recently helped negotiate an NLRB settlement that will get New York City bus driver Jona Fleurimont $24,000 in back pay. It also provides that he be reinstated to the job at Consolidated Bus Transit that he was fired from.

But justice has been slow. Jona was fired in January 2003, and the employer has made it clear that it will delay as long as it can. Other fired CBT drivers are awaiting an NLRB decision in their case.

Filing NLRB charges is not a quick fix solution. Organizing at work and effective use of the grievance procedure are still our first line of defense. But ULP charges are another tool that union activists can use to defend their rights on the job.

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