It is set out in 29 U.S.C. § 158: U.S. Code -- Section 158: Unfair Labor Practices that unfair labor practices by an employer include the following:
It is an unfair labor practice for an employer to:
(1) interfere with two or more employees acting in unison to protect rights that the Act provides for whether there is the existence of a Union or no existing union;
(2) to dominate or interfere with a labor union being formed or administered;
(3) to discriminate against employees for engaging in a union or union activities or alternatively from refraining from the same;
(4) to discriminate against an employee for the filing of charges with the N.L.R.B. Or to discriminate against an employee for taking part in any N.L.R.B. proceedings; and (5) to refuse to bargain with the union that is the lawful representative of an employee or employees. (29 U.S.C. § 158: U.S. Code -- Section 158: Unfair Labor Practices, Findlaw, 2012)
Historical Development of the N.L.R.A.
The work of William G. Rice, Jr. entitled "The Paradox of Our National Labor Law" writes that the goal of collective bargaining "is to stabilize or govern, the relation between an employer (or group of employers) and all of his (or their) employees in a bargaining unit through standards and rules jointly evolved by the representatives of the parties and usually to some degree jointly administered." (1951) According to Rice (1951) this is "most explicitly stated in the Railway Labor Act in defining general purposes and general duties, particularly, 'It shall be the duty of all carriers, their officers, agents, and employees to exert every reasonable effort to make and maintain agreements concerning rates of pay, rules and working conditions, and to settle all disputes, whether arising out of the application of such agreements or otherwise." (Rice, ) Rice reports that the Supreme Court "found the same meaning in the National Labor Relations Act, since 'the House Committee recommended the legislation as 'an amplification and clarification of the principles enacted into law by the Railway Labor Act'," and stated additionally that the obligation of the employers is inclusive, when demanded by another party to sign a written statement of any agreement made. Rice reports that this obligation "of the Taft-Hartley revision of the N.L.R.A. expressly imposes on both parties." (1951) Rice states that the legal consequences of breaking such contracts once they are made was after 1947, by the Labor Management Relations (Taft-Hartley) Act serves to pen the national courts to lawsuit for violation of this act therefore placing emphasis on the significance of this act. The majority report of the Senate Committee on Labor and Public Welfare is reported to have set out the responsibilities that the bill reported created and explain that one provision of the N.L.R.B. was the authority to "hear charges of breach of contract and presumably to redress such breaches by specific order…" (Rice, 1951) This was removed later from the bill since the Committee found it to be insufficient stating, "We feel that the aggrieved party should also have a right of action in the federal courts." (Rice, 1951) The report states that the United States courts Norris-LaGuardia Act "has insulated labor unions, in the field of injunctions, against liability for breach of contract, and many state courts are limited by laws of like tenor." (Rice, 1951) The report is stated to continue "turning to the law of financial liability of associations…" and states as follows:
"It has been argued that the result of making collective agreements enforceable against unions would be that they would no longer consent to the inclusion of a no-strike clause in a contract." (Rice, 1951)
The committee however, believed this result "…was not evident in the four stated that had enacted laws to secure some measure of union responsibility for breach of contract." (Rice, 1951) While the statutes of all four of these states is reported to "grant specific redress for breach of labor agreements" Rice states that the Committee in their recommendation of L.M.R.A. Sections 301 which makes the declaration that "suits for violation of contracts between and employer and labor organization" may be brought in the U.S. courts and which fails to mention the Norris-LaGuardia Act failed to indicate whether the remedy in suits under Section 301 could be anything other than a monetary judgment. However, as noted by Rice, other Congressional committee reports "make clear that Congress intended to leave the Norris-LaGuardia Act operative in this area as well as that Congress though that the Act severely restricted injunctive relief for breach of contract." (Rice, 1951) Since that time, the U.S. courts have demonstrated that the Norris-LaGuardia Act is applicable to "restrict specific redress for breach of contract." (Rice, 1951)
II. Key Provisions of the N.L.R.A.
The sections of the N.L.R.A. Of primary importance are Sections 7, 8, and 9. Section 7 is reported as the "heart of the N.L.R.A" in that it serves to provide a definition for "protected activity." (Steward Update, 2012) This section reads as follows:
"Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid and protection." (Steward Update, 2012)
Section 7 is applicable to "a wide range of union or collective activities" and it is reported, "in addition to organizing, it protects employees who take part in grievances, on-the-job protests, picketing and strikes." (Steward Update, 2012)
Section 8 is reported to provide a definition for employer unfair labor practices and makes five types of conduct illegal including those stated as follows:
(1) Employer interference, restraint, or coercion directed against union or collective activity (Section 8(a)(1))
(2) Employer domination of unions (Section 8(a)(2))
(3) Employer discrimination against employees who take part in union or collective activities (Section 8(a)(3))
(4) Employer retaliation for filing unfair-labor-practice charges or cooperating with the NLRB (Section 8(a)(4))
(5) Employer refusal to bargain in good faith with union representatives (Section 8(a)(5)) (Steward Update, 2012)
It is reported, "threats, warnings, and orders to refrain from protected activities are forms of interference and coercion that violate Section 8(a)(1). Disciplinary actions, such as suspensions, discharges, transfers, and demotions, violate Section 8(a)(3). Failures to supply information, unilateral changes, refusals to hold grievance meetings, and direct dealings violate Section 8(a)(5)." (Steward Update, 2012) Section 8 is reported to prohibit "union unfair labor practices, which include, according to legal construction, failure to provide fair representation to all members of the bargaining unit." (Steward Update, 2012) Additionally reported is that section 9 makes the provision that unions "if certified or recognized, are the exclusive representatives of bargaining unit members. It prohibits the adjustment of employee grievances unless a union representative is given an opportunity to be present, and establishes procedures to vote on union representation." (Steward Update,2012) Also stated is that the N.L.R.A. "sets out general rights and obligations. Enforcing the Act in particular situations is the job of the N.L.R.B." (Steward Update, 2012)
III. The Relationship Between Contract Violations and the Duty to Bargain
According to the work of Paul K. Rainsberger, Director of the University of Missouri, Labor Education Program (2004), the Relationship between Contract Violations and the Duty to Bargain is as follows:
(1) While the National Labor Relations Board does not have the specific authority to enforce collective bargaining agreements, the legal obligations under Taft-Hartley and the contractual obligations under a collective bargaining agreement are often directly related.
(2) It is clear that the Board has the power to interpret a collective bargaining agreement, if interpretation is necessary to determine whether the employer has changed conditions of work unilaterally in violation of its duty to bargain.
(3) The Board does not have exclusive jurisdiction over disputes, which fall within the purview of the unfair labor practice sections. If an employer action constitutes an unfair labor practice and a contractual violation, state courts still retain jurisdiction over the contract violation under Section 301.
(4) If there is an actual conflict between an arbitrator's award and a ruling of the National Labor Relations Board, the ruling of the Board takes precedence. However, the number of cases in which this might occur is limited. (a) In most cases, an arbitrator is asked to determine specific contractual issues, not unfair labor practice or representation issues; (b) Logically, the contractual issues and the legal issues should be kept separate. The Board may have to interpret a contract to enforce the unfair labor practice sections of the law, but it does not enforce the underlying contractual rights; (c) Similarly, the arbitrator should look exclusively to the contract to determine the issues raised in arbitration. While there may be legal implications in a grievance case, it is not the role of the arbitrator to enforce legal rights. (Rainsberger, 2004)
According to Rainsberger "Since many cases involve factual situations which could lead to both unfair labor practice charges and to…