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Unfair Labor Practices and Why They Are Still Important in Labor Relations Today?

Posted April 8, 2016 in Lawrence J. Sherman Articles

Unfair labor practices (ULP) are legal responses to adverse employment actions taken by employers or unions that have been made unlawful under the National Labor Relations Act (NLRA) and their state and local counterparts.  However, ULPs have a technical meaning because they are must be based on the terms of the NLRA.  Unfair labor practices should not be confused with bad or unfair treatment in the workplace. 

 

  • What Are Unfair Labor Practices?

 

The NLRA protects the employee exercises of their right to act together to try to improve the terms and conditions of their employment, by forming or joining a union or taking similar types of collective action. The NLRA also prohibits employers and unions from taking certain actions that would interfere with these employee rights or with the delicate balance the NLRA creates between unions and employers. Actions made unlawful under thee NLRA are called "unfair labor practices". To preserve and encourage the exercises of these rights, the NLRA additionally spells out the rules for union elections, collective bargaining and related activities.  

 

  • Unfair Labor Practices on the part of Employers

 

 The NLRA prohibits employers from: 

  • Interfering with an employee's right to organize, join, or assist a union, engage in collective bargaining or engage in protected, concerted activities. For example, employers must treat union-related conversations among employees just like any other matter unrelated to work. They may not make special rules that single out communications relating to the union or to workplace grievances for disciplinary treatment.
  • Dominating or providing illegal assistance in support of a labor union. Employers may not establish their own union (a company union or sham union) or dominate or interfere with any existing labor organization. To determine whether an employer has acted unlawfully pertinent, the National Labor Relations Board (NLRB) looks at all of the facts.  These may include who started the group, whether the employer played a role in organizing the group and deciding how it would function, whether management attends meetings or otherwise sets the group's agenda, the group's purpose, and how the group makes decisions. 
  • Discriminating against employees to encourage or discourage membership in a labor organization, or replacing workers who strike to protect an unfair labor practice. 
  • Retaliating against an employee for filing a charge with, or giving testimony to, the NLRB.
  • Refusing to engage in good-faith collective bargaining.
  • Making a hot cargo agreement with a union (that is, an arrangement between an employer and a union in which the employer promises to stop doing business with another employer, typically one with whom the union has a dispute, to put pressure on the other employer).  

 

  • Unfair Labor Practices by Unions

 

 The NLRA prohibits unions from: 

  • Restraining or coercing employees in the free exercise of their right not to support a union (for example, by threatening employees who do not want to join or support a union or expelling members for crossing an illegal picket line.
  • Restraining or coercing an employer in its choice of a bargaining representative (by insisting on meeting only with a particular manager or refusing to bargain with the representative the employer chooses). 
  • Causing or trying to cause an employer to discriminate against an employee for the purpose of encouraging or discouraging union membership (for example, convincing an employer to penalize employees who engage in anti union activities).
  • Refusing to engage in good-faith collective bargaining (for example, refusing to come to the bargaining table or listen to any of the employer's proposals).
  • Engaging in strikes, boycotts, or other coercive action for an illegal purpose. 
  • Charging excessive or discriminatory membership fees.
  • Trying to force an employer to agree to pay for work that is not performed (known as “featherbedding).
  • Picketing or threatening to picket by a non-certified union claiming to represent a group of workers to force an employer to recognize or bargain with the union or to accept the union as their representative if: (1) another union already represents the workers, (2) a valid representation election was held in the past year, or (3) the union fails to file an election petition with the NLRB within 30 days after the date that the picketing starts. 
  • Demanding or entering into a hot cargo agreement.
  • Striking, picketing, or otherwise engaging in a collective work stoppage at any health care institution without giving required notice to the institution and the Federal Mediation and Conciliation Service. 

 

  • How does an Adversely Affected Party Gain Relief

 

An employer, employee, or union believing that an unfair labor practice has been committed may file a charge with the NLRB. The charge must be filed within six months of the incident. Rights under the NLRA can be enforced only through the NLRB and not through private lawsuits. 

Conducting Depositions

July 22, 2016

There are no express ethical rules that govern preparing for, taking or defending depositions. While many rules touch upon these matters, they often give conflicting signals. For example, Rule 1.3, comment 3 of the Code of Professional Responsibility requires that a "lawyer should represent a client zealously within the bounds of the law. In contrast, Rules 3.3 and 3.4 respectively caution that a lawyer should exhibit candor towards the tribunal and fairness to the opposing party and counsel. Ethical concerns commonly arise in the context of fulfilling client expectations that prize zealous representation as well as by a need to counter equally zealous or even outrageous conduct by opposing counsel who is ostensibly acting in his or her client's interest. In these situations, therefore, it may be necessary for the employment to take into account applicable ethical and judicial standards and tailor his or her conduct accordingly.

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