29 U.S.C. § 158 — Unfair labor practices

Page 41 TITLE 29—LABOR § 158 § 158. Unfair labor practices (a) Unfair labor practices by employer It shall be an unfair labor practice for an em- ployer— (1) to interfere with, restrain, or coerce em- ployees in the exercise of the rights guaran- teed in section 157 of this title; (2) to dominate or interfere with the forma- tion or administration of any labor organiza- tion or contribute financial or other support to it: Provided, That subject to rules and regu- lations made and published by the Board pur- suant to section 156 of this title, an employer shall not be prohibited from permitting em- ployees to confer with him during working hours without loss of time or pay; (3) by discrimination in regard to hire or tenure of employment or any term or condi- tion of employment to encourage or discour- age membership in any labor organization: Provided, That nothing in this subchapter, or in any other statute of the United States, shall preclude an employer from making an agreement with a labor organization (not es- tablished, maintained, or assisted by any ac- tion defined in this subsection as an unfair labor practice) to require as a condition of em- ployment membership therein on or after the thirtieth day following the beginning of such employment or the effective date of such agreement, whichever is the later, (i) if such labor organization is the representative of the employees as provided in section 159(a) of this title, in the appropriate collective-bargaining unit covered by such agreement when made, and (ii) unless following an election held as provided in section 159(e) of this title within one year preceding the effective date of such agreement, the Board shall have certified that at least a majority of the employees eligible to vote in such election have voted to rescind the authority of such labor organization to make such an agreement: Provided further, That no employer shall justify any discrimina- tion against an employee for nonmembership in a labor organization (A) if he has reasonable grounds for believing that such membership was not available to the employee on the same terms and conditions generally applicable to other members, or (B) if he has reasonable grounds for believing that membership was de- nied or terminated for reasons other than the failure of the employee to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining mem- bership; (4) to discharge or otherwise discriminate against an employee because he has filed charges or given testimony under this sub- chapter; (5) to refuse to bargain collectively with the representatives of his employees, subject to the provisions of section 159(a) of this title. (b) Unfair labor practices by labor organization It shall be an unfair labor practice for a labor organization or its agents— (1) to restrain or coerce (A) employees in the exercise of the rights guaranteed in section 157 of this title: Provided, That this paragraph shall not impair the right of a labor organiza- tion to prescribe its own rules with respect to the acquisition or retention of membership therein; or (B) an employer in the selection of his representatives for the purposes of collec- tive bargaining or the adjustment of griev- ances; (2) to cause or attempt to cause an employer to discriminate against an employee in viola- tion of subsection (a)(3) or to discriminate against an employee with respect to whom membership in such organization has been de- nied or terminated on some ground other than his failure to tender the periodic dues and the initiation fees uniformly required as a condi- tion of acquiring or retaining membership; (3) to refuse to bargain collectively with an employer, provided it is the representative of his employees subject to the provisions of sec- tion 159(a) of this title; (4)(i) to engage in, or to induce or encourage any individual employed by any person en- gaged in commerce or in an industry affecting commerce to engage in, a strike or a refusal in the course of his employment to use, manufac- ture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services; or (ii) to threaten, coerce, or restrain any person en- gaged in commerce or in an industry affecting commerce, where in either case an object thereof is— (A) forcing or requiring any employer or self-employed person to join any labor or employer organization or to enter into any agreement which is prohibited by subsection (e); (B) forcing or requiring any person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person, or forcing or requiring any other em- ployer to recognize or bargain with a labor organization as the representative of his em- ployees unless such labor organization has been certified as the representative of such employees under the provisions of section 159 of this title: Provided, That nothing con- tained in this clause (B) shall be construed to make unlawful, where not otherwise un- lawful, any primary strike or primary pick- eting; (C) forcing or requiring any employer to recognize or bargain with a particular labor organization as the representative of his em- ployees if another labor organization has been certified as the representative of such employees under the provisions of section 159 of this title; (D) forcing or requiring any employer to assign particular work to employees in a particular labor organization or in a par- ticular trade, craft, or class rather than to employees in another labor organization or in another trade, craft, or class, unless such employer is failing to conform to an order or certification of the Board determining the bargaining representative for employees per- forming such work: Provided, That nothing contained in this sub- section shall be construed to make unlawful a Page 42 TITLE 29—LABOR § 158 refusal by any person to enter upon the prem- ises of any employer (other than his own em- ployer), if the employees of such employer are engaged in a strike ratified or approved by a representative of such employees whom such employer is required to recognize under this subchapter: Provided further, That for the pur- poses of this paragraph (4) only, nothing con- tained in such paragraph shall be construed to prohibit publicity, other than picketing, for the purpose of truthfully advising the public, including consumers and members of a labor organization, that a product or products are produced by an employer with whom the labor organization has a primary dispute and are distributed by another employer, as long as such publicity does not have an effect of in- ducing any individual employed by any person other than the primary employer in the course of his employment to refuse to pick up, de- liver, or transport any goods, or not to per- form any services, at the establishment of the employer engaged in such distribution; (5) to require of employees covered by an agreement authorized under subsection (a)(3) the payment, as a condition precedent to be- coming a member of such organization, of a fee in an amount which the Board finds exces- sive or discriminatory under all the cir- cumstances. In making such a finding, the Board shall consider, among other relevant factors, the practices and customs of labor or- ganizations in the particular industry, and the wages currently paid to the employees af- fected; (6) to cause or attempt to cause an employer to pay or deliver or agree to pay or deliver any money or other thing of value, in the nature of an exaction, for services which are not per- formed or not to be performed; and (7) to picket or cause to be picketed, or threaten to picket or cause to be picketed, any employer where an object thereof is forcing or requiring an employer to recognize or bargain with a labor organization as the representa- tive of his employees, or forcing or requiring the employees of an employer to accept or se- lect such labor organization as their collective bargaining representative, unless such labor organization is currently certified as the rep- resentative of such employees: (A) where the employer has lawfully recog- nized in accordance with this subchapter any other labor organization and a question con- cerning representation may not appro- priately be raised under section 159(c) of this title, (B) where within the preceding twelve months a valid election under section 159(c) of this title has been conducted, or (C) where such picketing has been con- ducted without a petition under section 159(c) of this title being filed within a rea- sonable period of time not to exceed thirty days from the commencement of such pick- eting: Provided, That when such a petition has been filed the Board shall forthwith, without regard to the provisions of section 159(c)(1) of this title or the absence of a showing of a substantial interest on the part of the labor organization, direct an election in such unit as the Board finds to be appro- priate and shall certify the results thereof: Provided further, That nothing in this sub- paragraph (C) shall be construed to prohibit any picketing or other publicity for the pur- pose of truthfully advising the public (in- cluding consumers) that an employer does not employ members of, or have a contract with, a labor organization, unless an effect of such picketing is to induce any individual employed by any other person in the course of his employment, not to pick up, deliver or transport any goods or not to perform any services. Nothing in this paragraph (7) shall be con- strued to permit any act which would other- wise be an unfair labor practice under this subsection. (c) Expression of views without threat of reprisal or force or promise of benefit The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this subchapter, if such expression contains no threat of reprisal or force or promise of benefit. (d) Obligation to bargain collectively For the purposes of this section, to bargain collectively is the performance of the mutual obligation of the employer and the representa- tive of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agree- ment, or any question arising thereunder, and the execution of a written contract incor- porating any agreement reached if requested by either party, but such obligation does not com- pel either party to agree to a proposal or require the making of a concession: Provided, That where there is in effect a collective-bargaining contract covering employees in an industry af- fecting commerce, the duty to bargain collec- tively shall also mean that no party to such con- tract shall terminate or modify such contract, unless the party desiring such termination or modification— (1) serves a written notice upon the other party to the contract of the proposed termi- nation or modification sixty days prior to the expiration date thereof, or in the event such contract contains no expiration date, sixty days prior to the time it is proposed to make such termination or modification; (2) offers to meet and confer with the other party for the purpose of negotiating a new contract or a contract containing the proposed modifications; (3) notifies the Federal Mediation and Con- ciliation Service within thirty days after such notice of the existence of a dispute, and simul- taneously therewith notifies any State or Ter- ritorial agency established to mediate and conciliate disputes within the State or Terri- tory where the dispute occurred, provided no agreement has been reached by that time; and (4) continues in full force and effect, without resorting to strike or lock-out, all the terms Page 43 TITLE 29—LABOR § 158 1 So in original. Probably should be ‘‘unenforceable’’. and conditions of the existing contract for a period of sixty days after such notice is given or until the expiration date of such contract, whichever occurs later: The duties imposed upon employers, employees, and labor organizations by paragraphs (2) to (4) of this subsection shall become inapplicable upon an intervening certification of the Board, under which the labor organization or indi- vidual, which is a party to the contract, has been superseded as or ceased to be the represent- ative of the employees subject to the provisions of section 159(a) of this title, and the duties so imposed shall not be construed as requiring ei- ther party to discuss or agree to any modifica- tion of the terms and conditions contained in a contract for a fixed period, if such modification is to become effective before such terms and conditions can be reopened under the provisions of the contract. Any employee who engages in a strike within any notice period specified in this subsection, or who engages in any strike within the appropriate period specified in subsection (g) of this section, shall lose his status as an em- ployee of the employer engaged in the particular labor dispute, for the purposes of sections 158, 159, and 160 of this title, but such loss of status for such employee shall terminate if and when he is reemployed by such employer. Whenever the collective bargaining involves employees of a health care institution, the provisions of this subsection shall be modified as follows: (A) The notice of paragraph (1) of this sub- section shall be ninety days; the notice of paragraph (3) of this subsection shall be sixty days; and the contract period of paragraph (4) of this subsection shall be ninety days. (B) Where the bargaining is for an initial agreement following certification or recogni- tion, at least thirty days’ notice of the exist- ence of a dispute shall be given by the labor organization to the agencies set forth in para- graph (3) of this subsection. (C) After notice is given to the Federal Medi- ation and Conciliation Service under either clause (A) or (B) of this sentence, the Service shall promptly communicate with the parties and use its best efforts, by mediation and con- ciliation, to bring them to agreement. The parties shall participate fully and promptly in such meetings as may be undertaken by the Service for the purpose of aiding in a settle- ment of the dispute. (e) Enforceability of contract or agreement to boycott any other employer; exception It shall be an unfair labor practice for any labor organization and any employer to enter into any contract or agreement, express or im- plied, whereby such employer ceases or refrains or agrees to cease or refrain from handling, using, selling, transporting or otherwise dealing in any of the products of any other employer, or to cease doing business with any other person, and any contract or agreement entered into heretofore or hereafter containing such an agreement shall be to such extent unenforcible 1 and void: Provided, That nothing in this sub- section shall apply to an agreement between a labor organization and an employer in the con- struction industry relating to the contracting or subcontracting of work to be done at the site of the construction, alteration, painting, or repair of a building, structure, or other work: Provided further, That for the purposes of this subsection and subsection (b)(4)(B) the terms ‘‘any em- ployer’’, ‘‘any person engaged in commerce or an industry affecting commerce’’, and ‘‘any per- son’’ when used in relation to the terms ‘‘any other producer, processor, or manufacturer’’, ‘‘any other employer’’, or ‘‘any other person’’ shall not include persons in the relation of a job- ber, manufacturer, contractor, or subcontractor working on the goods or premises of the jobber or manufacturer or performing parts of an inte- grated process of production in the apparel and clothing industry: Provided further, That nothing in this subchapter shall prohibit the enforce- ment of any agreement which is within the fore- going exception. (f) Agreement covering employees in the build- ing and construction industry It shall not be an unfair labor practice under subsections (a) and (b) of this section for an em- ployer engaged primarily in the building and construction industry to make an agreement covering employees engaged (or who, upon their employment, will be engaged) in the building and construction industry with a labor organiza- tion of which building and construction employ- ees are members (not established, maintained, or assisted by any action defined in subsection (a) as an unfair labor practice) because (1) the majority status of such labor organization has not been established under the provisions of sec- tion 159 of this title prior to the making of such agreement, or (2) such agreement requires as a condition of employment, membership in such labor organization after the seventh day fol- lowing the beginning of such employment or the effective date of the agreement, whichever is later, or (3) such agreement requires the em- ployer to notify such labor organization of op- portunities for employment with such employer, or gives such labor organization an opportunity to refer qualified applicants for such employ- ment, or (4) such agreement specifies minimum training or experience qualifications for employ- ment or provides for priority in opportunities for employment based upon length of service with such employer, in the industry or in the particular geographical area: Provided, That nothing in this subsection shall set aside the final proviso to subsection (a)(3): Provided fur- ther, That any agreement which would be in- valid, but for clause (1) of this subsection, shall not be a bar to a petition filed pursuant to sec- tion 159(c) or 159(e) of this title. (g) Notification of intention to strike or picket at any health care institution A labor organization before engaging in any strike, picketing, or other concerted refusal to work at any health care institution shall, not less than ten days prior to such action, notify the institution in writing and the Federal Medi- ation and Conciliation Service of that intention, except that in the case of bargaining for an ini- tial agreement following certification or rec- ognition the notice required by this subsection Page 44 TITLE 29—LABOR § 158a shall not be given until the expiration of the pe- riod specified in clause (B) of the last sentence of subsection (d). The notice shall state the date and time that such action will commence. The notice, once given, may be extended by the writ- ten agreement of both parties. (July 5, 1935, ch. 372, § 8, 49 Stat. 452; June 23, 1947, ch. 120, title I, § 101, 61 Stat. 140; Oct. 22, 1951, ch. 534, § 1(b), 65 Stat. 601; Pub. L. 86–257, title II, § 201(e), title VII, §§ 704(a)–(c), 705(a), Sept. 14, 1959, 73 Stat. 525, 542–545; Pub. L. 93–360, § 1(c)–(e), July 26, 1974, 88 Stat. 395, 396.) Editorial Notes AMENDMENTS 1974—Subsec. (d). Pub. L. 93–360, § 1(c), (d), substituted ‘‘any notice’’ for ‘‘the sixty-day’’ and inserted ‘‘, or who engages in any strike within the appropriate pe- riod specified in subsection (g) of this section,’’ in loss- of-employee-status provision and inserted enumeration of modifications to this subsection which are to be ap- plied whenever the collective bargaining involves em- ployees of a health care institution. Subsec. (g). Pub. L. 93–360, § 1(e), added subsec. (g). 1959—Subsec. (a)(3). Pub. L. 86–257, § 201(e), struck out ‘‘and has at the time the agreement was made or with- in the preceding twelve months received from the Board a notice of compliance with sections 159(f), (g), (h) of this title’’ after ‘‘such agreement when made’’ in cl. (i). Subsec. (b)(4). Pub. L. 86–257, § 704(a), among other changes, substituted ‘‘induce or encourage any indi- vidual employed by any person engaged in commerce or in an industry affecting commerce to engage in, a strike or a refusal in the course of his employment’’ for ‘‘induce or encourage the employees of any employer to engage in, a strike or a concerted refusal in the course of their employment’’ in cl. (i), added cl. (ii), and in- serted provisions relating to agreements prohibited by subsection (e) of this section in cl. (A), the proviso re- lating to primary strikes and primary picketing in cl. (B), and the last proviso relating to publicity. Subsec. (b)(7). Pub. L. 86–257, § 704(c), added par. (7). Subsec. (e). Pub. L. 86–257, § 704(b), added subsec. (e). Subsec. (f). Pub. L. 86–257, § 705(a), added subsec. (f). 1951—Subsec. (a)(3). Act Oct. 22, 1951, substituted ‘‘and has at the time the agreement was made or with- in the preceding twelve months received from the Board a notice of compliance with section 159(f), (g), (h) of this title, and (ii) unless following an election held as provided in section 159(e) of this title within one year preceding the effective date of such agreement, the Board shall have certified that at least a majority of the employees eligible to vote in such election have voted to rescind the authority of such labor organiza- tion to make such an agreement:’’ for ‘‘; and (ii) if, fol- lowing the most recent election held as provided in sec- tion 159(e) of this title the Board shall have certified that at least a majority of the employees eligible to vote in such election have voted to authorize such labor organization to make such an agreement:’’. 1947—Act June 23, 1947, amended section generally by stating what were unfair labor practices by a union as well as by an employer, and by inserting provisions protecting the right of free speech for both employers and unions. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1974 AMENDMENT Amendment by Pub. L. 93–360 effective on thirtieth day after July 26, 1974, see section 4 of Pub. L. 93–360, set out as an Effective Date note under section 169 of this title. EFFECTIVE DATE OF 1959 AMENDMENT Amendment by sections 704(a)–(c) and 705(a) of Pub. L. 86–257 effective sixty days after Sept. 14, 1959, see section 707 of Pub. L. 86–257, set out as a note under sec- tion 153 of this title. EFFECTIVE DATE OF 1947 AMENDMENT For effective date of amendment by act June 23, 1947, see section 104 of act June 23, 1947, set out as a note under section 151 of this title. AGREEMENTS REQUIRING MEMBERSHIP IN A LABOR ORGANIZATION AS A CONDITION OF EMPLOYMENT Section 705(b) of Pub. L. 86–257 provided that: ‘‘Noth- ing contained in the amendment made by subsection (a) [amending this section] shall be construed as au- thorizing the execution or application of agreements requiring membership in a labor organization as a con- dition of employment in any State or Territory in which such execution or application is prohibited by State or Territorial Law.’’ UNFAIR LABOR PRACTICES PRIOR TO JUNE 23, 1947 Act June 23, 1947, ch. 120, title I, § 102, 61 Stat. 152, provided that: ‘‘No provision of this title [amending this subchapter] shall be deemed to make an unfair labor practice any act which was performed prior to the date of the enactment of this act [June 23, 1947] which did not constitute an unfair labor practice prior there- to, and the provisions of section 8(a)(3) and section 8(b)(2) of the National Labor Relations Act as amended by this title [subsecs. (a)(3) and (b)(2) of this section] shall not make an unfair labor practice the perform- ance of any obligation under a collective-bargaining agreement entered into prior to the date of the enact- ment of this Act [June 23, 1947], or (in the case of an agreement for a period of not more than one year) en- tered into on or after such date of enactment, but prior to the effective date of this title, if the performance of such obligation would not have constituted an unfair labor practice under section 8(3) [see subsec. (a)(3) of this section] of the National Labor Relations Act prior to the effective date of this title [sixty days after June 23, 1947] unless such agreement was renewed or ex- tended subsequent thereto.’’ § 158a. Providing facilities for operations of Fed- eral Credit Unions Provision by an employer of facilities for the operations of a Federal Credit Union on the premises of such employer shall not be deemed to be intimidation, coercion, interference, re- straint or discrimination within the provisions of sections 157 and 158 of this title, or acts amendatory thereof. (Dec. 6, 1937, ch. 3, § 5, 51 Stat. 5.) Editorial Notes CODIFICATION This section was not enacted either as part of the Labor Management Relations Act, 1947, which com- prises this chapter, or as part of the National Labor Re- lations Act, which comprises this subchapter. § 159. Representatives and elections (a) Exclusive representatives; employees’ adjust- ment of grievances directly with employer Representatives designated or selected for the purposes of collective bargaining by the major- ity of the employees in a unit appropriate for such purposes, shall be the exclusive representa- tives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment: Provided, That any individual employee or a group of employees