29 U.S.C. § 159 — Representatives and elections

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 Page 45 TITLE 29—LABOR § 159 shall have the right at any time to present grievances to their employer and to have such grievances adjusted, without the intervention of the bargaining representative, as long as the ad- justment is not inconsistent with the terms of a collective-bargaining contract or agreement then in effect: Provided further, That the bar- gaining representative has been given oppor- tunity to be present at such adjustment. (b) Determination of bargaining unit by Board The Board shall decide in each case whether, in order to assure to employees the fullest free- dom in exercising the rights guaranteed by this subchapter, the unit appropriate for the pur- poses of collective bargaining shall be the em- ployer unit, craft unit, plant unit, or subdivision thereof: Provided, That the Board shall not (1) decide that any unit is appropriate for such pur- poses if such unit includes both professional em- ployees and employees who are not professional employees unless a majority of such professional employees vote for inclusion in such unit; or (2) decide that any craft unit is inappropriate for such purposes on the ground that a different unit has been established by a prior Board deter- mination, unless a majority of the employees in the proposed craft unit vote against separate representation or (3) decide that any unit is ap- propriate for such purposes if it includes, to- gether with other employees, any individual em- ployed as a guard to enforce against employees and other persons rules to protect property of the employer or to protect the safety of persons on the employer’s premises; but no labor organi- zation shall be certified as the representative of employees in a bargaining unit of guards if such organization admits to membership, or is affili- ated directly or indirectly with an organization which admits to membership, employees other than guards. (c) Hearings on questions affecting commerce; rules and regulations (1) Whenever a petition shall have been filed, in accordance with such regulations as may be prescribed by the Board— (A) by an employee or group of employees or any individual or labor organization acting in their behalf alleging that a substantial num- ber of employees (i) wish to be represented for collective bargaining and that their employer declines to recognize their representative as the representative defined in subsection (a), or (ii) assert that the individual or labor organi- zation, which has been certified or is being currently recognized by their employer as the bargaining representative, is no longer a rep- resentative as defined in subsection (a); or (B) by an employer, alleging that one or more individuals or labor organizations have presented to him a claim to be recognized as the representative defined in subsection (a); the Board shall investigate such petition and if it has reasonable cause to believe that a ques- tion of representation affecting commerce exists shall provide for an appropriate hearing upon due notice. Such hearing may be conducted by an officer or employee of the regional office, who shall not make any recommendations with respect thereto. If the Board finds upon the record of such hearing that such a question of representation exists, it shall direct an election by secret ballot and shall certify the results thereof. (2) In determining whether or not a question of representation affecting commerce exists, the same regulations and rules of decision shall apply irrespective of the identity of the persons filing the petition or the kind of relief sought and in no case shall the Board deny a labor orga- nization a place on the ballot by reason of an order with respect to such labor organization or its predecessor not issued in conformity with section 160(c) of this title. (3) No election shall be directed in any bar- gaining unit or any subdivision within which in the preceding twelve-month period, a valid elec- tion shall have been held. Employees engaged in an economic strike who are not entitled to rein- statement shall be eligible to vote under such regulations as the Board shall find are con- sistent with the purposes and provisions of this subchapter in any election conducted within twelve months after the commencement of the strike. In any election where none of the choices on the ballot receives a majority, a run-off shall be conducted, the ballot providing for a selec- tion between the two choices receiving the larg- est and second largest number of valid votes cast in the election. (4) Nothing in this section shall be construed to prohibit the waiving of hearings by stipula- tion for the purpose of a consent election in con- formity with regulations and rules of decision of the Board. (5) In determining whether a unit is appro- priate for the purposes specified in subsection (b) the extent to which the employees have orga- nized shall not be controlling. (d) Petition for enforcement or review; tran- script Whenever an order of the Board made pursu- ant to section 160(c) of this title is based in whole or in part upon facts certified following an investigation pursuant to subsection (c) of this section and there is a petition for the en- forcement or review of such order, such certifi- cation and the record of such investigation shall be included in the transcript of the entire record required to be filed under subsection (e) or (f) of section 160 of this title, and thereupon the de- cree of the court enforcing, modifying, or set- ting aside in whole or in part the order of the Board shall be made and entered upon the plead- ings, testimony, and proceedings set forth in such transcript. (e) Secret ballot; limitation of elections (1) Upon the filing with the Board, by 30 per centum or more of the employees in a bar- gaining unit covered by an agreement between their employer and a labor organization made pursuant to section 158(a)(3) of this title, of a pe- tition alleging they desire that such authority be rescinded, the Board shall take a secret bal- lot of the employees in such unit and certify the results thereof to such labor organization and to the employer. (2) No election shall be conducted pursuant to this subsection in any bargaining unit or any subdivision within which, in the preceding Page 46 TITLE 29—LABOR § 160 twelve-month period, a valid election shall have been held. (July 5, 1935, ch. 372, § 9, 49 Stat. 453; June 23, 1947, ch. 120, title I, § 101, 61 Stat. 143; Oct. 22, 1951, ch. 534, § 1(c), (d), 65 Stat. 601; Pub. L. 86–257, title II, § 201(d), title VII, § 702, Sept. 14, 1959, 73 Stat. 525, 542.) Editorial Notes AMENDMENTS 1959—Subsec. (c)(3). Pub. L. 86–257, § 702, substituted ‘‘Employees engaged in an economic strike who are not entitled to reinstatement shall be eligible to vote under such regulations as the Board shall find are con- sistent with the purposes and provisions of this sub- chapter in any election conducted within twelve months after the commencement of the strike’’ for ‘‘Employees on strike who are not entitled to reinstate- ment shall not be eligible to vote.’’ Subsecs. (f), (g). Pub. L. 86–257, § 201(d), repealed sub- secs. (f) and (g) which required unions to file their con- stitutions, bylaws and a report, prescribed the contents of the report and directed the filing of annual financial reports, and are now covered by section 431 of this title. Subsec. (h). Pub. L. 86–257, § 201(d), repealed subsec. (h) which related to affidavits showing union’s officers free from Communist Party affiliation or belief. 1951—Subsec. (e). Act Oct. 22, 1951, § 1(c), struck out par. (1) and renumbered pars. (2) and (3) as (1) and (2). Subsecs. (f) to (h). Act Oct. 22, 1951, § 1(d), struck out ‘‘No petition under section 159(e)(1) shall be enter- tained’’ wherever appearing. 1947—Act June 23, 1947, amended section generally to allow employees to carry their grievances directly to the employer, to circumscribe certain powers of the Board, to make the union file with the Secretary of Labor its constitution, bylaws, and report before being certified as a bargaining agent, to require annual re- ports by labor unions, and to require labor unions to file affidavits with the Board showing that none of its officers are affiliated with or believe in the Communist Party. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1959 AMENDMENT Amendment by section 702 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 section 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. CERTAIN CERTIFICATIONS OF BARGAINING UNITS UNAFFECTED Act June 23, 1947, ch. 120, title I, § 103, 61 Stat. 152, provided that: ‘‘No provisions of this title [amending this subchapter] shall affect any certification of rep- resentatives or any determination as to the appropriate collective-bargaining unit, which was made under sec- tion 9 of the National Labor Relations Act [this sec- tion] prior to the effective date of this title [sixty days after June 23, 1947] until one year after the date of such certification or if, in respect of any such certification, a collective-bargaining contract was entered into prior to the effective date of this title [sixty days after June 23, 1947], until the end of the contract period or until one year after such date, whichever first occurs.’’ § 160. Prevention of unfair labor practices (a) Powers of Board generally The Board is empowered, as hereinafter pro- vided, to prevent any person from engaging in any unfair labor practice (listed in section 158 of this title) affecting commerce. This power shall not be affected by any other means of adjust- ment or prevention that has been or may be es- tablished by agreement, law, or otherwise: Pro- vided, That the Board is empowered by agree- ment with any agency of any State or Territory to cede to such agency jurisdiction over any cases in any industry (other than mining, manu- facturing, communications, and transportation except where predominantly local in character) even though such cases may involve labor dis- putes affecting commerce, unless the provision of the State or Territorial statute applicable to the determination of such cases by such agency is inconsistent with the corresponding provision of this subchapter or has received a construction inconsistent therewith. (b) Complaint and notice of hearing; answer; court rules of evidence inapplicable Whenever it is charged that any person has en- gaged in or is engaging in any such unfair labor practice, the Board, or any agent or agency des- ignated by the Board for such purposes, shall have power to issue and cause to be served upon such person a complaint stating the charges in that respect, and containing a notice of hearing before the Board or a member thereof, or before a designated agent or agency, at a place therein fixed, not less than five days after the serving of said complaint: Provided, That no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the fil- ing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made, unless the person aggrieved thereby was prevented from filing such charge by reason of service in the armed forces, in which event the six-month period shall be com- puted from the day of his discharge. Any such complaint may be amended by the member, agent, or agency conducting the hearing or the Board in its discretion at any time prior to the issuance of an order based thereon. The person so complained of shall have the right to file an answer to the original or amended complaint and to appear in person or otherwise and give testimony at the place and time fixed in the complaint. In the discretion of the member, agent, or agency conducting the hearing or the Board, any other person may be allowed to in- tervene in the said proceeding and to present testimony. Any such proceeding shall, so far as practicable, be conducted in accordance with the rules of evidence applicable in the district courts of the United States under the rules of civil procedure for the district courts of the United States, adopted by the Supreme Court of the United States pursuant to section 2072 of title 28. (c) Reduction of testimony to writing; findings and orders of Board The testimony taken by such member, agent, or agency or the Board shall be reduced to writ- ing and filed with the Board. Thereafter, in its discretion, the Board upon notice may take fur- ther testimony or hear argument. If upon the preponderance of the testimony taken the Board shall be of the opinion that any person named in the complaint has engaged in or is engaging in