Posted on February 1, 2017

This is the 2nd in a series of white papers designed to shed some light, and perhaps even dispute some ‘alternative facts.’ The information contained herein either comes directly from the NLRB website, my understanding of it as informed by recent direct experience, and the wisdom of DMA legal counsel Joe Goldhammer.

Threat or courtesy?

I’m putting this at the top so it doesn’t get lost in the less juicy aspects of the labor law described below. Informing the other party of a pending ULP charge (see below) is a courtesy, not a threat. Doing so can be the quickest, least expensive way to find compromise and resolution. A step back from a charged situation should allow cooler heads to prevail. However, when a contract has been violated, the damage may already be done and the only way to place a marker in the timeline of labor unrest is to file the ULP which may be necessary simply to demonstrate a pattern of behavior, or serve as foundation for other ‘bigger picture’ issues.

The best course of action to avoid ULPs altogether is for all parties is to explicitly understand and follow the contract, and bargain fairly with the other side. It’s also helpful for the bargaining agents to recognize and respect the bargaining relationship, understand a little about labor law, and/or to have competent legal counsel advising them.

The National Labor Relations Act (NLRA)

An act of congress signed into law by FDR in 1935, it’s also known as the Wagner Act and is designed to protect the right of private sector employees to organize into unions for the purpose of bargaining collectively with an employer. While this sounds as if it the law protects workers’ rights exclusively, it is also serves to compel all parties to stay on the rails of their own collective bargaining process. You may read the entire act here (it’s a page ripper), but if you want to cut to the chase, once there scroll down to Section 8.

Employee rights protected by the act include:

  • Forming, or attempting to form, a union in your workplace;
  • Joining a union whether the union is recognized by your employer or not;
  • Assisting a union in organizing your fellow employees;
  • Refusing to do any or all of these things.
  • To be fairly represented by a union

Examples of employer actions that violate law:

  • Threatening employees with loss of jobs or benefits if they join or vote for a union or engage in protected concerted activity.
  • Threatening to close the plant if employees select a union to represent them.
  • Questioning employees about their union sympathies or activities in circumstances that tend to interfere with, restrain or coerce employees in the exercise of their rights under the Act.
  • Promising benefits to employees to discourage their union support.
  • Transferring, laying off, terminating, assigning employees more difficult work tasks, or otherwise punishing employees because they engaged in union or protected concerted activity.
  • Transferring, laying off, terminating, assigning employees more difficult work tasks, or otherwise punishing employees because they filed unfair labor practice charges or participated in an investigation conducted by NLRB.

Examples of union activities that violate the law:

  • Threats to employees that they will lose their jobs unless they support the union.
  • Seeking the suspension, discharge or other punishment of an employee for not being a union member even if the employee has paid or offered to pay a lawful initiation fee and periodic fees thereafter.
  • Refusing to process a grievance because an employee has criticized union officials or because an employee is not a member of the union in states where union security clauses are not permitted.
  • Fining employees who have validly resigned from the union for engaging in protected concerted activities following their resignation or for crossing an unlawful picket line.
  • Engaging in picket line misconduct, such as threatening, assaulting, or barring non-strikers from the employer’s premises.
  • Striking over issues unrelated to employment terms and conditions or coercively enmeshing neutrals into a labor dispute.

The National Labor Relations Board (NLRB)

The Board typically has five Members (currently only three) and primarily acts as a quasi-judicial body in deciding cases on the basis of formal records in administrative proceedings. Board Members are appointed by the President to 5-year terms with Senate consent, the term of one Member expiring each year. The Board also provides advice to Regional offices that are seeking assistance or clarification on the law and its application.

There are 32 regional offices of the NLRB (Denver is within the jurisdiction of Region 27) and those regional offices comprise lawyers and administrative staff that work to maintain labor peace. They are neither pro union or pro management, but rather pro NLRA. These regional offices are responsible for intake and investigation of charges of labor law misconduct (see ULPs below).

The NLRB is not concerned with the substance of an agreement (unless that substance violates the act); only that the law governing the collective bargaining process protected by the NLRA is observed.

Unfair Labor Practices (ULPs)

  • A ULP is a charge alleging a violation of the NLRA (see section 8 of the act for specific unfair labor practice charges).
  • Charges can be filed by anyone alleging a violation of the law by an employer or a labor organization.
  • Charges can be withdrawn at any time.
  • Charges can be amended any time prior to a determination of merit.
  • Once a charge is filed, it is assigned to an attorney in the regional NLRB office for investigation.
  • Once the investigation is complete, the attorney will make a recommendation to the regional director as to whether the charge has merit or not.
  • A Regional office may send a charge to the NLRB Board in Washington DC for advice. Once advice is rendered by the Board, the regional director will most likely follow that advice and act accordingly.

Charges with no merit

  • If the NLRB determines there is no merit to the allegation, the charging party will be provided an opportunity to withdraw or amend the charges.
  • If the charging party withdraws, notification is made to all concerned parties and no further action is taken.
  • If the charging party amends, further action is taken by the NLRB according to the finding of merit.
  • If the charging party does not withdraw or amend, the NLRB will dismiss the charges and that determination will become a matter of public record.
  • The charging party may then appeal the dismissal, in which case a hearing will be set and the matter heard by an administrative law judge.

Charges with merit

  • If the investigating attorney determines that the charge has merit, they will make a recommendation to the regional director to issue a settlement.
  • Settlements are an attempt to get the violating party to comply with the law and offers specific remedies for doing so – this can be as simple as a demand to provide requested information or to return to the table to bargain.
  • If the charged party complies with the settlement offer, they will have a period of compliance. A notice will be posted in the workplace notifying all who read it of the charge, the remedy, and the period of compliance.
  • The NLRB does not charge fines or penalties. In certain circumstances, a settlement may order payments that are due to employees resulting from a violation of the contract.
  • If the charged party refuses settlement, the NLRB will issue a formal complaint and a hearing will be set for the case to be heard by an administrative law judge.
  • Once the hearing is complete, the ALJ will review the post hearing brief from all parties, the transcript, and all available documentation and evidence. After carefully considering, the ALJ will make a ruling.
  • Once a ruling is made, orders will be drafted and distributed.
  • Either party may appeal the ruling, and it will then be heard by the Board in Washington DC. Same process.
  • Once the Board makes a decision, either party may appeal and then it will be heard by an appellate court.

The NLRB vs. Musical Arts Association (aka the Cleveland case) was ultimately heard by the US Court of Appeals (Washington DC Circuit Court). One synopsis of that case states: “Musical Arts Association v. NLRB, 466 Fed Appx 7 (DC Cir. 2012). Court affirmed [NLRB] Board holding that two or more unions may serve as the joint collective bargaining representatives for a single unit of employees.”

As always, the officers and board of the DMA are available by phone or email for conversation, questions, and/or concerns.

In solidarity,

Michael Allen, president
Denver Musicians Association, AFL/CIO
Local 20-623, American Federation of Musicians
(303) 573-1717, ext. 6