Unfair Labor Practice

Conduct prohibited by federal law regulating relations between employers, employees, and labor organizations.

Before 1935 U.S. labor unions received little protection from the law. Employers used many tactics to prevent employees from joining unions and to disrupt union activities in the workplace. The passage of the National Labor Relations Act (NLRA) of 1935, also known as the Wagner Act (29 U.S.C.A. § 151 et seq.), marked the beginning of affirmative federal government support of unionization and Collective Bargaining. The NLRA prohibits employers from taking certain actions against their employees and the unions that represent them. A prohibited action is called an unfair labor practice.

Section 158 of the NLRA lists employer actions that constitute unfair labor practices. Section 158 (a)(1) prohibits employers from interfering with the rights of employees to establish, belong to, or aid labor organizations; to conduct collective bargaining through the employees’ chosen representatives; and to participate in concerted activities, such as strikes, for the purpose of collective bargaining or other mutual aid or protection.

Section 158 (a)(3) outlaws employer-formed or -dominated “company unions.” Section 158 (a)(3) forbids employers to discriminate in hiring, firing, and other aspects of employment on the basis of union activity. Section 158 (a)(4) prohibits firing or discriminating against any employee because he has filed charges or testified before the agency charged with enforcing the statute. Section 158 (a)(5) requires employers to engage in collective bargaining with employee representatives.

Banning the Permanent Replacement of Economic Strikers: Fair or Unfair?

The National Labor Relations Act (NLRA) of 1935, also known as the Wagner Act (29 U.S.C.A. § 151 et seq.), affirms the right of employees to strike in order to force an employer to provide better wages or working conditions. Workers who strike for economic gain may be permanently replaced by the employer, however, as long as the replacement workers do not receive better terms than those offered to the strikers. The NLRA prohibits the replace-ment of workers who strike toprotest an unfair labor practice.

Unions have long sought to amend the NLRA to prohibit the permanent replacement of striking workers in all strikes, not just unfair labor practice strikes. They see the use of permanent replacement workers as the ultimate unfair labor practice and argue that it gives the employer disproportionate bargaining power in labor-management negotiations over wages and working conditions. Meanwhile employers contend that banning permanent replacement workers would give unions too much power and would cripple U.S. business.

Legislation that would ban permanent replacement workers has been defeated repeatedly in Congress. After the last congressional defeat of such legislation, President bill clinton issued Executive Order No. 12,954 on March 8, 1995 (60 FR 13023). This order barred businesses that permanently replace striking workers from receiving federal contracts. The president concluded that the hiring of permanent replacements escalated labor disputes and led to longer strikes, both of which are contrary to sound labor policy.

A coalition of business groups immediately challenged the order. In Chamber of Commerce of the United States v. Reich, 74 F. 3d 1322 (D.C. Cir. 1996), a three-judge federal appeals panel struck down the executive order, ruling that federal Labor Law preempted executive action. Efforts by some state legislatures to ban permanent replacement workers have also been struck down on the basis that the NLRA preempts State Action.

Union leaders continue to seek modification of the NLRA. The leaders of big industrial unions blame the loss of some strikes on the hiring of permanent replacements. Though employers have had the right to hire permanent replacements for decades, the unions contend that employers have only used this type of hardball tactic on a consistent basis since the 1980s. According to the unions, the loss of strikes because of this tactic has demoralized their members and put unions on the defensive in wage and working condition negotiations.

Unions argue that it is unfair for U.S. workers to lose their jobs when they exercise the fundamental right to strike. The hiring of permanent replacements is a strikebreaking tactic that undermines the Collective Bargaining process set out by the NLRA by ultimately giving employers the upper hand in negotiations. An employer’s express or implied threat to hire permanent replacements also threatens union solidarity, as members question the wisdom of going on strike.

In addition, unions are concerned that the hiring of permanent replacements can result in the demise of the union at the company that has been struck. Replacement workers, who are subjected to the threats and taunts of strikers, are unlikely to join the union at some future time. Thus, the employer not only prevails in a labor strike but also secures a nonunion workforce.

Apart from the effect on union-management relations and bargaining power, supporters of a ban on permanent replacements contend that consumers are hurt by such hiring. They argue that permanent replacements threaten the reliability and quality of products because those workers are less experienced and cannot perform as well as those with longtime service to a company.

U.S. businesses, however, believe strongly in the right to hire permanent replacement workers. They reject the idea that hiring temporary replacement workers during a strike is a viable option. Temporary replacements must be fired after an economic strike has been settled because union workers are entitled to reclaim their jobs. Employers point out that temporary workers require a substantial investment in training and that it is difficult to promote morale and loyalty among workers whose jobs will end with the resolution of the strike. Employers argue that it is more efficient to hire permanent replacements and provide them with sufficient training to ensure that the quality and reliability of a company’s products will not suffer.

Defenders of replacement workers also believe that the right to hire during a strike is essential to the balance that exists between labor and business. The right of labor to strike for better wages and working conditions is matched by the right of business to hire permanent replacements. If permanent replacements were banned, employers would be forced to capitulate to overreaching union economic demands or face more frequent and crippling strikes.

In addition, nonunion employers fear that a ban on replacement workers would give unions more leverage in organizing workers. A union could promise that workers who joined the union would be able to resume their jobs after a strike for economic demands, no matter how excessive.

Business leaders also contend that a ban on permanent replacement workers would drive up labor costs, which would be bad for the national economy. A ban would give unions too much power and encourage them to strike. Businesses assert that permitting the hiring of permanent replacements deters unions from striking and leads to more reasonable and productive collective bargaining.

Further readings

“Preventing Replacement of Economic Strikers.” 1990. Hearing Before the Subcommittee on Labor of the Committee on Labor and Human Resources, United States Senate, One Hundred First Congress, Second Session, on S. 2112 (June 6).

Thusing, Gregor, and Sven-Frederik Balders. 2000. “Permanent Replacement of Economic Strikers in the United States of America and the Federal Republic of Germany: Two Sides of the Same Coin.” Temple International and Comparative Law Journal 14 (spring).

The NLRA proved to be an effective tool for labor unions. Union membership and economic power grew so rapidly between 1935 and 1945 that the business community complained that unions were abusing their new strength. As a result, in 1947 Congress passed the Taft-Hartley Act, also known as the Labor-Management Relations Act (29 U.S.C.A. § 141 et seq.), which amended the NLRA by prohibiting certain union activities as unfair labor practices. These activities include secondary boycotts (boycotts against the employer’s customers or suppliers), jurisdictional strikes over work assignments, and strikes to force an employer to discharge an employee on account of her union affiliation or lack of it.

The NLRA also established the national labor relations board (NLRB) as an Administrative Agency to administer and interpret the unfair labor practice provisions. The NLRB hears allegations of unfair labor practices and makes rulings, which may be appealed in the federal courts.

Duluth auto mechanics strike over repair time | StarTribune.com

DULUTH, Minn. – Auto mechanics striking five car dealerships in Duluth say an impasse with owners isn’t about money, it’s about the time they need to complete their work.

Dealers have offered raises of 2.8 percent and 2.3 percent during the four-year contract and will contribute more to the employees’ pension fund.

United Auto Workers Local 241 president Del Soiney says an increase in health care premiums is one sticking point. But an even bigger one is contract language on the amount of time technicians have to do repairs. Mechanics say the proposal decreases time for repairs and raises safety concerns.

Duluth Automobile Dealers Association attorney Steve Burton tells the Duluth News Tribune ( http://bit.ly/QCVIeS) the contract language allows owners to be more competitive. The strike began June 15.

via Duluth auto mechanics strike over repair time | StarTribune.com.

Auto mechanics strike over repair time – Crookston, MN – Crookston Times

DULUTH, Minn. —

Auto mechanics striking five car dealerships in Duluth say an impasse with owners isn’t about money, it’s about the time they need to complete their work.

Dealers have offered raises of 2.8 percent and 2.3 percent during the four-year contract and will contribute more to the employees’ pension fund.

United Auto Workers Local 241 president Del Soiney says an increase in health care premiums is one sticking point. But an even bigger one is contract language on the amount of time technicians have to do repairs. Mechanics say the proposal decreases time for repairs and raises safety concerns.

Duluth Automobile Dealers Association attorney Steve Burton tells the Duluth News Tribune (http://bit.ly/QCVIeS ) the contract language allows owners to be more competitive. The strike began June 15.


via Auto mechanics strike over repair time – Crookston, MN – Crookston Times.

Editorial: Shield taxpayers from Brodkorb suit | StarTribune.com

It’s been more than seven months since a sex scandal at the top of the Minnesota Senate Republican caucus erupted into the headlines and removed Sen. Amy Koch from the majority leader’s office. Regrettably, the hits from that embarrassment keep coming — on a vital public institution and the public purse.

Michael Brodkorb, the other principal actor in the saga, filed a long-threatened lawsuit last week. He seeks six-figure recompense for what he claims was gender discrimination and defamation in connection with his dismissal in mid-December from a senior staffer role in the GOP majority caucus.

His legal offensive is likely to be offensive indeed. Proving his case appears likely to involve uncovering tawdry tales of sexual indiscretions by other senators and staffers through the years to demonstrate that he was treated more harshly than others similarly entwined. It’s a despicable threat that, if carried out, will do public respect for state government no good.

Meanwhile, the legal fees charged to the Senate — that is, to taxpayers — for preparing to defend the Senate and its operations chief, Cal Ludeman, from that suit had reached $84,600 through May. They surely topped $100,000 before Brodkorb’s suit was filed. The meter is still running.

State statutes and Senate precedent say that the legal defense costs associated with employment-related suits are to be borne by the taxpayers. But decency and a sense of responsibility for public funds ought to say otherwise in this unusual case.

The Koch-Brodkorb episode was a matter entirely internal to the Senate GOP family. Senate Republicans should feel obliged to spare taxpayers from the cost associated with cleaning up the mess.

Weeks ago, Senate DFL leader Tom Bakk recommended that the majority caucus establish a separate legal-defense fund, filled with donated dollars, to spare taxpayers from some or all of the costs associated with Brodkorb’s suit.

That would be a problematic move, since it involves relying on the largesse of special-interest groups with GOP leanings and thereby adding to the sway they already have on the party. But problematic moves are the only kind available in this situation, and for that, Republicans can only blame their own poor personnel judgment.

It’s worth noting that the state Republican Party is scrambling this summer to raise money from supporters to pay off debts accumulated when Brodkorb was the party’s deputy chair, a position he resigned last fall.

Keep taxpayers on the hook for the legal-defense bills, and Senate Republicans will face understandable suspicion that their lawsuit response is driven primarily by a desire to minimize political embarrassment, not by fiscal prudence. That will only add to the charge that the tab is draining funds better directed to nobler state purposes.

We have mixed views about the Senate GOP’s legal strategy going forward. An out-of-court settlement has some appeal for its ability to cap the financial losses and end Brodkorb’s threat to enlarge the damage that this matter has already caused.

But we also recoil from the precedent that would be set by an early settlement. It would tell any future disgruntled legislative employee that politicians are so averse to potentially damaging accusations in a court of law that they will respond to any legal threat with a generous check, regardless of its merits.

The merits of Brodkorb’s case strike us as weak. He was an “at will” employee, and the person at whose will he had been employed had resigned her position and no longer had personnel authority.

Her successor did not want Brodkorb’s continued presence on the staff. That’s what “at will” means. Further, legislators have some measure of legal immunity from charges that spring from the conduct of their official duties.

Those considerations likely have GOP caucus leaders expecting an early dismissal of this case. That’s an outcome to root for.

But as the accumulating pile of legal bills shows, even that outcome won’t be cheap. Senate Majority Leader David Senjem assures (see box, above) that he and other Republican leaders are proceeding with an eye toward minimizing taxpayer liability. They would do better to get the taxpayers off the hook altogether.

via Editorial: Shield taxpayers from Brodkorb suit | StarTribune.com.

San Bernardino city manager turns bad news into something positive – San Bernardino County Sun

Our view: Transparency and communication are two important keys to turning San Bernardino’s fortunes around.

Posted:   07/28/2012 07:15:47 AM PDT

There has been so little good news coming out of San Bernardino City Hall these days that it can be easy to overlook anything positive resulting from the City Council’s decision to pursue Chapter 9 bankruptcy protection.

But in the midst of the hand-wringing, finger-pointing, and public scoldings, it’s heartening to see so many city employees staying out of the fray and focusing on doing their jobs. They are the same folks who agreed to continue pay and benefit concessions that total nearly $3 million, or 6.7 percent, of the city’s deficit. They extended the concessions because they get it – San Bernardino is in trouble and they want to help.

They are led by Interim City Manager Andrea Travis-Miller, who has become a model of transparency and civility in San Bernardino.

Travis-Miller met with city employees Wednesday, and though the meeting was closed to the public, several workers who later spoke with our reporter said they appreciated the ability to ask questions of top officials.

It’s been nearly three weeks since the council authorized staff to pursue Chapter 9 bankruptcy, following the revelation that San Bernardino has a $45 million structural deficit and will be unable to meet its payroll obligations by Aug. 15 without financial restructuring.

Since that council vote, questions have been mounting about how the city will deal with the deep cuts needed to shore up its finances. Travis-Miller has previously estimated the city’s budget must be cut by 30 percent.

There’s no question whom those cuts are going to hurt – employees, who will lose their livelihoods, and residents, who are likely to see reduced city services.

Like we said – there’s not a lot of good news coming out of City Hall these days.

Morale is understandably dampened, and so we commend Travis-Miller for getting the troops together, out of the trenches and into the war room, so to speak.

Joe Michaud, the city’s library network administrator, put it perfectly when he told our reporter, “If we can come together and if we can be transparent like this, maybe that will be a good thing out of all this.”

He’s right. Transparency and communication are the keys to San Bernardino turning this mess around. We’re pleased Travis-Miller understands this as well, and applaud her openness with employees.

via San Bernardino city manager turns bad news into something positive – San Bernardino County Sun.

A dream for SB – San Bernardino County Sun

So, the city of San Bernardino has decided to file for bankruptcy. In order to stop the stigma of being a bankrupt city, we should consider changing our name. I have some suggestions that we should consider. How about East Colton, West Redlands? Another could be North Loma Linda. Heaven forbid that we should select North Riverside.

Wait just a minute. Maybe instead of picking a new name as a city, we should consider this an opportunity to leave the state of California. The state will soon be bankrupt, just like our city. We should change jurisdictions and rename our city to a state.

I suggest that we call our new state South California. What a great idea! We could determine our own future as a new state by escaping all of our current state’s unfunded liabilities, excessive taxes, excessive regulations … do I need to go on? We could also invite other local troubled cities to join us. They too could benefit from the new reorganization.

With our new state (South California – it has a nice ring, doesn’t it?), we could set up or own school system that actually produces a great product by privatizing; we could do away with the state income tax (for business also) because we would have a part-time Legislature; we could reduce our sales tax to 3 percent because we could privatize the DMV and other burdensome state entities.

If we were to reduce the tax burdens and regulations on individuals and businesses, what do you think would happen with our

new state’s economy? I am not an economist, but I should think we would be overwhelmed with businesses wanting to locate here. New business brings more revenue and more opportunities for our residents. Do you see the possibilities? South California could be the next nirvana or wonderland! But it is only a dream. However, I know this dream will never go bankrupt!



via A dream for SB – San Bernardino County Sun.