DOCUMENT:

NLRB Rules and Regulations

[Page 252-290]

 

National Labor Relations Act

 

NLRB Rules and Regulations

 

NATIONAL LABOR RELATIONS ACT

 

Also cited NLRA or the Act; 29 U.S.C. Sec. Sec. 151-169

 

[Title 29, Chapter 7, Subchapter II, United States Code]

 

findings and policies

 

Section 1.  [Sec. 151.]  The denial by some employers of the right of

employees to organize and the refusal by some employers to accept the

procedure of collective bargaining lead to strikes and other forms of

industrial strife or unrest, which have the intent or the necessary

effect of burdening or obstructing commerce by (a) impairing the

efficiency, safety, or operation of the instrumentalities of commerce;

(b) occurring in the current of commerce; (c) materially affecting,

restraining, or controlling the flow of raw materials or manufactured or

processed goods from or into the channels of commerce, or the prices of

such materials or goods in commerce; or (d) causing diminution of

employment and wages in such volume as substantially to impair or

disrupt the market for goods flowing from or into the channels of

commerce.

The inequality of bargaining power between employees who do not

possess full freedom of association or actual liberty of contract and

employers who are organized in the corporate or other forms of ownership

association substantially burdens and affects the flow of commerce, and

tends to aggravate recurrent business depressions, by depressing wage

rates and the purchasing power of wage earners in industry and by

preventing the stabilization of competitive wage rates and working

conditions within and between industries.

Experience has proved that protection by law of the right of employees

to organize and bargain collectively safeguards commerce from injury,

impairment, or interruption, and promotes the flow of commerce by

removing certain recognized sources of industrial strife and unrest, by

encouraging practices fundamental to the friendly adjustment of

industrial disputes arising out of differences as to wages, hours, or

other working conditions, and by restoring equality of bargaining power

between employers and employees.

Experience has further demonstrated that certain practices by some

labor organizations, their officers, and members have the intent or the

necessary effect of burdening or obstructing commerce by preventing the

free flow of goods in such commerce through strikes and other forms of

industrial unrest or through concerted activities which impair the

interest of the public in the free flow of such commerce. The

elimination of such practices is a necessary condition to the assurance

of the rights herein guaranteed.

It is declared to be the policy of the United States to eliminate the

causes of certain substantial obstructions to the free flow of commerce

and to mitigate and eliminate these obstructions when they have occurred

 

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by encouraging the practice and procedure of collective bargaining and

by protecting the exercise by workers of full freedom of association,

self-organization, and designation of representatives of their own

choosing, for the purpose of negotiating the terms and conditions of

their employment or other mutual aid or protection.

 

definitions

 

Sec. 2.  [Sec. 152.]  When used in this Act [subchapter]–

(1) The term “person” includes one or more individuals, labor

organizations, partnerships, associations, corporations, legal

representatives, trustees, trustees in cases under title 11 of the

United States Code [under title 11], or receivers.

(2) The term “employer” includes any person acting as an agent of an

employer, directly or indirectly, but shall not include the United

States or any wholly owned Government corporation, or any Federal

Reserve Bank, or any State or political subdivision thereof, or any

person subject to the Railway Labor Act [45 U.S.C. Sec. 151 et seq.], as

amended from time to time, or any labor organization (other than when

acting as an employer), or anyone acting in the capacity of officer or

agent of such labor organization.

 

[Pub. L. 93-360, Sec. 1(a), July 26, 1974, 88 Stat. 395, deleted the

phrase “or any corporation or association operating a hospital, if no

part of the net earnings inures to the benefit of any private

shareholder or individual” from the definition of “employer.”]

 

(3) The term “employee” shall include any employee, and shall not be

limited to the employees of a particular employer, unless the Act [this

subchapter] explicitly states otherwise, and shall include any

individual whose work has ceased as a consequence of, or in connection

with, any current labor dispute or because of any unfair labor practice,

and who has not obtained any other regular and substantially equivalent

employment, but shall not include any individual employed as an

agricultural laborer, or in the domestic service of any family or person

at his home, or any individual employed by his parent or spouse, or any

individual having the status of an independent contractor, or any

individual employed as a supervisor, or any individual employed by an

employer subject to the Railway Labor Act [45 U.S.C. Sec. 151 et seq.],

as amended from time to time, or by any other person who is not an

employer as herein defined.

(4) The term “representatives” includes any individual or labor

organization.

(5) The term “labor organization” means any organization of any

kind, or any agency or employee representation committee or plan, in

which employees participate and which exists for the purpose, in whole

or in part, of dealing with employers concerning grievances, labor

disputes, wages, rates of pay, hours of employment, or conditions of

work.

 

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(6) The term “commerce” means trade, traffic, commerce,

transportation, or communication among the several States, or between

the District of Columbia or any Territory of the United States and any

State or other Territory, or between any foreign country and any State,

Territory, or the District of Columbia, or within the District of

Columbia or any Territory, or between points in the same State but

through any other State or any Territory or the District of Columbia or

any foreign country.

(7) The term “affecting commerce” means in commerce, or burdening or

obstructing commerce or the free flow of commerce, or having led or

tending to lead to a labor dispute burdening or obstructing commerce or

the free flow of commerce.

(8) The term “unfair labor practice” means any unfair labor practice

listed in section 8 [section 158 of this title].

(9) The term “labor dispute” includes any controversy concerning

terms, tenure, or conditions of employment, or concerning the

association or representation of persons in negotiating, fixing,

maintaining, changing, or seeking to arrange terms or conditions of

employment, regardless of whether the disputants stand in the proximate

relation of employer and employee.

(10) The term “National Labor Relations Board” means the National

Labor Relations Board provided for in section 3 of this Act [section 153

of this title].

(11) The term “supervisor” means any individual having authority, in

the interest of the employer, to hire, transfer, suspend, lay off,

recall, promote, discharge, assign, reward, or discipline other

employees, or responsibly to direct them, or to adjust their grievances,

or effectively to recommend such action, if in connection with the

foregoing the exercise of such authority is not of a merely routine or

clerical nature, but requires the use of independent judgment.

(12) The term “professional employee” means–

(a) any employee engaged in work (i) predominantly intellectual and

varied in character as opposed to routine mental, manual, mechanical,

or physical work; (ii) involving the consistent exercise of discretion

and judgment in its performance; (iii) of such a character that the

output produced or the result accomplished cannot be standardized in

relation to a given period of time; (iv) requiring knowledge of an

advanced type in a field of science or learning customarily acquired

by a prolonged course of specialized intellectual instruction and

study in an institution of higher learning or a hospital, as

distinguished from a general academic education or from an

apprenticeship or from training in the performance of routine mental,

manual, or physical processes; or

(b) any employee, who (i) has completed the courses of specialized

intellectual instruction and study described in clause (iv) of

paragraph (a), and (ii) is performing related work under the

supervision of a profes

 

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sional person to qualify himself to become a professional employee as

defined in paragraph (a).

(13) In determining whether any person is acting as an “agent” of

another person so as to make such other person responsible for his acts,

the question of whether the specific acts performed were actually

authorized or subsequently ratified shall not be controlling.

(14) The term “health care institution” shall include any hospital,

convalescent hospital, health maintenance organization, health clinic,

nursing home, extended care facility, or other institution devoted to

the care of sick, infirm, or aged person.

 

[Pub. L. 93-360, Sec. 1(b), July 26, 1974, 88 Stat. 395, added par.

(14).]

 

national labor relations board

 

Sec. 3.  [Sec. 153.]  (a) [Creation, composition, appointment, and

tenure; Chairman; removal of members]  The National Labor Relations

Board (hereinafter called the “Board”) created by this Act

[subchapter] prior to its amendment by the Labor Management Relations

Act, 1947 [29 U.S.C. Sec. 141 et seq.], is continued as an agency of the

United States, except that the Board shall consist of five instead of

three members, appointed by the President by and with the advice and

consent of the Senate. Of the two additional members so provided for,

one shall be appointed for a term of five years and the other for a term

of two years. Their successors, and the successors of the other members,

shall be appointed for terms of five years each, excepting that any

individual chosen to fill a vacancy shall be appointed only for the

unexpired term of the member whom he shall succeed. The President shall

designate one member to serve as Chairman of the Board. Any member of

the Board may be removed by the President, upon notice and hearing, for

neglect of duty or malfeasance in office, but for no other cause.

(b) [Delegation of powers to members and regional directors; review

and stay of actions of regional directors; quorum; seal]  The Board is

authorized to delegate to any group of three or more members any or all

of the powers which it may itself exercise. The Board is also authorized

to delegate to its regional directors its powers under section 9

[section 159 of this title] to determine the unit appropriate for the

purpose of collective bargaining, to investigate and provide for

hearings, and determine whether a question of representation exists, and

to direct an election or take a secret ballot under subsection (c) or

(e) of section 9 [section 159 of this title] and certify the results

thereof, except that upon the filling of a request therefor with the

Board by any interested person, the Board may review any action of a

regional director delegated to him under this paragraph, but such a

review shall not, unless specifically ordered by the Board, operate as a

stay of any action taken by the regional director. A vacancy in the

Board shall not impair the right of the remaining members

 

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to exercise all of the powers of the Board, and three members of the

Board shall, at all times, constitute a quorum of the Board, except that

two members shall constitute a quorum of any group designated pursuant

to the first sentence hereof. The Board shall have an official seal

which shall be judicially noticed.

(c) [Annual reports to Congress and the President]  The Board shall at

the close of each fiscal year make a report in writing to Congress and

to the President summarizing significant case activities and operations

for that fiscal year.

(d) [General Counsel; appointment and tenure; powers and duties;

vacancy]  There shall be a General Counsel of the Board who shall be

appointed by the President, by and with the advice and consent of the

Senate, for a term of four years. The General Counsel of the Board shall

exercise general supervision over all attorneys employed by the Board

(other than administrative law judges and legal assistants to Board

members) and over the officers and employees in the regional offices. He

shall have final authority, on behalf of the Board, in respect of the

investigation of charges and issuance of complaints under section 10

[section 160 of this title], and in respect of the prosecution of such

complaints before the Board, and shall have such other duties as the

Board may prescribe or as may be provided by law. In case of vacancy in

the office of the General Counsel the President is authorized to

designate the officer or employee who shall act as General Counsel

during such vacancy, but no person or persons so designated shall so act

(1) for more than forty days when the Congress is in session unless a

nomination to fill such vacancy shall have been submitted to the Senate,

or (2) after the adjournment sine die of the session of the Senate in

which such nomination was submitted.

 

[The title “administrative law judge” was adopted in 5 U.S.C.

Sec. 3105.]

 

Sec. 4.  [Sec. 154.  Eligibility for reappointment; officers and

employees; payment of expenses]  (a) Each member of the Board and the

General Counsel of the Board shall be eligible for reappointment, and

shall not engage in any other business, vocation, or employment. The

Board shall appoint an executive secretary, and such attorneys,

examiners, and regional directors, and such other employees as it may

from time to time find necessary for the proper performance of its

duties. The Board may not employ any attorneys for the purpose of

reviewing transcripts of hearings or preparing drafts of opinions except

that any attorney employed for assignment as a legal assistant to any

Board member may for such Board member review such transcripts and

prepare such drafts. No administrative law judge’s report shall be

reviewed, either before or after its publication, by any person other

than a member of the Board or his legal assistant, and no administrative

law judge shall advise or consult with the Board with respect to

exceptions taken to his findings, rulings, or recommenda

 

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tions. The Board may establish or utilize such regional, local, or other

agencies, and utilize such voluntary and uncompensated services, as may

from time to time be needed. Attorneys appointed under this section may,

at the direction of the Board, appear for and represent the Board in any

case in court. Nothing in this Act [subchapter] shall be construed to

authorize the Board to appoint individuals for the purpose of

conciliation or mediation, or for economic analysis.

 

[The title “administrative law judge” was adopted in 5 U.S.C.

Sec. 3105.]

 

(b) All of the expenses of the Board, including all necessary

traveling and subsistence expenses outside the District of Columbia

incurred by the members or employees of the Board under its orders,

shall be allowed and paid on the presentation of itemized vouchers

therefor approved by the Board or by any individual it designates for

that purpose.

Sec. 5.  [Sec. 155.  Principal office, conducting inquiries throughout

country; participation in decisions or inquiries conducted by member]

The principal office of the Board shall be in the District of Columbia,

but it may meet and exercise any or all of its powers at any other

place. The Board may, by one or more of its members or by such agents or

agencies as it may designate, prosecute any inquiry necessary to its

functions in any part of the United States. A member who participates in

such an inquiry shall not be disqualified from subsequently

participating in a decision of the Board in the same case.

Sec. 6.  [Sec. 156.  Rules and regulations]  The Board shall have

authority from time to time to make, amend, and rescind, in the manner

prescribed by the Administrative Procedure Act [by subchapter II of

chapter 5 of title 5], such rules and regulations as may be necessary to

carry out the provisions of this Act [subchapter].

 

rights of employees

 

Sec. 7.  [Sec. 157.]  Employees shall have the right to self-

organization, to form, join, or assist labor organizations, to bargain

collectively through representatives of their own choosing, and to

engage in other concerted activities for the purpose of collective

bargaining or other mutual aid or protection, and shall also have the

right to refrain from any or all such activities except to the extent

that such right may be affected by an agreement requiring membership in

a labor organization as a condition of employment as authorized in

section 8(a)(3) [section 158(a)(3) of this title].

 

unfair labor practices

 

Sec. 8.  [Sec. 158.]  (a) [Unfair labor practices by employer]  It

shall be an unfair labor practice for an employer–

(1) to interfere with, restrain, or coerce employees in the exercise

of the rights guaranteed in section 7 [section 157 of this title];

 

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(2) to dominate or interfere with the formation or administration of

any labor organization or contribute financial or other support to it:

Provided, That subject to rules and regulations made and published by

the Board pursuant to section 6 [section 156 of this title], an

employer shall not be prohibited from permitting employees 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 condition of employment to encourage or discourage

membership in any labor organization: Provided, That nothing in this

Act [subchapter], or in any other statute of the United States, shall

preclude an employer from making an agreement with a labor

organization (not established, maintained, or assisted by any action

defined in section 8(a) of this Act [in this subsection] as an unfair

labor practice) to require as a condition of employment 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 9(a) [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 9(e) [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 discrimination 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 denied 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

membership;

(4) to discharge or otherwise discriminate against an employee

because he has filed charges or given testimony under this Act

[subchapter];

(5) to refuse to bargain collectively with the representatives of

his employees, subject to the provisions of section 9(a) [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 7 [section 157 of this title]: Provided,

That this paragraph shall not impair the right of a labor organization

to prescribe its own rules with respect to the acquisition or

retention of membership

 

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therein; or (B) an employer in the selection of his representatives

for the purposes of collective bargaining or the adjustment of

grievances;

(2) to cause or attempt to cause an employer to discriminate against

an employee in violation of subsection (a)(3) [of subsection (a)(3) of

this section] or to discriminate against an employee with respect to

whom membership in such organization has been denied or terminated on

some ground other than his failure to tender the periodic dues and the

initiation fees uniformly required as a condition 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

section 9(a) [section 159(a) of this title];

(4)(i) to engage in, or to induce or encourage any individual

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 to use, manufacture, 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 engaged 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 section 8(e) [subsection (e) of this section];

(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 employer to

recognize or bargain with a labor organization as the representative

of his employees unless such labor organization has been certified as

the representative of such employees under the provisions of section 9

[section 159 of this title]: Provided, That nothing contained in this

clause (B) shall be construed to make unlawful, where not otherwise

unlawful, any primary strike or primary picketing;

(C) forcing or requiring any employer to recognize or bargain with a

particular labor organization as the representative of his employees

if another labor organization has been certified as the representative

of such employees under the provisions of section 9 [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 particular 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 performing such work:

 

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Provided, That nothing contained in this subsection (b) [this

subsection] shall be construed to make unlawful a refusal by any person

to enter upon the premises of any employer (other than his own

employer), 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 Act [subchapter]: Provided

further, That for the purposes of this paragraph (4) only, nothing

contained 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 inducing any individual

employed by any person other than the primary employer in the course of

his employment to refuse to pick up, deliver, or transport any goods, or

not to perform 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) [of this section] the payment, as a condition

precedent to becoming a member of such organization, of a fee in an

amount which the Board finds excessive or discriminatory under all the

circumstances. In making such a finding, the Board shall consider, among

other relevant factors, the practices and customs of labor organizations

in the particular industry, and the wages currently paid to the

employees affected;

(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 performed 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 representative of his employees, or forcing or requiring the

employees of an employer to accept or select such labor organization as

their collective-bargaining representative, unless such labor

organization is currently certified as the representative of such

employees:

(A) where the employer has lawfully recognized in accordance with

this Act [subchapter] any other labor organization and a question

concerning representation may not appropriately be raised under

section 9(c) of this Act [section 159(c) of this title],

(B) where within the preceding twelve months a valid election under

section 9(c) of this Act [section 159(c) of this title] has been

conducted, or

(C) where such picketing has been conducted without a petition under

section 9(c) [section 159(c) of this title] being filed within a

reasonable period of time not to exceed thirty days from the

commencement of

 

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such picketing: Provided, That when such a petition has been filed the

Board shall forthwith, without regard to the provisions of section

9(c)(1) [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 appropriate

and shall certify the results thereof: Provided further, That nothing

in this subparagraph (C) shall be construed to prohibit any picketing

or other publicity for the purpose of truthfully advising the public

(including 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 construed to permit any act

which would otherwise be an unfair labor practice under this section

8(b) [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 Act [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 representative 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 agreement or any question arising thereunder, and the execution of

a written contract incorporating any agreement reached if requested by

either party, but such obligation does not compel 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 affecting commerce, the duty to bargain

collectively shall also mean that no party to such contract 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 termination 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;

 

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(3) notifies the Federal Mediation and Conciliation Service within

thirty days after such notice of the existence of a dispute, and

simultaneously therewith notifies any State or Territorial agency

established to mediate and conciliate disputes within the State or

Territory 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 lockout, all the terms 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), (3), and (4) [paragraphs (2) to (4) of this

subsection] shall become inapplicable upon an intervening certification

of the Board, under which the labor organization or individual, which is

a party to the contract, has been superseded as or ceased to be the

representative of the employees subject to the provisions of section

9(a) [section 159(a) of this title], and the duties so imposed shall not

be construed as requiring either party to discuss or agree to any

modification 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 employee of the employer engaged in the particular

labor dispute, for the purposes of sections 8, 9, and 10 of this Act

[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 section 8(d) [this

subsection] shall be modified as follows:

(A) The notice of section 8(d)(1) [paragraph (1) of this subsection]

shall be ninety days; the notice of section 8(d)(3) [paragraph (3) of

this subsection] shall be sixty days; and the contract period of

section 8(d)(4) [paragraph (4) of this subsection] shall be ninety

days.

(B) Where the bargaining is for an initial agreement following

certification or recognition, at least thirty days’ notice of the

existence of a dispute shall be given by the labor organization to the

agencies set forth in section 8(d)(3) [in paragraph (3) of this

subsection].

(C) After notice is given to the Federal Mediation 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 conciliation, 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 settlement of

the dispute.

 

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[Pub. L. 93-360, July 26, 1974, 88 Stat. 395, amended the last

sentence of Sec. 8(d) by striking the words “the sixty-day” and

inserting the words “any notice” and by inserting before the words

“shall lose” the phrase “, or who engages in any strike within the

appropriate period specified in subsection (g) of this section.” It

also amended the end of paragraph Sec. 8(d) by adding a new sentence

“Whenever the collective bargaining . . . aiding in a settlement 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 implied, 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 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 unenforceable and void: Provided, That nothing in this

subsection (e) [this subsection] shall apply to an agreement between a

labor organization and an employer in the construction 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 (e) and section 8(b)(4)(B) [this subsection and

subsection (b)(4)(B) of this section] the terms “any employer,” “any

person engaged in commerce or an industry affecting commerce,” and

“any person” 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 jobber,

manufacturer, contractor, or subcontractor working on the goods or

premises of the jobber or manufacturer or performing parts of an

integrated process of production in the apparel and clothing industry:

Provided further, That nothing in this Act [subchapter] shall prohibit

the enforcement of any agreement which is within the foregoing

exception.

(f) [Agreements covering employees in the building and construction

industry]  It shall not be an unfair labor practice under subsections

(a) and (b) of this section for an employer 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 organization of

which building and construction employees are members (not established,

maintained, or assisted by any action defined in section 8(a) of this

Act [subsection (a) of this section] as an unfair labor practice)

because (1) the majority status of such labor organization has not been

established under the provisions of section 9 of this Act [section 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 following the beginning of such

employment or the effective date of the agreement, whichever is later,

or (3) such agreement requires the employer to notify

 

[[Page 263]]

 

such labor organization of opportunities for employment with such

employer, or gives such labor organization an opportunity to refer

qualified applicants for such employment, or (4) such agreement

specifies minimum training or experience qualifications for employment

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 section 8(a)(3) of this Act

[subsection (a)(3) of this section]: Provided further, That any

agreement which would be invalid, but for clause (1) of this subsection,

shall not be a bar to a petition filed pursuant to section 9(c) or 9(e)

[section 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 Mediation and Conciliation

Service of that intention, except that in the case of bargaining for an

initial agreement following certification or recognition the notice

required by this subsection shall not be given until the expiration of

the period specified in clause (B) of the last sentence of section 8(d)

of this Act [subsection (d) of this section]. The notice shall state the

date and time that such action will commence. The notice, once given,

may be extended by the written agreement of both parties.

 

[Pub. L. 93-360, July 26, 1974, 88 Stat. 396, added subsec. (g).]

 

representatives and elections

 

Sec. 9  [Sec. 159.]  (a) [Exclusive representatives; employees’

adjustment of grievances directly with employer]  Representatives

designated or selected for the purposes of collective bargaining by the

majority of the employees in a unit appropriate for such purposes, shall

be the exclusive representatives 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 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 adjustment is not inconsistent with the

terms of a collective-bargaining contract or agreement then in effect:

Provided further, That the bargaining representative has been given

opportunity 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

freedom in exercising the rights guaranteed by this Act [subchapter],

the unit appropriate for the purposes of collective bargaining shall be

the employer unit, craft unit, plant unit, or subdivision thereof:

Provided, That the Board shall not (1) decide that any unit is

appropriate for such purposes

 

[[Page 264]]

 

if such unit includes both professional employees 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 determination, unless a

majority of the employees in the proposed craft unit votes against

separate representation or (3) decide that any unit is appropriate for

such purposes if it includes, together with other employees, any

individual employed 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 organization

shall be certified as the representative of employees in a bargaining

unit of guards if such organization admits to membership, or is

affiliated 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 number

of employees (i) wish to be represented for collective bargaining and

that their employer declines to recognize their representative as the

representative defined in section 9(a) [subsection (a) of this

section], or (ii) assert that the individual or labor organization,

which has been certified or is being currently recognized by their

employer as the bargaining representative, is no longer a

representative as defined in section 9(a) [subsection (a) of this

section]; 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 section 9(a) [subsection (a) of this

section];

the Board shall investigate such petition and if it has reasonable

cause to believe that a question 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 organization 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 10(c) [section 160(c) of this title].

 

[[Page 265]]

 

(3) No election shall be directed in any bargaining unit or any

subdivision within which, in the preceding twelve-month period, a valid

election shall have been held. 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 consistent with the

purposes and provisions of this Act [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 runoff shall be conducted, the ballot providing for a

selection between the two choices receiving the largest 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 stipulation for the purpose of a consent election in

conformity with regulations and rules of decision of the Board.

(5) In determining whether a unit is appropriate for the purposes

specified in subsection (b) [of this section] the extent to which the

employees have organized shall not be controlling.

(d) [Petition for enforcement or review; transcript]  Whenever an

order of the Board made pursuant to section 10(c) [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 enforcement or review of such order, such

certification and the record of such investigation shall be included in

the transcript of the entire record required to be filed under section

10(e) or 10(f) [subsection (e) or (f) of section 160 of this title], and

thereupon the decree of the court enforcing, modifying, or setting aside

in whole or in part the order of the Board shall be made and entered

upon the pleadings, 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 bargaining

unit covered by an agreement between their employer and labor

organization made pursuant to section 8(a)(3) [section 158(a)(3) of this

title], of a petition alleging they desire that such authorization be

rescinded, the Board shall take a secret ballot 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

twelve-month period, a valid election shall have been held.

 

prevention of unfair labor practices

 

Sec. 10.  [Sec. 160.]  (a) [Powers of Board generally]  The Board is

empowered, as hereinafter provided, to prevent any person from engaging

in any unfair labor practice (listed in section 8 [section 158 of this

title]) affecting commerce. This power shall not be affected by any

other means of adjustment or prevention that has been or may be

established by agree-

 

[[Page 266]]

 

ment, law, or otherwise: Provided, That the Board is empowered by

agreement with any agency of any State or Territory to cede to such

agency jurisdiction over any cases in any industry (other than mining,

manufacturing, communications, and transportation except where

predominately local in character) even though such cases may involve

labor disputes 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 Act

[subchapter] or has received a construction inconsistent therewith.

(b) [Complaint and notice of hearing; six-month limitation; answer;

court rules of evidence inapplicable]  Whenever it is charged that any

person has engaged in or is engaging in any such unfair labor practice,

the Board, or any agent or agency designated 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 filing 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 computed 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 intervene 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, United States Code [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 writing and filed with the Board. Thereafter,

in its discretion, the Board upon notice may take further 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 any such unfair labor practice, then the

Board shall

 

[[Page 267]]

 

state its findings of fact and shall issue and cause to be served on

such person an order requiring such person to cease and desist from such

unfair labor practice, and to take such affirmative action including

reinstatement of employees with or without backpay, as will effectuate

the policies of this Act [subchapter]: Provided, That where an order

directs reinstatement of an employee, backpay may be required of the

employer or labor organization, as the case may be, responsible for the

discrimination suffered by him: And provided further, That in

determining whether a complaint shall issue alleging a violation of

section 8(a)(1) or section 8(a)(2) [subsection (a)(1) or (a)(2) of

section 158 of this title], and in deciding such cases, the same

regulations and rules of decision shall apply irrespective of whether or

not the labor organization affected is affiliated with a labor

organization national or international in scope. Such order may further

require such person to make reports from time to time showing the extent

to which it has complied with the order. If upon the preponderance of

the testimony taken the Board shall not be of the opinion that the

person named in the complaint has engaged in or is engaging in any such

unfair labor practice, then the Board shall state its findings of fact

and shall issue an order dismissing the said complaint. No order of the

Board shall require the reinstatement of any individual as an employee

who has been suspended or discharged, or the payment to him of any

backpay, if such individual was suspended or discharged for cause. In

case the evidence is presented before a member of the Board, or before

an administrative law judge or judges thereof, such member, or such

judge or judges, as the case may be, shall issue and cause to be served

on the parties to the proceeding a proposed report, together with a

recommended order, which shall be filed with the Board, and if no

exceptions are filed within twenty days after service thereof upon such

parties, or within such further period as the Board may authorize, such

recommended order shall become the order of the Board and become

affective as therein prescribed.

 

[The title “administrative law judge” was adopted in 5 U.S.C.

Sec. 3105.]

 

(d) [Modification of findings or orders prior to filing record in

court]  Until the record in a case shall have been filed in a court, as

hereinafter provided, the Board may at any time, upon reasonable notice

and in such manner as it shall deem proper, modify or set aside, in

whole or in part, any finding or order made or issued by it.

(e) [Petition to court for enforcement of order; proceedings; review

of judgment]  The Board shall have power to petition any court of

appeals of the United States, or if all the courts of appeals to which

application may be made are in vacation, any district court of the

United States, within any circuit or district, respectively, wherein the

unfair labor practice in question occurred or wherein such person

resides or transacts business, for the enforcement of such order and for

appropriate temporary relief or restraining order, and shall file in the

court the record in the proceeding,

 

[[Page 268]]

 

as provided in section 2112 of title 28, United States Code [section

2112 of title 28]. Upon the filing of such petition, the court shall

cause notice thereof to be served upon such person, and thereupon shall

have jurisdiction of the proceeding and of the question determined

therein, and shall have power to grant such temporary relief or

restraining order as it deems just and proper, and to make and enter a

decree enforcing, modifying and enforcing as so modified, or setting

aside in whole or in part the order of the Board. No objection that has

not been urged before the Board, its member, agent, or agency, shall be

considered by the court, unless the failure or neglect to urge such

objection shall be excused because of extraordinary circumstances. The

findings of the Board with respect to questions of fact if supported by

substantial evidence on the record considered as a whole shall be

conclusive. If either party shall apply to the court for leave to adduce

additional evidence and shall show to the satisfaction of the court that

such additional evidence is material and that there were reasonable

grounds for the failure to adduce such evidence in the hearing before

the Board, its member, agent, or agency, the court may order such

additional evidence to be taken before the Board, its member, agent, or

agency, and to be made a part of the record. The Board may modify its

findings as to the facts, or make new findings, by reason of additional

evidence so taken and filed, and it shall file such modified or new

findings, which findings with respect to question of fact if supported

by substantial evidence on the record considered as a whole shall be

conclusive, and shall file its recommendations, if any, for the

modification or setting aside of its original order. Upon the filing of

the record with it the jurisdiction of the court shall be exclusive and

its judgment and decree shall be final, except that the same shall be

subject to review by the appropriate United States court of appeals if

application was made to the district court as hereinabove provided, and

by the Supreme Court of the United States upon writ of certiorari or

certification as provided in section 1254 of title 28.

(f) [Review of final order of Board on petition to court]  Any person

aggrieved by a final order of the Board granting or denying in whole or

in part the relief sought may obtain a review of such order in any

United States court of appeals in the circuit wherein the unfair labor

practice in question was alleged to have been engaged in or wherein such

person resides or transacts business, or in the United States Court of

Appeals for the District of Columbia, by filing in such court a written

petition praying that the order of the Board be modified or set aside. A

copy of such petition shall be forthwith transmitted by the clerk of the

court to the Board, and thereupon the aggrieved party shall file in the

court the record in the proceeding, certified by the Board, as provided

in section 2112 of title 28, United States Code [section 2112 of title

28]. Upon the filing of such petition, the court shall proceed in the

same manner

 

[[Page 269]]

 

as in the case of an application by the Board under subsection (e) of

this section, and shall have the same jurisdiction to grant to the Board

such temporary relief or restraining order as it deems just and proper,

and in like manner to make and enter a decree enforcing, modifying and

enforcing as so modified, or setting aside in whole or in part the order

of the Board; the findings of the Board with respect to questions of

fact if supported by substantial evidence on the record considered as a

whole shall in like manner be conclusive.

(g) [Institution of court proceedings as stay of Board’s order]  The

commencement of proceedings under subsection (e) or (f) of this section

shall not, unless specifically ordered by the court, operate as a stay

of the Board’s order.

(h) [Jurisdiction of courts unaffected by limitations prescribed in

chapter 6 of this title]  When granting appropriate temporary relief or

a restraining order, or making and entering a decree enforcing,

modifying and enforcing as so modified, or setting aside in whole or in

part an order of the Board, as provided in this section, the

jurisdiction of courts sitting in equity shall not be limited by

sections 101 to 115 of title 29, United States Code [chapter 6 of this

title] [known as the “Norris-LaGuardia Act”].

(i)   Repealed.

(j) [Injunctions]  The Board shall have power, upon issuance of a

complaint as provided in subsection (b) [of this section] charging that

any person has engaged in or is engaging in an unfair labor practice, to

petition any United States district court, within any district wherein

the unfair labor practice in question is alleged to have occurred or

wherein such person resides or transacts business, for appropriate

temporary relief or restraining order. Upon the filing of any such

petition the court shall cause notice thereof to be served upon such

person, and thereupon shall have jurisdiction to grant to the Board such

temporary relief or restraining order as it deems just and proper.

(k) [Hearings on jurisdictional strikes]  Whenever it is charged that

any person has engaged in an unfair labor practice within the meaning of

paragraph (4)(D) of section 8(b) [section 158(b) of this title], the

Board is empowered and directed to hear and determine the dispute out of

which such unfair labor practice shall have arisen, unless, within ten

days after notice that such charge has been filed, the parties to such

dispute submit to the Board satisfactory evidence that they have

adjusted, or agreed upon methods for the voluntary adjustment of, the

dispute. Upon compliance by the parties to the dispute with the decision

of the Board or upon such voluntary adjustment of the dispute, such

charge shall be dismissed.

(l) [Boycotts and strikes to force recognition of uncertified labor

organizations; injunctions; notice; service of process]  Whenever it is

charged that any person has engaged in an unfair labor practice within

 

[[Page 270]]

 

the meaning of paragraph (4)(A), (B), or (C) of section 8(b) [section

158(b) of this title], or section 8(e) [section 158(e) of this title] or

section 8(b)(7) [section 158(b)(7) of this title], the preliminary

investigation of such charge shall be made forthwith and given priority

over all other cases except cases of like character in the office where

it is filed or to which it is referred. If, after such investigation,

the officer or regional attorney to whom the matter may be referred has

reasonable cause to believe such charge is true and that a complaint

should issue, he shall, on behalf of the Board, petition any United

States district court within any district where the unfair labor

practice in question has occurred, is alleged to have occurred, or

wherein such person resides or transacts business, for appropriate

injunctive relief pending the final adjudication of the Board with

respect to such matter. Upon the filing of any such petition the

district court shall have jurisdiction to grant such injunctive relief

or temporary restraining order as it deems just and proper,

notwithstanding any other provision of law: Provided further, That no

temporary restraining order shall be issued without notice unless a

petition alleges that substantial and irreparable injury to the charging

party will be unavoidable and such temporary restraining order shall be

effective for no longer than five days and will become void at the

expiration of such period: Provided further, That such officer or

regional attorney shall not apply for any restraining order under

section 8(b)(7) [section 158(b)(7) of this title] if a charge against

the employer under section 8(a)(2) [section 158(a)(2) of this title] has

been filed and after the preliminary investigation, he has reasonable

cause to believe that such charge is true and that a complaint should

issue. Upon filing of any such petition the courts shall cause notice

thereof to be served upon any person involved in the charge and such

person, including the charging party, shall be given an opportunity to

appear by counsel and present any relevant testimony: Provided further,

That for the purposes of this subsection district courts shall be deemed

to have jurisdiction of a labor organization (1) in the district in

which such organization maintains its principal office, or (2) in any

district in which its duly authorized officers or agents are engaged in

promoting or protecting the interests of employee members. The service

of legal process upon such officer or agent shall constitute service

upon the labor organization and make such organization a party to the

suit. In situations where such relief is appropriate the procedure

specified herein shall apply to charges with respect to section

8(b)(4)(D) [section 158(b)(4)(D) of this title].

(m) [Priority of cases]  Whenever it is charged that any person has

engaged in an unfair labor practice within the meaning of subsection

(a)(3) or (b)(2) of section 8 [section 158 of this title], such charge

shall be given priority over all other cases except cases of like

character in the office where it is filed or to which it is referred and

cases given priority under subsection (l) [of this section].

 

[[Page 271]]

 

investigatory powers

 

Sec. 11.  [Sec. 161.]  For the purpose of all hearings and

investigations, which, in the opinion of the Board, are necessary and

proper for the exercise of the powers vested in it by section 9 and

section 10 [sections 159 and 160 of this title]–

(1) [Documentary evidence; summoning witnesses and taking testimony]

The Board, or its duly authorized agents or agencies, shall at all

reasonable times have access to, for the purpose of examination, and the

right to copy any evidence of any person being investigated or proceeded

against that relates to any matter under investigation or in question.

The Board, or any member thereof, shall upon application of any party to

such proceedings, forthwith issue to such party subpoenas requiring the

attendance and testimony of witnesses or the production of any evidence

in such proceeding or investigation requested in such application.

Within five days after the service of a subpoena on any person requiring

the production of any evidence in his possession or under his control,

such person may petition the Board to revoke, and the Board shall

revoke, such subpoena if in its opinion the evidence whose production is

required does not relate to any matter under investigation, or any

matter in question in such proceedings, or if in its opinion such

subpoena does not describe with sufficient particularity the evidence

whose production is required. Any member of the Board, or any agent or

agency designated by the Board for such purposes, may administer oaths

and affirmations, examine witnesses, and receive evidence. Such

attendance of witnesses and the production of such evidence may be

required from any place in the United States or any Territory or

possession thereof, at any designated place of hearing.

(2) [Court aid in compelling production of evidence and attendance of

witnesses]  In case on contumacy or refusal to obey a subpoena issued to

any person, any United States district court or the United States courts

of any Territory or possession, within the jurisdiction of which the

inquiry is carried on or within the jurisdiction of which said person

guilty of contumacy or refusal to obey is found or resides or transacts

business, upon application by the Board shall have jurisdiction to issue

to such person an order requiring such person to appear before the

Board, its member, agent, or agency, there to produce evidence if so

ordered, or there to give testimony touching the matter under

investigation or in question; and any failure to obey such order of the

court may be punished by said court as a contempt thereof.

(3) Repealed.

 

[Immunity of witnesses. See 18 U.S.C. Sec. 6001 et seq.]

 

(4) [Process, service, and return; fees of witnesses]  Complaints,

orders and other process and papers of the Board, its member, agent, or

agency,

 

[[Page 272]]

 

may be served either personally or by registered or certified mail or by

telegraph or by leaving a copy thereof at the principal office or place

of business of the person required to be served. The verified return by

the individual so serving the same setting forth the manner of such

service shall be proof of the same, and the return post office receipt

or telegraph receipt therefor when registered or certified and mailed or

when telegraphed as aforesaid shall be proof of service of the same.

Witnesses summoned before the Board, its member, agent, or agency, shall

be paid the same fees and mileage that are paid witnesses in the courts

of the United States, and witnesses whose depositions are taken and the

persons taking the same shall severally be entitled to the same fees as

are paid for like services in the courts of the United States.

(5) [Process, where served]  All process of any court to which

application may be made under this Act [subchapter] may be served in the

judicial district wherein the defendant or other person required to be

served resides or may be found.

(6) [Information and assistance from departments]  The several

departments and agencies of the Government, when directed by the

President, shall furnish the Board, upon its request, all records,

papers, and information in their possession relating to any matter

before the Board.

Sec. 12.  [Sec. 162. Offenses and penalties]  Any person who shall

willfully resist, prevent, impede, or interfere with any member of the

Board or any of its agents or agencies in the performance of duties

pursuant to this Act [subchapter] shall be punished by a fine of not

more than $5,000 or by imprisonment for not more than one year, or both.

 

limitations

 

Sec. 13.  [Sec. 163. Right to strike preserved]  Nothing in this Act

[subchapter], except as specifically provided for herein, shall be

construed so as either to interfere with or impede or diminish in any

way the right to strike or to affect the limitations or qualifications

on that right.

Sec. 14.  [Sec. 164. Construction of provisions] (a) [Supervisors as

union members]  Nothing herein shall prohibit any individual employed as

a supervisor from becoming or remaining a member of a labor

organization, but no employer subject to this Act [subchapter] shall be

compelled to deem individuals defined herein as supervisors as employees

for the purpose of any law, either national or local, relating to

collective bargaining.

(b) [Agreements requiring union membership in violation of State law]

Nothing in this Act [subchapter] shall be construed as authorizing the

execution or application of agreements requiring membership in a labor

organization as a condition of employment in any State or Territory in

which such execution or application is prohibited by State or

Territorial law.

 

[[Page 273]]

 

(c) [Power of Board to decline jurisdiction of labor disputes;

assertion of jurisdiction by State and Territorial courts]  (1) The

Board, in its discretion, may, by rule of decision or by published rules

adopted pursuant to the Administrative Procedure Act [to subchapter II

of chapter 5 of title 5], decline to assert jurisdiction over any labor

dispute involving any class or category of employers, where, in the

opinion of the Board, the effect of such labor dispute on commerce is

not sufficiently substantial to warrant the exercise of its

jurisdiction: Provided, That the Board shall not decline to assert

jurisdiction over any labor dispute over which it would assert

jurisdiction under the standards prevailing upon August 1, 1959.

(2) Nothing in this Act [subchapter] shall be deemed to prevent or bar

any agency or the courts of any State or Territory (including the

Commonwealth of Puerto Rico, Guam, and the Virgin Islands) from assuming

and asserting jurisdiction over labor disputes over which the Board

declines, pursuant to paragraph (1) of this subsection, to assert

jurisdiction.

Sec. 15.  [Sec. 165.]  Omitted.

 

[Reference to repealed provisions of bankruptcy statute.]

 

Sec. 16.  [Sec. 166. Separability of provisions]  If any provision of

this Act [subchapter], or the application of such provision to any

person or circumstances, shall be held invalid, the remainder of this

Act [subchapter], or the application of such provision to persons or

circumstances other than those as to which it is held invalid, shall not

be affected thereby.

Sec. 17.  [Sec. 167. Short title]  This Act [subchapter] may be cited

as the “National Labor Relations Act.”

Sec. 18.  [Sec. 168.]  Omitted.

 

[Reference to former sec. 9(f), (g), and (h).]

 

individuals with religious convictions

 

Sec. 19.  [Sec. 169.]  Any employee who is a member of and adheres to

established and traditional tenets or teachings of a bona fide religion,

body, or sect which has historically held conscientious objections to

joining or financially supporting labor organizations shall not be

required to join or financially support any labor organization as a

condition of employment; except that such employee may be required in a

contract between such employee’s employer and a labor organization in

lieu of periodic dues and initiation fees, to pay sums equal to such

dues and initiation fees to a nonreligious, nonlabor organization

charitable fund exempt from taxation under section 501(c)(3) of title 26

of the Internal Revenue Code [section 501(c)(3) of title 26], chosen by

such employee from a list of at least three such funds, designated in

such contract or if the contract fails to designate such funds, then to

any such fund chosen by the employee. If such employee who holds

conscientious objections pursuant to this section

 

[[Page 274]]

 

requests the labor organization to use the grievance-arbitration

procedure on the employee’s behalf, the labor organization is authorized

to charge the employee for the reasonable cost of using such procedure.

 

[Sec. added, Pub. L. 93-360, July 26, 1974, 88 Stat. 397, and amended,

Pub. L. 96-593, Dec. 24, 1980, 94 Stat. 3452.]

 

 

 

[[Page 275]]

 

LABOR MANAGEMENT RELATIONS ACT

 

Also cited LMRA; 29 U.S.C. Sec. Sec. 141-197

 

[Title 29, Chapter 7, United States Code]

 

short title and declaration of policy

 

Section 1.  [Sec. 141.]  (a) This Act [chapter] may be cited as the

“Labor Management Relations Act, 1947.” [Also known as the “Taft-

Hartley Act.”]

(b) Industrial strife which interferes with the normal flow of

commerce and with the full production of articles and commodities for

commerce, can be avoided or substantially minimized if employers,

employees, and labor organizations each recognize under law one

another’s legitimate rights in their relations with each other, and

above all recognize under law that neither party has any right in its

relations with any other to engage in acts or practices which jeopardize

the public health, safety, or interest.

It is the purpose and policy of this Act [chapter], in order to

promote the full flow of commerce, to prescribe the legitimate rights of

both employees and employers in their relations affecting commerce, to

provide orderly and peaceful procedures for preventing the interference

by either with the legitimate rights of the other, to protect the rights

of individual employees in their relations with labor organizations

whose activities affect commerce, to define and proscribe practices on

the part of labor and management which affect commerce and are inimical

to the general welfare, and to protect the rights of the public in

connection with labor disputes affecting commerce.

 

TITLE I, Amendments to

 

NATIONAL LABOR RELATIONS ACT

 

29 U.S.C. Sec. Sec. 151-169 (printed above)

 

TITLE II

 

[Title 29, Chapter 7, Subchapter III, United States Code]

 

conciliation of labor disputes in industries affecting commerce;

national emergencies

 

Sec. 201.  [Sec. 171. Declaration of purpose and policy]  It is the

policy of the United States that–

(a) sound and stable industrial peace and the advancement of the

general welfare, health, and safety of the Nation and of the best

interest of employers and employees can most satisfactorily be secured

by the settlement of issues between employers and employees through the

processes of con

 

[[Page 276]]

 

ference and collective bargaining between employers and the

representatives of their employees;

(b) the settlement of issues between employers and employees through

collective bargaining may by advanced by making available full and

adequate governmental facilities for conciliation, mediation, and

voluntary arbitration to aid and encourage employers and the

representatives of their employees to reach and maintain agreements

concerning rates of pay, hours, and working conditions, and to make all

reasonable efforts to settle their differences by mutual agreement

reached through conferences and collective bargaining or by such methods

as may be provided for in any applicable agreement for the settlement of

disputes; and

(c) certain controversies which arise between parties to collective-

bargaining agreements may be avoided or minimized by making available

full and adequate governmental facilities for furnishing assistance to

employers and the representatives of their employees in formulating for

inclusion within such agreements provision for adequate notice of any

proposed changes in the terms of such agreements, for the final

adjustment of grievances or questions regarding the application or

interpretation of such agreements, and other provisions designed to

prevent the subsequent arising of such controversies.

Sec. 202.  [Sec. 172.  Federal Mediation and Conciliation Service]

(a) [Creation; appointment of Director]  There is created an

independent agency to be known as the Federal Mediation and Conciliation

Service (herein referred to as the “Service,” except that for sixty

days after June 23, 1947, such term shall refer to the Conciliation

Service of the Department of Labor). The Service shall be under the

direction of a Federal Mediation and Conciliation Director (hereinafter

referred to as the “Director”), who shall be appointed by the

President by and with the advice and consent of the Senate. The Director

shall not engage in any other business, vocation, or employment.

(b) [Appointment of officers and employees; expenditures for supplies,

facilities, and services]  The Director is authorized, subject to the

civil service laws, to appoint such clerical and other personnel as may

be necessary for the execution of the functions of the Service, and

shall fix their compensation in accordance with sections 5101 to 5115

and sections 5331 to 5338 of title 5, United States Code [chapter 51 and

subchapter III of chapter 53 of title 5], and may, without regard to the

provisions of the civil service laws, appoint such conciliators and

mediators as may be necessary to carry out the functions of the Service.

The Director is authorized to make such expenditures for supplies,

facilities, and services as he deems necessary. Such expenditures shall

be allowed and paid upon presentation of itemized vouchers therefor

approved by the Director or by any employee designated by him for that

purpose.

 

[[Page 277]]

 

(c) [Principal and regional offices; delegation of authority by

Director; annual report to Congress]  The principal office of the

Service shall be in the District of Columbia, but the Director may

establish regional ofiices convenient to localities in which labor

controversies are likely to arise. The Director may by order, subject to

revocation at any time, delegate any authority and discretion conferred

upon him by this Act [chapter] to any regional director, or other

officer or employee of the Service. The Director may establish suitable

procedures for cooperation with State and local mediation agencies. The

Director shall make an annual report in writing to Congress at the end

of the fiscal year.

(d) [Transfer of all mediation and conciliation services to Service;

effective date; pending proceedings unaffected]  All mediation and

conciliation functions of the Secretary of Labor or the United States

Conciliation Service under section 51 [repealed] of title 29, United

States Code [this title], and all functions of the United States

Conciliation Service under any other law are transferred to the Federal

Mediation and Conciliation Service, together with the personnel and

records of the United States Conciliation Service. Such transfer shall

take effect upon the sixtieth day after June 23, 1947. Such transfer

shall not affect any proceedings pending before the United States

Conciliation Service or any certification, order, rule, or regulation

theretofore made by it or by the Secretary of Labor. The Director and

the Service shall not be subject in any way to the jurisdiction or

authority of the Secretary of Labor or any official or division of the

Department of Labor.

 

functions of the service

 

Sec. 203.  [Sec. 173.  Functions of Service]  (a) [Settlement of

disputes through conciliation and mediation]  It shall be the duty of

the Service, in order to prevent or minimize interruptions of the free

flow of commerce growing out of labor disputes, to assist parties to

labor disputes in industries affecting commerce to settle such disputes

through conciliation and mediation.

(b) [Intervention on motion of Service or request of parties;

avoidance of mediation of minor disputes]  The Service may proffer its

services in any labor dispute in any industry affecting commerce, either

upon its own motion or upon the request of one or more of the parties to

the dispute, whenever in its judgment such dispute threatens to cause a

substantial interruption of commerce. The Director and the Service are

directed to avoid attempting to mediate disputes which would have only a

minor effect on interstate commerce if State or other conciliation

services are available to the parties. Whenever the Service does proffer

its services in any dispute, it shall be the duty of the Service

promptly to put itself in communication with the parties and to use its

best efforts, by mediation and conciliation, to bring them to agreement.

 

[[Page 278]]

 

(c) [Settlement of disputes by other means upon failure of concilia-

tion]  If the Director is not able to bring the parties to agreement by

conciliation within a reasonable time, he shall seek to induce the

parties voluntarily to seek other means of settling the dispute without

resort to strike, lockout, or other coercion, including submission to

the employees in the bargaining unit of the employer’s last offer of

settlement for approval or rejection in a secret ballot. The failure or

refusal of either party to agree to any procedure suggested by the

Director shall not be deemed a violation of any duty or obligation

imposed by this Act [chapter].

(d) [Use of conciliation and mediation services as last resort]  Final

adjustment by a method agreed upon by the parties is declared to be the

desirable method for settlement of grievance disputes arising over the

application or interpretation of an existing collective-bargaining

agreement. The Service is directed to make its conciliation and

mediation services available in the settlement of such grievance

disputes only as a last resort and in exceptional cases.

(e) [Encouragement and support of establishment and operation of joint

labor management activities conducted by committees]  The Service is

authorized and directed to encourage and support the establishment and

operation of joint labor management activities conducted by plant, area,

and industrywide committees designed to improve labor management

relationships, job security and organizational effectiveness, in

accordance with the provisions of section 205A [section 175a of this

title].

 

[Pub. L. 95-524, Sec. 6(c)(1), Oct. 27, 1978, 92 Stat. 2020, added

subsec. (e).]

 

(f) [Use of alternative means of dispute resolution procedures;

assignment of neutrals and arbitrators]  The Service may make its

services available to Federal agencies to aid in the resolution of

disputes under the provisions of subchapter IV of chapter 5 of title 5.

Functions performed by the Service may include assisting parties to

disputes related to administrative programs, training persons in skills

and procedures employed in alternative means of dispute resolution, and

furnishing officers and employees of the Service to act as neutrals.

Only officers and employees who are qualified in accordance with section

573 of title 5 may be assigned to act as neutrals. The Service shall

consult with the Administrative Conference of the United States and

other agencies in maintaining rosters of neutrals and arbitrators, and

to adopt such procedures and rules as are necessary to carry out the

services authorized in this subsection.

 

[As amended Nov. 15, 1990, Pub. L. 101-552, Sec. 7, 104 Stat. 2746;

Aug. 26, 1992, Pub. L. 102-354, Sec. 5(b)(5), 106 Stat. 946.] [It appears that Sec. 173(f) terminated on October 1, 1995, pursuant

to a sunset provision. As of the date of this publication, it does not

appear that it was reenacted. Persons having an interest in the

application of Sec. 173(f) to proceedings commencing after October 1,

1995, should check to see whether the provision was renewed.]

 

[[Page 279]]

 

Sec. 204.  [Sec. 174.  Co-equal obligations of employees, their

representatives, and management to minimize labor disputes]  (a) In

order to prevent or minimize interruptions of the free flow of commerce

growing out of labor disputes, employers and employees and their

representatives, in any industry affecting commerce, shall–

(1) exert every reasonable effort to make and maintain agreements

concerning rates of pay, hours, and working conditions, including

provision for adequate notice of any proposed change in the terms of

such agreements;

(2) whenever a dispute arises over the terms or application of a

collective-bargaining agreement and a conference is requested by a

party or prospective party thereto, arrange promptly for such a

conference to be held and endeavor in such conference to settle such

dispute expeditiously; and

(3) in case such dispute is not settled by conference, participate

fully and promptly in such meetings as may be undertaken by the

Service under this Act [chapter] for the purpose of aiding in a

settlement of the dispute.

Sec. 205.  [Sec. 175.  National Labor-Management Panel; creation and

composition; appointment, tenure, and compensation; duties]  (a) There

is created a National Labor-Management Panel which shall be composed of

twelve members appointed by the President, six of whom shall be elected

from among persons outstanding in the field of management and six of

whom shall be selected from among persons outstanding in the field of

labor. Each member shall hold office for a term of three years, except

that any member appointed to fill a vacancy occurring prior to the

expiration of the term for which his predecessor was appointed shall be

appointed for the remainder of such term, and the terms of office of the

members first taking office shall expire, as designated by the President

at the time of appointment, four at the end of the first year, four at

the end of the second year, and four at the end of the third year after

the date of appointment. Members of the panel, when serving on business

of the panel, shall be paid compensation at the rate of $25 per day, and

shall also be entitled to receive an allowance for actual and necessary

travel and subsistence expenses while so serving away from their places

of residence.

(b) It shall be the duty of the panel, at the request of the Director,

to advise in the avoidance of industrial controversies and the manner in

which mediation and voluntary adjustment shall be administered,

particularly with reference to controversies affecting the general

welfare of the country.

Sec. 205A.  [Sec. 175a. Assistance to plant, area, and industrywide

labor management committees]

(a) [Establishment and operation of plant, area, and industrywide

committees]  (1) The Service is authorized and directed to provide

assist

 

[[Page 280]]

 

ance in the establishment and operation of plant, area and industrywide

labor management committees which–

(A) have been organized jointly by employers and labor organizations

representing employees in that plant, area, or industry; and

(B) are established for the purpose of improving labor management

relationships, job security, organizational effectiveness, enhancing

economic development or involving workers in decisions affecting their

jobs including improving communication with respect to subjects of

mutual interest and concern.

(2) The Service is authorized and directed to enter into contracts and

to make grants, where necessary or appropriate, to fulfill its

responsibilities under this section.

(b) [Restrictions on grants, contracts, or other assistance]  (1) No

grant may be made, no contract may be entered into and no other

assistance may be provided under the provisions of this section to a

plant labor management committee unless the employees in that plant are

represented by a labor organization and there is in effect at that plant

a collective bargaining agreement.

(2) No grant may be made, no contract may be entered into and no other

assistance may be provided under the provisions of this section to an

area or industrywide labor management committee unless its participants

include any labor organizations certified or recognized as the

representative of the employees of an employer participating in such

committee. Nothing in this clause shall prohibit participation in an

area or industrywide committee by an employer whose employees are not

represented by a labor organization.

(3) No grant may be made under the provisions of this section to any

labor management committee which the Service finds to have as one of its

purposes the discouragement of the exercise of rights contained in

section 7 of the National Labor Relations Act (29 U.S.C. Sec. 157)

[section 157 of this title], or the interference with collective

bargaining in any plant, or industry.

(c) [Establishment of office]  The Service shall carry out the

provisions of this section through an office established for that

purpose.

(d) [Authorization of appropriations]  There are authorized to be

appropriated to carry out the provisions of this section $10,000,000 for

the fiscal year 1979, and such sums as may be necessary thereafter.

 

[Pub. L. 95-524, Sec. 6(c)(2), Oct. 27, 1978, 92 Stat. 2020, added

Sec. 205A.]

 

national emergencies

 

Sec. 206.  [Sec. 176. Appointment of board of inquiry by President;

report; contents; filing with Service]  Whenever in the opinion of the

President of the United States, a threatened or actual strike or lockout

affecting an entire industry or a substantial part thereof engaged in

trade,

 

[[Page 281]]

 

commerce, transportation, transmission, or communication among the

several States or with foreign nations, or engaged in the production of

goods for commerce, will, if permitted to occur or to continue, imperil

the national health or safety, he may appoint a board of inquiry to

inquire into the issues involved in the dispute and to make a written

report to him within such time as he shall prescribe. Such report shall

include a statement of the facts with respect to the dispute, including

each party’s statement of its position but shall not contain any

recommendations. The President shall file a copy of such report with the

Service and shall make its contents available to the public.

Sec. 207.  [Sec. 177.  Board of inquiry]

(a) [Composition]  A board of inquiry shall be composed of a chairman

and such other members as the President shall determine, and shall have

power to sit and act in any place within the United States and to

conduct such hearings either in public or in private, as it may deem

necessary or proper, to ascertain the facts with respect to the causes

and circumstances of the dispute.

(b) [Compensation]  Members of a board of inquiry shall receive

compensation at the rate of $50 for each day actually spent by them in

the work of the board, together with necessary travel and subsistence

expenses.

(c) [Powers of discovery]  For the purpose of any hearing or inquiry

conducted by any board appointed under this title [29 U.S.C.S.

Sec. Sec. 171-183], the provisions of sections 9 and 10 (relating to the

attendance of witnesses and the production of books, papers, and

documents) of the Federal Trade Commission Act of September 16 [26],

1914, as amended (U.S.C. [19], title 15, secs. 49 and 50, as amended),

are hereby made applicable to the powers and duties of such board. (June

23, 1947, ch 120 Title II, Sec. 61 Stat. 155.)

Sec. 208.  [Sec. 178. Injunctions during national emergency]

(a) [Petition to district court by Attorney General on direction of

President]  Upon receiving a report from a board of inquiry the

President may direct the Attorney General to petition any district court

of the United States having jurisdiction of the parties to enjoin such

strike or lockout or the continuing thereof, and if the court finds that

such threatened or actual strike or lockout–

(i) affects an entire industry or a substantial part thereof engaged

in trade, commerce, transportation, transmission, or communication

among the several States or with foreign nations, or engaged in the

production of goods for commerce; and

(ii) if permitted to occur or to continue, will imperil the national

health or safety, it shall have jurisdiction to enjoin any such strike

or lockout, or the continuing thereof, and to make such other orders

as may be appropriate.

 

[[Page 282]]

 

(b) [Inapplicability of chapter 6]  In any case, the provisions of

sections 101 to 115 of title 29, United States Code [chapter 6 of this

title] [known as the “Norris-LaGuardia Act”] shall not be applicable.

(c) [Review of orders]  The order or orders of the court shall be

subject to review by the appropriate circuit court of appeals [court of

appeals] and by the Supreme Court upon writ of certiorari or

certification as provided in sections 239 and 240 of the Judicial Code,

as amended (U.S.C., title 29, secs. 346 and 347). (June 23, 1947, ch

120, Title II Sec. 208, 61 Stat. 155.)

Sec. 209. [Sec. 179. Injunctions during national emergency; adjustment

efforts by parties during injunction period]

(a) [Assistance of Service; acceptance of Service’s proposed

settlement]  Whenever a district court has issued an order under section

208 [section 178 of this title] enjoining acts or practices which

imperil or threaten to imperil the national health or safety, it shall

be the duty of the parties to the labor dispute giving rise to such

order to make every effort to adjust and settle their differences, with

the assistance of the Service created by this Act [chapter]. Neither

party shall be under any duty to accept, in whole or in part, any

proposal of settlement made by the Service.

(b) [Reconvening of board of inquiry; report by board; contents;

secret ballot of employees by National Labor Relations Board;

certification of results to Attorney General]  Upon the issuance of such

order, the President shall reconvene the board of inquiry which has

previously reported with respect to the dispute. At the end of a sixty-

day period (unless the dispute has been settled by that time), the board

of inquiry shall report to the President the current position of the

parties and the efforts which have been made for settlement, and shall

include a statement by each party of its position and a statement of the

employer’s last offer of settlement. The President shall make such

report available to the public. The National Labor Relations Board,

within the succeeding fifteen days, shall take a secret ballot of the

employees of each employer involved in the dispute on the question of

whether they wish to accept the final offer of settlement made by their

employer, as stated by him, and shall certify the results thereof to the

Attorney General within five days thereafter.

Sec. 210.  [Sec. 180. Discharge of injunction upon certification of

results of election or settlement; report to Congress]  Upon the

certification of the results of such ballot or upon a settlement being

reached, whichever happens sooner, the Attorney General shall move the

court to discharge the injunction, which motion shall then be granted,

and the injunction discharged. When such motion is granted, the

President shall submit to the Congress a full and comprehensive report

of the proceedings, including the findings of the board of inquiry and

the ballot taken by the National Labor Relations Board, together with

such recommendations as he may see fit to make for consideration and

appropriate action.

 

[[Page 283]]

 

compilation of collective-bargaining agreements, etc.

 

Sec. 211.  [Sec. 181.]  (a) For the guidance and information of

interested representatives of employers, employees, and the general

public, the Bureau of Labor Statistics of the Department of Labor shall

maintain a file of copies of all available collective-bargaining

agreements and other available agreements and actions thereunder

settling or adjusting labor disputes. Such file shall be open to

inspection under appropriate conditions prescribed by the Secretary of

Labor, except that no specific information submitted in confidence shall

be disclosed.

(b) The Bureau of Labor Statistics in the Department of Labor is

authorized to furnish upon request of the Service, or employers,

employees, or their representatives, all available data and factual

information which may aid in the settlement of any labor dispute, except

that no specific information submitted in confidence shall be disclosed.

 

exemption of railway labor act

 

Sec. 212.  [Sec. 182.]  The provisions of this title [subchapter]

shall not be applicable with respect to any matter which is subject to

the provisions of the Railway Labor Act [45 U.S.C. Sec. 151 et seq.], as

amended from time to time.

 

conciliation of labor disputes in the health care industry

 

Sec. 213.  [Sec. 183.]  (a) [Establishment of Boards of Inquiry;

membership]  If, in the opinion of the Director of the Federal Mediation

and Conciliation Service, a threatened or actual strike or lockout

affecting a health care institution will, if permitted to occur or to

continue, substantially interrupt the delivery of health care in the

locality concerned, the Director may further assist in the resolution of

the impasse by establishing within thirty days after the notice to the

Federal Mediation and Conciliation Service under clause (A) of the last

sentence of section 8(d) [section 158(d) of this title] (which is

required by clause (3) of such section 8(d) [section 158(d) of this

title]), or within ten days after the notice under clause (B), an

impartial Board of Inquiry to investigate the issues involved in the

dispute and to make a written report thereon to the parties within

fifteen (15) days after the establishment of such a Board. The written

report shall contain the findings of fact together with the Board’s

recommendations for settling the dispute, with the objective of

achieving a prompt, peaceful and just settlement of the dispute. Each

such Board shall be composed of such number of individuals as the

Director may deem desirable. No member appointed under this section

shall have any interest or involvement in the health care institutions

or the employee organizations involved in the dispute.

(b) [Compensation of members of Boards of Inquiry]  (1) Members of any

board established under this section who are otherwise employed

 

[[Page 284]]

 

by the Federal Government shall serve without compensation but shall be

reimbursed for travel, subsistence, and other necessary expenses

incurred by them in carrying out its duties under this section.

(2) Members of any board established under this section who are not

subject to paragraph (1) shall receive compensation at a rate prescribed

by the Director but not to exceed the daily rate prescribed for GS-18 of

the General Schedule under section 5332 of title 5, United States Code

[section 5332 of title 5], including travel for each day they are

engaged in the performance of their duties under this section and shall

be entitled to reimbursement for travel, subsistence, and other

necessary expenses incurred by them in carrying out their duties under

this section.

(c) [Maintenance of status quo]  After the establishment of a board

under subsection (a) of this section and for fifteen days after any such

board has issued its report, no change in the status quo in effect prior

to the expiration of the contract in the case of negotiations for a

contract renewal, or in effect prior to the time of the impasse in the

case of an initial bargaining negotiation, except by agreement, shall be

made by the parties to the controversy.

(d) [Authorization of appropriations]  There are authorized to be

appropriated such sums as may be necessary to carry out the provisions

of this section.

 

TITLE III

 

[Title 29, Chapter 7, Subchapter IV, United States Code]

 

suits by and against labor organizations

 

Sec. 301.  [Sec. 185.]  (a) [Venue, amount, and citizenship]  Suits

for violation of contracts between an employer and a labor organization

representing employees in an industry affecting commerce as defined in

this Act [chapter], or between any such labor organization, may be

brought in any district court of the United States having jurisdiction

of the parties, without respect to the amount in controversy or without

regard to the citizenship of the parties.

(b) [Responsibility for acts of agent; entity for purposes of suit;

enforcement of money judgments]  Any labor organization which represents

employees in an industry affecting commerce as defined in this Act

[chapter] and any employer whose activities affect commerce as defined

in this Act [chapter] shall be bound by the acts of its agents. Any such

labor organization may sue or be sued as an entity and in behalf of the

employees whom it represents in the courts of the United States. Any

money judgment against a labor organization in a district court of the

United States shall be enforceable only against the organization as an

entity and against its assets, and shall not be enforceable against any

individual member or his assets.

 

[[Page 285]]

 

(c) [Jurisdiction]  For the purposes of actions and proceedings by or

against labor organizations in the district courts of the United States,

district courts shall be deemed to have jurisdiction of a labor

organization (1) in the district in which such organization maintains

its principal offices, or (2) in any district in which its duly

authorized officers or agents are engaged in representing or acting for

employee members.

(d) [Service of process]  The service of summons, subpoena, or other

legal process of any court of the United States upon an officer or agent

of a labor organization, in his capacity as such, shall constitute

service upon the labor organization.

(e) [Determination of question of agency]  For the purposes of this

section, in determining whether any person is acting as an “agent” of

another person so as to make such other person responsible for his acts,

the question of whether the specific acts performed were actually

authorized or subsequently ratified shall not be controlling.

 

restrictions on payments to employee representatives

 

Sec. 302. [Sec. 186.]  (a) [Payment or lending, etc., of money by

employer or agent to employees, representatives, or labor organizations]

It shall be unlawful for any employer or association of employers or any

person who acts as a labor relations expert, adviser, or consultant to

an employer or who acts in the interest of an employer to pay, lend, or

deliver, or agree to pay, lend, or deliver, any money or other thing of

value–

(1) to any representative of any of his employees who are employed in

an industry affecting commerce; or

(2) to any labor organization, or any officer or employee thereof,

which represents, seeks to represent, or would admit to membership, any

of the employees of such employer who are employed in an industry

affecting commerce;

(3) to any employee or group or committee of employees of such

employer employed in an industry affecting commerce in excess of their

normal compensation for the purpose of causing such employee or group or

committee directly or indirectly to influence any other employees in the

exercise of the right to organize and bargain collectively through

representatives of their own choosing; or

(4) to any officer or employee of a labor organization engaged in an

industry affecting commerce with intent to influence him in respect to

any of his actions, decisions, or duties as a representative of

employees or as such officer or employee of such labor organization.

(b) [Request, demand, etc., for money or other thing of value]

(1) It shall be unlawful for any person to request, demand, receive,

or accept, or agree to receive or accept, any payment, loan, or delivery

 

[[Page 286]]

 

of any money or other thing of value prohibited by subsection (a) of

this section.

(2) It shall be unlawful for any labor organization, or for any person

acting as an officer, agent, representative, or employee of such labor

organization, to demand or accept from the operator of any motor vehicle

(as defined in section 13102 of title 49) employed in the transportation

of property in commerce, or the employer of any such operator, any money

or other thing of value payable to such organization or to an officer,

agent, representative or employee thereof as a fee or charge for the

unloading, or in connection with the unloading, of the cargo of such

vehicle: Provided, That nothing in this paragraph shall be construed to

make unlawful any payment by an employer to any of his employees as

compensation for their services as employees.

(c) [Exceptions]  The provisions of this section shall not be

applicable (1) in respect to any money or other thing of value payable

by an employer to any of his employees whose established duties include

acting openly for such employer in matters of labor relations or

personnel administration or to any representative of his employees, or

to any officer or employee of a labor organization, who is also an

employee or former employee of such employer, as compensation for, or by

reason of, his service as an employee of such employer; (2) with respect

to the payment or delivery of any money or other thing of value in

satisfaction of a judgment of any court or a decision or award of an

arbitrator or impartial chairman or in compromise, adjustment,

settlement, or release of any claim, complaint, grievance, or dispute in

the absence of fraud or duress; (3) with respect to the sale or purchase

of an article or commodity at the prevailing market price in the regular

course of business; (4) with respect to money deducted from the wages of

employees in payment of membership dues in a labor organization:

Provided, That the employer has received from each employee, on whose

account such deductions are made, a written assignment which shall not

be irrevocable for a period of more than one year, or beyond the

termination date of the applicable collective agreement, whichever

occurs sooner; (5) with respect to money or other thing of value paid to

a trust fund established by such representative, for the sole and

exclusive benefit of the employees of such employer, and their families

and dependents (or of such employees, families, and dependents jointly

with the employees of other employers making similar payments, and their

families and dependents): Provided, That (A) such payments are held in

trust for the purpose of paying, either from principal or income or

both, for the benefit of employees, their families and dependents, for

medical or hospital care, pensions on retirement or death of employees,

compensation for injuries or illness resulting from occupational

activity or insurance to provide any of the foregoing, or unemployment

benefits or life insurance, disability and sickness insurance, or

accident insurance; (B) the detailed basis on

 

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which such payments are to be made is specified in a written agreement

with the employer, and employees and employers are equally represented

in the administration of such fund, together with such neutral persons

as the representatives of the employers and the representatives of

employees may agree upon and in the event the employer and employee

groups deadlock on the administration of such fund and there are no

neutral persons empowered to break such deadlock, such agreement

provides that the two groups shall agree on an impartial umpire to

decide such dispute, or in event of their failure to agree within a

reasonable length of time, an impartial umpire to decide such dispute

shall, on petition of either group, be appointed by the district court

of the United States for the district where the trust fund has its

principal office, and shall also contain provisions for an annual audit

of the trust fund, a statement of the results of which shall be

available for inspection by interested persons at the principal office

of the trust fund and at such other places as may be designated in such

written agreement; and (C) such payments as are intended to be used for

the purpose of providing pensions or annuities for employees are made to

a separate trust which provides that the funds held therein cannot be

used for any purpose other than paying such pensions or annuities; (6)

with respect to money or other thing of value paid by any employer to a

trust fund established by such representative for the purpose of pooled

vacation, holiday, severance or similar benefits, or defraying costs of

apprenticeship or other training programs: Provided, That the

requirements of clause (B) of the proviso to clause (5) of this

subsection shall apply to such trust funds; (7) with respect to money or

other thing of value paid by any employer to a pooled or individual

trust fund established by such representative for the purpose of (A)

scholarships for the benefit of employees, their families, and

dependents for study at educational institutions, (B) child care centers

for preschool and school age dependents of employees, or (C) financial

assistance for employee housing: Provided, That no labor organization or

employer shall be required to bargain on the establishment of any such

trust fund, and refusal to do so shall not constitute an unfair labor

practice: Provided further, That the requirements of clause (B) of the

proviso to clause (5) of this subsection shall apply to such trust

funds; (8) with respect to money or any other thing of value paid by any

employer to a trust fund established by such representative for the

purpose of defraying the costs of legal services for employees, their

families, and dependents for counsel or plan of their choice: Provided,

That the requirements of clause (B) of the proviso to clause (5) of this

subsection shall apply to such trust funds: Provided further, That no

such legal services shall be furnished: (A) to initiate any proceeding

directed (i) against any such employer or its officers or agents except

in workman’s compensation cases, or (ii) against such labor

organization, or its parent or subordinate bodies, or their officers or

agents, or (iii) against any other

 

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employer or labor organization, or their officers or agents, in any

matter arising under subchapter II of this chapter or this chapter; and

(B) in any proceeding where a labor organization would be prohibited

from defraying the costs of legal services by the provisions of the

Labor-Management Reporting and Disclosure Act of 1959 [29 U.S.C.A.

Sec. 401 et seq.]; or (9) with respect to money or other things of value

paid by an employer to a plant, area or industrywide labor management

committee established for one or more of the purposes set forth in

section 5(b) of the Labor Management Cooperation Act of 1978.

 

[Sec. 302(c)(7) was added by Pub. L. 91-86, Oct. 14, 1969, 83 Stat.

133; Sec. 302(c)(8) by Pub. L. 93-95, Aug. 15, 1973, 87 Stat. 314; Sec.

302(c)(9) by Pub. L. 95-524, Oct. 27, 1978, 92 Stat. 2021; and Sec.

302(c)(7) was amended by Pub. L. 101-273, Apr. 18, 1990, 104 Stat. 138.]

 

(d) [Penalty for violations]

(1) Any person who participates in a transaction involving a payment,

loan, or delivery of money or other thing of value to a labor

organization in payment of membership dues or to a joint labor-

management trust fund as defined by clause (B) of the proviso to clause

(5) of subsection (c) of this section or to a plant, area, or

industrywide labor-management committee that is received and used by

such labor organization, trust fund, or committee, which transaction

does not satisfy all the applicable requirements of subsections (c)(4)

through (c)(9) of this section, and willfully and with intent to benefit

himself or to benefit other persons he knows are not permitted to

receive a payment, loan, money, or other thing of value under

subsections (c)(4) through (c)(9) violates this subsection, shall, upon

conviction thereof, be guilty of a felony and be subject to a fine of

not more than $15,000, or imprisoned for not more than five years, or

both; but if the value of the amount of money or thing of value involved

in any violation of the provisions of this section does not exceed

$1,000, such person shall be guilty of a misdemeanor and be subject to a

fine of not more than $10,000, or imprisoned for not more than one year,

or both.

(2) Except for violations involving transactions covered by subsection

(d)(1) of this section, any person who willfully violates this section

shall, upon conviction thereof, be guilty of a felony and be subject to

a fine of not more than $15,000, or imprisoned for not more than five

years, or both; but if the value of the amount of money or thing of

value involved in any violation of the provisions of this section does

not exceed $1,000, such person shall be guilty of a misdemeanor and be

subject to a fine of not more than $10,000, or imprisoned for not more

than one year, or both.

 

[As amended Oct. 27, 1978, Pub. L. 95-524, Sec. 6(d), 92 Stat. 2021;

Oct. 12, 1984, Pub. L. 98-473, Title II, Sec. 801, 98 Stat. 2131; Apr.

18, 1990, Pub. L. 101-273, Sec. 1, 104 Stat. 138.]

 

[[Page 289]]

 

(e) [Jurisdiction of courts]  The district courts of the United States

and the United States courts of the Territories and possessions shall

have jurisdiction, for cause shown, and subject to the provisions of

rule 65 of the Federal Rules of Civil Procedure [section 381 (repealed)

of title 28] (relating to notice to opposite party) to restrain

violations of this section, without regard to the provisions of section

7 of title 15 and section 52 of title 29, United States Code [of this

title] [known as the “Clayton Act”], and the provisions of sections

101 to 115 of title 29, United States Code [chapter 6 of this title] [known as the “Norris-LaGuardia Act”].

(f) [Effective date of provisions]  This section shall not apply to

any contract in force on June 23, 1947, until the expiration of such

contract, or until July 1, 1948, whichever first occurs.

(g) [Contributions to trust funds]  Compliance with the restrictions

contained in subsection (c)(5)(B) [of this section] upon contributions

to trust funds, otherwise lawful, shall not be applicable to

contributions to such trust funds established by collective agreement

prior to January 1, 1946, nor shall subsection (c)(5)(A) [of this

section] be construed as prohibiting contributions to such trust funds

if prior to January 1, 1947, such funds contained provisions for pooled

vacation benefits.

 

boycotts and other unlawful combinations

 

Sec. 303.  [Sec. 187.]  (a) It shall be unlawful, for the purpose of

this section only, in an industry or activity affecting commerce, for

any labor organization to engage in any activity or conduct defined as

an unfair labor practice in section 8(b)(4) of the National Labor

Relations Act [section 158(b)(4) of this title].

(b) Whoever shall be injured in his business or property by reason of

any violation of subsection (a) [of this section] may sue therefor in

any district court of the United States subject to the limitation and

provisions of section 301 hereof [section 185 of this title] without

respect to the amount in controversy, or in any other court having

jurisdiction of the parties, and shall recover the damages by him

sustained and the cost of the suit.

 

restriction on political contributions

 

Sec. 304.  Repealed.

 

[See sec. 316 of the Federal Election Campaign Act of 1972, 2 U.S.C.

Sec. 441b.]

 

Sec. 305.  [Sec. 188.]  Strikes by Government employees.  Repealed.

 

[See 5 U.S.C. Sec. 7311 and 18 U.S.C. Sec. 1918.]

 

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TITLE IV

 

[Title 29, Chapter 7, Subchapter V, United States Code]

 

creation of joint committee to study and report on basic problems

affecting friendly labor relations and productivity

 

Secs. 401-407. [Sec. Sec. 191-197.]  Omitted.

 

TITLE V

 

[Title 29, Chapter 7, Subchapter I, United States Code]

 

definitions

 

Sec. 501.  [Sec. 142.]  When used in this Act [chapter]–

(1) The term “industry affecting commerce” means any industry or

activity in commerce or in which a labor dispute would burden or

obstruct commerce or tend to burden or obstruct commerce or the free

flow of commerce.

(2) The term “strike” includes any strike or other concerted

stoppage of work by employees (including a stoppage by reason of the

expiration of a collective-bargaining agreement) and any concerted

slowdown or other concerted interruption of operations by employees.

(3) The terms “commerce,” “labor disputes,” “employer,”

“employee,” “labor organization,” “representative,” “person,”

and “supervisor” shall have the same meaning as when used in the

National Labor Relations Act as amended by this Act [in subchapter II of

this chapter].

 

saving provision

 

Sec. 502.  [Sec. 143.]  [Abnormally dangerous conditions]   Nothing in

this Act [chapter] shall be construed to require an individual employee

to render labor or service without his consent, nor shall anything in

this Act [chapter] be construed to make the quitting of his labor by an

individual employee an illegal act; nor shall any court issue any

process to compel the performance by an individual employee of such

labor or service, without his consent; nor shall the quitting of labor

by an employee or employees in good faith because of abnormally

dangerous conditions for work at the place of employment of such

employee or employees be deemed a strike under this Act [chapter].

separability

 

Sec. 503.  [Sec. 144.]  If any provision of this Act [chapter], or the

application of such provision to any person or circumstance, shall be

held invalid, the remainder of this Act [chapter], or the application of

such provision to persons or circumstances other than those as to which

it is held invalid, shall not be affected thereby.