National Labor Relations Act (1935) Transcript
AN ACT To diminish the causes of labor disputes burdening
or obstructing interstate and foreign commerce, to create a National
Labor Relations Board, and for other purposes.
FINDINGS AND POLICIES
Section 1. 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 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. When used in this Act
(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 , 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 , 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. 93360, 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 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 , 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.
(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 .
(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 .
(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 professional 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. 93360, 1(b), July 26, 1974, 88 Stat. 395, added par.
(14).]
NATIONAL LABOR RELATIONS BOARD
Sec. 3. (a) The National Labor Relations Board (hereinafter
called the Board) created by this Act prior to its amendment by
the Labor Management Relations Act, 1947 , 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) 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 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 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 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) 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) 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 , 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.
Sec. 4. (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 judges 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 recommendations. 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 shall be construed to authorize the Board to appoint individuals for the purpose of conciliation or mediation, or for economic analysis.
(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. 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. The Board shall have authority from time to time
to make, amend, and rescind, in the manner prescribed by the Administrative
Procedure Act , such rules and regulations as may be necessary
to carry out the provisions of this Act .
RIGHTS OF EMPLOYEES
Sec. 7. 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) .
UNFAIR LABOR PRACTICES
Sec. 8. (a) 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 ;
(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 , 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 , 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 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) , 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) 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
;
(5) to refuse to bargain collectively with the representatives
of his employees, subject to the provisions of section 9(a) .
(b) 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 : 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 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) 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) ;
(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) ;
(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 : 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 ;
(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:
Provided, That nothing contained in this subsection (b) 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 : 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) 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 any other labor organization and a question concerning
representation may not appropriately be raised under section 9(c)
of this Act ,
(B) where within the preceding twelve months a valid election
under section 9(c) of this Act has been conducted, or
(C) where such picketing has been conducted without a petition
under section 9(c) being filed within a rea-sonable period of
time not to exceed thirty days from the commencement of 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)
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) .
(c) 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 , if such
expression contains no threat of reprisal or force or promise
of benefit.
(d) 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;
(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) 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) , 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 , 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) shall be modified as follows:
(A) The notice of section 8(d)(1) shall be ninety days; the notice
of section 8(d)(3) shall be sixty days; and the contract period
of section 8(d)(4) 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) .
(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.
[Pub. L. 93360, 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) 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) 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)
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 shall prohibit the enforcement of any agreement which
is within the foregoing exception.
(f) 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 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 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 agree-ment, whichever
is later, or (3) such agreement requires the employer to notify
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 : 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) .
(g) 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 . 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. 93360, July 26, 1974, 88 Stat. 396, added subsec. (g).]
REPRESENTATIVES AND ELECTIONS
Sec. 9 (a) 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) 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 , 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 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 employers
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) (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) ,
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) ; 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) ; 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) .
(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 in
any election conducted within twelve months after the commencement
of the strike. In any election where none of the choices on the
ballot receives a majority, a run-off shall be conducted, the
ballot providing for a 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) the extent to which the employees
have organized shall not be controlling.
(d) Whenever an order of the Board made pursuant to section 10(c)
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) , 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) (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) , 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. (a) The Board is empowered, as hereinafter provided,
to prevent any person from engaging in any unfair labor practice
(listed in section 8 ) affecting commerce. This power shall not
be affected by any other means of adjustment or prevention that
has been or may be established by agreement, 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 or has received a construction inconsistent therewith.
(b) 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
.
(c) 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 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 : 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) , 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.
(d) 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) 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,
as provided in section 2112 of title 28, United States Code .
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) 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 . Upon the filing of such petition, the court shall
proceed in the same manner 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) 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 Boards order.
(h) 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 .
(i) Repealed.
(j) The Board shall have power, upon issuance of a complaint as
provided in subsection (b) 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) 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) , 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) Whenever it is charged that any person has engaged in an unfair
labor practice within the meaning of paragraph (4)(A), (B), or
(C) of section 8(b) , or section 8(e) or section 8(b)(7) , 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) if a charge against the employer under
section 8(a)(2) 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) .
(m) 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 , 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 (1) .
INVESTIGATORY POWERS
Sec. 11. 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
(1) 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) 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.
(4) Complaints, orders and other process and papers of the
Board, its member, agent, or agency, 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) All process of any court to which application may be made
under this Act may be served in the judicial district wherein
the defendant or other person required to be served resides or
may be found.
(6) 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. 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
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. Nothing in this Act , 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. (a) 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 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) Nothing in this Act 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.
(c) (1) The Board, in its discretion, may, by rule of decision
or by published rules adopted pursuant to the Administrative Procedure
Act , 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 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. Omitted.
[Reference to repealed provisions of bankruptcy statute.]
Sec. 16. If any provision of this Act , or the application
of such provision to any person or circumstances, shall be held
invalid, the remainder of this Act , 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. This Act may be cited as the National Labor Relations
Act.
Sec. 18. Omitted.
[Reference to former sec. 9(f), (g), and (h).]
INDIVIDUALS WITH RELIGIOUS CONVICTIONS
Sec. 19. 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 employees 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 , 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 requests
the labor organization to use the grievance-arbitration procedure
on the employees behalf, the labor organization is authorized
to charge the employee for the reasonable cost of using such procedure.
[Sec. added, Pub. L. 93360, July 26, 1974, 88 Stat. 397, and amended,
Pub. L. 96593, Dec. 24, 1980, 94 Stat. 3452.]