ULPs Ensure Company Complies With NLRA

The NLRB does not solve grievances, but makes sure everyone — companies & unions — complies with law

Once upon a time . . . Goldilocks formed a union. Instead of just hoping she'd get what she wanted from the three bears, she entered into a collective bargaining agreement with Three Bears, Inc.

The agreement requires Three Bears to supply three bowls of porridge, three chairs, and three beds. It goes on to say that at least one bowl of porridge, one chair, and one bed must be "just right."

One day Goldilocks shows up for work, finds the just-right porridge, sits in the just-right chair, and goes to lie down. When she does, she discovers that all three beds are too hard.

Immediately she knows that Three Bears, Inc., is in violation of their collective bargaining agreement, and she tells Mama Bear that she wants the just-right bed she is entitled to.

Mama Bear tells Goldilocks that all beds are the same, so she's just going to have to pick one and call it "just right."

That's when Goldilocks decides to file a grievance.

But first, she needs to know more about the beds, so she writes a letter to Three Bears, Inc., requesting information on all beds in stock, particularly information as to whether they have been tested for just-rightness.

Papa Bear reads the letter and calls Goldilocks into his office. He says he isn't going to give her any information about what beds are in stock or how close they are to just right.

"That's company business," he says. "We run this company, not you, and we don't have to tell you anything."

Goldilocks does not give up easily, so she writes a second letter. In the second letter, she reminds Papa Bear that there are two parties to the collective bargaining agreement. She says she is entitled to a just-right bed and the only way she can determine whether there is, in fact, a just-right bed available is to examine the records. Papa Bear tells her to eat her porridge and go to bed.

So Goldilocks takes her problem to the National Labor Relations Board (NLRB) for help.

What Does the NLRB Do?

The NLRB can be a valuable ally, if used properly. But if you don't understand the role of the NLRB, you won't be able to take advantage of their help.

Here is where many locals go wrong. They expect the NLRB to step in and solve their grievance.

That's not what the NLRB does. The NLRB's role is to ensure that companies and unions comply with the National Labor Relations Act (NLRA).

They do not get involved in grievances themselves — nor contract negotiations. They step in when the union or the company charges the other party with failing to abide by the NLRA. If a company or union strays from the provisions of the NLRA, it is committing an unfair labor practice (ULP).

How can that help Goldilocks?

The NLRA requires the company to bargain with the union elected by its employees. Refusing to give Goldilocks the information she needs to investigate a possible breech of the contract shows an unwillingness to bargain. What good is a contract if the company can block your attempts to make them stick to it?

So the NLRB issues a complaint, saying that the way they see it, Three Bears, Inc., is committing an unfair labor practice by withholding information necessary to the grievance process.

If Three Bears, Inc., and Goldilocks can't come to some agreement about this information, the complaint will go before an administrative law judge (ALJ), who will hold a hearing and issue an order.

In this case, the judge orders Three Bears, Inc. to give Goldilocks the information she requested. When they do, she can proceed with her grievance.

Don't Confuse the Grievance With the Unfair Labor Practice

Things went well for Goldilocks because she understood what the NLRB does and was able to make the proper request.

What would have happened if Goldilocks had simply told the NLRB that the company was violating the contract by not giving her a just-right bed? In that case, the NLRB would have said they couldn't help her and deferred the case (sent it back to the company and the union for resolution).

Too often, an inexperienced steward or union rep. will have good cause for a ULP, but will make the wrong argument to the NLRB. When the case is deferred, they go away grumbling that the NLRB is useless. In truth, they have simply not yet learned how to use ULPs to get what they want.

Just because what the company is doing seems unfair doesn't make it an unfair labor practice. Only violations of the NLRA are grounds for a complaint.

In general, the NLRB files complaints for refusal to provide information, interference with employees' Weingarten rights, company retaliation for union activity, refusing arbitration, or creating barriers so the grievance/arbitration process cannot go forward. Nearly everything else gets deferred.

When the NLRB defers a case, we say it has been "Collyerized," after a 1971 case involving Collyer Insulated Wire Company, in which the NLRB established the criteria for handling cases.

Proceed With Your Grievance While Waiting For NLRB Decision

Another common mistake is filing with the NLRB, then forgetting about the grievance. Filing a ULP does not stop your grievance clock. Once your deadline has passed, you have lost your chance to file.

If the NLRB issues a complaint after you have already lost your grievance because of the unfair practice, you may be able to revisit the grievance. But you cannot win a grievance you haven't filed. There's usually no recourse once the time limit has passed.

Keep in mind, too, that winning the complaint does not mean you'll win the grievance. In the Goldilocks case, for example, the ALJ could order Three Bears to open their records. But what happens if Goldilocks' investigation shows that one of the beds she said was too hard, had tested just right. She would lose her grievance.

The Courts Have Given Unions Broad Access to Information

The Goldilocks case involves the single most common ULP charge stewards make: refusing to provide information. Whether through ignorance of the law or plain arrogance, many employers deny union representatives the information they need to process grievances or bargain a new contract.

The NLRA and subsequent court decisions have given unions broad access to company information that is necessary for the union to do its job.

You may request relevant information at any point in the grievance process — during your initial investigation, when preparing for a grievance meeting, when deciding whether to drop the case or go up another step, and when preparing for arbitration.

You can't go fishing — that is, you must request specific information that applies to your case — but nearly any information the company has must be made available to you if it applies. Attendance records, company memos, disciplinary records, job assignments, payroll records, personnel files, reports, studies, and supervisors' notes are all fair game if relevant to your case.

You may also make a general request of a type: "Please supply all documents or records which reflect the factors causing you to reject this grievance." Though it doesn't name the documents, it specifies an identifiable group of records.

Often, the company will deny a request because the information is "personal." For example, if you're investigating a member's claim that he is not getting the overtime hours he deserves, you may ask to see the company's payroll records. That is, indeed, "personal" information, but if those records are key to determining whether your grievant is being treated unfairly, the company must open them up.

However, some information — e.g., medical records and aptitude tests — is truly confidential. In these cases, the law protects the privacy of the records, and the company does not have to provide you this information.

In "right-to-work" states, employers often incorrectly believe they do not have to provide information on nonmembers. If the union needs that information to conduct its business, the company must supply it.

For example, one local asked for the names and addresses of all bargaining unit employees prior to a contract negotiation. The company said they would provide only the union members' names and addresses, saying nonmembers are not the union's concern.

But the NLRB sided with the union when the local argued that they needed to be able to contact all bargaining unit employees in order to learn what changes they wanted in the contract. Although nonmembers do not get to vote on the contract, they must live under it, and the union must consider their input when negotiating.

ULPs Are Useful — Used Wisely

The value of ULPs is clear. If companies were able to derail grievances by refusing information, threatening employees with retaliation, or simply refusing to enter into arbitration, we could never win any grievances.

But they must be used correctly.

If you're thinking of filing a ULP, it's a good idea to check first with your International rep., attorney, or the International's Department of Collective Bargaining Services — 913-371-2640.