Source: law/29usc158.law
law 29usc158 cite 29 U.S.C. § 158(a) title Employer unfair labor practices — NLRA § 8(a) url https://www.neochart.com/catalog/federal/labor/title_29/chapter_7/section_158/title29_sec158_9c3153f5ba76/158_unfair_labor_practices_0001/index.html address catalog/federal/labor/title_29/chapter_7/section_158/title29_sec158_9c3153f5ba76/158_unfair_labor_practices_0001/index.html source ir/usc/title29.jsonl#title29_sec158 sha1=09027c7a4dfc3a5d259afe27b27eff2b43d13327 chars=18760 # Corpus-pinned employer catalogue: not a private damages cause of action. # Rules below reflect the identified circuits and decision dates, not a current-law citator. # Formulas are descriptive; each exception is true only for conduct within its stated conditions. claim a1-interference : employer and covered-employee and protected-right and interference and not protected-speech and not special-circumstances gloss Independent §8(a)(1) route; the special-circumstances defense is scoped to the insignia-restriction variant, not all interference. claim a2-domination-support : employer and covered-employee and organization-interference and not working-hours-conference and not construction-agreement gloss §8(a)(2): domination, interference or financial/other support are alternative statutory acts. claim a3-discrimination : employer and covered-employee and employment-discrimination and union-purpose and not same-decision and not lawful-union-security and not construction-agreement gloss Motivating-factor/same-decision sequence models the sampled discharge cases, not every possible §8(a)(3) proceeding. claim a4-retaliation : employer and covered-employee and board-participation and retaliatory-action gloss Separate statutory route for charges/testimony; no dedicated §8(a)(4) interpretation was resolved by this six-case sample. claim a5-refusal : employer and covered-employee and representative and refusal-to-bargain gloss §8(a)(5) with §8(d)/§9(a); majority/representation, impasse, waiver and bargaining-subject questions require their own case-specific inquiry. element employer : and name Covered employer text @68..121 | It shall be an unfair labor practice for an employer- xref 29 U.S.C. §§ 152(2), 152(3), 152(6)-(7) | Definitions and exclusions supply covered employer, employee and commerce scope. gloss Coverage is cross-sectional; do not infer employee/employer status or commerce jurisdiction merely from a citation. xref 29 U.S.C. § 152(2), (6)-(7) | Excludes the United States/wholly owned government corporations, Federal Reserve Banks, States/political subdivisions, covered Railway Labor Act employers, and labor organizations except when acting as employers; commerce coverage must be satisfied. element protected-right : and name Section 7 protected rights text @194..244 | the rights guaranteed in section 157 of this title xref 29 U.S.C. § 157 | Self-organization, collective bargaining, concerted mutual aid/protection and protected refraining. gloss Rights and concerted/protected character are defined outside §158(a), with judicial and Board interpretation. element interference : and name Interference, restraint or coercion text @126..174 | to interfere with, restrain, or coerce employees rule /f3d/927/0672-01 @30972..31185 | An employer's questioning of an employee will, however, amount to a violation of § 8(a)(1) if "either the words themselves or the context in which they are used ... suggest an element of coercion or interference." variant interference/interrogation | Context-sensitive coercion inquiry, not a per-se ban on questions. variant interference/insignia-restriction | Employee protected insignia; assess special circumstances in the governing doctrine. variant interference/threat | Distinguish objective predictions from employer-controlled retaliation. gloss Context governs interrogation; the Second Circuit rejected the challenged interrogation finding in Bozzuto. Do not treat any workplace union question as a violation. element organization-interference : and name Domination, interference or support of a labor organization text @250..384 | to dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it gloss These are alternative acts under §8(a)(2); the six sampled opinions do not resolve the doctrine of unlawful assistance versus cooperation. This block is a statutory baseline, not an inferred multi-factor test. element employment-discrimination : and name Employment discrimination text @640..738 | by discrimination in regard to hire or tenure of employment or any term or condition of employment rule /f3d/916/1095-01 @8519..8646 | An employer violates Section 8(a)(1) and (3) by suspending or discharging an employee for engaging in protected union activity. variant adverse-action/discharge | Disciplinary or discharge action under the sampled Wright Line analysis. gloss Discharge is one variant; the statutory domain also includes hiring, tenure and other employment terms. element union-purpose : and name Union-related discriminatory motivation text @739..802 | to encourage or discourage membership in any labor organization rule /f3d/929/0393-01 @5849..5993 | In the alternative, it may show that the employer fired employees to retaliate against the workforce as a whole or to discourage union activity. gloss The General Counsel bears the initial persuasion burden. Employer knowledge, timing and animus can be evidence; these are not universal extra statutory elements. Group retaliation can reach workers without individual protected activity. defense same-decision : defense name Same action absent unlawful motive text @739..802 | to encourage or discourage membership in any labor organization rule /f3d/916/1095-01 @9569..9753 | "Once a prima facie case has been established, the burden [of persuasion] shifts to the company to show that it would have taken the same action in the absence of the unlawful motive." gloss Judge/Board-made burden structure anchored to the purpose hook, not words of the statute. Applies only after the General Counsel proves the initial unlawful-motivation case. element board-participation : and name Filed charges or given testimony text @2459..2528 | because he has filed charges or given testimony under this subchapter gloss §8(a)(4) text baseline. The breadth of participation beyond literal hearing testimony requires interpretive authorities outside this six-case sample. element retaliatory-action : and name Discharge or other discrimination for Board participation text @2400..2458 | to discharge or otherwise discriminate against an employee gloss Read with the statutory because clause, not as a free-standing retaliation cause of action. The sample does not establish a separate §8(a)(4) burden rule. element representative : and name Employees collective-bargaining representative text @2568..2668 | with the representatives of his employees, subject to the provisions of section 159(a) of this title xref 29 U.S.C. § 159(a) | Representative status and exclusive bargaining agency. gloss §9(a) supplies the representational predicate and exclusivity; a claim cannot be inferred simply because negotiations occurred. element refusal-to-bargain : or name Alternative breaches of applicable collective-bargaining duties text @2534..2567 | to refuse to bargain collectively rule /f3d/930/0509-01 @6846..7079 | It is therefore "an infringement of the Act for the employer to disregard the bargaining representative by negotiating with individual employees, whether a majority or a minority, with respect to wages, hours and working conditions." variant bargaining/direct-dealing | Bypassing the exclusive representative on bargaining subjects. gloss Includes the direct-dealing variant as described by the D.C. Circuit; the §8(d) duty does not compel substantive concession. element refusal-to-bargain.good-faith : or name Failure of applicable meeting conference or agreement-execution duty text @10253..10380 | to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment not-required Agreement to a proposal or making a concession: expressly disclaimed by §8(d). gloss §8(d) defines the bargaining obligation. Unilateral changes, impasse, information requests and mandatory/permissive subject boundaries need further subcatalogues. text @10056..10978 | (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- gloss The full d definition also covers agreement negotiation, questions arising under agreements, and execution of a written agreement if requested. These are express duties, not judicially invented elements. exception protected-speech : exception name Noncoercive expression under §8(c) text @9974..10054 | if such expression contains no threat of reprisal or force or promise of benefit rule /f3d/932/0465-01 @8135..8285 | In order to qualify as lawful advocacy, a prediction that adverse consequences will result "must be carefully phrased on the basis of objective fact." gloss Statutory speech protection; prediction versus threat is judicial elaboration. Hendrickson denied enforcement on its particular record, not immunity for all bargaining-from-scratch statements. text @9727..10055 | 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 subchapter, if such expression contains no threat of reprisal or force or promise of benefit. gloss Section 8(c) is an evidentiary as well as substantive protection throughout the subchapter, limited to noncoercive expression. It does not immunize discriminatory acts merely because they are explained in words. exception working-hours-conference : exception name Working-hours conference proviso text @505..634 | an employer shall not be prohibited from permitting employees to confer with him during working hours without loss of time or pay gloss Subject to Board rules; not an unrestricted safe harbor for employer domination or support. text @246..635 | (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 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; gloss The complete proviso is conditional on Board rules under section 156. Conference during paid work time alone does not excuse domination, assistance or unrelated interference. exception lawful-union-security : exception name Conditional union-security proviso text @1083..1171 | to require as a condition of employment membership therein on or after the thirtieth day xref 29 U.S.C. § 164(b) | State right-to-work restrictions are outside the text of §158. gloss The complete statutory provisos require proper representative status, no qualifying rescission election, and limits on exclusion or termination. §164(b) and judicial financial-core rules also matter; this is not blanket permission to compel full union membership. text @636..2395 | (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 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 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 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 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; gloss The full a(3) provisos are anchored above. This exception is true only when its conditions and section 164(b) state-law limits are satisfied; the separately modeled construction-agreement rule supplies the different seven-day route without removing the final a(3) safeguards. rule /us/525/0033-01 @4256..4484 | As a result of these two conclusions, § 8(a)(3) permits unions and employers to require only that employees pay the fees and dues necessary to support the union’s activities as the employees’ exclusive bargaining representative. gloss Marquez states the General Motors/Beck financial-core interpretation. The word membership does not authorize compulsory full membership or charges for non-germane activities over a proper objection; the existing statutory text is not rewritten. defense special-circumstances : defense name Narrow insignia-restriction justification text @126..174 | to interfere with, restrain, or coerce employees rule /f3d/894/0707-01 @12405..12495 | Conjecture, conclusory assertions, and generalizations do not suffice under this standard. variant insignia/safety | Requires specific, nonspeculative support in the cited 2018 framework. variant insignia/public-image | Not established merely by asserting a uniform brand image. gloss Judge/Board-made qualification to the employee insignia variant in In-N-Out (Fifth Circuit, 2018); not a universal defense. Public image and food safety were insufficient on that record. constraint derivative(refusal-to-bargain, interference) : Section 8(a)(5) violation also violates Section 8(a)(1) rule /f3d/930/0509-01 @2536..2624 | "an employer who violates section 8(a)(5) also, derivatively, violates section 8(a)(1)." gloss These are related statutory routes, not two independent factual findings. element covered-employee : and name Covered employee and applicable retained status text @126..174 | to interfere with, restrain, or coerce employees xref 29 U.S.C. § 152(3), (11) | Employee definition includes qualifying labor-dispute former workers but excludes agricultural/domestic workers, parent/spouse employees, independent contractors, supervisors and specified Railway Labor Act coverage. gloss Section 152(3) coverage and statutory status loss qualify employer unfair-labor-practice routes; section 158(d) specifies status loss for strikers within required notice periods and restoration on reemployment. Do not extend that strike language automatically to every picketer or every protected activity. text @12776..13232 | 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 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. xref Mastro Plastics Corp. v. NLRB, 350 U.S. 270, 284-289 (1956) | Judicial limitation: section 8(d)(4) loss of status does not reach a strike solely protesting employer unfair labor practices rather than contract termination/modification. Official report: https://www.govinfo.gov/content/pkg/USREPORTS-350/pdf/USREPORTS-350-270.pdf gloss The d(4) contract-notice status gate must include Mastro Plastics; do not apply it to every strike occurring during a pending contract-modification notice. Its qualification is not automatically extended to health-care section g or mixed-purpose strikes. element lawful-union-security.waiting-period : and name Ordinary thirty-day waiting period text @1142..1278 | on or after the thirtieth day following the beginning of such employment or the effective date of such agreement, whichever is the later gloss Ordinary a(3) route; section f supplies a different condition for qualified construction-industry agreements. element lawful-union-security.representation : and name Proper representative and no qualifying rescission text @1280..1477 | (i) if such labor organization is the representative of the employees as provided in section 159(a) of this title, in the appropriate collective-bargaining unit covered by such agreement when made, text @1482..1825 | (ii) unless following an election held as provided in 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: gloss Apply the unit, timing and election conditions; the union must also not be established, maintained or assisted by prohibited employer conduct. element lawful-union-security.equal-membership : and name Equal membership terms without disqualifying employer knowledge text @1956..2129 | (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, gloss For the union-security justification to apply, the employer must lack the stated reasonable grounds that equal membership terms were unavailable. This is a condition on the exception, not permission to demand full union membership. element lawful-union-security.dues-only : and name Financial-only grounds without disqualifying employer knowledge text @2133..2395 | (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; gloss For the justification to apply, the employer must lack reasonable grounds that denial or termination was for a nonpayment-unrelated reason. This final a(3) safeguard survives section f expressly; assess financial obligations under Marquez/General Motors/Beck and applicable state law. exception construction-agreement : exception name Conditional building-and-construction agreement allowance text @15926..17666 | (f) Agreement 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 subsection (a) as an unfair labor practice) because (1) the majority status of such labor organization has not been established under the provisions of 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 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 subsection (a)(3): 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 159(c) or 159(e) of this title. xref 29 U.S.C. § 164(b) | State prohibitions on requiring union membership remain relevant; section f is not a right-to-work preemption rule. gloss Section f permits only making a qualifying construction agreement notwithstanding its listed majority-status, seven-day security, referral, or qualification/priority features. It does not excuse every discriminatory act by a construction employer. The final a(3) equal-membership/dues-only proviso survives, as does the statutory representation-petition proviso. The same financial-core and state-law limits must be assessed. element refusal-to-bargain.contract-notices : or name Breach of an applicable employer contract-modification notice duty text @10979..11281 | (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; text @11282..11431 | (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; text @11432..11791 | (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 text @11792..13380 | (4) continues in full force and effect, without resorting to strike or lock-out, 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) 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 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 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 subsection shall be modified as follows: gloss Applies when a party seeks to terminate or modify an existing collective-bargaining contract. The final paragraph expressly removes duties (2)-(4) after intervening certification/supersession, preserves fixed-term contractual limits, and states striker status consequences. Do not impose the full contract-modification checklist on every initial bargaining encounter. gloss Mastro Plastics limits the d(4) status-loss consequence for strikes solely against employer unfair labor practices; keep that judicial limitation separate from the notice duties of a party actually seeking contract termination or modification. element refusal-to-bargain.healthcare-notices : or name Breach of an applicable employer health-care notice or participation duty text @13381..13603 | (A) The notice of paragraph (1) of this subsection shall be ninety days; the notice of paragraph (3) of this subsection shall be sixty days; and the contract period of paragraph (4) of this subsection shall be ninety days. text @13604..13859 | (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 paragraph (3) of this subsection. text @13860..14285 | (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. xref 29 U.S.C. § 158(g) | Ten-day written health-care strike/picketing notice to institution and FMCS, timing exception for an initial agreement, and written extensions; assess before applying section d striker-status consequences. gloss Section d changes specified notice and contract periods for health-care institutions and provides a distinct initial-agreement mediation notice. Section g independently requires union strike/picketing notice; its trigger and exceptions are not ordinary employer bargaining elements. constraint speech-evidence(protected-speech, union-purpose, organization-interference) : Protected noncoercive expression alone cannot constitute or evidence an unfair labor practice gloss Section c applies throughout the subchapter; it does not protect threats, force, promises of benefit or independent unlawful acts. constraint insignia-defense-scope(special-circumstances, interference) : Special circumstances applies only to the protected employee-insignia restriction theory gloss In-N-Out supplies a judge/Board-made balancing defense for that variant, not a universal defense to interrogation, discrimination, or statutory bargaining duties. element refusal-to-bargain.direct-dealing : or name Bypassing the exclusive bargaining representative text @2534..2567 | to refuse to bargain collectively gloss The Ingredion rule pinned under the parent supplies this judicially elaborated route. Negotiating with represented individuals on bargaining subjects can establish this breach without independently proving every contract-notice or health-care condition. constraint bargaining-duty-triggers(refusal-to-bargain, refusal-to-bargain.good-faith, refusal-to-bargain.contract-notices, refusal-to-bargain.healthcare-notices, refusal-to-bargain.direct-dealing) : Any applicable employer-duty breach can establish the refusal element; the routes are not cumulative requirements. type governs gloss Each child is an alternative failure predicate: satisfaction means breach of an actually applicable employer duty, not the existence or performance of the duty. Contract notices require a party seeking termination/modification of an existing agreement; health-care modifications require the institution/contract conditions. Paragraph d(B) initial-dispute notice is a union duty, and d(C) FMCS communication is an agency duty: those are contextual anchors, not independent employer breaches. The employer's d(C) participation duty remains distinct. Striker-status effects inform coverage but do not independently prove employer refusal.