§ 158. — Unfair labor practices.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 29USC158]
TITLE 29--LABOR
CHAPTER 7--LABOR-MANAGEMENT RELATIONS
SUBCHAPTER II--NATIONAL LABOR RELATIONS
Sec. 158. Unfair labor practices
(a) Unfair labor practices by employer
It shall be an unfair labor practice for an employer--
(1) to interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed in section 157 of this title;
(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;
(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;
(4) to discharge or otherwise discriminate against an employee
because he has filed charges or given testimony under this
subchapter;
(5) to refuse to bargain collectively with the representatives
of his employees, subject to the provisions of section 159(a) of
this title.
(b) Unfair labor practices by labor organization
It shall be an unfair labor practice for a labor organization or its
agents--
(1) to restrain or coerce (A) employees in the exercise of the
rights guaranteed in section 157 of this title: Provided, That this
paragraph shall not impair the right of a labor organization to
prescribe its own rules with respect to the acquisition or retention
of membership therein; or (B) an employer in the selection of his
representatives for the purposes of collective bargaining or the
adjustment of grievances;
(2) to cause or attempt to cause an employer to discriminate
against an employee in violation of subsection (a)(3) of this
section or to discriminate against an employee with respect to whom
membership in such organization has been denied or terminated on
some ground other than his failure to tender the periodic dues and
the initiation fees uniformly required as a condition of acquiring
or retaining membership;
(3) to refuse to bargain collectively with an employer, provided
it is the representative of his employees subject to the provisions
of section 159(a) of this title;
(4)(i) to engage in, or to induce or encourage any individual
employed by any person engaged in commerce or in an industry
affecting commerce to engage in, a strike or a refusal in the course
of his employment to use, manufacture, process, transport, or
otherwise handle or work on any goods, articles, materials, or
commodities or to perform any services; or (ii) to threaten, coerce,
or restrain any person engaged in commerce or in an industry
affecting commerce, where in either case an object thereof is--
(A) forcing or requiring any employer or self-employed
person to join any labor or employer organization or to enter
into any agreement which is prohibited by subsection (e) of this
section;
(B) forcing or requiring any person to cease using, selling,
handling, transporting, or otherwise dealing in the products of
any other producer, processor, or manufacturer, or to cease
doing business with any other person, or forcing or requiring
any other employer to recognize or bargain with a labor
organization as the representative of his employees unless such
labor organization has been certified as the representative of
such employees under the provisions of section 159 of this
title: Provided, That nothing contained in this clause (B) shall
be construed to make unlawful, where not otherwise unlawful, any
primary strike or primary picketing;
(C) forcing or requiring any employer to recognize or
bargain with a particular labor organization as the
representative of his employees if another labor organization
has been certified as the representative of such employees under
the provisions of section 159 of this title;
(D) forcing or requiring any employer to assign particular
work to employees in a particular labor organization or in a
particular trade, craft, or class rather than to employees in
another labor organization or in another trade, craft, or class,
unless such employer is failing to conform to an order or
certification of the Board determining the bargaining
representative for employees performing such work:
Provided, That nothing contained in this subsection shall be
construed to make unlawful a refusal by any person to enter upon the
premises of any employer (other than his own employer), if the
employees of such employer are engaged in a strike ratified or
approved by a representative of such employees whom such employer is
required to recognize under this subchapter: Provided further, That
for the purposes of this paragraph (4) only, nothing contained in
such paragraph shall be construed to prohibit publicity, other than
picketing, for the purpose of truthfully advising the public,
including consumers and members of a labor organization, that a
product or products are produced by an employer with whom the labor
organization has a primary dispute and are distributed by another
employer, as long as such publicity does not have an effect of
inducing any individual employed by any person other than the
primary employer in the course of his employment to refuse to pick
up, deliver, or transport any goods, or not to perform any services,
at the establishment of the employer engaged in such distribution;
(5) to require of employees covered by an agreement authorized
under subsection (a)(3) of this section the payment, as a condition
precedent to becoming a member of such organization, of a fee in an
amount which the Board finds excessive or discriminatory under all
the circumstances. In making such a finding, the Board shall
consider, among other relevant factors, the practices and customs of
labor organizations in the particular industry, and the wages
currently paid to the employees affected;
(6) to cause or attempt to cause an employer to pay or deliver
or agree to pay or deliver any money or other thing of value, in the
nature of an exaction, for services which are not performed or not
to be performed; and
(7) to picket or cause to be picketed, or threaten to picket or
cause to be picketed, any employer where an object thereof is
forcing or requiring an employer to recognize or bargain with a
labor organization as the representative of his employees, or
forcing or requiring the employees of an employer to accept or
select such labor organization as their collective bargaining
representative, unless such labor organization is currently
certified as the representative of such employees:
(A) where the employer has lawfully recognized in accordance
with this subchapter any other labor organization and a question
concerning representation may not appropriately be raised under
section 159(c) of this title,
(B) where within the preceding twelve months a valid
election under section 159(c) of this title has been conducted,
or
(C) where such picketing has been conducted without a
petition under section 159(c) of this title being filed within a
reasonable 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 159(c)(1) of this title or
the absence of a showing of a substantial interest on the part
of the labor organization, direct an election in such unit as
the Board finds to be appropriate and shall certify the results
thereof: Provided further, That nothing in this subparagraph (C)
shall be construed to prohibit any picketing or other publicity
for the purpose of truthfully advising the public (including
consumers) that an employer does not employ members of, or have
a contract with, a labor organization, unless an effect of such
picketing is to induce any individual employed by any other
person in the course of his employment, not to pick up, deliver
or transport any goods or not to perform any services.
Nothing in this paragraph (7) shall be construed to permit any
act which would otherwise be an unfair labor practice under this
subsection.
(c) Expression of views without threat of reprisal or force or promise
of benefit
The expressing of any views, argument, or opinion, or the
dissemination thereof, whether in written, printed, graphic, or visual
form, shall not constitute or be evidence of an unfair labor practice
under any of the provisions of this subchapter, if such expression
contains no threat of reprisal or force or promise of benefit.
(d) Obligation to bargain collectively
For the purposes of this section, to bargain collectively is the
performance of the mutual obligation of the employer and the
representative of the employees to meet at reasonable times and confer
in good faith with respect to wages, hours, and other terms and
conditions of employment, or the negotiation of an agreement, or any
question arising thereunder, and the execution of a written contract
incorporating any agreement reached if requested by either party, but
such obligation does not compel either party to agree to a proposal or
require the making of a concession: Provided, That where there is in
effect a collective-bargaining contract covering employees in an
industry affecting commerce, the duty to bargain collectively shall also
mean that no party to such contract shall terminate or modify such
contract, unless the party desiring such termination or modification--
(1) serves a written notice upon the other party to the contract
of the proposed termination or modification sixty days prior to the
expiration date thereof, or in the event such contract contains no
expiration date, sixty days prior to the time it is proposed to make
such termination or modification;
(2) offers to meet and confer with the other party for the
purpose of negotiating a new contract or a contract containing the
proposed modifications;
(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 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:
(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.
(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.
(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.
(e) Enforceability of contract or agreement to boycott any other
employer; exception
It shall be an unfair labor practice for any labor organization and
any employer to enter into any contract or agreement, express or
implied, whereby such employer ceases or refrains or agrees to cease or
refrain from handling, using, selling, transporting or otherwise dealing
in any of the products of any other employer, or to 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 unenforcible \1\ and void: Provided, That nothing in this
subsection shall apply to an agreement between a labor organization and
an employer in the construction industry relating to the contracting or
subcontracting of work to be done at the site of the construction,
alteration, painting, or repair of a building, structure, or other work:
Provided further, That for the purposes of this subsection and
subsection (b)(4)(B) of this section the terms ``any employer'', ``any
person engaged in commerce or an industry affecting commerce'', and
``any person'' when used in relation to the terms ``any other producer,
processor, or manufacturer'', ``any other employer'', or ``any other
person'' shall not include persons in the relation of a jobber,
manufacturer, contractor, or subcontractor working on the goods or
premises of the jobber or manufacturer or performing parts of an
integrated process of production in the apparel and clothing industry:
Provided further, That nothing in this subchapter shall prohibit the
enforcement of any agreement which is within the foregoing exception.
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\1\ So in original. Probably should be ``unenforceable''.
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(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) of this section as an
unfair labor practice) because (1) the majority status of such labor
organization has not been established under the provisions of section
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) of this section: Provided further,
That any agreement which would be invalid, but for clause (1) of this
subsection, shall not be a bar to a petition filed pursuant to section
159(c) or 159(e) of this title.
(g) Notification of intention to strike or picket at any health care
institution
A labor organization before engaging in any strike, picketing, or
other concerted refusal to work at any health care institution shall,
not less than ten days prior to such action, notify the institution in
writing and the Federal Mediation and Conciliation Service of that
intention, except that in the case of bargaining for an initial
agreement following certification or recognition the notice required by
this subsection shall not be given until the expiration of the period
specified in clause (B) of the last sentence of subsection (d) of this
section. The notice shall state the date and time that such action will
commence. The notice, once given, may be extended by the written
agreement of both parties.
(July 5, 1935, ch. 372, Sec. 8, 49 Stat. 452; June 23, 1947, ch. 120,
title I, Sec. 101, 61 Stat. 140; Oct. 22, 1951, ch. 534, Sec. 1(b), 65
Stat. 601; Pub. L. 86-257, title II, Sec. 201(e), title VII,
Secs. 704(a)-(c), 705(a), Sept. 14, 1959, 73 Stat. 525, 542-545; Pub. L.
93-360, Sec. 1(c)-(e), July 26, 1974, 88 Stat. 395, 396.)
Amendments
1974--Subsec. (d). Pub. L. 93-360, Sec. 1(c), (d), substituted ``any
notice'' for ``the sixty-day'' and inserted ``, or who engages in any
strike within the appropriate period specified in subsection (g) of this
section,'' in loss-of-employee-status provision and inserted enumeration
of modifications to this subsection which are to be applied whenever the
collective bargaining involves employees of a health care institution.
Subsec. (g). Pub. L. 93-360, Sec. 1(e), added subsec. (g).
1959--Subsec. (a)(3). Pub. L. 86-257, Sec. 201(e), struck out ``and
has at the time the agreement was made or within the preceding twelve
months received from the Board a notice of compliance with sections
159(f), (g), (h) of this title'' after ``such agreement when made'' in
cl. (i).
Subsec. (b)(4). Pub. L. 86-257, Sec. 704(a), among other changes,
substituted ``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'' for ``induce or
encourage the employees of any employer to engage in, a strike or a
concerted refusal in the course of their employment'' in cl. (i), added
cl. (ii), and inserted provisions relating to agreements prohibited by
subsection (e) of this section in cl. (A), the proviso relating to
primary strikes and primary picketing in cl. (B), and the last proviso
relating to publicity.
Subsec. (b)(7). Pub. L. 86-257, Sec. 704(c), added par. (7).
Subsec. (e). Pub. L. 86-257, Sec. 704(b), added subsec. (e).
Subsec. (f). Pub. L. 86-257, Sec. 705(a), added subsec. (f).
1951--Subsec. (a)(3). Act Oct. 22, 1951, substituted ``and has at
the time the agreement was made or within the preceding twelve months
received from the Board a notice of compliance with section 159(f), (g),
(h) of this title, 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:'' for ``; and (ii) if, following the most recent election
held as provided in section 159(e) of this title the Board shall have
certified that at least a majority of the employees eligible to vote in
such election have voted to authorize such labor organization to make
such an agreement:''.
1947--Act June 23, 1947, amended section generally by stating what
were unfair labor practices by a union as well as by an employer, and by
inserting provisions protecting the right of free speech for both
employers and unions.
Effective Date of 1974 Amendment
Amendment by Pub. L. 93-360 effective on thirtieth day after July
26, 1974, see section 4 of Pub. L. 93-360, set out as an Effective Date
note under section 169 of this title.
Effective Date of 1959 Amendment
Amendment by sections 704(a)-(c) and 705(a) of Pub. L. 86-257
effective sixty days after Sept. 14, 1959, see section 707 of Pub. L.
86-257, set out as a note under section 153 of this title.
Effective Date of 1947 Amendment
For effective date of amendment by act June 23, 1947, see section
104 of act June 23, 1947, set out as a note under section 151 of this
title.
Agreements Requiring Membership in a Labor Organization as a Condition
of Employment
Section 705(b) of Pub. L. 86-257 provided that: ``Nothing contained
in the amendment made by subsection (a) [amending this section] 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.''
Unfair Labor Practices Prior to June 23, 1947
Section 102 of title I of act June 23, 1947, provided that: ``No
provision of this title [amending this subchapter] shall be deemed to
make an unfair labor practice any act which was performed prior to the
date of the enactment of this act [June 23, 1947] which did not
constitute an unfair labor practice prior thereto, and the provisions of
section 8(a)(3) and section 8(b)(2) of the National Labor Relations Act
as amended by this title [subsecs. (a)(3) and (b)(2) of this section]
shall not make an unfair labor practice the performance of any
obligation under a collective-bargaining agreement entered into prior to
the date of the enactment of this Act [June 23, 1947], or (in the case
of an agreement for a period of not more than one year) entered into on
or after such date of enactment, but prior to the effective date of this
title, if the performance of such obligation would not have constituted
an unfair labor practice under section 8(3) [see subsec. (a)(3) of this
section] of the National Labor Relations Act prior to the effective date
of this title [sixty days after June 23, 1947] unless such agreement was
renewed or extended subsequent thereto.''
Section Referred to in Other Sections
This section is referred to in sections 158a, 159, 160, 183, 187,
433, 2101 of this title; title 18 section 1951; title 42 sections 653a,
2297h-8.
