Недобросовестная трудовая практика в США: правовые аспекты

Term in U. S. labor law

An unfair labor practice (ULP) in United States labor law refers to certain actions taken by employers or unions that violate the National Labor Relations Act of 1935 (49 Stat. 449) (also known as the NLRA and the Wagner Act after NY Senator Robert F. Wagner) and other legislation. Such acts are investigated by the National Labor Relations Board (NLRB).

If the Region finds merit in the charge it will file a formal complaint setting out the violations of the law allegedly committed by the respondent. While the Act requires that the original unfair labor practice be filed within six months, there is no comparable statute of limitations for issuance of a complaint. The complaint may also be amended in some circumstances to include other alleged violations of the Act not specified in an unfair labor practice charge. The Region will usually renew its attempts to settle the matter after it has made the decision to issue complaint but before it has actually done so. It can settle unfair labor practice charges unilaterally, i. e., without the agreement of the charging party. The Board draws a distinction between formal and informal settlements, i. e., those that call for issuance of a formal Board order and those that do not. A party unhappy with the Regional Director's settlement of its unfair labor practice charges can appeal a formal settlement to the Board itself, which must approve any formal settlement in any case, but can only appeal an informal settlement to the General Counsel. The Board will set aside an informal settlement agreement if the employer violates the agreement or commits other violations of the Act after the agreement. The Board can, by contrast, enforce a formal settlement like any other Board order by petitioning the Court of Appeals for an order enforcing it. The Board will also accept non Board settlements, in which the charging party withdraws its charge in return for promises from the other side. The Board is not, however, obliged to accept the parties' settlement agreement or to allow withdrawal of the charge.

If the General Counsel believes that there is cause to issue complaint, then he can seek injunctive relief from a federal district court under Section 10(j) of the Act. Injunctive relief is usually ordered when necessary to preserve the status quo pending the Board's decision on the complaint or to prevent employees from suffering irreparable harm. Any injunction lapses once the NLRB issues its decision. The General Counsel does not have to prove that the allegations in the complaint are well founded, but only that he has some evidence, together with an arguable legal theory, to support his claims. Even so, the General Counsel rarely uses this power to seek relief while complaints are pending, other than in secondary boycott cases, in which the Act commands the General Counsel to seek injunctive relief.

If the case is not settled following issuance of a complaint, then the case will proceed to hearing before an Administrative Law Judge of the NLRB. The Regional Director has the power to issue subpoenas for use by any party prior to the hearing; the Administrative Law Judge has that power once the hearing commences. The hearing is governed by the same rules of evidence that would apply in a federal court trial. The General Counsel functions as the prosecutor in these proceedings. Just as only the General Counsel can decide whether to issue a complaint, the General Counsel has exclusive authority to decide what charges to pursue. Interested parties may, however, intervene in these proceedings to present evidence or offer alternative theories in support of the charges that the General Counsel has alleged and to seek additional or different remedies than those that the General Counsel has proposed. The Administrative Law Judge issues a recommended decision, which becomes final if not appealed to the NLRB. While the Administrative Law Judge's credibility determinations are ordinarily given great weight by the Board, they are not binding on it. The Board likewise is free to substitute its own view of the law for that of the Administrative Law Judge and frequently reverses its own precedents.

A party that is aggrieved by a decision of the NLRB can seek review by petitioning in the Court of Appeals. The Act gives parties a good deal of latitude as to which court they want to hear their case: either the Circuit in which the hearing was held or the Circuit Court of Appeals for the District of Columbia or any Circuit in which one of the parties against whom the complaint was brought resides or does business. The NLRB, as a matter of policy, only petitions in the Circuit in which the hearing was held. The NLRB's decisions are not self executing: it must seek court enforcement in order to force a recalcitrant party to comply with its orders. The Court of Appeal reviews the Board's decision to determine if it is supported by substantial evidence and based on a correct view of the law. While the courts are obligated in theory to give deference to the NLRB's interpretation of the Act, they do not always do so. The court may direct the NLRB to reconsider its decision or reverse it outright if it is convinced that the Board is in error. The court may also reverse Board actions that it considers to be an abuse of the NLRB's discretion, typically in the choice of remedies to be applied. Any aggrieved party may also ask the Supreme Court to review a decision of the Court of Appeals. Such review by the Supreme Court is, however, discretionary and rarely granted.

If the Court of Appeals enforces the Board's order then the case will return to the Region for it to monitor the respondent's compliance. In those cases in which the Board's order requires payment of backpay, the Region will commence compliance proceedings if it is not able to resolve all disputes over the amount of backpay. These compliance proceedings are also held before an Administrative Law Judge, based on the compliance specification filed by the Region. The same procedural rights apply in these proceedings as in the earlier proceedings on the merits of the charge.