LABOUR LAW

ASSIGNMENT

“UNFAIR LABOUR
PRACTICES”

Submitted by :-
Shweta Garg
BBALLB7
35619103516
INTRODUCTION
Fairness’ can be used as a synonym for equitable, reasonable, impartial, just, honest, balanced,
according to the rules, right. All these synonyms contain a high degree of ethical and moral notions
and consequently so do the notion of fairness. As such the notion of fairness is not only difficult
to define but is also flexible. Different people from different cultures and backgrounds also might
have different views as to exactly what constitutes fairness. As Baxter points out, fairness is a
concept that is ambiguous and difficult to ascertain. Consequently its meaning must be deduced
with reference to surrounding circumstances.

BACKGROUND FOR LABOUR PRACTICES

The main concern of labour relations is on the relationships that exist between the employer and
the employee, and the labour practices that arise from the interests of such relationships (Cooper,
2005). Labour relations can be of both international and domestic form and all deal with matters
such as remuneration, job security, minimum wages, health and safety, social security and working
time amongst others (Holley, Jennings, and Wolters, 2011). Any formof violations of such laws
by employers or unions are therefore termed as unfair labour relations.

Any employment relationship has three stages:

1. a beginning: when the employee applies for employment

2. a middle: as long as the employment relationship continues
3. an end: when the employee is dismissed, resigns or retires

Unfair conduct of an employer during the course of employment:

1. refusal to promote or demotion

2. unfair conduct during the course of the probation period
3. refusal to provide benefits or training
4. unfair suspension
5. disciplinary action short of dismissal such as warnings or suspension without pay or
transfers

An unfair labour practice is an action by an employer or a union that violates the National Labor
Relations Act (NLRA).The National Labour Relations Board (NLRB) has created an extensive
listing of employer actions that it considers would unduly interfere with an individual employee's
labour rights. There are five categories of unfair labour practices for employers that are prohibited
under the NLRA:
  Interference, restraint, or coercion. An employer cannot interfere with, restrain, or
coerce employees in the exercise of their rights. Most violations of this section include
supervisors who (a) make threatening statements, (b) question employees who assert their
labor rights, or (c) make false statements to workers seeking unionization.
 Employer domination or support of a labor organization. An employer may not try to
dominate or interfere with the formation or administration of any labor organization, or to
contribute financial or other support to such an organization.
 Discrimination on the basis of labor activity. An employer may not discriminate against
an employee in hiring, or tenure of employment, or any term or condition of employment
in order to encourage or to discourage membership in any labor organization.
 Discrimination in retaliation for going to the NLRB. An employer may not discharge
or otherwise discriminate against an employee in terms and conditions of employment
because he or she has filed charges or given testimony.
 Refusal to bargain. An employer will be in violation of the NLRA if the company (a)
refuses to bargain collectively with the representatives of the employees, (b) refuses to
recognize a majority union, (c) takes unilateral actions, (d) refuses to provide necessary
information to union representatives, (e) refuses to sign a written contract once an
agreement is reached, (e) or imposes conditions on its willingness to bargain.

PROCEDURE
Filing of charge
While the employees of the NLRB may assist individuals in filing charges, the employees of the
NLRB cannot file charges on their own. Under the Act, "any person" (except an employee of the
Board) may file a charge with the NLRB.

Such charges must be filed and served within six months of the events that constitute the basis of
the charge. This deadline may be extended in some cases, e.g., if the party fraudulently conceals
its violations of the law. Charges may also be amended if done so within six months of the alleged
violation.

Investigation and processing of charge

The General Counsel of the NLRB is responsible for investigating unfair labor practice charges
and making the decision whether to issue a complaint. This job is delegated to the Regional
Director of the region of the NLRB in which the charge has been filed; the Regional Director in
turn assigns it to an employee of the region. It is the responsibility of the charging party to identify
the witnesses who can support its charge; should it fail to do so the Regional Director will typically
dismiss the charge.
The Regional Director generally seeks to reach a decision as to whether to issue a complaint or to
dismiss the charge within thirty days of the filing of the charge. The Region may also ask the
charging party to amend its charge to eliminate unsupported claims in an otherwise meritorious
charge or to add new claims uncovered by the Region in the course of its investigation.
A party unsatisfied with the Regional Director's decision to dismiss its charge can appeal the
dismissal to the office of the General Counsel. The General Counsel's decision to dismiss a charge
is not subject to further appeal and cannot be challenged in court.
If the issues raised by an unfair labor practice charge could also be resolved through the grievance
and arbitration procedure of the collective bargaining agreement covering these employees, then
the General Counsel may defer the case to arbitration. In those cases the General Counsel does not
dismiss the charge, but holds it in abeyance while the parties to the contract arbitrate their
contractual dispute.
Issuance of complaint and settlement
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.
Hearing and decision
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.
Compliance
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.
CASE LAWS

1. H.D. Singh v. Reserve Bank Of India & Ors (1986 AIR SC 132, 1985
SCR Supl. (2) 842)
The 5th Schedule to the Industrial Disputes Act contains a list of unfair labour practices as defined
in Section 2(ra). Item 10 reads as follows:"To employ workmen as badlis, casuals or temporaries
and to continue them as such for years, with the object of depriving them of the status and
privileges of permanent workmen." We have no option but to observe that the bank, in this case,
has indulged in methods amounting to unfair labour practice. The plea that the appellant was a
badli worker also has to fail.

2. Haryana State Electronics Development Corporation Ltd. v. Mamni

(MANU/SC/8137/2006 : (2006)IILLJ744SC)
Therein the action on the part of the employer to terminate the services of an employee on regular
basis and reappoint after a gap of one or two days was found to be infringing the provisions of
Section 25-F of the Industrial Disputes Act. This Court held: In this case the services of the
respondent had been terminated on a regular basis and she had been reappointed after a gap of one
or two days. Such a course of action was adopted by the Appellant with a view to defeat the object
of the Act.

3. Union of India and Ors. v. Ramchander and Anr. ((2005) 9 SCC 365)
Wherein again engagement of the workman on a regular basis for a period of 89 days on each
occasion was held to be impermissible in law stating: The respondents were appointed against
casual labourers but nevertheless they continued in-service for four spells and that too their
reappointments were made immediately within a few days of termination on completion of 89
days. It shows that sufficient work was available with the employer and had there been no
termination on completion of 89 days, they would have completed 240 days of continuous
employment. In that view of the matter the appellants had violated Section 25-G of the Industrial
Disputes Act. We do not find any error or illegality in the decision rendered by the Division Bench.
We direct the appellants to re-employ the respondents as daily-wagers. In that case, this Court did
not lay down any law having universal application. Directions were issued in the facts and
circumstances of the case. It is worthwhile to note that this Court did not direct regularization of
services of the workman but merely directed Appellants therein to reemploy Respondents as daily
wagers. The said decision, therefore, does not have any application in the instant case.

4. L.H. Sugar Mills v. Its Workmen, (1961 I LLJ 686)

It was held that it was not possible to give an exhaustive definition o f the phrase “unfair labour
practice” and that each question must be considered according to its own circumstances. It is not
possible to lay down any exhaustive test o f unfair labour practice, bit as a working principle, I
would hold that any practice which violates the principles o f Art. 43* of the Constitution and other
articles declaring decent wages and living conditions for worriment and which if allowed to
become normal would tend to lead to industrial strife, should be condemned as unfair labour
practice.

5. Regional Manager, S.B.l. v. Raresh Kumar Tewari (SC, 2006 LLR 209)
The conclusion of the Tribunal in both appeals that the circulars endorsed an unfair labour practice
being followed by the appellant or that the appellant had indulged in unfair labour practice was ...
incorrect. Unfair labour practice has been defined in Clause (ra) of section 2 of the Act as a
meaning any o f the practices specified in the Fifth Schedule. The Fifth Schedule to the Act
contains several items of unfair labour practices on the part of the employer on the one hand and
on the part of workmen on the other. The relevant item is item 10, which reads as follows; “To
employ workman as ‘badlis’, casuals or temporaries and to continue them as such for years, with
the object of depriving them of the status and privileges of permanent workmen.”

CONCLUSION
It is difficult to define an exhaustive or conclusive test of Unfair labour Practices, but it may be
said that any practices which violates the directive principles of State policies contained in Art 43
of the Constitution and also other provisions made under the delegated legislation.