UNFAIR LABOUR PRCTICES

Why unfair practices?

Unfair labor practices are actions taken by employers or unions that are illegal under the
National Labor Relations Act (NLRA) and other labor laws. Some of these rules apply to the
interactions between the employer and the union; others protect individual workers from unfair
treatment by an employer or union.

The NLRA gives employees the right to act together to try to improve the terms and conditions
of their employers, by forming a union, joining a union, or otherwise. To preserve these rights,
the NLRA sets out the rules for union elections, collective bargaining, and more.

The NLRA also prohibits employers and unions from taking certain actions that would interfere
with these employee rights or with the delicate balance the NLRA creates between unions and
employers. These actions are called "unfair labor practices".1

Meaning of unfair practices:

An unfair labour practice means any unfair act or omission that arises between an employer and
an employee, involving:

 The unfair conduct of the employer relating to the promotion, demotion or training of an
employee of relating to the provision of benefits to an employee,
 The unfair suspension of an employee or any other disciplinary action short of dismissal
in respect of an employee,
 The failure or refusal of an employer to reinstate or re-employ a former employee in
terms of any agreement.
 An occupational detriment, other than dismissal, in contravention of the protected
disclosures Act, 2000. On account of an employee having made a protected disclosure as
defined in the Act.2
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https://www.nolo.com/legal-encyclopedia/unfair-labor-practices.html.
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https://www.labourprotect.co.za/Unfair_Labour_Practices.html#targetText=An%20unfair%20labour%20practice
%20means,or%20relating%20to%20the%20provision
Unfair conduct relating to Promotion, Demotion, Training or Benefits

This usually involves cases where the employer deviates from its
own promotion or training policy or where the employee alleges that the promotion, demotion or
training is in itself unfair. If it is alleged that the failure to promote is a result of discrimination,
this dispute must be referred to the Employment Equity Commission as such a dispute (see
information sheet: Discrimination). If all employees pass a test and all except one or a few are
promoted, the employer may be guilty of unfair conduct against that / those employees3.

Unfair Sanction or Disciplinary Action

Usually an employee would refer a dispute relating to the unfairness of disciplinary measures
taken, based on the merits of their innocence in the alleged wrongdoing Suspension as a
disciplinary sanction is the only instance where suspension can be unpaid. Whilst on suspension
pending a disciplinary enquiry, an employee must be paid. Non-payment must be referred to the
Department of Labour as a non-payment of salary dispute. It is not regarded as an unfair labour
practice dispute as this definition relates only to benefits and not salary.

A dispute regarding the unfair suspension may be referred as an unfair labour practice if the
employee is on suspension for an unreasonably long period and where there is no plausible
reason for the delay in finalising the enquiry. An example of unfair suspension would be where
an employee and her supervisor argue and the employer suspends only the employee, even
though it was the supervisor who was to blame.

Unfair Labor Practices by Employers:

The NLRA prohibits employers from:

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https://www.labourprotect.co.za/Unfair_Labour_Practices.html.
  Interfering with an employee's right to organize, join, or assist a union; engage in
collective bargaining; or engage in protected, concerted activities. For example,
employers must treat union-related conversations among employees like any other matter
unrelated to work: They may not make special rules that single out communications
relating to the union or to workplace grievances for disciplinary treatment.

 Dominating or providing illegal assistance of support to a labor union. Employers may

not establish their own union (a company union or sham union), or dominate or interfere
with any labor organization. To determine whether an employer unfairly controls a
particular workplace group, the National Labor Relations Board (NLRB) looks at all of
the facts, including who started the group, whether the employer played a role in
organizing the group and deciding how it would function, whether management attends
meetings or otherwise sets the group's agenda, the group's purpose, and how the group
makes decisions.

 Discriminating against employees to encourage or discourage membership in a labor

organization, or replacing workers who strike to protect an unfair labor practice.

 Retaliating against an employee for filing a charge with, or giving testimony to, the
NLRB.

 Refusing to engage in good-faith collective bargaining.

 Making a hot cargo agreement with a union. A hot cargo agreement is an arrangement
between an employer and a union in which the employer promises to stop doing business
with another employer, typically one with whom the union has a dispute.

Unfair Labor Practices by Unions:

The NLRA prohibits unions from:

  Restraining or coercing employees in the free exercise of their right not to support a
union (for example, by threatening employees who don't want a union or expelling
members for crossing an illegal picket line.

 Restraining or coercing an employer in its choice of a bargaining representative (by

insisting on meeting only with a particularly manager or refusing to bargain with the
representative the employer chooses).

 Causing or trying to cause an employer to discriminate against an employee for the

purpose of encouraging or discouraging union membership (for example, convincing an
employer to penalize employees who engage in antiunion activities)

 Refusing to engage in good-faith collective bargaining (for example, refusing to come to

the bargaining table or listen to any of the employer's proposals).

 Engaging in strikes, boycotts, or other coercive action for an illegal purpose.

 Charging excessive or discriminatory membership fees.

 Getting or trying to get an employer to agree to pay for work that is not performed. This
is called "featherbedding."

 For a union that is not certified to represent a group of workers, picketing or threatening
to picket an employer to force it to recognize or bargain with the union or force the
workers to accept the union as their representative, if (1) another union already represents
the workers, (2) a valid representation election was held in the past year, or (3) the union
does not file a petition for an election with the NLRB within 30 days after the picketing
starts.

 Making a hot cargo agreement (explained above).

 Striking, picketing, or otherwise engaging in a collective work stoppage at any health

care institution without giving required notice to the institution and the Federal Mediation
and Conciliation Service.4

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SECTION 2 (ra)5

I.  ON THE PART OF EMPLOYERS AND TRADE UNIONS OF EMPLOYERS

(1) To interfere with, restrain from, or coerce, workmen in the exercise of their right to organize, form,
join or assist a trade union or to engage in concerted activities for the purposes of collective bargaining
or other mutual aid or protection, that is to say.-

(a) threatening workmen with discharge or dismissal, if they join a trade union;

(b) threatening a lock-out or closure, if a trade union is organized;

(c) granting wage increase to workmen at crucial periods of trade union organization, with a view to
undermining the efforts of the trade union at organization.

(2) To dominate, interfere with or contribute support, financial or otherwise, to any trade union, that is
to say,

(a) an employer taking an active interest in organizing a trade union of his workmen; and

(b) an employer showing partiality or granting favor to one of several trade unions attempting to
organize his workmen or to its members, where such a trade union is not a recognized trade union.

(3) To establish employer sponsored trade unions of workmen.

(4) To encourage or discourage membership in any trade union by discriminating against any workman,
that is to say,

(a) discharging or punishing a workman, because he urged other workmen to join or organize a trade
union;

(b) discharging or dismissing a workman for taking part in any strike (not being a strike which is deemed
to be an illegal strike under this Act);

(c) changing seniority rating or workmen because of trade union activities;

(d) refusing to promote workmen of higher posts on account of their trade union activities;
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Industrial Disputes Act, 1947 (fifth schedule)
(e) giving unmerited promotions to certain workmen with a view to creating discord amongst other
workmen, or to undermine the strength of their trade union;

(f) discharging office-bearers or active members of the trade union on account of their trade union
activities.

(5) To discharge or dismiss workmen-

(a) by way of victimization;

(b) not in good faith, but in the colorable exercise of the employer’s rights;

(c) by falsely implicating a workman in a criminal case on false evidence or on concocted evidence;

(d) for patently false reasons;

(e) on untrue or trumped up allegations of absence without leave;

(f) in utter disregard of the principles of natural justice in the conduct of domestic enquiry or with undue
haste;

(g) for misconduct of a minor technical character, without having any regard to the nature of the
particular misconduct or the past record or service of the workman, thereby leading to a
disproportionate punishment.

(6) To abolish the work of a regular nature being done by workmen, and to give such work to
contractors as a measure of breaking a strike.

(7) To transfer a workman mala fide from one place to another, under the guise of following
management policy.

(8) To insist upon individual workmen, who are on a legal strike to sign a good conduct bond, as a
precondition to allowing them to resume work.

(9) To show favoritism or partiality to one set of workers regardless of merit.

(10) 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.
(11) To discharge or discriminate against any workman for filing charges or testifying against an
employer in any enquiry or proceeding relating to any industrial dispute.

(12) To recruit workman during a strike which is not an illegal strike.

(13) Failure to implement award, settlement or agreement.

(14) To indulge in acts of force or violence.

(15) To refuse to bargain collectively, in good faith with the recognized trade unions.

(16) Proposing or continuing a lock-out deemed to be illegal under this Act.

II. ON THE PART OF WORKMEN AND TRADE UNIONS OF WORKMEN

(1) To advise or actively support or instigate any strike deemed to be illegal under this Act.

(2) To coerce workmen in the exercise of their right to self-organization or to join a trade union or
refrain from, joining any trade union, that is to say-

(a) for a trade union or its members to picketing in such a manner that non-striking workmen are
physically debarred from entering the work places;

(b) to indulge in acts of force or violence or to hold out threats of intimidation in connection with a
strike against non-striking workmen or against managerial staff.

(3) For a recognized union to refuse to bargain collectively in good faith with the employer.

(4) To indulge in coercive activities against certification of a bargaining representative.

(5) To stage, encourage or instigate such forms of coercive actions as willful, ,"go-slow", squatting on the
work premises after working hours or "gherao" of any of the members of the managerial or other staff.

(6) To stage demonstrations at the residence of the employers or the managerial staff members.

(7) To incite or indulge in willful damage to employer’s property connected with the industry.

(8) To indulge in acts of force or violence or to hold out threats of intimidation against any workman
with a view to prevent him from attending work.]
UNFAIR LABOUR PRACTICE AND ITS IMPECT ON INDUSTRIAL RELATION AND
PEACE The industrial relations system in India is itself inefficient and unfair labour practices
have further deteriorated the situation to a certain extent in some aspects. Unfair Labour
Practices from both parts weakens the trade unionism and thus weakens the industrial relations.
From the part of employers a number of unfair labour practices are adopted to weaken the trade
unionism. When in an industry workers take the resort of strike or other democratic ways to
oppose for their rights the employer use unfair ways of lock-outs or closures or blacklist to
pressurize the workers. It actually weakens the strength of trade union, employers uses the
money power and try to break up the union. In such way employer try to weaken trade union so
that they can keep on the exploitation of workers. Therefore industrial relations are disturbed and
ultimately industrial harmony is disturbed. In the weakening of trade unionism the part of
workers is also responsible. In some situations the honest workers are misguided and mis-leaded
for the interests of some clever people. When a trade union is leaded by corrupt people they
deceive the honest work force of the industry and the management or employers are always
interested in such things. In some situations these corrupt people call strike for their personal
interests and when interests are fulfilled they take it back. Such unfair labour practices on the
part of workers or trade union weakens the trade unionism and ultimately unrest increases and
industrial relations are disturbed and resultantly industrial harmony is disturbed. Now, it is to see
how unfair labour practices decides economic growth of the country. Disturbed industrial
relations and industrial harmony ultimately effects the industrial growth of an industry. It not
only concerns the employers and employees but the community as a whole. And as a resist the
total economic growth of a country is effected.

In that connection the following case of Bombay High Court between Metal Box India Ltd. v.
The Association of Engineering Workers Union and others 6 6, can be considered. In the fact of
the case there was a settlement which had been entered into on 1st November, 1991 with the then
recognized Union, MBDU. The settlement was inter alia in relation to the question of wages
reduction for a certain stipulated period having regard to the fact that the company was a sick
industrial company. The strike which was resorted to by the workmen was during the subsistence
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Factory Law Reporter, 2001; 91: 469
of the settlement of 1991 in respect of a matter which was covered by the settlement. The strike
came to be resorted to on 4th February, 1994

following the notice which was put up on 3rd February, 1994 enclosing a copy of the Company’s
communication dated 27th January, 1994. The strike was in these circumstances, illegal in view
of the provisions of clause (c) of Section 23 of the Industrial Disputes Act, 1947, and submitted-
Section (1) of the Section 24 of the Maharashtra Recognition of Trade Unions and Prevention of
Unfair Labour Practices Act, 1971. On behalf of the Union, it was sought to be submitted that
even assuming that there was a strike on 4th February, 1994 the strike was illegal because of a
non-compliance with the requirement of furnishing a notice of 14 days under the provisions of
Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971.
Section 24(3) of the Industrial Disputes Act, 1947 provides that a lock-out declared as a
consequence of an illegal strike or a strike declared in consequence of an illegal lock-out shall
not be deemed to be illegal. It was sought to be submitted that since the illegality related not to
the provisions of the Industrial Disputes Act, 1947 but the Maharashtra Recognition of Trade
Unions and Prevention of Unfair Labour Practices Act, 1971the employer was not entitled to the
benefit of the provisions of submitted-Section (3) of Section 24. Even if it were to be held that
the illegality in the strike related only to a failure to furnish the requisite notice under the
provisions of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour
Practices Act, 1971, it cannot be said that the employer was precluded from taking recourse to
the provisions of submitted. Section (4)of Section 23 of the Industrial Disputes Act, 1947.
Besides as already noticed earlier, the strike was illegal with reference to the provisions of
Section 23(c) of the Industrial Disputes Act, 1947 as well. That being the position, there is no
merit in the submission that the lock-out which was declared in consequence of the illegal strike
is not protected by the provisions of submitted-Section 3 of Section 24 of the Industrial Disputes
Act, 1947. The demand for an undertaking on the part of the employer was illegal and
unjustified. The employer by demanding the undertaking has effectively prevented the workmen
from reporting for work. This is, therefore, clearly a case wherein a lock-out which was imposed
by the employer on 8th February, 1994 initially in response to the illegal strike cannot be
justified in view of the undertaking which was required from the workmen as a condition
precedent to their reporting for work. In view of the illegal strike which was resorted to by the
workmen, the lock-out at its inception was not illegal in view of the provisions of submitted-
Section (4) of Section 23 of the Industrial Disputes Act, 1947. The lock-out however, ceased to
be lawful and justified after the employer by his own conduct created a situation whereby the
workmen were unable to present themselves for work. There is no justification on the part of the
employer in demanding an undertaking in the terms in which it was sought the unlawful demand
for the undertaking in the terms in which it was sought. The unlawful demand for the
undertaking has prevented the workmen form reporting to work. In that connection the learned
Judge held as follows : “Assuming however that the employer has succeeded in providing that
there were acts of violence, in-discipline and damages to the property, the question that still falls
for consideration is whether insistence on such an undertaking from all the workmen, whether
they were parties to the said acts or not, is justified. Such attitude has to be discouraged in any
egalitarian society and much more so in a society like ours which has pledged itself to establish a
Socialist Republic. Article 43-A of the Constitution, specifically directs the State to take steps to
secure participation of workers in the management of the industry. Therefore, we are of the view
that to insist upon such undertakings from all workmen, irrespective of their conduct, is to
subject them to indignity. The dignity of an individual is the bed-rock of all human rights. It is
and should be the basis of all human relationship including his contract of employment. To insist
upon such undertaking therefore, is to affect the terms of his employment”.7

UNFAIR TREATMENT CREATING AN OCCUPATIONAL DETRIMENT FOR AN

EMPLOYEE WHO MADE A PROTECTED DISCLOSURE

If an employee makes a protected disclosure as set out in that Act e.g. makes a disclosure
regarding the conduct of an employer as he/she has reason to believe that the information shows
that the employer is committing a criminal offence, and is thereafter prejudiced for making such
disclosure by being demoted, such conduct of the employer would constitute an unfair labour
practice.

DISPUTE ABOUT UNFAIR TREATMENT

All the disputes about forms of unfair treatment may be referred firstly to conciliation conducted
either by a bargaining council, and if there is no council, by the CCMA. If the dispute remains
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unresolved, it can be referred to arbitration. WHEN TO REFER AN UNFAIR LABOUR
PRACTICE DISPUTE Section 191 states that the employee has 90 days from the date of the act
or omission which allegedly constitutes an unfair labour practice or, if it is a later date, within 90
days of the date which the employee became aware of the act occurrence.

RELEVANT LEGISLATION

Labour Relations Act, section 185; 186 Employment Equity Act Unfair discrimination: is dealt
with under the Employment Equity Act. Examples of this are – race, gender, ethnic or social
origin, colour, sexual orientation, age and disability, etc. Discrimination can be direct or indirect.
These disputes go to the Labour Court and the Employment Equity Act applies.8

CONCLUSION

At last according to the above discussion, we come to the conclusion that every kind of unfair
labour practice disturbs and leaves impact on the industrial relation which, in turn, disturbs the
industrial peace and ultimately industrial productivity is effected. It is not only connected with
the employer and employees but the community as a whole. Therefore for the sake of the
community unfair labour practices must be stopped.

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