UNFAIR LABOUR PRACTICE

WHAT IS AN UNFAIR LABOUR PRACTICE ?

It is an unfair treatment by an employer of an employee or job applicant. There are a limited number of unfair labor practices that the Labor Relations Act (LRA) defines the types of treatment which may constitute an unfair labor practice are discussed hereunder. Section 185 of the LRA states that every employee has the right not to be subjected to an unfair labor practice.

THE MEANING OF AN UNFAIR LABOUR PRACTICE:An unfair labor 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 or 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 re-instate or re-employ a former employee in terms of a particular 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 that Act.  Coercing workers not to join unions or engage in legit union activities, with threats of job loss or benefit deprivation.  Threatening plant closure if workers choose to join or form a union.  Questioning workers about their union sympathies or activities in an intimidating way.  Promising extras to workers to influence their union support.  Assigning difficult or dangerous work duties to discourage participation in union activities.  Refusing to process grievances of workers who've criticized the union or its officials.  Firing or otherwise punishing workers for resigning union membership.  Coercing workers to quit (constructive discharge) because of their legit union activities.  When an employer contributes financial or any other support to a labor organization. An employer must therefore remain neutral between competing unions. It is also an unfair labor practice for an employer to dominate or interfere with the formation or administration of any labor organization.

Unfair labor practices in the private sector are essentially employer or union violations of the National Labor Relations Act (NLRA).The NLRA is the "main" Federal labor law that regulates union and employer relations in the private sector. Under the NLRA, private-sector workers have the right to:
y y y y y y

Form or join a union Assist a union in organizing employees Participate in protected union activities Strike for better wages or working conditions Resign union membership at any time Refrain from joining a union or participating in its activities

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 . 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 employees. An example of unfair conduct based on benefits would be when all employees are given transport allowances, but one is discriminated against and not given this allowance. This may constitute an unfair labor practice. An example of unfair conduct relating to training would be if all employees were given training but for one or two, for no apparent /fair reason (i.e. that they already have the skills); this may constitute an unfair labor practice.

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 Labor as a non-payment of salary dispute. It is not regarded as an unfair labor practice dispute as this definition relates only to benefits and not salary. A dispute regarding the unfair suspension may be referred as an unfair labor practice if the employee is on suspension for an unreasonably long period and where there is no plausible reason for the delay in finalizing 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.

REFUSAL BY AN EMPLOYER TO REINSTATE FORMER EMPLOYEE IN TERMS OF ANY AGREEMENT-This type of unfair labor practice requires an agreement to have been in existence
(verbal, written, individual or collective). Usually these disputes arise in retrenchments situations. If there is no agreement, then the dispute may be referred as an unfair dismissal based on operational requirements. An example will be when there was an agreement between the employer and a retrenched employee to the effect that the employee will be re-employed when a vacancy becomes available and the employer does not re-employ that employee, the conduct on the part of the employer may constitute an unfair labor practice .

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 labor 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 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 labor 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:Labor 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, color, sexual orientation, age and disability, etc. Discrimination can be direct or indirect. These disputes go to the Labor Court and the employment equity act applies

UNFAIR LABOR PRACTICES BY EMPLOYERS:Unfair labor practices interfere with workers rights to join and participate in the union, or in the union s right to represent its members. Unfair labor practices target union representatives or union members for discriminatory treatment because they exercise their union rights. Federal, provincial and territorial labor laws describe unfair labor practices as prohibited conduct, and provide a complaint mechanism to have the matter reviewed. If the labor board agrees that the conduct has violated the law, it can intervene and order that the practice stop. Before the first labor laws were enacted in Canada, workers had exercised their rights to strike, form unions and bargain collectively before it became legal to do so. When these fundamental rights found their place in the early labor laws, they came with protections. Legislators early on decided that legislative provisions were needed to prohibit an employer from abusing its power to circumvent or undermine these rights. Without the protections, it was thought that employers could basically buy the type of union or union representative that served their needs, or use coercion and intimidation to prevent workers from joining or participating in the union or otherwise exercising their rights. These first "unfair labor practice" provisions were the precursors of our modern versions. Today, in every jurisdiction, each labor code outlines in detail those unfair labor practices prohibited under the statute. The law provides a framework to protect union representatives and the members they represent from these illegal practices. Over time, there have been many labor board decisions that have sent a strong message to employers that these rights must be observed and taken seriously. By the same token, an equally strong message has been conveyed to unions that only serious allegations should be brought as unfair labor practice complaints. Therefore, to protect and promote the effectiveness of the union at the workplace, we need to consider the unfair labor practice complaint as but one option among a variety of tools and strategies.

PROHIBITIONS Unfair labor practices vary from statute to statute. Generally speaking, unfair labor practices are those employer actions or conduct that interfere with union rights. In addition, the union s failure to fairly represent its members can be considered such a practice. Prohibited employer practices, in general terms, mean that:  management can t interfere in the formation or administration of a union.  management can t interfere with a union s representation of its members.  management can t prevent an employee from joining the union.  management can t stop an employee from participating in a union s lawful activities.  an employee cannot be discriminated against, threatened, intimidated or restrained from exercising union rights.

In practical terms, here is a brief description of some actual examples of employer conduct that has been found to constitute unfair labor practices.
 belittling and intimidating an employee who files a grievance .  making intimidating and threatening comments with respect to the lost career advancement prospects of an employee because he files grievances .  threatening to remove certain benefits from employees unless grievances are withdrawn .  threatening to document the activities and performance of a union representative, who files and provides representation on grievances, for the purpose of taking appropriate action to curb the number of unwarranted grievances .  withdrawing an offer of assignment because an employee indicated she would file a grievance with respect to one of the conditions regarding the assignment .  withdrawing an acting appointment because an employee had submitted a grievance .  retaliating against an employee for testifying at an arbitration hearing.  making critical comments on the performance appraisal of an employee that referred to her conduct while interacting with the employer in her capacity as a union representative .  disciplining an employee for using an alleged commanding and disrespectful tone of voice to a manager while she was acting in the capacity of a union representative .  threatening disciplinary action against a union representative if he provided representation on an EI appeal of one of his members because it contravened his employer s policy stating that employees (of that particular government department) could not act in an advocacy role on behalf of a client of that department .  threatening to discipline an employee if he didn t withdraw as the union nominee on a community board because it allegedly placed him in a conflict of interest situation given his particular job for the employer.  taking disciplinary action against a federal public service employee for having publicly criticized the proposed federal free trade agreement in his capacity as a union representative .  chastising a union representative and reminding her that her rights to publicly criticize her employer, to whom she owed loyalty and fidelity, did not extend to condemning job cuts in a meeting with MP s .  conducting focus group meetings of employees where bargaining issues were sometimes discussed .

UNFAIR LABOUR PRACTICES BY EMPLOYEES: When a union causes ,or attempts to cause an employer to hire, discharge or discriminate against an employee for the purpose of encouraging or discouraging any union activity.  When a union restrains or coerces employees in their exercise of their rights to self-organize; to form , join or assist labor unions; to bargain collectively or to refrain from any of these activities.  The refusal of a labor organization to bargain collectively or to execute a formal document embodying agreement with an employer is another unfair labor practice.

ISSUES RELATING TO UNFAIR LABOUR PRACTICES: What is the relationship between grievances and ULPs?
There is a very close relationship because both actions stem from disagreements which arise from the three-way relationship that exists among employees, the union and management.

 Is there a difference between grievances and ULPs?

Yes, the differences relate mainly to the nature of the disagreement between the parties and the resolution procedure used to resolve the disagreement. Grievances relate to disagreements over the interpretation and application of a collective bargaining agreement between union and management or agency personnel regulations and are decided by an arbitrator. ULPs relate to disagreements over the coverage and meaning of the labor law and are decided by the Federal Labor Relations Authority (FLRA).

 Can a violation of a collective bargaining agreement ever be a ULP?

Yes, it can, but only under the most extraordinary of circumstances. One of the parties to the agreement must knowingly, deliberately, and willfully violate the agreement. For example, a ULP occurred in a case where one of the parties to the labor agreement announced that the agreement was no longer in effect (even though it was), and that grievances would not be processed. However, given the federal labor law s broad definition of a grievance, a ULP can be filed as a grievance, if the employee or union chooses.

 Is it true only a union can file a ULP with the FLRA?

No. As indicated above, any individual employee, union, or agency covered by the labor law may file a ULP. As a practical matter, however, 95 percent of all ULPs are filed by unions against agencies because the labor law is generally designed to protect the employee s right to organize and be represented by a labor union.

 When may a ULP be filed?

A ULP may be filed anytime within 6 months of the date the injured party became aware of the violation of the labor law.

 Who will help me if I am charged with a ULP?

A Labor Relations Specialist from the Human Resources Office will represent you and the Office of Indian Education Programs.

 Who determines if a ULP has been committed and how is this done?
The FLRA decides ULPs, and its process for determining if a ULP has been committed is divided into two phases. The first phase is the charge phase. During this phase a representative of one of the regional offices of the General Counsel of the FLRA independently investigates the matter to see if there are sufficient grounds to conduct a formal hearing. If sufficient evidence does not exist, the FLRA regional office will dismiss the charges and drop the matter. The regional director s decision to drop the matter is subject to review by the FLRA General Counsel. If it is the decision of the regional office that sufficient evidence does exist to require a complete investigation, a formal complaint is issued and a hearing is scheduled. The purpose of the hearing is to develop facts sufficient for the FLRA to determine whether a ULP has indeed been committed.

 What happens during the course of the General Counsel s investigation of a ULP charge?
An agent of the FLRA General Counsel will come to the location where the ULP charge was filed and interview the various parties and persons involved in the charge and collect any pertinent documentation. The agent will interview employees and union officials and take their testimony in the form of sworn statements.

 Are all ULP charges investigated by the General Counsel? Yes  What happens if the agency is found guilty of committing a ULP?
The FLRA may prescribe whatever remedy is necessary to correct the ULP. This may include revoking the management action that caused the ULP in the first place, and requiring management to go back to the situation as it existed before the ULP. Generally however, the remedy consists of requiring the guilty party to sign and post a notice to employees which indicates that it will stop committing the ULP and that it will not take such actions in the future. In this regard, the FLRA does not have the authority to impose discipline on a supervisor or manager who willfully commits a ULP, but the Office of Indian Education Programs does, and will, if the circumstances warrant. Thus, while you are not expected to be a labor relations expert, you are expected to know and abide by the basic rules that govern labor relations.

COURT CASE EXAMPLE:

Koopman and City Of Cape Town Case No: WE7485-01 Award Date: 19 February 2005 Jurisdiction: CCMA: Cape Town Commissioner: DIK Wilson

# SUBJECT: Grievance/Unfair Labor Practice Failure to appoint, promote, re-instate or reemploy

ISSUE: The employee could not have been demoted as he had never been formally placed in the position; his appointment was conditional on the outcome of appeals. Employee could not have had a legitimate expectation of appointment and the employer followed a fair procedure in dealing with him. The application was dismissed.

SUMMARY OF FACTS: The employee was employed by the employer as a Driver. During the course of the process of amalgamation of various municipalities into a single body, the employee acted in the new / revised position of Transport coordinator / Yard Foreman. When this position was eventually advertised, the employee applied and, after interviews were conducted in which the employee achieved the highest score, he was informed that he was the successful candidate. Subsequent to this, one of the other candidates appealed against the appointment of the employee on the grounds that he did not fulfill the requirements of the job. This appeal was successful, and the employee was returned to his previous position as a Driver. Employee claimed that there was no appeal process applicable to this type of dispute, and that the appeal should not have been entertained. The employees highest qualification was standard 3 and the employer was aware of this when he applied for the position. One of the unsuccessful employees for the position, Mr. Eaton, appealed against the employees appointment on the grounds that he did not have the necessary literacy and managerial skills for the position. The advertisement for the job did not have any formal literacy requirement. The employee argued that this appeal should not have been allowed, as there had been an appeal process in place only in respect of employees who were not happy with their own placements after the amalgamation

of the various municipalities. The parties agreed that the only issue for the Commissioner to decide was of the appeal should have been allowed and the process was fair.

SUMMARY OF JUDGEMENT: With regard to the policies regarding appeals against placements in the new structure, the Commissioner found that the procedures clearly envisaged the possibility of an appeal in the case of a competitive placement, that is, where there were competing employees for a placement vacancy. This would include an appeal by an unsuccessful candidate. Therefore the appeal by Mr. Eaton was in fact one which was envisaged by the procedure, and was correctly accepted as such. The employee alleged in the alternative that he had been unfairly demoted, or that the employer had unfairly failed to promote him. In this regard, the Commissioner found that the employee had not been formally placed in the position. At best this could be regarded as a provisional placement, subject to appeals, as he was never informed in writing of his placement in the position. Since he was not placed in the position, he could not have been demoted. Regarding the alleged failure to promote the employee, the Commissioner found that the employer acted fairly in allowing the appeal of Mr. Eaton to take place. The employee was given the opportunity to give his input at the appeal. The employer then went to the lengths of arranging a literacy assessment for the employee, which appeared to bear out the grounds of Mr. Eatons appeal. On this basis the Commissioner found that the employer did not act unfairly in this regard either. This is borne out by the fact that neither of the unsuccessful applicants who had a lower score than the employee were appointed in the post, but looked elsewhere for another, more suitable candidate. Since the process required a written appointment, and provided for an appeal process prior to finalization of an appointment, the Commissioner found that the employee could not have had a legitimate expectation of appointment prior to the finalization of the appeal process and the confirmation in writing of his placement and that the employer followed a fair procedure in dealing with the employee, and has not committed an unfair labor practice. The application was dismissed and the Commissioner ordered that the employee be paid an acting allowance for the period during which he was acting in the post.