§ 160. — Prevention of 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: 29USC160]
TITLE 29--LABOR
CHAPTER 7--LABOR-MANAGEMENT RELATIONS
SUBCHAPTER II--NATIONAL LABOR RELATIONS
Sec. 160. Prevention of unfair labor practices
(a) Powers of Board generally
The Board is empowered, as hereinafter provided, to prevent any
person from engaging in any unfair labor practice (listed in section 158
of this title) affecting commerce. This power shall not be affected by
any other means of adjustment or prevention that has been or may be
established by agreement, law, or otherwise: Provided, That the Board is
empowered by agreement with any agency of any State or Territory to cede
to such agency jurisdiction over any cases in any industry (other than
mining, manufacturing, communications, and transportation except where
predominantly local in character) even though such cases may involve
labor disputes affecting commerce, unless the provision of the State or
Territorial statute applicable to the determination of such cases by
such agency is inconsistent with the corresponding provision of this
subchapter or has received a construction inconsistent therewith.
(b) Complaint and notice of hearing; answer; court rules of evidence
inapplicable
Whenever it is charged that any person has engaged in or is engaging
in any such unfair labor practice, the Board, or any agent or agency
designated by the Board for such purposes, shall have power to issue and
cause to be served upon such person a complaint stating the charges in
that respect, and containing a notice of hearing before the Board or a
member thereof, or before a designated agent or agency, at a place
therein fixed, not less than five days after the serving of said
complaint: Provided, That no complaint shall issue based upon any unfair
labor practice occurring more than six months prior to the filing of the
charge with the Board and the service of a copy thereof upon the person
against whom such charge is made, unless the person aggrieved thereby
was prevented from filing such charge by reason of service in the armed
forces, in which event the six-month period shall be computed from the
day of his discharge. Any such complaint may be amended by the member,
agent, or agency conducting the hearing or the Board in its discretion
at any time prior to the issuance of an order based thereon. The person
so complained of shall have the right to file an answer to the original
or amended complaint and to appear in person or otherwise and give
testimony at the place and time fixed in the complaint. In the
discretion of the member, agent, or agency conducting the hearing or the
Board, any other person may be allowed to intervene in the said
proceeding and to present testimony. Any such proceeding shall, so far
as practicable, be conducted in accordance with the rules of evidence
applicable in the district courts of the United States under the rules
of civil procedure for the district courts of the United States, adopted
by the Supreme Court of the United States pursuant to section 2072 of
title 28.
(c) Reduction of testimony to writing; findings and orders of Board
The testimony taken by such member, agent, or agency or the Board
shall be reduced to writing and filed with the Board. Thereafter, in its
discretion, the Board upon notice may take further testimony or hear
argument. If upon the preponderance of the testimony taken the Board
shall be of the opinion that any person named in the complaint has
engaged in or is engaging in any such unfair labor practice, then the
Board shall state its findings of fact and shall issue and cause to be
served on such person an order requiring such person to cease and desist
from such unfair labor practice, and to take such affirmative action
including reinstatement of employees with or without back pay, as will
effectuate the policies of this subchapter: Provided, That where an
order directs reinstatement of an employee, back pay may be required of
the employer or labor organization, as the case may be, responsible for
the discrimination suffered by him: And provided further, That in
determining whether a complaint shall issue alleging a violation of
subsection (a)(1) or (a)(2) of section 158 of this title, and in
deciding such cases, the same regulations and rules of decision shall
apply irrespective of whether or not the labor organization affected is
affiliated with a labor organization national or international in scope.
Such order may further require such person to make reports from time to
time showing the extent to which it has complied with the order. If upon
the preponderance of the testimony taken the Board shall not be of the
opinion that the person named in the complaint has engaged in or is
engaging in any such unfair labor practice, then the Board shall state
its findings of fact and shall issue an order dismissing the said
complaint. No order of the Board shall require the reinstatement of any
individual as an employee who has been suspended or discharged, or the
payment to him of any back pay, if such individual was suspended or
discharged for cause. In case the evidence is presented before a member
of the Board, or before an administrative law judge or judges thereof,
such member, or such judge or judges as the case may be, shall issue and
cause to be served on the parties to the proceeding a proposed report,
together with a recommended order, which shall be filed with the Board,
and if no exceptions are filed within twenty days after service thereof
upon such parties, or within such further period as the Board may
authorize, such recommended order shall become the order of the Board
and become effective as therein prescribed.
(d) Modification of findings or orders prior to filing record in court
Until the record in a case shall have been filed in a court, as
hereinafter provided, the Board may at any time upon reasonable notice
and in such manner as it shall deem proper, modify or set aside, in
whole or in part, any finding or order made or issued by it.
(e) Petition to court for enforcement of order; proceedings; review of
judgment
The Board shall have power to petition any court of appeals of the
United States, or if all the courts of appeals to which application may
be made are in vacation, any district court of the United States, within
any circuit or district, respectively, wherein the unfair labor practice
in question occurred or wherein such person resides or transacts
business, for the enforcement of such order and for appropriate
temporary relief or restraining order, and shall file in the court the
record in the proceedings, as provided in section 2112 of title 28. Upon
the filing of such petition, the court shall cause notice thereof to be
served upon such person, and thereupon shall have jurisdiction of the
proceeding and of the question determined therein, and shall have power
to grant such temporary relief or restraining order as it deems just and
proper, and to make and enter a decree enforcing, modifying and
enforcing as so modified, or setting aside in whole or in part the order
of the Board. No objection that has not been urged before the Board, its
member, agent, or agency, shall be considered by the court, unless the
failure or neglect to urge such objection shall be excused because of
extraordinary circumstances. The findings of the Board with respect to
questions of fact if supported by substantial evidence on the record
considered as a whole shall be conclusive. If either party shall apply
to the court for leave to adduce additional evidence and shall show to
the satisfaction of the court that such additional evidence is material
and that there were reasonable grounds for the failure to adduce such
evidence in the hearing before the Board, its member, agent, or agency,
the court may order such additional evidence to be taken before the
Board, its member, agent, or agency, and to be made a part of the
record. The Board may modify its findings as to the facts, or make new
findings by reason of additional evidence so taken and filed, and it
shall file such modified or new findings, which findings with respect to
questions of fact if supported by substantial evidence on the record
considered as a whole shall be conclusive, and shall file its
recommendations, if any, for the modification or setting aside of its
original order. Upon the filing of the record with it the jurisdiction
of the court shall be exclusive and its judgment and decree shall be
final, except that the same shall be subject to review by the
appropriate United States court of appeals if application was made to
the district court as hereinabove provided, and by the Supreme Court of
the United States upon writ of certiorari or certification as provided
in section 1254 of title 28.
(f) Review of final order of Board on petition to court
Any person aggrieved by a final order of the Board granting or
denying in whole or in part the relief sought may obtain a review of
such order in any United States court of appeals in the circuit wherein
the unfair labor practice in question was alleged to have been engaged
in or wherein such person resides or transacts business, or in the
United States Court of Appeals for the District of Columbia, by filing
in such a court a written petition praying that the order of the Board
be modified or set aside. A copy of such petition shall be forthwith
transmitted by the clerk of the court to the Board, and thereupon the
aggrieved party shall file in the court the record in the proceeding,
certified by the Board, as provided in section 2112 of title 28. Upon
the filing of such petition, the court shall proceed in the same manner
as in the case of an application by the Board under subsection (e) of
this section, and shall have the same jurisdiction to grant to the Board
such temporary relief or restraining order as it deems just and proper,
and in like manner to make and enter a decree enforcing, modifying, and
enforcing as so modified, or setting aside in whole or in part the order
of the Board; the findings of the Board with respect to questions of
fact if supported by substantial evidence on the record considered as a
whole shall in like manner be conclusive.
(g) Institution of court proceedings as stay of Board's order
The commencement of proceedings under subsection (e) or (f) of this
section shall not, unless specifically ordered by the court, operate as
a stay of the Board's order.
(h) Jurisdiction of courts unaffected by limitations prescribed in
chapter 6 of this title
When granting appropriate temporary relief or a restraining order,
or making and entering a decree enforcing, modifying, and enforcing as
so modified or setting aside in whole or in part an order of the Board,
as provided in this section, the jurisdiction of courts sitting in
equity shall not be limited by chapter 6 of this title.
(i) Repealed. Pub. L. 98-620, title IV, Sec. 402(31), Nov. 8, 1984, 98
Stat. 3360
(j) Injunctions
The Board shall have power, upon issuance of a complaint as provided
in subsection (b) of this section charging that any person has engaged
in or is engaging in an unfair labor practice, to petition any United
States district court, within any district wherein the unfair labor
practice in question is alleged to have occurred or wherein such person
resides or transacts business, for appropriate temporary relief or
restraining order. Upon the filing of any such petition the court shall
cause notice thereof to be served upon such person, and thereupon shall
have jurisdiction to grant to the Board such temporary relief or
restraining order as it deems just and proper.
(k) Hearings on jurisdictional strikes
Whenever it is charged that any person has engaged in an unfair
labor practice within the meaning of paragraph (4)(D) of section 158(b)
of this title, the Board is empowered and directed to hear and determine
the dispute out of which such unfair labor practice shall have arisen,
unless, within ten days after notice that such charge has been filed,
the parties to such dispute submit to the Board satisfactory evidence
that they have adjusted, or agreed upon methods for the voluntary
adjustment of, the dispute. Upon compliance by the parties to the
dispute with the decision of the Board or upon such voluntary adjustment
of the dispute, such charge shall be dismissed.
(l) Boycotts and strikes to force recognition of uncertified labor
organizations; injunctions; notice; service of process
Whenever it is charged that any person has engaged in an unfair
labor practice within the meaning of paragraph (4)(A), (B), or (C) of
section 158(b) of this title, or section 158(e) of this title or section
158(b)(7) of this title, the preliminary investigation of such charge
shall be made forthwith and given priority over all other cases except
cases of like character in the office where it is filed or to which it
is referred. If, after such investigation, the officer or regional
attorney to whom the matter may be referred has reasonable cause to
believe such charge is true and that a complaint should issue, he shall,
on behalf of the Board, petition any United States district court within
any district where the unfair labor practice in question has occurred,
is alleged to have occurred, or wherein such person resides or transacts
business, for appropriate injunctive relief pending the final
adjudication of the Board with respect to such matter. Upon the filing
of any such petition the district court shall have jurisdiction to grant
such injunctive relief or temporary restraining order as it deems just
and proper, notwithstanding any other provision of law: Provided
further, That no temporary restraining order shall be issued without
notice unless a petition alleges that substantial and irreparable injury
to the charging party will be unavoidable and such temporary restraining
order shall be effective for no longer than five days and will become
void at the expiration of such period: Provided further, That such
officer or regional attorney shall not apply for any restraining order
under section 158(b)(7) of this title if a charge against the employer
under section 158(a)(2) of this title has been filed and after the
preliminary investigation, he has reasonable cause to believe that such
charge is true and that a complaint should issue. Upon filing of any
such petition the courts shall cause notice thereof to be served upon
any person involved in the charge and such person, including the
charging party, shall be given an opportunity to appear by counsel and
present any relevant testimony: Provided further, That for the purposes
of this subsection district courts shall be deemed to have jurisdiction
of a labor organization (1) in the district in which such organization
maintains its principal office, or (2) in any district in which its duly
authorized officers or agents are engaged in promoting or protecting the
interests of employee members. The service of legal process upon such
officer or agent shall constitute service upon the labor organization
and make such organization a party to the suit. In situations where such
relief is appropriate the procedure specified herein shall apply to
charges with respect to section 158(b)(4)(D) of this title.
(m) Priority of cases
Whenever it is charged that any person has engaged in an unfair
labor practice within the meaning of subsection (a)(3) or (b)(2) of
section 158 of this title, such charge shall be given priority over all
other cases except cases of like character in the office where it is
filed or to which it is referred and cases given priority under
subsection (l) of this section.
(July 5, 1935, ch. 372, Sec. 10, 49 Stat. 453; June 23, 1947, ch. 120,
title I, Sec. 101, 61 Stat. 146; June 25, 1948, ch. 646, Sec. 32(a),
(b), 62 Stat. 991; May 24, 1949, ch. 139, Sec. 127, 63 Stat. 107; Pub.
L. 85-791, Sec. 13, Aug. 28, 1958, 72 Stat. 945; Pub. L. 86-257, title
VII, Secs. 704(d), 706, Sept. 14, 1959, 73 Stat. 544; Pub. L. 95-251,
Sec. 3, Mar. 27, 1978, 92 Stat. 184; Pub. L. 98-620, title IV,
Sec. 402(31), Nov. 8, 1984, 98 Stat. 3360.)
References in Text
The rules of evidence applicable in the district courts of the
United States, referred to in subsec. (b), are set out in the Appendix
to Title 28, Judiciary and Judicial Procedure.
The rules of civil procedure for the district courts of the United
States, referred to in subsec. (b), are set out in the Appendix to Title
28.
Chapter 6 (Sec. 101 et seq.) of this title, referred to in subsec.
(h), is a reference to act Mar. 23, 1932, ch. 90, 47 Stat. 70, popularly
known as the Norris-LaGuardia Act.
Codification
In subsec. (b), ``section 2072 of title 28'' substituted for ``the
Act of June 19, 1934 (U.S.C., title 28, secs. 723-B, 723-C)'' on
authority of act June 25, 1948, ch. 646, 62 Stat. 869, section 1 of
which enacted Title 28, Judiciary and Judicial Procedure.
In subsec. (c), ``administrative law judge or judges'' and ``such
judge or judges'' substituted for ``examiner or examiners'' and ``such
examiner or examiners'', respectively, pursuant to section 3105 of Title
5, Government Organization and Employees, and section 3 of Pub. L. 95-
251, Mar. 27, 1978, 92 Stat. 184, which is set out as a note under
section 3105 of Title 5.
In subsec. (f), ``United States court of appeals'' substituted for
``circuit court of appeals of the United States'' on authority of act
June 25, 1948, as amended by act May 24, 1949.
As originally enacted subsecs. (j) and (l) contained references to
the District Court of the United States for the District of Columbia.
Act June 25, 1948, as amended by act May 24, 1949, substituted ``United
States District Court for the District of Columbia'' for ``District
Court of the United States for the District of Columbia''. However, the
words ``United States District Court for the District of Columbia'' have
now been deleted entirely as superfluous in view of section 132(a) of
Title 28, Judiciary and Judicial Procedure, which states that ``There
shall be in each judicial district a district court which shall be a
court of record known as the United States District Court for the
district'', and section 88 of Title 28 which states that ``the District
of Columbia constitutes one judicial district''.
Amendments
1984--Subsec. (i). Pub. L. 98-620 struck out subsec. (i) which
provided for expeditious hearings on petitions.
1959--Subsec. (l). Pub. L. 86-257, Sec. 704(d), included unfair
labor practices within the meaning of sections 158(e) and 158(b)(7) of
this title, and inserted proviso prohibiting the officer or regional
attorney from applying for any restraining order under section 158(b)(7)
of this title if a charge against the employer under section 158(a)(2)
of this title has been filed and after the preliminary investigation, he
has reasonable cause to believe that such charge is true and that a
complaint should issue.
Subsec. (m). Pub. L. 86-257, Sec. 706, added subsec. (m).
1958--Subsec. (d). Pub. L. 85-791, Sec. 13(a), struck out ``a
transcript of'' after ``until''.
Subsec. (e). Pub. L. 85-791, Sec. 13(b), struck out ``(including the
United States Court of Appeals for the District of Columbia)'' before
``, or if all the courts'', and substituted ``file in the court the
record in the proceedings, as provided in section 2112 of title 28'' for
``certify and file in the court a transcript of the entire record in the
proceedings including the pleadings and testimony upon which such order
was entered and the findings and order of the Board'' in first sentence,
in second sentence substituted ``the filing of such petition'' for
``such filing of'' and struck out ``upon the pleadings, testimony and
proceedings set forth in such transcript'' after ``make and enter'', in
fifth sentence substituted ``member'' for ``members'' after ``before the
Board, its'', and substituted ``record'' for ``transcript'', and in
seventh sentence, substituted ``Upon the filing of the record with it
the'' for ``The'', and ``section 1254 of title 28'' for ``sections 346
and 347 of title 28''.
Subsec. (f). Pub. L. 85-791, Sec. 13(c), substituted ``transmitted
by the clerk of the court to'' for ``served upon'' and ``the record in
the proceeding, certified by the Board, as provided in section 2112 of
title 28'' for ``a transcript of the entire record in the proceeding,
certified by the Board including the pleading and testimony upon which
the order complained of was entered, and the findings and order of the
Board'' in second sentence, and in third sentence substituted ``the
filing of such petition,'' for ``such filing'', and struck out
``exclusive'' before ``jurisdiction''.
1947--Act June 23, 1947, amended section generally and added
subsecs. (j) to (l) which gives the Board general power to petition
district court for temporary relief or restraining order, directs Board
to hear and determine jurisdictional strikes, and to investigate
boycotts and strikes to force recognition of an uncertified labor union
and to petition district court for injunctive relief.
Effective Date of 1984 Amendment
Amendment by Pub. L. 98-620 not applicable to cases pending on Nov.
8, 1984, see section 403 of Pub. L. 98-620, set out as a note under
section 1657 of Title 28, Judiciary and Judicial Procedure.
Effective Date of 1959 Amendment
Amendment by 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.
Section Referred to in Other Sections
This section is referred to in sections 153, 158, 159, 161, 168 of
this title; title 18 section 1951; title 42 section 2297h-8.
