Unfair labor practice in PR: how a charge is filed

What an unfair labor practice is

It is not just any employer abuse. "Unfair labor practice" is a technical term from **Act 130 of 1945**, the Puerto Rico Labor Relations Act, and its Article 8 lists exactly which ones they are. If your problem is on that list, you have your own forum; if it is not, your claim goes another way.

The starting point is **Article 4**: employees have the right, among others, to **organize among themselves**, to **form, join or assist labor organizations**, to **bargain collectively** through representatives of their own choosing, and to **engage in concerted activities** for the purpose of collective bargaining or other mutual aid or protection.

Nearly all employer unfair practices are ways of attacking that Article 4. These are the ones Article 8(1) declares unlawful when an employer commits them:

• **Interfering with, restraining or coercing** (or attempting to) employees in exercising Article 4 rights.
• **Initiating, dominating or interfering** with the formation or administration of a labor organization, or contributing financial or other support to it.
• **Encouraging or discouraging** (or attempting to) membership in a labor organization.
• **Refusing to bargain collectively** with the representative of a majority of employees in an appropriate unit. The statute adds that **subcontracting shall be considered a mandatory subject of bargaining**.
• **Bargaining or signing an agreement** with a representative that does not represent a majority in the appropriate unit.
• **Violating the terms of a collective agreement**, including an agreement to accept an **arbitration award**, whether or not that agreement is inside the contract.
• **Failing to maintain a neutral attitude** before or during a representation election.
• **Discharging or otherwise discriminating** against an employee **because they filed charges or gave information or testimony** under this act.

Subsection (h): retaliation is also an unfair practice

That last subsection is worth reading twice because it is the one people do not know they have. Article 8(1)(h) makes it an unfair practice for the employer to **discharge or otherwise discriminate against an employee because they filed charges or gave information or testimony** under this act.

In other words: the act of filing the charge is protected by the same statute. And it covers not only the filer; it also covers **whoever testified or gave information**. If you testified in a coworker's case and retaliation followed, that is a new charge of your own.

The statute also limits the union, not only the employer. Article 8(2) makes it an unfair practice for a labor organization to **violate the terms of a collective agreement**, including an agreement to accept an arbitration award, and to **unjustifiably expel or suspend a member from membership**. Your remedy does not depend on the problem coming from the employer's side.

The Board and why its authority is exclusive

Article 3 creates the **Puerto Rico Labor Relations Board**, made up of a Chair and two associate members appointed by the Governor with the Senate's advice and consent for ten-year terms. A vacancy does not impair the remaining members' power, and two make a quorum.

What to understand before choosing a forum is in **Article 7(a)**: the Board has authority to prevent any person from engaging in the Article 8 unfair practices, and that **authority shall be exclusive and shall not be affected by any other means of adjustment or prevention**. It is not one option among several to take or leave as convenient.

Article 7 also gives the process teeth. The Board and its agents have **access, at all reasonable times, to any evidence** of the person under investigation relating to the matter, with the right to copy it. Any member may **issue subpoenas** requiring witnesses to appear and testify and evidence to be produced, administer oaths and receive evidence, and that appearance may be required **from anywhere in Puerto Rico**.

If someone ignores a subpoena, Article 7(d) sends the matter to the **Court of First Instance**, which may order them to appear, and disobeying that order **is punishable as contempt**. And Article 7(h) requires Government departments and agencies to supply the Board, on request, with all files, documents and reports they hold on the matter.

How the case runs, step by step

Article 9 lays out the path and it is worth knowing before you start, because there is one point where silence costs you the case.

• **The charge is filed.** Anyone may file with the Board a charge that a person, employer or labor organization has engaged or is engaging in an unfair practice.
• **Preliminary investigation.** Article 7(b) empowers the Board to investigate all charges and petitions to **determine whether further proceedings are instituted and hearings held**. Not every charge reaches a hearing: it is screened first.
• **The Board issues the complaint.** If warranted, the Board causes **a complaint in the Board's name** (not yours) to be served, stating the charges. It is served personally, by certified or regular mail, by fax, by email, or by leaving a copy at the principal office.
• **Answer, and here is the trap.** The party complained of has the right to answer and to appear. But **all allegations in the complaint that are not denied shall be deemed admitted**, and the Board may make findings of fact and law on them. What is not denied is taken as true.
• **Hearing within 30 days.** Once the answer is filed, the Board **serves the parties a notice of hearing stating date, place and time, within a term of no more than thirty (30) days**.
• **Flexible evidence rules.** The rules of evidence prevailing in courts of law or equity **are not controlling** in this proceeding. That lowers the bar for someone who does not arrive with a perfect file.
• **Decision.** If from the evidence the Board concludes there was an unfair practice, it issues findings of fact and law and an order. If it concludes there was none, it makes its findings and **dismisses the complaint**.

What the Board can order, including your reinstatement

This is why the forum matters. When the Board concludes there was an unfair practice, its order requires the person, employer or labor organization to **cease and desist** from the practice and to **take such affirmative action as will effectuate the purposes of this act**.

The statute gives examples and expressly says they are not a closed list: the order may include **reinstatement of employees, with or without back pay**, posting or mailing appropriate notices, and **terminating collective agreements, in whole or in part**, plus any other order that serves the act's purposes.

"With or without back pay" is the phrase to grasp: reinstatement and back pay are two separate things, and the Board can order the first without the second. Do not assume returning to the job automatically brings the money for the months you were out.

The order may also require the losing party to **report from time to time showing the extent of compliance**. And if they do not comply, Article 9(2)(a) lets the Board **petition the Court of First Instance to enforce the order**, along with any appropriate temporary relief or restraining order, certifying to the court the transcript of the entire record.

For the different case of an arbitration award you already won and they will not honor, the route is Article 9(2)(c): the Board may help enforce awards issued under a collective agreement and, at either party's request, bring an action **before the Court of Appeals**.

How long you have: what the statute says and what it does not

Here it pays to be exact rather than comfortable. **The compiled text of Act 130 sets no limitations period for filing the charge.** There is no sentence in the statute saying "six months" or any other figure, and this guide is not going to invent one.

That the statute sets no deadline does not mean time is free. It counts for three practical reasons: evidence disappears, witnesses leave, emails are deleted, memories blur; your collective agreement does have its own, much shorter deadlines for the grievance procedure, which runs on its own track; and the Board itself runs a preliminary investigation where the strength of what you bring decides whether the case advances.

The sensible course is to treat the clock as running from the day of the event: document the date, keep what you have, and check the specific term that applies to your situation before letting weeks pass. If you are unionized, that check starts with your steward and your agreement's grievance clause, not with the Board.