The Stephens Law Firm Weekly

Topic of the Week  Retaliation for Union Activity/Collective Action

A labor union is an organization of workers joined to protect their common interests and improve their working conditions. It serves as an intermediary between the employer and the employees. The main purpose is to give workers power to negotiate more favorable working conditions through collective bargaining.

For most workers, organizing a union is the only way to legally require an employer to negotiate in good faith over wages, hours and terms and conditions of employment. Without a union, employers are free to change the rules at any time, and do not have to be accountable to their workers for these changes. With a union, the parties have a duty to share relevant information, and bargain in good faith. Many employers spend a significant amount of money and effort to oppose union organizing drives.

Some employers, however, do more than spend money trying to persuade their workers to vote against unions. They might use threats, intimidation, or retaliation to make workers afraid of losing their jobs if they support the union. These measures are illegal.

Which federal law(s) make it illegal to retaliate on the basis of an employee's union activity?

Congress passed the National Labor Relations Act (NLRA) in 1935. It was part of the New Deal era of reform. Congress stated its reasons as follows:

The denial by some employers of the right of employees to organize and the refusal by some employers to accept the procedure of collective bargaining lead to strikes and other forms of industrial strife or unrest.

Which employees are protected from retaliation under the law?

The NLRA covers most employees in the private sector. It does not cover government employees, agricultural and domestic workers, independent contractors, workers employed by a parent or spouse, employees of air and rail carriers covered by the Railway Labor Act, and supervisors.

The NLRB has adopted a rule that any private employer with 15 or more employees is covered. The railway and airline industries are covered by the similar Railway Labor Act.

What is considered an "unfair labor practice?"

In Section 8 of the NLRA, there are a number of illegal activities that are considered "unfair labor practices," or ULPs. ULPs are illegal whether they are engaged in by employers or by unions.

A few examples of what is considered an “unfair labor practice” are: (1) interfering with, restraining, or coercing employees in the exercise of the rights guaranteed by the NLRA, (2) dominating or interfering with the formation or administration of a labor organization (3) discrimination in regard to hire or tenure of employment or any condition of employment to discourage membership in a labor organization. For other examples of what is considered an “unfair labor practice”, please consult Section 8 of the NLRA.

Examples of Employer Conduct Which Violate the NLRA Are: 

 Threatening employees with loss of jobs or benefits if they join or vote for a union or engage in protected concerted activity.

 Threatening to close the plant if employees select a union to represent them.

 Questioning employees about their union sympathies or activities in circumstances that tend to interfere with, restrain or coerce employees in the exercise of their rights under the Act.

 Promising benefits to employees to discourage their union support.

 Transferring, laying off, terminating or assigning employees more difficult work tasks because they engaged in union or protected concerted activity.

Examples of Union Conduct Which Violate the NLRA Are:

 Threats to employees that they will lose their jobs unless they support the union's activities.

 Refusing to process a grievance because an employee has criticized union officers.

 Fining employees who have validly resigned from the union for engaging in protected activity following their resignation.

 Seeking the discharge of an employee for not complying with a union shop agreement, when the employee has paid or offered to pay a lawful initiation fee and periodic dues.

 Refusing referral or giving preference in a hiring hall on the basis of race or union activities.

These provisions mean that employers cannot fire or otherwise discriminate against workers because they exercised any of the rights guaranteed by the NLRA. Most obviously, it means that workers who try to organize a union cannot be fired for that reason. However, the law protects more than just union organizing. Non-union workers who circulate a petition to improve wages, or to get rid of a bad supervisor, are also protected since the petition is "concerted activity." 

Thought of the Week

"With many companies operating remotely due to the coronavirus pandemic, it is more important than ever for sexual harassment policies to explicitly prohibit harassment across all forms of digital communication and media to account for all the ways people can interact with each other virtually."

–Edgar Ndjatou | WF Director

Weekly Comic by Jerry King

Weekly Comic by Jerry King

Blog of the Week

How Workplace Rights Could Change for Remote Workers

In every civil society, certain rights have been put in place to guarantee equity and fairness for all. The same goes for every workplace. Every employee has certain rights that they are entitled to that provide a safe and non-toxic environment where they can thrive and excel.

Top Five News Headlines

  1. Trump's $400 in unemployment aid: When would it start?
  2. Five Job Search Strategies For Working Parents
  3. California Judge Orders Uber And Lyft To Consider All Drivers Employees
  4. U.S. DOL: Employees Who Refuse to Work Under Unsafe Conditions May Be Eligible for CARES Act Unemployment Benefits
  5. Pandemic wrecks global Class of 2020′s hopes for first job

List of the Week

from Center For Economic & Policy Research

Disability and Employment in the Time of Coronavirus

  • Majority of people ages 18 to 64 with disabilities were not employed between April and June of 2019.
  • The EPOP gap between those with and without disabilities continues to hover at around 40%.
  • The decline in EPOP during the pandemic has been much more pronounced among those with ambulatory, independent living, and personal care difficulties.

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