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."