class 13 - the law of unionized workplace Flashcards
unions
Only 6.3% of U.S. workers in the private sector belonged to unions in 2020, compared to almost 17% in 1983; most of them worked in larger businesses. Why membership is declining is open to debate. However, the effect is clear: If your business isn’t unionized now, it’s likely to stay that way. Still, workers do have the legal right to form unions and, despite the odds, a union could be formed in your workplace. What’s more, even nonunion employees have the right to act together to improve working terms and conditions. So you need a basic understanding of workers’ rights, as well as your own, under labor laws
The National Labor Relations Act
The National Labor Relations Act, or NLRA (29 U.S.C. §§ 151 and following), is the most sweeping law regulating the formation of unions. It establishes the right of most—but not all—workers to organize into unions and, through union representatives, to negotiate an employment contract covering all members of the union
Private sector employees who are not covered by the NLRA include:
* managers and supervisors
* confidential employees, such as company accountants
* farmworkers
* members of an employer’s family
* most domestic workers, and
* workers in certain industries, such as the railroad industry, who are covered by other labor laws.
The National Labor Relations Board (NLRB) administers the law and interprets its provisions. The role of the NLRB in overseeing the unionizing of a workplace is discussed below
Unionizing a workplace
Workers who choose to form or join a union usually believe that they’ll have more bargaining clout than they would if they dealt with their employer one on one. They feel that the union can get them better pay, benefits, and working conditions than they could obtain individually. They also believe that, through structured grievance procedures, the union can get them a fairer shake in resolving workplace disputes.
And, just as business trade associations may offer attractive services and products to employers, larger unions may provide valuable enticements to workers
The Bargaining Unit
Employees can form their own union or can choose to affiliate with a national union. Either way, the employees must be part of a proper bargaining unit: a group of employees who perform similar work and logically have similar concerns about issues such as pay rates, work hours, and working conditions.
A workplace may have several bargaining units—each represented by a different union—and some workers in such a workplace may not be represented by any union
If a majority of workers in a bargaining unit authorize a union to represent them, the union becomes the sole representative of all the employees in that unit to bargain over wages, hours, and other working conditions. This is known as collective bargaining
Authorization Cards
Workers express their wishes to be be represented by a union by signing authorization cards
If you receive authorization cards signed by a majority of the workers ina bargaining unit, you can voluntarily recognize the union as the sole representative of the unit. You don’t have to do so though. If you don;t voluntarily recognize the union the workers can ask for an election to be conducted by the NLRB
NLRB Elections
if 30% or more of the workers in a proposed bargaining unit have signed authorization cards, the union can petition the NLRB to hold a secret election to determine whether a majority of the workers support the union. The union’s petition will include a description of the group of workers the union would like to have included in the bargaining unit.
Then the NLRB will conduct an election to determine whether the workers in the bargaining unit want to be represented by the union. If a majority of the workers who vote cast their ballots for the union, it’s officially certified as the sole bargaining agent for the unit.
In 2019, the NLRB voted to modify Obama-era “ambush election” rules that had significantly sped up the election process
However, many—but not all—of the NLRB’s new rules were struck down in 2020 by a District Court Judge in the District of Columbia, who held that some of the rules were not properly enacted by the Board. In 2023, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit largely affirmed the lower court’s ruling, although as this book goes to press that decision is subject to further appeals.
Finally, the NLRB gave notice in 2022 of a proposed rule that would significantly impact election procedures. Among other things, the proposed rule would reinstate the “blocking charge” policy, which allows the board to delay an election if a charge of unfair labor practices is pending.
Negotiating a contract
After a union is voluntarily recognized as the official representative of the bargaining unit or is certified by the NLRB, the representatives of the union and the employer negotiate a contract called a collective bargaining agreement. The contract typically covers wages, benefits, work breaks, overtime, holidays, vacation and sick time, seniority for promotions, and safety rules. Often, there’s a grievance procedure under which workers can bring their complaints to the union, which then takes the problems to the employer. Employees represented by the union pay monthly dues, often through a payroll deduction called a checkoff
Employer rights and limitations
What is permitted
You can try to dissuade employees from forming or joining a union. You can, for example, use letters, posters, brochures, and speeches to tell employees that they currently enjoy many job benefits and that their wages and benefits compare favorably to those of other workers in your industry. Make sure you can document your claims.
You’re legally allowed to state that your door is open to hear complaints and that you will attempt to take appropriate action. You can explain that you prefer to settle complaints with employees personally rather than through union agents.
Pointing out potentially negative features of union representation is also permitted. For example, you might emphasize that workers will be paying dues and fees if they unionize and will be subject to union rules and regimentation.
You can explain, too, that those signing authorization cards aren’t bound to vote for the union in the secret balloting conducted by the NLRB and that they don’t have to stand for undue pressure by the union
Employer rights and limitations
What is not permitted
Some actions in opposing a union are off limits. Under the NLRA, you may not:
* ask employees for their thoughts on union matters or how they plan to vote
* attend union meetings or spy on employees
* grant or promise employees promotions, pay raises, desirable work assignments, or other special favors if they oppose unionizing efforts
* close down a worksite or transfer work or reduce benefits to pressure workers not to support unionization
* dismiss, harass, reassign, or otherwise punish or discipline workers— or threaten to—if they support unionization, or
* refuse to bargain collectively with the employees’ union representative
Employee rights and limitations
Generally, courts have ruled that the NLRA gives workers the right to:
* discuss union membership and distribute union literature during nonwork time in nonwork areas, such as an employee lounge or locker room
* sign a card asking you to recognize the union and bargain with it
* sign petitions and grievances concerning employment terms and conditions
* ask coworkers to sign petitions and grievances, and
* display pro-union sentiments by wearing message-bearing items such as hats, pins, and T-shirts on the job.
In 2019, the National Labor Relations Board ruled that employers could prohibit their employees from using company email systems for nonwork purposes—including union organizing and discussions about the terms and conditions of employment. The Board emphasized that employers could not target union-related communications and activity in particular, and allowed an exception for employees to use these means for union-related discussion during nonwork time if no other means were available.
Pamphlet: The National labor Relations Board
What is the National Labor Relations board?
The National Labor Relations Board (NLRB) is an independent agency of the United States government that enforces laws to protect workers from certain conduct by employers and unions. The NLRB also holds elections to determine whether employees wish to be collectively represented.
What rights does the NLRb protect?
A) Your right to engage in protected concerted activities, which are group activities that you are involved in to try to improve working conditions, wages and benefits.
B) Your right to engage in union activities and to support a union.
C) Your right not to engage in protected concerted activities or union activities.
What are examples of conduct that violate the NLRA?
A) By an employer: threatening, disciplining, or firing employees involved in protected concerted activities or in union activities.
B) By a union: threatening or refusing to process a grievance or to refer a worker to a job because employees do not support the union.
What does the NLRb do?
A) Investigates complaints of interference or discrimination against workers due to group activities to improve working conditions, wages and benefits or due to union activities or due to a refusal to engage in those activities.
B) Holds elections to learn whether employees want a union or another group to represent them as a group when discussing working conditions, wages and benefits with their employer.
Article: US Supreme Court says no to union fees in government workplace
The current focus on the U.S. Supreme Court makes this a good time to discuss a major ruling the high court issued in late June addressing the law at work
In Janus v. American Federation of State, County, and Municipal Employees, the court ruled that states may not require state or local government employees represented by a union in their workplace, but who choose not to be union members, to pay an “agency” fee to the union. An agency fee covers the nonmember’s share of the cost of collective bargaining and grievance arbitration on the nonmember’s behalf, but excludes the small portion of full union dues that funds the union’s political activities
California is among the states that require government workers who are not members of the union that represents them to pay agency fees. According to a brief the state filed in Janus supporting the constitutionality of mandatory fees, “California has several different statutes regulating public sector labor relations that impose the duty of fair representation on any [union] selected as exclusive bargaining representative and then, under prescribed circumstances, permit the [union] to collect agency fees from employees who choose not to join the union.
The court further held that nonmember government workers now will have to give their consent “clearly and affirmatively” to pay an agency fee to the union that represents them “before any money is taken from them.” “By agreeing to pay, nonmembers are waiving their First Amendment rights” not to subsidize the union’s speech, “and such a waiver cannot be presumed.”
(SKIT): The Case of Pardon the Interruption
Context: It is June 4, 2003 in the employee dining room at the Aladdin Hotel and Casino on the Las Vegas strip. On May 30, 2003, several unions began a campaign to organize the hotel’s housekeeping, food and beverage departments. Sheri Lynn, an employee who is also a union organizer, is on her lunch break. Sitting at a nearby table having her lunch is Tracy Sapien, the hotel’s vice-president of human resources. Sheri Lynn just approached a table of three buffet server employees who also are having their lunch [and say nothing during this encounter] and has been trying to persuade them to sign a union authorization card
Legal Questions: Did management unlawfully interfere with the rights of the employees to unionize?
Initial Thoughts; Yes
Final Thoughts: Yes
Outcome: In favor of the union but ER appealed and it was reversed but then the union appealed and the court of appeals sided with the ER. no threats or force they were just discussing the terms of unionization.
Discussion:
During the work day during her lunch break
If they could provide her with benefits if she joins the union
Tracy who is the VP of HR (manager) comes over and signing with the union can’t guarantee all these benefits
She came over to make sure the other employees get the full story
Sheri is upset about this because Tracy usually sits across the cafeteria
Sheri believes that the benefits outweigh the costs
Now, Stacy who is the director of HR (manager) sees Azu talking to some people and explains what the union authorization card
Once they sign this its a contract
Be careful when signing
They can talk about their opinions but they can not spy and interfere with union activities
They think spying is going on because they are going out of their way to interrupt
I think so because they seem to be trying to intimidate the employees when they’re discussing unionizing
Interrupting a presentation - not the same thing as voicing your opinion after
Managers and supervisors can’t organize
Argument that it is not coercive
Not enough grounds to be suspicious when its in the same lunchroom
HANDOUT 1
Select Sections of the National Labor Relations Act (“NLRA”)
Select Sections of the National Labor Relations Act (“NLRA”)
7: Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other conserted (collectively) activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities. . . .
8(a): It shall be an unfair labor practice for an employer–
(1) to interfere with, restrain, or coerce employees in the exercise of the right to organize into a union;
(2) to dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it;
(3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization.
8(b): It shall be an unfair labor practice for a labor organization or its agents–(1) to restrain or coerce employees in the exercise of the rights guaranteed in section 7.
8(c) [Expression of views without threat of reprisal or force or promise of benefit] The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constiute or be evidence of an unfair labor practice under any of the provisions of this Act, if such expression contains no threat of reprisal or force or promise of benefit.
HANDOUT 2
Examples of employer conduct and labor organization that violates the law:
Examples of employer conduct that violates the law:
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.
question 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, assigning employees more difficult work tasks, or otherwise punishing employees because they engaged in union or protected concerted activity.
Examples of labor organization conduct that violates the law:
Threats to employees that they will lose their jobs unless they support the union.
Seeking the suspension, discharge or other punishment of an employee for not being a union members even if the employee has paid or offered to pay a lawful initiation fee and periodic fees thereafter.
Refusing to process a grievance because an employee has criticized union officials or because an employee is not a member of the union in states where union security clauses are not permitted.
Engaging in picket line msiconduct, such as threatening, assaulting, or barring non-strikers from the employer’s premises.
[Source: NLRB Website: Employer/Union Rights & Obligations]
The question of whether surveillance is unlawful focuses on three things, according to the NLRB: (1) the duration of the observation; (2) the employer’s distance from the employees while observing; (3) whether the employer engaged in coercive behavior during the observation.
