O’Malley and Madden Weekly

Topic of the Week  Can your employer retaliate against you for union activity?

 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.

What law makes it illegal to retaliate for 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.

What types of activity are covered by the NLRA?
The NLRA states that employees 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 concerted 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 except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized [elsewhere in the law]

Specific examples of the types of rights protected by the NLRA are:

  • Forming or attempting to form a union among the employees of a company.
  • Joining a union whether the union is recognized by the employer or not.
  • Assisting a union to organize the employees of an employer.
  • Going out on strike to secure better working conditions.
  • Refraining from activity on behalf of a union.
  • Attending meetings to discuss joining a union.
  • Reading, distributing and discussing union literature (as long as you do this in nonwork areas during nonwork times, such as breaks or lunch hours).
  • Wearing union buttons, T-shirts, stickers, hats or other items on the job at most worksites.
  • Signing a card asking your employer to recognize and bargain with the union.
  • Signing petitions or file grievances related to wages, hours, working conditions and other job issues.
  • Asking other employees to support the union, to sign union cards or petitions or to file grievances.
  • Signing a petition for improved wages, hours, or conditions.
  • Talking with coworkers about wages or working conditions.

The NLRA created the National Labor Relations Board (NLRB) to protect workers who organize unions, or engage in other protected concerted activity to improve working conditions. However, appointments to the NLRB are made by the president, so political differences in a given administration have meant that workers' interests have not always been foremost in the board's rulings.

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

Thought of the Week

"They have to realize that this affects everyday people. It affects the boots on the ground. To me, it’s like a political chess game that they’re playing, and we seem to be pawns."

–Ray Coleman Jr., a corrections officer at a federal prison in Florida on the government shutdown

Weekly Comic by Jerry King

Weekly Comic by Jerry King

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