THE MOST ASKED LEGAL QUESTIONS BY EMPLOYEES

I.  WHAT FEDERAL LABOR LAWS AFFECT EMPLOYEES AND WHO ENFORCES THEM.

II.  LIVING WITH A UNION BARGAINING UNITS & UNION CONTRACTS.

III.  UNIONS AND STRIKES.

IV.  UNIONS AND FINES • RESIGNATIONS • GRIEVANCES.

V.  UNION DUES AND UNION POLITICS.

VI.  GETTING RID OF A UNION • DECERTIFICATION.

These questions are provided only as a guide and written to illustrate the numerous types of employment questions and issues which you may face in your everyday work life.  Many people work without the knowledge or experience to deal with issues that may confront them nor the resources to get answers to their questions.

The Center on National Labor Policy, Inc. is a nonprofit, public interest foundation providing these sample questions and answers to serve as a starting point to help you understand the legal obligations of workers and employees created by federal laws.

Labor law is a complex and tangled area.  It is hoped these questions will help you to identify and resolve some of the problems that you may encounter.

If you have other questions concerning employment matters you would like to discuss, we suggest you contact an attorney of your choice.  Your local state bar association may help you find an attorney with labor law experience.  Depending upon your problem, you may also contact the appropriate federal agencies, or you may contact one of the staff attorneys at The Center on National Labor Policy, Inc.

None of the information this should be considered legal advice.  There can be unique circumstances which may change the answer to your specific questions.  In addition, the law is constantly shifting.  This makes it difficult to anticipate future questions.

I.  WHAT FEDERAL LABOR LAWS AFFECT EMPLOYEES AND WHO ENFORCES THEM.

1.    What federal laws affect workers and what matters do they cover?

There are several federal laws that affect employees.  The three statutes covering most workers are:

  1. The Landrum-Griffin Act (also called the Labor Management Reporting and Disclosure Act (LMRDA)): permits union members to select officers and attempts to prevent, among other things, convicted criminals from seeking or maintaining control over unions.  It seeks to allow freedom of choice in selecting union officials.
  2. The National Labor Relations Act (NLRA): describes what employees, employers, and unions can and cannot do in the work place.  The NLRA limits worker activities in their relations with employers and unions. It permits states to enact right-to-work laws which prohibit a worker from being compelled to join or pay fees to a union to get or keep a job.
  3. The Railway Labor Act (RLA): regulates unions and employers in the airline and railroad industries.

2.    Which of these laws is most likely to affect me?

The National Labor Relations Act (“NLRA”).

3.    What is the National Labor Relations Act?

The NLRA is a federal law passed by Congress to stimulate unionization.  It also establishes rules for private-sector employees and employers in the everyday work relationship.  Portions of this law are enforced by the National Labor Relations Board (“NLRB”).

4.    What is the National Labor Relations Board?

The NLRB is an independent federal agency established by Congress to enforce the NLRA.

5.    What interests do I have as an employee under the NLRA?

You are afforded as an employee under the NLRA, the “right” to:

Attempt to and form a union; join a union; assist a union in organizing your fellow employees; engage in mutual activities seeking to modify wages or conditions of employment for the benefit of more than one employee; and refrain from any and all the activities listed above on behalf of a union.

The NLRA prohibits employers and unions from directly interfering with, restraining, or coercing employees in exercising any of the interests mentioned above.

6.    What interests do non-union employees have to engage in NLRA activity?

The NLRA permits the joint activities of workers whether through a union, through informal groups, or through spontaneous group activity.

7.    How do I know if I’m covered by the NLRA?

In general, the NLRA covers all employees except:

  1. agricultural workers;
  2. those in the domestic service of any person or family in a home;
  3. those employed by a parent or spouse;
  4. independent contractors;
  5. supervisors;
  6. employees subject to the Railway Labor Act (railroad and airline industries);
  7. federal, state, or local government employees (including military service personnel).

8.    What do I do if my interests have been violated?

Contact your attorney, the local or state bar associations, The Center on National Labor Policy, Inc., or the local NLRB office in your State.  Usually, there is a statute of limitations for each issue.  These statutes require you to take action within certain limited periods of time.

II.  LIVING WITH A UNION BARGAINING UNITS & UNION CONTRACTS.

1.    Can I still negotiate my own contract with my employer even though I am represented by a union?

No.

Once you are represented by a union, the union does all the negotiating for you and the group.  Once represented, you give away your individual authority to describe your personal job performance, hard work, and merits for a raise.  Your employer must deal with the group as a whole through the union.

Any employer attempt to negotiate with you directly would be an employer unfair labor practice, and any efforts by you or a group of employees to go around the union in its bargaining duty could lead to disciplinary action against them.  These actions can also lead to discharge from employment.

2.    Our employer’s contract with the union has expired and the union and the employer keep negotiating over a new contract; isn’t that illegal?

No.

Usually it is presumed that the present union continues to have majority status at the end of the contract.  The employer can withdraw its recognition from the union only if it has a good faith doubt of the union’s continued majority status.

3.    What type of information is needed to convince the employer of the union’s loss of majority support?

A key factor allowing an employer to question the union’s majority status is whether it has been presented with a written petition signed by over 50% of the employees in the bargaining unit or filing a decertification petition with the NLRB signed by over 50% of them.

If the employer is faced with a valid decertification petition, but is one not signed by over 50% of the employees in the bargaining unit, he may not stop bargaining with the union for a new collective bargaining agreement, but he could bargain to make any new agreement contingent on the election outcome.

4.    When is the union in violation of the NLRA?

      A union is in violation when it:

  1. threatens that you will lose your job unless you support the union’s activities;
  2. refuses to process a grievance because you criticized union officers;
  3. fines you for validly resigning from the union or for engaging in non-union activity following your resignation;
  4. seeks your discharge for not complying with a union shop agreement, when you paid or offered to pay the lawful periodic “dues” of nonmembers;
  5. collects your dues for organizing workers at other plants, to support political candidates or political issues which you may personally disagree with and have objected to, or other non-bargaining related expenditures;
  6. refuses to refer you or gives preference to another in a hiring hall on the basis of race, sex or union support;
  7. threatens you, your family, or other employees with violence for filing a charge with the NLRB or seeking professional help to protect your employment rights.

5.    What can I do if the union does any of these things to or against me?

There are several things which you can do:  contact an attorney, your state bar association, or an agent of the NLRB.

The result of these contacts is to either file an unfair labor practice charge against the union with the NLRB or a civil lawsuit.

6.    What is the first step I should take in filing an unfair labor practice charge?

The first step is to file the charge against either your employer or union with a regional office of the NLRB alleging a violation of the NLRA.

7.    Who can file a charge with the NLRB?

An employer, an employee, the union, or any other person.

8.    What is the time limit for filing a charge?

As a general rule, the charge must be filed with the NLRB within six months of the occurrence.

9.    I don’t think its fair to pay dues to a union that does nothing—what can I do to stop their collecting money?

In a non-right-to-work state you may file a Withdrawal of Union-Shop Authority Petition, otherwise called a Deauthorization Petition.

This request can be filed by any person in the bargaining unit.  It seeks an election to determine whether the union’s contractual authority to require payment of initiation fees and union dues as a condition of employment should be continued.

This request must be supported by the signatures of 30% or more of the employees in the bargaining unit.  The actual election requires 51% voting participation of all members in the bargaining unit to remove the union’s authority to collect dues.

10.   Must the union consult members on terms of contracts?

No.

Although the union must make the written contract available to you at no cost, it does not have to explain each term of the contract to you.  Nor does the union have to apply your ideas into the negotiations.  The union does not even have to submit the contract for a vote by the members, unless its constitution or bylaws require ratification.

III.  UNIONS AND STRIKES.

1.    My union has not gone out on strike, but it has asked us not to cross the picket line of another union on strike against my employer, is this legal?

Yes.

This is a sympathy strike.  A sympathy strike is one in which employees respect another union’s picket line although not directly involved in the dispute.  Your participation is not required in the sympathy strike.

2.    Can I lose my job for not crossing this type of picket line?

Usually sympathy strikers will not be fired or disciplined for engaging in such a strike.  However, if it is necessary for your employer to continue operations, he can permanently replace the sympathy strikers.  Then, the sympathy striker can get his job back only when another job opening arises.

If the collective bargaining agreement contains an explicit no strike clause, employees may be disciplined for engaging in sympathy strikes.

3.    The other day as I was going into work, I discovered that a union had set up a picket line in front of my work place protesting my employer’s use of another company’s materials.  We were not on strike — what was going on?

The most likely answer is that your employer was the subject of a secondary picket line.

4.    What is a secondary picket line?

A secondary picket line is directed against an employer other than the one with whom the union has its dispute in order to force that employer to cease doing business with the employer with whom the union has a direct dispute.

The secondary picket line differs from the primary picket line.  A primary picket line is directed at the employer with whom the union has a direct dispute.

5.    Does a union have to consult its members before it calls a strike?

No.

However, the union officers must usually receive approval, by vote of members or their representatives on whether or not to strike.

6.    If the union goes out on strike do I have to honor the picket line?

That depends upon what your long-term desires are regarding union membership.  If you do not want to go on strike, and a valid strike is called by your union, and you are a union member, you can be disciplined (expelled and fined) for crossing the picket line to work.  If you resign from the union first, you cannot be fined.

7.    I read somewhere that during a campaign for a union, some union people did awful things to their employers or other employees that crossed the picket line — is it O.K. for them to do whatever they want?

No, it’s not O.K. for them to do whatever they want to do.

Public laws must be obeyed.  Just because the employer is being subjected to a union organizing campaign does not mean that anything goes.  Employees who engage in illegal conduct such as damage to company property or who injure other workers may be disciplined, fired or jailed — involvement in a union organizing campaign does not result in a grant of criminal immunity.

IV.  UNIONS AND FINES • RESIGNATIONS • GRIEVANCES.

1.    Can a union fine members for crossing its picket lines?

Yes.

However, if the members have resigned from the union before crossing the picket line then the union cannot fine those former members for post-resignation conduct.

2.    How much notice do I have to give before I can resign from my union?

None.

You may resign your formal union membership at any time without losing your job.  Under current law, to avoid being fined, the union resignation letter must be postmarked to the union the day before you cross the picket line.

3.    If a union kicks a member out, can the union require that the employee be fired under a union security clause?

Only if the member is kicked out for refusing to pay his dues and initiation fees is he properly subject to discharge upon the union’s request.  But, if the employee is kicked out or denied membership for any other reason, such as failure to pay a union fine or attend union-sponsored events, his employment status cannot be affected by his membership status.

4.    Do I need to be a union member to tell management about a grievance or make a request?

No.

As an employee, assuming there is no union in your shop or that you are not a union member in the shop, you may approach management directly and tell them of your grievance, your requests or even your suggestions.  You do not need a union to act as a go-between unless it is required in a union contract.

5.    Although I’m not a union member I’d like to file a grievance against my employer.  Is there any way to do this?

Yes.

You may file a grievance against your employer under a union contract just as if you were a formal union member.  The union has a legal duty to fairly represent you whether or not you are a union member.

6.    What does this duty require the union to do?

This duty requires the union to treat all members of the bargaining unit fairly, union members and non-union members.  This normally means that the union cannot discriminate among members for arbitrary reasons, in seeking contract benefits, seniority protection or in processing grievances with the company.  This is known as the union’s duty of fair representation.

7.    What must the union do to satisfy the duty of fair representation?

A union meets its duty of fair representation if its decisions and actions are not arbitrary, discriminatory, in bad faith, perfunctory, or in some cases, grossly negligent.

V.  UNION DUES AND UNION POLITICS.

1.    A union has been certified or recognized as my exclusive bargaining representative.  Do I have to join the union or pay dues to it?

Twenty-eight  (28) states have right-to-work laws.  If your job is located in one of those states, you cannot be compelled to join or pay dues to the union.  They are: Alabama, Arizona, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Nebraska, Nevada, North Carolina, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia, Wisconsin, and Wyoming.

If your job is located in a state without a right-to-work law, your employer and the union can negotiate an agreement with a “union security clause.”  If your employer has agreed to such a clause, you can be forced to pay collective-bargaining dues to the union as a condition of your employment.  Other than paying initiation fees and periodic dues, you cannot be compelled to formally join the union or participate in union activities, such as attending union meetings.

2.    I know what union dues are, but what is a dues check-off?

A dues check-off is a system by which the employer deducts the union dues directly from the employee’s paycheck and remits the amounts to the union on a regular basis.  To be legal and valid, the employee must authorize the dues check-off in writing.

3.    Can I cancel my dues check-off?

Yes.

Your dues check-off can be canceled by you during a specific time period.  Usually the dues check-off is enforceable in periods for up to one year or until the expiration of the union contract with the employer, whichever occurs first.  The dues check-off form may provide for automatic renewal if the employee does not revoke the dues check-off within the appropriate time period.  However, the power to revoke and limitations on that power, depends upon the language of the dues clause of the contract.

4.    What are my union dues used for?

Part of your dues may go toward negotiation and administration of collective bargaining agreements, settlement of grievances, and arbitration. However, union dues are also used to pay the union’s other expenses—such as party politics, salaries, benefits, organizing other workers, social events such as cocktail parties, travel costs, stationery, union conventions, etc.

5.    Can the union use my union dues to support political candidates?

No.

Federal election laws prohibit a union from collecting dues money to support political candidates.  However, the union can legally use voluntary members’ union dues:

  1. to communicate with union members and their families;
  2. for non-partisan voter registration and to employ get-out-the-vote campaigns conducted by the union and directed towards union members and their families; and
  3. for the establishment, administration, or solicitation of contributions to a separate segregated political fund, or a PAC (“Political Action Committee”) as it is more commonly known.

Using these loopholes, a union can use your union dues to support a candidate, even if you don’t like that candidate.  Upon request, nonmembers can cut down the union fees to the union’s proven proportional cost of collective bargaining related activities at your office or plant.  The request must be in writing and delivered by certified mail to the union office.

6.    What can be done to stop political violations?

Contact an attorney and sue the union under state law.  If the violation involves a candidate for federal office, an administrative complaint may be filed with the Federal Election Commission.

7.    Do I have to contribute to my union’s PAC to retain my union membership in good standing?

No.  Federal election laws prohibit any coercion in the collection of campaign contributions.

VI.  GETTING RID OF A UNION • DECERTIFICATION.

1.    How do I get rid of my union?

First, you must file a petition which seeks to decertify the union.  This is called a Decertification Petition.  It is a one-page form that may be obtained from your local office of the NLRB or on its website.  The NLRB’s may be found in the telephone book in the U.S. Government section.  Request NLRB Form 502.

This petition, which can be filed by any individual, requests an election to determine if the union should continue to act as the representative of the employees.  The petition must be supported by a separate list of signatures comprising 30% or more of the employees in the bargaining unit.

Alternatively, you may present your employer a petition signed by more than 50% of the employees in the bargaining unit with a statement that the union no longer represents the employees in the bargaining unit.

Acceptable petitioner-list language would be:  “We, the undersigned employees of ABC Company no longer wish to be represented by the LMNOP union and we therefore request that you, our employer, stop recognizing the LMNOP union as our bargaining representative and the NLRB hold an election.”

2.    When can a decertification request be filed?

The general rule is a request may only be filed on or between 61 and 90 days prior to the expiration of an existing contract or anytime after the contract has expired, but before a new contract is signed.  The exceptions are:

  1. In health care institutions, a request must be filed between 90 and 120 days prior to the expiration of the contract;
  2. These time periods apply only to contracts of three years or less.  If the union contract is for more than three years, then the time periods are calculated from the three-year anniversary date of the first covered day;
  3. The NLRB will not hold a representation election in any unit in which a similar valid election has been held in the past 12 months;
  4. If no union contract has been signed and it has been more than one year since the last NLRB election, a request can probably be filed.

3.    How is a decertification petition filed?

A.  The NLRB provides a one page form (Form 502) which requires information concerning the unionized work force:

  1. A description of the bargaining unit.  This is a list of the jobs covered by the union contract.  The union contract usually spells out the jobs included.
  2. The number of workers covered by the union contract.
  3. Name and address of union and employer.
  4. Name and signature of one employee interested in holding a decertification election.

B.  A separate list of names, signatures, date of signing, and jobs of the employees interested in an election is attached to the official form.  This list must reflect support from at least 30% of the workers covered by the union contract.

This list of employee names is not given to the union or employer.

4.    Is that the only way to decertify the union?

No.  Another way to decertify the union is by your employer filing an Employer Petition for an Election.

This petition is filed by the employer requesting an election where one or more unions claim to represent the employer’s workers or when the employer has reasonable grounds to believe that the current union no longer represents a majority of employees.

Yet another way is for employees to put together an informal petition signed by a majority of the employees in the bargaining unit stating the union is not their collective bargaining representative and present it to the employer.  The petition should state that the employees want the company to stop dealing with the union.

5.    Do employees have the right to campaign against the Union?

Individual employees may mount an election campaign against a union by campaigning individually and by forming employee organizations.  Permitted activities include talking to other workers, distributing campaign materials, buttons, position papers, stickers, and other information why decertification is in the best interest of employees.

6.    When can employees begin to campaign?

A campaign can begin at any time—not just before the election is scheduled.  However, action cannot be undertaken while working on the clock.  Campaign activities may be conducted before and after work, on breaks, and during meal periods.

7.    What happens after the election?

If the union wins the election, the election result is usually binding for one year.  A petition for another election in the same bargaining unit will be dismissed if filed within one year.

  1. The union and the employer will hold meetings and negotiate for a contract which will cover the bargaining unit represented by the union.  However, the law does not require either the employer or the union to make any economic or workplace concessions or to grant any special benefits.
  2. Union employee-members of the bargaining unit will be given the opportunity to accept or reject the proposed contract negotiated between the union and the employer, only if the union constitution requires a ratification vote.

If the union loses the election, the employees are no longer represented by the union and individuals are free to negotiate their own employment contracts with the employer based on merit.

 

4 Responses to THE MOST ASKED LEGAL QUESTIONS BY EMPLOYEES

  1. my union wants me to go march but we are not on strike. i have a second job
    that my employer is not willing to let me stop working just to go and march with
    my union!! what can my union do? can they retaliate agains me?

  2. Joe Cotton says:

    Hello, I presently work for a maritime company as a management captain. The company is 50% management captains 50% union captain. The Union is preparing to strike. I have expressed safety concerns for my family if I cross the picket line, due to previous contract violence in other regions.
    The Company states that I will be terminated if I do not cross the picket line, what is my legal standpoint on this issue ?

    • National Labor Policy Staff says:

      As a member of management, the Labor Act would not protect your actions. You need to review your employment contract. Raise your safety concerns to management.

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