Union Rights

What is the “at will” doctrine?

Most private sector employees can be fired “at-will,” meaning that employees can be fired at any time and for any reason with a few major exceptions, such as unlawful discrimination and retaliation. However, employers are much more limited in when and how they can discipline and fire workers covered by a union collective bargaining agreement. Generally, unionized employees can only be disciplined or terminated for just cause.

Do I have the right to form a union at work?

Private sector employees have the right to organize and join unions under federal labor law. The National Labor Relations Act (NLRA) is the federal law enacted in 1935 that governs the relationship between unions and private sector employers. The National Labor Relations Board (NLRB) is the government agency charged with the administration and enforcement of the NLRA.

Section 7 of the NLRA protects the rights of employees (both union and nonunion) to form a union, and to engage in “concerted activity for mutual aid and protection.” In other words, employees have the right to engage in activity on behalf of or with one or more coworkers with the goal of improving working conditions. Examples of activity protected by Section 7 of the NLRA include:

  • talking with coworkers about your wages and benefits,
  • circulating a petition asking for better working conditions,
  • participating in a rally for better working conditions, and
  • wearing a union button if other buttons are permitted.

Section 8 of the NLRA prohibits employers and unions from engaging in “unfair labor practices” or “ULPs.” That means it is illegal for employers to interfere with or restrain employees’ Section 7 rights. For example, it is illegal for employers to:

  • discipline, constructively discharge, or discharge employees for engaging in protected union activities;
  • threaten employees with adverse consequences, such as loss of benefits, or less favorable working conditions if they support a union or engage in union activity;
  • promise employees benefits if they refrain from supporting the union;
  • interrogate employees about their own or coworkers’ union sentiments or activities;
  • prohibit employees to talk about the union during working time, if they are otherwise allowed to talk about other non-work-related subjects;
  • surveil or create the impression of surveillance of employees’ union activities.

Unions can file charges against employers for engaging in unfair labor practices (ULP charges) within six months of the unlawful conduct.

What if I am a public sector employee?

North Carolina is one the few states in the country that prohibit the negotiation of collective bargaining agreements between public employers and employee unions. However, public employees still have the right to organize and join employee associations. Contact a labor attorney if you have specific questions about public sector organizing or if you are a public employee with employment issues.

What kind of process should unions have in place for dealing with employee grievances?

As a union representative, you should look to your collective bargaining agreement to see what procedures are required. You may then wish to set out a process for individuals to submit a grievance, including a uniform grievance form, set out internal investigation guidelines, and specify when and how decisions will be reached. Setting up new employee grievance procedures is complicated and should be done with the help of an experienced labor union attorney.

What kind of process should union representatives have in place when considering whether to arbitrate a case?

Arbitrating employee grievances can be expensive and risks setting bad precedent that will apply to future employment disputes. To decide whether to arbitrate a case, a union representative should carefully consider the odds of success, what the effect of a positive or negative decision will be on your union members (both now and in the future), whether this is an isolated dispute or a broader issue, and how expensive it will be to arbitrate it. Setting up a process for considering arbitration decisions is complicated and should be done with the help of a labor union attorney.

What should union representatives do if they are contacted by the NLRB about a labor charge?

The NLRB investigates claims of unfair labor practices against employers and unions, including claims that the union has failed to adequately represent an employee or failed to bargain in good faith. As a union representative, if you are contacted by the NLRB about a labor charge you should contact a labor union attorney right away. NLRB investigations and decisions can happen within a matter of weeks, so whether the labor charge is against your union or the employer, you want to be certain your interests are protected.

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