Know You Rights

Know your employee legal rights. You have the right to organize with other employees and ask for union representation. You have the right to NOT be harassed by your employer during an organization drive. You will not loose your job. If your employer breaks the law and fires you, lays you off, or eliminates your position, you have the right to fight back and have the IATSE back you up in your battle. Read through the articles below outlining the laws that are in place to protect you.

The right of employees to have union representation at investigatory interviews was announced by the U.S. Supreme Court in a 1975 case (NLRB vs. Weingarten, Inc. 420 U.S. 251, 88 LRRM 2689). These rights have become known as the Weingarten rights.

Employees have Weingarten rights only during investigatory interviews. An investigatory interview occurs when a supervisor questions an employee to obtain information which could be used as a basis for discipline or asks an employee to defend his or her conduct.

If an employee has a reasonable belief that discipline or other adverse consequences may result from what he or she says, the employee has the right to request union representation. Management is not required to inform the employee of his/her Weingarten rights; it is the employees responsibility to know and request.

When the employee makes the request for a union representative to be present management has three options:
(I) it can stop questioning until the representative arrives.
(2) it can call off the interview or,
(3) it can tell the employee that it will call off the interview unless the employee voluntarily gives up his/her rights to a union representative (an option the employee should always refuse.)

Employers will often assert that the only role of a union representative in an investigatory interview is to observe the discussion. The Supreme Court, however, clearly acknowledges a representative’s right to assist and counsel workers during the interview.

The Supreme Court has also ruled that during an investigatory interview management must inform the union representative of the subject of the interrogation. The representative must also be allowed to speak privately with the employee before the interview. During the questioning, the representative can interrupt to clarify a question or to object to confusing or intimidating tactics.

While the interview is in progress the representative can not tell the employee what to say but he may advise them on how to answer a question. At the end of the interview the union representative can add information to support the employee’s case.

On June 15, 2004, The National Labor Relations Board ruled by a 3-2 vote that employees who work in a non-unionized workplace are not entitled under Section 7 of the National Labor Relations Act to have a coworker accompany them to an interview with their employer, even if the affected employee reasonably believes that the interview might result in discipline.
This decision effectively reversed the July 2000 decision of the Clinton Board that extended Weingarten Rights to nonunion employees.

Duty of Fair Representation

The Duty of Fair Representation is the obligation, incumbent upon U.S. labor unions that are the exclusive bargaining representative of workers in a particular group, to represent all those employees fairly, in good faith, and without discrimination. Originally recognized by the United States Supreme Court in a series of cases in the mid-1940s involving racial discrimination by railway workers’ unions covered by the Railway Labor Act, the duty of fair representation also applies to workers covered by the National Labor Relations Act and, depending on the terms of the statute, to public sector workers covered by state and local laws regulating labor relations.

The duty applies to virtually every action that a union might take in dealing with an employer as the representative of employees, from its negotiation of the terms of a collective bargaining agreement, to its handling of grievances arising under that agreement, as well as its operation of an exclusive hiring hall and its enforcement of the union security provisions of a collective bargaining agreement.

Duty of Fair RepresentationThe statutory fight of exclusive representation mandates fair representation of all members of a bargaining unit. This obligation emanates from Section 5 of Chapter 150E. This section also provides for the processing of grievances by individual employees without interference from the Union, provided that the union has the opportunity to be present at any adjustment, and that such adjustment is not inconsistent with the provisions of the Agreement.

The duty requires that the Union represent the interests of all employees fairly and impartially. The Union may refuse to file or process a grievance for any number of reasons so long as they are valid; it may not arbitrarily refuse to process a meritorious grievance or decline to proceed to arbitration because of hostility to the grievant or irrelevant and invidious considerations. Thus, while no employee has a right to have his grievance processed or taken to arbitration if the Union determines, in its discretion, that it lacks merit, still the union may not refuse to process or go to arbitration on a meritorious claim simply because the grievant is widely disliked (or is a non-member). The right to speak for all employees in the bargaining unit carries with it the corresponding duty to protect them as well. Fair representation applies to negotiations, the decision to process or not process a grievance and the way in which a grievance is in fact processed, through arbitration.

A. Standard of Conduct

1. The exclusive agent’s statutory authority to represent all members of a designated unit includes a statutory obligation to serve the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct.
2. Neither negligence nor a mistake in judgement on the part of the Union will support a claim that a Union breached the duty of fair representation.
3. A breach of duty of fair representation occurs when the Union acts based on improper motivation or in a manner which is arbitrary, perfunctory or inexcusably neglectful.
4. 4. Since a Union will often be required to represent different and conflicting interest, it is allowed a wide range of reasonableness in fulfilling its statutory duties.

B. NegotiationsThe Union is allowed a wide range of reasonableness in serving the bargaining unit it represents, subject to good faith in the exercise of its discretion. Although ordinary negligence doesn’t amount to a breach, a lack of a rational basis for Union decision and egregious unfairness or reckless omissions or disregard for individual employees’ fights may constitute a breach.

C. Contract Administration

Arbitrariness or bad faith will not be inferred in the decision making process solely because the Union’s contractual analysis was unartful, unskillful, or erroneous.

D. Duty to Investigate

1. The investigation must be sufficient enough to permit the Union to make a reasoned judgement about the merits of the grievance, rather than an arbitrary choice.
2. Where the Union decides not to bring a grievance forward based on its interpretation of clear contractual language, the Union does not have to investigate because the facts are irrelevant.

E. Duty in Member vs. Member Conflicts

Subject to the standards of avoiding improper motivation, arbitrariness, perfunctory conduct or inexcusable neglect, the Union may lawfully interpret the contract in a manner which prefers the rights of one employee over another, even though it has a statutory duty to represent both.

In many cases of conflicting interests of employees, such as vacancies and layoffs, the Union must notify employees of grievances that may adversely affect their job rights and must investigate their competing claims in good faith. before deriding whether to pursue the grievances.

F. Sexual Harassment

A Union has the discretion to refuse to pursue a grievance protesting sexual harassment provided the decision is not motivated by sex discrimination or other hostility toward the grievant, and it is based on the Union’s assessment of the merits of the grievance after an investigation of the employees’ competing claims.

G. Grievance Summary Seven golden rules for Unions:

1) Consider all grievances solely on the merits; 2) Investigate each grievance promptly and vigorously; 3) Do not miss time limits; 4) Keep a record; 5) Keep the grievant informed; 6) Have a valid reason for any action; 7) If the grievance lacks merit, drop it. (NSO Contract).

H. Arbitration SummaryAvoid the following:

l) Failure to make a decision on whether or not to arbitrate;
2) Failure to notify the grievant of a decision not to arbitrate in time for the grievant to pursue other available remedies;
3) Refusing to arbitrate solely because of expense to the Association or hostility toward the grievant;
4) Poor quality of presentation (extreme negligence in investigating, extreme passivity in presenting the case);
5) Perfunctory handling of an arbitration case which effectively prevents any factual proof of the grievant’s position.

In order to be considered a breach of the duty of fair representation, conduct usually has to involve more than ordinary negligence.

You Cannot Be Fired

What Your Employer May Not Do During an Organizing Drive

Under Section 8(a) of the National Labor Relations Act, there are a number of actions that your employer and/or supervisors may not engage in, which constitute unfair labor practices (UPLs). These restrictions on the employer’s conduct are designed to protect and preserve your right to join a union under Section 7.

Section 8(a)(1) of the NLRA states that the employer may not:
“Interfere with, restrain, or coerce employees in the exercise of the rights guaranteed under Section 7.”

Employees are supposed to have a FREE CHOICE in deciding whether or not they want to use their right to organize. Any of the acts listed below constitutes a violation of the National Labor Relations Act, as Amended.

The Employer Cannot:

1. Attend any union meeting, park across the street from the hall or engage in any undercover activity which would indicate that the employees are being keep under surveillance to determine who is and who is not participating in the union program;
2. Tell employees that the company will fire or punish them if they engage in union activity;
3. Lay off, discharge, discipline any employee for union activity;
4. Grant employees wage increases, special concessions or benefits in order to keep the union out;
5. Bar employee wage increases, special concessions or benefits in order to keep the union out;
6. Ask employees about union matters, meetings, etc. (Some employees may, of their own accord, walk up and tell of such matters. It is not unfair labor practice to listen, but to ask questions to obtain additional information is illegal.);
7. Ask employees what they think about the union or a union representative once the employee refuses to discuss it;
8. Ask employees how they intend to vote;
9. Threaten employees with reprisal for participating in union activities. For example, threaten to move the plant or close the business, curtail operations or reduce employees’ benefits;
10. Promise benefits to employees if they reject the union;
11. Give financial support or other assistance to a union;
12. Announce that the company will not deal with the union;
13. Threaten to close, in fact close, or move plant in order to avoid dealing with a union;
14. Ask employees whether or not they belong to a union, or have signed up for union representation;
15. Ask an employee, during the hiring interview, about his affiliation with a labor organization or how he feels about unions;
16. Make anti-union statements or act in a way that might show preference for a non-union worker;
17. Make distinctions between union and non-union employees when assigning overtime work or desirable work;
18. Purposely team up non-union workers and keep them apart from those supporting the union;
19. Transfer workers on the basis of union affiliations or activities;
20. Choose employees to be laid off in order to weaken the union’s strength or discourage membership in the union;
21. Discriminate against people with disciplining employees;
22. By nature of work assignments, create conditions intended to get rid of an employee because of his/her union activity;
23. Fail to grant a scheduled benefit or wage increase because of union activity;
24. Deviate from company policy for the purpose of getting rid of a union supporter;
25. Take action that adversely affects an employee’s job or pay rate because of union activity;
26. Threaten workers or coerce them in an attempt to influence their vote;
27. Threaten a union member through a third party;
28. Promise employees a reward or future benefit if they decide “no union”;
29. Tell employees overtime work (and premium pay) will be discontinued if the plant is unionized;
30. Say unionization will force the company to lay off employees;
31. Say unionization will do away with vacations or other benefits and privileges presently in effect;
32. Promise employees promotion, raises or other benefits if they get out of the union or refrain from joining the union;
33. Start a petition or circular against the union or encourage or take part in its circulation if started by employees;
34. Urge employees to try to induce others to oppose the union or keep out of it;
35. Visit the homes of employees to urge them to reject the union.

If you believe that your employer has committed any of these unfair labor practices, please contact us immediately.