Unions: Shielding Members From Legal Consequences Or Not?

Unions are a fundamental right recognized in U.S. labor law and affirmed in the United Nations' Universal Declaration of Human Rights. They are an important way for workers to organize and negotiate with their employers over their terms and conditions of employment. However, employers often oppose unionization, and in 41.5% of union election campaigns, employers have been charged with violating federal law. This has led to the introduction of the Protecting Right to Organize (PRO) Act, which aims to reform current labor law and hold employers accountable when they violate the law. While unions provide workers with protection, they do not protect against breaking the law, and it is important for individuals to understand their rights and responsibilities when participating in union activities.

Union-security agreements

Outside North America and Western Europe, the legal status of union-security agreements varies widely. In New Zealand, as of 1988, a closed shop—where only union members are employed—was compulsory. In Mexico, a closed shop was mandatory until the early 1990s, when federal law changed to permit a union shop, agency shop, or no agreement. However, due to political ties between unions and the governing party, a closed shop is still the norm. In contrast, in Germany and Belgium, both the right to join a union and the right not to join a union are equally protected by law, and all forms of union-security agreements are banned.

In Australia, the legal status of union-security agreements has varied over time and across states and territories. While Australian labour law does not explicitly regulate these agreements, various forms have been favoured by different governments, effectively regulating the favoured type and disadvantaging other forms.

Union election interference

Unionising is a fundamental right recognised in US labour law and affirmed by the United Nations' Universal Declaration of Human Rights. However, employers often oppose workers' efforts to unionise, with some violating labour laws and others skirting the boundaries of legality to intimidate and scare off organising efforts.

The National Labor Relations Act (NLRA) makes it unlawful for an employer "to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed" under the Act. This includes threatening employees with loss of jobs or benefits if they join or vote for a union, threatening to close the plant if employees select a union to represent them, and questioning employees about their union sympathies in a way that interferes with their rights under the Act.

Employers are also prohibited from engaging in picket line misconduct, such as threatening, assaulting, or barring non-strikers from the employer's premises. They cannot seek the suspension, discharge, or punishment of an employee for not being a union member, even if they have paid or offered to pay initiation and periodic fees. Additionally, they must recognise a union that has uncoerced majority support, and they cannot refuse to bargain collectively with employees who choose to form a union.

The National Labor Relations Board (NLRB) may set aside an election if a party or a third party commits objectionable conduct that may have affected the outcome. This includes unfair labour practices, such as interfering with employee rights and discriminating against employees because of their union activities. It also includes conduct that impermissibly interferes with employees' ability to freely choose whether to be represented by a union, such as making untruthful campaign statements using forged documents.

Union retaliation

Union membership offers certain protections to workers, but it is important to remember that unions are also bound by the law. While unions can protect workers from unfair practices, they cannot protect workers who engage in illegal activities.

Federal law protects the right of employees to act together to address working conditions, and this includes the right to form or join a union. Under the National Labor Relations Act (NLRA), workers have the right to join with co-workers to improve working conditions and wages, with or without the help of a union. The NLRA applies to most workers in the private sector, but not all. Public-sector workers, such as school employees, county social workers, and firefighters, are covered by individual state laws. Independent contractors, supervisors, and managers are also excluded from labor law coverage.

Employers are not permitted to interfere with, restrain, or coerce employees in the exercise of their rights to form or join a union. Examples of illegal employer conduct include threatening employees with job loss or worse working conditions if they join a union, threatening to close the business if employees select a union, or promising benefits to discourage union support. Employers are also not allowed to retaliate against workers who file charges or participate in investigations conducted by the National Labor Relations Board (NLRB).

However, unions must also operate within the confines of the law. It is illegal for a union to retaliate against a member for filing charges or participating in an NLRB investigation. Union members have the right to be represented fairly and in good faith, without discrimination. Unions are not allowed to refuse to process a grievance because a member has criticized union officials or is not a full member. Additionally, unions cannot fine employees who have resigned from the union for engaging in protected concerted activities, such as crossing an unlawful picket line.

In summary, while unions can offer protections to workers, they cannot protect workers who break the law. Unions themselves are also subject to legal constraints and are not allowed to retaliate against members who exercise their legal rights.

Worker's rights

Workers have the right to self-organization, to form, join, or assist labor organizations, and to bargain collectively through representatives of their own choosing. This is guaranteed by the National Labor Relations Act (NLRA) and is also affirmed in the United Nations' Universal Declaration of Human Rights.

Despite these rights, employers often oppose workers' efforts to organize. In 41.5% of union election campaigns, employers are charged with violating federal law. Employers may threaten employees with the loss of their jobs or benefits if they join a union, or they may threaten to close the plant if employees select a union to represent them. They may also promise benefits to employees to discourage union support. All of these actions are illegal.

If a majority of workers want to form a union, they can select a union in one of two ways. If at least 30% of workers sign cards or a petition saying they want a union, the National Labor Relations Board (NLRB) will conduct an election. Alternatively, an employer may voluntarily recognize a union based on evidence that a majority of employees want it to represent them. Once a union has been certified or recognized, the employer is required to bargain over terms and conditions of employment with the union representative.

If you believe your rights have been violated, you should contact the NLRB promptly, generally within six months of the unlawful activity. The NLRB can order employers or unions to stop violating the law, and to provide remedial relief to employees whose rights have been violated. This could include rehiring an employee and paying lost wages and benefits.

It is important to note that the NLRA applies to most workers in the private sector but not all. Public-sector workers and some other groups, such as independent contractors, are excluded from NLRA coverage.

Union-related activities

The NLRA gives workers the right to self-organization, to form, join, or assist labor organizations, and to engage in collective bargaining. It also prohibits employers from interfering with, restraining, or coercing employees in the exercise of their rights. This includes threatening employees with the loss of their jobs or benefits if they join a union, or promising benefits to those who don't support a union. It is also illegal for an employer to retaliate against employees for filing charges related to these rights.

Despite these protections, it is important to note that union-security agreements, which require all employees in a bargaining unit to become union members and pay dues, have been banned in 27 states through the passing of "right to work" laws. These laws give employees the choice of whether or not to join a union and pay dues, even though the collective bargaining agreement negotiated by the union will still protect them.

Frequently asked questions