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How to Form a Labor Union Q & A
What is a Labor Union?
A labor union is a collection of employees who organize to equalize the bargaining power between management and the employees. A labor union gives employees a collective voice and employers are more likely to listen to their grievances.
How is a Labor Union Formed?
A labor union can be formed in two ways: employees can either choose an existing union through an election or create their own. Creating a new union is very difficult; most of the time employees unionize by holding labor union elections. Either way, a union must be certified by the NLRB (a federal agency). The process is as follows:
Authorization Cards – An employee must first sign an authorization card to show his willingness to form a union. A union election requires at least 30% of the employees to sign the cards. Creating a new union requires a majority of the workers to sign the cards. Otherwise, a union cannot be formed.
Appropriate Bargaining Unit (ABU) – If there are enough signed authorization cards, they are sent to the NLRB for approval of a union election. The NLRB will only grant a union election if the employees are an ABU. This means that the employees have similar demands, hold similar positions, are non-management employees, and work in a close geographical area.
Certification – The NLRB will certify and preside over a union election if the above requirements are met.
How are Labor Union Elections Held?
The NLRB presides over a union election. NLRB employees make sure the election is fair and all voters are eligible. The NLRB then counts the votes and certifies the winning union as the bargaining representative of the voting employees.
How Can a UnionOrganizer Help Me?
Forming a union can be very difficult. Consulting a Union Organizer can help you understand what needs to be done to form a union. A Union Organizer / negotiator also can help you negotiate a contract with your employer.
Employees' Rights and Unions
What Rights Do I Have if I Want to Join a Union?
The federal government has enacted the National Labor Relations Act (NLRA) and the Board (NLRB) to protect pro-union workers.The NLRB investigates unfair union activities and holds confidential voting for unionization. Employees are free to organize, promote and join a labor union of their designation without fear of retaliation from employers.
Employers' Rights and Unions
What are My Rights as an Employer if My Employees Want to Unionize?
The formation of labor unions is governed by National Labor Relations Act (NLRA) of 1935. This Act secures workers’ abilities to bargain as a group instead of individually. The NLRA prohibits employers from firing and disciplining workers for trying to organize labor. For the most part, employers cannot ban or discriminate against pro-union employees. If the employees want to be represented by a Union, they are free to make that choice.
Employers must negotiate in collective bargaining if requested.
Both sides must negotiate in good faith, meaning that neither party can intentionally behave badly during negotiations.Employers cannot prevent employees from organizing.
What Changes Should I Expect if my Employees Unionize?
Depending on the contract that you have agreed to, a variety of things can change in the workplace. Most affected are wages, discipline and promotions. You can expect more uniform wages, structured vacation accrual and promotion timelines. Union contracts always have clauses that structure discipline procedures and termination, usually including hearings with Union Representatives.
Union Election Campaign
What is a Union Election Campaign?
Most of the time, employees choose to unionize by voting in a union election. A union election campaign is when different unions “campaign” to solicit votes among employees seeking a union.
Can Employers Prevent a Union Election Campaign?
Almost all employers will attempt to prevent their employees from unionizing. Employers cannot prevent a union from campaigning, but they can restrict it. Employers can lawfully interfere with union election campaigning by:
Time, place, manner restrictions – An employer can limit where, when and how union organizers campaign, as long as the restrictions are reasonable. For example, union organizers may only be allowed to campaign during lunch or break time.
Management campaigning – Employers can also campaign among its own employees. An employer has advantages over union organizers because it does not need to provide equal access to union organizers.
Are There Limits to What Management Can Do?
Though employers have great control, their authority is not limitless. The NLRB will carefully monitor an employer’s actions and prevent an employer from acting wrongfully. Here are a few things that employers cannot do to interfere with union election campaigns:
Threats or coercion – Employers cannot threaten, intimidate, or coerce employees to reject unionization. For example, an employer cannot threaten “if the union wins, I will shut this plant down.” Even “hidden” threats are not allowed.
False claims – An employer cannot make false claims. If an employer promises to do something to sway an employee’s vote, they must perform the promise.
How Can an Union Organizer Help Me?
There has been a considerable amount of litigation devoted to union election campaigns. An experienced Union Organizer can advise you of your rights, whether you are an employee or employer. If you think that either an employer or employee’s action violated union election laws, a Union Organizer can help you file a unfair labor charge with the National Labor Relations Board.
Right To Work Unions
What Are Right to Work Laws?
Right to Work laws grant employees the choice to decide for themselves whether to join or support a union in their profession. However, railroad and airline employees as well as some federal employees are not protected by these laws.
How Many Right to Work States are There?
There are 22 Right to Work states. They are:
• Alabama • Arizona
• Arkansas • Florida
• Georgia • Idaho
• Iowa • Kansas
• Louisiana • Mississippi
• Nebraska • Nevada
• North Carolina • North Dakota
• Oklahoma • South Carolina
• South Dakota • Tennessee
• Texas • Utah
• Virginia • Wyoming
Do I Have to Join a Union?
The answer to this question depends on where you work. If you are a government employee, public school teacher or college professor, you do not have to join a union. If you are a private sector employee, you may have to pay union fees if you live in a Right to Work state. If you work for a railroad or airline, you do not have to join a union but you may have to pay union fees.
If I Live in a Right to Work State, Can I Be Fired without Cause?
You cannot be fired without cause in any state. Right to Work laws do not allow employers to hire or fire without justification. Instead, the laws are intended to give employees the choice of whether to join or support a union, and in such states employees are guaranteed the right to not be fired if they decide not to join the union.
Employee Strikes
What is a Strike?
A strike occurs when a labor union cannot reach an agreement with the employer. Once the bargaining parties cannot agree, a union has the option to call a strike. If the workers agree, they leave their jobs and usually picket outside the company or plant to illustrate the employer’s unfairness. Nonunion employees cannot strike because only a union may legally call a strike.
What are My Rights as a Striker?
The right to strike is guaranteed by the First Amendment of the Constitution. Freedom of speech gives striking workers the right to picket and conduct other strike activities.
Can an Employee Strike Ever be Illegal?
Though union employees have a right to strike, not all strikes are legal. Here are some types of illegal strikes:
Violent strikes – no violence is allowed in any type of strike
“Sit down” strikes – A sit-down strike is when employees strike by staying in the plant and not working
Wildcat strikes – when a minority of workers calls their own strike. This kind of strike is illegal because only a union may call a strike
Picketing – employees can picket outside a company or plant; however, they cannot deny entrance to replacement workers or management
Secondary boycotts – a strike directed at someone other than the strikers’ employer
What's the difference between an economic strike and an unfair labor practice strike?
When employees strike under an UNFAIR LABOR PRACTICE (ULP) STRIKE the Employer CANNOT replace its workforce this strike is protected under the National Labor Relations Act
When employees strike under an economic strike employers have the right to continue business. Employers may find substitute workers and may even give them permanent positions.
How is a Strike Different from a Lockout?
A lockout is an employer’s version of a strike. A lockout occurs when the employer shuts down its company or plant. Lockouts are legal only if the employer can show some economic justification. This prevents employers from using lockouts to wrongfully pressure unions or employees.
National Labor Relations Act on Strikes
The Right to Strike. Section 7 of the Act states in part, "Employees shall have the right. . . to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection." Strikes are included among the concerted activities protected for employees by this section. Section 13 also concerns the right to strike. It reads as follows:
Nothing in this Act, except as specifically provided for herein, shall be construed so as either to interfere with or impede or diminish in any way the right to strike, or to affect the limitations or qualifications on that right.
It is clear from a reading of these two provisions that: the law not only guarantees the right of employees to strike, but also places limitations and qualifications on the exercise of that right. See for example, restrictions on strikes in health care institutions, page 32.
Lawful and unlawful strikes. The lawfulness of a strike may depend on the object, or purpose, of the strike, on its timing, or on the conduct of the strikers. The object, or objects, of a strike and whether the objects are lawful are matters that are not always easy to determine. Such issues often have to be decided by the National Labor Relations Board. The consequences can be severe to striking employees and struck employers, involving as they do questions of reinstatement and backpay.
It must be emphasized that the following is only a brief outline. A detailed analysis of the law concerning strikes, and application of the law to all the factual situations that can arise in connection with strikes, is beyond the scope of this material. Employees and employers who anticipate being involved in strike action should proceed cautiously and on the basis of competent advice.
Strikes for a lawful object. Employees who strike for a lawful object fall into two classes "economic strikers" and "unfair labor practice strikers." Both classes continue as employees, but unfair labor practice strikers have greater rights of reinstatement to their jobs.
Economic strikers defined. If the object of a strike is to obtain from the employer some economic concession such as higher wages, shorter hours, or better working conditions, the striking employees are called economic strikers. They retain their status as employees and cannot be discharged, but they can be replaced by their employer. If the employer has hired bona fide permanent replacements who are filling the jobs of the economic strikers when the strikers apply unconditionally to go back to work, the strikers are not entitled to reinstatement at that time. However, if the strikers do not obtain regular and substantially equivalent employment, they are entitled to be recalled to jobs for which they are qualified when openings in such jobs occur if they, or their bargaining representative, have made an unconditional request for their reinstatement.
Unfair labor practice strikers defined. Employees who strike to protest an unfair labor practice committed by their employer are called unfair labor practice strikers. Such strikers can be neither discharged nor permanently replaced. When the strike ends, unfair labor practice strikers, absent serious misconduct on their part, are entitled to have their jobs back even if employees hired to do their work have to be discharged.
If the Board finds that economic strikers or unfair labor practice strikers who have made an unconditional request for reinstatement have been unlawfully denied reinstatement by their employer, the Board may award such strikers backpay starting at the time they should have been reinstated.
Strikes unlawful because of purpose. A strike may be unlawful because an object, or purpose, of the strike is unlawful. A strike in support of a union unfair labor practice, or one that would cause an employer to commit an unfair labor practice, may be a strike for an unlawful object. For example, it is an unfair labor practice for an employer to discharge an employee for failure to make certain lawful payments to the union when there is no union-security agreement in effect (Section 8(a)(3). A strike to compel an employer to do this would be a strike for an unlawful object and, therefore, an unlawful strike. Strikes of this nature will be discussed in connection with the various unfair labor practices in a later section of this guide.
Furthermore, Section 8(b)(4) of the Act prohibits strikes for certain objects even though the objects are not necessarily unlawful if achieved by other means. An example of this would be a strike to compel Employer A to cease doing business with Employer B. It is not unlawful for Employer A voluntarily to stop doing business with Employer B, nor is it unlawful for a union merely to request that it do so. It is, however, unlawful for the union to strike with an object of forcing the employer to do so. These points will be covered in more detail in the explanation of Section 8(b)(4). In any event, employees who participate in an unlawful strike may be discharged and are not entitled to reinstatement.
Strikes unlawful because of timing--Effect of no-strike contract. A strike that violates a no-strike provision of a contract is not protected by the Act, and the striking employees can be discharged or otherwise disciplined, unless the strike is called to protest certain kinds of unfair labor practices committed by the employer. It should be noted that not all refusals to work are considered strikes and thus violations of no-strike provisions. A walkout because of conditions abnormally dangerous to health, such as a defective ventilation system in a spray-painting shop, has been held not to violate a no-strike provision.
Same--Strikes at end of contract period. Section 8(d) provides that when either party desires to terminate or change an existing contract, it must comply with certain conditions. If these requirements are not met, a strike to terminate or change a contract is unlawful and participating strikers lose their status as employees of the employer engaged in the labor dispute. If the strike was caused by the unfair labor practice of the employer, however, the strikers are classified as unfair labor practice strikers and their status is not affected by failure to follow the required procedure.
Strikes unlawful because of misconduct of strikers. Strikers who engage in serious misconduct in the course of a strike may be refused reinstatement to their former jobs. This applies to both economic strikers and unfair labor practice strikers. Serious misconduct has been held to include, among other things, violence and threats of violence. The U.S. Supreme Court has ruled that a "sitdown" strike, when employees simply stay in the plant and refuse to work, thus depriving the owner of property, is not protected by the law. Examples of serious misconduct that could cause the employees involved to lose their right to reinstatement are:
Strikers physically blocking persons from entering or leaving a struck plant.
Strikers threatening violence against nonstriking employees.
Strikers attacking management representatives.
The Right to Picket. Likewise the right to picket is subject to limitations and qualifications. As with the right to strike, picketing can be prohibited because of its object or its timing, or misconduct on the picket line. In addition, Section 8(b)(7) declares it to be an unfair labor practice for a union to picket for certain objects whether the picketing accompanies a strike or not. This will be covered in more detail in the section on union unfair labor practices.
Meal and Rest Breaks
Without a Union Can a Boss Dictate When Workers Can Take a Break?
Yes, an employer can tell workers where and when they can eat and drink on the job. In a majority of states employers must grant ten minute rest periods every four hours. However, no rest period is necessary if total daily work time is less than three and a half hours. No deduction from wages may be made for authorized rest time. If possible, a rest period should be in the middle of each work period.
What Are a Worker's Rights On Taking Lunch?
With the exception of the broadcasting and motion picture industries, the rule for meal periods is that no person may be employed for a work period of more than five hours without a meal period of not less than 30 minutes. However, the meal period may be waived by mutual consent if a work period of not more than six hours will complete the day's work. Unless the employee is completely relieved of duty, the meal period must be considered time worked. Also, if employees must eat on the premises, a suitable place for that purpose must be designated
Are Workers Injured During Lunch Or a Break Covered By Workers' Compensation Insurance?
If an employee is injured at lunch it is usually considered outside the scope of the employment relationship unless the employee was not completely relieved of their duties during the lunch hour. The nature and place of the injury are also strong considerations. An employee injured during a break is likely to be considered within the scope of employment and thus eligible for workers' compensation insurance.
Can a Boss Interrupt My Lunch Or Work Break For Work-Related Items?
This is an issue that depends mainly on the nature of the interruption. If the boss is interrupting a break to attempt to deny a worker their breaks and occurs regularly, then workers may have a grievance that they may present. In the event of an emergency or urgent work-related item that occurs very rarely, however, the boss is probably not wrong to interrupt a break.
What Type Of Claim Could I Make?
Denying workers breaks is a violation of Wage and Labor Laws which can create a great deal of trouble for the company with government authorities. However, the worker may also be able to claim back wages for as long as their breaks were denied, which may constitute overtime pay.
An employer may counter this, however, if a worker who eats at their work station and attempts to do work is ordered by the employer or by the human resources department to stop.
Wages and Overtime Pay
The Fair Labor Standards Act
Employee wages, hours, and overtime pay are generally covered by the Fair Labor Standards Act (FLSA). Under the Fair Labor Standards Act, employers are required to pay their employees a "minimum wage," and overtime wages when an employee works more than 40 hours in one week.
What Employees are Covered by the Fair Labor Standards Acts?
The Fair Labor Standards Act applies to:
Hourly employees
Commissioned employees or bonus based pay
Salaried employees
Minimum Wage
Generally, an employer must pay an employee at least $5.15 an hour for every hour the employee works. There are a few exceptions to this rule:
Employees in training – Persons in training can be paid less than minimum wage if the employer follows specific guidelines.
Tips – Additionally, employees receiving tips can be paid less than minimum wage if their tips and pay add up to at least $5.15 an hour.
In addition, each state has the option of raising the minimum wage about $5.15. For example, California has a minimum wage of $6.75.
How Overtime is Paid
Under the Fair Labor Standards Act, an employer is required to pay an employee 1.5 times their hourly wage for every hour the employee works over 40 hours in one week.
Example – If an employee is normally paid $10 an hour, that employee will be paid $10 multiplied by 1.5, or $15 an hour for the hours the employee works over 40 in one week.
Sometimes, employers will try to change the days an employee works in a week to try to avoid paying overtime to that employee. This is also prohibited under the Fair Labor Standards Act.
Types of Employment with Special Overtime Pay Requirements
Executives or "White Collar" Employees – employees on salary who fall within specific categories are not required to receive overtime pay if the salary includes some allowance for overtime. "White Collar" jobs include executives, doctors, professionals, some administrative employees and employees in managerial positions.
Government Workers – firefighters, police officers and other safety or emergency workers have specific rules for overtime pay because their workweeks are often more than 40 hours.
