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Your Rights Retaliation for Union Activity

This page provides answers to the following questions:

1. I'm interested in working towards organizing a union at work. Is it illegal for my employer to retaliate against me for my union activities?

2. Which federal law(s) make it illegal to retaliate on the basis of an employee's union activity?

3. What types of activity are covered by the NLRA?

4. Which employees are protected from retaliation under the law?

5. Which employees are not protected under the NLRA?

6. Who is considered a "supervisor" under the NLRA?

7. What is considered an "unfair labor practice?"

8. How can I show that I was retaliated against in violation of the law?

9. What is considered to be "protected activity?"

10. What is "concerted activity?"

11. What is considered to be "mutual aid or protection?"

12. I've heard that when the boss starts to ask me questions about something that might get me in trouble, I have the right to have someone present. Is this true?

13. How do I tell my employer that I wish to take advantage of my Weingarten rights?

14. Am I entitled to Weingarten rights if I am not a member of a union?

15. Can an employee go too far: is some conduct not protected activity?

16. What if my employer doesn't know I am involved in trying to organize a union?

17. What is an "adverse employment action?"

18. How do I prove that the protected activity caused the adverse action?

19. How do I file a complaint?

20. Who enforces the law?

21. When must the complaint be filed?

22. What happens after I file the charge?

23. What are the remedies available to me?

24. Do I have other remedies?

25. Should I get a lawyer?

1. I'm interested in working towards organizing a union at work. Is it illegal for my employer to retaliate against me for my union activities?

For most workers, organizing a union is the only way to legally require an employer to negotiate in good faith over wages, hours and terms and conditions of employment. Without a union, employers are free to change the rules at any time, and do not have to be accountable to their workers for these changes. With a union, the parties have a duty to share relevant information, and bargain in good faith. Many employers spend a significant amount of money and effort to oppose union organizing drives.

Some employers, however, do more than spend money trying to persuade their workers to vote against unions. They might use threats, intimidation, or retaliation to make workers afraid of losing their jobs if they support the union. These measures, however, are illegal.

2. Which federal law(s) make it illegal to retaliate on the basis of an employee's union activity?

Congress passed the National Labor Relations Act (NLRA) in 1935. It was part of the New Deal era of reform. Congress stated its reasons as follows:

The denial by some employers of the right of employees to organize and the refusal by some employers to accept the procedure of collective bargaining lead to strikes and other forms of industrial strife or unrest?

Experience has proved that protection by law of the right of employees to organize and bargain collectively safeguards commerce from injury, impairment, or interruption, and promotes the flow of commerce by removing certain recognized sources of industrial strife and unrest, by encouraging practices fundamental to the friendly adjustment of industrial disputes arising out of differences as to wages, hours, or other working conditions, and by restoring equality of bargaining power between employers and employees.

It is hereby declared to be the policy of the United States to eliminate the causes of certain substantial obstructions to the free flow of commerce and to mitigate and eliminate these obstructions when they have occurred by encouraging the practice and procedure of collective bargaining and by protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection. 29 U.S.C. %26sect; 151

3. What types of activity are covered by the NLRA?

The NLRA states that employees have the right

to self-organization;

to form, join, or assist labor organizations,

to bargain collectively through representatives of their own choosing; and

to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection;

and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized [elsewhere in the law]. 29 U.S.C. %26sect; 157

Specific examples of the types of rights protected by the NLRA are:

Forming or attempting to form a union among the employees of a company.

Joining a union whether the union is recognized by the employer or not.

Assisting a union to organize the employees of an employer.

Going out on strike to secure better working conditions.

Refraining from activity on behalf of a union.

Attending meetings to discuss joining a union.

Reading, distributing and discussing union literature (as long as you do this in nonwork areas during nonwork times, such as breaks or lunch hours).

Wearing union buttons, T-shirts, stickers, hats or other items on the job at most worksites.

Signing a card asking your employer to recognize and bargain with the union.

Signing petitions or file grievances related to wages, hours, working conditions and other job issues.

Asking other employees to support the union, to sign union cards or petitions or to file grievances.

Signing a petition for improved wages, hours, or conditions.

Talking with coworkers about wages or working conditions.

The NLRA created the National Labor Relations Board (NLRB) to protect workers who organize unions, or engage in other protected concerted activity to improve working conditions. However, appointments to the NLRB are made by the president, so differences in political philosophy have meant that workers' interests have not always been foremost in the board's rulings.

4. Which employees are protected from retaliation under the law?

Because Congress passed the NLRA under its authority to regulate interstate commerce, workers must be engaged in interstate commerce to be covered.

"Commerce" includes trade, traffic, transportation, or communication within the District of Columbia or any Territory of the United States; or between any State or Territory and any other State, Territory, or the District of Columbia; or between two points in the same State, but through any other State, Territory, the District of Columbia, or a foreign country.

Examples of enterprises engaged in interstate commerce are:

A manufacturing company in Washington that sells and ships its product to buyers in California.

A company in Florida that buys supplies in North Carolina.

A trucking company that transports goods from one point in West Virginia through Pennsylvania to another point in West Virginia.

A radio station in Illinois that has listeners in Indiana.

Workers who handle the mail, the telephone, or other interstate communications, who work in the travel industry, or work with goods that are received from or shipped across state lines are all covered.

The NLRB has adopted a rule that any private employer with 15 or more employees is covered. The railway and airline industries are covered by the similar Railway Labor Act.

5. Which employees are not protected under the NLRA?

The NLRA excludes the following employees from the right to organize a union:

agricultural laborers,

domestic service workers,

independent contractors,

supervisors,

guards, and

confidential employees.

Many states have laws that provide collective bargaining rights to state and local government employees.

The Migrant and Seasonal Agricultural Worker Protection Act, 29 U.S.C. 1801 provides protections for agricultural workers, but not the right to organize unions. Some states, most notably California, provide that right by state law.

6. Who is considered a "supervisor" under the NLRA?

The term "supervisor" means any individual having authority, in the interest of the employer, to:

hire,

transfer,

suspend,

lay off,

recall,

promote,

discharge,

assign,

reward, or

discipline other employees, or

responsibility to direct them, or

to adjust their grievances, or

effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.  29 U.S.C. § 152(11)

Even if an employee is excluded as a supervisor from the right to engage in concerted protected activity, they are still protected from retaliation for participating in NLRB proceedings. For example, they cannot be fired for testifying about an unfair labor practice.

In September 2006, in a partisan 3-2 vote, the NLRB issued a ruling that expanded the scope of the "supervisor" exclusion. In Oakwood Healthcare, Inc., the NLRB said that permanent charge nurses in an acute care hospital, in assigning tasks to other employees, exercise supervisory authority, and therefore should be considered supervisors not eligible to be part of unions 348 NLRB No. 37 (Sept. 29, 2006). In a previous Supreme Court case known as Kentucky River NLRB v. Kentucky River Community Care, 532 U.S. 706 (2001), the Supreme Court criticized the NLRB's formerly more narrow interpretation of the term "independent judgment," opening the door for the NLRB to expand the definition of who is considered a supervisor.

Unions complain that the decision potentially takes away the federally protected right to form unions from 8 million nurses, building trades workers, newspaper and television employees and others.

7. What is considered an "unfair labor practice?"

In Section 8 of the NLRA, there are a number of illegal activities that are considered "unfair labor practices," or ULPs. ULPs are illegal whether they are engaged in by employers or by unions.

Examples of Employer Conduct Which Violate the NLRA Are:

Threatening employees with loss of jobs or benefits if they join or vote for a union or engage in protected concerted activity.

Threatening to close the plant if employees select a union to represent them.

Questioning employees about their union sympathies or activities in circumstances that tend to interfere with, restrain or coerce employees in the exercise of their rights under the Act.

Promising benefits to employees to discourage their union support.

Transferring, laying off, terminating or assigning employees more difficult work tasks because they engaged in union or protected concerted activity.

Examples of Union Conduct Which Violate the NLRA Are:

Threats to employees that they will lose their jobs unless they support the union's activities.

Refusing to process a grievance because an employee has criticized union officers.

Fining employees who have validly resigned from the union for engaging in protected activity following their resignation.

Seeking the discharge of an employee for not complying with a union shop agreement, when the employee has paid or offered to pay a lawful initiation fee and periodic dues.

Refusing referral or giving preference in a hiring hall on the basis of race or union activities.

These provisions mean that employers cannot fire or otherwise discriminate against workers because they exercised any of the rights guaranteed by the NLRA. Most obviously, it means that workers who try to organize a union cannot be fired for that reason. However, the law protects more than just union organizing. Non-union workers who circulate a petition to improve wages, or to get rid of a bad supervisor, are also protected since the petition is "concerted activity." For more information about concerted activities, see question 10 below.

8. How can I show that I was retaliated against in violation of the law?

To win a case of retaliation, you must be able to prove all four of the following elements:

That you took some protected activity, such as reporting a violation, testifying as a witness, or some other action to help enforce the law (although if you suffered retaliation because the boss mistakenly fingered you as the organizer, you may still have a claim);

That the employer knew or believed you took such protected activity;

That you suffered an adverse employment action; and

That the employer was motivated by your protected activity to impose the adverse action.

9. What is considered to be "protected activity?"

The NLRA protects the right of employees to:

organize unions;

bargain collectively,

engage in concerted activity, and/or

refrain from any of these activities.

So, when Norma Rae stood up and held a sign that said "union," she was protected from being fired for that act. Similarly, the worker who joins a negotiating committee and makes demands the boss thinks are too radical is also protected from retaliation.

10. What is "concerted activity?"

In its broadest protection for workers, Section 7 of the NLRA gives employees the right to engage in "concerted activities for the purpose of collective bargaining or other mutual aid or protection."

"Concerted" means two or more people acting together. So, if one worker asks for a raise, that is a solo action and not protected. But, if that same worker asks a co-worker to make the request together, that action has become concerted. It is well established law that a single employee's initiative to seek support from a coworker is concerted activity. According to the NLRB,

[T]he guarantees of Section Seven of the Act extend to concerted activity which in its inception involves only a speaker and a listener, for such activity is an indispensable preliminary step to employee self-organization. No union connection is required for employees to engage in concerted activity. Employees shall have the right to engage in concerted activities for their mutual aid or protection even though no union activity be involved, or collective bargaining be contemplated [and] a legitimate interest in acting concertedly in making known their views to management without being discharged for that interest. <i>Root-Carlin, Inc.</i>, 92 NLRB 1313, 27 LRRM, 1235, citing <i>NLRB v. City Yellow Cab Co.</i> (6th Cir. 1965), 344 F.2d 575, 582; <i>NLRB v. Guernsey-Muskingum Electric Co-Op, Inc.</i> (6th Cir. 1960), 285 F.2d 8, 12, and <i>NLRB v. Phoenix Mutual Life Ins. Co.</i> (7th Cir. 1948), 167 F.2d 983, 988, 6 ALR2d 408, cert. denied 355 U.S. 845, 93 L.Ed. 395.

A federal appeals court recently upheld the NLRB's ruling that the employer violated the NLRA when its managers orally instructed employees not to discuss their wages. <i>NLRB v. Main Street Terrace Care Center</i>, 218 F.3d 531 (6th Cir. 2000).

11. What is considered to be "mutual aid or protection?"

As to the "mutual aid and protection" requirement, it is well established that working conditions are a protected subject of concerted activity. For instance, the U.S. Supreme Court has recognized that concerted activity over a lack of heat is for mutual aid and protection.

Indeed, concerted activities by employees for the purpose of trying to protect themselves from working conditions as uncomfortable as these are unquestionably activities to correct conditions which modern labor management treats as too bad to have to be tolerated in a humane and civilized society like ours. <i>NLRB v. Wash Aluminum Co.</i> (1962), 370 U.S. 9, 50 LRRM 2235

Similarly, a desire to talk with co-workers about the quality of supervision, age discrimination in training, assignments and wages, and other workplace grievances are for "mutual aid and protection." Moreover, the conditions are within the control of the employer, although this factor is not required. Employees may engage in mutual aid and protection by lobbying over issues not within employer control. <i>Kaiser Engineers v. NLRB</i> (9th Cir. 1976), 538 F.2d 1397, 92 LRRM 3153.

12. I've heard that when the boss starts to ask me questions about something that might get me in trouble, I have the right to have someone present. Is this true?

The rights of workers to have a coworker present when the boss decides to question a worker are known as Weingarten rights, named after the first Supreme Court decision to recognize them, NLRB v. J. Weingarten, Inc. 420 U.S. 251 (1975)

Weingarten rights kick in whenever a supervisor asks a worker for information that might be used for discipline. If you are represented by a union, then you have a right to union representation at the meeting. Union members do not have the right to choose which union representative will be present. The union gets to pick its own representatives.

Why would you want a coworker to be present? A coworker's presence means you have a witness. If a dispute arises later about what the company asked, and how you responded, you will have a witness to relate what happened. The union representative or coworker, however, does not have to be a silent witness. They are permitted to confer with you before the interview to understand what is at issue, and to give you advice to help you keep your cool. Trained union representatives will have practiced coaching workers through these difficult confrontations. The representative can help the worker understand the charges, and give information that explains why discipline should not be imposed.

13. How do I tell my employer that I wish to take advantage of my Weingarten rights?

Workers have to ask for a coworker to be present to use their Weingarten rights. Employers have no duty to tell workers about their rights. Because it is stressful when your employer calls you in for questioning, some workers carry a card that reminds them of what they can say to invoke their Weingarten rights. The card can say:

I am now concerned that this interview could lead to discipline, or affect my personal working conditions. So, I respectfully request that a union representative or coworker of my choice be present at this meeting. Until he or she arrives, I choose not to participate in this discussion.

This statement could save your job.

14. Am I entitled to Weingarten rights if I am not a member of a union?

The law in this area is very unsettled. Currently, non-union workers do not have Weingarten rights, according to the NLRB.

Back in 2001, a court of appeals decision had extended this protection to employees in non-union workplaces (as long as the workers are ones who have a right to organize a union, not supervisors or independent contractors, for example). The D.C. Circuit Court of Appeals affirmed the 2000 decision of the National Labor Relations Board, <i>Epilepsy Foundation of Northeast Ohio</i>, 331 NLRB No. 92, affirmed as <i>Epilepsy Foundation v. NLRB</i>, 268 F.3d 1095 (D.C.Cir. 2001). However, the political composition of the NLRB changed with the latest presidential administration, and reversed its earlier decision. <i>IBM Corp. v. Schult</i>, 341 NLRB 148 (June 9, 2004). A federal appeals court will now again have to determine the future of Weingarten rights for non-union workers.

15. Can an employee go too far: is some conduct not protected activity?

Yes. If you get into an argument with a supervisor, and you punch the supervisor, you are not protected from being fired for punching the supervisor.

Courts have recognized that protected activity may be associated with "impulsive behavior." Employees cannot be disciplined for protected activity so long as it is lawful and the character of the conduct is not indefensible in its context. A key inquiry is whether the employee has upset the balance that must be maintained between protected activity and ship discipline. If the employee's behavior oversteps the defensible bounds of conduct, the employee can lose the protections of the law. For example, one employee lost after swearing at a supervisor, refusing to change conduct, and daring employer to fire the employee. So, it's important to keep your cool.

16. What if my employer doesn't know I am involved in trying to organize a union?

If your employer did not know that you were trying to organize a union, then the employer will argue that the decision to fire you could not have been in retaliation for that union organizing. Many employers use this reasoning to escape liability. Especially where workers are trying to organize under the boss's radar, it may be hard to prove employer knowledge of the protected activity. Still, the NLRB will use inferences to deduce who the employer may have suspected. If you were among a select few who had the courage to speak up, that might be enough for a judge to "infer" employer knowledge. Sometimes, the employer's investigation or interrogation of an employee can reveal employer knowledge of the protected activity.

To avoid this problem, some union organizers will announce their protected activities. For example, you could send the boss a letter (typically by certified mail) that says, "I plan to start talking with my coworkers about organizing a union." It could describe other protected concerted activities that you plan. This type of letter is called a "revealment" letter because it reveals who is organizing for the union. Certified mail has the advantage of creating a document that shows the date the employer received the item. If the retaliation occurs shortly after the organizing effort (say within six months, or sometimes longer), then the timing alone may persuade a judge that the employer's true motive was retaliation for your union organizing.

17. What is an "adverse employment action?"

The NLRB will not find retaliation unless the employer has imposed an "adverse employment action." Usually, any action that costs the worker money will be an adverse employment action. Discharges, of course, cost the victim money. So do demotions and denials of overtime, promotions, or benefits. Formal discipline is an adverse employment action.

Since Section 8(a)(3) of the NLRA prohibits discrimination, any difference in treatment that marks who the boss is against should be enough to trigger a finding of a ULP.

18. How do I prove that the protected activity caused the adverse action?

For you to win, the evidence must show that your employer was motivated to impose that adverse action because of your protected activity. This is called "causation." Causation can be proved either by direct evidence or by an inference.

Direct evidence is evidence that the employer was upset about the protected activity. If you or another witness saw a supervisor spout off about someone organizing, that is direct evidence of the employer's "animus" against that protected activity. Similarly, if the employer announces that whoever calls the union will be fired, or warns employees against talking to union organizers, that is direct evidence of animus.

A worker may have a strong case even without any direct evidence. In some cases, causation is obvious: the timing and personal animus make the retaliation clear...

The boss runs into the office yelling about the so-and-so who reported a violation of the law.

Norma Rae raises her hand and announces that she made the call. The boss fires her on the spot.

Everyone knows that it is illegal to fire someone just because they organize a union. When the employer knows that it is illegal to fire someone for a certain reason, they will usually try to cover it up. Still, advocates remain amazed at the cases where bosses put an illegal reason in writing, such as:

"We had to fire him because he circulated a petition against us."

"She discussed our wage policies with co-workers."

In other cases, unlawful retaliation can be inferred from timing (how soon it occurred after the employer learned about the protected activity), animus (the boss getting angry about the protected activity), deviation from normal practices (people are not usually fired for this reason, or in this manner), changing explanations, a pattern of adverse actions against those who speak up, or the use of false evidence.

19. How do I file a complaint?

The complaint, or charge, is usually made on a form, available online as a PDF file, called NLRB Form 501, "Charge Against Employer."

The charge must state the nature of the ULP, its date, and your claim about what motivated the employer. It must also name the company or individuals who committed the ULP, and provide their address or other contact information. It should not be a complete statement of all the evidence that supports the claim -- that will come later when the Board agent investigates. The charge should state the conclusions about what motivated the employer to commit the ULP.

For more information on filing a charge, see the NLRB's Procedures Guide.

20. Who enforces the law?

Unfair labor practices charges, which include retaliation charges, are investigated by the National Labor Relations Board, or NLRB. Charges should be filed with the NLRB office responsible for the area where your workplace is located. You can find your local NLRB office at: NLRB Offices Directory

21. When must the complaint be filed?

The time limit to file a charge against the employer for a ULP is six months. The law requires that the employer actually receive notice of the charge within the six months after the ULP. So, if you are close to the deadline, you should send the charge to the employer yourself, preferably by certified mail.

22. What happens after I file the charge?

When an unfair labor practice (ULP) charge is filed, the NLRB field office conducts an investigation to determine whether there is reasonable cause to believe the law has been violated. The investigator will typically interview the victim and write out an affidavit for the victim to sign. In some cases, they may interview and take statements from other witnesses. The investigator writes a report to the Regional Director who makes the decision about whether the case will proceed. If the Regional Director determines that the charge lacks merit, it will be dismissed unless the charging party decides to withdraw the charge. A dismissal may be appealed to the General Counsel's office in Washington, D.C., but dismissals are rarely reversed. There is no appeal from the General Counsel's decision.

If the Regional Director finds reasonable cause to believe a violation of the law has been committed, the region seeks a voluntary settlement to remedy the alleged violations. If these settlement efforts fail, a formal complaint is issued and the case goes to hearing before an NLRB Administrative Law Judge. The NLRB staff counsel will represent the Board in presenting the evidence of the ULP. There will be little for your personal attorney to do at the hearing. It is between the government and the employer. The judge will issue a written decision that may be appealed to the five-Member Board in Washington for a final agency determination. The Board's decision is subject to review in a U.S. Court of Appeals. Of the total ULP charges filed each year (about 30,000), approximately one-third are found to have merit -- of which over 90% are settled.

For more information, see Unfair Labor Practices Cases.

23. What are the remedies available to me?

Reinstatement, back pay and interest are the typical remedies awarded by the NLRB in retaliation cases. Section 10(c) of the NLRA, 29 U.S.C. 160(c)  The Supreme Court interprets Section 10(c), Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 898-99 (1984)." />, permits the NLRB to issue "an order requiring such person to cease and desist from such unfair labor practice, and to take such affirmative action including reinstatement of employees with or without back pay, as will effectuate the policies of [the NLRA]."

Unfortunately, the NLRB has rarely used its authority to venture beyond these minimal remedies. The former General Counsel of the NLRB has written an article calling on the NLRB to consider front pay, consequential damages, and daily compounding of interest. See NLRB Remedies: Where Are They Going? (alternate link).

The Board generally does not award damages for emotional distress, or reasonable attorney fees. It is not surprising, therefore, that few lawyers outside of the labor unions are handling retaliation cases at the NLRB. In exceptional cases where the employer has filed a lawsuit against an employee, the Board may award attorney fees where it finds that the lawsuit was brought in bad faith, outrageously, or has flouted the law. <i>Bill Johnson's Restaurants, Inc. v. NLRB</i>, 461 U.S. 731, 747 (1983) Still, the Board rarely uses this power to award attorney fees.

24. Do I have other remedies?

Some states may recognize that a discharge in violation of the NLRA is a wrongful discharge and allow you to sue for damages in state court. See, for example, the New Jersey Conscientious Employee Protection Act <i>N.J.S.A. </i> 34:19-1.

If your state permits private causes of action (lawsuits) for NLRA violations, you may consider whether to pursue the NLRB complaint, or go directly to state court. To learn whether your state permits this type of lawsuit, consult a lawyer licensed in your state.

25. Should I get a lawyer?

It is difficult for most lay people to collect all the useful evidence, organize it into a persuasive story, and comply with all the procedural rules to win a retaliation or whistleblower case. Some lawyers with experience will accept cases even when the client cannot afford to pay regular fees. If the lawyer has enough confidence in the client and in winning the case, the lawyer may accept the case on a contingent basis. The lawyer will then ask the judge to award fair attorney fees after the client has won a favorable decision. Clients will benefit from shopping around for a lawyer as soon as possible after the employer's first adverse action. Then the lawyer can help make sure the complaint gets filed on time and at the right place. The lawyer can also help make sure that the most important facts are disclosed in the first statement of the complaint.

When you shop around for an attorney, look for attorneys who have experience in employment matters. For more information, see our site's attorney resources page.

Still, having a lawyer is not required. In the NLRB, you can be represented by a union official, a paralegal, or anyone else of your choosing. Some claimants have won cases representing themselves. Until you have a written agreement with a lawyer for representation, it is your responsibility to make sure the time limits are met in your case.


The content on this page was provided by Richard Renner.

This page was updated on December 19, 2008



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