The Right To Organize

The Law, Employee Rights and how they affect Security Officers

Section 7 of the National Labor Relations Act grants employees right 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 mutual aid and protection." It is an "unfair labor practice" ("ULP") for management to violate these rights. ยง157. Right of employees as to organization, collective bargaining, etc.

Subchapter II - National Labor Relations

Employer unfair labor practices of the kind that occur typically in organizing campaigns are addressed primarily in two sections of the Act: Section 8(a)(1) and Section 8(a)(3).

Section 8(a)(1) says the employer may not "interfere with, restrain, or coerce employees" in the exercise of their rights.

Section 8 (a)(3) says the employer may not discriminate against employees with regard to the tenure of their employment or any terms or conditions of employment in order to discourage union activity or concerted activity.

In general, 8(a)(1)'s are threats and 8(a)(3)'s are the carrying out of the threats or the actual discrimination.

The following are some examples of employee rights and employer unfair labor practices.

Employee Right to Campaign for the Union

As a rule, employees have an absolute right to campaign for the union during non-working times in non-work areas. Most campaigning by employees takes place during breaks in non-work areas, and before and after work.

In those situations when talking about other non-work topics is allowed - employees may campaign orally for the union - even during work hours.

The right to distribute literature and to solicit cards may be somewhat more restricted. Employers can limit such activity to the employee's own time and to non-work areas. However, in most work situations, employers may not prohibit workers from wearing union buttons or t-shirts.

Any no-solicitation rules adopted by the employer may not discriminate against union activity. Any privileges given to anti-union committees should be given to pro-union employees. In addition, off-work employees must normally be allowed access to parking lots and entrance gates, except in special circumstances.

Access Rights of Organizers

Non-employee organizers can be barred from company premises in most circumstances, but organizers do have a first amendment right to distribute literature on public property.

Surveillance

Employers are prohibited from spying on employees engaged in union activity. It is also a violation to create the impression that surveillance is occurring.

Interrogation

It is an unfair labor practice for management to question employees about their union sympathies, although this does not apply to employees who are openly pro union, unless the atmosphere is coercive. For example, it is not objectionable for supervisors to debate a pro-union employee about why he or she supports the union. But to seek out and interrogate secret supporters is objectionable.

Threats

Although the employer may criticize and attack the union, even to the point of making untrue statements, it is unlawful for the employer to threaten to retaliate against employees for supporting the union. This includes threats to fire, layoff, close the facility, or take away benefits because the employees voted for a union.

Granting of Raises or Benefits

Special raise or new benefits given during a campaign, or promises of such, are unlawful if used as a bribe. However, it is rare for unions to file charges over such conduct.

Bargaining Order

If the company engages in a massive pattern of unfair labor practices, and the union can prove majority support at some point, the board may order the employer to bargain despite a union election loss. This referred to "Gissell" order. Domination or Support of Union

Employers may not provide support to a particular union or employee group as a way of discouraging independent union activity, nor can the employer fund anti-union committees.

Discharges and Other Discriminatory Actions

The employer may not discriminate against an employee to discourage union activity, by firing, laying off, demoting, or in any way discriminating with respect to the person's tenure of employment.

To prove such a violation of section 8 (a)(3) of the Act, the employee must demonstrate both of the following:

  1. Company knowledge of the employee's union activity;
  2. Anti-union motivation for the discrimination (The Board calls this "animus.")

The usual remedy for an unlawful discharge is reinstatement with back pay.

Retaliation for Testifying

It is a violation of section 8(a)(4) of the act to retaliate against an employee for participating in Board proceedings.

Supervisors

It should be noted that since supervisors are not covered by the Act, it is not unlawful for an employer to fire a supervisor for supporting the union. However, it is a violation of section 8(, I)(1) to fire a supervisor for refusing to violate the law.

Undocumented Workers

Undocumented workers are covered by the protection of the NLRB. It is in unfair labor practice for the employer to call in the Immigration and Naturalization Service to report pro union employees.