The National Labor Relations Act
The NLRA was enacted by Congress in 1935. It was hailed at the time and for many years after as the Magna Carta of America labor. Previously, employers had been free to spy on, interrogate, discipline, discharge, and blacklist union members. But in the 1930’s workers began to organize militantly. A great strike wave in 1933 and 1934 included citywide general strikes and factory takeovers. Violent confrontations occurred between workers trying to form unions and the police and private security forces defending the interests of anti-union employers. Some historians believe that Congress adopted the NLRA primarily in the hopes of averting greater, possible revolutionary, labor unrest.
The NLRA guaranteed workers the right to join unions without fear of management reprisal. It created the National Labor Relations Board (NLRB) to enforce this right and prohibited employers from committing unfair labor practices that might discourage organizing or prevent workers from negotiating a union contract.
The NLRA’s passage galvanized union organizing. Successful campaigns soon followed in the automobile, steel, electrical, manufacturing, and rubber industries. By 1945, union membership reached 35% of the work-force. In reaction, industrialists, and other opponents of organized labor sought to weaken the NLRA. They succeeded in 1947 with the passage of the Taft-Hartly Act, which added provisions to the NLRA allowing unions to be prosecuted, enjoined, and sued for a variety of activities, including mass picketing and secondary boycotts.
The last major revision of the NLRA occurred in 1959, when Congress imposed further restrictions on unions in the Landrum-Griffin Act.
The most important sections of the NLRA are Sections 7, 8, and 9. Section 7, is the heart of the NLRA. It defines protected activity. Stripped to its essential, it reads:
Employees shall 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 and protection.
Section 7 applies to a wide range of union an collective activities. In addition to organizing, it protects employees who take part in grievances, on-the-job protests, picketing, and strikes.
Section 8 defines employer unfair labor practices.
Five types of conduct are made illegal:
- Employer interference, restraint, or coercion directed against union or collective activity (Section 8(a)(1))
- Employer domination of unions (Section 8(a)(2))
- Employer discrimination against employees who take part in union or collective activities (Section 8(a)(3))
- Employer retaliation for filing unfair-labor-practice charges or cooperating with the NLRB (Section 8(a)(4))
- Employer refusal to bargain in good faith with union representatives (Section 8(a)(5))
Threats, warnings, and orders to refrain from protected activities are forms of interference and coercion that violate Section 8(a)(1). Disciplinary actions, such as suspensions, discharges, transfers, and demotions, violate Section 8(a)(3). Failures to supply information, unilateral changes, refusals to hold grievance meetings, and direct dealings violate Section 8(a)(5).
Section 8 also prohibits union unfair labor practices, which include, according to legal construction, failure to provide fair representation to all members of the bargaining unit.
Section 9 provides that unions, if certified or recognized, are the exclusive representatives of bargaining unit members. It prohibits the adjustment of employee grievances unless a union representative is given and opportunity to be present, and establishes procedures to vote on union representation. The NLRA sets out general rights and obligation. Enforcing the Act in particular situations is the job of the NLRB,
“Weingarten Rights” - Union Representation During Company Interrogations
ONE OF THE MOST VITAL FUNCTIONS OF A UNION steward is to prevent management from intimidating employees. Nowhere is this more important than in closed-door meetings when supervisors or guards, often trained in interrogation techniques, attempt to coerce employees into confessing to wrongdoing.
The rights of employees to the presence of union representatives during investigatory interviews was announced by the U.S. Supreme Court in 1975 in NLRB v. J. Weingarten, Inc. Since that case involved a clerk being investigated by the Weingarten Company, these rights have become known as Weingarten rights.
Unions should encourage workers to assert their Weingarten rights. The presence of a steward can help in many ways. For example:
- The steward can help a fearful or inarticulate employee explain what happened.
- The steward can raise extenuating factors.
- The steward can advise an employee against blindly denying everything, (hereby giving the appearance of dishonesty and guilt.
- The steward can help prevent an employee from making fatal admissions.
- The steward can stop an employee from losing his or her temper, and perhaps getting fired for insubordination.
- The steward can serve as a witness to prevent supervisors from giving a false account of the conversation.
Note: Charges alleging a violation of Weingarten rights are generally not deferred by the NLRB. Nor are violations considered “de minimus” even if no employee is disciplined.
What Is an Investigatory Interview?
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 a right to request union representation. Investigatory interviews usually relate to subjects such as:
- DAMAGE TO COMPANY PROPERTY
- FALSIFICATION OF RECORDS
- POOR ATTITUDE
- VIOLATION OF SAFETY RULES
- WORK PERFORMANCE
Shop-floor conversations. Not every management Initiated discussion is an investigatory interview. For example, a foreman may talk to a worker about the proper way to do a job. Even if the boss asks questions, this is not an investigatory interview because the possibility of discipline is remote. The same is true of routine conversations to clarify work assignments or explain safety rules.
Nevertheless, even an ordinary shop-floor discussion can change its character if the supervisor is dissatisfied with the employee’s answers. If this happens, the employee can insist on the presence of a union representative before the conversation goes any further.
Disciplinary announcements. When a supervisor calls a worker to the office to announce a warning or other discipline, is this an investigatory interview affording the worker a right to union representation? The NLRB says no, because the employer is merely answering a previously arrived-at decision and is not questioning the worker. Such a meeting, however, can be transformed into an investigatory interview if the supervisor begins to ask questions to support the decision . Note: An employer that has followed a past practice of allowing stewards to be present when supervisors announce discipline, must maintain the practice during the contract term. Refusing to allow a steward to attend would constitute an unlawful unilateral change.
Under the Supreme Court’s Weingarten decision, when an investigatory interview occurs, the following rules apply:
- Rule 1.The employee must make a clear request for union representation before or during the interview. The employee cannot be punished for making this request.
- Rule 2.After the employee makes the request, the employer must choose from among three options. The employer must either:
- a. Grant the request and delay questioning until the union representative arrives and has a chance to contact privately with the employee; or
- b. Deny the request and end the interview immediately; or
- c. Give the employee a choice of: (1) having the interview without representation or (2) ending the interview.
- Rule 3.If the employer denies the request for union representation, and continues to ask questions, it Commits an unfair labor practice and the employee has the right to refuse to answer. The employer may not discipline the employee for such a refusal.
Rights of Stewards
Employers often assert that the only role of a steward as an investigatory interview is to observe the discussion; in other words, to be a silent witness. The Supreme Court, however, clearly acknowledged a steward’s right to assist and counsel workers during the interview. Decided cases establish the following procedures:
- 1. When the steward arrives, the supervisor must inform the steward of the subject matter of the interview, i.e., the type of misconduct for which discipline is being considered (theft, lateness, drugs etc.).
- 2. The steward must be allowed to take the worker aside for a private pre-interview conference before questioning begins.
- 3. The steward must be allowed to speak during the interview. However, the steward does not have the right to bargain over the purpose of the interview.
- 4. The steward can request that the supervisor clarify a question so that the worker can understand what is being asked.
- 5. After a question is asked, the steward can give advice on how to answer.
- 6. When the questioning ends, the steward can provide additional information to the supervisor.
It must be emphasized that if the Weingarten rules are complied with, stewards have no right to tell workers not to answer questions, or to give false answers.
Workers can be disciplined if they refuse to answer questions.
You may be familiar with the “Miranda warnings” given by police. The Miranda warnings notify criminal suspects of their rights, including the right to a lawyer and to remain silent. Unfortunately, the Supreme Court did not impose a notice requirement in its Weingarten decision.
Employers have no obligation to inform workers of their right to request union representation. This is the union’s job.
Unions should explain Weingarten rights at meetings and in newsletters. A good way to get the word out is to distribute wallet-sized cards saying the following:
If this discussion could in any way lead to my being disciplined or terminated, or affect my personal working conditions, I respectfully request that my union representative, officer, or steward be present at the meeting. Without representation, I choose not to answer any questions.
On the other side of the card, print information about the union, such as office address, telephone number, and the names of officers. Tell members to present the card whenever they fear that what they say may affect their position.