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Union Association and Employer Retaliation

Posted by Caleb A. Miller | May 03, 2022 | 2 Comments

So You Want to Speak to the Union?

Whether Union Membership is a good idea or not is entirely up to you. Unions are a business, and they are in the business of representing employees to their employers. The added pressure of  a Union behind you could force employers to provide greater wages or benefits to their employees, although there is no guarantee. No matter how many promises Unions make, an employer is always free to turn down any demands in compliance with the National Labor Relations Act ("NLRA") so long as they engage in good-faith negotiations. In fact, often times Unions negotiate and the employees end up with less wages. Some Unions, such as those associated with the movie production studios in Los Angeles, are notoriously well run and effective for their members. Others, not so much. Their first and primary goal is to maximize revenue in the form of dues, fines and assessments from their members. The large majority of that revenue will then be spent on efforts to acquire more members, to pay their own officers' salaries, marketing and political lobbying, and a small portion will be spent on the individual members. Where am I getting this information? The LM-2 of every single Union in the nation who are required to file them each year with the Office of Labor Management Standards. The LM-2 is a financial accounting that Unions file with the government that details every cent that comes in, and every cent that goes out. Best of all, it is publicly available and free to view. For employees who believe in merit-based promotions, freedom to work, file your complaint where you please, and not to have their hard-earned money donated to political campaigns or filling the pockets of corporate executives they do not support, then a Union may not be for you. Having said that, no employer has the right to retaliate against you for exercising your right to associate with a Union. 

What Protections do you Have?

Now that I have gotten my anti-Union bias out of the way, it is time to discuss the protections that employees have when associating with a Union or attempting to bring a Union into their workplace.  Union activities are an expression of a worker's right to freely associate and self organize with others. An employer who retaliates against an employee because of their involvement in union activities will be found in violation of California Labor Code section 923, which expressly states that it is against public policy for employers and employees to enter into contracts which either party agrees to join or not to join or remain a member of a labor organization or employment organization; or withdraw from the employment relationship because either party joins, or remains a member of a labor organization or an employment organization. 

What does that mean?

It means in California, a contract to promise to join or not join a union is not enforceable. The individuals must have the right to choose to do so. Californian's have a right to voluntarily enter into employment agreements, and also the right to self-organize, associate and designate representatives of the employee's choosing. Labor Unions are often used to represent the interest of an entire class of employees when negotiating employment contracts, benefits and other conditions with employers. With the Union's backing, Companies face not just the individual employee, but the entire Union and possibly the public when providing unsafe working conditions or drastically unfair wages for which they are capable of providing more for. I have personally seen situations where the Company and Union have stonewalled each other, leaving the employees without benefits or pay raises for YEARS. This is the downside of the Union. Once you bring them in, they are the SOLE representation of the employees, and you don't even have the right to negotiate new benefits or wages for yourself. If the company were to prpovide them without bargaining with the Union to do so, the Company would be in violation of the NLRA, so they then choose to do nothing for you. Aside the point, again, forgive my bias against Unions, I just hate effective marketing for ineffective products. 

As described in my Practice Area Page, Retaliation is a form of discrimination that can occur when an employee receives negative treatment from an employer because of that employee's decision to exercise some right afforded to them under the California Labor Code and Federal Law.  Cal. Labor Code section 98.6 prohibits all employers from retaliating, taking adverse action, or otherwise discriminating or harassing against an employee or job applicant because that employee files a complaint with their employer with the CAL. Division of Labor Standards Enforcement, participates in a civil suit or political activities against an employer. Furthermore, an employer who fires or terminates an employee because of their membership in a union can be found guilty of illegal retaliatory employment practices. It is important to understand that not only employers can be found guilty of retaliation under California state law. In fact, labor unions and employment organizations can also be deemed to have participated in retaliatory employment conduct.

I'm speaking with the Union and my Employer knows. Anything to watch out for?

During a Union Campaign, it is illegal for the Employer to make a promise or grant of new or additional benefits to deter you from speaking with the Union, they cannot threaten or intimidate you for speaking with the Union, and the employer cannot spy on Union supporting employees. The language used in the NLRA are the Union cannot engage in Unfair Labor Practices. A few examples of what is considered an “unfair labor practice” are: (1) interfering with, restraining, or coercing employees in the exercise of the rights guaranteed by the NLRA, (2) dominating or interfering with the formation or administration of a labor organization (3) discrimination in regard to hire or tenure of employment or any condition of employment to discourage membership in a labor organization. For other examples of what is considered an “unfair labor practice”, please consult Section 8 of the NLRA. Many employers will make employees afraid to lose their jobs through subtle messaging if they were to join a Union without an overt threat. Perhaps they are saving the employee from a headache of a relationship with the Union, (OK I'm done that was the last one). Either way, it is important you speak with a skilled labor attorney if you feel your employer has retaliated in any way against you for you Union association or sentiments.

The NLRA provides the following specific protections to employees: 

 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.
Does this Apply to Everyone?

No. Only Private Employers with 15 or more employees. There are additional exceptions from this rule such as domestic service workers and independent contractors among others. 

What are Some Examples of Retaliation From My Employer? 
  1. To start, you engaged in some form of protected activity, such as reporting a violation, testifying as a witness, associating or supporting Union movements or a member of a protected class, or some other action  to help enforce the law;
  2. The employer knew or reasonably should have known, or believed you took such protected activity;
  3. That you suffered an adverse employment action (failure to promote, failure to train, disparate treatment, demotion, job termination, reduction in scheduled hours, unfavorable shifts or job duties and many more);
  4. The Employer took such action due to your protected activity. 
This is Happening to me. What do I do Now? 

If you are supporting the union but are not currently a member of a Union, contact our office for a FREE consultation to discuss your case and the next steps to protect your job, and receive payment for any damages you have occurred as a result of this retaliation. The attorneys at Miller Wilmers APC have worked with Unions and against them to advocate on behalf of the individual. If you are currently a member of a Union, the first thing you would need to do is contact your local Union representative. They will file a grievance on your behalf per the rules of the collective bargaining agreement, a contract between the Union and the Employer that governs the relationship you have with your employer. Some Collective Bargaining Agreements may initially prevent you from filing a civil claim before giving the employer a chance to cure the issue. However, most of them do not prevent you from doing so. If you are unsure, or are not getting  a straight answer from your Union representative, come to our office for a FREE consultation where we will get ahold of the collective bargaining agreement and help you determine what the next steps are moving forward. 

About the Author

Caleb A. Miller

Caleb A. Miller is a Marine Corps Veteran and founder of Miller Wilmers, APC.


Kristina Reply

Posted Jun 04, 2022 at 13:40:06

Great read and a huge inspiration to those who want to make a difference in this world! Highly recommend Miller Wilmers, APC. Keep up the great work!

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