Retaliation for Union Activity/Collective Action
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?
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 are illegal.
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.
The NLRA states that employees have the right
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].
Specific examples of the types of rights protected by the NLRA are:
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 political differences in a given administration have meant that workers' interests have not always been foremost in the board's rulings.
The NLRA covers most employees in the private sector. It does not cover government employees, agricultural and domestic workers, independent contractors, workers employed by a parent or spouse, employees of air and rail carriers covered by the Railway Labor Act, and supervisors.
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.
The NLRA excludes the following employees from the right to organize a union:
Many states have laws that provide collective bargaining rights to state and local government employees.
The Migrant and Seasonal Agricultural Worker Protection Act, provides protections for agricultural workers, but not the right to organize unions. Some states, most notably California, provide that right by state law.
The term "supervisor" means any individual having authority, in the interest of the employer, to:
discipline other employees, or
responsibility to direct them, or
to adjust their grievances, or
effectively to recommend such action ⚖
A worker who has the authority to do these acts must do so with independent judgment, and not because it is of a merely routine or clerical nature. 29 U.S.C. 152(11). The NLRB has stated that responsibility to direct means the individual must be accountable for the performance of the task by the other [employee], for example, suffering a negative consequence from the employer when the tasks were not adequately performed by the other employee.
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 2001, in a case known as Kentucky River , the Supreme Court criticized the NLRB for its 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. In 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 who are not eligible to be part of unions . According to the NLRB, independent judgment means at minimum [to] act, or effectively recommend action, free of the control of others and form an opinion or evaluation by discerning and comparing data. The individual must have a certain level of discretion that goes beyond a routine or clerical nature. Unions argue 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.
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.
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.
Examples of Employer Conduct Which Violate the NLRA Are:
Examples of Union Conduct Which Violate the NLRA Are:
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.
To win a case of retaliation, you must be able to prove all four of the following elements:
The NLRA protects the right of employees to:
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.
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.
The National Labor Relations Board lists a number of examples of protected concerted activity:
- Talking with one or more co-workers about your wages and benefits, or other working conditions;
- Circulating a petition asking for better working hours;
- Participating in a concerted refusal to work in unsafe conditions;
- Joining with co-workers to talk directly to your employer, to a government agency, or to the media about problems in your workplace.
However, an employee can lose this legal protection by saying things about the employer that are egregiously offensive, or knowingly and maliciously false, or by publicly disparaging the employer's products or services without conveying complaints about any labor controversy.
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.
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.
When an employee seeks support from her co-workers to raise an issue with management, with that employee receiving the immediate benefit and not informing the co-workers about their mutuality of interests, that employee may still be engaged in concerted activity for the purpose of mutual aid or protection. The solicited employees have an interest in helping the aggrieved individual even if the individual alone has an immediate stake in the outcome because next time it could be one of them that is the victim. Fresh & Easy Neighborhood Market, Inc., 360 NLRB No. 12 (2014) (internal quotations omitted).
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.
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. However, the NLRB decided in IBM Corp., 341 NLRB No. 148 (2004), that a non-unionized employee does not have Weingarten rights, and thus does not have the right to have a co-worker present as a witness when the employer calls the employee in for an investigatory interview. 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.
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.
No. Under current law, non-union workers do not have Weingarten rights, according to the NLRB. In IBM Corp. 341 NLRB No. 148 (2004), the NLRB held that non-union workers do not have the right to a witness at an investigatory interview. Over the decades, the NLRB has gone back and forth regarding whether non-union employees have the same Weingarten rights as union workers. Changes to the NLRB's political composition, based on changes in presidential administrations, play a large role in explaining the uncertainty regarding Weingarten rights.
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.
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.
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.
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...
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:
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.
The complaint, or charge, is usually made on a form, available online as a PDF file, called NLRB Form 501, "Charge Against Employer." The form must be filed in a Regional Office within six months of the date of the incident. The NLRB suggests contacting an information officer at the employee's nearest Regional Office for assistance. A list of the NLRB Regional Offices can be found here.
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.
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 here
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.
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 (around 20,000-30,000), approximately one-third are found to have merit -- of which over 90% are settled. From October 2012 to September 2013, more than 70% of the ULP charges filed were either settled or withdrawn. For more information, see What We Do: Investigate Charges.
Reinstatement, back pay and interest are the typical remedies awarded by the NLRB in retaliation cases. The Supreme Court, in Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 898-99 (1984), ruled that Section 10(c) of the NLRA permits the Board 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?
In 2009, Congress failed to pass the Employee Free Choice Act. The legislation would have allowed the Board to award an employee with backpay, as well as twice that amount in the form of liquidated damages. This is known as treble damages- essentially awarding the employee with three times the amount of backpay. The bill would also require employers who either repeatedly or intentionally commit ULPs to be fined $20,000 for each ULP. Supporters of the bill argued that these remedies would deter employers from committing ULPs, given its greater financial punishment.
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. Still, the Board rarely uses this power to award attorney fees.
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 ("CEPA") . However, a New Jersey appeals court ruled in O'Donnell v. Nightlife, 2014 WL 1491415 (N.J. Super. Ct. App. Div. Apr. 17, 2014), that the NLRA pre-empted the plaintiffs' CEPA claims. According to the Supreme Court, any subjects arguably covered by the NLRA cannot be regulated by the states. In this case, the two plaintiffs claimed that their employer retaliated against them for exercising their collective bargaining agreement rights. Because the NLRA arguably covers issues relating to a collective bargaining agreement, the plaintiffs could not resort to New Jersey law to protect their rights.
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, Workplace Fairness suggests you consult a lawyer licensed in your state.
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.
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