Questions you might have about the labor laws and answers to help you:

The following questions and answers are from The Labor Law Handbook by Michael Yates (South End Press, 1987).

Question 1: We are a group of workers who want to form a labor union. How do we go about doing this?

The first step is to contact an appropriate union. A good starting point is to look for a union which represents workers similar to yourself. Try to contact some of its members and ask them what they think of their union. When you contact a union, identify yourself and explain your situation. A good union will send an organizer who will meet with your group and explain the steps which must be taken to form a union. The organizer will answer your questions, explain what is legal and what is not during an organizing campaign, etc. Ask a lot of questions. You deserve to have the best union representation possible.

The National Labor Relations Act (NLRA) and National Labor Relations Board (NLRB) procedures cover the labor laws, which affect you and the formation of a union. The NLRA set forth the following general procedures for union formation:

1. You must show, usually by signing "union Authorization cards" that there is sufficient interest in unionization for the NLRB to call for an election. Generally 30 percent of the people in the bargaining unit as you define it must sign authorization cards to satisfy the NLRB. The union organizer will supply these cards.
   
2. Once the authorization cards have been signed, you can ask your employer to voluntarily recognize the union. If the employer agrees and the NLRB is satisfied that the union represents the will of the majority of workers, then the next step is to begin collective bargaining. Chances are, though, that the employer will not voluntarily recognize the union. In that case you must petition the nearest NLRB regional office for a union certification election.
   
3. Your employer can agree to an election immediately upon notice from the NLRB, but if it does not, the NLRB office will conduct an election hearing. First the presiding NLRB officer (called a hearing examiner) will check authorization cards to make sure that there is sufficient interest.
   
4. Next the NLRB will establish an election date and designate polling places. On the day of the election a NLRB officer will be at your workplace where he/she will set up a polling booth. The employer and the union have a right to assign poll watchers and to challenge any person whom they think should not be allowed to vote. Voting is done by secret ballot; the name of the union plus "no union" appears on the ballot. You must check one of the boxes for your ballot to be accepted.
   
5. If the union wins and there is no challenge to the election, the NLRB will then certify the union and bargaining can then commence.
   
6. The election may be challenged if one party accuses the other of unfair labor practices during the election. The NLRB or the courts can throw out an election and order a new one if they feel that unfair labor practices seriously affected the election's outcome.
   
7. It is possible that the NLRB will certify a union without an election if the employer's conduct is such that a fair election is impossible. For example, some employers create a climate of fear during an election campaign by firing, transferring, and/or demoting union supporters; by interrogating workers about their union sympathies or to find out who the leaders are; by threatening to close down the shop or even to physically harm the employees; by offering pay raises or bribes; etc. Such gross violations of the law have been occurring more and more frequently. In such cases the NLRB has the power to order certification for the union even if it loses the election, because a fair election is no longer possible.

Question 2: Can we talk about the union at work? 

Yes, but generally speaking, it must be during nonworking time. However, the National Lawyers Guild says, "If workers are allowed to talk while working, then they can also talk about organizing so long as it doesn't interrupt production or cause discipline problems."

Question 3: What about soliciting authorization cards and distributing union literature? 

This is all right, but it must be done in nonwork areas of the job site and during nonworking time. Again, the National Lawyers Guild says, "If there is a bulletin board for workers to post personal notices, they can use it to post organizing notices also. If workers are allowed to distribute literature about other kinds of subjects in work areas, then they can also distribute organizing literature."

Question 4: Can our employer refuse to let us wear union buttons?

No. This would be an unfair labor practice. An exception would be if this interfered with your job or was unsafe. Make sure the wording on the button or sign is "decent." ( Construction sites are not considered unsafe or affecting your job in this case).

Question 5: Can our boss ask us whether we are in the union or not? 

Private interrogation by a boss is an unfair labor practice. Be sure you write down and date what was said at any such meeting and try to get a witness who knew about the meeting. It is probably better not to refuse to go to a meeting because your boss could say he/she was not going to talk about unions.

If your boss asks you casually and not in private about the union, this may be an unfair labor practice. Of course, you do not have to answer the question. It would be an unfair labor practice to punish you for this.

Question 6: Can our employer force us to attend a meeting about the union? 

Yes, but only on work time. And, the employer will most likely say misleading things about the union. In fact, the employer can say just about anything about the union as long as he/she does not threaten you or offer you some benefit to vote against the union. There are many things which can be threats or promises. Your best bet is to write down everything that is said. If you think a threat was made, discuss it with the union to see if it would be wise to file a charge of an unfair labor practice.

Question 7: How can a union prove that employees were discriminated against because of union activity?

Sometimes the discrimination is so obvious that not much proof is required, although you should always keep notes of exactly what happened, when, and to whom. On the other hand, some cases are not so clear cut. In those instances the NLRB will decide. The NLRB uses the following guidelines in such cases:

1. The entire background, including anti-union activity.
2. Percentage of union members or leaders among the employees affected.
3. Admissions.
4. Statement of the discharging supervisor tending to show his state of mind.
5. Answers to complaints which do not deny the discrimination.
6. Failure to explain a discharge at a hearing.
7. Failure to call as witness's management representatives having personal knowledge of the reason assigned.
8. Effect of discharge on unionization- whether or not leading organizers and officials of the union have been eliminated.
9. Espionage directed toward identity of union members.
10. Extent to which the discharged employee engaged in union activity.
11. Relation in point of time of employer's action to employee's union affiliation or activity.

Question 8:Can an employer legally threaten to close the shop during a union organizational campaign?

If the purpose or effect of the threat is to deny workers their Section 7 rights under the National Labor Relations Act, then the threat is an unfair labor practice.

Question 9: We suspect that our employer is using an outside consultant to bust our organizing drive. How can we tell for sure? Can we do anything about it?

To help bust a union organizing campaign, employers commonly use union-busting consulting firms. For high fees, these consultants will either teach a company how to try to keep the union out or they will do the dirty work for the company. In many cases the consultants simply tell the company to violate the labor laws and then show them the best way to do it. In other cases they recommend that a company obey the letter of the law but violate the spirit. In either case the results are the same: workers are harassed, cajoled, and intimidated and may vote against the union.

It is not that difficult to spot the consultant's handiwork. Usually there will be a sudden change in the management's relation to its workers. Here are some things to look for:

1. A barrage of letters from the boss, all addressed personally to the employees, and all written in a certain format. The tone of the letters will be basically friendly. You will be told how well the company has gotten along with you in the past, how the employer's door is always open if you have complaints, how the company takes a personal interest in you and so forth. You will also be told, sometimes subtly and sometimes directly, that the union cannot and will not do much for you. The union will called an outsider, interested mainly in collecting your dues.
   Usually the letters distort the nature of collective bargaining, an effective technique when few of the workers have had any experience with it. You may be sent a card with all the things the union has said it would fight for in negotiations. Then you are asked to go to the union organizers and try to get them to give you signed guarantees that you will win all of these things. Of course, nobody could guarantee you these things, but neither would management. (Take a similar card to your boss and try to get him or her to sign it!).
   
   
2. Close personal supervision by your supervisors. Your immediate supervisors will be recruited to do the consultant's dirty work. They will watch people very closely to try to find out who the union supporters are. (Private interrogations are illegal, so if you are forced to meet privately, make a note of the time, place, and the nature of the conversation for a possible future unfair labor practice charge). Supervisors will make derogatory comments about the union and may begin to harass and intimidate you. The whole idea is to create a climate of fear and distrust.
   
   
3. New strict work rules which may limit the ability of workers to communicate with one another. For example, union supporters might be transferred to places where they cannot talk to coworkers.

So, if you suspect that your employer is using a consultant, there are several things that you can do. First, since many consultants either tell their clients to break the law or stop just short of breaking it, chances are your employer will commit unfair labor practices.

Probably the best tactic to use against consultants is publicity. There are a lot of effective things that can be said and done to counter the consultants. You can point out how much money the employer is spending on consultants, money that could be used to raise your wages and improve your working conditions. You can also picket the consultant's offices to make the public aware of what consultants do.

Question 10:What is meant by "at-will" employment?

"At-will" employment is the common law concept, pretty much unique to the United States, which gives an employer the right to fire a worker for any reason at all, that is, at the employer's will. Nearly all employees not protected by a union contract are at-will employees. Of course, an employer cannot fire a worker because of that worker's union activity or race, sex, creed, ethnic origin, or age. But in all other situations, unless protected by a union contract, most workers could be fired for any reason (e.g. appearance, demeanor, weight, sexual preference, whistle-blowing, etc.) or for no reason at all.