What Are the Basic Rights of Employees?
Section 7 of the National Labor Relations Act and the Florida Constitution and the State of Florida labor laws under chapter 447 clearly states the rights of American workers: 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 or protection....
Section 7 also protects workers' rights to join labor unions which will best represent their interests and/or to take other collective action to defend their rights in the workplace. Taft-Hartley amended this section by adding that employees "shall also have the right to refrain from any or all such activities.
The act officially recognizes that under modem economic conditions "an individual unorganized worker is commonly helpless to exercise actual liberty," so that a worker must be free to organize collectively. As a declared national policy, the NLRA encourages collective bargaining, defines the rights of employees and employers in this process, and seeks "to eliminate certain practices on the part of labor and management that are harmful to the general welfare."
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Can Employers Oppose Union Activities?
The National Labor Relations Act places legal restrictions on the kinds of actions employers can take. Violations of this law are called unfair labor practices. In general, an employer unfair labor practice is any act which interferes with, restrains, or coerces employees in the exercise of their rights to organize which are guaranteed in Section 7 of the act. It is an unfair labor practice for an employer to discriminate or retaliate in any way against a worker for exercising his or her rights as a union member, or for taking lawful collective action around workplace issues. This applies to workers in both organized and unorganized workplaces, and covers all aspects of employment, such as hiring, firing, job assignment, promotions, benefits, and discipline.
Some examples of employer unfair labor practices are threatening to transfer or take other job action if a union is organized, questioning employees about union activities in an effort to intimidate them, harassing union activists, refusing to reinstate employees to open jobs or demoting a worker for testifying in support of a co-worker's grievance or complaint to the Public Employee Relations Commission.
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There Is No Labor Organization, Can One Be Started?
Yes, workers in any place of employment are free to start or join an existing organization It is an unfair labor practice for an employer to control or favor a particular labor organization.
Labor organizations must be free independent, and worker controlled.
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Is "Talking Union" Protected?
The right to form a labor organization is protected by the National Labor Relations Act. This means it is illegal for any employer to ban discussion about unions or to retaliate against a worker for trying to organize. Generally, a worker has the right to talk about organizing, and to pass out union membership cards. Handing out leaflets is legally protected as long as it is done on a worker's own time and in non¬ work areas like the cafeteria, locker rooms, or parking lot.
If a union election is to be held, employers may be required to provide the union with the names and addresses of workers who may be eligible to form the union. In addition, professional organizers may have the right to enter the workplace if it is open to other members of the public.
It is illegal for an employer to threaten or intimidate employees or try to bribe them with pay raises or other special benefits in order to discourage unionization. It is often difficult to prove all but the most flagrant abuses, and many management consultants are using subtle psychological techniques to defeat the purposes of the act.
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How Is the Labor Organization Formed?
The National Labor Relations Act and Florida Chapter 447 sets up a straightforward procedure for organizing. The first step is to demonstrate that a labor organization has support. This is usually done by "authorization cards" which are signed by workers who want to exercise their right to vote in an election as to the fact if they want to be represented by a union. Authorization cards are presented to the Public Employee Relations Commission as evidence of the workers' desire to join a labor organization.
If the employer sees that many of the employees have indicated a desire to join the union, the employer may voluntarily agree to bargain collectively with the organization and the process is complete. However’ this is hardly done.
Employers often do not voluntarily accept the signed cards as proof of union interest. There are many legal tactics available to employers to delay recognition of the union. When an employer refuses to voluntarily recognize the labor organization, the labor organization, any employee, or the employer may file a "representation petition" requesting an election with the Public Employee Relations Commission.
PERC determines if there is sufficient interest (30 percent of the work force having signed authorization cards) among the workers forming a union. If so, the commission will determine the potential bargaining unit and set the date for an election. Determining who should be in the bargaining unit is often a complicated and time-consuming process, with both the employer and the labor organization trying to increase their strengths. The basic test is that all unit members have a "community of interest" in terms of job responsibilities, wage rates, benefits, and other common aspects of work.
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How Is an Election Held?
PERC works to ensure a fair election. The election is run along the same lines as a presidential election. There are many rules surrounding an election and if an employer or union violates these rules, it is grounds for objections to the validity of the election or an unfair labor practice charge. "If the board determines that objectionable conduct has been committed, it will order a rerun election. If a union has obtained proper authorization cards from a majority of employees in the bargaining unit and the employer subsequently commits serious unfair labor practices precluding a fair election the employer may be charged.
The election is held by secret ballot and gives workers a choice between one or more unions and no union. If no choice receives a majority of the votes, a runoff election may be held.
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What Happens after the Election?
If over 50 percent of the employees voting choose to join a particular union, the organization is” certified" and the employer is required to bargain with the organization.
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If the Union Loses, Can There Be Another Election?
Yes, another election can take place a minimum of twelve months after the first election.
Cases where the PERC finds that the employer engaged in objectionable conduct, a rerun election will be ordered without the waiting period.
Grounds for Objection to Election:
After an election has been held, the losing party has 15days to file objections if it believes the election should be overturned. The PERC may set aside the results of an election for the following reasons:
- Threats or reprisals.
- Employee questioning, polling or surveillance.
Visiting of voters residences by the employer.
- "Captive Audience" speeches on the eve of election.
- Benefits and Inducements: Promises of benefits (e.g. wage increases if the union loses)
- Appeals to racial prejudice.
- Electioneering near the polls.
- Misrepresentation in pre-election statements.
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If the Union Wins, Can There Be Another Election?
Yes. After twelve months from the first election, another election can be held. Any worker or employee group can request it.
The methods for initiating and conducting an election to change the bargaining agent (union), or to return to "no representation," are the same as the original election. If the employees vote against the labor organization, it is "decertified," i.e., eliminated. However, if the union and employer have negotiated a contract within twelve months from when the union was certified, then no election can be held until after the expiration of that contract, or three years, whichever comes first. It is illegal for an employer to sponsor any action encouraging a union's decertification.
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Does the Employer Have to Bargain with the Union?
An employer is required to bargain in "good faith" with the certified labor organization representing the employees. Collective bargaining can be divided into several separate areas: the duty to meet and confer; the duty to bargain in good faith; and the duty to cover certain subjects. The employer is not required to agree to any particular contract provision, no matter how reasonable or fair it appears to the union. However, refusing to meet at reasonable times; refusing to discuss grievances; refusing to discuss wages, benefits, or other mandatory subjects of bargaining; "take it or leave it" bargaining; or attempts to make deals behind the backs of the negotiating committee would be unfair labor practices.
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Does the Employer Have to Give Information?
The National Labor Relations Act and Chapter 447 requires that an employer, upon request, supply the union with relevant information needed for bargaining. This means, for example, that the union can obtain the cost of wage and benefit packages from the employer during contract negotiations. A particularly significant rule is that a company claiming financial inability to meet a union's demands may be required to prove its claim by showing its financial records to the union.
In addition, the duties of the employer extend beyond the period of contract negotiations and can be an effective tool for resolving problems which arise during the life of the contract. For example, a union may be entitled to personnel records or other relevant information it needs to represent its member in grievance proceedings. The Public Employee Relations Commission has also held that an employer planning to subcontract work may be required to give the union the financial data on which it is basing its decision, and an opportunity to bargain over the decision. In some cases, the Public Employee Relations Commission has required an employer to provide the union with statistics on employment of women and minorities, which can be used to fight discrimination.
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What Is a Labor Contract?
A labor contract is a private agreement entered into by an employer and a labor organization for the purpose of regulating certain work-related issues. The provisions of the labor contract are binding on both sides for a mutually acceptable period of time and are enforceable through procedures such as the grievance procedure, arbitration, the National Labor Relations Board, or finally, state or federal courts.
This agreement takes the form of a legal contract for several reasons. Employees need to know in advance about wages, fringe benefits, discipline proceedings, and other matters. Employers need to know the same things, plus want protection from strikes for a certain period of time.
In the vast majority of cases both parties to the agreement comply with its contents and the law never enters the picture. In some cases serious abuses do occur, and workers may turn to the Public Employee Relations Commission or the courts to seek protection.
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What Are Mandatory Subjects of Bargaining?
Both the employer and the employee representative are required to bargain over wages, hours, and other terms and conditions of employment. II This has been defined over the years to include wages and fringe benefits, grievance procedures, arbitration, health and safety, nondiscrimination clauses, length of contract, management rights, discipline, seniority, and union security.
Wages, Hours, and Fringe Benefits
These provisions are the most important to the average employee. The wages and hours clauses are subject to legal limitations, such as laws concerning minimum wage (state and federal) and consecutive hours (overtime, and other pertinent laws).
Possible fringe benefits are limited only by the imagination of the workers. Usual fringes are vacations, holidays, pensions, and health insurance. Others are sick pay, severance pay, reporting pay, financial services, educational loans, and sabbaticals. All of these subjects are proper topics of the give and take of negotiations.
Health and Safety
An increasing number of unions are negotiating health and safety provisions into their contracts.
There is also a duty to bargain over elimination of discriminatory employment practices. A good non-discrimination clause can often provide the fastest remedy for a worker who is discriminated against by reason of age, race, sex, religion, disability, or national origin. This type of clause can be used as the basis for a grievance about any of these discrimination issues, including sexual harassment, discriminatory health benefits relating to pregnancy, or lower pay for traditionally women's jobs. "
Length of Contract
An important item of every contract is how long it will be binding. This is strategically important for both sides and often must be determined in light of the rate of inflation, the financial health of the employer, and other similar considerations. In Florida Chapter 447 states the length can be 1 to 3 years
Employers traditionally work to retain broad control over the operational activities of their business. Management rights usually include decisions such as corporate structure, production levels, and plant size. What is and what is not a "management right" is negotiable, and may be defined in the contract.
Contracts usually include a clause reserving the right of the employer to discipline workers by firing, suspension, notation on work records, and other forms of reprimand. Sing the Just Cause Standard means that the employer must justify ad have good cause to discipline and employee.Labor organizations traditionally try to limit this clause by requiring that "just cause" be shown for the discipline. Unions also work for procedural safeguards such as notice, hearings, and review in an attempt to protect the employee. These safeguards are often written in conjunction with the grievance procedure. The goal of the discipline clause is to insure that all facts are heard and that the punishment is not arbitrary or unfair.
The seniority clause is a method by which senior employees protect their jobs in work areas involving transfers, promotions, bumping, filling vacancies, and layoffs. Seniority rights can be established on a department or plant-wide basis and may be conditioned on the worker's ability to perform on the job. These clauses are often the most complicated in a contract and vary with the kind of work.
Union and management may negotiate a mutually agreeable means of union dues collection. The most convenient method is the “dues Deduction” in accordance with chapter 447. A system by which the company automatically deducts the amount from the employee's paycheck. Such a practice is negotiable.
Because contracts cannot foresee every problem that will arise at work, most collective bargaining agreements include the establishment of a mutually agreeable procedure to settle differences in contract interpretation. Furthermore, the grievance procedure is usually the means a worker has of enforcing the contract.
If the parties cannot agree on contract interpretation or proper enforcement, they may wish to call in an impartial outsider, or "arbitrator," to settle the question. This is only possible when an "arbitration clause" is negotiated into the contract. An arbitration clause provides an alternative to time-consuming lawsuits.
This category of contract language will often define how the arbitrator will be selected, who will pay what share, and what the arbitrator's scope of authority will be. Often, both sides will agree that the arbitrator's decision is final or "binding." This means the courts cannot review the arbitrator's decision unless it is clearly contrary to law.
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What Kinds of Acts Are Unfair Labor Practices?
Employers may be charged with Unfair Labor Practices if they attempt to deprive their workers of the right to form, join or assist a labor union; the right to bargain collectively through representatives of their own choosing; or the right to engage in "concerted activity" for the purpose of collective bargaining or other mutual aid or protection. Specifically, section 8(a) of the National labor Relations Act makes it unfair for the employer to prevent workers from exercising the above rights by:
Since the passage of the Taft-Hartley Act in 1947, labor organizations have been restricted in ways similar to employers. This amendment to the National Labor Relations Act makes it illegal for a union to:
- Interfering restraining or coercing their workers;
- dominating or seeking to control the union;
- discriminating against workers for union activity;
- discharging a worker who files a ULP or testifies to a ULP;
- refuses to bargain in good faith with a duly elected union.
In addition, a union cannot force a worker to use the union grievance procedure, although it may have a representative present at the grievance meeting. Any worker who wants to try to settle a problem directly with the employer may do so unless specifically prohibited by the bargaining agreement. However, in Florida the individual employee must get authorization form the certified bargaining agent (union)
- coerce people to become union members;
- use threats, intimidation, or violence;
- force an employer to punish a worker because he/she doesn't get along with the union;
- charge excessive union dues;
- refuse to bargain in good faith with the employer.
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Can a Union Punish Employees Who Disagree with Union Policy?
Unions commit an unfair labor practice if they "restrain or coerce" any organization rights of employees. For example, if an employee seeks to decertify a bargaining unit (i.e., kick out the union by a new election), there is nothing the union can legally do to get the worker fired or to harm his or her job status.
A labor organization does have broad power to make and enforce its own rules, and such rules can provide for fines or expulsion from membership for anti-union activity. However, these sanctions are totally internal affairs.
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What Is the Union's Responsibility to the Members of the Bargaining Unit?
The union must represent all the workers in the bargaining unit fairly and equally. In Florida according to chapter 447 the union is only required to process grievances and represent workers who are dues paying members of the certified union This is known as the duty of fair representation, and a union which violates this duty may be subject to an unfair labor practice charge or lawsuit by an aggrieved member.
A union can meet its responsibilities under the duty of fair representation by representing everyone in the bargaining unit equally, handling similar cases consistently, investigating each grievance and problem thoroughly, keeping written records, observing time limits, and maintaining an internal process of appeal.
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What If the Union Violates the Duty of Fair Representation?
An employee who has been treated unfairly by his/her union can file an unfair labor practice charge with the Public Employee Relations Commission or sue the union and/or employer in state or federal court. Before the board or courts will hear such a claim, the employee must do all he/she can through the contract's and union's procedures. If the board or courts uphold an employee's charge of unfair treatment by the union, lost pay, reinstatement, or other compensation can be awarded.
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What If an Unfair Labor Practice Has Taken Place?
Any employer, employee, or group of employees may file an unfair labor practice charge with the Public Employee Relations Commission.
If anyone believes a violation has occurred, he/she should write to:
State of Florida
Public Employee Relations Commission
4050 Esplanade Way
Tallahassee, Florida 32399-0950
This office will send the appropriate forms and information to file a formal charge. The formal charge must be filed and served on the charged party within six months of the violation and contain a brief general description of what happened. Under the NLRB rules, the charging party has the responsibility for insuring that the charge is timely served on the charged party. Any employee, whether in a union or not, may file. No lawyer is required and there is no filing fee or other cost to the employee.
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What Will Happen After the Charge is Made?
PERC will investigate the charge. This will involve determining jurisdiction, researching the facts of the case, and interviewing workers, union representatives, the employer, and other witnesses. The employer or labor organization is guilty of an unfair labor practice if it interferes with the investigation.
If PERC feels a violation did take place, it will issue a complaint to the charged party. The charged party can demand a hearing, which is much like a trial. The decision of the hearing can also be appealed. Of course, the problem may be solved informally at any point along the way.
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What If an Unfair Labor Practice Has Been Determined?
If PERC finds that an unfair labor practice has been committed by either an employer or a labor organization, it has the power to order the practice stopped and to compensate the victim.
Common remedies ordered by the board include reinstatement to a job with or without back pay, ordering new elections, or requiring employers to post notices concerning the rights of their employees. Each party has the right to appeal any of these orders, and it often takes years before a case is resolved.
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What Other Laws Protect the Rights of Union Members within Their Unions?
The Landrum -Griffin Act (officially called the Labor-Management Reporting and Disclosure Act of 1959) is the basic federal law protecting individual rights of union members. It contains a "bill of rights" for union members and sets up procedures for union elections, discipline, and financial reporting.
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Who Is Covered by the Landrum-Griffin Act?
The Landrum-Griffin Act applies to all members of unions in the private sector and to those federal, state, or local government employees who belong to unions representing both public and private employees.
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Must a Union Be Run as a Democracy?
Yes. The Landrum-Griffin Act insures all union members a voice in the affairs of the union. Employees have complete freedom to "express any view, arguments, or opinions" at union meetings or functions without punishment. This includes the right to hand out leaflets to other union members or to seek publicity, as long as the union member doesn't advocate supporting a rival union or breaking the contract with the employer. Freedom of assembly is also protected. Union members may meet outside of regular union meetings and discuss union affairs without fear of reprisals from union officials.
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