Workplace and the Law

THE LEGAL RIGHTS AND OBLIGATIONS OF UNION STEWARDS

The National Labor Relations Act

The federal law that governs labor-management relations in the United States is the National Labor Relations Act. (NLRA). Enacted in 1935, the NLRA grants all workers in the private sector the right to:

(1) form, join or organize a labor union without management interference of retaliation;
(2) bargain collectively through representatives employees choose, not management; and
(3) participate in collective actions in support of bargaining, grievances, organizing or other workplace problems (Sec. 7, 8 and 9 of the NLRA)

Under the law, management interference and retaliation in these rights is considered illegal and unions may file an unfair labor practice against the employer for their illegal activity. The National Labor Relations Board (NLRB) enforces the NLRA.

The Equality Rule

Because the purpose of the NLRA is to equalize the power relations between workers and their employers, the law gives special rights to union stewards and union officers when they are engaged in representation activities. In official meetings between labor and management, stewards and union officers are considered equals with management.

The equality rule applies when a steward acts in his or her representational capacity, not when a steward acts in his or her own individual capacity.

The NLRA Protects Stewards and Grievants from Management Retaliation

The NLRA protects both employees who file grievances and the stewards who act on their behalf from management retaliation. The grievant and his/her steward may not be retaliated against, threatened, or harassed because of their good-faith grievance activity. Examples of employer unfair labor practices include: using harsh language to intimidate a grievant or steward , increasing a penalty because a grievance is filed, or laying off an employee for pursuing a grievance.

It is illegal under the NLRA for an employer to retaliate against stewards for doing their job. Employer unfair labor practices include: ordering a steward to perform greater or more difficult work, denying a steward pay or overtime opportunities, segregating stewards from other employees, enforcing rules more strictly against a steward, overly supervising a steward, holding stewards up to a higher standard than other workers.

Duty of Fair Representation

The NLRA requires all stewards to fairly and equitably represent all employees in a bargaining unit without regard to membership, religion, nationality, age or sex.

The Right to Information

Under the NLRA, employers must furnish unions with information relevant to collective bargaining and contract enforcement. Stewards may request information to: monitor compliance with the contract; investigate whether a grievance exists; prepare for a grievance meeting; decide whether to drop a grievance or move it up the ladder; prepare for an arbitration hearing.

Weingarten Rights: The Right to Union Representation in Investigatory Meetings

A critical role for union stewards is to prevent management from intimidating employees in face-to-face meetings or telephone conversations. The NLRA gives employees the right to have a union representative present during an investigatory interview where they are being questioned and where they have a reasonable belief that discipline or other adverse consequences may result from what he or she says. These rights are know as Weingarten Rights after the NLRB case in 1975 initiated by the then Retail Clerks International Union.

During an investigatory interview, the steward has the right to speak during the interview, to counsel the employee, to interrupt, to object or ask a question or request a clarification, and provide information to justify the employee’s conduct.

In 2000, the NLRB extended this right to all workers covered under the NLRA. Under the ruling, workers have the right to have a trusted co-worker present for any conversation, discussion or meeting during which, in the worker’s opinion, a manager or supervisor may ask about any matters that may lead to their discipline or termination.

THE LAW AS A STEWARD’S TOOL

Sometimes a Steward forgets the fact that there are various laws and agencies that exist which will aid in helping them do their job. Always look beyond the contract to find rights that can be used to add clout in arguing a grievance. This section contains an outline of some federal laws that have an impact on Local 23 members.

This overview is presented so that stewards may familiarize themselves with the law in order to gain a basic understanding of the rights employees have in the workplace.

Stewards or members who have questions about the law or who believe their rights are or have been violated should immediately contact there union representative.

RACE DISCRIMINATION

Title VII prohibits racial discrimination against employees and applicants for employment as to all working conditions, including wages, promotions and demotions. Title VII also requires employers to maintain a work environment free of racial harassment. Hence, an employer can be liable for failing to prevent co-workers from racially harassing an employee. Race discrimination includes discrimination against someone on the basis of skin tone, having lighter or darker skin, or possessing more African or Caucasian features. In addition, race discrimination includes discrimination on the basis of the race of one’s spouse or one’s involvement in causes associated with a particular race.

SEX DISCRIMINATION AND SEXUAL HARASSMENT

Title VII prohibits sex discrimination against employees and applicants for employment as to all working conditions. It is unlawful to classify a job as “female” or “male” or express a preference for either unless gender is a bona fide occupational qualification (sometimes called a “BFOQ”). Where a particular job position requires a particular sex – the preference is lawful.

Sexual harassment is a type of sex discrimination and is defined as “unwelcome sexual conduct that is a term or condition of employment”. There are two kinds of prohibited sexual harassment. The first is where “submission to or rejection of [unwelcome sexual] conduct by an individual is used as the basis for employment decisions affecting such individual.” This is referred to as Quid Pro Quo Harassment. This kind of sexual harassment includes, for example, a boss refusing to promote an employees unless he/she has sex with the boss. The second kind of sexual harassment is unwelcome sexual conduct that causes an “intimidating, hostile or offensive working environment” or “unreasonably interferes with an individual’s job performance.” This is referred to as Hostile Environment Harassment. This kind of sexual harassment includes the conduct of supervisors, co-workers, or even customers who create a hostile environment where the employer knows of or should know of the situation and fails to correct it.

WAGE AND HOURS

Where To File: File charges with the Department of Labor, Wage and Hour Division.

When To File: Charges must be filed within two years, three years for willful violations by an employer.

The Fair Labor Standards Act (FLSA) requires among other things, a minimum hourly wage and requires the payment of overtime at time and one-half an employee’s regular rate for all hours worked in excess of 40 hours per week. Working off the clock would be considered a violation of the Act. Not all employees are covered by the FLSA and the Act has complicated rules creating exemptions and exceptions to coverage. As a rule of thumb, employees with jobs of a primarily administrative, executive, or professional character are not covered; that is, jobs involving office and non-manual work, limited and only general supervision, and considerable independent judgment and discretion are not covered by the FLSA.

AGE DISCRIMINATION

Where To File: File charges with the EEOC.

When To File: Charges should be filed within 180 days of the discrimination.

The Age Discrimination in Employment Act (ADEA) prohibits employment discrimination on the basis of age against employees and applicants for employment who are 40 years of age or older. Certain groups of employees are exempt from ADEA coverage; they are high-level managers in “bona fide executive or high policy-making positions” under certain circumstances, public safety personnel (e.g., police, firefighters, prison guards), tenured employees at colleges and universities, and uniformed employees of the armed forces. The bona fide occupational qualification is a defense to a claim of age discrimination.

Note that employers are required to post in the workplace notices of workers’ rights under the ADEA. Such notices are provided by the EEOC and should be posted in “conspicuous places.”

ADEA coverage is limited to private employers of 20 or more workers, state and local governments, and labor unions of 25 or more members.

FAMILY AND MEDICAL LEAVE ACT
(Short Recap)

The Family and Medical Leave Act (known as the FMLA) was passed in 1993. It covers private-sector employers with 50 or more employees and all state and local governmental agencies. It is enforced by the U.S. Department of Labor Wage and Hour Division.

The FMLA guarantees employees up to 12 weeks of unpaid leave each year to:

  1. Care for an immediate family member (spouse, child or parent) with a serious health condition.
  2. Care for a newborn child, newly adopted child or newly placed foster child
  3. Treat or recover from a serious health condition (a term which includes long-term and chronic conditions as well as injuries, illnesses and mental conditions causing incapacities of more than three consecutive calendar days with continuing treatment by a health care provider.

The FMLA supersedes contract provisions which provide for less than 12 weeks time off. Leave requests for FMLA purposes must be granted including the allowance of part-time or reduced-week schedules for employees with serious health conditions. Employers cannot impose penalties for FMLA absences and must return employees to their jobs (or equivalent positions). Group health insurance benefits must be continued during the leave.

To be entitled to an FMLA leave, employees must satisfy three eligibility tests:

  1. They must have worked for the employer for a total of at least 12 months (consecutive or non-consecutive).
  2. They must have worked at least 1,250 hours for the employer during the previous 12 months.
  3. They must work at a location where at least 50 employees are employed by the employer within 75 miles.

The FMLA gives unions a tool to defend employees who face discipline or discharge for health-related attendance problems. For example, an employee under treatment for a chronic back condition must be allowed up to 60 days off per year (12 work weeks) without penalty. This makes it difficult, if not impossible, for employers to enforce so-called “no fault” absenteeism policies.

Literature about the FMLA can be obtained from your local Wage and Hour Division office. You should file complaints with this office if employees are denied an FMLA leave, are not given their jobs back, or are punished for absences covered by the FMLA.

OCCUPATIONAL SAFETY AND HEALTH ACT

The Occupational Safety and Health Act (known as OSH Act) was passed by Congress in 1970.

The OSH Act is enforced by the Occupational Safety and Health Administration (know as OSHA). In some states, the OSH Act is enforced by state agencies.

OSHA has jurisdiction over private-sector employers, regardless of size, except for industries that are regulated by other federal agencies, such as mining, railroads, nuclear power, and trucking. The OSH Act establishes health and safety standards for various jobs and industries. OSHA inspectors make unannounced visits to workplaces according to their own schedules and in response to complaints from individuals and unions.

OSHA can fine enterprises up to $70,000 for willful or repeat violations and up to $7,000 for each other violation. OSHA can order employers to close down dangerous machinery or work areas.

An OSHA regulation allows an employee to refuse unsafe work if the following conditions exist:

  1. The employee has a reasonable belief, based on what he or she knows at the time, there is real danger of death or serious physical injury.
  2. The employee asks the employer to eliminate the danger, but the employer fails to do so.
  3. The danger is so urgent that the employee cannot risk waiting until OSHA can conduct an inspection.
  4. The employee has no reasonable alternative.

The U.S. Department of Transportation has a similar rule for employees in the trucking industry.

(The NLRA also has a provision allowing employees, in certain situations, to refuse unsafe work. The work must be “abnormally dangerous”.

Stewards can use the OSH Act in many ways:

  1. They can obtain copies of OSHA standards and study the rules that apply to their workplace.
  2. They can report violations of standards by filing an OSHA complaint, or, in an emergency, calling the agency for an immediate inspection. OSHA does not reveal the names of complainants.
  3. They can inform employees who are disciplined for refusing unsafe work of their right to file an OSHA complaint. It is illegal for employers to take reprisals against employees who file OSHA complaints or provide OSHA with information

AMERICANS WITH DISABILITIES ACT

The Americans with Disabilities Act (known as the ADA) was passed by Congress in 1990. It forbids discrimination against qualified persons with disabilities and requires employers to make reasonable accommodations to the restrictions and limitations of disabled job applicants and employees.

The ADA covers private- and public-sector employers with 15 or more employees. It is enforced by the Equal Employment Opportunity Commission (EEOC). Employees may also sue in court.

The ADA has clout. Employers that discriminate, or refuse to provide accommodations, can be assessed substantial damages.

Stewards can use ADA charges, or threats to file charges, in many ways.

  • To enforce an employer to purchase special machinery so that an employee with a disability can perform his or her job.
  • To make an employer reassign job duties so that a disabled employee can stay on the job or get a promotion.
  • To enable a disabled employee to obtain a leave of absence greater than the 12 weeks provided by the FMLA.
  • To force an employer to respect the lifting or other medical restrictions applicable to a disabled employee.

Employers do not have to make accommodations if the changes needed by the employee would create an “undue hardship” for the employer’s business or if, even with accommodations, the employee cannot perform the essential duties of the position.

Employees who are discriminated against or whose requests for accommodations are denied should file complaints at the nearest EEOC office.

EMPLOYEE RETIREMENT INCOME SECURITY ACT (ERISA)

Regulates pension, health and welfare plans. Establishes vesting rights. Protects employees in the event of bankruptcies. Mandates prudent investment of pension assets. Enforced by the U.S. Department of Labor and by private lawsuit.

EQUAL PAY ACT (EPA)

Requires that men and woman be paid for equal wages for work of equal character in the same establishment. Enforced by the Equal Employment Opportunity Commission (EEOC) and by private lawsuit.

WORKER ADJUSTMENT AND RETRAINING NOTIFICATION ACT (WARN)

Requires covered employers (100 or more employees) to provide 60 days advance notice of plant closings and mass layoffs. Employees may sue for lost wages in U.S. District Court.