Understanding Labor Practices: What Employers Need To Be Aware Of

Labor laws for both unions and employers are governed by the National Labor Relations Act. Any action by either the union or employer that violates the Act can result in claims being brought on behalf of the employee. This article shall address what the National Labor Relations Act is, how it protects against unfair labor practices, address understanding labor practices through an understanding of labor practices through this worksheet, illustrate various examples of real-life unfair labor practices assess each unfair labor example, and then talk about the importance of an employment law attorney and how they can help you if your employer discriminates against you.

What Is Unfair Labor Practice (ULP)?

Unfair labor practices are actions on behalf of either unions or employers that violate the employees’ rights under the National Labor Relations Act, which was specifically enacted as a way to ensure equal and fair labor practices for employees. These labor practices can be brought before the national labor relations board for enforcement. An example of an unfair labor practice is requiring an employer to have to automatically submit to a union’s demands. Similarly, requiring a union or labor organizations to have to automatically submit to a union’s demands is also an unfair labor practice. Both the employer and the labor organizations are required to come to the table and exercise fair and equitable collective bargaining. Below are examples of labor relations and different unfair labor practices on behalf of the employer and unions.

Unfair Labor Practices by Employers

Employers need to be aware of unfair labor practices that they could be engaged in.

• Restraining or Coercing Employees. It is illegal for an employer to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed under the National Labor Relations Act, which includes forming and organizing a union. So, if a supervisor threatens, questions employees, or lies to employees if they are trying to form a union, that is illegal.
• Employer Domination. An employer may not try to dominate with the formation of a union such as through financial activities.
• Discrimination. An employer may not discriminate against an employee to encourage or to discourage membership in a union.
• Retaliation. An employer may not terminate or discriminate against an employee because he or she has filed charges or gave testimony.
• Refusal to Collective Bargain. An employer who refuses to bargain collectively with the representatives of the employees is committing an unfair labor practice.

Unfair Labor Practices by Unions

• Threatening, restraining, or forcing employees of their right not to support a union
• Threatening, restraining, or forcing an employer in its choice of a bargaining representative
• Encouraging an employer to discriminate against an employee to encourage or discourage union membership
• Not engaging in good-faith collective bargaining
• Engaging in illegal union activities, such as strikes and boycott
• Charging excessive membership fees.
• Featherbedding by getting an employer to agree to pay for work that is not performed.

One of the most common and frequent unfair practices is when the employer discriminates against the employee due to age, race, and gender. Oftentimes, the employer will try to mask this discrimination in subtle ways to try to make it like it is the employee’s fault for being terminated or demoted. In these cases, it is best to contact your union right away and then contact a gender discrimination attorney or age discrimination attorney. Such an attorney will have the know how and experience to be able to analyze your entire comprehensive situation, review what evidence there is, and determine how best to proceed with your discrimination case against the employer.

How Do You Deal With Unfair Job Treatment?

If you feel that your employer discriminated against you and you are experiencing unfair job treatment, you can’t just sit idle and hope that the treatment stops or just give your employer or union a pass. You need to stand up for yourself and there are a number of steps that need to be taken.

• Take Notes. One of the most important steps in unfair treatment in the workplace is to carefully document the unfair treatment. If a claim is made, you will need to produce evidence that you are being treated unfairly. This means that you must get witness statements and their contact information, obtain video evidence, save texts or voicemails, produce documentation, and do anything you can to document the employer or union’s unfair labor practice towards you.

• Report. You must also report the employer for the violation being committed against you. You should do so in writing by filing a complaint with the union.

• Social Media. Be wary of posting any information on social media. Although you may be angry and posting your feelings on social media, such posts may ultimately hurt your case because such posts may be admissions. Facebook and social media are like talking with the police during an investigation. Anything you post may be used against you, so it’s best not to say anything at all and to just reveal your information to your attorney instead.

• Protect. Along those lines, you’ll need to protect yourself and your claim. You’ll need to be careful who you discuss your claim with and what information you will reveal. Again, anything you say, write, post, or reveal about yourself may come back at you and hinder your claim.

• Lawyer Up. The most important step you can take is to talk with an experienced employment law attorney about your case. They will be able to analyze the facts and determine how best to prove your case.

Lawyering up is particularly important when it comes to employer discrimination due to race, age, or gender. Employment discrimination can be difficult to prove, so it is best to report the disciimination to your union right away and talk with an experienced employment law attorney.

Cases of Unfair Labor Practice

There are various real-life cases of unfair labor practice. In addition to cases decided by the supreme court, there are general informational cases as well.

In 2016, in MikLin Enterprises, Inc., v. National Labor Relations Board, the National Labor Relations Board found that a Jimmy John’s franchisee violated Sections 8(a)(1) and (3) of the National Labor Relations Act (NLRA) when it fired six employees for taking part in a poster campaign designed to focus public attention on what they felt was the franchisee’s inadequate sick leave policy. As part of the campaign, the workers plastered posters at their shops suggesting that customers would not be able to visually tell the difference between sandwiches made by sick and healthy Jimmy John workers.

Jimmy John’s franchisee argued that the posters’ statements that workers “can’t even call in sick” was knowingly false because they knew that they were required to wait for symptoms to subside before returning to work.

However, the evidence indicated that employees worked 80% of the time they were sick because they could not obtain a replacement to work for them, so that Jimmy John’s argument was rejected, and the NLRB found in favor of the employees.

In Tasty Baking Co. v. NLRB, the Court affirmed an NLRB decision that it violates the NLRA for an employer to take action against a supervisor in retaliation for a non-supervisory relative’s union activities.

Edwina Flannery, a company supervisor whose husband was a union supporter, was precipitously demoted from the supervisory position she had held for five years, even though she had recently been characterized by a company manager as one of the company’s “rising stars.” Flannery was informed by her employer that the fact that her husband was distributing union literature “was not helping her chances of staying on the day shift,” and shortly thereafter her shift was changed. The union filed unfair labor practices with the NLRB, which found that Flannery’s demotion and change of shift constituted unlawful discrimination under the NLRA.

The Court of Appeals affirmed the NLRB’s ruling, held that while supervisors themselves are not protected by the NLRA, action taken against a supervisor is unlawful “when it interferes with the right of employees to exercise their rights.”

Disposition of Unfair Labor Practice Charges

The frequency of cases whereby unions or employers restrain or coerce employees, of an unfair labor practice charge, and that have come before the national labor relations board, have gone up and down over the years. See the picture below for a visual.

FAQ:

Need Professional Help? Talk to an Employment Rights Attorney.

If you have been discriminated against by your employer, you need to report it to your union and then talk with an employment law attorney. Your union will file a claim on behalf of the union and may be able to help you with your claim. More importantly, an employment law attorney will begin the formalities of suing your employer.

Furthermore, unfair labor practices against the employee can be complicated and very technical. Unfair labor practices are governed by the National Labor Relations Act, and since the Act itself is not easy to comprehend for a layman, it will be necessary to consult with an experienced employee rights lawyer who has litigation experienced in an employment dispute and labor and employment law. Unfortunately, just any law firm will not be adequate. You’ll need a qualified employment law attorney who may provide you with an understanding labor practices worksheet.

At the Law Office of Yuriy Moshes, they are familiar with labor and employment law. They represent employees in the greater New York City area including all its boroughs, including Manhattan, Brooklyn, Queens, the Bronx, and Staten Island) as well as Northern New Jersey, Long Island, and Upstate New York.