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The Law, Employee Rights and How they affect Security Officers

Section 7 of the National Labor Relations Act grants employees right 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 mutual aid and protection." It is an "unfair labor practice" ("ULP") for management to violate these rights




















Employer unfair labor practices of the kind that occur typically in organizing campaigns are addressed primarily in two sections of the Act: Section 8(a)(1) and Section 8(a)(3).

Section 8(a)(1) says the employer may not "interfere with, restrain, or coerce employees" in the exercise of their rights.

Section 8 (a)(3) says the employer may not discriminate against employees with regard to the tenure of their employment or any terms or conditions of employment in order to discourage union activity or concerted activity.

In general, 8(a)(1)'s are threats and 8(a)(3)'s are the carrying out of the threats or the actual discrimination.

The following are some examples of employee rights and employer
unfair labor practices.

Employee Right to Campaign for the Union

As a rule, employees have an absolute right to campaign for the union during non-working times in non-work areas. Most campaigning by employees takes place during breaks in non-work areas, and before and after work.

In those situations when talking about other non-work topics is allowed - employees may campaign orally for the union - even during work hours.

The right to distribute literature and to solicit cards may be somewhat more restricted. Employers can limit such activity to the employee's own time and to non-work areas. However, in most work situations, employers may not prohibit workers from wearing union buttons or t-shirts.

Any no-solicitation rules adopted by the employer may not discriminate against union activity. Any privileges given to anti-union committees should be given to pro-union employees. In addition, off-work employees must normally be allowed access to parking lots and entrance gates, except in special circumstances.

Access Rights of Organizers

Non-employee organizers can be barred from company premises in most circumstances, but organizers do have a first amendment right to distribute literature on public property.

Surveillance

Employers are prohibited from spying on employees engaged in union activity. It is also a violation to create the impression that surveillance is occurring.


















Interrogation

It is an unfair labor practice for management to question employees about their union sympathies, although this does not apply to employees who are openly pro union, unless the atmosphere is coercive. For example, it is not objectionable for supervisors to debate a pro-union employee about why he or she supports the union. But to seek out and interrogate secret supporters is objectionable.

Threats

Although the employer may criticize and attack the union, even to the point of making untrue statements, it is unlawful for the employer to threaten to retaliate against employees for supporting the union. This includes threats to fire, layoff, close the facility, or take away benefits because the employees voted for a union.

















Granting of Raises or Benefits

Special raise or new benefits given during a campaign, or promises of such, are unlawful if used as a bribe. However, it is rare for unions to file charges over such conduct.

Bargaining Order

If the company engages in a massive pattern of unfair labor practices, and the union can prove majority support at some point, the board may order the employer to bargain despite a union election loss. This referred to "Gissell" order.

Domination or Support of Union

Employers may not provide support to a particular union or employee group as a way of discouraging independent union activity, nor can the employer fund anti-union committees.

Discharges and Other Discriminatory Actions

The employer may not discriminate against an employee to discourage union activity, by firing, laying off, demoting, or in any way discriminating with respect to the person's tenure of employment.

To prove such a violation of section 8 (a)(3) of the Act, the employee must demonstrate both of the following:

1. Company knowledge of the employee's union activity;

2. Anti-union motivation for the discrimination (The Board calls this "animus.")

The usual remedy for an unlawful discharge is reinstatement with back pay.



















Retaliation for Testifying

It is a violation of section 8(a)(4) of the act to retaliate against an employee for participating in Board proceedings.

Supervisors

It should be noted that since supervisors are not covered by the Act, it is not unlawful for an employer to fire a supervisor for supporting the union. However, it is a violation of section 8(,I)(1) to fire a supervisor for refusing to violate the law.

Undocumented Workers

Undocumented workers are covered by the protection of the NLRB. It is in unfair labor practice for the employer to call in the Immigration and Naturalization Service to report pro union employees.





















A Quick Study of How Unions Help Workers Win a Voice on the Job - Unions 101

What is a union?

A union is a group of workers who form an organization to gain:

Respect on the job,
Better wages and benefits,
More flexibility for work and family needs,
A counterbalance to the unchecked power of employers, and
A voice in improving the quality of their products and services.

How do security police officer professionals form a union?

When  security police officer professionals decide they want to come together to improve their jobs, they work with a union to help them form their own local chapter. Once a majority of workers shows they want a union, sometimes employers honor the workers’ choice. Often, the workers must ask the government (NLRB) to hold an election. If the workers win their union, they negotiate a contract with the employer that spells out each party’s rights and responsibilities in the workplace.

Does the law protect workers joining unions?

It’s supposed to—but too often it doesn’t. Under the law, employers are not allowed to discriminate against or fire workers for choosing to join a union. For example, it’s illegal for employers to threaten to shut down their businesses or to fire employees or take away benefits if workers form a union. However, employers routinely violate these laws, and the penalties are weak or nonexistent.


















How can the SPFPA help us?

Through the SPFPA, security police officer professionals win better wages, benefits and a voice on the job—and good union jobs mean stronger communities. Union workers earn 28 percent more than nonunion workers and are more likely to receive health care and pension benefits than those without a union. In 2004, median weekly earnings for full-time union wage and salary workers were $781, compared with $612 for their nonunion counterparts. Unions lead the fight today for better lives for working people, such as through expanded family and medical leave, improved safety and health protections and fair-trade agreements that lift the standard of living for workers all over the world.

What have unions accomplished for all workers?

Unions have made life better for all working Americans by helping to pass laws ending child labor, establishing the eight-hour day, protecting workers’ safety and health and helping create Social Security, unemployment insurance and the minimum wage, for example. Unions are continuing the fight today to improve life for all working families in America.

What challenges do security police officer professionals face today when they want to form unions?

Today, thousands of security police officer professionals want to join our union SPFPA. The wisest employers understand that when security police officer professionals form unions, their companies also benefit. But most employers fight workers’ efforts to come together by intimidating, harassing and threatening them. In response, workers are reaching out to their communities for help exercising their freedom to improve their lives.


















What are the ways we can form a union with the SPFPA?

Election by the National Labor Relations Board

The employer and union may agree to an election conducted by an outside agency National Labor Relations Board (NLRB)

Voluntary Recognition

Voluntary recognition can occur where the employer agrees to recognize the union based upon cards signed by a majority of employees. If the union persuades the employer to agree to a "card check," ,a third party, such is a member of the clergy, arbitrator, or any other individual, can examine the cards to verify majority support. Once an employer agrees to a card check - and review of the cards indicates that there is a majority support - the employer is required by law to bargain with the union.


What is the organizing process and how long will it take?

Employees are in the card signing stage. If enough employees show support by signing SPFPA Membership Cards ( 50 % or More SPFPA’s requirement ) the SPFPA will petition the National Labor Relations Board (NLRB)and ask that a secret ballot vote take place.

After a petition is filed, the NLRB will conduct a secret ballot election usually within 60 days from the filing of the petition. Employees will now have an opportunity to vote YES in favor of unionization by SPFPA or vote for no representation. If over 50% of those voting cast a vote in favor of Union representation, than your entire group will now be represented by SPFPA and the negotiating process will begin.
 
Only You Can Make This Organizing Drive a Success
Don’t Be Afraid to Sign a SPFPA Membership Card

Remember if Management Tells you something Bad about SPFPA ….Its Probably a Lie !

















WHAT ARE THE BENEFITS OF JOINING A UNION?

Unions Raises Wages—Especially for Minorities and Women

Union membership helps raise workers' pay and narrow the income gap that disadvantages minorities and women. Union workers earn 28 percent more than nonunion workers, according to the U.S. Department of Labor's Bureau of Labor Statistics. Their median weekly earnings for full-time wage and salary work were $781 in 2004, compared with $612 for their nonunion counterparts.

The union wage benefit is even greater for minorities and women. Union women earn 34 percent more than nonunion women, African American union members earn 29 percent more than their nonunion counterparts,  for Latino workers, the union advantage totals 59 percent and for Asian workers, the union advantage is 11 percent.

Union Pay Is Higher in All Occupational Groups

In every occupational category, union members earn more than nonunion workers. By comparing the wages of workers within occupational groups, the union difference is most clear.





















Source: U.S. Department of Labor, Employment and Earnings, January 2005.

Union Workers Have Better Health Care and Pensions.

Union workers are more likely than their nonunion counterparts to receive health care and pension benefits, according to the Bureau of Labor Statistics. In 2004, 89 percent of union workers in private industry participated in medical care benefits, compared with only 67 percent of nonunion workers. Union workers also are more likely to have retirement and short-term disability benefits.

As the chart below illustrates, 84 percent of union workers are covered by pension plans versus 56 percent of nonunion workers. Seventy percent of union workers have defined-benefit retirement coverage, compared with 16 percent of nonunion workers. (Defined-benefit plans are federally insured and provide a guaranteed monthly pension amount. They are better for workers than defined-contribution plans, in which the benefit amount depends on how well the underlying investments perform.)

UNION WORKERS ARE MORE LIKELY TO HAVE
HEALTH AND PENSION BENEFITS, 2004






















Source: Bureau of Labor Statistics, Employee Benefits in Private Industry, March 2004. Nov. 2004.





















THE UNION DIFFERENCE

Workers' Incomes Are Lower in States Where Workers Don't Have Union Rights
 
In states that have laws restricting workers' rights to form strong unions, the average pay for all workers is lower. So-called "right-to-work" laws that limit workers' rights to collectively bargain contracts (including wages and benefits) are a bad deal for all workers. In 2002, average pay in so-called "right-to-work" states was 15 percent lower than in states where workers have the freedom to form strong unions.


Percentage of Workers
in Unions, 2002














Annual Average Pay, 2002














Note: Right-to-work states are Alabama, Arizona, Arkansas, Florida, Georgia, Idaho, Iowa, Kansas, Louisiana, Mississippi, Nebraska, Nevada, North Carolina, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia and Wyoming.


Source: Bureau of Labor Statistics, Average annual wages for 2001 and 2002 for all covered workers by state.

Unions Are Good for Productivity

Unions increase productivity, according to most recent studies. The voice that union members have on the job—sharing in decision-making about promotions and work and production standards—increases productivity and improves management practices. Better training, lower turnover and longer tenure also make union workers more productive.


How Unions Help Bring Low-Wage Workers Out of Poverty

Union members in low-wage occupations on average earn a great deal more than nonunion workers in the same occupations, often lifting their earnings rates above the official poverty level. For example, union security guards may earn $10.97 per hour, 36 percent more than nonunion workers in the same occupation. Over a year’s time, having a SPFPA union card could translate into almost $6,100 more in pay for such a low-wage worker.

Union workers also often gain better benefits, including health insurance and pensions. While not a total cure, union membership can go a long way toward worker self-sufficiency in today’s economy.

Fast Facts

Union workers’ median weekly earnings are 28 percent higher than their nonunion counterparts.

While only 16 percent of nonunion workers have guaranteed pensions, fully 70 percent of union workers do.

86 percent of union workers’ jobs provide health insurance benefits, compared with only 59.5 percent of nonunion workers’ jobs. Only 2.5 percent of union workers are uninsured, compared with 15 percent of nonunion workers.

Median weekly wages for women union workers are 34 percent higher than nonunion women.

Median weekly wages for African American workers in unions are 29 percent higher than for nonunion African Americans; for Latinos, the difference is 59 percent; and for Asian Americans and Pacific Islanders,
it is 11 percent.























































Organizing with the SPFPA
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Weingarten Rights

In one sense, all union members are union stewards for we should all work to ensure justice on the job.  However, the official Union Steward is often the face of the union to other members and to the company.  They are the chief enforcers of the contract and members' representative to management.  This page is designed to provide a ready reference tool.

  Weingarten Rights
In 1975, in NLRB v. J. Weingarten, Inc, the U.S. Supreme Court defined the rights of employees in the presence of union representatives during investigatory interviews. Since that case involved a clerk being investigated by the Weingarten Company, these rights have become known as Weingarten rights. In 2000, the NLRB extended those rights to non-union workplaces. However, in 2004, in IBM Corp. and Kenneth Schult, the National Labor Relations Board (Board) reversed themselves and decided by a 3-2 vote that non-unionized employees are not legally entitled to have a coworker present during an investigatory interview that the employee reasonably believes might result in discipline. 













The Rules

Under the Supreme Court's Weingarten decision, when an investigatory interview occurs, the following rules apply:

RULE 1:
The employee must make a clear request for union representation before or during the interview. The employee cannot be punished for making this request.

RULE 2:
After the employee makes the request, the employer must choose from among three options. The Employer must either:

Grant the request and delay questioning until the union representative arrives and has a chance to consult privately with the employee; or
Deny the request and end the interview immediately; or
Give the employee a choice of (1) having the interview without representation or (2) ending the interview.

RULE 3:
If the employer denies the request for union representation, and continues to ask questions, it commits an unfair labor practice and the employee has a right to refuse to answer. The employer may not discipline the employee for such a refusal.


Unions should encourage workers to assert their Weingarten rights. The presence of a steward can help in many ways. For example: 

The steward can help a fearful or inarticulate employee explain what happened.
 
The steward can raise extenuating factors.
 
The steward can advise an employee against blindly denying everything, thereby giving the appearance of dishonesty and guilt.
 
The steward can help prevent an employee from making fatal admissions.
 
The steward can stop an employee from losing his or her temper, and perhaps getting fired for insubordination.
 
The steward can serve as a witness to prevent supervisors from giving a false account of the conversation.

Note: the NLRB generally does not defer charges alleging a violation of Weingarten rights. Nor are violations considered de minimus even if no employee is disciplined.












Employers often assert that the only role of a steward at an investigatory interview is to observe the discussion, in other words to be a silent witness. The Supreme Court, however, clearly acknowledged a steward's right to assist and counsel workers during the interview. Decided cases establish the following procedures

When the steward arrives, the supervisor must inform the steward of the subject matter of the interview, i.e. the type of misconduct for which discipline is being considered (theft, lateness, drugs, etc.)
 











The steward must be allowed to take the worker aside for a private pre-interview conference before questioning begins.
 
The steward must be allowed to speak during the interview. However, the steward does not have the right to bargain over the purpose of the interview.
 
The steward can request that the supervisor clarify a question so that the worker can understand what is being asked.
 
After a question is asked, the steward can give advice on how to answer.
 
When the questioning ends, the steward can provide additional information to the supervisor.
 
It must be emphasized that if the Weingarten rules are complied with, stewards have no right to tell workers not to answer questions, or to give false answers. Workers can be disciplined if they refuse to answer questions.












What is an Investigatory Interview?

Employees have Weingarten rights only during investigatory interviews. An investigatory interview occurs when a supervisor questions an employee to obtain information that could be used as a basis for discipline or asks an employee to defend his or her conduct. If an employee has a reasonable belief that discipline or other adverse consequences may result from what he or she says, the employee has a right to request union representation.

Work Place Conversations:

Not every management-initiated discussion is an investigatory interview. For example, a supervisor may talk to a worker about the proper way to do a job. Even if the boss asks questions, this is not an investigatory interview because the possibility of discipline is remote. The same is true of routine conversations to clarify work assignments or explain safety rules.

Nevertheless, even an ordinary shop-floor discussion can change its character if the supervisor is dissatisfied with the employee's answers. If this happens, the employee can insist on the presence of a union representative before the conversation goes any further.











Disciplinary announcements:

When a supervisor calls a worker to the office to announce a warning or other discipline, is this an investigatory interview affording the worker a right to union representation? The NLRB says no, because the employer is merely announcing a previously arrived-at decision and is not questioning the worker. Such a meeting, however, can be transformed into an investigatory interview if the supervisor begins to ask questions to support the decision.

Note: An employer that has followed a past practice of allowing stewards to be present when supervisors announce discipline, must maintain the practice during the contract term. Refusing to allow a steward to attend would constitute an unlawful unilateral change.












Weingarten Rights Q & A

If a steward sees a worker being interviewed in a supervisor's office, can she demand to attend the meeting?

Yes. A steward has a protected right to demand admission to a Weingarten interview. However, once the request is made, the employee being interviewed must indicate a desire for the steward’s presence. If the employee states that he or she wishes to be interviewed alone, the steward must leave.
___________________________________

An employee was summoned to an interview with his foreman and asked for his steward. In response, the foreman said, "You can request you steward, but if you do, I will have to bring in the plant manager, and you know how temperamental she is. If we can keep it at the level we're at, things will be a lot better for you." Is this a violation?

Yes. The  supervisor is threatening greater discipline to coerce the employee into abandoning his Weingarten rights. This is an unfair labor practice.
___________________________________

An employee was ordered by his foreman to go to the personnel office for a "talk" about his attitude. He asked to bring a union representative but the foreman said he would have to make his request when he got to the office. Can he refuse to go to the office?

No. Weingarten rights do not begin until the actual interview begins. The employee must go to the office and repeat his request to the official conducting the interview. Only if a supervisor makes clear in advance to an employee that he or she intends to conduct an investigatory interview without union representation, does an employee have a right to refuse to go to the meeting.













The company is recalling workers from a layoff and is insisting on medical examinations for those out of work three months or more. Can the workers demand a steward's presence during the examination?

No. Medical examinations are not investigatory interviews. Weingarten rights do not apply.
___________________________________

Does Weingarten apply to a polygraph examination?
 
Yes. An employee has a right to union representation during the pre-examination interview and the examination itself.
___________________________________

If management asks a worker to submit to a urine test for drugs, does Weingarten apply?
 

Yes and No. Since a urine test is not questioning, an employee does not have a right to the presence of a steward during the actual test. Management must, however, allow the employee to consult with a union representative to decide whether or not to take the test.












Can management order a worker to open a locker without a steward being present?

Yes. Locker searches, car searches, or handbag searches are not interviews. Employees do not have a right to insist of the presence of a steward.
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An employee was given a written warning about poor attendance and told he must participate in absence counseling sessions with a member of the personnel department. Does the worker have a right to demand the presence of a union steward at the counseling sessions?

This depends on whether the employee has a reasonable fear that the counseling sessions could result in further discipline. If notes from the sessions are kept in the employee's permanent record, or if other employees have been disciplined after counseling sessions, the employee's fears would be reasonable and would entitle him to bring a steward. But if the employer gives firm assurances that the meetings will not be used for further discipline and promises that the conversations will remain confidential, Weingarten probably would not apply.
___________________________________

If a worker is given a warning slip for misconduct and is asked to sign the slip to acknowledge receipt, must the employer permit her to consult her steward before signing?

No. Since the employer is not questioning the worker, Weingarten rights do not apply.
___________________________________

Can a worker insist on the presence of a lawyer before answering questions at an investigatory interview?

No. Weingarten rights apply only to the presence of union representatives.
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Over the weekend, a foreman called a worker at home to ask questions about missing tools. Did the worker have to answer the questions?

No. Weingarten rights apply to telephone interviews. A worker who fears discipline can refuse to answer questions until he or she has a chance to consult with her steward.
___________________________________

A worker was called into the plant manager's office. She asked for her steward, but was refused. The manager said, "Doreen, yesterday you refused a direct order to work overtime. Therefore, we're giving you a one-day suspension for insubordination." Did the company violate Weingarten?

No. Weingarten rights do not apply to meetings where employers simply announce discipline. However, if the employer starts asking questions or tries to make the employee admit guilt, Weingarten would apply and the employee can insist on the presence of a steward or other union representative before answering.
___________________________________

If a worker's steward is out sick, can the worker insist that the interview be delayed until the steward is available?

No. Management does not have to delay an investigation if other union representatives are available to assist the employee at the interview.
___________________________________

If my supervisor calls me in to discuss my work record, do I have the right to a union representative?

Yes. Union stewards have Weingarten Rights. If you fear discipline or other adverse action, you have the right to the presence of a union representative.
___________________________________

Suppose a worker's request for a steward is denied. If the supervisor continues to ask questions, can the worker walk out of the office to get a steward?

In some cases, yes.
According to NLRB decisions, when an employee is entitled to union representation and the employer denies the employee's request, the employee can refuse to participate in the interview, even to the point of walking out to seek a union representative. However, if the employee is told to wait while management gets the steward, the employee must stay in the office until the steward arrives.
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If the company calls a meeting to lecture workers about job performance, do the employees have a right to demand the presence of a union representative before attending the meeting?

No. Holding a meeting on work time that does not involve interrogation is not a Weingarten meeting. There is no right to a steward unless the employer begins asking questions of employees in a manner that creates a reasonable fear of discipline.
















Steve Maritas
SPFPA Organizing Director