Unions and Collective Action

All About Unions

Retaliation for Union Activity/Collective Action

Right to Work Laws

All About Unions

What is a labor union?

A labor union is an organization of workers joined to protect their common interests and improve their working conditions. It serves as an intermediary between the employer and the employees. The main purpose is to give workers power to negotiate more favorable working conditions through collective bargaining. Some of the largest and/or most prominent unions in the U.S. include the United Auto WorkersService Employees International UnionInternational Brotherhood of Teamsters, American Federation of State, County and Municipal Employees, and the United Steelworkers. The AFL-CIO (member list) and Change to Win (member list) are federations, large umbrella organizations of unions which have banded together to share resources and promote common political and organizing goals.

What are the benefits of being a member of a union?

As a member of a union, you receive all the benefits achieved by the union in negotiating employment benefits with your employer. When your union negotiates payment and benefits on behalf of many employees, you are part of a much larger group that generally has much greater bargaining power in dealing with employers. For example, one worker may believe new safety measures should be implemented but may not be able to get his employer to agree. If more workers band together in a bargaining unit to pressure the company to implement the safety measures, there is a much better chance the company will listen. This is commonly referred to as collective bargaining.

Collective bargaining results in many positive benefits. The wages of union members are, on average, 30% higher than those of workers who do not have union representation; 93% of union workers are entitled to health benefits, while only 69% of non-union workers do; and 77% of union workers have a guaranteed, pension, compared to only 17% of non-union workers. In addition, unions often lobby for legislation and political candidates that are more favorable to employees.

How does a union get started in the workplace?

To form a union, a group of workers must either:

 have the employer voluntarily recognize them as a union; or

 have a majority of workers in a bargaining unit vote for union representation.

In either case, the National Labor Relations Board (NLRB) must then certify the newly formed union.

Once the union is certified, the employer is legally required to bargain in good faith with the union. The employer must come to the bargaining table with an open mind and a sincere desire to discuss the issues. Both parties must try to reach a settlement through negotiations, and when agreement is reached, they must sign a written contract, known as a collective bargaining agreement (CBA).

What is a bargaining unit?

A bargaining unit is a group of employees that perform similar work and usually share a work area. Generally employees in a bargaining unit have similar interests and concerns when it comes to working conditions – like pay, hours of work and conditions of the workplace and come together for the purpose of collective bargaining. A bargaining unit may also be a group of similar workers that work in different places in different shops, but do the same work. Often a bargaining unit will make up an entire union, but it is also not uncommon for a bargaining unit to be a slice of a bigger union.

What is a collective bargaining agreement?

A collective bargaining agreement (sometimes called a CBA) is an agreement negotiated between a labor union and an employer that sets forth the terms of employment for the employees who are members of that labor union. A CBA may include provisions regarding wages, vacation time, working hours, working conditions, and health insurance benefits.

Once a collective bargaining agreement is in place:

 Management cannot reduce wages or change working conditions without first negotiating with the employees, through their union representatives. Employees are entitled to vote on changes made to their contract.

 Your contract is for a set period of time and cannot be changed at will by a notice or announcement.

 There will be no favoritism or change of policy to suit the whim of management.

 Your union enforces your contract to make sure the employer abides by the rules.

 Your union enforces your contract through a grievance procedure, in arbitration

For example, unions deal with practices regarding discipline and making sure proper procedures are in place so that employees are treated fairly. Most union members cannot be terminated or disciplined unless the employer has “just cause,” as defined by the collective bargaining agreement, unlike most non-union employees in the private sector, who are employed “at-will,” which means that employer can fire you or change your conditions of employment at any time and for almost any reason. For more information, please see our site’s at-will employment page.

Which federal laws govern unions?

There are many laws and court decisions that govern unions, a few of which will be discussed below. The main source of law regarding unions is federal law, as most unions are national organizations. The most important federal laws governing unions include the National Labor Relations Act (NLRA), the Labor Management Relations Act (also known as the Taft-Hartley Act), and the Labor-Management Reporting and Disclosure Act, discussed in more detail below. While the NLRA generally governs union organizing and collective bargaining for private sector employment, the Railway Labor Act governs employment relations for airlines and railroads enforced by the National Mediation Board, and public sector collective bargaining is generally regulated by state statute.

In September 2015, the Workplace Action for a Growing Economy Act (WAGE Act) was introduced in Congress. If passed, significant protections not currently in place for workers would be in tact to allow them to organize and join a union without fear of employer intimidation. Although other legislation including the NLRA provides union protections, the NLRB has relatively limited enforcement ability to penalize employers for violating employees’ rights when it comes to workplace protections; the WAGE Act would amend the NLRA to add these protections. This pending legislation would prove helpful in an era of smaller bargaining units with less power over coercive employer tactics. For more information on the proposed WAGE Act, please see the WAGE Act Fact Sheet.

What is the National Labor Relations Act?

Labor unions officially obtained the right to represent employees under the law when the National Labor Relations Act (NLRA) was passed in 1935. It guarantees basic rights of private sector employees to organize trade unions, engage in collective bargaining, and enjoy other rights including striking if necessary.

The NLRA covers employees who work for employers involved in interstate commerce. The term interstate commerce has been interpreted broadly over the years and basically includes any employer whose business involves more than one state. Today, this number stands at 14.1 million employees who are union members.

When the NLRA was passed by Congress, the National Labor Relations Board (NLRB) was also created. The NLRB has two basic functions: 1) overseeing employees decision making process of whether to be represented by a labor organization and; 2) prosecuting NLRA violations. Essentially, the NLRB’s job is to police the relationships between employees, their unions and their employers and ensure the NLRA is enforced.

Who is not covered by the NLRA?

Although many workers are covered by the NLRA, there are several important exceptions. The following groups are exempt (or not included):

  • Managers;
  • Supervisors;
  • Confidential employees such as company accountants;
  • Farm workers;
  • The families of employers;
  • Government workers;
  • Most domestic workers;
  • Independant contractors; and,
  • Certain industry groups that are otherwise regulated.

What is the Taft-Hartley Act?

This Act, also known as the Labor Management Relations Act (LMRA), was passed in an effort to limit the power of unions over employees and added a list of prohibited actions by unions, or “unfair labor practices,” to the NLRA, which had previously only prohibited unfair labor practices committed by employers.

Specifically, it was passed to address problems like restraining or coercing rights of employees when exercising their rights; discriminating against an employee because of member status in a union; refusing to bargain in good faith; encouraging employees to stop work to force special union matters; and charging excessive fees to both employees and employers. For more information on unfair labor practices, please see our retaliation for union activity page for additional information.

What is the Labor Management Reporting and Disclosure Act?

The Labor-Management Reporting and Disclosure Act or LMDRA, was passed to impose a code of conduct upon unions, union officers, members, employers and management consultants so that all actors would behave fairly. Essentially, it regulates labor unions internal affairs.

Are there state laws that govern unions?

Yes, there may be laws in some states governing unions. The NLRA has specific provisions that allow the states to pass laws regarding specific areas of the law dealing with unions. For example, the NLRA allows states to pass “right to work” laws or “open shop” laws, which means you have the right to work without joining a union or paying union dues. Each state has various laws, so check with your state’s local AFL-CIO web site to determine which laws affect you. In addition, state laws govern public sector unions.

How is the make-up (shape and size) of a union determined?

To begin representing employees, a union must first make an application with the NLRB asking to be the representative of a particular bargaining unit. In that application/petition, the union gives a description of what workers it would like included. Typically, the employer will protest that description and want it to be narrowed – if a compromise cannot be reached, then the NLRB, using its discretion and reasonable interpretation of the NLRA, decides who is included.

What is a union local?

A union “local” is a locally-based group of organized employees holding a charter from a national or international labor organization. A local may be confined to union members in a particular geographic area or company, or it may cover multiple contracts with various employers in the same business sector. They are often numbered to distinguish each local from each other. (For example OPCMIA Local 21). Locals have their own governing bodies which represent the interests of the national or international union but are able to organize regular meetings and be responsible to their constituents. Within the local governing body is usually an executive board elected to look over the interests of the union, control finances including union dues, and manage interactions between workers and employers. These positions often include a business representative/business agent, secretary and/or treasurer. Local branches may also affiliate with a local trades council or district council, an organization of local unions involved in all aspects of a particular trade or industry in a particular geographic area. An example of this is a local building trades organization comprised of many union locals.

Who is in charge of a union? Who runs it?

Most unions have a paid staff that operates and runs the union. This staff is paid by the dues you pay as members of the union. Each union varies in size, so amount of staff will also vary. Frequently, there will also be member volunteers – so your co-workers and fellow union members may decide to volunteer their time to assist in the efforts of the union.

Are there costs involved in being a member of a union?

Yes. There is a fee associated with being a member of a union. Union dues are what you pay to help support the unions’ operating costs, which include union support staff, field staff, legal costs, negotiation costs, arbitrator’s fees, and other related costs. Many unions also use dues to create strike funds, and to support union organizing and political activity. Although there is no law that specifically designates the amount, the fee must be reasonable. Dues structures vary widely from union to union based on needs. Some unions charge a fixed monthly rate while others charge of a percentage of members paychecks. In addition, many unions charge an initiation fee when an individual first joins.

My religion prevents me from joining a union and/or paying union does. What do I do?

The NLRA provides that “any employee who is a member of and adheres to established and traditional tenets…or teachings of a bona fide religion, body or sect which has historically held conscientious objections to joining or financially supporting labor organizations shall not be required to join or financially support any labor organization as a condition of employment….”

Workers whose religious beliefs don’t allow them to pay dues are entitled to alternative arrangement, allowing them to be exempt from paying dues. However, these individuals may be required to make a contribution in the same amount to a nonreligious organization or a non-labor organization, and still may be required to pay reasonable costs for grievance claims on their behalf if handled by the union.

Do I have to join the union in order to work at a particular job?

Whether or not you must join the union to work at a particular job depends on what type of “shop” is present in your workplace. The type of shop that exists within a union bargaining unit will generally be included in the contract between the union and the employer. There are four typical kinds of shops in unionized workplaces, which are:

  • Closed shop
  • Union shop
  • Agency shop
  • Open shop

What is a closed shop?

A “closed shop” requires its employees to be union members as a condition to being hired for a position covered by the bargaining unit and does not allow the employer to hire anyone not willing to join the union. The most extreme example of the closed shop is the hiring hall, where employers are required to recruit union members from the hiring hall, and cannot hire employees directly. The Taft-Hartley Act made a closed shop illegal in 1947.

What is a union shop?

With a “union shop,” an employee is not required to join a union in order to be hired, but must join the union within a certain period of time after starting work, generally within thirty (30) days of starting work.

However, the employer can only fire the employee for non-union membership if the union rejects or expels the employee for nonpayment of dues/fees. So, in theory, an employee can still maintain his/her job. You should realize that although you may not be “officially” required to join the union, you may suffer a cold shoulder from other union members and officials.

What is an agency shop?

If you are part of an “agency shop,” you are required to pay union dues and fees, but you are not required to have an actual membership in the union. So you can choose not to be an official member of the union, but you still have to pay dues as though you are a member. The dues you pay, however, only cover the costs of activities related to collective bargaining, contract administration and grievance adjustment, and not other items such as organizing and political activity.

If you object to your dues being spent on a particular purpose, you have the right to object until it is determined whether the money being spent is used for activity related to representing you in bargaining with the employer. Under a 1988 US Supreme Court decision known as “Beck,” unions cannot force non-members to pay a full agency fee if any portion is used to pay the costs of union political activities. As a result, unions may be required to calculate that percent of their total budget allocated to political activities, and refund that portion of your agency fee (which may be very small).

If you pay agency fees, the union, in return, must represent you in negotiations with the employer, as in an open shop bargaining unit. However, the union’s duties end there – if you are not an official member then you do not receive the broader protections, such as disciplinary processes, included in union contracts. This arrangement is legal as long as your state has not passed a “right to work” law. Most examples of these types of shops are public sector unions including teachers unions.

What is an open shop?

If you are in a “right to work” state, you may be part of an “open shop,” where the unit represents the entire bargaining unit regardless of whether or not all employees are members of the union. Right to work laws guarantee that no person can be compelled to join or not join a union, or pay dues. Generally, most open shops are in right to work states where employees are not required to join a union and pay dues, but the union is still charged with fair and equal representation of all members of the bargaining unit – not just the union members. States currently having right to work laws include: Alabama, Arizona, Arkansas, Kansas, Florida, Georgia, Idaho, Indiana, Iowa, Louisiana, Michigan, Mississippi, Nebraska, Nevada, North Carolina, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, Wisconsin and Wyoming.

Do unions have elections?

Yes. There are two types of elections associated with unions. There is an initial election to determine if the majority of employees in a bargaining unit want to be represented (or discontinue representation) by a union or whether or not to switch their union affiliation.

Once the initial election establishes the union’s presence in a particular workplace, then the union is supposed to be run democratically, where majority rules – so there will be elections and voting to choose officers and make decisions. For more information about democratic principles and unions, see the Association for Union Democracy.

Can my employer say that it does not want a union?

In short – yes, but it must be careful. The company has the right to express its opinions. However, the NLRA has rules that somewhat limit that freedom – companies cannot violate their employees’ right to unionize if they so choose. It is often a fine line between expressing a policy preference for no unions, which is permitted, and telling employees they cannot unionize, which is illegal. If the company goes too far to discourage its employees from joining a union, it will violate the NLRA and may have to account for its actions to the NLRB.

Companies that do not want unions in their workplace often go to great lengths to discourage union activity, hiring “unionbusters,” professional consultants or lawyers who specialize in advising employers on how to thwart union organizing drives or how to decertify unions. Unionbusters usually self-identify as “union avoidance firms,” “management consultants,” or “labor consultants.” Unionbusters help an employer create a sense of dissension and division among employees during an organizing campaign and spread misinformation about the union before workers vote in a union representation election. For more information, see the Jobs with Justice page “Unionbusters 101.”

How do I get the union involved if I have a problem at work?

Generally, if you have a problem at your workplace and you are a member of a union – your first contact is the union representative. Often, many disputes can be resolved with the help of the union. After you speak with the union representative, the representative usually speaks with other union officials. If the officials believe that you have a valid claim, then it will assist you and guide you through a complaint or grievance procedure. If you disagree with the ultimate resolution by the union, you can then appeal that decision.

In addition, whenever management begins to ask you questions that you reasonably believe could result in a disciplinary action, you have thea right to refuse to answer questions until a union representative is present and you have had an opportunity to discuss the situation with that representative. You have a right to have the union representative present during questioning, to have that representative advise you, to ask your supervisors for clarifications, and to ask for any additional information after questioning. These are referred to as your Weingarten Rights.

What if the union refuses to represent me or enforce my rights under the union contract?

Under the NLRB, a union that is your exclusive representative with your employer owes a duty of fair representation to employees in the bargaining unit, which means that it must treat all bargaining members fairly and equally in representing them before the employer. This duty arises when you have an individual dispute with your employer, such as a disciplinary matter or termination, and may be violated if the exclusive bargaining representative (the union) fails to properly represent you in that dispute.

If the union refuses to get involved to protect your rights as guaranteed by the union contract, you may be able to file a claim against the union for violating your “duty of fair representation,” also known as a “DFR claim.” However, not every situation where you are unhappy with the union’s representation gives rise to a DFR claim. You must prove that the union acted in an arbitrary manner and/or in bad faith – mere negligence or ineptitude does not count. Some factors to be considered are:

 Whether the union can rationally explain its conduct;

 Whether the situation left you with no venue to obtain a hearing/remedy for the underlying dispute; and

 Whether the union followed or deviated from its past practices in the manner in which it processed the dispute and dealt with you personally.

The duty of fair representation does not require your union to file a grievance on your behalf, take your grievance to arbitration, or appeal it every step of the way, if it feels your grievance does not have merit.

If you have a DFR claim, you can either sue the union directly in court, or can file a claim with the NLRB. Either way, you must file your DFR claim within six months of the union activity which you claim violated your duty of fair representation. Check with your local NLRB office, or a private attorney who has expertise in working with labor issues, for more information to help you determine whether you may be able to bring a DFR case.

I no longer want to be represented by my union. Is there any way to get rid of a union after it's establish

Yes. Under the NLRA, there are multiple avenues for you to pursue. One way is to petition the NLRB to hold a decertification election, which if successful, means the union no longer represents any of the employees in your bargaining unit. Note, this is different from a deauthorization election which simply removes any forced unionism clauses in your contract. To have a decertification election you must first obtain approval from 30% of the bargaining unit to establish this step – then you must campaign to get the majority of votes needed to get rid of the union.

The other method is to withdraw your membership – in writing. Depending on your state’s laws, you may have to continue paying dues and fees, but will not be officially a member.

What can I do if I am threatened for joining a union?

The NLRA states that employees 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;

And shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized elsewhere in the law 29 U.S.C. § 157 Your employer is not allowed to try to make you change your decision about joining a union by offering you benefits to change your mind or threatening to penalize you for joining.

Specific examples of the types of rights protected by the NLRA are:

 Forming or attempting to form a union among the employees of a company.

 Joining a union whether the union is recognized by the employer or not.

 Assisting a union to organize the employees of an employer.

 Going out on strike to secure better working conditions.

 Refraining from activity on behalf of a union.

 Attending meetings to discuss joining a union.

 Reading, distributing and discussing union literature (as long as you do this in nonwork areas during nonwork times, such as breaks or lunch hours).

 Wearing union buttons, T-shirts, stickers, hats or other items on the job at most worksites.

 Signing a card asking your employer to recognize and bargain with the union.

 Signing petitions or file grievances related to wages, hours, working conditions and other job issues

 Asking other employees to support the union, to sign union cards or petitions or to file grievances.

 Signing a petition for improved wages, hours, or conditions.

 Talking with coworkers about wages or working conditions.

If you think you have been retaliated against for doing any of these things, see our retaliation for union activity page for additional information.

What can I do if I am threatened for NOT joining a union?

The NLRA protects both your right to be a union member, and your right to choose not to be a union member. If you feel that you have been threatened for not joining a union, you must first file a charge with your local NLRB office. This is commonly referred to as an Unfair Labor Practice charge. Then the NLRB staff will conduct an investigation to see if your claim has merit – if the investigation leads to the conclusion that something wrong happened, then the NLRB will attempt to reach some sort of agreement to settle or fix the problem. If the NLRB decides that your claim does not have merit, then you may appeal that decision, but you may need the help of an attorney.

If you think you have been retaliated against for not joining a union, see our retaliation for union activity page for additional information.

I work for a privately owned franchise, can my union bargain with its parent company?

Yes. In August the NLRB in a 3-2 vote made it easier for unions to negotiate on behalf of workers at companies relying on contractors and franchises, including fast-food chains. In its ruling it adopted a more expansive definition of joint employer In doing so, a company hiring a contractor to staff facilities will likely be considered a joint employer even if it does not actively supervise them. This means that a union representing those workers would be legally entitled to bargain with the parent company, not just the contractor. For example, if fast food employees working at a franchise owned company unionized, they would be entitled to negotiate not simply with the owner of the restaurant, but with corporate headquarters as well. However, any agreements in negotiations would only apply to that single franchise, not every employee nationwide.

Where can I get more information?

If you would like more information about the laws which apply to unions, the first place to start is your local NLRB office and the resources provided on this website.

If your workplace is already organized, the best place to get more information about the union of which you are a member or will be expected to join is from the national or international headquarters of the union. Most unions maintain websites and an active presence on the Internet, which will allow you to obtain most if not all the information you need online. You can also ask your local office or shop steward for information as well.

If you would like to be involved in organizing a union at your workplace, you should contact one of the national federations of unions, so that you can be directed to one or more unions that may be interested in helping you organize your workplace. The two major national federations to which most unions belong are:

The American Federation of Labor and Congress of Industrial Organizations (AFL-CIO)
815 16th Street, NW
Washington, DC 20006
Phone: 202-637-5000
Fax: 202-637-5058
How to Join a Union

Change to Win
1900 L Street, NW Suite 900
Washington, DC 20036
Phone: (202) 721-0660
Fax: (202) 721-0661

If you are unhappy with your union and how it conducts its business, you may wish to contact:

Association for Union Democracy (AUD)
104 Montgomery Street
Brooklyn, NY 11225
Phone: 718-564-1114

AUD is a pro-labor, non-profit organization dedicated to advancing the principles and practices of democratic trade unionism in the North American labor movement, and provides organizing, educational, and legal assistance to union members fighting for greater control of their unions.

A group that educates workers on the benefits of union membership and works to make it easier to join unions is:

Jobs With Justice
1616 P Street NW, Suite 150
Washington, DC 20036
Phone: (202) 393-1044
Fax: (202) 822-2168

Jobs With Justice is a non-profit dedicated to promoting positive workplace standards through innovative communications, research, and policy advocacy with grassroots mobilization. It believes in public disclosure of workers’ rights.

Retaliation for Union Activity/Collective Action

I'm interested in working towards organizing a union at work. Is it illegal for my employer to retaliate against me for my union activities?

For most workers, organizing a union is the only way to legally require an employer to negotiate in good faith over wages, hours and terms and conditions of employment. Without a union, employers are free to change the rules at any time, and do not have to be accountable to their workers for these changes. With a union, the parties have a duty to share relevant information, and bargain in good faith. Many employers spend a significant amount of money and effort to oppose union organizing drives.

Some employers, however, do more than spend money trying to persuade their workers to vote against unions. They might use threats, intimidation, or retaliation to make workers afraid of losing their jobs if they support the union. These measures are illegal.

Which federal law(s) make it illegal to retaliate on the basis of an employee's union activity?

Congress passed the National Labor Relations Act (NLRA) in 1935. It was part of the New Deal era of reform. Congress stated its reasons as follows:

The denial by some employers of the right of employees to organize and the refusal by some employers to accept the procedure of collective bargaining lead to strikes and other forms of industrial strife or unrest?

Experience has proved that protection by law of the right of employees to organize and bargain collectively safeguards commerce from injury, impairment, or interruption, and promotes the flow of commerce by removing certain recognized sources of industrial strife and unrest, by encouraging practices fundamental to the friendly adjustment of industrial disputes arising out of differences as to wages, hours, or other working conditions, and by restoring equality of bargaining power between employers and employees.

It is hereby declared to be the policy of the United States to eliminate the causes of certain substantial obstructions to the free flow of commerce and to mitigate and eliminate these obstructions when they have occurred by encouraging the practice and procedure of collective bargaining and by protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection.

What types of activity are covered by the NLRA?

The NLRA states that employees 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;

and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized [elsewhere in the law]. 29 U.S.C. %26sect; 157

Specific examples of the types of rights protected by the NLRA are:

 Forming or attempting to form a union among the employees of a company.

 Joining a union whether the union is recognized by the employer or not.

 Assisting a union to organize the employees of an employer.

 Going out on strike to secure better working conditions.

 Refraining from activity on behalf of a union.

 Attending meetings to discuss joining a union.

 Reading, distributing and discussing union literature (as long as you do this in nonwork areas during nonwork times, such as breaks or lunch hours).

 Wearing union buttons, T-shirts, stickers, hats or other items on the job at most worksites.

 Signing a card asking your employer to recognize and bargain with the union.

 Signing petitions or file grievances related to wages, hours, working conditions and other job issues.

 Asking other employees to support the union, to sign union cards or petitions or to file grievances.

 Signing a petition for improved wages, hours, or conditions.

 Talking with coworkers about wages or working conditions.

The NLRA created the National Labor Relations Board (NLRB) to protect workers who organize unions, or engage in other protected concerted activity to improve working conditions. However, appointments to the NLRB are made by the president, so political differences in a given administration have meant that workers’ interests have not always been foremost in the board’s rulings.

Which employees are protected from retaliation under the law?

Because Congress passed the NLRA under its authority to regulate interstate commerce, workers must be engaged in interstate commerce to be covered.

“Commerce” includes trade, traffic, transportation, or communication

  • within the District of Columbia or any Territory of the United States;
  • between any State or Territory and any other State, Territory, or the District of Columbia;
  • between two points in the same State, but through any other State, Territory, the District of Columbia, or a foreign country.

Examples of enterprises engaged in interstate commerce are:

 A manufacturing company in Washington that sells and ships its product to buyers in California.

 A company in Florida that buys supplies in North Carolina.

 A trucking company that transports goods from one point in West Virginia through Pennsylvania to another point in West Virginia.

 A radio station in Illinois that has listeners in Indiana.

Workers who handle the mail, the telephone, or other interstate communications, who work in the travel industry, or work with goods that are received from or shipped across state lines are all covered.

The NLRB has adopted a rule that any private employer with 15 or more employees is covered. The railway and airline industries are covered by the similar Railway Labor Act.

Which employees are not protected under the NLRA?

The NLRA excludes the following employees from the right to organize a union:

 agricultural laborers,

 domestic service workers,

 independent contractors,


 guards, and

 confidential employees.

Many states have laws that provide collective bargaining rights to state and local government employees.

The Migrant and Seasonal Agricultural Worker Protection Act29 U.S.C. 1801 provides protections for agricultural workers, but not the right to organize unions. Some states, most notably California, provide that right by state law.

Who is considered a supervisor under the NLRA?

The term “supervisor” means any individual having authority, in the interest of the employer, to:




 lay off,





 reward, or

 discipline other employees, or

 responsibility to direct them, or

 to adjust their grievances, or

 effectively to recommend such action 

A worker who has the authority to do these acts must do so with independent judgment, and not because it is of a merely routine or clerical nature. 29 U.S.C. 152(11). The NLRB has stated that responsibility to direct means the individual must be accountable for the performance of the task by the other [employee], for example, suffering a negative consequence from the employer when the tasks were not adequately performed by the other employee.

Even if an employee is excluded as a supervisor from the right to engage in concerted protected activity, they are still protected from retaliation for participating in NLRB proceedings. For example, they cannot be fired for testifying about an unfair labor practice.

In 2001, in a case known as Kentucky River NLRB v. Kentucky River Community Care, 532 U.S. 706 (2001), the Supreme Court criticized the NLRB for its formerly more narrow interpretation of the term “independent judgment,” opening the door for the NLRB to expand the definition of who is considered a supervisor. In 2006, in a partisan 3-2 vote, the NLRB issued a ruling that expanded the scope of the “supervisor” exclusion. In Oakwood Healthcare, Inc., the NLRB said that permanent charge nurses in an acute care hospital, in assigning tasks to other employees, exercise supervisory authority, and therefore should be considered supervisors who are not eligible to be part of unions 348 NLRB No. 37 (Sept. 29, 2006). According to the NLRB, independent judgment means at minimum [to] act, or effectively recommend action, free of the control of others and form an opinion or evaluation by discerning and comparing data. The individual must have a certain level of discretion that goes beyond a routine or clerical nature. Unions argue that the decision potentially takes away the federally protected right to form unions from 8 million nurses, building trades workers, newspaper and television employees and others.

What is considered an unfair labor practice?

In Section 8 of the NLRA, there are a number of illegal activities that are considered “unfair labor practices,” or ULPs. ULPs are illegal whether they are engaged in by employers or by unions.

Examples of Employer Conduct Which Violate the NLRA Are:

 Threatening employees with loss of jobs or benefits if they join or vote for a union or engage in protected concerted activity.

 Threatening to close the plant if employees select a union to represent them.

 Questioning employees about their union sympathies or activities in circumstances that tend to interfere with, restrain or coerce employees in the exercise of their rights under the Act.

 Promising benefits to employees to discourage their union support.

 Transferring, laying off, terminating or assigning employees more difficult work tasks because they engaged in union or protected concerted activity.

Examples of Union Conduct Which Violate the NLRA Are:

 Threats to employees that they will lose their jobs unless they support the union’s activities.

 Refusing to process a grievance because an employee has criticized union officers.

 Fining employees who have validly resigned from the union for engaging in protected activity following their resignation.

 Seeking the discharge of an employee for not complying with a union shop agreement, when the employee has paid or offered to pay a lawful initiation fee and periodic dues.

 Refusing referral or giving preference in a hiring hall on the basis of race or union activities.

These provisions mean that employers cannot fire or otherwise discriminate against workers because they exercised any of the rights guaranteed by the NLRA. Most obviously, it means that workers who try to organize a union cannot be fired for that reason. However, the law protects more than just union organizing. Non-union workers who circulate a petition to improve wages, or to get rid of a bad supervisor, are also protected since the petition is “concerted activity.” For more information about concerted activities, see “What is “concerted activity?” below.

How can I show that I was retaliated against in violation of the law?

To win a case of retaliation, you must be able to prove all four of the following elements:

 That you took some protected activity, such as reporting a violation, testifying as a witness, or some other action to help enforce the law (although if you suffered retaliation because the boss mistakenly fingered you as the organizer, you may still have a claim);

 That the employer knew or believed you took such protected activity;

 That you suffered an adverse employment action; and

 That the employer was motivated by your protected activity to impose the adverse action.

What is considered to be protected activity?

The NLRA protects the right of employees to:


 form, join, or assist unions,

 bargain collectively

 engage in concerted activity for collective bargaining or other mutual aid or protection, and/or

 refrain from any of these activities.

So, when Norma Rae stood up and held a sign that said “union,” she was protected from being fired for that act. Similarly, the worker who joins a negotiating committee and makes demands the boss thinks are too radical is also protected from retaliation.

What is concerted activity?

In its broadest protection for workers, Section 7 of the NLRA gives employees the right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.”

“Concerted” means two or more people acting together. So, if one worker asks for a raise, that is a solo action and not protected. But, if that same worker asks a co-worker to make the request together, that action has become concerted. It is well established law that a single employee’s initiative to seek support from a coworker is concerted activity. According to the NLRB,

[T]he guarantees of Section Seven of the Act extend to concerted activity which in its inception involves only a speaker and a listener, for such activity is an indispensable preliminary step to employee self-organization. No union connection is required for employees to engage in concerted activity. Employees shall have the right to engage in concerted activities for their mutual aid or protection even though no union activity be involved, or collective bargaining be contemplated [and] a legitimate interest in acting concertedly in making known their views to management without being discharged for that interest. <i>Root-Carlin, Inc.</i>, 92 NLRB 1313, 27 LRRM, 1235, citing <i>NLRB v. City Yellow Cab Co.</i> (6th Cir. 1965), 344 F.2d 575, 582; <i>NLRB v. Guernsey-Muskingum Electric Co-Op, Inc.</i> (6th Cir. 1960), 285 F.2d 8, 12, and <i>NLRB v. Phoenix Mutual Life Ins. Co.</i> (7th Cir. 1948), 167 F.2d 983, 988, 6 ALR2d 408, cert. denied 355 U.S. 845, 93 L.Ed. 395.

The National Labor Relations Board lists a number of examples of protected concerted activity:

  • Talking with one or more co-workers about your wages and benefits, or other working conditions;
  • Circulating a petition asking for better working hours;
  • Participating in a concerted refusal to work in unsafe conditions;
  • Joining with co-workers to talk directly to your employer, to a government agency, or to the media about problems in your workplace.

However, an employee can lose this legal protection by saying things about the employer that are egregiously offensive, or knowingly and maliciously false, or by publicly disparaging the employer’s products or services without conveying complaints about any labor controversy.

A federal appeals court recently upheld the NLRB’s ruling that the employer violated the NLRA when its managers orally instructed employees not to discuss their wages. <i>NLRB v. Main Street Terrace Care Center</i>, 218 F.3d 531 (6th Cir. 2000).

What is considered to be mutual aid or protection?

As to the “mutual aid and protection” requirement, it is well established that working conditions are a protected subject of concerted activity. For instance, the U.S. Supreme Court has recognized that concerted activity over a lack of heat is for mutual aid and protection.

Indeed, concerted activities by employees for the purpose of trying to protect themselves from working conditions as uncomfortable as these are unquestionably activities to correct conditions which modern labor management treats as too bad to have to be tolerated in a humane and civilized society like ours. <i>NLRB v. Wash Aluminum Co.</i> (1962), 370 U.S. 9, 50 LRRM 2235

Similarly, a desire to talk with co-workers about the quality of supervision, age discrimination in training, assignments and wages, and other workplace grievances are for “mutual aid and protection.” Moreover, the conditions are within the control of the employer, although this factor is not required. Employees may engage in mutual aid and protection by lobbying over issues not within employer control. <i>Kaiser Engineers v. NLRB</i> (9th Cir. 1976), 538 F.2d 1397, 92 LRRM 3153.

When an employee seeks support from her co-workers to raise an issue with management, with that employee receiving the immediate benefit and not informing the co-workers about their mutuality of interests, that employee may still be engaged in concerted activity for the purpose of mutual aid or protection. The solicited employees have an interest in helping the aggrieved individual even if the individual alone has an immediate stake in the outcome because next time it could be one of them that is the victim. Fresh & Easy Neighborhood Market, Inc., 360 NLRB No. 12 (2014) (internal quotations omitted).

I've heard that when the boss starts to ask me questions about something that might get me in trouble, I have the right to have something present. Is this true?

The rights of workers to have a coworker present when the boss decides to question a worker are known as Weingarten rights, named after the first Supreme Court decision to recognize them, NLRB v. J. Weingarten, Inc. 420 U.S. 251 (1975)

Weingarten rights kick in whenever a supervisor asks a worker for information that might be used for discipline. If you are represented by a union, then you have a right to union representation at the meeting. However, the NLRB decided in IBM Corp., 341 NLRB No. 148 (2004), that a non-unionized employee does not have Weingarten rights, and thus does not have the right to have a co-worker present as a witness when the employer calls the employee in for an investigatory interview. Union members do not have the right to choose which union representative will be present; the union gets to pick its own representatives.

Why would you want a coworker to be present? A coworker’s presence means you have a witness. If a dispute arises later about what the company asked, and how you responded, you will have a witness to relate what happened. The union representative or coworker, however, does not have to be a silent witness. They are permitted to confer with you before the interview to understand what is at issue, and to give you advice to help you keep your cool. Trained union representatives will have practiced coaching workers through these difficult confrontations. The representative can help the worker understand the charges, and give information that explains why discipline should not be imposed.

How do I tell my employer that I wish to take advantage of my Weingarten rights?

Workers have to ask for a coworker to be present to use their Weingarten rights. Employers have no duty to tell workers about their rights. Because it is stressful when your employer calls you in for questioning, some workers carry a card that reminds them of what they can say to invoke their Weingarten rights. The card can say:

I am now concerned that this interview could lead to discipline, or affect my personal working conditions. So, I respectfully request that a union representative or coworker of my choice be present at this meeting. Until he or she arrives, I choose not to participate in this discussion.

This statement could save your job.

Am I entitled to Weingarten rights if I am not a member of a union?

No. Under current law, non-union workers do not have Weingarten rights, according to the NLRB. In IBM Corp. 341 NLRB No. 148 (2004), <i>IBM Corp. v. Schult</i>, 341 NLRB 148 (June 9, 2004). the NLRB held that non-union workers do not have the right to a witness at an investigatory interview. Over the decades, the NLRB has gone back and forth regarding whether non-union employees have the same Weingarten rights as union workers. Changes to the NLRB’s political composition, based on changes in presidential administrations, play a large role in explaining the uncertainty regarding Weingarten rights.

Can an employee fo too far: is some conduct not protected activity?

Yes. If you get into an argument with a supervisor, and you punch the supervisor, you are not protected from being fired for punching the supervisor.

Courts have recognized that protected activity may be associated with “impulsive behavior.” Employees cannot be disciplined for protected activity so long as it is lawful and the character of the conduct is not indefensible in its context. A key inquiry is whether the employee has upset the balance that must be maintained between protected activity and ship discipline. If the employee’s behavior oversteps the defensible bounds of conduct, the employee can lose the protections of the law. For example, one employee lost after swearing at a supervisor, refusing to change conduct, and daring employer to fire the employee. So, it’s important to keep your cool.

What is my employer doesn't know I am involved in trying to organize a union?

If your employer did not know that you were trying to organize a union, then the employer will argue that the decision to fire you could not have been in retaliation for that union organizing. Many employers use this reasoning to escape liability. Especially where workers are trying to organize under the boss’s radar, it may be hard to prove employer knowledge of the protected activity. Still, the NLRB will use inferences to deduce who the employer may have suspected. If you were among a select few who had the courage to speak up, that might be enough for a judge to “infer” employer knowledge. Sometimes, the employer’s investigation or interrogation of an employee can reveal employer knowledge of the protected activity.

To avoid this problem, some union organizers will announce their protected activities. For example, you could send the boss a letter (typically by certified mail) that says, “I plan to start talking with my coworkers about organizing a union.” It could describe other protected concerted activities that you plan. This type of letter is called a “revealment” letter because it reveals who is organizing for the union. Certified mail has the advantage of creating a document that shows the date the employer received the item. If the retaliation occurs shortly after the organizing effort (say within six months, or sometimes longer), then the timing alone may persuade a judge that the employer’s true motive was retaliation for your union organizing.

What is an adverse employment action?

The NLRB will not find retaliation unless the employer has imposed an “adverse employment action.” Usually, any action that costs the worker money will be an adverse employment action.Discharges, of course, cost the victim money. So do demotions and denials of overtimepromotions, or benefitsFormal discipline is an adverse employment action.

Since Section 8(a)(3) of the NLRA prohibits discrimination, any difference in treatment that marks who the boss is against should be enough to trigger a finding of a ULP.

How do I prove that the protected activity caused the adverse action?

For you to win, the evidence must show that your employer was motivated to impose that adverse action because of your protected activity. This is called “causation.” Causation can be proved either by direct evidence or by an inference.

Direct evidence is evidence that the employer was upset about the protected activity. If you or another witness saw a supervisor spout off about someone organizing, that is direct evidence of the employer’s “animus” against that protected activity. Similarly, if the employer announces that whoever calls the union will be fired, or warns employees against talking to union organizers, that is direct evidence of animus.

A worker may have a strong case even without any direct evidence. In some cases, causation is obvious: the timing and personal animus make the retaliation clear…

 The boss runs into the office yelling about the so-and-so who reported a violation of the law.

 Norma Rae raises her hand and announces that she made the call. The boss fires her on the spot.

Everyone knows that it is illegal to fire someone just because they organize a union. When the employer knows that it is illegal to fire someone for a certain reason, they will usually try to cover it up. Still, advocates remain amazed at the cases where bosses put an illegal reason in writing, such as:

 “We had to fire him because he circulated a petition against us.”

 “She discussed our wage policies with co-workers.”

In other cases, unlawful retaliation can be inferred from:

  • timing (how soon it occurred after the employer learned about the protected activity),
  • animus (the boss getting angry about the protected activity),
  • deviation from normal practices (people are not usually fired for this reason, or in this manner),
  • changing explanations,
  • a pattern of adverse actions against those who speak up, or
  • the use of false evidence.

How do I file a complaint?

The complaint, or charge, is usually made on a form, available online as a PDF file, called NLRB Form 501, “Charge Against Employer.” The form must be filed in a Regional Office within six months of the date of the incident. The NLRB suggests contacting an information officer at the employee’s nearest Regional Office for assistance. A list of the NLRB Regional Offices can be found here.

The charge must state the nature of the ULP, its date, and your claim about what motivated the employer. It must also name the company or individuals who committed the ULP, and provide their address or other contact information. It should not be a complete statement of all the evidence that supports the claim — that will come later when the Board agent investigates. The charge should state the conclusions about what motivated the employer to commit the ULP.

Who enforces the law?

Unfair labor practices charges, which include retaliation charges, are investigated by the National Labor Relations Board, or NLRB. Charges should be filed with the NLRB office responsible for the area where your workplace is located. You can find your local NLRB office here.

When must the complaint be filed?

The time limit to file a charge against the employer for a ULP is six months. The law requires that the employer actually receive notice of the charge within the six months after the ULP. So, if you are close to the deadline, you should send the charge to the employer yourself, preferably by certified mail.

What happens after I file the charge?

When an unfair labor practice (ULP) charge is filed, the NLRB field office conducts an investigation to determine whether there is reasonable cause to believe the law has been violated. The investigator will typically interview the victim and write out an affidavit for the victim to sign. In some cases, they may interview and take statements from other witnesses. The investigator writes a report to the Regional Director who makes the decision about whether the case will proceed. If the Regional Director determines that the charge lacks merit, it will be dismissed unless the charging party decides to withdraw the charge. A dismissal may be appealed to the General Counsel’s office in Washington, D.C., but dismissals are rarely reversed. There is no appeal from the General Counsel’s decision.

If the Regional Director finds reasonable cause to believe a violation of the law has been committed, the region seeks a voluntary settlement to remedy the alleged violations. If these settlement efforts fail, a formal complaint is issued and the case goes to hearing before an NLRB Administrative Law Judge. The NLRB staff counsel will represent the Board in presenting the evidence of the ULP. There will be little for your personal attorney to do at the hearing; it is between the government and the employer. The judge will issue a written decision that may be appealed to the five-Member Board in Washington for a final agency determination. The Board’s decision is subject to review in a U.S. Court of Appeals. Of the total ULP charges filed each year (around 20,000-30,000), approximately one-third are found to have merit — of which over 90% are settled. From October 2012 to September 2013, more than 70% of the ULP charges filed were either settled or withdrawn. For more information, see What We Do: Investigate Charges.

What are the remedies available to me?

Reinstatement, back pay and interest are the typical remedies awarded by the NLRB in retaliation cases. The Supreme Court, in Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 898-99 (1984), ruled that Section 10(c) of the NLRA permits the Board to issue “an order requiring such person to cease and desist from such unfair labor practice, and to take such affirmative action including reinstatement of employees with or without back pay, as will effectuate the policies of [the NLRA].”

Unfortunately, the NLRB has rarely used its authority to venture beyond these minimal remedies. The former General Counsel of the NLRB has written an article calling on the NLRB to consider front pay, consequential damages, and daily compounding of interest. See NLRB Remedies: Where Are They Going?

In 2009, Congress failed to pass the Employee Free Choice Act. The legislation would have allowed the Board to award an employee with backpay, as well as twice that amount in the form of liquidated damages. This is known as treble damages- essentially awarding the employee with three times the amount of backpay. The bill would also require employers who either repeatedly or intentionally commit ULPs to be fined $20,000 for each ULP. Supporters of the bill argued that these remedies would deter employers from committing ULPs, given its greater financial punishment.

The Board generally does not award damages for emotional distress, or reasonable attorney fees. It is not surprising, therefore, that few lawyers outside of the labor unions are handling retaliation cases at the NLRB. In exceptional cases where the employer has filed a lawsuit against an employee, the Board may award attorney fees where it finds that the lawsuit was brought in bad faith, outrageously, or has flouted the law. <i>Bill Johnson's Restaurants, Inc. v. NLRB</i>, 461 U.S. 731, 747 (1983)Still, the Board rarely uses this power to award attorney fees.

Do I have other remedies?

Some states may recognize that a discharge in violation of the NLRA is a wrongful discharge and allow you to sue for damages in state court. See, for example, the New Jersey Conscientious Employee Protection Act (“CEPA”) <i>N.J.S.A. </i> 34:19-1. However, a New Jersey appeals court ruled in O’Donnell v. Nightlife, 2014 WL 1491415 (N.J. Super. Ct. App. Div. Apr. 17, 2014), that the NLRA pre-empted the plaintiffs’ CEPA claims. According to the Supreme Court, any subjects arguably covered by the NLRA cannot be regulated by the states. In this case, the two plaintiffs claimed that their employer retaliated against them for exercising their collective bargaining agreement rights. Because the NLRA arguably covers issues relating to a collective bargaining agreement, the plaintiffs could not resort to New Jersey law to protect their rights.

If your state permits private causes of action (lawsuits) for NLRA violations, you may consider whether to pursue the NLRB complaint, or go directly to state court. To learn whether your state permits this type of lawsuit, Workplace Fairness suggests you consult a lawyer licensed in your state.

Should I get a lawyer?

It is difficult for most lay people to collect all the useful evidence, organize it into a persuasive story, and comply with all the procedural rules to win a retaliation or whistleblower case. Some lawyers with experience will accept cases even when the client cannot afford to pay regular fees. If the lawyer has enough confidence in the client and in winning the case, the lawyer may accept the case on a contingent basis. The lawyer will then ask the judge to award fair attorney fees after the client has won a favorable decision. Clients will benefit from shopping around for a lawyer as soon as possible after the employer’s first adverse action. Then the lawyer can help make sure the complaint gets filed on time and at the right place. The lawyer can also help make sure that the most important facts are disclosed in the first statement of the complaint.

When you shop around for an attorney, look for attorneys who have experience in employment matters. For more information, see our site’s attorney resources page.

Still, having a lawyer is not required. In the NLRB, you can be represented by a union official, a paralegal, or anyone else of your choosing. Some claimants have won cases representing themselves. Until you have a written agreement with a lawyer for representation, it is your responsibility to make sure the time limits are met in your case.

Right to Work Laws

Do Right to Work Laws affect public or private sector employers?

Right to work laws apply to all public-sector unions (both state and federal) and have also been enacted in 28 states.

I've heard that my state has a Right to Work law. What does that mean?

In the public-sector union context, right-to-work laws mean that union members do not have to pay union dues to be members of the union.

In states that have enacted right-to-work laws that apply to private employers, although they vary based on state law, most Right-to-Work laws prohibit labor unions and employers from entering into contracts that only employ unionized workers for the jobs in the contract. This allows employees to receive the benefits of the union contract without having to pay their share of dues and fees to the union. Essentially, these states allow workers to join a union if they wish, but employers cannot force or compel employees to join a union as a term or condition of employment.

In 1947, the Taft-Hartley Act was passed which prohibited arrangements where employers agree to hire only unionized workers. The act allows for “union shops,” which are arrangements in the workplace that require employees to join a particular union within a certain time-frame after they are hired. However, Taft Hartley created an exception to the “union shops” rule that allows for individual states to pass laws prohibiting union shops. These laws are now referred to as “Right-to-Work” laws.

In states without Right-to-Work laws, the workers covered by a union contract can refuse to join the union and then pay the fees associated with the workplace bargaining. States with Right-to-Work laws require union contracts to cover all workers, not just the ones who are members of the union.

This problem can reduce the union’s bargaining strength, which ultimately results in lower wages and benefits.

Contrary to what proponents of Right-to-Work legislation have said in the past, non-Right-to-Work states do not force employees to unionize; this is strictly prohibited by federal law.

Does my state have a Right to Work Law?

Currently, 28 states have Right-to-Work laws. These states include: Alabama, Arizona, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Missouri (effective August 28th, 2017), Nebraska, Nevada, North Carolina, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia (not currently in effect due to pending litigation), Wisconsin, and Wyoming. Note: if your state is not listed, it does not currently have a right-to-work law, but this area is constantly changing, so please consult with an attorney in your state for additional information.

Who is covered under Right to Work Laws?

Right to work laws vary from state to state but generally most employees working for private employers are covered along with public-sector unions. Workers in the railroad and airline industries are not covered.

Where can I expect to encounter Right to Work laws in the workplace?

  • Public-Sector Jobs: right to work laws apply to all public-sector unions, so if you work in a state or federal government position, you are no longer obligated to pay union dues to be a part of the union.
  • When Being Hired for a Job: When being hired in a Right-to-Work state, you can be covered under a union contract and not be a member or pay any fees to that union. In a Right-to-Work state or in the public-sector, just as in states without these laws, employees are still bound by the union contract and the union is the employee’s exclusive bargaining agent.
  • When Being Contacted by a Union Organizer: When being contacted by a union organizer about joining a union in a Right-to-Work state or in the public-sector, it is your legal right to refuse to join the union or pay membership fees. The same is true for states without Right-to-Work laws. You have the right to join a union, and you also have the right to resign membership after joining that union.
  • When Trying to Organize a Union or Negotiate a Union Contract: If you are trying to negotiate union contracts, or even organize a union itself, it is important to remember that in states with Right-to-Work laws, the workers covered under the union contract do not have to be members of the union or pay membership fees. Therefore, you can expect to find workers wanting to have a union contract without wanting to pay union dues and membership fees. This could potentially lead to fewer members and funds for unions. While Right-to-Work states do not require all beneficiaries of union contracts to pay dues or be members, the union itself must represent all workers under that contract the same.
  • When Union Dues Are Deducted from Your Paycheck: If you are covered under a union contract in a Right-to-Work state or in the public-sector, you are not required to pay dues. If you were never a union member, you should contact the union and your employer about the fees being deducted since you are not required to pay them. If you are a union member and no longer want to be, you have the right to resign your membership. If you choose to do this, you should notify the union that you do not want to pay dues. However, depending on what dues you have agreed to you may still have to pay some fees after resigning your membership.

Are Right to Work states Anti-Union?

Although most employment rights and labor groups are strongly opposed to Right-to-Work laws, proponents argue that Right-to-Work laws simply secure employees’ rights to choose for themselves whether or not to join and/or support a union rather than forcing workers to join as a term of employment. Opponents of Right-to-Work laws consider those laws to enable workers to be freeloaders, to enjoy the benefits of being a union member such as higher wages and job protections, but without paying any of the costs of collective bargaining.

In a recent case, Janus v. AFSCME, the Supreme Court ruled that public-sector employees do not have to pay union fees to unions to cover the cost of collective bargaining.

Proponents of the Janus case argue that bargaining with government is inherently political. Any negotiation made with the government in terms of wages and benefits are political decisions on how much to compensate public employees. The stance adopted by the union may not reflect the political positions of its members, and forcing the employees to support the position of the union is a violation of their First Amendment rights. Proponents also argue that money is fungible, and dollars once designated for non-political purposes may end up being used for political purposes, which is a further violation of the First Amendment freedoms of union members.

Opponents of the Janus case argue that public-sector union membership and revenues will be greatly affected, and the decision will lead to “free-rider” issues where members can enjoy the benefits of collective bargaining without having to pay any of the dues associated with the union. The resulting effect of a decrease in revenues could mean lower pay and benefits for public-sector employees.

What if I'm an employment/labor attorney in a Right to Work state?

Right-to-Work laws differ based on each individual state, and also differ based on whether the job is private sector or public-sector. It is important when representing your clients to understand your state’s law and your client’s union membership status.