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Be wary of disciplining employees soon after union activities

by on
in Employment Law,Firing,Human Resources

With union membership shrinking rapidly in the United States, unions have begun aggressive organizational efforts. For them, it is a matter of survival.

Increasingly, such union efforts are gaining support from the National Labor Relations Board (NLRB), which is also fighting to stay relevant.

Specifically, courts, the NLRB and state labor relations boards are becoming more open to employee's claims that they were disciplined in response to their union activities, even when no connection exists. As the following case shows, mere coincidence may be enough for the NLRB to conclude an employer is targeting union supporters.

For that reason, it's important to be cognizant of your timing when taking action against a union worker.

Recent case: When Richard Carper and Anthony Richards arrived for their first day on ironworker jobs, the weather prevented the company from sending them to a work site. The two men, who commuted 100 miles to work, then asked to be excused from work the following day if a predicted ice storm developed. The supervisor agreed. Meanwhile, the two signed union authorization cards at the union hall that day.

Since the weather was bad the next day, the two men didn't come to work. The company canceled work for those who did show up, but fired Carper and Richards for not showing up. Based on the close timing between the firings and union enrollment, the NLRB concluded that they were illegally fired for joining the union. (Construction Products, Inc., 346 NLRB No. 60, 2006)

Final tip: Remember that you don't have to be a union workplace for the NLRB to get involved. The board is just as concerned with how employers treat employees before they unionize as after. Employees don't have to be actively trying to bring a union in to be protected.

Most discussions about working conditions will be considered protected activity and any retaliation will likely be viewed as illegal under the National Labor Relations Act. Ditto for any rules that forbid employees from discussing compensation.

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