Union Local Labor Law and how it works with employment law

Introductory points
and links for further study
of Labor Law

“Labor law” is a subset of “Labor and Employment Law” that focuses on the intricacies of the landmark National Labor Relations Act (NLRA) and any state-based laws that might affect the rights of employees who are unionized or trying to be unionized (with certain limited applications to non-unionized workers).

In this article, I will introduce you to the difference between classical “labor law” and “employment law” and explain how Employment Lawyers sometimes get involved in “labor law” issues.

For further study:

• The starting point for web surfers who wish to learn about “Labor Law” is probably the website of the National Labor Relations Board (NLRB).
• For a worker-activist oriented website, with lots of links to the web’s labor resources, see You Are Worth More (youareworthmore.org).

“Labor Law” and “Employment Law” are not the same thing

The term “labor law” is used inappropriately by the legal system when it comes to describing what “Employment Lawyers” do. For example, the term “Labor and Employment Law” is the heading for lots of internet legal directories accessed by people looking for a plaintiff’s lawyer to handle their Wrongful Termination case. Additionally, the Bar Associations of the various states, and the American Bar Association, usually lump “employment lawyers” into the Labor and Employment Law category.

But it’s wrong to consider “Labor Law” to be the same thing as “Employment Law.” Those two categories got lumped together somehow. I suppose that the category for “Labor Law” was created in the law books with the National Labor Relations Act, (going back 70+ years). As time passed, Congress and the states passed more and more laws regulating the workplace for non-union workers as well. Those lawyers who already did “Labor Law” under the NLRA started doing cases under the new “employment” laws. In those days, perhaps 40 years ago or more, the term “Labor and Employment Lawyer” had more meaning.

As time passed and more and more laws were passed that set workplace standards for non-union employees, lawyers found that they could practice “employment law” without also representing unions or otherwise performing classic “labor law.” Such lawyers are now called “Employment Lawyers” by just about everyone except the bar associations and the lawyer directories that take their classifications from the bar associations. I have a page about them here Employment lawyers and how to find one.

“Employment Lawyers” do very little labor law. That’s because unions have their own contracted lawyers to fight the union’s battles. It could be quite lucrative for a law firm to win a union as a client. But those of us who concentrate in employment law don’t usually get the chance to represent unions – we don’t have the resources to fight major battles, so the unions tend to hire big law firms that cater to the union business.

“Employment Lawyers” sometimes get involved in union-law-related matters. For example, we might represent an employee who was fired in connection with an “unfair labor practice” such as Retaliation for engaging in union-related activity such as trying to organize a union. We might also pick up a battle that the union drops, such as when the union chooses not to arbitrate over an unfair labor practice committed against a union member – an “Employment Lawyer” might be willing to sue the employer when the union won’t help.

NLRB Complaints

It’s common that when you have a grievance, you tell the shop steward about it, and he then says he’ll take care of it, but doesn’t do anything. Your extremely short deadline to file the grievance with the employer passes by, and your rights begin to evaporate. Or maybe the union processes your grievance but due to politics, chooses not to arbitrate. If the union lacks a good reason for its conduct, then you may have a claim for Breach of the Duty of Fair Representation. If you are a unionized worker who thinks that your union is not fairly representing you, you have the right to file a complaint with the National Labor Relations Board (NLRB). However, you have a very short deadline, typically 180 days from the date of the breach of duty.

The union won’t help you when the union messed up

Don’t look to your union to help you if the union mishandles your grievance and therefore the employer won’t arbitrate your dispute. In that circumstance, the union’s lawyers (that big law firm that won the union’s business) will tell the union to stop talking to you about your grievance, because you might have a claim against the union for “Breach of the Duty of Fair Representation.” You can file an NLRB complaint. You can hire an “Employment Lawyer” to fight this battle for you against the union for mishandling your grievance. That’s one of the primary ways in which employment lawyers get involved with “Labor Law.”

Most union contracts call for a detailed grievance process if something happens that you believe to be unfair or a violation of the union contract. Typically, your first grievance must be filed with the employer within an incredibly short deadline period, such as 5 days or 7 days. If you fail to get your grievance in the employer’s hands within that period, the union contract may not be of any help to you. The employer might be able to refuse to do a “step 1″ meeting and any other steps. The union might not be able to force the employer to arbitrate. All of your grievance-related rights under the union contract might evaporate just because you did not get your first grievance filed with the employer in, say, 5 days.

Union contracts can weaken your rights under the employment laws

Here’s another big trap: Your union contract can weaken your rights under the Federal and State employment laws, such as the Discrimination laws or the FMLA law, etc. I don’t want to go into more details here, because it’s too complex. But suffice it to say that some union contract terms and procedures will be used against you in court to weaken your rights under the employment laws. I didn’t say “destroy your rights”; I said “weaken.” Most of the major employment laws apply to the unionized workplace. But sometimes the union contract can, for highly technical reasons, weaken your rights. OK, here’s a quick example. Under FMLA, for non-unionized workers, the employer must give the employee a “reasonable time” in which to submit the doctor’s certification justifying the leave. But the courts have decided that a union contract can weaken your rights, because the union contract can spell out an unreasonably short period in which to submit the doctor’s statement, such as 5 days, whereas the non-unionized worker enjoys a much longer “reasonable” period which could arguably be 30 days. There are many other examples in the lawbooks.

CONCLUDING TIPS

If you are unionized, grieve appropriately and timely. Make sure your shop steward processes your grievance at each step within the time limits specified in the contract. File NLRB complaints when necessary in a timely fashion.

If you are non-unionized, you may still have some rights under the labor laws. For example, if you try to unionize and get retaliated against, call the NLRB and consider calling a lawyer. NOTE: Non-union workers have other rights under the National Labor Relations Act (NLRA). I will write about those rights some day soon and add that discussion to this article. Unfortunately, some of the NLRA rights of non-unionized workers ebb and flow with the political winds, because those rights are to a large extent dependent upon the political appointees that the President makes to the National Labor Relations Board. Democrats appoint people of a certain outlook, and Republicans appoint people of a certain outlook, and the Board’s opinions (and our rights) therefore change over time.

[Quick aside: A few years back there was a huge grocery strike in St. Louis. At the time I wrote some stuff about it. Here’s a piece from the archives: Tim’s thoughts about the St. Louis grocery strike]

Article written by | Tim Willoughby