What are my rights as a Union worker?

Who am I? I'm Robert Boone, a retired union worker. I welcome the opportunity to be a member of this blog and to share my experiences with you. On October 4, 2018 I will have served and/or been a member of the UAW for 53 years. I spent my youth in the flatlands of West Tennessee on a sharecropping farm. I moved to Indiana in 1960. After quitting high school in 1963 I went to work in various industrial factories until I hired in at Allison Division of General Motors in 1965. I decided to make that my career.

I have served at all levels of local union representation from alternate committeeman to chairman of the bargaining unit; a position I held from 1974-'78 and 1983-'89. From 1979-'82 I served as Benefits rep. I attended my first Constitutional Convention in 1970 (which was Walter Reuther's last) and I  attended every subsequent convention either as an elected or fraternal delegate, or, as part of my duties as Servicing Rep until I retired in 2004.

I also served as Serving Rep for 15 years for as many as 26 local unions. My responsibilities included negotiating agreements, processing grievances through the procedure (up to and including arbitration), writing by-laws and handling legal matters that did not require court appearances. I even served as a UAW Staff Council committeeman for other Servicing Reps in my region. There isn't much I haven't experienced in my time as a union member.

And I'm not done yet. I am a FMCS (Federal Mediation and Conciliation Services) arbitrator, certified to issue final and binding awards/decisions in labor arbitration.

Today's post: What are my rights as a Union worker? (links to sources will appear in tan colored print)

Most would probably agree that worker's rights are derived from our U.S. Constitution, and we like to believe that those rights travel with us wherever we go, 24/7. Unfortunately, that is not true. AS far as worker's rights go the constitution only protects us from actions by the state, not fat cat private employers like GM. In the PRIVATE sector, for example, GM has NO legal obligation to respect your U.S. Constitutional rights unless you cover such rights in a labor agreement and your union defends those rights.

One early October afternoon at our Plant #11 (GM/Allison) a lanky old supervisor better known as "High Pockets," informed me, "Kid, when you punch in you leave your constitutional rights in the damn time card rack, and your ass belongs to me for the remainder of your shift." I thought he was nuts. I have my rights, or so I thought. I can raise cane about the unbearable heat in this plant. Surely the 1st amendment protects my freedom of speech. I soon found out, however, that High Pockets was right.

You and I do not have a constitutional right to free speech in the private workplace! Under the law, even if your employer makes an unsafe product and you decide to become a whistleblower and reveal it you have no legal protection against being fired.

One other important example of how our constitutional rights do not travel with us into the private sector is the basic concept of "innocent until proven guilty." Outside of the workplace in the real world you must be proven guilty before any punishment can be levied. On the job--even under a union contract--when the fat cats discipline or discharge us the punishment is immediate. You have to wait until your grievance is resolved for any justice. In the meantime you are sent home, off work and lose pay (maybe even your job), and only recover your loses IF you win the grievance.

So, do we, as private sector employees, have any protection? Yes. there are two sources which give us some of the same protections we receive outside the workplace.

1) The first is your union and collective bargaining agreement. That provides such things as seniority rights (last in--first out) and "just cause" regarding disciplinary matters. Your contract does not provide those same protections for non-unionized workers in your workplace, and, it does not mean that supervisors will be governed by the same rules as are working folks. If an hourly worker starts a fight, for example, he or she is likely to be fired because of a shop rule against fighting. Not necessarily so if it is the supervisor who starts the fight. What we have is a kind of "half-citizenship," but not full citizenship.

2) The other source of protection is Federal law. These rights have been gained over many years of history--and not without some tough and sometimes even violent struggles. The eight-hour day is one. Finally recognized by Congress in the Fair Labor Standards Act (otherwise know as the Wages and Hours Act) of 1938, the fight had begun as early as the 1880's when the labor movement took part in political strikes to raise the issue.

Here is a partial list of rights recognized by Federal law to protect working folks:

1. The right to engage in concerted activity for mutual aid and protection. (Section 7 or the National Labor Relations Act) 

2. The right not to be enjoined by Federal courts when engaging in such concerted activity. (Section 4 of the Norris LaGuardia Act)

3. The right to use state or Federal court to require enforcement of a contract with an employer. (Section 301 or the National Labor Relations Act)

4. The right for overtime payment (time-and-a-half) after 40 hours. (the Fair Labor Standards Act)

5. The right to refuse abnormally dangerous work. (Section 502 of the National Labor Relations Act and the Occupational Safety and Health Act--OSHA)

6. The right not to be discriminated against because of race, sex, religion or national origin in hiring, promotion or discharge. (Title 7 of the Civil Rights Act)

7. The right to free speech about union affairs, and to a minimum, due process when disciplined.   (Title 1 of the Landrum Griffin Act)

The following groups are not covered by the NLRA--both union and non-union: Managers, supervisors, confidential employees such as company accountants, farm workers, familes of employers, government workers, most domestic workers, independent contractors, and certain industry groups that are otherwise regulated.

The final type of worker to be discussed are non-union workers working in the private sector for fat cat employers.

In most states these are known as "Employees at Will." This is a legal concept referred to as the Doctrine of Employment at Will. It essentially gives employers the right to fire employees for any reason, no reason at all, and even unfair reasons--as long as they are not illegal reasons. The only protection these folks have are the basic law of the land and/or the court systems. Remember, workers face employers with very deep pockets, so traveling down the court route is not a good option for most folks.

Most UAW labor union contracts require, cause, just cause, or reasonable cause of proof before a worker covered by the agreement can be successfully penalized for an accused infraction. 

Years of arbitration awards and court decisions have resulted in the below list of requirements becoming the norm for arbiters to evaluate the just cause provisions in discipline cases. These requirements are known as, the Daugherty Seven Test.

1. Did the company give the employee forewarning or foreknowledge of the possibility or probability of disciplinary consequences of the employee's conduct?

2. Were the company's rule or managerial (sic) reasonably related to (a) the orderly efficient and safe operation of the company's business, and, (b) the performance that the company might properly expect of the employee?

3. Did the company, before administering discipline to an employee, make an effort to discover whether the employee did, in fact, violate or disobey a rule or order of management? Was a fair, thorough, and impartial investigation carried out BEFORE discipline was imposed? (this theory makes two good points, 1) the right to know of the offense charged, and 2) the employer is required to conduct their investigation before issuing discipline.)

4. Was the company's investigation conducted fairly and objectively?

5. At the investigation, did the company "judge" obtain substantial and compelling evidence or proof that the employee was guilty as charged?

6. Has the company applied its rules, orders and penalties evenhandedly and without discrimination to all employees?

7. Was the degree of discipline administered by the company in a particular case reasonably related to, a) the seriousness of the employee's proven offense, and, b) the record of the employee in his or her service with the company?

The arbiter in any case has the discretion to decide if a minor violation warrants a penalty that should be mitigated or overturned. A minor or major violation of any of the seven-test standards can overturn the management claim of just cause, depending on the arbitrator selected and his views.

Keep in mind when an arbitrator is hearing a case, the burden of proof in discipline cases (either union or non-union) belongs to management and they must show just cause. In most other cases the burden of proof falls on the union.

The messages to be received from this article are:

1. Organize! The job you save may be your own. The just cause provisions of your contract are alone worth your monthly dues. Otherwise you might be fired for any reason, no reason or even unfair reasons (as long as they are not illegal reasons, such as discrimination)
2. Non-union employees have little protection, and that protection can be prohibitively expensive. Lawyers and courts do not come cheaply!
3. State employees, both unionized and non-union have constitutional protection from their employers--but not nearly as much as union employees.
4. You or I, by ourselves, cannot successfully take on management. We would lose every time. Your union is your ONLY legal way to fight injustice in the workplace except as I have explained above. Union men and women act as one to protect one another. If your union isn't perfect--and none are--work to improve it through the votes you cast. You can make a difference. As individuals we fail. Together we may teach our employers the painful lessons they need in order for there to be respect and economic justice in our workplace. 

Solidarity forever isn't just a song lyric--It is the union way of life.