Your Rights

 
 

All A Better NYLAG union members have federally mandated rights with which NYLAG cannot interfere. Union members are entitled to (1) participate in union activity without repercussion or retaliation; (2) have a representative present at investigatory meetings with a supervisor or manager that may lead to disciplinary action; and (3) just cause termination. These rights are detailed below, but please reach out to your union representative if you have any questions or requests for assistance.

Your Right to Participate in Union Actions

Employees cannot be “fired, disciplined, demoted, or penalized in any way” for engaging in union activities. National Labor Relations Board Employee Rights. Supervisors also cannot threaten, coercively question, or bribe you in connection to your union activity or as to the union activity of your co-workers. See United States Department of Labor Fact Sheet.

You have the right to:

  1. Distribute union literature;

  2. Wear union buttons, t-shirts, stickers, or similar (unless NYLAG can prove that enforcement of its dress code interferes with NYLAG’s public image, which is very unusual);

  3. Hang posters in your personal space and other spaces where flyers are regularly posted;

  4. Solicit coworkers to sign petitions;

  5. Discuss the union and its activities with coworkers; and

  6. Participate in union activity.

If anyone at NYLAG challenges your exercise of any of these rights, please reach out to your union representative immediately.

Your Right to a Union Representative

All union employees also have Weingarten rights, which encompass an employee’s right to union representation during any investigatory meeting with a supervisor or manager that may lead to disciplinary action. NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975).

Exercising Your Rights

You must make the demand for a union representative before or during an interview, and you cannot be punished for making this request. Here is some language you can use to request your union representative’s presence: "If this discussion could in any way lead to my being disciplined or discharged, I request that my Union representative be present at the meeting. Without representation, I choose not to answer any questions.”

If your supervisor denies this request and continues to ask questions, this constitutes an unfair labor practice and you have the right to refuse to answer. You cannot be disciplined for such refusal, but you are required to sit there until your supervisor terminates the interview, as “leaving before this happens may constitute punishable insubordination.” The University of Massachusetts Weingarten Rights Fact Sheet.

Note, however, that you are not legally entitled to union representation during a meeting that is exclusively disciplinary—in other words, where no investigation is taking place and you are just being disciplined. A Better NYLAG is currently bargaining to include this right in our contract, but it is not afforded by federal labor law. If your supervisor begins to ask you questions about the circumstances of that discipline, the meeting becomes investigatory and your Weingarten rights kick in. At that point, you can request your union representative be present for the meeting. If you are not sure whether the meeting will be investigatory, disciplinary, or even just a normal case review meeting, you should feel free to ask whomever called the meeting to clarify its purpose.

Who Can Be Your Union Rep

Anyone in the union can be a union representative at an investigatory meeting, though we advise you to use a member of the bargaining committee or ALAA for the time being.  If you need representation, contact your bargaining committee representative or reach out to our ALAA organizer, Alexi Shalom (ashalom@alaa.org; 347-417-1715).

Why You Need a Union Rep

A union representative is present at an investigatory meeting to assist the employee. During an investigatory meeting, a union member must have the opportunity to have a private conference with their union representative before questions begin. The union representative may discuss the allegations against the union member privately with the union member and advise the union representative how to approach the questions being asked of them. Union representatives can speak up to clarify facts, provide additional information, or even suggest possible witnesses, though the employer is also entitled to hear the employee’s own version of the facts under investigation. A union representative can also speak up against intimidation tactics. And union representatives also serve the crucial role of bearing witness to the investigatory process through which you may be disciplined.

Union representatives, however, do not possess the right to tell an employee to not answer a question or to lie. An employee can be disciplined for refusing to answer questions once their union representative is present.

If you are not sure whether a union representative is necessary, we advise that you request one. Your union representative will keep the investigation, discipline, and all related information confidential. You have the right to representation; use it.

Your Right to Just Cause Discipline and Termination

Now that NYLAG is unionized, management may only discipline or terminate a union member where they have “just cause” to do so. (Non-union organizations can discipline or fire “at will” employees for no reason at all.) “With few exceptions, employers may not dismiss union workers unless they engage in egregious or repeated misconduct.” Robert M. Schwartz, “Using ‘Just Cause’ to Defend Against Unfair Discipline”, Labor Notes, Jan. 15, 2019.

Generally, an employee cannot be punished or terminated in the following circumstances:

  1. Where the rule or standard an employee is accused of violating has not been made known previously;

  2. Where the employer has not enforced a rule for a prolonged period;

  3. Where the employer has not provided the employee with due process in issuing the discipline;

  4. Where the employer has not provided substantial and credible evidence in support of its allegations;

  5. Where the employer, without justification, assesses inconsistent punishments for the same or similar offenses;

  6. Where the employer has not provided the employee with an opportunity to improve upon non-egregious behavior; and

  7. Where an employer ignores mitigating, extenuating, or aggravating circumstances. 

Please always feel free to reach out to your union representatives for additional guidance regarding your bargaining rights. We are here to help.