Know Your Rights

Union members have a long history of fighting to improve jobs, workplaces, and communities. Many of the rights you enjoy today were fought for and won by past labor activists, including the right to a safe workplace, a workplace that treats all their employees fairly and with respect, the right to representation, and the right to belong to a union without retaliation. These rights and more are all protected by law. The best way to recognize and prevent a violation of your rights is to know them.

The right of public school employees to organize a union is protected by the Educational Employment Relations Act (EERA—a California law). The right of employees at private agencies (e.g. child care providers) and institutions to organize is protected by the National Labor Relations Act (NLRA—a federal law).

The EERA says:

“Public school employees shall have the right to form, join or participate in the activities of employee organizations of their own choosing for the purpose of representation on all matters of employer-employee relations.”

The NLRA says:

“It is 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 associa- tion, 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.”

When and Where We Can Talk About the Union and Distribute Union Material

We can talk about the union all the time—when the next meeting is, what our ideas for a good union contract are, why we support having a union, as long as talking does not interfere with our work. We can talk about the union where we work. We can talk about the union on our meal break with other employees on break. Talking about the union is just as normal as talking about other subjects we’re allowed to talk about at work, such as what we did last night, the game or movie we’re planning to see, a co-worker’s new haircut or our grandchildren. We can distribute materials about the union and ask co-workers to sign a petition on breaks, at meal times, before or after our shift, and in break rooms, locker rooms, the cafeteria, and the parking lot.

However, we must use common sense. Public employees are service providers, so all situations where we are permitted by law to talk about the union or distribute materials require some judgment on our part.

In a workplace, it is illegal for supervisors or managers to:

  • Fire, discipline, threaten or harass us for supporting the union.
  • Ask us what we think about the union or force us to discuss our feelings about the union.
  • Threaten to lay employees off or take away wages or benefits if we support the union.
  • Discriminate against employees for supporting the union.
  • Promise better benefits and working conditions to keep the union out.
  • Spy on union activities among employees.
  • Threaten to close a program or lay off employees if we organize a union.

If an employer violates the NLRA, this is called an “unfair labor practice” or “unfair practice charge” under the EERA. The union or an individual can file a charge with the National Labor Relations Board or Public Employment Relations Board when such a violation occurs.

If your supervisor or manager is breaking the law, report it to your Shop Steward, fill out an Inquiry Form or call our Member Resource Hotline at 213.637.0296.

If you are ever called into an interview meeting with your supervisor or manager so they can investigate a situation which might result in discipline, you have specific representational rights. These rights are summarized below:

  1. You have the right to have your union steward present.
  2. If you want a steward there, you must ask for him or her.
  3. If you do not know why your manager wants to meet with you, ask him/her if it is a meeting that could result in a discipline.
  4. If your manager refuses to allow you to bring a steward, repeat your request in front of a witness. Do not refuse to attend the meeting, but do not answer any questions either. Take notes. Once the meeting is over call your steward at once.
  5. You have the right to speak privately with your steward before the meeting and during the meeting.
  6. Your steward has the right to play an active role in the meeting. She or he is not just witness.

These rights are called “Weingarten Rights” based on a 1975 Supreme Court decision (NLRB vs. J. Weingarten). As with all rights, if we do not use them we lose them. This statement could save your job: “If this discussion could in any way lead to my being disciplined or terminated I respectfully request that my steward be present at the meeting. Without representation present, I choose not to respond to any questions or statements.”

In the case of Garrity v. New Jersey, the U.S. Supreme Court determined that public employees could not be forced, under clear threat of discipline, to violate the principles of compulsory self-incrimination. This decision established what have come to be called “Garrity Rights” for public employees. The Garrity rule is similar to Miranda rights for public employees. However, the burden is on the employee to assert their Garrity rights. These rights can and should be asserted whenever an employee believes they are being investigated for possible criminal conduct. Once an employee has asserted their Garrity rights, management must:
  • Give a direct order to answer the question;
  • Make the question specific, directly and narrowly related to the employee’s duty or fitness for duty;
  • Advise the employee that the answers will not and cannot be used against him/her in a criminal proceeding, nor the fruits of those proceedings; and
  • Allow union representation if the employee also asserts their Weingarten Rights.
A U.S. Supreme Court decision somewhat similar to Weingarten occurred in 1985, with the case of Cleveland Board of Education v. Loudermill. This decision established what have come to be called “Loudermill Rights” for public employees.

Loudermill Rights apply to incidents of involuntary termination.
Prior to being terminated, “the . . . tenured public employee is entitled to oral or written notice of the charges against him (or her), an explanation of the employer’s evidence, and an opportunity to present his (or her) side of the story.” Unlike Weingarten, the employer has an obligation to inform the employee of his/her Loudermill Rights.

The employee has the right to speak or not to speak at the Loudermill (or “pre-disciplinary”) hearing. Also, the employee has a right to union representation, and the union representative may speak on behalf of the employee. If the employee chooses not to attend the Loudermill (or “pre-disciplinary”) hearing, the employer may proceed with termination.

When you or a member of your family are ill, federal and state laws guarantee your right to take time off. These laws also guarantee your right to take a leave from work during pregnancy, childbirth, and adoption. These are some common questions about family medical leave.

Who is eligible for family medical leave?
In order to take family medical leave, you must have worked for your current employer for a total of 12 months (52 weeks), and have also worked at least 1,250 hours in the 12-month period before the date the leave begins.

How long can I take family medical leave?
Eligible employees can take leave up to 12 work weeks in a 12-month period. You do not have to take the leave all at one time.

When can I take family medical leave?
The laws say that you can take family medical leave for one or more of the following reasons:

  • Birth and care of your newborn child
  • Placement with a child for adoption or foster care
  • To care for an immediate family member with a serious health condition
  • When you are unable to work because of a serious health

Who are “immediate family members?”
The law says that your immediate family members include only your spouse, children, or parents.

What is a “serious health condition?”
Illness, injury (including on-the-job injuries), impairment, or physical or mental condition of you or your child, parent or spouse that involves either:

  • Inpatient care in a hospital, hospice, or residential care facility
  • Continuing treatment or supervision by a health care professional

Is family medical leave paid time off from work?
California leads the nation in providing paid family leave insurance benefits. Benefits are based on your past quarterly earnings and range from a minimum of $50 to a maximum of $840 per week for up to six weeks. For more information visit www.edd.ca.gov

What about health benefits?
Your employer is required to maintain your insurance coverage while you’re on leave under the same terms as when you are working.

Can I come back to my same job when I return to work?
Upon your return, you must be placed in the same job or be placed in a comparable position that is virtually identical to your original position in terms of pay, benefits, and working conditions, including privileges, perquisites, and status. If you’re placed in a comparable job, it must involve the same or substantially similar duties and responsibilities, skill, effort and authority, must be performed in the same or geographically proximate work site, and ordinarily means the same shift or the same or equivalent work schedule.

What if my injury or disability means I can no longer perform the duties of my job?
You may have additional rights and benefits under other laws or your union contract, such as disability insurance, workers’ comp (for job-related injuries), the federal Americans with Disabilities Act (ADA), or, for a pregnancy leave, the California Government Code Section 12945(b)(2). Contact your steward or Union representative for more information about these rights.

Where can I get more information about FMLA or to file a claim?

  • California Department of Fair Employment and Housing: 800.884.1684 or TDD 213.897.2840
  • California Employment Development Department website – www.edd.ca.gov – or call 877.238.4373

During times of state budget problems, it’s crucial for us to be informed about our legal rights under the Education Code, and under our contract. The Education Code – Section 45298 for K-12 and Section 88117 for Community Colleges – states that laid off employees are eligible for reemployment for up to 39 months, and are preferred over new hires. Also, voluntary demotions or reductions increase possible reemployment time by an additional 24 months. Employees have the right to return to their original classification as vacancies become available. The entire Education Code section is reproduced below:

45298. Persons laid off because of lack of work or lack of funds are eligible to reemployment for a period of 39 months and shall be reemployed in preference to new applicants. In addition, such persons laid off have the right to participate in promotional examinations within the district during the period of 39 months. Employees who take voluntary demotions or voluntary reductions in assigned time in lieu of layoff or to remain in their present positions rather than be reclassifi ed or reassigned, shall be granted the same rights as persons laid off and shall retain eligibility to be considered for reemployment for an additional period of up to 24 months; provided, that the same tests of fi tness under which they qualified for appointment to the class shall still apply. The personnel commission shall make the determination of the specifi c period eligibility for reemployment on a class-by-class basis. Employees who take voluntary demotions or voluntary reductions in assigned time in lieu of layoff shall be, at the option of the employee, returned to a position in their former class or to positions with increased assigned time as vacancies become available, and without limitation of time, but if there is a valid reemployment list they shall be ranked on that list in accordance with their proper seniority.

The National Labor Relations Act (NLRA) gives employees the right to act together to try to improve the terms and conditions of their employers, by forming a union, joining a union, or otherwise. To preserve these rights, the NLRA sets out the rules for union elections, collective bargaining, and more.

The NLRA also prohibits employers and unions from taking certain actions that would interfere with these employee rights or with the delicate balance the NLRA creates between unions and employers. These actions are called “unfair labor practices”.

Unfair Labor Practices by Employers

The NLRA prohibits employers from:

  • Interfering with an employee’s right to organize, join, or assist a union; engage in collective bargaining; or engage in protected, concerted activities. For example, employers must treat union-related conversations among employees like any other matter unrelated to work: They may not make special rules that single out communications relating to the union or to workplace grievances for disciplinary treatment. (See Shop Talk for information on employer restriction of conversations relating to the union; for information on how these rules apply to online communications among employees, see Do Labor Laws Protect Employee Posts on Social Media?)
  • Dominating or providing illegal assistance of support to a labor union. Employers may not establish their own union (a company union or sham union), or dominate or interfere with any labor organization. To determine whether an employer unfairly controls a particular workplace group, the National Labor Relations Board (NLRB) looks at all of the facts, including who started the group, whether the employer played a role in organizing the group and deciding how it would function, whether management attends meetings or otherwise sets the group’s agenda, the group’s purpose, and how the group makes decisions.
  • Discriminating against employees to encourage or discourage membership in a labor organization, or replacing workers who strike to protect an unfair labor practice.
  • Retaliating against an employee for filing a charge with, or giving testimony to, the NLRB.
  • Refusing to engage in good-faith collective bargaining.
  • Making a hot cargo agreement with a union. A hot cargo agreement is an arrangement between an employer and a union in which the employer promises to stop doing business with another employer, typically one with whom the union has a dispute.
Source

Our union contract protects workers from unfair and unjust discipline and termination. Employers must prove there is a just cause for disciplining workers. Here are seven standards for determining “just cause”: 

  1. Fair Notice: An employer may not discipline an employee for violating a rule or standard whose nature and penalties have not been made known.
    • Example: An employer cannot discipline an employee for taking a call at work on his/ her cell phone, if the employer never notified the employees that this was not permitted. However, this doesn’t apply to self-evident misconduct. Examples include theft, insubordination, fighting, and sleeping on the job. Employers can publicize rules in a number of ways: distribution, bulletin boards, e-mail, meetings or classes. The rules must be clear and should not be ambiguous or vague, such as do not engage in “boisterous conduct” or do not exercise “poor judgment.” 
  2. Prior Enforcement: An employee may not be penalized for violating a rule or standard that the employer has failed to enforce for a prolonged period. 
    • Example: An employer cannot discipline an employee for coming into work a few minutes late one day, if the employer hadn’t enforced this rule for a long time and was aware of other employees coming into work late. A union must prove that employees ignored the rule without penalty over a prolonged period and that management was aware, or should have been aware of, the infractions. An employer who has not enforced a rule in the past can “reset” its policy so long as it notifies employees that it will punish all offenders in the future. 
  3. Due Process: An employer must conduct an interview or a hearing before issuing discipline and must take action promptly. Once assessed, discipline may not be increased. 
    • Example: An employer cannot summarily fire an employee for allegedly stealing some items from his/her work area that turned up missing during an end of the month inventory. Employers must provide an employee with notice of the charges against him/her and an opportunity to explain before discipline is imposed. However, the employer may be excused from conducting an interview if the evidence is so conclusive and misconduct is so egregious that nothing the employee could say could possibly affect the outcome. Employers must take disciplinary action in a timely manner. Employees must be given precise statements of charges. Employees cannot be disciplined twice for the same misconduct (i.e. an employee cannot be given a warning and a suspension, nor can the penalty be later increased in most cases once the penalty has been imposed). 
  4. Substantial Evidence: Charges must be proven by substantial and credible evidence. 
    • Example: An employer cannot discipline an employee based on a rumor. The employer has the burden of proof regarding the alleged misconduct and the appropriate penalty. Arbitrators use three standards of proof: “beyond a reasonable doubt,” which requires an employer to prove guilt “to a moral certainty;” “clear and convincing,” requires evidence that is corroborated, consistent, and precise; “preponderance of the evidence,” is satisfied if the evidence “more likely than not” proves the employer’s case. 
  5. Equal Treatment: Unless a valid distinction justifies a higher penalty, an employer may not assess a considerably stronger punishment against one employee than it assessed against another known to have committed the same or a substantially similar offense. 
    • Example: An employer cannot discipline one employee for taking a long break if it didn’t discipline another employee who also took a long break. Disparate treatment occurs when a markedly harsher penalty is imposed on one employee than on another for the same offense. The union does not need to prove the reason for the disparate treatment.  
  6. Progressive Discipline: When responding to misconduct that is short of egregious (very serious), an employer must issue at least one level of discipline that allows the employee an opportunity to improve. 
    • Example: An employer is expected to apply the lowest penalty that is likely to prevent a recurrence of the misconduct (i.e. giving the worker a warning before a suspension), unless the misconduct is egregious, such as theft, violence or threats of violence, or sabotage. The usual steps in progressive discipline are verbal warning, one or more written warnings, one or perhaps two suspensions, and discharge.  
  7. Mitigating and Extenuating Circumstances: Discipline must be proportional to the gravity of the offense, considering any mitigating, extenuating, or aggravating circumstances. 
    • Example: If the evidence confirms a worker’s guilt, an employer is obligated to make “the punishment fit the crime,” considering any mitigating, extenuating, or aggravating circumstances. Mitigating circumstances can include length of service, spotless or near spotless record, prompt, sincere and unequivocal contrition, participation in treatment programs or counseling. Extenuating circumstances can include poorly communicated orders, inadequate training, insufficient staffing, and a frenetic work environment. On the other hand, aggravating circumstances can outweigh mitigating or extenuating circumstances. These include poor record of misconduct, malicious intent, belligerence, failure to tell the truth or cooperate, failure to accept responsibility. 
Tips for Handling Discipline & Discharge Cases  

Here are some basic tips for stewards and member leaders handling discipline and discharge cases:  

  • Use the “seven tests” as an outline. Did the employer meet the seven tests? Remember that just because an employer messes up on one of the seven tests, this doesn’t mean we automatically win. However, proving a violation of one or more of the tests solidifies our chances of winning if the case advances to arbitration. 
  • If you are there in the employer’s disciplinary meeting, try to stop the employer from suspending or firing a worker. Try to get a cooling off period if necessary. The case becomes harder once a worker is out the door: now we not only have to fight about what happened but also over back pay, etc. 
  • Ask for the employer’s notes and records used to make a decision, including any notes or records a steward or supervisor keeps, even informal records. The union has a right to them. 
  • Do a thorough investigation of the case. DON’T take the employer’s word on anything.  
  • In a disciplinary meeting, make the employer prove their case first. Make them present all the facts and don’t assume anything. Don’t let the boss start the meeting by saying to the union, “OK, tell me why I shouldn’t fire Joe.” Make the boss justify the firing. 
  • There are two parts to every discipline case. Did the employee violate a known rule, and what should the punishment be? Sometimes we lose the first part but then we have to make sure the punishment fits the offense.  
  • If the employer refuses to back down from a written warning, and the case doesn’t merit arbitration, send the employer a written statement disputing the facts and the discipline. Ask that this letter be put into the employee’s personnel file.