Toolkit · Labor and Employment
The Labor Relations and Union Rights Toolkit
29 U.S.C. § 152
- Type
- Toolkit
- Jurisdiction
- National
- Date
- 2024-10-25
- Topic
- Labor and Employment
This toolkit supplies the working documents labor matters actually require. It opens with a coverage screen and a concerted activity worksheet, because those two determinations control everything downstream. It provides an employer conduct log built around the four campaign prohibitions, a Board charge drafting framework keyed to the six-month jurisdictional period, and a set of information request letters for bargaining and grievance handling. Grievance materials include an intake form, a just cause element worksheet applying the standard most arbitrators use, and a past practice evidence sheet. Additional tools cover a Weingarten script, a demand to bargain after a unilateral change, an internal union appeal framework, a strike character analysis, a decertification timing calculator, an employer handbook audit, and a forum deadline tracker mapping every parallel claim. A routing table points to the other UpLaw resources each situation requires.
The Labor Relations and Union Rights Toolkit
Labor and Employment > Labor Relations and Unions | Published 25 October 2024 - Updated 16 August 2026 | UpLaw - uplaw.us
Two determinations control everything: coverage and concert. These documents start there.
Tool 1 — Coverage screen
| Question | Answer | Consequence |
|---|---|---|
| Is the worker an "employee" under 29 U.S.C. § 152? | ||
| Supervisor? Authority to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, discipline, or responsibly direct, using independent judgment | ☐ | ⚠ Excluded entirely — title is irrelevant |
| Independent contractor? | ☐ | ⚠ No labor rights at all |
| Managerial or confidential employee? | ☐ | Excluded — NLRB v. Yeshiva University |
| Agricultural laborer or domestic worker? | ☐ | Excluded |
| Public employee? | ☐ | State law; Janus v. AFSCME on fees |
| Rail or air carrier employee? | ☐ | Railway Labor Act — 45 U.S.C. § 151, 45 U.S.C. § 181 |
| Employer meets Board jurisdictional standards? | ☐ | Discretionary declination for very small employers |
☐ ⭐ Settle coverage before analyzing anything else. See worker classification and assessing and challenging a worker classification.
Tool 2 — Concerted activity worksheet
| Question | Facts | Supports protection? |
|---|---|---|
| Who participated, by name? | ||
| Was the activity undertaken with or on the authority of other employees? | ☐ | |
| Was it about terms and conditions of employment? | ☐ | |
| Was the concern shared, or individual to one employee? | ☐ | |
| Did an individual invoke a right under a collective agreement? NLRB v. City Disposal Systems | ☐ | |
| Does it reach beyond the immediate employment relationship? Eastex, Inc. v. NLRB | ☐ | |
| Any disloyal public disparagement unconnected to a labor dispute? | ⚠ | |
| Any egregious misconduct during the activity? | ⚠ | |
| Any unlawful object? | ⚠ | |
| Evidence of concert preserved? Group email, signature list, texts, witness names | ☐ |
☐ ⭐ Frame it collectively from the start. "Several of us" is protected where "I" frequently is not — and the framing cannot be repaired afterward. 29 U.S.C. § 157.
Tool 3 — Employer conduct log
Fill in the same day, every time. ⭐ This log is the evidence in an election objection or a charge.
| Date | Time | Location | Who said or did it | Exact words or conduct | Witnesses | Category |
|---|---|---|---|---|---|---|
| ☐ Threat ☐ Interrogation ☐ Promise ☐ Surveillance ☐ Discrimination ☐ Grievance solicitation | ||||||
| ☐ Threat ☐ Interrogation ☐ Promise ☐ Surveillance ☐ Discrimination ☐ Grievance solicitation |
The four prohibitions, with examples: ☐ Threats — "the plant will close," "you'll lose your benefits," "things will get worse." ☐ Interrogation — "who started this?", "how will you vote?", "who else signed?" ☐ Promises or grants — a raise announced mid-campaign, a longstanding complaint suddenly fixed, a new policy. ☐ Surveillance — watching a meeting, photographing handbilling, or any statement creating the impression of watching.
☐ ⭐ A single supervisor's remark can set aside an election and, in a serious case, support a bargaining order under NLRB v. Gissel Packing Co.. ☐ ⭐ File charges during the campaign, not after. A live charge changes employer behavior; a post-election charge rarely does.
Tool 4 — Unfair labor practice charge framework
CHARGE AGAINST [EMPLOYER / LABOR ORGANIZATION]
- Charged party: [full legal name, address, and the correct entity].
- Basis of the charge. Within the past six months, the charged party has interfered with, restrained, and coerced employees in the exercise of rights guaranteed by 29 U.S.C. § 157, in violation of 29 U.S.C. § 158, by: a. On or about [date], discharging [name] because [he/she/they] engaged in protected concerted activity, specifically [describe]; b. On or about [date], interrogating employees concerning their union sympathies and activities; c. On or about [date], threatening employees with [consequence] if they engaged in protected activity; d. On or about [date], promising or granting benefits to discourage protected activity; e. On or about [date], creating the impression that employees' protected activities were under surveillance; f. Maintaining a rule at [section] of its handbook that employees would reasonably construe to prohibit protected activity.
- Employees affected: [names].
- Witnesses: [names and contact information].
[Charging party, contact, date]
☐ ⚠ File within six months of the violation. 29 U.S.C. § 160 — jurisdictional. ☐ Name the correct legal entity; a charge against the wrong employer wastes the period. ☐ Prepare witnesses for affidavits; the regional investigation runs on them. ☐ Gather handbooks, policies, emails, discipline records, comparator discipline, and schedules. ☐ Rules of procedure at 29 C.F.R. part 102 and 29 C.F.R. part 103. ☐ ⚠ Remedies are make-whole only — reinstatement, back pay, notice posting. No punitive damages.
Tool 5 — Information request letters
⭐ The most underused tool available to a union. Requests for relevant information are enforceable, and refusals are easy violations to prove.
For bargaining:
Pursuant to the duty to bargain in good faith under 29 U.S.C. § 158, the Union requests the following information, which is relevant and necessary to the performance of its duties as exclusive representative:
- A current list of bargaining unit employees with job classification, date of hire, wage rate, and shift.
- Wage and benefit costs per employee by classification for the past three years.
- Health and welfare plan documents, premium costs, and claims experience to the extent permitted.
- Pension and retirement plan documents and funding status.
- Overtime hours by employee and classification for the past two years.
- All subcontracting of bargaining unit work for the past three years, with the contracts.
- Staffing levels and vacancies by classification.
- The Employer's attendance, discipline, and safety policies currently in effect.
- [If inability to pay is asserted:] Financial statements substantiating that claim.
Please produce by [date] or advise what you contend is not relevant and why.
For a grievance:
Pursuant to the Union's duty to investigate and process grievance [number], the Union requests:
- The complete investigation file, including all statements and notes.
- All documents relied upon in imposing the discipline.
- The grievant's complete personnel file.
- Discipline imposed on all other employees for the same or similar conduct in the past three years, with names redacted if necessary.
- The policy alleged to have been violated, and all versions in effect during the grievant's employment.
- Any recording, video, or electronic record of the incident, and confirmation that it has been preserved.
- Attendance and performance records for the relevant period.
☐ ⚠ Request preservation of video and electronic records explicitly; retention cycles are short. ☐ Follow up in writing; a delayed response is itself evidence.
Tool 6 — Demand to bargain after a unilateral change
[Date] — [Employer representative]
Re: Unilateral change to [subject] — demand to bargain and to rescind
On [date], the Employer [implemented / announced] the following change affecting bargaining unit employees: [describe precisely].
This is a mandatory subject of bargaining. The Employer implemented it without notice to the Union and without affording an opportunity to bargain, in violation of 29 U.S.C. § 158. See NLRB v. Katz.
The Union demands that the Employer: (1) immediately rescind the change and restore the status quo ante; (2) make whole any employee adversely affected; and (3) bargain over the change before any implementation.
The Union further requests: all documents relating to the development and implementation of the change; all communications to employees about it; and the identity of every employee affected.
Absent a response by [date], the Union will file a charge and pursue all available remedies.
[Union representative, date]
☐ ⚠ Send promptly. Delay can be argued as acquiescence. ☐ File a charge within six months regardless of the response — 29 U.S.C. § 160. ☐ In restructuring, distinguish decision from effects bargaining — First National Maintenance Corp. v. NLRB and Fibreboard Paper Products Corp. v. NLRB. ☐ Enforce the agreement itself under 29 U.S.C. § 185.
Tool 7 — Weingarten script
Print on a card. ⚠ The right must be requested — nobody will offer it.
If asked into a meeting that could lead to discipline, say:
"If this discussion could in any way lead to my being disciplined or terminated, or affect my personal working conditions, I respectfully request that my union representative be present. Without representation, I choose not to participate in this discussion."
Then: ☐ Do not walk out without saying that — say the words first. ☐ If the request is denied and the employer ends the interview, that is lawful. ☐ If the employer proceeds anyway, repeat the request and note that you are answering under protest. ☐ Write down immediately afterward: who was present, what was asked, and what you said.
For the representative: ☐ Ask for the subject of the interview before it begins. ☐ Ask for a moment to confer with the employee privately. ☐ You may assist and clarify — you may not obstruct or answer for the employee. ☐ ⭐ Take notes. A steward who says nothing but writes everything down has still changed the interview.
☐ NLRB v. J. Weingarten, Inc.. ☐ ⚠ The employer may lawfully end the interview and decide on other evidence.
Tool 8 — Grievance intake and just cause worksheet
Intake
| Field | Entry |
|---|---|
| Grievant and classification | |
| Date of the event | |
| Date the grievant learned of it | |
| ⚠ Contract filing deadline | |
| Contract article and section violated | |
| Statement of facts | |
| Remedy sought, specifically | |
| Witnesses | |
| Documents requested | |
| Parallel statutory claim and its deadline |
Just cause elements — the standard most arbitrators apply
| Element | Facts | Met? |
|---|---|---|
| Did the employee have notice of the rule and the consequence? | ☐ | |
| Is the rule reasonably related to the operation? | ☐ | |
| Did the employer investigate before disciplining? | ☐ | |
| Was the investigation fair and objective? | ☐ | |
| Is there substantial evidence of the violation? | ☐ | |
| Has the rule been applied evenhandedly? | ☐ | |
| Is the penalty proportionate to the offense and the record? | ☐ |
Past practice evidence
| What the practice was | How long it existed | Who knew of it | Documents proving it |
|---|---|---|---|
☐ ⭐ Consistent past practice frequently beats contract language in arbitration, and it is proved with documents and testimony about what actually happened over years. ☐ Awards are final on the merits under the deferential United Steelworkers v. Warrior & Gulf Navigation Co. framework. See arbitration and compelling, resisting, or preparing for arbitration.
Tool 9 — Internal union appeal
[Date] — [Union appeals body]
Re: Appeal of the decision not to arbitrate grievance [number] — [member name]
- I am a member in good standing and the grievant in the above matter.
- On [date], I was informed that the Union would not advance the grievance to arbitration.
- I request: (a) a written statement of the reasons for the decision; (b) the investigation file; (c) the identity of the person or body that decided; and (d) reconsideration.
- The grievance has merit because: [facts, comparators, contract language, past practice].
- The investigation was inadequate in the following respects: [ ].
- I request a hearing before [the appeals body] as provided by Article [ ] of the Constitution.
[Name, contact, date]
☐ ⭐ Exhaust this first. It is faster, cheaper, and it builds the record if litigation follows. ☐ The standard for a duty of fair representation claim is arbitrary, discriminatory, or bad-faith conduct — Vaca v. Sipes. Negligence is generally insufficient. ☐ ⚠ The hybrid suit carries a short limitations period. ☐ Member rights: 29 U.S.C. § 411, enforceable under 29 U.S.C. § 412; reporting at 29 U.S.C. § 431; elections at 29 U.S.C. § 481; officer duties at 29 U.S.C. § 501; definitions at 29 U.S.C. § 401; regulations at 29 C.F.R. part 452 and 29 C.F.R. part 458.
Tool 10 — Strike character analysis
⭐ The single most consequential determination in any strike: economic strikers may be permanently replaced; unfair labor practice strikers may not.
| Question | Facts | Effect |
|---|---|---|
| What is the stated object of the strike? | ||
| Had the employer committed unfair labor practices before it began? | ☐ | Can make it an unfair labor practice strike |
| Were charges filed and when? | ||
| Did employer conduct during the strike prolong it? | ☐ | Can convert an economic strike |
| Is there a no-strike clause in effect? | ☐ | ⚠ Injunction risk under Boys Markets, Inc. v. Retail Clerks Union |
| Is the dispute arbitrable? | ☐ | Strengthens the injunction |
| Were required notices given (contract expiration, health care)? | ☐ | |
| Is the action intermittent or partial? | ☐ | ⚠ Generally unprotected |
| Any property damage or destruction? | ☐ | ⚠ Glacier Northwest, Inc. v. Teamsters |
| Any secondary activity? | ☐ | ⚠ 29 U.S.C. § 158; damages at 29 U.S.C. § 187 |
| Has an unconditional offer to return been made in writing? | ☐ | Starts recall rights |
☐ Right to strike: 29 U.S.C. § 163; anti-injunction provisions at 29 U.S.C. § 101, 29 U.S.C. § 104, and 29 U.S.C. § 107; conciliation at 29 U.S.C. § 165 and 29 U.S.C. § 169.
Tool 11 — Decertification timing calculator
⭐ The windows decide these cases. A petition one day outside is dismissed regardless of support.
| Bar | Period | Open window |
|---|---|---|
| Certification year | One year from certification | None |
| Contract bar | Up to three years of the contract's term | The defined window before expiration |
| Election bar | One year from a valid election | None |
| Voluntary recognition bar | A reasonable period after recognition | None |
| Successor bar | A reasonable period after a successor's obligation attaches | None |
☐ Compute the window before gathering anything. ☐ Thirty percent showing required for decertification or deauthorization. ☐ ⚠ The employer may not initiate, sponsor, or assist. Employer fingerprints void the petition and produce a charge under 29 U.S.C. § 158. ☐ Deauthorization removes union security while keeping the union; on dues, note 29 U.S.C. § 164 and Communications Workers v. Beck. ☐ Withdrawal of recognition by an employer requires actual loss of majority support and is hazardous. ☐ Representation procedures at 29 U.S.C. § 159.
Tool 12 — Employer handbook audit
⭐ A rule can violate the Act without ever being enforced. Maintaining it is the violation.
| Provision | Present? | Problem | Revised? |
|---|---|---|---|
| Prohibition on discussing wages or compensation | ☐ | ⚠ Usually unlawful as written | ☐ |
| Broad social media policy reaching workplace complaints | ☐ | Unlawful if reasonably read to cover protected activity | ☐ |
| Blanket confidentiality during investigations | ☐ | Requires case-specific justification | ☐ |
| Civility or professionalism rule reaching protected complaint | ☐ | Overbroad as applied | ☐ |
| No-recording rule | ☐ | Scrutinized where it prevents documenting activity | ☐ |
| Solicitation and distribution rules | ☐ | Must be evenhanded, limited to work time and areas | ☐ |
| Media contact prohibition | ☐ | May reach protected appeals to the public | ☐ |
| Rule against "disloyalty" | ☐ | Overbroad if it covers labor disputes | ☐ |
| Arbitration agreement with class waiver | ☐ | Enforceable — Epic Systems Corp. v. Lewis — but ⭐ does not bar a Board charge | ☐ |
Supervisor training checklist ☐ The four prohibitions: threats, interrogation, promises, surveillance ☐ "Who started this?" is interrogation ☐ Fixing a complaint mid-campaign is a promise of benefit ☐ Watching a meeting is surveillance ☐ A single remark can set aside an election — NLRB v. Gissel Packing Co. ☐ Never assist a decertification effort ☐ Answer information requests promptly ☐ Never change a mandatory subject unilaterally — NLRB v. Katz ☐ Preemption limits state-law defenses — San Diego Building Trades Council v. Garmon, Machinists v. Wisconsin Employment Relations Commission, and Lingle v. Norge Division ☐ See starting and running a small business and the paperwork that protects you.
Tool 13 — Forum deadline tracker
⭐ Filing in one forum rarely forecloses the others, but missing a deadline forecloses that one permanently. Calendar them all on day one, then choose.
| Forum | Deadline | Calendared | Remedy |
|---|---|---|---|
| Board charge — 29 U.S.C. § 160 | ⚠ Six months, jurisdictional | ☐ | Reinstatement, back pay, notice |
| Contract grievance | ⚠ Contract period, often days | ☐ | Contract remedies |
| Election objections | Short window after the tally | ☐ | Rerun election |
| Regional dismissal appeal | Stated in the letter | ☐ | Reinstatement of the charge |
| Discrimination charge | 180 or 300 days | ☐ | Damages and fees |
| Wage claim | Statutory | ☐ | Unpaid wages, liquidated damages |
| Safety whistleblower complaint — 29 C.F.R. part 1977 | Short | ☐ | Reinstatement, back pay |
| Internal union appeal | Union constitution | ☐ | Reconsideration |
| Hybrid duty of fair representation suit | Short | ☐ | Damages |
| Public employee appeal | Statutory | ☐ | Varies |
☐ See employment discrimination charges, wage and hour law, workplace safety, and reporting misconduct and preserving a retaliation claim.
Tool 14 — Routing table
| If your situation is | Go to |
|---|---|
| Understanding what is protected | The right to act together |
| Working the full framework | Labor relations and unions |
| Acting on a campaign, charge, or grievance | Organizing, filing a charge, and pursuing a grievance |
| A discharge outside a union setting | At-will does not mean for any reason |
| Reviewing a severance offer | Responding to a termination and reviewing a severance agreement |
| A discrimination claim | Employment discrimination charges |
| Unpaid wages or overtime | Wage and hour law |
| A safety complaint | Workplace safety |
| Retaliation for reporting | Reporting misconduct and preserving a retaliation claim |
| Classification questions | Worker classification |
| Challenging a classification | Assessing and challenging a worker classification |
| Arbitration procedure | Arbitration |
| Preparing for an arbitration | Compelling, resisting, or preparing for arbitration |
| An arbitration clause in a handbook | The clause you clicked past |
| Leave and accommodation | Leave and accommodation |
| Employer compliance generally | Starting and running a small business |
| Judicial review of an agency decision | Civil appeals |
| Proceeding without a lawyer | Representing yourself in civil court |
| A noncitizen employee involved | Removal defense |
| Workers' compensation issues alongside | Workers compensation |
Tool 15 — The card
- Coverage first. Supervisors and contractors have no rights under the Act.
- Say "we." Concert is what triggers protection.
- Six months to file a charge. It is jurisdictional.
- Log every employer statement the same day.
- Threats, interrogation, promises, surveillance — the four prohibitions.
- Request information; it is enforceable and underused.
- Never change a mandatory subject unilaterally.
- Grievance deadlines are days, not months.
- Ask for a representative — the right must be requested.
- Economic strikers can be permanently replaced. Know which kind of strike it is.