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Nov 26 2013

Workplace Bullying and its Legal Implications for Unions

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Bullying in the workplace is not a new phenomenon. However, in recent years much attention has been paid to workplace bullying and the problems it poses for employees and employers alike. In the unionized workplace, there is, of course, another party involved: the union. This paper addresses some of the union’s rights and responsibilities with regard to bullying in the workplace. It bears noting, at the outset, that “workplace bullying” is not a legal term of art, or even a well-defined concept.2 Thus, this paper considers a range of workplace conduct that might reasonably be described as “bullying” under existing legal frameworks.

Part One recaps the union’s quasi-statutory duty to fairly represent all members of the bargaining unit. This duty pervades much of what the union does, but arises most commonly in the context of the union’s decision to pursue or not pursue a contractual grievance on behalf of an employee. Part Two addresses whether and to what extent collective bargaining agreements may govern workplace bullying. In the context of the grievance and arbitration procedure, what is the union’s obligation to bargaining unit employees who claim to have been bullied on the job, and what are the potential contractual bases for pursuing a grievance on behalf of those employees? What about when an employee has been disciplined or discharged by the employer for allegedly bullying others on the job? This part also considers the potentially challenging situation where both the bully and the bullied are members of the bargaining unit. Part Three assesses when bullying-type conduct rises to the level of an unfair labor practice under by the National Labor Relations Act (“NLRA”), which prohibits interference with, restraint, or coercion of employees in the exercise of their statutory right to engage in, or refrain from engaging in, union-related activities. Part Four considers several ways in which the employer’s implementation of work rules and policies aimed at curtailing workplace bullying implicates the NLRA; namely, the employer’s duty to bargain with the union, and employees’ right to engage in protected concerted activity. Finally, Part Five briefly examines proposed legislation in New York concerning workplace bullying, and how it might impact unions if it becomes law.

The full article can be found here: Bullies in the Workplace. Written by Brian J. LaClair