Last week we posted a blog that discussed how employers with and those without unionized workforces should prepare for a union’s response to the Coronavirus (COVID-19). Click here to view the blog. This blog discusses what an employer with a non-unionized workforce should do when a union calls. It applies to employers subject to the National Labor Relations Act (NLRA), which covers most private sector employers, including manufacturers, retailers, private universities, and health care facilities. The National Labor Relations Board’s (NLRB) jurisdictional standards are available here. If an employer makes mistakes in responding to a union organizing campaign, the employer might inadvertently voluntarily recognize the union as the employees’ exclusive collective bargaining representative, or if the employer engages in a pattern and practice of unfair labor practices, that could lead to an NLRB decision that orders bargaining with the union. Either of those mistakes could forfeit employees’ right to decide, by a secret ballot election as the NLRA provides, whether or not they wish to be represented by a union.
Avoid the Mistake of Voluntary Recognition
If not prepared to respond to a union’s organizing campaign, an employer could by mistake voluntarily recognize a union as its employees’ exclusive collective bargaining representative. That voluntary recognition would obligate the employer under the NLRA to bargain with the union over employees’ wages, hours and other terms and conditions of employment. If an employer is confronted by a union that claims it represents a majority of your employees based on union authorization cards – allegedly signed by some or a majority of employees, stating that the union represents them – do not under any circumstances ask to see the cards and compare them to the active employee roster. That action is tantamount to recognizing the union as the exclusive bargaining agent. Also, be sure to avoid discussing with the union any changes that it seeks regarding employees’ terms and conditions of employment.
Either reviewing the authorization cards and/or discussing the union’s objectives could result in the NLRB finding that the employer voluntarily recognized the union as the employees’ exclusive collective bargaining representative. A voluntary recognition of a union would forfeit the employees’ legal right to determine by a secret ballot election whether or not they wish to be represented by the union. The proper response to a union presenting authorization cards is to tell the union that the employer will not voluntarily recognize it as the employees’ exclusive collective bargaining representative unless the NLRB certifies it as their representative after the employees determined to be in an appropriate bargaining unit have had the chance to freely exercise their right to make that decision by voting in an election conducted by the NLRB. This free choice is protected by the NLRA.
Avoid the Mistake of Being Ordered to Bargain With the Union
If a union is engaged in a campaign to represent the employees, do not overreact. Under the NLRA, it is an unfair labor practice: to threaten employees with adverse consequences if they support the union; to interrogate employees about either their or their co-workers’ union sympathies or leanings; to promise employees that if they reject the union, they will receive pay increases and/or other more favorable terms and conditions of employment than they currently have; to conduct any surveillance to determine who among the employees is engaged in union activity. An easy way to remember these prohibitions is to rely upon the acronym “TIPS” – no threats, interrogations, promises or surveillance. If supervisors are not already trained about what they can and can’t do and can and can’t say in response to union organizing activity, they must be trained immediately so they do not embark on a pattern and practice of committing unfair labor practices that could subject the employer to a bargaining order.
The NLRB could order the employer to bargain with a union without an election if it finds that the employer engaged in a pattern and practice of retaliating against employees due to their support of the union. The NLRB could also order an employer to bargain with a union without an election if it finds that unfair labor practices had such a coercive effect on the employees that it would be nearly impossible to have a fair election.
After a union files a petition with the NLRB to represent employees, an employer will not have much time before an election is conducted to educate employees about the reasons they do not need to be represented by a union. Under the current NLRB election rules implemented during the Obama Administration, an election can be held in as little as three-weeks. Under the new rules published by the Trump Administration, which are scheduled to become effective on May 31, 2020 if they survive pending litigation challenges, an employer will possibly have two additional weeks in lead up time to the election. But, before a union files a petition for an election, it usually has obtained union authorization cards signed by more than 50% of the employees who will be eligible to vote in the election. Note that election results are based on a majority of ballots actually cast, not on a majority of eligible voters. So if an appropriate bargaining unit consists of 100 eligible voters and only 70 cast a ballot, the union could win the election even though only 36 of the 100 employees voted to be represented by the union. The rest of the employees have to live with that decision by 36 co-workers. Encourage everyone to vote in the election.
As stated in last week’s blog, employers need to evaluate the exposure to a successful union organizing campaign before one starts. A union may be able to conduct a campaign for months without the employer learning about it. When the campaign finally comes to light, it may be too late to educate employees that they do not need to be represented by a union.
Once a campaign has started, new rules put in place, such as a no solicitation/no distribution policy, may result in unfair labor practice charges. The time to introduce such policies, and to ensure enforcement on a neutral and fair basis, is before a union campaign begins. Employers should consider issuing a statement that the employees do not need to be represented by a union in order to have a safe and rewarding workplace and to have their concerns heard and responded to by management.
In order to prepare for a possible union organizing campaign, and for guidance about how to educate employees on their choice without violating the NLRA, we encourage employers to obtain professional advice. Cozen O’Connor is ready to help. As we stated in last week’s blog – BE PREPARED.