What Can an Employer Do During a Union Organizing Drive

There is so much focus on what employers cannot do during a union organizing drive that what an employer can do is frequently forgotten. The things an employer cannot say and do, while significant, pale in comparison to what an employer is permitted to do during a union organizing campaign.

Employers can state a fact or make an opinion that does not violate TIPS. For example, supervisors can have discussions with employees about the union organizing drive, so long as the supervisor does not ask the employee how she feels about the union or how she will vote in an election.

Accordingly, that supervisor can explain why the employer does not believe union representation is in the best interest of the employee or company, state facts about collective bargaining, discuss how unions can fine employees, the true cost of being in a union, and what it really means to be on strike. Employers should not shy away from discussing unions with their employees, but they should make sure they know the legal boundaries of what they can and cannot say.

Companies facing a union organizing campaign can, and should, hold periodic meetings with groups of employees to discuss the organizing campaign. Employees should be paid for these meetings, and it is not illegal to feed employees during these meetings. When these mandatory meetings are held – and there are rules when they can and cannot be held – management level employees should discuss the company’s union free philosophy and explain what employees can expect during the organizing drive.

For example, employees should continue to report to work on time and work diligently; employees will be excused to vote when the time comes; employees will not be treated any better or worse depending on their union affiliation; and remind employees that regardless whether they signed authorization cards, they are free to vote however they want during the election.

There are many other things that employers can do during a union organizing drive. Each of these things are legal and help companies thwart the drive and win an election. But I know that unions monitor this blog closely, and my clients would kill me if I give away all my secrets.

An Extremely Active NLRB Requires HR’s Attention

As appearing in the Human Resource of Central Ohio (HRACO) monthly newsletter

 

Unless you lived in a cave in 2011 – and your cave did not have WiFi – you likely heard about a lot of changes from the National Labor Relations Board. And, if you’re like most companies I deal with, unless you have a union or are immediately impacted by the changes you heard, you probably didn’t pay too much attention to them. In one ear and out the other. That’s how I approach most legal and legislative updates until someone says “Matt, this stuff matters to you, so listen up.” Well, here I am telling you that what follows matters to you.

Even if your company is union-free, the National Labor Relations Act applies to you and many of these changes target non-union employers more than they do companies with an established labor union. The overall goal of the 2011 NLRB (comprised mostly of former union lawyers) was to make unions more prevalent and expand the reach of the National Labor Relations Act into new areas of the workplace.

Because of the high number of major changes, this article will just highlight what changed in a simple bullet point format. No need to write a tome about these changes, other lawyers have already done that and can be found in Google. Consider this a cheat sheet of sorts, something to make you aware of the new rules.

President Obama appointed three new Board Members to the NLRB without the Senate’s approval. Republican Senators say this is not allowed and are challenging the appointments as unconstitutional. So whether any NLRB 2012 decisions are valid will be determined in the months ahead.

The NLRB prohibits employees from signing arbitration agreements that prevent them from joining other workers in class-action arbitration proceedings or lawsuits. (D.R. Horton, Inc., 357 NLRB No. 184, Jan. 2012)

The NLRB invalidated a personnel policy that prohibited employees from discussing matters that were being investigated by the employer. The Board held that companies can only keep employees from discussing ongoing investigations when testimony is likely to be altered, witnesses need protection, or evidence may be destroyed. (Hyundai American Shipping, Inc., 357 NLRB No. 80, Dec. 2011)

Field supervisors are permitted to encourage workers to vote in favor of a union despite long-standing rules to the contrary. The NLRB felt that the supervisors in question did not have enough authority to speak on management’s behalf and were thus treated as non-managerial employees. (DIRECTV Holdings, LLC, 357 NLRB No. 149, Dec. 2011)

A company rule requiring employees to only perform work during working hours violated the NLRA because such a rule could confuse employees into believing that they could not engage in union solicitation during breaks and lunches. According to the NLRB, “working hours” now means time when you are at work, not time spent actually working. (Hyundai American Shipping, Inc., 357 NLRB No. 80, Dec. 2011)

The Board made it much more difficult for employees to challenge a union’s status as their exclusive bargaining representative after an employer voluntarily recognizes a union (Lamon’s Gasket Co., 357 No. 72, Aug. 2011) or after a company purchases a unionized company (UGL-UNICCO Service Co., 357 NLRB 76, Aug 2011)

The NLRB said that the following policy violated the NLRA: “Voice your complaints directly to your immediate supervisor or to human resources through our ‘open door’ policy…Complaining to your fellow employees will not resolve problems” because it allegedly prohibited employees from speaking to co-workers about terms and conditions of employment. (Hyundai American Shipping, Inc., 357 NLRB No. 80, Dec. 2011)

Micro-bargaining units are permitted. Now, unions can more readily organize employees by job titles and classifications instead of the traditional community of interest standard. Employers face the likelihood of several smaller bargaining units that are easier for unions to organize and several collective bargaining agreements that are more difficult for employers to administer. (Specialty Health Care 357 NLRB No. 83, Aug. 2011) and (DTG Operations, Inc., 357 NLRB No. 175, Dec. 2011)

On April 30, 2012 both union and non-union employers subject to NLRB jurisdiction – which is pretty much every private sector company – must post an “NLRA Rights” poster containing a comprehensive list of employee rights under the National Labor Relations Act. This poster includes passages reminding employees they have the right to act together to improve wages and working conditions, to form, join, and assist a union, and to bargain collectively with their employer. This rule has been challenged as violating the NLRA, exceeding the Board’s authority, and as unconstitutional. I will keep you updated on its status as April 30th approaches.

The NLRB’s new “quickie elections” rule will also take effect on April 30, 2012. Beginning then, the time period between when a union files a petition with the NLRB seeking and election and the holding of the election will be dramatically reduced from the standard ~45 days. Statistics show that the less time employers have to campaign to remain union-free before an election, the more likely the employees are to vote in favor of union representation.

Based on the above changes, prudent employers should: 1) review employment agreements for mandatory arbitration clauses; 2) review handbooks to ensure confidentiality provisions do not violate Hyundai American Shipping and that no solicitation / no distribution policies comply with the Board’s working time versus working hours distinction; 3) determine whether managerial employees can, in fact, speak on behalf of the company; 4) make sure that your “open door” policy does not prohibit legitimate communication between employees; and 5) review titles and classifications of non-managerial employees in case those employees become targets of a micro-unit union organizing campaign.

If you’re saying to yourself, “Matt didn’t mention anything about social media and the NLRB,” you’re right. Social media is so hot right now – meaning that the NLRB is trying to regulate how both union and union-free companies react to employees’ engagement in social media – that a social media update will be an article on its own next month.

Matt Austin is a Columbus, Ohio labor lawyer who owns Austin Legal, LLC, a boutique law firm that limits its representation to employers dealing with labor, employment, and OSHA matters. Matt can be reached by email at Matt.Austin@Austin-Legal.com or directly by cell phone at 614.843.3041.

What Can an Employer Not Do During a Union Organizing Drive

Companies facing a union organizing drive need to decide how to combat the drive in a legal manner. Let me clear there are many strict rules as to what companies can and cannot do to defend themselves and campaign against a union during an organizing drive. These rules favor unions and are largely illogical.

The most talked about things that employers cannot do during a union organizing drive is the acronym TIPS, which means threaten, interrogate, promise, or survey. In a nutshell, employers (including management level employees) cannot threaten employees that something bad will happen if those employees vote in favor of a union. For example, threatening to close the business, relocate the business, reduce wages, terminate the workforce and hire new employees are threats that are prohibited during a union organizing drive.

Employers cannot interrogate employees as to whether they support the union, either. Oftentimes supervisors walk up to proposed bargaining unit workers and start to talk about a union organizing drive. During these conversations, the supervisor will ask how the employee feels about the union, how the employee will vote in the upcoming election, and whether the employee signed an authorization card. These types of conversations are not permitted.

Just as threats to employees who favor unions are not permitted, neither are promises to employees for opposing a union. The filing of an RC Petition is sometimes the first time business owners learn that their employees are dissatisfied with their current working situation. Many employers want to quickly fix this dissatisfaction, so they promise to change the way things currently run in an effort to give the employees more of what they want. Unfortunately, once a union is involved – even if an election has not been held – making changes to the status quo is largely prohibited and promising to make changes if employees “just get rid of this union thing” is likewise not allowed.

Lastly, the “S” in TIPS stands for surveillance. Employees in favor of unionization usually talk about it at work – and talk about it a lot. One part of talking about unions is to let their co-workers know when and where the next union organizing meeting will be held. Management usually learns of these meetings before they occur and are tempted to watch and see which employees actually go to the meetings. You can picture the boss slid down low in his drivers seat in a parking spot tucked far away in a corner of a dark parking lot keeping tabs on who supports the union by attending the meeting – this behavior is prohibited.

The penalties for violating these laws are swift and severe. Companies that violate these laws run the risk of having an election result set aside if the employer wins and another election scheduled. When this happens unions use the set aside as a campaign bargaining position of power. Secondly, the NLRB may order the employer to recognize and bargain with the union, even though the union never won an election. This is called a Gissel bargaining order, and although rarely seen, still remains a legitimate threat to employers who violate these laws.

What is a Union Organizing Drive?

I have helped clients through many surprise OSHA investigations, Form I-9 audits, and other workplace investigations. Nothing gets the same type of reaction from an employer as “there is a union trying to organize your employees.” While some employers threaten to close the place down if a union gets in (you can’t) and others swear that everyone will make minimum wage if the union gets in (don’t say that), most employers take those words very seriously and immediately contact legal counsel to begin preparing to defend against the drive.

But what is a union organizing drive, really? There are two distinct phases of a union organizing drive, the pre-petition period and the post-petition period. The petition, of course, refers to the RC Petition that a union files with the NLRB seeking to have a secret ballot election to represent the employees in the proposed bargaining unit.

Pre-petition organizing drives are not always done in secret. When organizing is open, unions regularly trespass on business owners personal property, follow and intimidate rank and file employees who do not support the union, picket outside a company or owner’s home, and run advertisements in local newspapers or put up billboards near the place of business they are organizing that erroneously paint the employer as evil. Now, the goal is not only to get the employees to believe they need the union in order to keep their jobs, but to also get the employer to cave into accepting the union without providing the employees with the benefit of a secret ballot election.

Once enough authorization cards are signed and the union realizes that the employer is not caving, the union files an RC Petition and post-petition organizing begins. Representation elections generally occur around 46 days after the RC Petition is filed. However, the NLRB recently shortened that time frame dramatically, which is scheduled to take effect on April 30, 2012. A union’s tactic’s typically become more aggressive after an RC Petition is filed, since there is no longer a need for secrecy, and the union knows that the employer will be countering many of the brazenly outrageous promises a union organizer makes to an employee just to get them to sign an authorization card and vote for the union.

For example, most unions will convince employees that with the union they will 1) make more money and 2) not be laid off or fired. The truth is that if a union is voted into a workplace all bargaining unit members wages are subject to negotiations. So employees could make more, less, or the same as before they were members of a union. Second, union members can, and regularly are, laid off and terminated. A collective bargaining agreement does not insulate employees from losing their jobs.

Union organizing drives are not fun. When faced with an organizing drive, employers must do whatever it takes to keep the ability to run their own company. Understand that once a union is voted in, it will increasingly assume more and more control of running a company. Many of my clients are busy taking care of the day to day business necessities to forecast where their company will be in 5 or 10 years down the road, after 3 successor collective bargaining agreements, if they lose a union election. Organizing drives must be taken seriously, and legal counsel should be involved from the earliest possible point.

Difference Between RC, RM, RD, and UC Petitions

People who practice traditional labor law, like me, are used to throwing around a lot of numbers and letters as short hand when talking shop. For example, we like to know whether it’s a 9(a) union or an 8(f) contract. Management lawyers like myself are used to unions filing 8(a) unfair labor practice charges, and we’re used to the NLRB not issuing a Complaint on 8(b) ULPs. We also know the difference between an RC, RM, RD, and UC petitions – and if you keep reading, you will too.

A “Certification of Representative Petition,” more commonly known as an RC Petition, is what unions file when they have the requisite number of authorization cards signed and seek to have a secret ballot election to unionize a workplace. A union can also file an RC Petition to “raid,” or challenge the authority of another union to represent a particular bargaining unit. One of three things happens when the NLRB receives an RC Petition: 1) there is an election; 2) the NLRB dismisses the petition because it is not proper; or 3) the union withdraws the petition – usually because the union knows it will lose the representation election. In any event, an employer should contact legal counsel immediately after receiving notice that an RC Petition has been filed against its company.

An RM Petition (“Representation Petition”) has two uses, one commonly used, one so rarely used it’s not worth mentioning. The commonly used purpose of an RM Petition is for an employer to demonstrate to the NLRB that the union has lost the support of a majority of the employees. To do this, the employer files an RM Petition, along with its evidence of proof of the lost support with the NLRB. Interestingly, an RM Petition is not available on the NLRB website like an RC Petition is for easy download and filing.

Another document not on the NLRB website is an RD Petition, which is used to decertify a union. An RD Petition is filed by the employees and must have signatures of at least 30% of the bargaining unit expressing an interest to get rid of their union. Of course, employer cannot be involved – meaning instigating, encouraging, soliciting, distributing, etc. in the employees’ decision to obtain, complete, and file an RD Petition. RD Petitions should not be confused with UD Petitions, which are used to deauthorize union. The deauthorization of a union eliminates the union security clause of a collective bargaining agreement during the life of the agreement.

The last most commonly used petition is a UC Petition (Unit Clarification). UC Petitions are filed when either the employer or the union seek clarification as to the scope of the bargaining unit. Clarification is frequently sought when a new job description is added to the workforce and there is a dispute whether that position should be included in the bargaining unit.

While there are additional Petitions that can be filed with the NLRB, the above are the most used. You should seek legal counsel before filing any Petition since the above descriptions only describe the purpose of the Petitions and do not discuss the legal prerequisites and effects that filing the Petitions.

What is the National Labor Relations Board?

The National Labor Relations Board, also called “NLRB” and “the Board,” is the federal government agency responsible for enforcing the National Labor Relations Act. The NLRA has quasi-judicial powers, which means it can decide cases at administrative hearings, but its decisions are subject to review by Federal District Courts (whose decisions are subject to review by Federal Circuit Courts, and ultimately the Supreme Court of the United States).  In addition to over 30 Regional Offices, the NLRB has five Members in Washington D.C. who are tasked with interpreting the National Labor Relations Act.

The five Board Members are appointed by the President of the United States to a staggered five year term. The Senate must appoint the President’s nomination – something that has not been happening the past few years. In theory, one Board Members is replaced each year and a Board Member of the sitting President’s political party rolls onto the Board. Because of the lack of Senate confirmations in recent years, President Obama has appointed several Board Members, but only a few have been confirmed.

The NLRB is also responsible for conducting union organizing and decertification elections. Initially, the Board determines whether the election or decertification petition is valid – authentically signed by at least 30% of the bargaining unit, and acts as a judge to any disputes regarding those petitions. The NLRB then set the election date and works with the parties to determine the proper location of the election, as well as who is eligible to vote. The Board then counts the votes, rules on any challenges, and declares a winner.

The Board also receives and rules on a lot of unfair labor practice charges, like close to 30,000 charges per year. Unions are quick to file refusal to bargain or surface level bargaining charges against employers during the collective bargaining process. In fact, these have been the leading topics of charges in recent years. The NLRB investigates the charges, receives evidence both sides, and determines whether to dismiss the charge or file a Complaint against the allegedly offending party.

If a Complaint is filed, the NLRB and the defendant (call the Respondent) can settle the dispute or have a formal hearing before an Administrative Law Judge (ALJ) on the Complaint. The ALJ can only institute “make whole” remedies, like reinstatement and back pay for discharged workers, and of course, require the employer to post a notice – typically for 60 days – saying it won’t violate the law again.

The NLRB has recently begun seeking 10(j) injunctions like they’re going out of style – actually, to the Board they’re coming into style. A 10(j) injunction is where the NLRB asks the court to temporarily restore the status quo while the parties litigate a Board Complaint. 10(j) injunctions are usually sought to require a party to return to the bargaining table, to reinstate a discharged employee, or halt subcontracting union jobs during while the unfair labor practice charge is litigated.

Overall, I enjoy working with the Regional Directors and Board Agents that I encounter on a daily basis. Their job is to uphold and enforce the National Labor Relations Act, which means they are to encourage unionization and collective bargaining. I understand and empathize with employers who have a difficult time dealing with the NLRB and who always feel like the NLRB is against them. In reality, the NLRB isn’t so much anti-employer as it is pro-union.

Will Ohio Be the Next Right to Work State?

 

As appeared in the Human Resource of Central Ohio (HRACO) monthly newsletter

 

Will Ohio Be The Next Right To Work State? 

If you haven’t heard of the group Ohioans for Workplace Freedom, you will. They are the people obtaining signatures to put a constitutional amendment on Ohio’s ballot either this fall or in 2013. The amendment, if passed would make Ohio a right to work state. So what is a right to work state and why should you care if Ohio becomes one?

In right to work states, employees are permitted to opt out of paying union dues without losing their jobs. Today in Ohio, if a job classification is unionized, all employees working in that classification must be members of the union and pay union dues. For example, if STNAs of a nursing home are in the SEIU, all STNAs employed by that nursing home must pay union dues even if they do not want to be in the union. In right to work states, the employees are not required to pay union dues but still receive union wages, representation, and work under the terms of the collective bargaining agreement.

Roughly half of the states in the United States have enacted laws making them right to work states. These states have noticeably lower rates of unionized workforces than compulsory union states like Ohio. Many US companies have relocated to right to work states in recent years and foreign companies typically choose a right to work state when setting up shop here. For example, Toyota, Nissan, Hyundai, Kia, Volkswagen, Honda, Boeing and many of their suppliers have recently built factories in right to work states in large part because of lower labor costs and the increased likelihood of having a non-union workforce.

The reason that right to work states have lower unionization rates is simple. Unions are a business and any business needs money to survive. For unions, money comes in the form of union dues. Since union workers in right to work states receive the same terms and conditions of employment regardless if they pay union dues, many employees opt out of paying dues. Without guarantee dues money, unions lose the incentive to campaign, lobby, and represent workers in right to work states. Instead, unions focus on non-right to work states where, if they organize a group of employees, they are certain that each employee will pay dues money to the union.

The business side of being a right to work state is pretty clear – without unions, employers and management have the ability to run their companies without the approval of a union and without collective bargaining agreements. Recently right to work states have attracted more large business relocations than other states. There is an argument that for Ohio to be competitive in luring more community-changing companies like Honda in Marysville and The Limited in New Albany, making Ohio a right to work state is essential.

Unions of course oppose right to work laws because they literally take money out of union coffers. In fact, unions refer to the laws as “right to work for less” implying that worker wages in right to work states are less than in compulsory union states. Anecdotally, the cost of living in right to work states is generally less, as well. As for individual employees, their desire whether to be in a union is a personal decision with many variables including whether they agree with the concepts of seniority, union dues, and collective bargaining agreements.

The issue of whether Ohio should become a right to work state has the potential to be as large and contentious as Senate Bill 5 was last election cycle. Regardless of your position on unions, you will undoubtedly hear more about Ohioans for Workplace Freedom and right to work laws. Since unionization affects human resource personnel, I will continue to update HRACO members of developments of this issue as they occur.

 

Matt Austin is a Columbus, Ohio labor lawyer who owns Austin Legal, LLC, a boutique law firm that limits its representation to employers dealing with labor, employment, and OSHA matters. Matt can be reached by email at Matt.Austin@Austin-Legal.com or by phone at 614.285.5342.