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.