Most companies do know how to effectively defend against union organizing campaigns. Companies that retain Austin Legal after a union has expressed an interest in organizing their employees are amazed to learn about – often illogical – labor relations laws. Employers who defend against union organizing campaigns on their own are fighting a losing battle: labor relations terminology is its own language; the governing laws are complex; the penalties for violating the laws are severe; and companies can easily find themselves unionized by making a wrong move or not knowing how to counter an organizing campaign.
Voluntary Recognition Through Card Check
Card check is a method that unions prefer when trying to organize a company. Simply stated, a union will claim to have obtained signed authorization cards from a majority of the company’s employees. Based on this assertion, the union tells the employer that it represents the employees. This message is conveyed by either the union dropping the cards on the desk of the employer or mailing the cards in an envelope to the employer. In either case, it is critical that the employer does not look at the cards.
Some business owners make the mistake of accepting the assertion that the union represents a majority of the employees and voluntarily recognizes the union. Other employers start looking at the cards to verify the union is telling the truth. Each card gives insight into who signed an authorization card – an act that is illegal – so, again, employers must not look at the cards.
There are many reasons why employers should not accept or look at the cards. For example, Austin Legal has seen situations where the authorization cards were illegally obtained through forgery, threat, or fraud. The cards may have been signed by employees who would not naturally be in the same bargaining unit. The employees have likely only heard promises (and unions are allowed to lie during organizing campaigns) of what the union claims it will get for the employees without having the benefit of hearing facts about unions, dues, seniority, pay, and the collective bargaining process.
If presented with the scenario above, Matt Austin advises that employers should tell the union in clear terms that 1) the employer denies the validity of the cards; 2) the employer denies the number of cards allegedly signed; 3) the employer denies that the union represents a majority of its employees; and 4) that the union should file for a secret ballot vote with the NLRB if it wants to organize the employees.
Secret ballot elections are the normal method used in union organizing campaigns. However, there are many steps and hurdles for both the employer and union to navigate before an election is held.
Petition for an Election | Once labor unions have authorization cards from at least 30% of a proposed bargaining unit, unions obtain a petition for election from the National Labor Relations Board. The petition details the job classifications proposed to be included and excluded from the bargaining unit, the name and address of the union seeking the election, and the date, time, and location for the representational vote. Employers can then challenge the proposed bargaining unit through an NLRB hearing or proceed to the campaign and election phase of the organizing drive.
Challenge the Proposed Bargaining Unit | Employers who believe that the bargaining unit proposed by the union is not an appropriate bargaining unit have the ability to challenge the proposed unit through a hearing conducted by the National Labor Relations Board. Employers typically challenge proposed bargaining units because the units are comprised of managerial employees or do not include certain employees who should naturally be included. After all, the proposed bargaining unit is tailored made by a union to have the highest chance of success after a secret ballot election. At the hearing, both sides elicit testimony from witnesses and submit evidence to the Board as to why they believe the proposed bargaining unit is appropriate or not appropriate. The Board then renders a decision on who should vote in the election, and the organizing campaign continues as directed by the decision.
Challenging a proposed bargaining unit involves detailed procedures and a formal NLRB hearing. Austin Legal advises that counsel should be involved in the decision-making process and formal hearing to ensure the company’s rights are fully protected.
Campaigning Before Union Elections | Unions are given incredible leniency in what they can say and do during organizing campaigns. For example, unions can make promises that they know they cannot keep. Unions can lie to prospective members about what rights an employee gives up when he or she signs an authorization card. Only unions may directly campaign to employees within 24 hours of an election.
Employers, on the other hand, are restricted in what they can do during union organizing campaigns. Employers are not allowed to make promises; a promise can be construed as a threat if a union is voted in or a benefit to keep a union out. Companies cannot make any changes to wages or working conditions, regardless of corporate necessity, unless those changes were planned (and well documented) in advance of learning about the organizing campaign.
Of course, these examples are very basic. Contact Austin Legal for a full understanding of what employers can and cannot do during a union organizing campaign. A wrong move during this critical time could be the difference between remaining union-free and having and unionized workforce.
Union Elections | After challenges to the proposed bargaining unit, if any are made, and after campaigning has concluded, a secret ballot election is held. Although some elections have been conducted via mail-in ballots, most elections occur in person and on the employer’s premises. The election format is consistent: an NLRB field agent sets up a voting booth, each side chooses an observer to ensure that impartiality and secrecy prevail, employees vote inside the voting booth, and after the polls close the field agent counts the ballots. Once the counting of the ballots has ended the union and employer know immediately which side won the election. There is a procedure for challenging the ballots if the number of challenged ballots could affect the outcome of the election.
If the workers elect to not be represented by a labor union, then the union must wait at least one year before petitioning the National Labor Relations Board for another representational election.
If the workers elect to be represented by the union, negotiations for a first collective bargaining agreement will begin a few weeks after the election. First contract bargaining is intimidating and complicated for employers who have never engaged in union negotiations. Austin Legal has seen too many contracts that contain certain language detrimental to employers simply because companies either did not know the effect of that language or just wanted to get the negotiations behind them and get back to work. Hiring legal counsel to help negotiate a first contract is essential to the long-term success of your company.