How are Union Representation Elections Conducted?

A union representation election occurs after a union organizing drive, after a union files an RC Petition, and both the union and employer campaign for the employees’ votes. Representation elections are conducted by secret ballot on the employer’s property, although some elections have been done by mail-in ballots.

The election is overseen by the NLRB and scheduled to occur when the greatest number of employees have the opportunity to vote. Elections are regularly held during shift changes so incoming and outgoing employees can both vote. When an employer operates three or more shifts per day, an election period will be held during each shift, even though this means some people will vote in the middle of the night.

Election formats are consistent in just about every election conducted by the NLRB. An NLRB field agent sets up a voting booth in a discrete location away from the general public and high-traffic areas. No one from management or the union is allowed to hang around the voting booth, and in fact, employers should ensure that the union personnel does not remain on company property during the voting.

Management and the union each select an employee to act as an observer. The observer’s responsibility is twofold. First, the observer makes sure that only appropriate employees vote by either knowing the voter personally or confirming the voter is who he says he is before allowing the voter to vote. Each observer can challenge the vote of someone whom they believe should not be voting. Challenged votes are set aside and only counted under certain circumstances at the end of the voting period. Second, the observer is tasked with ensuring that the other side does not engage in election misconduct like campaigning at the voting booth.

The NLRB takes impartiality and secrecy very serious, so voting occurs inside an election booth that the Board Agent brings with her to the voting site. These booths are enclosed on all four sides, and provide a greater level of privacy than the voting booths I use to case political votes in Central Ohio.

The voting period usually occurs in one or two hour segments. After the last voting period ends, the Board Agent literally counts the votes in open and all members or management, employees, and union personnel are invited to listen and watch as the votes are counted. Only if the number of challenged votes could change the outcome of the election will the challenged votes be counted. For example, if 100 employees voted and the employer won 73 votes to 20 votes with 7 challenged votes, those 7 votes will not be counted because they would not affect the outcome of the election.

When an employer wins an election, the union must wait one year before filing another RC Petition and getting another representation election. When a union wins a representation election, bargaining for a first contract typically begins within a few weeks of the election. Of course, both the union and the employer are free to formally object to the election and its results, under certain circumstances, with the NLRB, which may result in another election if the winning side’s election activity greatly tainted the election results.

NLRB Governs Social Media

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

 

NLRB Governs Social Media of Both Union and Non-Union Companies

In last month’s HRACO newsletter, I gave a brief overview of the many changes occurring at the National Labor Relations Board and the new rules that the Board implemented covering both union and non-union companies. If you have not read it, go back and read it now. The changes are coming fast and furious and affect almost every private employer. One change I did not cover was the Board’s governance of social media use by employees. Social media is so important that it gets its own article in this month’s newsletter.

Why Does The NLRB Care About Social Media

The National Labor Relations Act applies to both non-union employees and those represented by labor unions. This 1935 law was originally designed to protect employees’ rights to organize unions, engage in labor strikes, and bargain collectively in manufacturing settings.

One hallmark of the Act is that employers cannot stifle an employee’s ability to discuss wages, hours, and other terms and conditions of employment. Thus, employers cannot implement policies – including modern day social media policies – that could reasonably be understood by employees to prohibit them from discussing their terms and conditions of employment.

Because of the newness of social media, employers do not have much guidance from courts as to what an appropriate social media policy should include. The NLRB is filling this void and quickly shaping the future of social media in the workplace. Employers who created or updated their social media policies even as recently as a year ago should review them again to ensure they still comply with the evolving NLRB guidance.

Since you probably haven’t reviewed your social media policy since it was drafted, here’s a little encouragement to review it for compliance. Over the past year, employers – both unionized and non-union – have lost the overwhelming majority of social media cases decided by the NLRB. These losses have culminated in monetary fines, reinstatement of terminated employees, payment of lost wages, and public criticism of corporate policies.

The penalty is even greater for non-union companies. For example, if employees of a non-union employer attempt to organize a union but lose a representation election, the Board can use the employer’s “illegal” social media policy to overturn the election result and order a new election even if the social media policy was not at issue in the election.

Do I have your attention?

What The NLRB Says Employers Can And Cannot Include In Social Media Policies

While the nuances of each company’s social media policy will vary because the policies are tailor-made for individual companies, here is a guideline of what the National Labor Relations Board believes is permissible and impermissible when it comes to social media policies.

SOCIAL MEDIA POLICIES SHOULD NOT

SOCIAL MEDIA POLICIES CAN

Broadly prohibit employees from posting comments that embarrass, harass, disparage, or defame the company, or that demonstrate inappropriate, insubordinate, disrespectful, unprofessional, offensive, rude, or discourteous behavior Prohibit posts that violate the employer’s workplace policies against discrimination, harassment, or hostility on account of age, race, religion, sex, ethnicity, nationality, disability, or other protected class, status, or characteristic.
Prohibit employees from posting pictures of themselves with identifying information about the employer, i.e. uniform or logo Require adherence to securities regulations, health privacy rules, confidentiality of trade secrets, and similar laws
Prohibit posting comments about the employer and their terms and conditions of employment. Prohibit vulgar, obscene, threatening, intimidating, or harassing comments
Include broad adjectives like appropriate or inappropriate, professional or unprofessional, disparaging, or disrespectful. Prohibit from disclosing confidential and/or proprietary information like launch dates, pending reorganizations, and personal health information
Require employees to, in every post, expressly state that their comments are their personal opinions, and not those of their employer Prohibit posting comments on behalf of employer if policy states the purpose is to allow employer to have a consistent, controlled company message.
Broadly prohibit employees from depicting the employer, its name, property, logo, trademark, service mark, copyrighted name, or from identifying themselves as the employer’s employees. Require employees to post disclaimers that the views expressed in their posts are their own when a post involves the endorsement or promotion of the employer’s products or services.

Confused yet?

How Effective Are Savings Clauses In Social Media Policies

In three words: not very effective. However, the editors want me to explain my answers – kind of like showing my work on a math problem in grade school.

Simply including words like, “Nothing in this policy is designed or intended to restrict an employee’s right to engage in protected activity under the NLRA” or “Nothing in this policy is intended to interfere with employee rights to self-organize, form, join, or assist labor organizations, to bargain collectively through representatives of their choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from engaging in such activities” do not magically transform a social media policy that violates the National Labor Relations Act into one that does not violate the Act.

What Are The Bullet Point Takeaways

Employers should treat social media posts as they would a verbal comment.

Be precise and give examples when drafting social media policies.

All supervisors and human resource personnel must be trained on how to deal with social media.

Consult with counsel, if necessary, before drafting social media policies or disciplining for social media activity.

 

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

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.