Union Issues for Non-Union Employers

Presented ByKaren R. Harned, Esq.

Executive Director

2

The NFIB Small Business Legal Center is the voice for small business in the courts and the legal resource for small business owners nationwide.

While the information provided in this webinar is intended to be accurate, it should not be considered legal advice. The Legal Center cannot be held responsible for any errors or omissions.

3

Overview

• The National Labor Relations Act (NLRA)– Who is covered – most likely, YOU!– Why should you care?

• Non-union Employer Obligations Under The NLRA– Protected concerted activity – non-union employee rights

under the NLRA– Unfair labor practices – what they are and what you can do

to avoid charges– TIPS on what you can/can’t say/do about unions

• Employee Free Choice Act – Change IS Coming!

4

National Labor Relations Act (NLRA)

Who Is Covered By The NLRA?• Most Likely -- YOU

– The NLRA applies to any business that “affects commerce,” that’s virtually every employer in the U.S.

– Number of employees does NOT matter– Few specific exclusions from the NLRA (i.e.,

agricultural workers, airline workers, and railroad workers).

5

National Labor Relations Act (NLRA)

Why Should I Care About The NLRA?• Unions are very focused on organizing• The National Labor Relations Board

(NLRB), which enforces the NLRA, is very pro-union and likely to get enhanced remedies against employers

6

National Labor Relations Act (NLRA)

Employee Rights Under The NLRA:• “Right to form, join, or assist” a labor union;• To bargain collectively through representatives of

their choice; • “To engage in other concerted activities for the

purpose of collective bargaining or other mutual aid or protection; and

• Right to refrain from such activities• Enforced by the NLRB

7

Unfair Labor Practices• Employers and unions

commit an “unfair labor practice” if they discriminate, coerce, or intimidate employees to discourage or force employees to join unions.

• Even with no formal union activity, employers can still commit “unfair labor practices”

• Penalty = Backpay

8

Protected Concerted Activities

• The Right to Strike• The Right to

Complain• The Right to Support

Political Activities• “Weingarten Rights”

9

Protected Concerted ActivitiesThe Right to Strike• No union needed for a “wildcat strike”• Requires two or more employees• Concerns a dispute over a term or condition of employment (e.g.,

pay, working conditions)• Employees cannot be disciplined or fired• In limited circumstances, economic strikers can be replaced.

However, unconditional offers to return to work must be honored by either returning to position or placing on a preferential hiring list

• If your business undergoes a “wildcat strike” do NOT take or threaten disciplinary action – call a labor attorney immediately!

10

Protected Concerted Activities

The Right to Complain• By or concerning more than one employee• About wages, benefits, or working

conditions• May concern more general organizational

matters (e.g., staffing ratios at a hospital)

11

Protected Concerted Activities

The Right to Support Political Activities• Eastex v. NLRB: Employees allowed to

organize lobbying campaign against right-to-work laws

• Political activities can be restricted to non-work time and non-work areas

12

Protected Concerted Activities

“Weingarten Rights”– Can I have a witness?

• Right for unionized employees to have a witness in disciplinary interviews

• Right may be reinstated to non-union employees

13

Employer Policies That ImpactEmployee NLRA Rights

• Anti-loitering policy is valid only if:– Limits access to interior of plant/working areas– Clearly communicated to all employees– Applies to all off-duty employees seeking access to

plant/working area for any reason (not just unions)

• Anti-solicitation policy is valid only if:– Prohibits solicitation only during working time (not work hours)– Applies to all forms of solicitation

• Anti-distribution policy is generally valid if confined to “work areas.”– More flexibility for retailers and health care facilities

14

Employer Policies That ImpactEmployee NLRA Rights

• Restrictions on company bulletin board postings must apply to all employee communications

• Employer does not have to let employees use e-mails for union organizing

• Union insignia and buttons may only be restricted under “special circumstances”.

15

Employer Policies That ImpactEmployee NLRA Rights

• Confidentiality policies should not limit employee discussion of wages, benefits and work conditions

• Hiring Issues: Be careful to treat all applicants similarly

16

Pop QuizWhich of the following could be a “protected concertedActivity”?

A. One employee protesting for better wages

B. Three employees refusing to work until the air conditioning is turned on

C. Five Employees engaging in discussions with management to get a health care plan with a lower deductible.

Employer Do’s and Don’ts Regarding Union Organizing

18

Employee Right to Unionize

• A union can win exclusive representation with majority employee support– Secret ballot election conducted through

NLRB

• Management cannot interfere with employees seeking to organize the union

19

Supervisors v. Employees

• Supervisors don’t have right to organize or engage in protected concerted activity

• “Supervisor” is defined broadly under NLRA:– Individuals who assign or direct work– Recommend any number of actions– Agents of the employer

20

Supervisors v. Employees

• Supervisors are covered if they have suffered adverse employment action because they:– Gave testimony adverse to employer

interest during an NLRB proceeding– Refused to commit unfair labor

practices– Failed to prevent unionization

21

Union Organizing Campaigns

• A business may see no evidence that a union organizing campaign is underway

22

Signs Of An Organizing CampaignEmployees change their behavior

• Stop communicating with supervisors • Start forming different employee alliances• Start taking longer breaks• Start complaining about new things, often in groups• Start asking questions about company policies and

benefits• Two distinct (and sometimes hostile) groups of

employees emerge• Start using union terms

23

Union Organizing Campaigns

Union Authorization Cards• Authorization cards allow a union to represent

signers• Employees may revoke cards at anytime• If 30% of employees sign cards, union can hold

election• In practice, unions will wait until they have 50-

75% of employees signing cards

24

Union Organizing Campaigns

Union Obtained Cards from Majority of Employees• May ask union to recognize union status

voluntarily • Employer should never look at cards or verify that

union has majority• Instead, employer should doubt majority status

and get legal counsel

25

“Preventative Maintenance”

• Union Free Policy• Wages and Benefits• Fairness• Employees are

Important

26

Permitted Employer Restrictions On Union Access

• Bar non-employee union reps from the property if the general public is also excluded

• Prohibit solicitation by unions (and others!) during working time (not hours) or in work spaces

• Restaurants can prohibit solicitation in retail areas and dining areas during business hours

• Healthcare companies can prohibit solicitation in patient caretaking areas at all times

27

Union Access Rights

Employers May NOT:– Forbid employees to solicit other

employees during breaks, off-duty time, in non-working areas or

– Ban the wearing of union buttons or shirts without a valid business reason

28

Permitted Employer Statements

• F: You Can State The FACTS• O: You Can Give Your OPINION• E: You Can Provide EXAMPLES

29

Permitted Employer Statements• Do not have to sign authorization card• Warn about “trick authorization cards”• Free to vote however they like• Voting done by secret ballot• Provide opinion on unions• No guarantee of increases of wages / benefits• Must pay dues and be subject to union rules• Decrease direct communication w/ supervisors• Once in, union valid for at least 12 months

30

Illegal Employer Statements About Unions

• Use the TIPS and Avoid the PITS• No Threats• No Interrogation• No Promises• No Spying

31

Illegal Employer Statements About Unions

• Examples of Threats:• “If the union comes in, we will close our offices and lay

off employees.”• “We will do everything we can to prevent a union from

coming in.”• “The company forbids you to support the union, sign

authorization cards or speak to union reps.”• “If a union is voted in, there will be strikes.”

32

Illegal Employer Statements About Unions

• Examples of Interrogation:• “What are your views on the union?”• “Who is leading the charge to get a union in

here?”• “What does Sally think about the union? How

will she vote?”• “Have you heard of a union sniffing around?”• “I heard there was a union meeting, how did it

go?”

33

Illegal Employer Statements About Unions

• Examples of Promises:• “If you all vote against the union, we will give

all employees an extra day off a year.”• “Joe, I think you are due for a promotion, just

make sure that you don’t vote the union in.”• “If you all vote against the union, we will make

sure everyone gets a 5% raise.”

34

Illegal Employer Statements About Unions

• Examples of Spying:• Lingering around the water cooler or break

room, if you normally don’t hang out there, just to try to overhear what the employees are saying about the union.

• Monitoring phone conversations or e-mail activity about union activity.

35

Employee Free Choice Act(“Card Check”)

36

Card Check In A Nutshell

• If a simple majority (50%+1) of employees sign union authorization cards, the business would become unionized.

• Employers who couldn’t reach contract terms with the union subject to binding arbitration.

37

Current Law

• Under current law, once 30% of workforce has signed cards, employer can hold secret ballot elections

• Majority must favor union• Employees choose to unionize about 60% of the

time

• Employer can voluntarily unionize once majority signs cards

38

Law After Card Check

• If enacted, the employees could unionize without an election if majority signed cards

• Virtually eliminates secret ballot• Small employers could leave work on

Friday and show up on Monday only to learn that a union had been voted in over the weekend

39

Card Check = Stricter Penalties

• Establishes stricter penalties for employer violations– $20,000 per violation– Up to two times the amount of

backpay awarded

40

Card Check = Government Imposed Employee Contracts

• Collective Bargaining Process Under Card Check:– Begins 10 days after union voted in– After 90 days, if no agreement, may be

referred to Federal Mediation Conciliation Service and binding arbitration

– After 30 days, if no agreement, goes to arbitration panel

– Panel’s decision on wages, benefits, etc. is in place for 2 years!

41

Card Check Example• Friendly Florist has 5 employees• Friday union rep meeting with Sally• Sally gives names of 2 other employees she thinks will be

interested; union rep visits the 2 employees over the weekend• Monday morning union rep greets Frances Friendly with 3 union

authorization cards and tells her she is now a union shop.• Union and Frances begin negotiations, union comes in with an

offer of 10% wage increase for all employees.• Frances counters with 2% increases and no agreement is

reached in 120 days.• Government arbitrator comes in and decides to split the

difference between Frances and the union – all employees get 6% increases.

42

How to Prepare for EFCA

• Keep an “open door” policy• Sell your company to employees• Discuss your desire to remain union-free

43

Quiz Time

44

Quiz TimeWhat can you tell employees before a union

comes to your business?A. Maintaining our non-union status is an

important issue for our company.B. Our company offers 10% higher wages

than unionized competitors. C. If you ever have work related concerns or

ideas, feel free to speak to management.D. All of the above.

45

Help is Available!

• NFIB Employment Law Hotline provides NFIB members FREE legal advice.

Call (866) 678-NFIB.

46

Additional Information

• Visit the NLRB homepage at: http://www.nlrb.gov

• Call the NLRB toll-free information line at 1-866-667-NLRB (1-866-667-6572)

47

Thank you!Contact us at: legalcenter@nfib.org