What Every Nonunion Employer Should Know About Labor Organizing

Although collective bargaining rights are not an immediate concern of most nonunion employers, any business with at least two employees has a potential collective bargaining unit. Knowing what to do at the beginning of a labor organizing effort can help employers avoid a large financial impact and make the difference between productive long-term employees and a disgruntled workforce with a high turnover rate. The following example highlights some of the key issues faced by employers in an organizing drive.

As a manager of a location with only ten employees, Tom thought he would never have to deal with a union. But he was mistaken. Fortunately for his company, when a union started an organizing effort, Tom realized the potential risks the company faced and worked out a strategy with his labor attorney to avoid charges from the union and achieve an outcome that was good for the company and the employees. Ultimately, Tom's campaign was a success, but if Tom had not taken the proper steps from the beginning the outcome could have been very different.

First, Tom recognized that all employees are legally entitled to: form, join, or assist a union; choose representatives to bargain with the employer on their behalf; act together with other employees for their own benefit and protection; and choose not to engage in any of the above protected activities. These rights are protected under the National Labor Relations Act.

At the beginning of the organizing campaign, Tom heard rumors from some of the employees that a union representative had been talking to people. Tom was careful not to question the employees; he let them come to him. The National Labor Relations Board (NLRB) has held as unlawful supervisor comments as simple as, "I hear you're involved with the union," even without any accompanying threats, because they implied unlawful surveillance. Under the National Labor Relations Act, it is unlawful to interfere with, restrain, or coerce employees in the exercise of their rights. Tom knew he couldn't promise better wages or make changes in benefits that weren't already expected. Tom worked with his labor attorney to develop a strategy and prepare responses that answered employee questions but did not make promises that could lead the union to file charges against the company.

The union must identify a proposed bargaining unit. In Tom's case, the union filed a representation petition to represent all the employees at the location (except Tom), including the office assistants and the shop mechanics, but excluding the working foreperson. The company objected. In an appropriate bargaining unit the employees should have a common community of interest. Although all the employees were supervised by Tom, the office assistants had hours and work rules different from those of the mechanics. The mechanics were subject to different safety rules and worked primarily on prevailing-wage work, so different procedures applied to them. But, the working foreperson was also a mechanic and spent most of every day doing the same work as all the other mechanics. The company needed the foreperson to continue to do primarily mechanic's work. Since the foreperson did not have hiring or firing authority, the company thought she should be included in the unit. The company also objected to including office assistants with mechanics because their interests and employment conditions were different. When the parties do not agree on the appropriate bargaining unit, the NLRB decides.

A union may file a representation petition immediately, or it can demand that the employer voluntarily recognize the union. If most of the employees support the union and there is no question about the appropriateness of the bargaining unit, an employer can choose to voluntarily recognize a union. An employer is not obligated to voluntarily recognize a union (and, except in the construction industry, should not do so without clear evidence of the union's majority status). If the employer refuses to recognize the union, the union can then file a representation petition.

Once a recognition petition is filed, the NLRB will determine whether the petition has substantial support — at least 30 percent of the employees in the proposed bargaining unit. This is usually represented by signed authorization cards submitted to the NLRB. The NLRB determines the authenticity of the cards. The NLRB will conduct an investigation and determine whether an election should occur. Once the determination is made, the parties often enter into a consent election agreement, in which the bargaining unit, eligibility to vote, and other issues are agreed upon and in which any issues regarding the election are generally decided by the NLRB. Another alternative is a stipulated election agreement that allows the election to go forward while other issues will be decided by a later hearing.

In Tom's case, since the bargaining unit was in dispute, the union and the employer decided to enter into a stipulated election agreement to save time and money. That way the parties could postpone the issue of the bargaining unit and possibly avoid the expense of a hearing. The union election went forward and both sides challenged ballots. The union challenged the foreperson's ballot. The employer challenged the ballots of the office assistants. The union had to win an election by a majority of the votes; the union needed six to win. If the three challenged votes were not counted and there were five votes against the union, the bargaining unit question would not have to be decided because the union would not have a majority. Even in a tie the union would lose because it had no majority.

Several employees approached Tom with questions and concerns about some of the things the union was saying. Because he was prepared and informed and took the right steps, Tom and his company were in a position to launch a campaign to provide information and answer questions without engendering conflicts with the union. The employees decided they could trust the information they got from the employer and determined they were better off without a union.

Tips to Remember During a Union Organizing Campaign

1. At the first sign of an organization, work with your labor attorney to avoid statutory violations.
2. Recognize employee rights to organize.
3. Do not question employees about their union activities.
4. Do not threaten or imply consequences for a prounion vote.
5. Do not promise or grant benefits for an antiunion vote.
6. Verify that the proposed bargaining unit is appropriate.
7. Learn the restrictions on campaigning early in the process.
8. Be aware that a union that loses an election is barred from organizing for one year.
9. Remember that once a union is certified, it cannot be removed for one year.
10. Keep in mind that if there is a valid union contract in place, no election can be held.

This article is intended to inform the reader of general legal principles applicable to the subject area. It is not intended to provide legal advice regarding specific problems or circumstances. Readers should consult with competent counsel with regard to specific situations.

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