April 18, 2005
Even though the workings of the National Labor Relations Act ("NLRB" or "the Act") can have a tremendous impact on a company, too many employers have a woefully inadequate knowledge of the various aspects of the Act and how it can effect their operations. In the face of a union election campaign, which is where most employers come into conflict with the Act, many employers respond in a harsh and threatening manner which places them in violation of the Act, while others are afraid to say anything, which is problematic in inhibiting their ability to convince their employees not to vote for a union.
Employee Rights Under the NLRA
The most basic part of the Act is Section 7, which states that, "Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities . . .." Protected activity has been defined to included almost any act where an employee is acting on behalf of more than one employee. This can be anything from going on strike, making a complaint to management, or organizing and joining a labor union. In essence, an employer can do nothing in retaliation for anything where an employee is speaking for more than him or herself. The seminal case in this regard involved a truck driver who went on strike because he felt the truck he was driving was unsafe. The Supreme Court stated that was a protected activity since others might also be in the same situation or drive the same truck.
Union Representation Elections
The NLRA sets out the procedures where unions gain the legal right to represent the employees of a business. First, the union must get signatures on "authorization cards" of at least 30% of the employees. Then, an employer can either "voluntarily recognize" the union if the union has cards from 50% of the employees, or the union can file a petition for an election supervised by the National Labor Relations Board. If the union files a proper petition, an election must take place within 42 days after the petition was filed. During this period, both sides try to convince the employees to vote either YES in the case of the union, or NO in the case of the employer. On election day, the employees vote using paper ballots and the ballots are counted immediately after the election. If the company wins, there cannot be another election for 1 year, and if the union wins, the employer is required to bargain with the union.
Free Speech and Union Organizing
Whenever a union is attempting to organize a business, company management all of a sudden has severe restrictions on what they can and cannot say or do. The classic acronym describing these restrictions is "TIPS." This means that, in the face of union organizing, an employer cannot make any statements that might be construed as threatening that something negative might happen if the union wins the right to represent the employees. For example, even though management has decided they would close the company if a union won the election, they cannot say that to the employees. Also, employers cannot interrogate or ask any employees pretty much anything about unions. Management cannot ask employees what they think about unions or what others employees think about a union. In addition, the employer cannot make the employees any promises about what would take place if the union does not win the election. This, most employers find excruciatingly frustrating. While a union is making promises about what will happen if they win, the employer must stand moot. The rationale behind this is that employers can actually implement the promises, while a union can't, and the employees are supposed to see this distinction. Finally, employers cannot spy on their employees when they engage in union activities. This means no driving by union meetings or staring at employees discussing union matters at the workplace.
Often, employers severely misunderstand the requirements for bargaining under the NLRA. All that is required is that the parties meet and bargain at "regular times and places with the intent of reaching an agreement," At no time does the company ever have to agree to anything it does not feel is in its best interest. There are some restrictions against such things as "regressive" bargaining, but nothing that says the employer must ever agree to anything, or any area agreement a union might have with a group of employers. If the union feels progress isn't being made, the employees can go out on strike, whereas the company has the right to hire "permanent replacement" workers to keep operating in the case of an economic strike.
While union organizing happens relatively infrequently for an employer, it is important that long before an organizing campaign takes place, company management become aware of what they can and can't do. As was stated earlier, some employers rush in and say and do the wrong things, while many others are afraid to do anything. In this case, a little knowledge can go a long way in helping management meet its objectives