Category: NLRA

Negotiating a Collective Bargaining Agreement

Published by Brett Holubeck on February 14, 2020

Two people shaking hands to demonstrate that a collective bargaining agreement has been formed. — Photo by Cytonn Photography on Unsplash

In a past post, I discussed how to respond to union organizing. But what happens if the employees have an election and a union is voted in or if the company has had a collective bargaining agreement for years. What do employers need to know when negotiating an agreement?

As a reminder, a collective bargaining agreement is an agreement between an employer and the union that represents a group of the employer’s employees. It contains the provisions that the parties agree will govern the workplace. The National Labor Relations Act requires the company and the union “to meet at reasonable times and confer in good faith” to try to negotiate a collective bargaining agreement. Employers and the union are required to bargain about the “rates of pay, wages, hours of employment, and other conditions of employment” under the Act. However, neither party is compelled by law to agree to any specific proposal.

Bargaining in Good Faith

Good faith bargaining is only understood in the context of bad faith bargaining. Bad faith bargaining, sometimes called surface bargaining, is not the same thing as an employer lawfully adopting a position at the bargaining table and trying to stick to it. The NLRB considers the underlying reasons for company made proposals and a willingness to compromises when it considers whether the company made a good faith attempt to bargain.

For example, consider a case where the union proposed a wage of $30 an hour for a certain type of job and the company proposes a wage of $20 an hour. The company can demonstrate bargaining in good faith if it can show that the market rate for the position is $20, it pays employees in nonunionized facilities in the same position the same wage, and it has had no trouble finding employees at this wage rate. The employer here is likely bargaining in good faith.

However, consider the opposite scenario. The union proposes a $20 wage for a certain type of employee in a unionized facility, the same type of employees in the employer’s other nonunionized facilities receive the same wage of $20 per hour, and $20 is the market rate for the type of employee. However, the company refuses to budge in its offer of paying $10 an hour. This is likely bad faith bargaining as there is no legitimate business reason for the company to take this position, and it seems to prevent the formation of a contract.

The National Labor Relations Board recently confirmed this in its Phillips 66 decision (369 NLRB No. 13). In that decision the Board held that examining whether a company is bargaining in good faith requires an evaluation of the totality of a company’s conduct. The Board reiterated that bargaining in good faith “does not compel either party to agree to a proposal or require the making of a concession.” The Board further stated that “even ‘adamant’ insistence on a bargaining position ‘is not of itself a refusal to bargain in good faith.”’

There are also differences in good faith bargaining in initial agreements (first collective bargaining agreements) and collective bargaining agreement’s for established units. It is difficult to make a substantial change, especially when you are taking away benefits from employees, in a contract renewal. A proposal to take away a previously given benefit to employees can result in a charge that the employer is bargaining in bad faith. Considering what proposals to make and what proposals to accept in an initial collective bargaining agreement is thus even more important than what happens in subsequent agreements. The initial agreement sets the framework for any subsequent agreements.

What Employers Can Do in Negotiations

The NLRB lists what employers can and cannot do in collective bargaining:

For example, employers can:

Bargain with the union concerning permissive subjects of bargaining, but not to impasse.
Lock out your employees where your sole purpose in doing so is to bring economic pressure to bear in support of a legitimate bargaining position.
Make changes in the scope and direction of your enterprise – matters that lie at the core of your entrepreneurial control of your business – without bargaining about the change. You must, however, bargain with the union concerning the effects of the change on unit employees. (Whether a particular change is a nonbargainable “scope and direction” change or a mandatory subject of bargaining may present a difficult legal question. However, subcontracting that merely substitutes one group of workers for another to do the same work under similar conditions of employment is not a nonbargainable “scope and direction” change.)

What Employers Cannot do In Negotiations

Here is a short list of some of things that employers cannot do, although the NLRB lists more items:

Bypass the union and deal directly with employees. (However, you may communicate to your employees accurate information about your bargaining proposals.)
Insist to impasse on a proposal concerning an illegal subject of bargaining, or include an illegal clause in a labor contract. Illegal subjects include, for example, a proposal to make the contract terminable at will or to give the employer the right to discharge employees for union activity.
Refuse to bargain over the effects of a change in the scope and direction of your enterprise, even though you need not bargain over the change itself because it concerns a matter at the core of your entrepreneurial control of your business. (Whether a proposed change is a nonbargainable “scope and direction” change or a mandatory subject of bargaining may present a difficult legal question. However, subcontracting that merely substitutes one group of workers for another to do the same work under similar conditions of employment is not a nonbargainable “scope and direction” change.)
Engage in bad-faith, surface, or piecemeal bargaining.

Remember, when a union represents a group of employees an employer cannot make unilateral changes to any area affecting employees when the subject is covered as a mandatory subject of bargaining unless the company and the union have reached an impasse or the union has waived the right to bargain.

Conclusion

Employers that negotiate collective bargaining agreements must walk a fine line to ensure that they advocate for their position but do not violate the law. Companies, and the counsel that represents them, can benefit from examining collective bargaining agreements for similar groups of employees and agreements that the local or international of the particular union representing the employee has put forth. You can view some of these agreements through Berkley’s labor contracts database and through this source on the Department of Labor website. At the bargaining table, employers should generally start with a position that they can make changes to and allows flexibility to make concessions to ensure that they bargain in good faith. It is often best to use outside counsel or at least someone that does not have the authority to make the final call on whether to accept a proposal because the negotiator can tell the union that they need to reach out to upper management to confirm whether a proposal is acceptable, which gives the employer the chance to better determine any financial effects of a proposal and to develop a counter proposal.

Collective bargaining is not easy. Companies that are not careful will have unfair labor practices filed against them. To avoid this, it is important that company negotiators or outside counsel are well prepared before any bargaining begins.

The information provided in this blog is for educational purposes only and is not legal advice. If you need legal advice, then you should speak with a lawyer about your specific issues. Every legal issue is unique. A lawyer can help you with your situation. Reading the blog, contacting me through the site, emailing me or commenting on a post does not create an attorney-client relationship between any reader and me.

The information provided is my own and does not reflect the opinion of my firm or anyone else.

How to Get Rid of a Union

Published by Brett Holubeck on August 28, 2019

Image of sheet of post-it notes that are being pulled off a wall — Photo by Kelly Sikkema on Unsplash

In an earlier post we discussed how to respond to an unfair labor practice charge and how to respond to union organizing. However, many employees work in unionized work environments and feel that they would be better off without the union.

Some examples are listed here:

In the Friedrichs v. California Teachers Ass’n decision in 2014 (which resulted in a tie at the Supreme Court), Friedrichs, a California teacher, felt that as a member of a union she was forced to pay dues to the union who used that money to advocate for issues that she did not agree with. Specifically, the union used dues to argue against more parental choice regarding where parents send their kids for school, and the union often spent money to support political causes that she did not agree with.
Mark Janus, of the Janus v. AFSCME case that went before the Supreme Court, said that he cannot say “No, I don’t want to pay this. I either pay the union fee or I lose my job.”
Some unionized workers at Kroger have said “I’ve read online about having an initiation fee for the Union but $21 a week for a part-time minimum wage worker seems excessive.”

These are just a few examples of people who feel the union they are associated with does not represent their actual or best interests.

So, what happens if there is already a union in a workplace and the employees no longer want one? There are a couple of ways that employees can get rid of a union if they no longer wish to be represented by the union.

Decertification Election

The most common way that employees choose to no longer be represented by a union is a decertification election.

The decertification process begins when an employee hands the employer a decertification petition that is signed by at least 30% of the employees like this one available through Union Facts.

As stated by the NLRB, decertification petitions cannot be filed in a couple of circumstances:

These petitions cannot be filed within the first year after a union wins an NLRB sponsored election.
Plus, if an employer and union reach a collective-bargaining agreement, an employee cannot request “a decertification election (or an election to bring in another union) during the first three years of that agreement, except during a 30-day ‘window period.’” That period begins 90 days before the agreement expires and ends 60 days before the agreement expires (120 and 90 days if your employer is a healthcare institution).
After a collective-bargaining agreement passes the three-year mark or expires, “employees may request an election to decertify the union or to vote in another union at any time.

Under the National Labor Relations Act, employers cannot provide more than ministerial aid to employees in gathering signatures for a decertification petition. This means that employers cannot give employees aid in circulating the petition or getting employees to sign it. If an employee approaches the employer and asks about getting rid of the union, then the employer can give employees some limited information on how to get rid of the union.

Once a decertification petition is filed, then the employer can actively campaign to get rid of the union, which can include a number of things:

An employer may hold meetings to deliver its message. That message must be truthful and must avoid promises of what will happen if the union leaves or threats.
- There are time limits on when these meetings can be held and typically there is a limit on meetings in the last 24 hours before a vote.
- Employers will often discuss the advantages and disadvantages of a union during these meetings and may compare wages and benefits.
- Employers can state that they want employees to vote against a union.
It can post flyers with information for employees.
Supervisors can discuss their experience with the union if they are asked for their opinion.
Companies can enforce policies about soliciting and distribution of literature during non-working time and in non-working areas (most unionized workplaces will not have such a policy. If that is the case, then both sides may be passing out literature and discussing the union while they are working).

Employers must remember to follow the TIPS protocol (employers cannot threaten, interrogate, promise, or spy) and to avoid other violations of labor law. You can review my earlier article on responding to an unfair labor practice with a breakdown of TIPS and other matters.

NLRB Proposed Rule on Blocking Charges

Unfortunately for many employers and employees, most unions and other employees will file blocking charges to delay a decertification election or to suspend it entirely. Essentially, an employee or the union may file an unfair labor practice charge (alleging that the employer violated the National Labor Relations Act) during a decertification petition and a request to block an election until the unfair labor practice is resolved. This means that unions can continue to represent employees while the charge is being resolved and can sometimes result in an indefinite suspension of the election.

The NLRB has proposed “replacing the current blocking charge policy with a vote-and-impound procedure. Elections would no longer be blocked by pending unfair labor practice charges, but the ballots would be impounded until the charges are resolved.”

This would be a major step that would allow employees to freely decide whether they want to have a union or not. It would also eliminate a common way that unions prevent employees from choosing to leave a union (unions file many charges that prevent an election from ever taking place).

Withdrawal of Recognition

The blocking charge issue can also be avoided by withdrawing recognition from the union. An employer has the option to unilaterally withdraw recognition from a union that has lost support of a majority of the employees in the bargaining unit as held in the Supreme Court’s decision in Allentown Mack Sales & Service v. NLRB. The evidence is usually in the form of a petition signed by a majority of employees that asks for the employer to immediately withdraw recognition from the union. The withdrawal of recognition usually occurs right before the expiration of a collective bargaining agreement or after an agreement has expired.

Typically, collective bargaining agreements have an extension clause whereby the agreement continues unless either party (the union or employer) notifies the other that it intends to terminate or modify the agreement within a certain period of days (typically 60 days) before the agreement expires. It is important that employers send this notice to the union within the required time frame so that the agreement does not continue after it expires.

Unlawful conduct by the employer can result in the union again becoming the bargaining agent for the employees. The typical violations that would prevent the withdraw of recognition are a refusal to bargain with the union before the expiration of the contract, any unlawful (i.e. more than ministerial) assistance in gathering signatures on the petition, or any conduct that unlawfully undermines the union’s majority status.

Withdrawing recognition is usually best for employees and the employer when properly done because it avoids a decertification election, which usually never occurs because unions frequently file unfair labor practice charges that prevent the election from ever taking place. However, due to the complicated nature of union issues, employers are well served by seeking experienced attorneys that can help with this process as an unfair labor practice is almost always filed by the union after an employer withdraws recognition.

Right to Work Laws

Right to work laws do not get rid of the union. They allow individual members to opt out of paying union dues. Essentially, they guarantee that a person cannot be forced, a condition of employment, to join a union or pay union dues. The Janus Supreme Court decision made all government employees in every state subject to this principle. No government employee can be required to join a union as a condition of employment or be required to pay union dues. These employees also cannot be required to pay an agency fee for the union to represent them in the collective bargaining process.

The Janus decision does not apply to private sector employees. A total of 27 states have passed right to work laws that give private employees the right to refuse to join a union or to pay fees for the union to represent them in collective bargaining (agency fees).

Again, the reason why many employees do not want to pay these fees is because the worker may be required to pay for the union to take positions that they oppose. The clearest example of this is new teachers that may be required to pay fees to the union when the union advocates for increased pay raises that result in layoffs of new teachers. See this article and this one this one discussing layoffs that occurred for young teachers as a result of a pay raise and budget shortfall in certain school districts.

Unions still exist in right to work states. A union in these states is still expected to bargain on behalf of all employees including those that are not members of the union. Right to work laws simply allow employees to refuse to pay union dues or agency fees.

Conclusion

Employees that wish to get rid of a union have several options. The best advice for any employee that is looking to leave their union or get rid of a union in their workplace is to look for a petition to get rid of the union (like the one available here) and to speak with their fellow workers that they know would be interested in getting rid of the union. Employees must make sure to do this without violating workplace rules (such as doing it during working time), and they must be careful to avoid speaking with employees that support the union (and the union steward) or having conversations nearby those individuals.

Employees can also approach the company management to let the company know that they (the employee) are trying to get other employees to sign a decertification petition. It is almost always a good idea for the employee to do this so that the employer can alert or find a labor and employment lawyer to help them prepare to respond to any unfair labor practice charge that the union files, to examine the signed petition showing that a majority of employees do not support the union, and to help in any other lawful way that they can.

It is best to act quickly once an employee circulates a petition to get rid of a union. The longer that an employee spends gathering signatures, the more likely it is that the union or union supporters will seek to file an unfair labor practice to block employees that no longer want the union.

The information provided is my own and does not reflect the opinion of my firm or anyone else.

How to Respond to Union Organizing

Published by Brett Holubeck on March 27, 2019

Image of a light bulb to show that employers need to have ideas and a plan to respond to union organizing. — Photo by Diego PH on Unsplash

Some employers are caught off guard when they learn that their employees want a union. Many do not know what to do and, as we all know, being ignorant of the law does not mean that you cannot get in trouble. Many employers find themselves in legal hot water because they were not prepared and did not know what they could and could not do in a union organizing drive. Thankfully, there is no reason that you have to be one of those people.

The great news is that there are steps employers can take today to ensure that they are prepared to respond if their employees seek to unionize. By taking some action before a union organizing drive occurs, employers can prevent trouble that may occur later.

What Can Employers do Before Union Organizing Starts or Before They Are Even Aware a Union is Seeking to Organize?

There are some basic policies that every employer should have and follow at their workplace. By being prepared and preemptively ensuring you have these policies, an employer is better prepared in the event of a union organizing campaign. Once an employer becomes aware that a union is organizing at a company, it may become harder to make changes because the employees could allege that you have violated the National Labor Relations Act through some of your actions.

All employers should consider having the following policies and practices before any union organizing occurs:

Have a no solicitation policy that prohibits employees from soliciting other employees during working time and in working areas. This means that employees cannot ask employees to buy girl scout cookies, sign union authorization cards, or buy into the latest multi-level marketing (MLM) scheme (some people call these pyramid schemes) while they are working, but are free to do so on their breaks or at lunch.

Solicit employee complaints and grievances regularly. Every employer should seek feedback from employees on a regular basis through quarterly town halls and other meetings where employees are asked for feedback in groups.

Communicate with employees regularly and quickly respond to any grievances that they have. Employers with unhappy employees are at the greatest risk for unionization, employee turnover, and low productivity. Around 65% of employees say that getting rid of their boss would make them happier than if they got a raise. If your workplace is like this, then it is clearly a major problem.

These simple steps won’t guarantee that a workplace will not become unionized, but they do make a big difference in how employers run their workplaces and cut down on lost productivity.

What Can Union Organizers Do During a Union Organizing Campaign?

One of the most common strategies that unions use when they try to unionize a workplace is to assign a union organizer to a company. This person may either seek to be hired by the company for a position (sometimes called a “salt”) or they may conduct organizing as a non-employee. Many companies have a visceral reaction when a union organizer appears at a company. Companies that do not know what to do will often commit actions that result in unfair labor practices against the company.

One of the most frequent issues is that the employer will seek to exclude the union from public property and will sometimes even call the police to have union organizers removed from areas that they are entitled to be in. Union organizers cannot enter company property to pass out flyers (if they are not employees). However, they can pass out flyers at areas that you do not own. Many organizers will stand in the street or public sidewalk to pass out flyers as workers leave, which is permissible.

So, what can a union organizer do?

They can act as “salts.” Meaning they can be hired by your business with the intention of organizing the facility. If any organizer is also an employee, then they have the rights of employees below (passing out flyers in the parking lot or cafeteria, etc.).

Organizers can contact employees at their homes or elsewhere even if the employee does not want to be bothered and has asked them to leave.

They can ask employees to sign union authorization cards and hand out flyers at public areas near the company property.

Organizers can create a Facebook or other social media page with pictures of employees and invite employees to attend various events.

What Can Employees Do During a Union Organizing Campaign?

Employees have a lot more rights than union organizers and nonunion employees when it comes to organizing in the workplace. In a union organizing campaign employees can:

Talk about the union during their breaks and pass out authorization cards on non-working time (assuming the employer does have a no solicitation policy). If the employer does not have a no solicitation policy, then employers can pass out this literature and talk about the union throughout their working day.
Organize meetings in their homes and elsewhere to discuss having a union.
Pass out flyers and talk about the union at work while they are on a break. Employers may have rules regarding solicitation in working times and working areas, but these rules must be in place and enforced for them to be effective in a union campaign. If employers have no policies, then employees can solicit while they are working.
Wear buttons, t-shirts, and other insignia (unless this must be prevented for business necessity reasons in certain areas such as in the production area of a food processing facility because no one wants to bite into a hard metal union pin while they are eating).

Employees that do not support a union can create their own hand outs, T-shirts, and even demonstrate against having a union at the facility. They have the ability to do everything that the employees that support the union can do, but in reverse.

Responding to a Union Organizing Campaign

There are a number of things that a company can do when it is faced with a union organizing campaign. First, companies can continue to do what they have already been planning to do or had already done in the past when a union campaign begins (such as giving planned pay raises).

Some of the things that employers can do when a union campaign occurs are:

Correct any untrue statements or misstatements from the union. For example, employers can tell employees that a union cannot guarantee that wages will go up.
Employers/Supervisors can discuss their own experience with unions.
Employers can tell employees that the company is opposed to union representation.
Compare the pay and benefits of employees of the company to union facilities.
Tell employees that if they join a union, then they will be required to pay union dues, initiation fees, and that they can be fined for violating union rules.

What Employers Cannot Do in A Union Organizing Campaign

All supervisors, HR, and other members of management must be trained on what they cannot do during a union organizing campaign. These are one of the most frequent sources of charges in an organizing campaign. Employers cannot engage in TIPS:

Threaten
Interrogate
Promise
Spy

As I said in my earlier post on Responding to an NLRB Charge:

Employers cannot threaten employees with any adverse action (discipline, termination, reducing pay) because they support a union or engage in protected activity. Companies cannot interrogate employees on whether they support a union. Employers cannot promise employees benefits or better pay to encourage employees to stop supporting a union. Finally, employers cannot spy on employees that are engaging in union or protected activity (like having a meeting offsite about whether employees should join a union).

Conclusion

There is a lot that employers can do during a union campaign, but there is also a lot that can cause the employer to have an unfair labor practice filed against them. It is important that employers be prepared and preemptive to ensure they are not breaking rules that will result in a charge against them. Every illegal action by members of management (even low-level supervisors) can cause an unfair labor practice. Employers have to be prepared for union organizing because elections take place very quickly after employees sign enough union authorization cards. The average election occurs within 23 days of a petition being filed (these can be filed when 30% of employees sign union authorization cards).

The information provided is my own and does not reflect the opinion of my firm or anyone else.