Tag: National Labor Relations Act

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 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.

Talking Politics at Work (AKA How to Make Everyone Mad)

Published by Brett Holubeck on November 4, 2018

Picture of a finger with an "I voted" sticker on it. It aligns with the theme of politics at work because people will often wear I voted stickers. — Photo by Parker Johnson on Unsplash

It is election time. which is an interesting time to be working with people of all political persuasions.

Many workplaces have employee evangelists explaining how America as we know it is over if <insert their favorite politician here> is not elected. Others are saying that it may already be too late, and America is doomed.

Many people feel frustrated by this and fall into the “please stop talking about this at work” crowd. But does anyone HAVE to stop talking about it at work?

What Can Be Done About Employees Discussing Politics at Work?

Employees do not have free speech rights in the workplace. The first amendment only applies to the government and not to private employers. This means that companies can have policies in place that restrict employees from soliciting employees to vote for a particular candidate and can even discipline employees in some situations.

However, the National Labor Relations Act allows employees to work together to improve their wages and working conditions. What this means in practice is that an employee can discuss issues that may be related to improving their working conditions. Thus, employees have the right to ask fellow employees to support a candidate because they will raise the minimum wage, change some standards related to OSHA, or improve their workplace in some other way.

So, what can employers do when an employee wants to talk about politics at work. There are a number of things that you should consider.

Let’s look at some situations:

The Campaign Desk/Cubicle

What should you do if an employee has turned their desk into a campaign advertisement for a particular candidate? Again, your employee has the right to engage in concerted protected activity, which means that some banners may be permitted in the workplace. What you are allowed to do would primarily depend on your office’s policy. Certain types of objects may be protected under the law (like some religious objects), but generally political items would not fall into this category. Some may be protected if they are suggesting that an employee vote for a candidate because they will improve wages or working conditions. Regardless, posting political posters in an office is not something that an employee should do because it creates unneeded tension in the office.

The Office Canvasser

A non-solicitation policy will generally prohibit employees from soliciting employees during working time and in working areas. This means that an employee cannot go from desk to desk requesting that the employee vote for a particular candidate. If your company has a non-solicitation policy, then you are able to restrict employees from soliciting others while they are working. Employees can still solicit employees when they are on break, during lunch, or before or after work. Nevertheless, a non-solicitation policy is something that all companies should have.

The After Work Social Media Poster

A company may be able to fire or discipline an employee if they post on social media about their political activities. Don’t forget about the woman that was fired for flipping off Trump’s motorcade. She was fired for having obscene things on her social media, which was against company policy. It did not help that she worked for a federal contractor. While companies can generally fire employees for any reason, as long as it is not an unlawful reason, almost every company will not fire employees for political postings on social media. If they did, then a lot of people would lose their jobs each election year.

Employers Can Ask Employees to Support a Particular Candidate

Generally, a company can encourage their employees to vote in a certain way. In 2012, one CEO emailed the 7,000 employees in his company to tell them that if Obama was elected he would probably have to let people go because of Obama’s tax proposals. He stated that rather than raising taxes, the government should lower the tax rate, which would “let me spend it on growing the company, hire more employees, and generate substantial economic growth.” Companies can and do encourage their employees to vote a certain way, which is not likely to stop as our two major political parties continue to grow more polarized each year.

Can an Employer Fire Someone Because They Support a Particular Candidate?

There are some states that prohibit employers from discriminating against an employee’s political beliefs, but not all of them do. Some states also offer protection to employees who engage in legal off-duty conduct. While this usually means that employees cannot be fired for smoking or drinking alcohol, it may also apply to supporting a particular candidate, going to campaign rallies, and engaging in other activities.

Even though many states do not offer any kind of protection to employees, most employers do not want to fire an employee unless there is a good reason to do so. Remember, hiring is expensive and time consuming. Employers do not want to do it more than they have to.

Conclusion

Fortunately for all of us, there are only a few days left until the election is behind us, which will allow all of us to remember what commercials used to play before we were inundated with political campaign ads: fast food and auto insurance commercials.

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