Tag: Unfair Labor Practice

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 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.

Responding to an NLRB Unfair Labor Practice Charge

Published by Brett Holubeck on January 10, 2019

Image of gavel to represent that the unfair labor practice is essentially a case against the company alleging that it violated the NLRA. — Photo by rawpixel on Unsplash

Getting an unfair labor practice charge against you can be confusing. Let’s start with the basics.

An unfair labor practice charge is filed by an employee or a union with the National Labor Relations Board alleging that an employer or a union violated the National Labor Relations Act. The National Labor Relations Act (NLRA) protects employees’ rights 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” (otherwise known as protected concerted activity). It is illegal for a company to discipline or fire someone because they engage in protected concerted activity.

Some of the most common violations that employers commit are:

Forbidding employees to discuss their salaries
Firing or disciplining employees that discuss the union or solicit employees to sign union authorization cards
Disciplining or firing employees that complain about working conditions, pay, or safety issues with or on behalf of a group of employees.

You can read more about other ways that the NLRA protects employees in one of my earlier posts.

The Best Approach is to Avoid Unfair Labor Practices

If you do not violate the law, then it is less likely, although not impossible, that an employee or a union will file an unfair labor practice charge. Employees can and do file frivolous lawsuits and unfair labor practice charges.

The best way to avoid an unfair labor practice charge is to train your managers, supervisors, and HR staff on what they can and cannot do. The easiest way to remember what can and cannot be done is to remember TIPS.

Threaten
Interrogate
Promise
Spy

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).

So, what happens when you have an unfair labor practice filed against you?

The NLRB has a chart that shows exactly what happens. Let’s review the steps before a hearing occurs.

The Investigation

Companies need to act fast when they receive an unfair labor practice charge from the NLRB. Obviously, employers should seek legal counsel if they are not represented. To respond companies should:

Carefully read the unfair labor practice charge
- Who was involved in the incident(s)?
- When did they occur?
- What violation does the charge allege that the company committed?

The employer will also receive a Questionnaire on Commerce Information. It is best to agree or stipulate that the company is subject to the jurisdiction of the NLRB rather than filling out the form. Employers typically do not want to reveal more information than they need to.

Employers need to be careful about speaking to employees that were witnesses to the events leading to the unfair labor practice charge.

Matt Austin explains the basics of what employers need to do to speak to employees in these situations:

Specifically, Johnnie’s Poultry allows questioning of employees only after the employer’s representatives:
1. communicate to the employee the purpose of the questioning;
2. assure the employee that no reprisals will take place for refusing to answer any question or for the substance of any answer given; and
3. obtain the employee’s participation in the interview on a voluntary basis.

Basically, employers need to let the employee know that they are interviewing the employee because of the incident within the unfair labor practice charges. Employers must inform the employee that they will get no benefit or punishment from speaking with the employer or the employer’s attorney. Finally, the interview is voluntary and can be stopped at any time. Employers should never speak with the charging party (the person that made the accusations) about the incident. None of this applies to members of management or human resources.

The NLRB will typically wish to speak with the members of the management team that are alleged to have committed the offenses committed by the company. Most employers benefit from conducting their own careful investigation of the events before they allow the NLRB to interview their employees.

The NLRB will Want to Take Affidavits from Management Witnesses

As part of the investigation, the NLRB will seek to take affidavits or statements from management witnesses. Companies have a right to have an attorney present for all witnesses that are members of management or human resources staff (agents of the company) but attorneys cannot be present for any affidavits taken from employees that are not members of management. Employers cannot stop employees that are not members of management from speaking with the NLRB.

Employers have a few options when it comes to determining whether to provide management witnesses. They can:

Refuse to provide any information to the investigator. This will usually result in a complaint being issued against the company because the only evidence will be from the charging party. Employers may wish to do this if they believe that this will go to a hearing because the NLRB will ultimately issue a complaint. Companies also need to be aware that the NLRB will often share information with the charging party. The NLRB rarely seeks an investigative subpoena to force the employer to provide information, so it is likely that you will be facing a complaint that will include all of the allegations from the charge.
Call the investigator and orally discuss the company’s position but refuse to make management witnesses available for affidavits or to provide any documents.
Provide the management witnesses for affidavits and have an attorney present to assist witnesses. If an employer plans to do this, then it should also file a statement of position explaining its defenses before the affidavits are taken.

Some Tips If You Provide Management Witnesses for Affidavits

The affidavits are incredibly important to help the NLRB determine what happened. If something is said incorrectly in an affidavit, then the opposing party will use that against a company should the case go to a hearing. The NLRB or the union (if they are the charging party) will impeach company witnesses with incorrect statements. It looks a bit like this scene from My Cousin Vinny, but with documents. No company wants this to happen to its witnesses, which is why preparation for an investigation is crucial.

Each witness and any attorneys present can review the affidavit that the NLRB takes. The NLRB takes affidavits using a computer, so errors that a witness or their attorney find should be redone to make a clean copy of the affidavit. Be sure to ask the investigator to do this.

Witnesses must be careful that the NLRB agent does not pin a witness down with statements like “I spoke with no other individuals about the incident.” A witness may remember more information later, so be careful of statements that lock a witness into a position unless the witness is absolutely sure that they will not remember more information later.

If the investigator does not ask a question or get information that a witness believes is necessary for the investigation, then they should speak up and get the information into the affidavit. The affidavit is your chance to provide any information that will be helpful to the employer’s case.

The NLRB’s Conclusion of the Unfair Labor Practice Investigation

Once the affidavits are completed, the employer should consider providing an additional statement of position concerning the facts of the case. This will be the last chance to state its position and defense before the NLRB reaches its conclusion on the unfair labor practice charge.

Once the NLRB makes a determination, then it will either dismiss all of the allegations (i.e. the employer/defense wins) or the charging party will withdraw the charge, dismiss some of the allegations, or dismiss none of the allegations. If the NLRB dismisses all of the allegations, then there is nothing left for the employer to do. If the NLRB dismisses some but not all of the allegations or none of the allegations, then it will be time to consider settlement. Each case is unique, so the best option is a fact specific determination that will need to be carefully discussed.

Conclusion

Responding to an unfair labor practice charge from the NLRB is difficult, but there are a number of things that employers can do to respond. Employers must investigate allegations of unfair labor practices carefully before they decide the proper approach for their company.

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