Tag: unions

How Does Union Organizing Begin?

Published by Brett Holubeck on June 22, 2021

Image of a coffee with the word begin on it to show that it is the beginning of new efforts to unionize companies. — Photo by Danielle MacInnes on Unsplash

As I have been explaining on my blog and podcast, the Biden administration may cause a turning point in the decline of unions as it does everything it can to support unions.

Currently, only 6% of the private workforce is unionized and 34.8% of the public workplace is unionized. The rate of overall unionization has declined from 20.1% or 17.7 million workers in 1983 (the first year for which there is data on unionization from the BLS) to 10.8% or 14.3 million workers in 2020. There are 7.2 million union members in the public sector and 7.1 million in the private sector.

Many businesses have never experienced union organizing. However, that may be about to change as I mentioned on the post with my last podcast episode. The Biden administration is the most pro-union presidency in decades. It is continuing to do more to help unions grow by encouraging the passage of the PRO Act, speaking in support of union campaigns (such as the campaign at Amazon), and the creation of a task force to find ways to support union organizing.

All of this leads to the important question…

How do Campaigns to Unionize a Company Begin?

There are two ways that unions seek to organize a company: employee driven and union driven campaigns. There are some major differences in both of these campaigns. Below are the major elements of each type of campaign.

1. Employee Driven Campaigns

An employee driven campaign is typically caused when employees want a union to fix some issue that they have with the company.

The most common issues that causes employees to seek a union are:

a. Unfair compensation

Employees may seek a union because they believe that the union will result in them receiving higher pay or more benefits. This may especially be the case if the employees are underpaid compared to others within their industry and geographic area.

b. Bad boss or supervisor

A poor supervisor that treats employees unfairly, plays favorites, and is generally unpleasant is one of the most common causes of a union organizing drive by employees. A union may be able to file grievances and represent employees that are unjustly terminated or disciplined.

Of course, on the flip side, unions also represent and sometimes get employees reinstated that should clearly not be such as this railroad engineer that defecated on a train-car Knuckle, threw toilet paper covered feces out the window of the train, and told his manager that he had left a present for him.

c. Poor safety record

The pandemic has increased employee concerns about safety. Employers that do not respond to safety problems are more at risk to unionize.

d. Poor job security

Employers that fire employees without good cause or treat employees unfairly and replace employees that should not be terminated may cause employees to feel that a union can protect their jobs.

e. Not being treated as well as employees elsewhere

If other employers are offering better pay or benefits, especially if they are unionized, then that may cause employees to seek a union.

f. Employee coming from another unionized facility

Employees that used to work at a unionized facility may be more likely to try to establish a union at a new place of business if they had a good experience with the union.

g. Ignoring employee complaints

Employers that ignore complaints of employees risk employees believing that a union could solve the problem.

2. Union driven campaigns

Union driven campaigns, those started by a union, differ from employee driven campaigns in a number of ways. Most unions, at least the major ones, have employees that are tasked with organizing companies (union organizers). These workers may try a variety of tactics to organize a company. For some unions this may be targeting their typical worksite (like the UFCW targeting food processors). Others may have selected specific companies that they wish to organize (like the UAW trying to organize the Volkswagen facility in Chattanooga, Tennessee that has failed repeatedly).

The typical targets for unions have the following characteristics.

a. Major companies

Unions typically target major companies where they can exert political and community pressure on the company to organize.

b. Within the union’s typical sphere

Unions typically, but not always, try to focus on groups of employees that they are familiar with to organize. For example, the United Auto Workers (UAW) focuses on car manufacturing and other manufacturing employers.

c. Target for many years

Unions will typically select a company that they wish to unionize and show up every year to try to build on their support. Organizing is a long game and it may take time before the union is successful in organizing a facility.

d. Vulnerable because of other unionized facilities in the area

Targets that are vulnerable because they are located in areas with a lot of unions are often selected. If there are unions in an area, then it is likely that workers are more familiar with unions and may be more inclined to unionize. Of course, there is also the possibility that workers in an area have seen unions fail to protect jobs or protect jobs of workers who deserved to be fired, which may cause them to be less inclined to unionize.

e. Desire for large units over small ones

Unions target companies that are bigger to try to get more members, or at least the campaigns that are started by unions tend to begin this way. The median bargaining unit size is only 26 employees. Small employers can often be organized easier than larger units.

f. Contacted by employees to run a campaign

Finally, unions often take over campaigns once they are contacted by employees about forming a union. In these circumstances, much of the groundwork has been done for the union to begin organizing the facility’s workforce. It is not a union initiated campaign, but unions that receive requests to assist often jump at the chance because it is an easy way for them to secure members.

Once a union decides that a company is a target, then the union will often assign organizers to conduct the campaign until the union wins, it becomes obvious that the union will not win, or the organizers find that their time is better spent targeting other companies.

How do unions typically campaign?

3. Common Tactics by a Union in a Campaign

Unions have a number of tactics that are common in their campaigns. Of course, some campaigns are larger than others and some even involve the infamous corporate campaign, which you can read about here.

The most common tactics in a normal union organizing campaign are the following:

Fliers

Unions are likely to come to the facility, at least pre-COVID, and pass out fliers to employees in the parking lot or as they leave the facility/building if the company lacks a no-solicitation policy.

Social media

Social media is a great tool for unions to organize meetings with employees and inform employees about unions.

Reaching out to employees at home

Unions will try to obtain employee addresses so that they can visit them at their homes without having to come to the facility. People at their homes may be more or less open to these visits. Many employees find this to be an invasion of their privacy. Once an election is filed, employers are required to provide unions with the names, addresses, cell phone numbers and employee addresses of eligible bargaining unit employees (an Excelsior list).

Events

Unions will hold events where employees can learn about the union and the union will attempt to recruit employees that can encourage other employees to sign union authorization cards.

Email

If unions have access to email, then they will often use it to share information and invitations to union sponsored events.

Text messages/phone calls

Much in the same way as email, unions will use employee phone numbers to provide information to employees.

Target supervisors

Some unions will attempt to place a supervisor in an awkward position or make them susceptible to a possible unfair labor practice. They may do this by calling out behavior of the supervisor (whether those complaints are justified or not) or encouraging employees to report any interactions with supervisors. Supervisors need to be especially careful with their friends and relatives that work at the facility. These individuals can, and do, make reports about supervisors to the union that can lead to unfair labor practice charges against the company that names the supervisor.

Company email

In the past, unions were allowed to use company emails to communicate with employees for the purpose of organizing and other non-business purposes (this was the Purple Communications standard). This rule was overturned by the Trump NLRB board in Caesars Entertainment Corp, which reinstated the 2007 standard that allowed an employer to ban all non-business email communications. It is expected that the Biden board will go back to the Purple Communications standard at some point in the future.

Aim to file unfair labor practice charges

Unions will file unfair labor practices against employers for activity that violates the National Labor Relations Act. As a bonus for the union, if there is an election the unfair labor practices charges that involve activity occurring during the election can result in the NLRB throwing out the election results and conducting a new election if the employer wins.

Salts

Unions may have union members seek to be hired by the employer that they are targeting. This is called salting. It is essentially a way for the organizers to gain an inside look at the facility and the ability to do more than they can do as outsiders (they may be able to talk to employees or solicit them inside the facility).

Conclusion

If you would like to learn more about responding to union organizing, how employees can decertify (get rid of) a union, and other information about union organizing you can read the following posts on my blog and my podcast, Employment Law Problems:

● How to Respond to Union Organizing: https://texaslaborlawblog.com/respond-union-organizing/

● How to Get Rid of A Union: https://texaslaborlawblog.com/how-to-get-rid-of-a-union/

● Amazon and responding to union organizing: https://podcasts.apple.com/us/podcast/amazon-and-responding-to-union-organizing/id1559744548?i=1000518395454

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.