Legal Ease

Union Organizing – A Matter of When

By Richard D. Alaniz, Alaniz Law & Associates T

he potential for greater and more aggressive union organizing of workplaces is a given. If the

Democratic candidate is successful in 2020, it

is an absolute certainty that

we will have a pro-union National Labor Relations Board (NLRB). That federal agency regulates the relationship between private employers and labor unions. Rules to facilitate union organizing and penalize employers who oppose it, union access to private workplaces, and almost certainly another effort to mandate card check and similar measures to support unions are sure to follow.

How Unionization Works Under the NLRA, which applies to private sector employers, an employer with two or more employees is subject to unionization. In order to become the exclusive representative of a unit of employees, a union must either win an NLRB-conducted secret ballot election or be voluntarily recognized by the employer. The formal process is started by the filing of a petition for certification as the exclusive representative with the NLRB. It must be supported by authorization cards from at least 30% of the employees in the unit.

What Happens Once a Certification Petition is Filed Once a valid certification petition is filed, the NLRB promptly seeks to resolve any issues regarding which employees are appropriately included or excluded from the unit. Once that is resolved, a secret ballot election is scheduled, usually within 20-25 days of the filing of the petition. The secret-ballot election is almost always held during working time on

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company premises. After the balloting period, the votes are immediately counted and the party with a simple majority of the votes actually cast is certified as the winner. If the union is successful it gains representation rights for a minimum of one year, during which its majority status cannot be questioned. If a collective bargaining agreement is signed, it bars any challenge to the union’s majority status for at least three years. If the employer is successful in the election, no union may seek to organize those same employees for one year from the date of the election.

How to Respond to Union Organizing With the decline of private sector unions, there has been a commensurate decline in employer’s understanding regarding unions. As a consequence, today when confronted with union organizing activity employers all too often respond in a manner that can easily result in unfair labor practices or at a minimum what is known as “objectionable conduct”. If either one is proven to have occurred, an employer’s election victory can be overturned and a new election ordered. In some rare cases, such conduct can be deemed so egregious that a fair election cannot be conducted. In those cases the NLRB can issue what is called a “Gissel bargaining order”. The employer would be compelled to accept the union as the exclusive representative of the employees and bargain in good faith without another election being conducted.

Despite the fact that its actions in opposing union organizing are likely to be challenged by the union, employers can and should always lawfully respond to an organizing campaign. When properly done, in most cases a sufficient

number of employees can be convinced that a union is not their best choice. Section 8(c) of the NLRA permits an employer to truthfully inform employees about the realities of a unionized workplace. As long as

there are no

threats, coercion or promises of benefit for foregoing the union, an employer is free to speak to its employees about unionization. There has long been an unwritten rule in labor law that in responding to union organizing the acronym “TIPS” should be kept in mind at all times. Those letters stand for “threaten”, “interrogate”, “promise”, and “spy” or “surveillance”. Those are the primary “don’ts” in any campaign against union organizing. Employers are free to lawfully inform employees what it means to have a union. That includes the fact that the union will be their exclusive representative if they unionize. No more going directly to the employer to have a problem resolved. What is in the union contract will be their terms and conditions of employment-nothing more. The company can also explain what unions never want employees to hear, that if contract negotiations are unsuccessful and the union decides to call an economic strike, they could be forced to go on strike and risk being permanently replaced. The employees are not fired or discharged, simply replaced permanently. They can only get their jobs back if the replacement employee leaves. As long as the employer does not imply that a strike is inevitable, it can tell them that they could be on the outside looking in. All of this information, and even more facts can all lawfully be conveyed to employees before they cast their ballot for or against unionization.

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