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Legal Ease Unions at The Crossroads By Richard D. Alaniz, Alaniz Law & Associates T


he unionization rate of American workers currently stands at 10.3%. In non-government


workplaces, the percentage is only 6.4%. This is the lowest percentage of unionized workers since the passage of the National Labor Relations Act (NLRA) in 1935. The lack of a union in the overwhelming majority of workplaces has understandably led to a decline in union knowledge among employers. Yet surveys show that younger workers, especially millennials, lacking first- hand knowledge of unions, have a positive image of unions. It has not, however, translated into increased numbers in the union ranks. At least not yet.


Unions’ continued relevance in


today’s workplace is in crisis. Their very existence is at stake. Their only option for survival is to increase their numbers through successful organizing. It has been anticipated that a Biden administration would give union organizing a major boost by passage of the Protecting the Right to Organize Act (PRO Act). The proposed law would dramatically tilt the playing field in favor of union organizing, but hinges on Democrats taking control of the Senate. A Democratic administration will,


however, ensure the appointment of pro-labor members to the five-member National Labor Relations Board (NLRB). That federal agency regulates essentially all relations between unions and employers. A pro-labor majority on the NLRB will help facilitate organizing activity in a variety of ways, not the least of which are a return of the “quickie” union election and much stricter limitations on employers’ responses to unionization efforts. Employers lacking the knowledge


34 ❘ January 2021 ®


and experience regarding permissible conduct during a union organizing campaign frequently engage in unlawful activities often resulting in unfair labor practices (ULPs). ULPs can result in a nullification of an employer’s election victory and the ordering of a new election. In circumstances where employer conduct is particularly egregious, the employer could be ordered to bargain with the union, regardless of the election outcome. In most cases, well-intentioned supervisors or managers who are simply unaware of the strictures that apply to employer conduct, engage in the conduct ultimately deemed unlawful. Lack of proper training on how to lawfully respond to union organizing too often results from lack of training, due to employers’ aversion to preparing for something viewed as unlikely because union organizing has never occurred before.


Most believe an organizing


attempt is such an improbable event that it does not warrant the time and effort it takes to invest in such preparations. Proper training of first line supervisors is a critical step in being prepared. Through their daily interaction with the employees, they are likely to be among the first to become aware of unionizing efforts. Their training should focus on what a union can mean to the workplace, as well as the types of conduct prohibited by the NLRA. The acronym “TIPS” describes generally the unlawful conduct supervisors should be trained to avoid. TIPS stands for “threaten,”


“interrogate,” “promise,”


and “spy/surveil.” These are the primary “dont’s” for employers in a union organizing campaign. The conduct that TIPS addresses is fairly straightforward. Threatening


employees that something negative or adverse will occur for supporting or voting


for the union is unlawful.


Similarly, asking an employee what they or others think of the union, or how they intend to vote is unlawful interrogation. Offering something of value such as a promotion, pay raise, or increased benefits to employees to refrain from supporting the union would constitute an unlawful promise. Finally, attempting to monitor union meetings or gatherings constitutes unlawful surveillance or spying.


In addition to educating supervisors


and managers in how to respond to union organizing, Section 8(c) of the NLRA permits employers to lawfully inform employees of a wide variety of union-related facts, provided it is not communicated in a coercive or threatening manner.


This includes


such critical information as the fact that if successful, the union becomes the exclusive representative of all the employees, whether they like it or not. What is ultimately agreed upon in the union contract will be the terms and


conditions of employment for


everyone. Employers are permitted to tell employees that if negotiations are unsuccessful, the union may call a strike. As union members, they would be required to follow the union’s directions to strike or could be subject to fines from the union. Employers also can and should inform employees that in an economic strike, employees are subject to being “permanently replaced.” The employees are not fired or discharged, but simply replaced by someone who wants the job. They can only return if the replacement employee leaves. Avoiding a union organizing drive is never totally within the employer’s


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