Responding to Union Organizing at Your Establishment

By Kathleen Pohlid Founder & Managing Member, Pohlid, PLLC | November 24, 2013

Any employer response to union organizing must start well before the union campaign commences and must be in compliance with the National Labor Relations Act. Many employers are under the mistaken impression that the Act only applies to employers who have collective bargaining agreements with a union. This is not so. The Act imposes important obligations upon employers irrespective of the existence of a collective bargaining agreement and provides employees with rights, whether or not they are members of a union.

Employees – irrespective of whether they are in a union – have the right under Section 7 of the Act to engage in "concerted activity" or the right to work together to improve their conditions of employment. This includes the right to communicate amongst themselves, with union representatives even if they are not a member of the union, and with third parties in order to try to improve their pay, benefits, working conditions or to address work related complaints. Employees also have the right - irrespective of whether or not they are a member of a union - to file a complaint of a concerted activity violation with the National Labor Relations Board, which is the federal entity charged with enforcement of the Act. Employers are prohibited from infringing with employees Section 7 rights, including taking actions which may tend to "chill" an employee's right to engage in concerted activity.

Employers should ensure their policies are carefully reviewed to determine if there are provisions which could be construed to violate Section 7 rights. Additionally, they should ensure managers and supervisors are trained in employer obligations under the Act. On November 30, 2011, in Trinity Protection Services, Inc., the Board held that a security company which contracted with government entities violated its employees Section 7 rights when a manager told employees that "divulging any company knowledge to any client was prohibited by company policy and could result in disciplinary action." The Board held that such prohibition "reasonably tends to inhibit employees from bringing work-related complaints to, and seeking redress from, entities other than the employer and restraints their Section 7 rights."

Employees also have the right to freely determine whether or not they want to be a member of a union. Employers are prohibited from threatening or taking reprisals against employees for their interest in joining a union or based upon their membership in a union. Additionally, employers cannot take action which impedes the employees' rights to freely choose whether or not they want to join a union. This includes taking action to deny or prohibit employee access to union information. For example, on March 25, 2011, in New York New York, LLC, the Board held that a food service provider to hotels and restaurants violated the Act when it prohibited off-duty employees from entering the work sites to stand at the front entrance of three hotels where they were employed to distribute union promotion material to employees. The Board held that the employees engaged in a protected right to disseminate the material at their workplace when they were off-duty.

In general, the Board has held that employer rules which prohibit union solicitation on company property outside working time are unreasonable and a violation of the Act. Additionally, employer policies which prohibit solicitation during working hours and in working areas must be uniformly enforced and cannot be limited to prohibiting only union materials. More recently, in Soaring Eagle Casino & Resort, the Board issued its decision on April 16, 2013, affirming an administrative law judge's decision invalidating an employer policy which prohibited casino employees from soliciting in any work area during their working time. The ALJ held invalid an employer prohibition against soliciting in the employee hallway which consisted of multiple time clocks, a break room, and entrances to restrooms.

In addition to knowing the rights of employees and employer obligations under the Act, it is important that employers understand and be aware of the tactics union organizers utilize and the motivations for employees in joining a union. In general, unions may target employers from the outside by a union representative or member providing information or materials to an employee. Unions may also persuade a member to gain employment and to work from the inside to persuade other employees to join. Unions will seek information about the employer, its benefits, working conditions, policies, past history, and contact information about employees. The ultimate goal is to persuade the majority of employees (50% plus one) to sign union authorization cards. Once a union obtains signatures from a majority of the employees, they will ask the employer to recognize the union. If the employer refuses, then the signed cards are submitted for an election.

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