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The recent surge in unionization has caught many employers by surprise. Industries not traditionally unionized have been facing union representation petitions at an increasing rate, sometimes led by unions who have traditionally represented unrelated industries. While noticing that employees want to form a union may come as a shock to management, having an understanding of the union election process and how employers should respond can make the process far less hazardous to navigate.
When employees seek union representation, employers face many legal obligations under several federal and state laws that protect employees’ rights to organize. The primary federal statute guaranteeing workers the right to organize in the private sector is the National Labor Relations Act (NLRA). The NLRA generally protects workers’ rights to unionize and imposes restrictions on how employers can treat employees in response to their organizing activities. There are different labor laws providing similar rights for government employees, railroad workers, agricultural employees and other distinct groups.
While protected employee activity is typically seen in the course of unionizing, even less formal employee activities, such as group discussions of wages or disciplinary practices, may be entitled to protection. Employee activities that are unrelated to union organization will still be entitled to protection if they meet the definition of “concerted activity” under the NLRA. Generally, concerted activity requires two or more employees collaborating in an action related to workplace conditions. Two people collaborating could be as simple as a speaker and a listener talking about wages or other working conditions. An employee who appears to be acting alone may still be entitled to protection if their action was planned in concert with other employees. Before taking action in response to any employee activities intended to change their working conditions, employers should carefully analyze whether such activities are protected under law.
Employee discussion of unionizing, or concrete steps towards unionization such as filing a petition for a union election, are more straightforward in entitling employees to protection under the NLRA. Employers cannot apply their disciplinary policies in a discriminatory manner towards employees engaged in pro-union activities. For example, punishing a pro-union employee who has five unexcused absences, but not punishing another employee who has the same or more absences, could be considered discriminatory.
Employers are prohibited from attempting to convince employees that they do not need to unionize by initiating, or promising to initiate, a new grievance procedure intended to deal with the issues that caused the employees to unionize. For example, after employees begin unionizing, an employer is prohibited from soliciting the employees’ grievances and promising to satisfy such grievances.
The NLRA also prohibits employers from conducting surveillance on employees engaged in union-related conduct or on union activities. This prohibition applies to employers spying on employees in person as well as over social media. For example, if employees have a Facebook group or Instagram account where employees are exchanging messages regarding organizing efforts, an employer should not go looking at employee conduct on the group page or account.
Violations of the NLRA are called Unfair Labor Practices (ULPs). Employers, unions and individual employees can file ULPs with the National Labor Relations Board (NLRB). When an employer is found to have committed a ULP, the NLRB may order an employer to pay damages to affected employees and to take other actions to rectify its offense. For instance, if an employer is found to have terminated an employee in violation of the NLRA, the NLRB may order that the employee be reinstated with backpay. Not only are ULPs likely to directly result in financial losses — they may be bad for a company’s brand, as public support for unions has surged in recent years, and is especially high in the Pacific Northwest.
So, if employees have filed a petition for a union election, what can an employer do? Before addressing that, it should be noted that the rules for government employers are far stricter than those for private sector employers. Government employers should consult with counsel before issuing any communications to employees about unionization.
A private sector employer can maintain its usual disciplinary procedures, compare compensation and working conditions with similarly situated unionized employers, and point out any benefits that its employees receive that union employees do not. Communicating with employees requires attention to detail and employers can only share facts, opinions and experiences. An employer generally can tell employees about the disadvantages of union membership, such as the possible expenses. However, employers cannot tell employees that voting for the union is against their interests or misrepresent the employees’ rights with a union. Employers should have a labor advisor look at the circumstances of any messaging to employees during a union election to ensure that it is legally compliant.
Once a petition for a union election has been filed, deadlines to submit paperwork to the NLRB will come quickly. Ensuring that managers are trained and understand the basic dos and don’ts of dealing with employees during unionization before a petition is filed is the best way to minimize the disruption caused by a union election. That way, employers can get employees the information they need to make an informed choice without stumbling into unnecessary ULPs.
Nicolas Ball is an attorney at Barran Liebman LLP, where he focuses his practice on employment law advice and litigation. For questions, contact him at 503-276-2150 or nball@barran.com.
