Your workplace is rumored to become unionized. You’ve heard the buzz in the coffee room and in the corridors. No official union activity has started yet, but employees’ demands for workplace changes and calls for a union to make them happen are getting louder. All this union talk puzzles you. You created what you thought was a fair, safe and pro-employee work environment. Why and how is this happening? The short answer is that unions allow employees to bargain collectively with their employers to protect their rights in the workplace. A bargaining unit can do what employees are less able to do as individuals, namely, negotiate improvements in working conditions.
If you thought your small or medium-sized business (SMB) wasn’t big or bad enough to be unionized — especially with unionization reportedly on the decline — you’d be wrong. Under the National Labor Relations Act (NLRA), a bargaining unit can be just 2 people who share a work-related interest, mission or goal. The chances of your workplace becoming unionized depend on various legal factors, Chief among them is:
The chances of your organization becoming unionized may be less if you operate in one of 27 states with “right to work” laws, According to the National Conference of State Legislatures (NCSL), these states can decide whether employees in an organized workplace must join a labor union to get or keep a job and pay union dues as nonunion members. So, before you decide whether to support or avert unionization in your workplace, it pays to know whether labor laws cover your business, why people unionize, and what the law allows in the unionization process.
The NLRA covers most private-sector employers, including retailers, healthcare organizations, manufacturers, and private colleges, and universities. The act doesn’t cover federal, state, or local governments. Nor does it apply to employers who are covered by the Railway Labor Act or those who hire only agricultural workers. If your business is exempt from the act, your employees’ rights aren’t protected by the NLRA.
Hugh F. Murray, III, chair of McCarter & English's Labor & Employment practice, told TriNet in an email interview that with union membership in the private sector at record lows and organizers finding new ways to attract employees, any workplace is a target for unionization. Murray noted that if a company or an industry is in the middle of a transformation of some kind, the employees may be nervous about the future and think they may need a union’s help if, say, the company is sold.
In a 2009 report by Fisher Phillips, a labor and employment firm, the top 5 reasons employees cited for joining a union were:
Is your employees’ desire to unionize a reflection of your workplace? “It is always a reflection of something in the company’s culture, although not uniformly a reflection of something bad in the company’s culture,” Murray noted. “The fact that employees feel that a would be helpful indicates that there is something missing from the status quo.”
Most employees in industries covered by the NLRA have the right to form or join a union. Temporary workers who staffing firms hire to work for 3rd-party companies can form or join a union without either employer’s consent. In 2016, the NLRB overturned a 2000 ruling that restricted unionization for temporary workers. If you hire seasonal workers for summers or holidays, they, too, have organizing rights. However, the National Labor Relations Board (NLRB) restricts the ability of workers who meet the legal definition of an independent contractor (as opposed to an employee) under the Fair Labor Standards Act (FLSA) from unionizing. Any independent contractors you hire aren’t protected by the NLRA and therefore have no legal right to form a union. Keep in mind that these rulings could change as political parties gain or lose power in the four branches of government. For example, the party representing the Administration holds the majority seats on the NLRB, with the votes to reverse current rulings.
The NLRB doesn’t protect employees whose involvement in union activity presents a conflict of interest. Employees who fall into this category typically are managers, supervisors, and executives. Their role in unionization is about bargaining on behalf of the employer, not the employee. Employees fit in this unprotected category if they:
Other employees who are unprotected by the NLRA include:
The NLRA prohibits employers from denying employees their right to unionize. Unlawful tactics that interfere with organizing include:
Although you have a right to expect your employees to perform their jobs during scheduled work hours, you can’t stop them from engaging in union activity, such as group assembly or handing out union materials, before or after work hours or during breaks.
The NLRA protects employees’ rights to organize by also keeping unions in check. The law prohibits unions from:
Unions also must follow rules on union/employee relations and dues.
Employees have 2 paths toward unionization:
While the 2nd path to unionization doesn’t let you “encourage” your employees to organize, it may signal your willingness to work and negotiate employment issues with them. Once the NLRB certifies a union, you’re required to bargain in good faith over your employment terms and conditions with the employees’ union representative. (See special rules for the construction industry.)
As long as employers, employees and unions follow NLRA rules, unionization should work for all 3 parties. But are unions ever good for a business? Murray cited examples of unions that fit in well with an employer’s business plan. “Professional sports leagues enjoy an antitrust exemption that is based largely on the presence of the players’ unions,” he said. “Most states that are licensing cannabis require ‘labor peace agreements’ in order to obtain a license.” In other ways unions benefit employers, Murray noted that:
Instead of having a negative automatic reaction to unionization, Murray advised employers to be prepared well in advance of a union organizing campaign, if possible, and try to understand what unionization would mean from a business perspective.
So, how should you prepare for an organizing campaign? Murray recommended that you:
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