Know the Law Regarding Union Organizing

The National Labor Relations Act (NLRA) is the federal law that governs the relationship between unions and private employers. It does not generally cover public employers or public employees. When a union seeks to represent employees, whether in the private or public sector, the union engages in an “organizing” campaign, where it tries to organize the workforce into a bargaining unit of persons for whom the union is authorized to negotiate with the employer to determine the wages, hours and other terms and conditions of the workers’ employment.

Q: What are Section 7 rights?
A: Section 7 of the NLRA gives employees the right to form, join, or assist labor organizations and to choose a representative to collectively bargain on their behalf. Section 7 also gives employees the right to refrain from engaging in such activity, for the most part.

Within reason, Section 7 is broadly interpreted by the National Labor Relations Board (the government administrative agency that enforces the NLRA); therefore, nearly anything that affects a term or condition of employment is protected under Section 7. Employers must be careful in drafting and enforcing policies that do not restrict the employees’ Section 7 rights. Employers should also be careful about changing policies or enforcement of their policies during a union organizing campaign, as such changes may result in charges being filed against the employer by the organizing union.

Q: What are authorization cards?
A: An authorization card is a legal document signed by an employee to allow the union to act on his or her behalf for collective bargaining. An authorization card is a legal contract that may ultimately require an employee to pay union dues and subject an employee to the union’s constitution and by-laws. A signed authorization card is not the same thing as a “yes” vote in a union election. Instead, a union will typically secure signed authorization cards from employees as part of an organizing campaign to secure an NLRB-conducted election, at which each employee can vote “yes” or “no” for representation, without regard to whether he or she signed an authorization card. A union can also use signed authorization cards to ask an employer to voluntarily recognize the union. The cards are used to demonstrate that employees want union representation. The authorization cards have no legal effect until either the NLRB recognizes the union as the collective bargaining representative, through the NLRB election process, or the employer voluntarily recognizes the union as the collective bargaining representative. An employer cannot discriminate against an employee for signing an authorization card.
Q: Does it cost money to belong to a union?
A: Yes; if an employee seeks to become a union member, there is typically an initiation fee, monthly dues, and possible assessments and fines. A union’s largest—and sometimes only—source of income is dues. A union cannot promise to waive fees in exchange for an employee’s “yes” vote during an organizing campaign. 

Q: Can a union guarantee better wages or benefits?
A: No. Employees who elect to have a union represent them have an opportunity to bargain for higher wages, better benefits, and more employee-friendly terms and conditions of employment. However, an employer is under no obligation to agree to a union’s proposals or to grant concessions to the union. The employer is only required to bargain in good faith with the union. Bargaining is a “two-way street.” During negotiations, employees’ wages and benefits can go up, down, or stay the same. The NLRA does not require the union or the employer to agree to anything—only to bargain with each other in good faith.

Q: Are there restrictions on what a supervising member of a company’s management team is allowed to do to influence employees during a union organizing campaign?
A: Yes. An easy way to remember what a supervisor cannot do is to think of the acronym “TIPS,” which stands for Threaten, Interrogate, Promise and Surveillance.

Supervisors are not allowed to threaten employees that adverse employment action will occur if they vote for a union. Supervisors cannot interrogate (ask questions of) lower-level employees regarding their opinion about unions or whether those employees will vote for or against the union. Supervisors cannot promise benefits in exchange for a vote against unionization. Lastly, supervisors cannot spy on lower-level employees in an effort to ascertain employees’ stance regarding unionization.

However, supervisors are allowed to express facts, opinions, and give factual accounts of union experiences to lower-level employees without violating the law.  

7/11/2016

This “Law You Can Use” column was provided by the Ohio State Bar Association. It was originally prepared by Columbus attorney Matthew Austin and updated by Toledo attorney Marilyn L. Widman of Widman & Franklin LLC.​​

Articles appearing in this column are intended to provide broad, general information about the law. This article is not intended to be legal advice. Before applying this information to a specific legal problem, readers are urged to seek advice from a licensed attorney.

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