Develop a flow chart or step-by-step list of the key steps employees must take to form unions.
Develop a flow chart or step-by-step list of the key steps employees must take to form unions. Explain how the union-organizing process works differently in the public sector compared to the private sector. Describe the roles of the National Labor Relations Board (NLRB) compared to the Federal Labor Relations Authority (FLRA).
Summarize who can join a union and who is excluded; how unions are formed (referencing your flow chart/step-by-step guide above); and why they are formed (citing three or more statistical reasons).
Employees who wish to be represented by a union must follow a prescriptive process outlined in regulations and governed by the National Labor Relations Board (NLRB) for private-sector employees and the Federal Labor Relations Authority (FLRA) for public-sector employees.
The NLRB has developed a process for employees in a workplace to form unions as well as to dissolve existing unions. From the NLRB (n.d.), examples of employee rights include:
Forming, or attempting to form, a union in your workplace
Joining a union whether the union is recognized by your employer or not
Assisting a union in organizing your fellow employees
Refusing to do any or all of these things
To be fairly represented by a union
The resources in this module provide clear details on the entire process required to form a union. In summary, the NLRB (for the private sector) oversees an election process (as required) whereby all eligible employees cast a secret ballot to determine if a particular union will represent them. If the union gains a majority vote and the process is acceptable by the NLRB (pending any non-conclusive issues), the union is certified as a representative of the employees and management is now required to enter into a collective bargaining process with the union representative with the goal of completing a collective bargaining agreement (or contract). From the SHRM website (2009), Section 7 of the National Labor Relations Act (NLRA) grants employees:
the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.
For the union, the objective of an organizing campaign is to gain enough support within a bargaining unit to be certified as employees’ sole representative for purposes of collective bargaining.
At least 30 percent of eligible employees must sign authorization cards indicating they want union representation before the NLRB will order a secret ballot election.
Unions often attempt to persuade employers to remain neutral with respect to unionization and to recognize the union of the basis of a card check.
An employer may refuse to recognize a union based on signed authorization cards alone and may insist on an NLRB-supervised election.
Once a union has been certified as the exclusive bargaining representative, the employer is obligated to bargain in good faith with the union concerning wages, hours and other terms and conditions of employment. The union’s objective in negotiations is to secure a collective bargaining agreement or “contract” with the employer. (“Preparing for the Possibility,” 2009)
Obviously, an important part of this process is for a particular union to gain the support of at least 30% of eligible members. Sometimes this can be a lengthy process to garner this level of support, depending on the employees’ workplace concerns. The SHRM website (2013) states in a slightly different way than above:
After it [the union] receives signed authorization cards from 30 percent of employees in a proposed bargaining unit, a union can file a petition for a representation election with the appropriate regional director of the NLRB. Filing the petition for an election marks the official beginning of the union’s organizing campaign. At this point the union, and most likely the employer, will educate employees about union representation.
The petition triggers an investigation by NLRB agents to make sure the board has jurisdiction, the union is qualified and there are no existing labor contracts that would bar an election. The agents will then seek an election agreement between the employer and the union. When an agreement is in place, the parties authorize the NLRB regional director to conduct the election. Elections are typically held within 30 days of a regional director’s order or authorization.
The NLRB determines the appropriate bargaining unit based on whether the employees share a “community of interest” based on similarity of wages and hours, common supervision, and job function. (“Managing,” 2013)
In Module One, we learned that in the private sector, the percentage of the workforce that is unionized has been steadily declining. However, it would be a mistake to conclude that the age of private-sector unionism is over. There is substantial evidence that people in the United States believe unions help workers and are supportive of them (Panagopoulos & Franca, 2008). Union win rates in representation elections are at an all-time high (“Union Avoidance,” 2010).
Broadly, there are two circumstances where an employer might elect to use union avoidance techniques:
When faced with the union-organizing effort
As part of their day-to-day employee relations program, even if there is no evidence of a unionization effort
There is general advice commonly given to employers seeking to remain nonunion. These include (“Union Avoidance,” 2010):
Keep wages competitive
Provide employees a voice in the workplace
Ensure benefits compare favorably not only to other companies but to those represented by unions as well
The existence of a complaint resolution process
These measures are common among many well-run and successful organizations. However, employers are not always free to initiate these measures—sometimes their timing can be the basis of an unfair labor practice. For example, it is illegal for an employer to raise wages or benefits as a way to influence voters in a representation election (Neuser & Barker, 2010). Further, it is an unfair labor practice for an employer, during a union representation effort, to, for the first time, solicit grievances from employees. The reason for this is that this type of outreach carries with it the implication that management will address the issues (“Key to Union Avoidance,” 2006). This is the sort of activity that is an unfair labor practice contrary to the NLRA, and is thus illegal.
One might ask, “What is an employer to do? Doesn’t the employer have rights?” The employer does have many rights (see, for example, Neuser & Barker, 2010), but the law looks at the circumstances. Fostering open communication is a recognized best practice in human resource management. Nonunion employers who have a history of conducting ongoing roundtable meetings where grievances or comments about work issues are solicited are generally not in violation of the NLRA, even if the meetings occur during a union-organizing effort. This is the case as the activities predate the union-organizing efforts (“Key to Union Avoidance,” 2006). Keep in mind, the NLRB looks at the totality of the situation. In other words, a nonunion employer who has held employee roundtables for a substantial period is on stronger footing than one who “coincidentally” begins them shortly before a representation campaign. Further, employers who increase the frequency of roundtable meetings and grievance solicitation may find themselves charged with an unfair labor practice (“Key to Union Avoidance,” 2006).
Companies may take strong stances against unions both before and during a unionization effort. Employers can communicate with employees and tell them why they think a union is not necessary. However, employers cannot make any implied threat or promise. When faced with an organizing effort, employers are best served by focusing on “objective fact” (Neuser & Barker, 2010, p. 14).
It is common for employers to periodically state their position regarding unions. The Target and Delta Air Lines videos included in the Module Resources folder represent examples of lawful communication. The Target video was part of its union avoidance effort, while the Delta video addresses a representation election. Both videos focus on why each employer believes unions are unnecessary. As you watch these, keep in mind the reasons why employees unionize and consider how these videos attempt to address those concerns.
Relevant to the lawful and unlawful use of employee roundtables, it is critical to note that the NLRB has changed how it views the use of participative management techniques in union-represented facilities. Beginning in 1992, the NLRB took the position that the use of management/employee work teams violated the NLRA. This conclusion was based on the finding that such committees served to diminish the union, as it was believed that the employer could bypass the union and deal directly with employees (Carrell & Heavrin, 2010). This sort of activity is a violation of the NLRA (Neuser & Barker, 2010). However, in 2001, the NLRB identified circumstances where such employee-management efforts did not violate the NLRA (“New Guidelines,” 2001):
Where the committees are made part of the management structure
Where the committees are given wide decision-making latitude and autonomy
This module is an introduction into union avoidance efforts. It is important to keep in mind that the NLRB and the courts look at the totality of the employer’s actions in determining whether unfair labor practices occurred.
Section 14(b) of the Taft-Hartley Act (part of the NLRA) allows states to prohibit the union shop. A union shop is one that requires employees to join the union representing employees at the employer after a certain period or lose their jobs (Carrell & Heavrin, 2010). In a right-to-work state, employees can elect not to join the union and refuse to pay union dues (Smith, 2012).
Unions exist in right-to-work states, but as they are prevented from collecting union dues, they face the prospect of administering the bargaining unit and representing all the employees (including those who do not pay union dues) with a reduced treasury. Individuals who do not pay union dues but who are represented by the union are called “free riders” (Carrell & Heavrin, 2010, p. 151)
Right-to-work laws are controversial. Some argue that the laws promote economic growth, while others disagree. For an overview of the conflicting points of view, see Pugh (2012) and Smith (2012). For a map indicating which states are right-to-work states, see Pugh (2012) (although the map does not include Michigan, which enacted right-to-work legislation late in 2012).
New guidelines from the National Labor Relations Board regarding participative management initiatives and employee committees. (2001). Jones Day Commentaries. Retrieved from http://www.jonesday.com/files/Publication/bed7d207- 425f-4b05-8088-7e8d40605e1b/Presentation/PublicationAttachment/7f8ae545-1fb9-4940- 92f5-358a03df7bff/New%20Guidelines%20from%20NLRB.pdf
The key to union avoidance. (2006). Management Report for Nonunion Organizations, 29(9), 7–8.
Union avoidance in the age of Obama. (2010). Management Report for Nonunion Organizations, 33(7), 4–5.
Carrell, M. R., & Heavrin, C. (2010). Labor relations and collective bargaining. Upper Saddle River, NJ: Prentice Hall.
National Labor Relations Board. (n.d.). Employee Rights. Retrieved from http://www.nlrb.gov/rights-weprotect/employee-rights
Neuser, D. J., & Barker, D. D. (2010). What every employer should know about the law of union organizing. Employee Relations Law Journal, 35(4), 3-45. Retrieved from http://ezproxy.snhu.edu/login?url=http://search.proquest.com/docview/194228552?accountid= 3783
Panagopoulos, C., & Franca, P. L. (2008). The polls–trends. Labor relations in the United States. Public Opinion Quarterly, 72(1), 134–139.
Pugh, T. (2012, February 25). Indiana’s new right-to-work law could prompt copycats. The Washington Post. Retrieved from http://www.washingtonpost.com/national/indianas-new-right-to-work-lawcould-prompt-copycats/2012/02/19/gIQAadRlaR_story.html
Preparing for the possibility of union organizing. (2009). Society for Human Resource Management. Retrieved from http://www.shrm.org/TemplatesTools/Toolkits/Pages/PossibilityofUnionOrganizing.aspx
Managing through union organizing campaigns and elections. (2013). Society for Human Resource Management. Retrieved from http://www.shrm.org/TemplatesTools/Toolkits/Pages/ManagingThroughUnionOrganizingCamp aignsandElections.aspx
Smith, J. (2012, January 25). What is a ‘right to work’ law? The Wall Street Journal. Retrieved from http://blogs.wsj.com/law/2012/01/25/what-is-right-to-work-law/