Overview: The process of forming a union begins when union organizers solicit authorization cards within a targeted group of employees acceptable to the National Labor Relations Board (NLRB). Authorization cards, when signed, allow the union to represent the signer in dealing with the employer on issues concerning wages, benefits, hours, and working conditions. Union representatives and employees who support the union will try to convince employees to sign authorization cards.
While the National Labor Relations Act (NLRA) protects the rights of employees to organize, form, join and assist labor organizations, it also protects the rights of employers to express views, arguments or opinions concerning unions, if such expression contains no threat of reprisal or force or promise of benefit. Therefore, employers aware of union organizing that wish to prevent the unionization should immediately advise employees of the reasons why a union is not in their best interest and should communicate this information in compliance with the complex rules surrounding employer speech during a union representation campaign.
Employers should also think about ways to prevent unions from organizing in the first place - one important step is having a union avoidance policy that is communicated to all employees at the time of hire. Employers should also recognize the signs of union formation, such as an unusual group of employees meeting before and after work or the discovery of union cards. Having properly trained supervisors that support senior management's initiatives and properly communicating with employees is also critical - when an employee feels a sense of unity, teamwork and appreciation/recognition they will likely avoid union organization.
Once a union gets signed cards from at least 30% of the employees in its targeted group, it can file a petition for representation with the NLRB - or, if a union gets more than 50% of the employees to sign authorization cards, it may present the employer with a demand for recognition of the union - however, most employers are not willing to concede. Between the filing of a petition and the date of a secret ballot election, employer representatives typically try and convince employees to vote against unionization.
Once election day arrives, if more than 50% of the voting employees vote for union representation, the union wins the election. However, if 50% or more of the voting employees vote against union representation, the union loses the election and the group of eligible voters remains union-free.
Trends: Recent NLRB cases seem to indicate that employers who allow employees to use social networking sites during work hours will not be able to prohibit those same employees from sending pro-union messages via the same social networking sites while working. Similarly, if the employer allows social networking on employer property and equipment during non-working time, it likely will not be permitted to prohibit messages supporting the union on the same sites at the same times. There are also new NLRB cases protecting employees' rights to use social networking sites for mutual aid or protection when the employees are not working and are not using employer property. Employees will be similarly protected when using social networking sites to support union organizing efforts while not working and not using employer property.
Author: Melissa Boyce, JD, Legal Editor
The National Labor Relations Board (NLRB) decision in Specialty Healthcare and Rehabilitation (Specialty Healthcare) survived its first court challenge when the Sixth Circuit of Appeals (court) upheld the decision in Kindred Nursing Centers East (f/k/a Specialty Healthcare and Rehabilitation Center) v. NLRB, 2013 U.S. App. LEXIS 16919 (6th Cir. 2013). As a result of this decision, employers should be cautioned that employees who share a community-of -interest are not required to be in a single bargaining unit and may instead campaign and organize smaller bargaining units, i.e. micro bargaining units or "micro-unions", within a single workplace, thereby multiplying the burdens on employers.
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