Bus 372 week 2 discussion 1&2
Learning Objectives
After completing this chapter, you should be able to:• Evaluate the steps of union formation under the National Labo r Relations Act.
• Analyze employers’ use of unfair labor practices such as coercio n, interrogation, and
surveillance.
• Assess employers’ use of unfair labor practices such as regulating sol icitation,
relocating the workplace, and holding captive audience mee tings.
4
Representation Elections Under the
National Labor Relations Act
Robert Churchill/iStock/Thinkstock • Examine union activities that may invalidate union representation elections, the
process by which the workforce votes for or against union represe ntation in the
workplace.
• Summarize the ways in which labor relations consultants may assist employers in the
union representation election process to determine if workers w ish to be represented
by a union. Introduction
This chapter and the next offer a detailed explanation of the National Labor Relations Act (NLRA), the
federal law initially enacted in 1935 that first gra nted workers the right to form a labor union. We wil l
examine how to form a union and achieve recognition pursuant to the act. Then we will study how
employers sometimes violate the act and examine ways em ployers can stay within the parameters of the
law.
Much of this chapter will refer to elections under th e NLRA. Elections refer to the process in which
workers vote at their workplace to determine whether they wish to be represented by a union; other
ways to refer to this process include representation elections or t he election process. 4.1 How Unions Are Formed Under the NLRA
This section discusses how a labor union is formed in a private business under the National Labor
Relations Act. We will begin by covering who is quali fied to start the unionization process and then
examine how the petition is actually filed with the National Labor Relations Board (NLRB), the
administrative agency entrusted with overseeing represe ntation elections and resolving labor disputes
under the act. Defining who is an employee is an impo rtant first step to determining which workers are
eligible to vote for union representation.
Defining Employees
The first step in forming a union is to identify which members of the working unit qualify to participate
in the representation election. Union formation is li mited to particular employees, which begs the
question: Who is an employee? Generally, employees are workers with two characteristics: (a) they are
compensated for their service to the employer, and (b ) the way in which they carry out their duties is
under the employer’s control and direction.
Simply declaring a worker an employee does not make it so. Nor is it necessarily obvious that some
people are employees at all. For example, football players a t Northwestern University sought recognition
as a bargaining unit, arguing that they were employe es of the university since they received
compensation in the form of scholarships and worked as a thletes under the supervision of a coach.
Ultimately, the National Labor Relations Board heard their case, more details of which can be found in
the In the News feature box titled “Are Northwestern Football P layers Employees?”
In the News: Are Northwestern Football Players Employees?
Higher education is becoming a battleground for labor relati ons decisions. Of note is the 2014
case concerning football players at Northwestern University, who sought recognition from the
NLRB to form a union at their school.
The students argued that they met the two criteria of employe es: First, they “worked” for the
university because they received scholarships that paid for thei r tuition, valued at some $65,000
each per year; second, they were under the control of their coa ches, who told them what to do,
when to do it, and basically structured their days.
The case was first heard by the NLRB’s regional office. There, t he administrative law judge found
that those athletes who received scholarships qualified as employ ees, which then made them
eligible to vote in the representation election (to determi ne whether a union would represent
them). The university appealed to the full NLRB in Washington, D.C. They argued that football
players are not employees and therefore could not legally for m a union.
In the meantime, the football players were allowed to vote, bu t because of the appeal, the ballots
were impounded until the case could be heard. At issue is whether t he NLRB will uphold the
decision of the regional office in allowing the football pla yers to be classified as employees, and
therefore eligible to form a bargaining unit leading to the e lection process for union
representation (Strauss, 2014). Discussion Questions
Watch
this video (https://www.youtube.com/watch?v=ai8lOSb1Ck) and answer the following
questions.1. Why were only scholarship players eligible for classificati on as employees?
2. Why do you think that football players would want to form a u nion? What issues do you
think they had with the university that necessitated this effort ?
3. Why have the players’ votes been impounded until the process is f inished?
As a general rule, an employee works for compensation under the discretion of a supervisor. However,
the NLRA does not put forth such a definition. Instead , the act lists categories of workers who are not
covered, referred to as exempt employees. These categories incl ude:
1. Government workers in state and federal offices, Federal Rese rve banks, and employees subject
to the Railway Labor Act. As we will discuss in Chapter 7, which co vers public unions,
government workers such as police and firefighters are government employees, and as such are
not under the jurisdiction of the NLRA.
2. Agricultural laborers , such as farmers, including dairy farmers and those who raise livest ock.
3. Domestic servants, including nannies and housekeepers.
4. A person employed by his or her parent or spouse.
5. Independent contractors, or workers usually hired for one jo b, who are paid once; have
discretion over when, how, and where they do the work; and are n ot covered by the employer’s
worker’s compensation, retirement, or tax withholding.
6. Supervisors , or workers with “the authority to hire, transfer, suspend, lay o ff, recall, promote,
discharge, assign, reward, or discipline other employees” (29 U. S.C.A. § 152[11]). Why are they
exempt? One of the purposes of the NLRA is to provide workers with t he ability to organize with
other workers, wielding them greater power when they negoti ate with management.
Supervisors, on the other hand, already have power, and even if they are not the owner of the
business, they have much more control over their work and the con ditions of their employment
than their subordinates. In short, because supervisors exercise authority and independent
judgment, the act does not need to protect them in their deali ngs with management.
In summary, although the NLRA does not define the cha racteristics of an employee, it clearly excludes
particular types of workers from coverage, most notabl y supervisors, government workers, and
independent contractors.
Forming a Community of Interest
Once it is established that the workers in question are employees, it must next be determined which of
those employees can form a bargaining unit. A bargai ning unit is a group of employees who share a
common interest and therefore can be identified as a discrete group. For example, suppose a plant
consists of 4,000 workers, 150 of whom are electricians. The electricians make up a bargaining unit,
because they are an identifiable group within a larger group o f employees (see Figure 4.1). Figure 4.1: Illustration of a discrete bargaining unit
Employees in a discrete bargaining unit have a common interest, making them an
identifiable group within the large organization of employees.
Generally, to determine which employees make up a ba rgaining unit, the NLRB applies a community of
interest test that identifies what commonalities the group shares. For example, electricians at the same
plant have the same type of job, and therefore form a discrete work unit. Another configuration is a
plant unit , which consists of all workers at the same geographic location. F or instance, all of the workers
at Plant #101 of Atlas Industries, regardless of their p osition, make up a plant unit. If Atlas was a large
multinational company with multiple plants, and all employees from all of its plants wished to unionize,
an employer unit would be formed.
In the News: Micro Units May Be the New Bargaining Units
The case Specialty Healthcare and Rehabilitation Center of Mobile is a good example of whether
employees correctly constituted a bargaining unit. In order t o form a union in a workplace,
employees must show that their bargaining unit has a commonalit y of interest. This court
decision allowed workers to form much smaller units, dubbed micro units, rather than Watch This
To watch an employee submitting
authorization cards to his local NLRB
office prior to the union
representation election process, click
here
(https://www.youtube.com/watch?
v=9XDZIKHSgS8) .
bargaining units. What sets micro units apart is that they are composed of a much smaller defined
group, which makes it easier to form a union since there are fewer workers to organize.
The NLRB has “wide discretion” in determining which workers shou ld be included in a
bargaining unit, and courts reviewing the decisions of the NLRB must uphold the board’s decision
“unless the employer establishes that it is arbitrary, unreasonabl e or an abuse of
discretion” (Specialty Healthcare and Rehabilitation Cent er of Mobile, 2011). “By organizing a
small group of workers, a union can gain a foothold within a com pany’s workforce, as well as
access to company information during contract negotiations that can give it leverage and make
subsequent organizing campaigns easier” (Specialty Healthca re and Rehabilitation Center of
Mobile, 2011).
Discussion Questions
1. Can you think of a reason the NLRB would support allowing smal ler groups of workers to
form a bargaining unit?
2. Does recognizing smaller units help workers or the employer? Explain.
3. How small a unit would you advise the NLRB to allow? What is your justification for the
number you came up with?
Signing Authorization Cards
After the bargaining unit is identified, the next ste p is to
determine if there is sufficient support to form a uni on within
that unit. This can be accomplished informally as empl oyees talk
with one another and gauge the level of support. How ever, when
the employees decide that they want to move forward, each
worker must sign an authorization card stating that they are
willing to join the union. A sample authorization ca rd is shown in
Figure 4.2.
If the prospective unit can garner at least 30% of all bargaining
unit workers’ support (as demonstrated by the number of signed
authorization cards), the workers can then file a pet ition with the NLRB asking for representation by the
union of their choice.
Figure 4.2: Authorization for representation card
Workers must sign an authorization card if they sup port the identified bargaining
unit and would like them to become the employees’ r epresentative in collective
bargaining and negotiation. NLRB, Representation Petitions, RC (2014).
Filing the Petition With the NLRB
Following the submission of the authorization cards, a petition must be filed with the regional office. The
employees or the union typically do this, but in some cases employers may also file a petition to
determine how widespread support is within the operation.
What are the chances of actually forming a union onc e a petition is filed with the NLRB? Figure 4.3
shows how few unions actually emerge after the authori zation cards are submitted and the petition is
filed with the NLRB.
Figure 4.3: Actual unions formed after filing a petitio n
This figure shows the number of unions formed (or not formed) after a petition was
filed for the years 2004–2013. Even after a petitio n is filed, some groups decide to
withdraw petitions, an event that happens for diffe rent reasons. NLRB, Representation Petitions, RC (2014).
This figure shows in red the number of petitions that were filed each year from 2004 to 2013. This
number is then compared to the blue lines that show ho w many union representation elections were
actually held compared with the number of petitions filed. Of the petitions filed that resulted in a union
representation election, the green bars show in how m any union representation elections the workers
voted for a union to represent them in the workplace , compared to the beige bars, which represent the
number of times workers voted against having a union r epresent them. Perhaps most interesting is the
pink bar that depicts the number of petitions withdra wn after being filed. There are many reasons for a
withdrawal, including workers’ demands being granted by the employer, an error in the petition, or a
loss of support that prompts the union to try for recognition at a d ifferent time.
Table 4.1 shows what happened to petitions filed betwe en 2004 and 2013. In 2004, 141 petitions were
filed, and of those, 60 were withdrawn. Only 37 out of the 141 actually resulted in an election, and of the
141 petitions filed, the union won only 12, or about 8.5%. Based on these figures, one could deduce that
from an employer’s point of view, the odds of union representation actually transpiring from a filing are
low.
Table 4.1: Petitions filed with the NLRB, 2004–2013
Year Petitions filed Elections Won by
union Lost by
unionPetitions
dismissed Petitions
withdrawn
FY2004 141 37 12 25 37 60
FY2005 102 52 17 35 18 43
FY2006 108 37 11 26 18 54
FY2007 92 23 7 16 21 43
FY2008 150 25 6 19 30 101
FY2009 75 16 7 9 30 20
FY2010 67 13 5 8 27 22 Watch This
To watch Calpine workers file with
the NLRB, click
here
(https://www.youtube.com/watch?
v=OfPZiYKVMno) .
Year Petitions filed Elections Won by
union Lost by
unionPetitions
dismissed Petitions
withdrawn
FY2011 97 60 11 49 16 25
FY2012 31 14 6 8 13 19
FY2013 49 13 5 8 3 27
In addition to employees and employers filing a petit ion, there
are certain circumstances in which labor organization s may also
file. This can occur when the employer does not reco gnize the
union or if the employer recognizes the union but se eks to go
through the formal petition route so it can obtain t he benefits of
certification.
The NLRB Investigation
The NLRB next determines whether 30% of employees in t he bargaining unit have submitted their
cards. To do this it uses the employers’ payroll list, al so known as the Excelsior list, which contains the
names and addresses of current employees and therefore a ll of the persons eligible to vote in the
representation election. The authorization cards are compared against the Excelsior list, and if 30%
support is reached, the NLRB will accept the petition from the union. When the petition is filed, the
NLRB notifies all parties involved. At this point in t he process, the regional office will request any
additional information, if needed.
When all parties are informed that a petition has bee n filed, the regional office will conduct an
investigation to make sure the NLRB has jurisdiction an d whether the petition is in order. Most of the
investigative work is done via telephone and email. The agents will work out the logistics for the
election, which includes where the balloting will ta ke place, the language that will be used on the ballots,
and how it will be determined who is eligible to vot e (NLRB, n.d.a). Once the parties arrive at an
understanding about how the union representation election p rocess will take place, the regional director
is authorized to conduct the election.
If the parties have issues with the election or there a re problems with the petition, however, then there
might be matters to resolve before an election can ta ke place. In that event the entire proceeding stops
as the issues are heard (in a hearing) at the regional level and, if needed, the national level. The most
common issue typically regards the description of the bargaining unit in the petition. For example, if the
status of individuals in the bargaining unit changed d ue to a personnel action, then the description is
inaccurate. This could happen if an employee designat ed as a supervisor is reclassified as
nonsupervisory or if employees are transferred out of the bargai ning unit (FLRA, n.d.c.).
Hearings before the NLRB are similar to civil trials,
except without a jury. The hearing officer is an emp loyee
of the NLRB, and attorneys for both sides present their
cases through witnesses, as in a court case. Witnesses
are examined and crossexamined so that evidence can
be presented. At the conclusion of a regional hearing , the
hearing officer will not rule on the matter, but instead Jae C. Hong/Associated Press
Facilitating fair union elections is one of
the NLRB’s main goals.
will write a report to the board, which ultimately makes
the decision.
Once these issues are raised and resolved, the election
can proceed. There are situations in which a hearing is
not necessary—for example, if the petition is withdrawn
for lack of support, inadequacy, lack of jurisdiction , or an
inadequate showing of interest. Likewise, a hearing do es
not take place if the regional director dismisses the petition.
The Voting Process
Fair and noncoercive union elections are at the hea rt of the NLRB’s mission. If workers can vote to
unionize without fear of reprisals, job loss, or physica l harm, then the NLRB has successfully created an
atmosphere conducive to a fair outcome. The rules gov erning union elections have evolved over time
and are partly the result of past eras in which corrup tion and violence occurred. For this reason, the
rules and regulations governing the electoral process m ay seem overly complicated, but their purpose is
to create a noncoercive atmosphere in which to hold election s.
The NLRB provides written notice of electionrelated events; these are posted around the employer’s
place of business explaining the details of the electi on. These posters tell workers that a representation
election is to be held and that they have the right to vote if they are part of the bargaining unit. On the
day of the election, representatives from the NLRB ar rive at the place of business to supervise the
election. They bring the voting booth, ballot box, and pr eprinted ballots for the election and do the actual
count, unless the ballots are sealed.
As in the case with the Northwestern football players, ballots are sometimes sealed or confiscated
pending a hearing by the NLRB. If the NLRB rules, fo r example, that the football players were not
correctly classified as employees, then their votes are moot; on the other hand, if they really are
employees, then they have the right to vote, and their ballots w ill be lawfully counted.
NLRB representatives also watch the voting area for an y signs of interference by either side that may be
coercive or a violation of the NLRA. They are especi ally watchful for electioneering, in which
representatives of any party engage in “prolonged con versations with voters waiting to cast their
ballots, regardless of the content of the conversation” (Milchem , 1968). Under the Milchem rule,
elections in which electioneering occurs will be over turned. A proportionate number of observers are
allowed for each side, depending on the total number of employ ees in the business.
The election process is held via secret ballots. Electio n outcomes are determined by the majority of the
employees in a unit, which means the majority of empl oyees who vote in the election. NLRB
representatives oversee all elections, and they count and report the vote. The NLRB then issues a
certification: either one of representation or one o f results. A certification of results means that a
majority of employees in the bargaining unit did not vote in favor of union representation. A certification
of representation means that a majority of employees in the bargaining unit voted in favor of joining the
union and authorize the union to represent them in negotiatio ns with the employer.
Either side can object to the outcome of the electio n by filing an objection with the regional NLRB office
within 7 days of certification, and the NLRB can the n investigate. If the election is set aside, or
invalidated, the NLRB can make arrangements for a new electi on to take place. If unionization prevails, it cannot be challenged for at least 1 year, meaning that another union cannot
claim that it now has a majority of workers; otherwise the workplace would be disrupted by constant
elections.
At any point in the process, the employer can challen ge (either before the NLRB or in court) any aspect
of the election, from the accuracy of the authoriza tion cards to the determination of what constitutes th e
bargaining unit. The NLRB was created and is organize d to hold hearings on such issues and make
rulings, much like a court. This process will be discussed in detail i n Chapter 6.
Union Representation Without an Election
Sometimes a union is put in place without an actual election. This may happen in a number of ways, such
as a consent election in which the employer agrees to the formation of th e union. At the other end of
the spectrum are those workplaces that are so polluted by employer misconduct that a fair election
becomes impossible. In those cases the NLRB will order th e employer to recognize the union without an
election.
Voluntary Recognition
One way that a union can represent workers without an election is through a process called voluntary
recognition . If the union has the support of 50% or more of emplo yees from the start (rather than
30%), the employer may avoid going through the petitioning process (as long as the proof of 50%
support is valid) and instead allow a consent election. In that case the NLRB director conducts an
election to ensure that a majority of the employees i n the bargaining unit want to be represented by the
particular union. For this to happen, the employees m ust approach the employer and inform him or her
that a majority of workers wish to unionize.
Upon learning this information, the employer is not o bligated to comply with the request to unionize. If
that happens, the workers have no choice but to proce ed with an election. “Although unions may try to
pressure the employer to recognize their union withou t going through the process of an election, this
rarely happens. For example, employees may use a strik e or picketing to apply such pressure. Unions
will instead usually use the route of a secret ballot election. In most cases the union will seek a secret
ballot election conducted by the NLRB” (Associated Bu ilders and Contractors, n.d.). If, however, the
employer is willing to recognize the majority, then the employer will request proof that a majority of
workers support the union, which is proven by a count of the autho rization cards.
An employer may not wish to entertain voluntary reco gnition. One reason is because prounion workers
could pressure other workers into signing authorizatio n cards. Signed cards may indicate that there is
great support for union formation, but if workers wer e to vote anonymously, the outcome may be very
different. Like political elections, elections for wh ether to unionize take place in a private booth so n o
one can see how each person votes; authorization cards, on the other hand, are not necessarily
confidential. A second reason is that voluntary recogn ition does not result in certification of the union,
whereas an election does. A certified union enjoys a y ear of presumptive support and cannot be
challenged within that year, whereas a noncertified union ca n be decertified sooner than that.
Gissel Bargaining Order Watch This
Work in textile mills was hot,
oppressive, and paid little. In 1934
there was an uprising at a mill that
resulted in seven deaths. To view a
documentary about that event, click
here
(https://www.youtube.com/watch?
v=D_Sl9OTtUkU) .
To read about the making of the
documentary, click
here
(http://www.ejumpcut.org/archive/jc45.2002/whiteman)
Outside of voluntary recognition, electionless union representation can take place by virtue of a Gissel
bargaining order . This order mandates that the employer enter into a collective bargaining agreement
with the union even though the union has not won an election. If the employer commits unfair labor
practices and the work environment is not conducive t o fair elections, then the NLRB might take this
extraordinary measure. The employer must have committ ed infractions so serious that it would be
impossible to hold a fair election.
The Union Becomes the Exclusive Bargaining Agent
Once the election is finalized by the NLRB, the unio n becomes the
employee representative for the purpose of collective bargaining.
This representation is exclusive. This means that the employer
may not meet with factions of other employees who do not
support the union. All employees will be covered by the c ollective
bargaining agreement determined by the union and ma nagement
as long as they are members of the bargaining unit, ev en if they
did not support unionization.
Sometimes a union does not act as the exclusive agent f or the
workers following an election. This occurs when the el ection is
invalidated, or set aside. The NLRB will set aside an e lection if it
was conducted in “an atmosphere of confusion or fear of reprisa ls
and thus interfered with the employees’ freedom of
choice” ( Pacific Micronesia , 2000). According to the Pacific
Micronesia case, “In any particular case, the NLRB doe s not attempt to determine whether the conduct
actually interfered with the employees’ expression of free choice, but rather asks whether the conduct
tended to do so. If it is reasonable to believe that the con duct would tend to interfere with the free
expression of the employees’ choice, the election may be set asid e.” 4.2 Unfair Labor Practices by Employers: Coercion, Interrogation, and
Surveillance
Election campaigns present a unique set of circumstanc es for managers. Preelection actions that
interfere with the election process—even if unintended —may violate the NLRA. If the NLRB determines
that violations occurred, it can rule that another e lection must be held or require the employer to
bargain without an election.
This chapter will acquaint you with some of the laws g overning the election process, discuss situations
to avoid, and examine some of the rights that manager s have. However, when dealing with a business
undergoing unionization, it is essential to hire a lab or consultant and solicit the advice of an experience d
labor attorney who is familiar with current NLRB rul ings. Any business that is experiencing a union
campaign at its workplace should hire a team of experts for guida nce.
When should that guidance begin? While workers may in itiate the idea of unionizing in discussions and
meetings among themselves, it is not until they sign aut horization cards or begin leafleting that
employers know organizing is occurring. Once aware, t he astute manager must view this event as a
turning point and immediately make sure his or her behavior com plies with the NLRA.
Employee Coercion
One reaction that managers have to the onset of union activity is to discuss complaints with their
employees and try to remedy or otherwise address them. Although this may be a natural response to
employee dissatisfaction, the general rule under Secti on 8(a)(1) of the NLRA “prohibits employers from
interfering with, restraining, or coercing employees in exercising their rights to” form a union. Coercing
can take many forms. One is that by bestowing benefits on employees, the employer is coercing them
into voting against the union ( Pacific Coast M.S. Industries Co., 2010). Promises of more flexible
attendance policies, increased pay, retirement, or a bonus all constitute violation of this section (Center
Service System Division , 2005).
Another response managers may have is to discuss work cond itions and complaints with employees.
This could be deemed another violation called a solicitation of grievances. If the employer has a
history of approaching employees and asking their opin ions about work conditions, it may not
constitute a violation. But when the solicitation is sought for the first time immediately prior to a vot e, it
may be considered a form of coercion ( Caraustar Mill Group, 2011).
The bottom line is that if the employer has a history of giving benefits at a certain time each year, and if
this is a widely known and provable fact, then contin uing such benefits will not likely be viewed as
coercion; new benefits suddenly offered when a campai gn begins, however, are highly suspect of
violating the NLRA.
You Be the Judge : Interrupting Organizing Activity
In this case, Local Joint Executive Board of Las Vegas v. NLRB (2008), the court considered
whether the actions of a human resources manager violated Sect ion 8(a)(1) on unlawful
surveillance. The company involved operates a hotel and casino in Las Vegas, Nevada. On May 30, 2000, the unions began an open campaign to organize the casino’s housekeeping, food, and
beverage departments.
The company provides a dining room in which all employees, super visors, and managers can eat.
Two employees who worked as buffet servers were having lunch toge ther in the employee dining
room. The employees approached other buffet servers at the tabl e next to them and asked them if
they would like to sign union (authorization) cards.
After observing the two employees approaching other buffet wo rkers, Tracy S., the company’s
vice president of human resources, who was also eating lunch in the dining room, approached the
buffet servers. She interrupted the organizers and said to the se rvers, “I would like to make sure
you have all of the facts before you sign that card.” Tracy said th ey should understand that the
cards were “legal and binding,” and if the union ever became th e collective bargaining
representative, the “card authorizes union dues to start coming out of [the card signer’s]
paycheck.” One of the union organizers assured Tracy that she had given the buffet servers all the
facts.
“There was then a brief conversation about union benefits, incl uding insurance, and Tracy offered
her opinion that even if the union organizing campaign was suc cessful, there was no guarantee
that the hotel employees would receive different medical insu rance” (Local Joint Executive Board
v. NLRB , 2008). “Tracy told the servers that union dues were $32.50 a mon th” (Local Joint
Executive Board v. NLRB , 2008) and the union organizer indicated that they had alrea dy told the
other servers about dues. Then Tracy said that it “looked like the union organizer had all [her]
bases covered” ( Local Joint Executive Board v. NLRB , 2008) and walked away.
Tracy typically ate lunch in the employee dining room, but usu ally sat with other human
resources employees rather than uniformed employees like buffe t servers. She acknowledged
that as she approached the table to talk to the servers, she knew the y were talking about signing
union cards. She further testified that she approached the empl oyees with the intention of giving
them “the facts.”
The case was first heard by a regional administrative law judge who found that the statements by
the human resources supervisor were illegal surveillance in vio lation of Section 8(a)(1). The
NLRB reversed. The union then appealed to this court.
Discussion Questions
1. What violations do you see? What specific NLRA statutes are each of the violations under?
What do you think would be the result of a complaint about the co nduct with the NLRB?
2. What is the threepart test that the court will use to determin e whether or not
surveillance took place? (The threepart test is found in this c hapter.)
3. If you owned this company, how would you address these issues ahea d of time with your
human resources personnel? What instructions would you give them about speaking to
employees regarding union activity?
4. How do you think human resources personnel could be so unaware o f labor relations
rules during the pendency of a campaign?
After you have answered the discussion questions, click her e to see the holding for this
case. HOLDING: The supervisor’s “brief, spontaneous interruptions were not coercive” because these
were ruled as being “rational and consistent” with the NLRA. “A pplying its threefactor test, the
Board reasonably determined that where the duration of the ob servation was short and the
employer’s behavior was not out of the ordinary, verbally inte rrupting organizing activity does
not necessarily violate” the act ( Local Joint Executive Board v. NLRB , 2008).
Interrogation
In addition to employee coercion, another common vi olation committed by managers is talking to their
employees about an upcoming election. Under the NLRA , discussions with employees that become an
interrogation violate the law. The word “interrogat ion” may conjure images of a dark room in which a
worker is asked probing and accusatory questions, but in reality, any interaction between a supervisor
and an employee may be characterized as an interroga tion if the discussion coerces that employee or
makes the employee feel threatened in any way. Bear in mind that there is a power differential between
supervisors and workers that alone may make conversatio ns uncomfortable to workers; add to that
questions about unionizing and the conversation become s even more fraught with the potential to be
intimidating to a worker.
The courts use four factors to determine whether a supe rvisor is acting coercively toward workers
during a campaign to unionize. These are:
1. if the interrogator appears to be seeking information on whi ch to base taking action against
individual employees,
2. the interrogator’s level in the company hierarchy,
3. if the employee was called away from work into the boss’s office or if a conversation took place
in an atmosphere of unnatural formality, and
4. the truthfulness of the employee’s reply ( Bourne v. NLRB, 1964).
Statements to employees such as “If we got a union in here we’d be in the unemployment line” (Big Ridge
Inc. and United Mine Workers of America , 2012) or “The union is no good,” or implying that if the union
wins, employees will lose benefits, be paid less, or lose their vaca tions (Portola Packaging, Inc. and Marta
Magallon Corona , 2012) are examples of interrogation. Another exam ple is announcing to workers that
voting to unionize will cause the business to close. It is also coercive to state that the employer is being
forced to spend large amounts of money on attorneys’ f ees defending against the union’s unfair labor
practice allegations at a time when the employer is strugg ling to remain open (North Star Steel Company ,
2006).
Another example of interrogation involved a display by an employer at the place of business. In the case
Eldorado Tool , 325 NLRB No. 16 Case 34CA69661 (1997), an emplo yer created a wall of shame
consisting of tombstones. On each tombstone he put the name of a business or plant that had shut down
as a result of United Automobile Workers (UAW) organiz ing. Every day or two, he added a tombstone
with the name of another closed plant. On the day be fore his employees voted on whether to unionize,
he posted a tombstone with the name of his business (Eldo rado) on it and a question mark in the middle
( Eldorado Tool , 1997). This action was held to be a violation of Section 8(a)(1 ) because
the Respondent (Eldorado Tool) offered no explanatio n of the basis for its assertion that the
UAW was to blame for the closings of the other plants. Nor did it offer any objective facts as the basis for a belief that, for reasons beyond its control, selection of the UAW as the employees’
bargaining representative might well cause the Eldora do plant to suffer the same fate. In the
absence of such an explanation, based on objective fac ts, and noting particularly that top
employer officials were otherwise threatening closure , the message conveyed to employees
was not that economic realities might lead the plant to close, but that the Respondent might
retaliate against them and close the plant merely bec ause they chose union representation. We
therefore find that the “UAW Wall of Shame” campaig n in the context presented here,
constituted an unlawful threat of plant closure, in violation of Section 8(a)(1). (Eldorado Tool,
1997)
Under certain circumstances, managers are allowed to e xpress their opposition to unionization. Section
8(c) permits employers to express
“any views, arguments or opinions” concerning union re presentation without running afoul of
Section 8(a)(1) of the Act if the expression “contains no t hreat of reprisal or force or promise of
benefit.” The employer is also free to express opinions or make predictions, reasonably based
in fact, about the possible effects of unionization o n its company. In determining whether
questioned statements are permissible . . . the statement s must be considered in the context in
which they were made and in view of the totality of the employer’s conduct. Also recognized
must be the economically dependent relationship of t he employees to the employer and the
necessary tendency of the former, because of the relat ionship, to pick up intended implications
of the latter that might be more readily dismissed by a more disinterested ear. (National
Propane Partners , 2002)
For example, a supervisor can say to employees, “I am a gainst a union and I think it is a bad idea in this
plant,” and then explain why based on factual inform ation. Supervisors can also advise employees that
they do not have to sign union authorization cards or join a union. Employees may be advised of what
benefits they would receive should a union represent t he employees (as opposed to what the employer
offers), and they may also be told that if they go on an economic strike they may be replaced (National
Propane Partners , 2002). Economic strikes, which are different from u nfair labor practice strikes, will be
discussed in Chapter 5.
In short, employers are allowed to discuss objective fac ts about the consequences of unionization that
are provable, but they must be wary of implying that unionization will have dire consequences that may
not come to fruition. For this reason, making factual ly based comparisons of quantifiable information
(such as how pay and benefits will be different with a nd without unionization) are the least likely to
violate the NLRA.
Surveillance of Employees
Employers who think a union campaign is about to get underway are generally curious about their
employees’ activities. One way to satisfy this curiosity is through some sort of surveillance, which may
mean monitoring employee activity or having others m onitor and provide reports. The employer might
want to know, for example, how many employees are ge nuinely interested in forming a union and might
ask supervisors to count the numbers at a gathering. Does such surveil lance qualify as being coercive?
Surveillance concerns are complicated by other issues. These include where the surveillance takes place.
For example, surveillance of employees on the employe r’s private property is different than surveillance
of employees on public property such as a park or mall , where they might be holding a meeting. In addition, the surveillance of employees is different from surveillance of nonemployees such as union
organizers, who might stand outside the employer’s gate and hand out materials to entering and exiting
workers.
In response to these various scenarios, the NLRB “has dete rmined that management officials may
observe public union activity on company premises with out risking a violation” of Section 8(a)(1)
( Eddyleon Chocolate Co ., 1991). Likewise, if employees conduct “union activ ities openly or near company
premises, this observation by the employer” has been hel d to be lawful (Roadway Package System ,
1991).
However, sending representatives to union meetings, hir ing a private police force, and installing
surveillance equipment represent a violation of Secti on 8(a)(1) (Cogburn Health Center, Inc., v. NLRB ,
2006). In cases that are not so clearcut, the board t akes into account how long the employer observes
employees, the proximity of the employer to the empl oyees, and whether any of the observations are
coercive ( Intertape Polymer Corp. and United Steel, Paper & Forestry, Rubb er, 2013).
Managers should not change their normal routines when union activity begins. This means that new
types or areas of surveillance should not be undertaken ; nor should increased surveillance take place. If
the company has surveillance cameras located at the ga te that are turned on between 3:00 a.m. and 9:00
a.m., for example, then they should continue to oper ate during those hours. If the cameras are pointed in
a certain direction, they should not be adjusted to b etter monitor employee behaviors. Employers
should also refrain from asking other employees or managers t o report on the content of meetings or the
likelihood of a union vote.
In the following case a company undergoing unionizat ion engaged in surveillance of its employees. Note
where the union activity takes place and, putting yo urself in the role of management, consider how you
would respond if you were in charge of the California Acrylic b usiness.
You Be the Judge: Videotaping Employees
The case California Acrylic Industries, Inc . 322 NLRB No. 10 (1996) raised the question of how
much surveillance an employer may use. At the hearing before th e NLRB, an employee named
Camacho testified that he addressed a crowd of about 200 employe es while they were having
lunch outside the employer’s facility. This was the first mass meeti ng of bargaining unit
employees, which the union conducted outside of the plant. Cam acho said he spoke to the
employees in Spanish and English from the public sidewalk, infor ming them of the filing of the
election petition, of their rights under the act, and of a unio n meeting scheduled to be held at a
local church the next evening. He said that while he addressed th e employees, two managers
walked out of the woodshop building “and they stood on the side walk by the place where I was
talking to the employees and they stayed there . . . until I finish ed” (California Acrylic Industries ,
1996). According to Camacho, when he finished speaking, he wal ked over to the managers,
identified himself as an official of the union, said that he did n ot want to have any problems, and
shook their hands. The managers then responded that as long as the u nion stayed off company
property, there would be no problems ( California Acrylic Industries, 1996).
Following this incident, the company rented video cameras to r ecord meetings between its
employees and union representatives in front of the Pomona plan t. The company also provided a security guard with a video camera for the sole purpose of
recording the employees’ union activities. During lunch, whe n union representatives
spoke to the employees, the security guard pointed his video came ra at the group,
thereby videotaping or creating the impression he was videota ping their activities.
( California Acrylic Industries , 1996)
Discussion Questions 1. Does the union have a legal right for speakers to address employe es if the union member
is standing on public property?
2. Can the employer have the union member removed from public property if the union
member is addressing the employer’s workers standing on employer p roperty?
3. At a minimum, what information could the managers have elic ited from the union
speaker that would be beneficial to the employer?
4. If the speech by the union representative is the first time that management is aware of
union activity, what steps can it now take with regard to its empl oyees to try and avoid
unionization at this facility?
After you have answered the discussion questions, click her e to see the holding for this
case.
HOLDING: The NLRB found that the employer had rented video ca meras in order to record
meetings between its employees and representatives of the union i n front of the Pomona plant
and that:
the employer provided a security guard . . . who had been station ed on the grass area in front of
the woodchuck building for no conceivable purpose other than to engage in overt surveillance
of such meetings, with one of the newly rented video cameras to vi deotape the employees’
aforementioned union activities. Furthermore, pointing th e video camera at workers meeting
in small groups who were speaking of union organizing created an impression of surveilling
protected concerted activity. ( California Acrylic Industries, 1996) 4.3 Unfair Labor Practices by Employers: Regulating Solicitation,
Moving the Workplace, and Captive Audience Meetings
This section will discuss three areas that are of particu lar concern to managers. First, when unions want
to reach employees, they often hand out pamphlets or brochures about their organizations to employees
near or around the workplace; this is referred to as solicitation, and there are many nuanced rules
regarding when and where it can take place. Then we will look at businesses that react to unionization
by moving their plants to other countries or places w ithout a union presence. This reaction may be
deemed an unfair labor practice if done for the wrong reasons.
Finally, we will look at captive audience meetings p rior to union votes. These are meetings that
employees are required to attend to hear about the u nion from management’s perspective. Many
regulations also exist around this activity. Overall, t hese three scenarios present many challenges for
managers and are important to understand in order to avoid liab ility.
Regulating Solicitation
The distribution of literature to employees is a form of solicitation that is a commonplace occurrence
during a union campaign. Suppose the union would lik e to hold meetings and explain its position on
employment issues. In such a case the union may choose to stand outside the employer’s place of
business and hand out literature to the workers as they leave their shift.
If such leafleting is conducted by employees on the employer’s property, then the general rule is that
employers may not restrict employees’ “right to discuss se lforganization among themselves unless the
employer can demonstrate that a restriction is necessary to maintain production or
discipline” ( Lechmere, Inc. v. NLRB , 1992).
In the case of union officials handing out materials to workers who enter and exit the plant, as a genera l
rule, employers may limit who comes on their property for the purpose of distributing literature. This
means that nonemployee organizers may be prevented fr om coming onto a company’s property
( Lechmere, Inc. v. NLRB , 1992). The employer may also put signs on the proper ty that say nonemployees
may not distribute union literature there.
There is an exception to this rule, however. If the u nion can show that employees have no access to the
union’s information other than by union representativ es handing out literature at the plant, then the
union may be permitted to distribute leaflets. Theref ore, the employee’s right to unionize might “in
certain limited circumstances, restrict an employer’s right to exclude nonemployee union organizers
from his property” ( Lechmere, Inc. v. NLRB , 1992, at 532).
Sometimes employers allow third parties to enter thei r property to distribute materials to employees.
For example, an employer might allow the Girl Scout s to come into the plant and sell cookies, the Red
Cross to hold a blood drive, or the United Way to solicit contr ibutions. Once an employer provides access
to its private property to one group but denies the sa me access to a union, it is a violation of Section 8(a)
(1).
Interestingly, even otherwise legal actions against em ployees may sometimes constitute a violation of
the NLRA. Suppose preelection activity is taking plac e at a company’s plant, which it strongly opposes.
The company learns that one of its employees, who is a union advocate, is also an undocumented alien. The company reports this employee to the U.S. Immigration and Naturalization Service, knowing that he
will be deported because of his illegal immigration st atus. If the worker is deported, is that an unfair
labor practice under 8(a)(1)? The NLRB ruled that th is action was in violation of this section because the
employer reported the employee “in retaliation for participating in union activities” (SureTan, Inc. v.
NLRB , 1984).
Generally, soliciting other workers on company time a nd premises is protected under Section 7, which
gives to employees the right to form a union, so long as it does not interfere with the work environment.
Firing an employee for approaching fellow workers to discuss union membership on company time and
company premises is not allowed under the NLRA. Theref ore, an employer may be held liable for
discharging an employee for such activity ( Frazier Indus. Co. Inc. v. NLRB, 2000). Firing an employee for
asking a coworker about signing a union card while th ey were both at work, on the grounds that it
violates the company’s no-solicitation policy, is another example of an unfair labor practice und er this
section, since it discriminates against encouraging or d iscouraging membership in any labor
organization ( Valmont Industries, Inc. v. NLRB , 2001).
You Be the Judge: Disparate Treatment of Employees Engaged in
Union Activity
The following is based on the case Marshall Durbin Poultry Company v. National Labor Relations
Board (5th Cir. 39 F.3d 1312, 1995).
Garwood, Circuit Judge:
Chisholm, an employee “of the Company from July 1985 to July 19 90, was an active Union
supporter. For six months prior to his discharge, Chisholm partici pated in distributing handbills
on behalf of the Union and often talked to employees about signi ng Union cards. Chisholm, who is
going blind, stated that over the years of his employment, he of ten sat in the Company break
room in the cafeteria, or in a relative’s car in the company par king lot waiting for his ride
home” ( Marshall Durbin Poultry Company v. NLRB , 1995).
Shortly after Chisholm’s union activity began, a manager told him that he could no longer sit in
the company cafeteria to wait for his ride home. Chisholm testif ied, however, that other workers
who had finished working their shifts were allowed to remain in these areas. He was given a
formal disciplinary writeup for sitting in the cafeteria aft er he got off work. At a hearing before
the NLRB, a company manager admitted that he was told to “run off pro union employees from
the break room (cafeteria) after work” ( Marshall Durbin Poultry Company v. NLRB , 1995).
Discussion Questions 1. Chisholm would be able to bring a lawsuit against the company o n the basis of
discrimination in this case. What do you think would be the basis o f his discrimination
lawsuit?
2. In terms of union activity, what did the company do wrong? If the company had wanted
to clear the cafeteria, what could they have done that would n ot have violated the law?
How should they have gone about doing it? 3. Do you think that the owners of this business need to train their managers about
violating labor and employment laws?
After you have answered the discussion questions, click her e to see the holding for this
case.
HOLDING: The NLRB found that Chisholm’s testimony constituted “ substantial evidence to
support the board’s conclusion that the company unlawfully ret aliated against Chisholm,
contrary to Sections 8(a)(3) and (1), by excluding him from th e company premises and giving
him a disciplinary writeup” (Marshall Durbin Poultry Compan y v. NLRB, 1995).
Another aspect of solicitation can involve patches, pi ns, or other symbols that employees wear to show
union support during an election campaign. It is ille gal to force employees to remove pins, labels, hats
with patches, or other markers of union support. This h olds for cases in which symbols implicitly show
support. For example, suppose employees who support the union decide to show their support by
wearing green Tshirts to work. If the employer allow s all of the employees who oppose the union to
wear green Tshirts but does not allow the union emplo yees to do so, then discrimination has occurred
along union lines. But if no employees may wear a gre en Tshirt, whether they are for or against the
union, then the rule is applied equally to all and i s deemed nondiscriminatory. This is true for
solicitation as well. As long as the employer has a rule for onsite solicitation that is applied equally to
all, the employer will most likely not violate the act.
As with other issues regarding union activity, managers should have policies regarding prounion
symbols or clothing that remain the same before and af ter union activity. If workers are allowed to wear
green Tshirts before the election, then they should b e allowed to wear green Tshirts after. Likewise, if
employees wear pins or buttons with political speech on them, once the campaign begins they cannot be
told not to wear them just because they relate to union activity .
Closing a Plant, Moving a Plant, or Firing Employees to Avoid Unionization
Some employers react to a union campaign by firing organizing workers, closing a plant, or moving the
plant to a region of the country without unions or t o another country altogether. For example, in 2011
airline manufacturer Boeing decided to move part of its production from Puget Sound, Washington, to
South Carolina. The union argued that the company w as avoiding the union and its demands at the
Washington facility, although Boeing stated that its r easons included factors such as the international
port available and the lower cost of doing business (Jonsson, 2011) .
Employers who tell employees that if they form a unio n the plant will shut down violate Section 8(a)(3)
of the NLRA ( Healthcare Employees Union , 2006). Additionally, telling employees they will l ose their jobs
due to union activity is also a violation of Sections 8(a)(1) and (3) (Nabors Alaska Drilling, Inc. v. NLRB,
1999).
Despite the law, such threats can occur during preelec tion activities. For example, labor expert Kate
Bronfenbrenner reports that from 1993 to 1995, employers threatened to close the plant in 50 percent of all union
certification elections and in 52 percent of all inst ances where the union withdrew from its
organizing drive (“withdrawals”). In another 18 per cent of the campaigns, the employer
threatened to close the plant during the firstcontra ct campaign after the election was won.
Nearly 12 percent of employers followed through on t hreats made during the organizing
campaign and shut down all or part of the plant befo re the first contract was negotiated.
Almost 4 percent of employers closed down the plant be fore a second contract was reached.
(Bronfenbrenner, 1997)
Other experts allege that American employers intentionall y fire those workers who are engaged in union
organizing and that these firings seriously “undermine the success” of union representation campaigns.
“The numbers of workers are surprisingly high and appea r to be climbing: in the early 1980s almost 3%
of prounion workers involved in unionelection camp aigns were fired illegally in connection with those
campaigns; in 2005, union organizers and activists faced a 1 5% to 20% chance of being fired” (Schmitt &
Zipperer, 2007).
You Be the Judge : Relocating the Dorsey Trailers Plant
In the case Dorsey Trailers v. NLRB (2000), a company was involved in searching for a new facility
in which to build its trailers. The company had received two of t he largest orders in its history.
The search for the new facility began before the workers went on strike. Their strike, however,
greatly impacted the company’s ability to fill the orders, lea ding to a loss of business and
customers.
Before deciding to relocate the plant from Northumberland, Pennsylvania, to “Cartersville, the
company attempted to find alternative ways to fill their orde rs. When the company learned that
the facility in Cartersville, Georgia was available to purcha se they were impressed by the fact that
it would allow them to produce more trailers because the size of t he facility was 75% larger than
their current plant. Additionally, because of the increased size, they would be able to establish a
needed 500foot long assembly line in contrast to their curren t assembly line of only 250 feet.
The longer assembly line would increase how fast they could prod uce trailers because there
would be fewer turns. Each turn slowed down production. Finall y, management argued that
shipping costs would be greatly reduced by the location in Georg ia because most of their
customers were located in the southeast” ( Dorsey Trailers v. NLRB, 2000).
The union argued that the company was relocating the plant in o rder to avoid the strike at the
Pennsylvania plant. By setting up shop in Georgia, the company could fire all of the workers in
Pennsylvania, thus eliminating the union, and reestablish itsel f in Georgia, where there was not a
strong union presence. The company argued, however, that the m ove was about economics, the
better and larger plant, and cheaper shipping costs.
Discussion Questions
1. What factors in the Dorsey Trailers case could management argu e were plausible reasons
for relocating the plant to another location?
2. What factors could the union argue that would be just as strong a n argument?
3. What do you think the court or NLRB held in this controversy? Watch This
To watch a discussion of captive
audience meetings, click
here
(https://www.youtube.com/watch?
v=w4oDtjaM8EY) .
After you have answered the discussion questions, click here to see the holding for this
case.
HOLDING: Dorsey Trailers was successful in arguing that the reason it moved its plant was
economic and not because it opposed the unions. The factors the NL RB found relevant
included:
1. The fact that the “company searched for a facility after the strike began because it needed
to fill backlogged orders, not because of antiunion animus” ( Dorsey Trailers v. NLRB, 2000).
2. “Before deciding to relocate to Georgia, the company trie d to find other ways to fill its
orders.
3. It tried to use salaried workers and investigated hiring tempo rary help.
4. The company turned to the Georgia facility in order to resta rt production and to build the
trailers that the Northumberland plant was not producing.” ( Dorsey Trailers v. NLRB, 2000)
5. The company found that the Cartersville location was tremen dous and better suited its
needs.
6. “The long assembly line and the vast increase in the amount of spa ce at Cartersville offered
substantial efficiency gains over the Northumberland plant” ( Dorsey Trailers v. NLRB, 2000).
Holding Meetings Before an Election
Prior to an election, the employer may require that employees
attend meetings about the impact that unionizing will have o n the
business. These meetings are allowed under the NLRA and are
sometimes referred to as captive audience meetings . In a
captive audience meeting, the employer will call al l of the
employees to a meeting room in the plant. There a re presentative
of the employer will present on how voting for a uni on will
negatively impact the place of business.
Although these meetings allow the employer to keep e mployees “captive” for an undetermined amount
of time, they are permitted as long as they are not h eld within 24 hours of the election under the
Peerless Plywood rule (which prohibits both employers and unions from manda ting meetings within
24 hours of the election). If an employer did mandat e such a meeting, it would be an unfair labor
practice in violation of the NLRA ( J&D Transportation Employer and Teamsters Local Uni on No. 469,
2010).
You Be the Judge : Mass Electronic Messages
Twentythree hours before a union vote, an employer sent an ele ctronic message to all 174 of its
driver employees in their trucks through a special device that w as built into the dashboard of the
vehicle. The message said, “BRING IT TO AN END!” and “VOTE NO! Tim e to Decide Your
Future” ( In re Virginia Concrete Corp ., 2003). The message could not be ignored because a beeper
came on and stayed on until the driver turned it off. It was possibl e for the driver to delete the 7minute message by sending a message or scrolling to another message, but by that time the
employer would have succeeded in communicating its short campa ign message. There was no
opportunity for the union to send the drivers such a mass message in th e 24hour period before
the election.
Discussion Questions
1. How have the NLRA rules about contact with employees failed t o keep up with
technology?
2. In your opinion, is a massdistributed electronic communicat ion the same as holding a
meeting? Why or why not?
After you have answered the discussion questions, click her e to see the holding for this
case.
HOLDING: The legality of this action was brought before the NLR B, which held that permitting
the employer to send its uninvited mass message within the 24hour p eriod in this hightech
way violated the board’s objective to “keep elections free of u ndue advantage for any party.”
The employer’s conduct “deprived the employees of a free and fa ir choice in the election, and
so the board ruled that . . . the election should be set aside and tha t another election should be
directed” ( In re Virginia Concrete Corp ., 2003). 4.4 Undue Union Interference
Not only must the employer abide by the rules set forth in the NLRA, but unions, too, cannot run
unbridled. The NLRB is on guard for evidence that a union has threatened physical or economic harm,
appealed to racial prejudice, and/or created an atmo sphere of fear and coercion. If any of these are
present, the election can be voided. The entity chal lenging the election must show that the improprieties
substantially affected the election results ( BeairdPoulan Div. v. NLRB, 1981).
Inducements offered by the union also constitute coercion t hat can invalidate an election. In one case the
union offered to waive initial fees (union dues) for all employees who signed union authorization cards
before a certification election. This essentially made them union members before the vote occurred. The
court said that such an inducement interfered with em ployees’ statutory right to refrain from union
activities and did not support the principle of havin g a fair and free choice of bargaining representative,
and was therefore grounds for denying enforcement of the order to bargain with the union, which won
the election ( NLRB v. Savair Mfg. Co., 1973).
In another case of interference, a pamphlet circulat ed by the union had misstatements about benefits
and retirement, which were of vital concern to empl oyees (NLRB v. Bonnie Enterprises , 1965). The
record in this case contains indisputable “evidence tha t cost of living adjustments were a major issue in
the misrepresentation campaign, that the union substant ially misrepresented cost of living provisions in
another collective bargaining agreement between the union and the employer, and that the
misrepresentations were made the night before the elec tion in a way that made it virtually impossible
for the employer to answer effectively. The record a lso discloses clearly coercive conduct on the part of
union supporters. At a minimum, three employees were d irectly threatened and a fourth was
assaulted” ( NLRB v. Van Gorp Corp., 1980).
Like employers, unions are subject to federal legislati on regarding their activities and behavior in the
workplace. Unions may not threaten or coerce employe es into joining their organization, nor may
unions misrepresent information in a manner that denie s the employer the chance to address and
correct any errors. 4.5 The Use of Labor Relations Consultants
Employers faced with the prospect of unionization often hire labor relations consultants to assist them
with the election process. Labor consultants are often used in two ways: First, labor attorneys who
specialize in defeating efforts to unionize are hired to guide the employer through the process of
opposing the unionization attempts; and second, consul tants meet with workers in captive audience
meetings and explain the downside of unionizing and p resent the company’s positive aspects free of the
union’s influence.
Statistically, consultants are very successful at defeati ng unions. One reason is that employers have the
authority to make employees go to a room and listen to pre sentations about unions’ negative aspects. On
the other hand, the union cannot force workers to li sten to its message, making this an uneven playing
field. Research shows that when consultants are hired, t he chances of union success decrease. For
example, labor expert Kate Bronfenbrenner found that
more than 75% of employers studied engaged in aggressi ve antiunion tactics, including some
combination of discharge for union activity, captive audience meetings, supervisor oneon
ones, promises of improvements, antiunion committees, l eaflets, and letters. Most of these
tactics were associated with win rates 10–20% lower than in units where they were not
utilized. (Bronfenbrenner & Juravich, 1994)
Because the industry is so lucrative, a law passed by the U.S. Department of Labor requires that
employers disclose the agreement between themselves and consultants, thus making the use of
consultants a matter of public record. Under the Labo r Management Reporting and Disclosure Act
Section 203(a), an employer must report “expenditure s and activities, including any agreement or
arrangement with a thirdparty consultant, to persuad e employees as to their collective bargaining
rights or to obtain certain information concerning t he activities of employees or a labor organization in
connection with a labor dispute involving the employ er” (U.S. Department of Labor, 2014). Similarly,
labor consultants must file forms with the government sh owing the monies they received for their work.
These forms are public and can be accessed at the Labor Department website (U.S. Department of Labor,
2014).
A recent article concerning Bed Bath & Beyond claim s that the company spent more than $854,000 to
defeat a union campaign (6412093, 2014). The only r eason this information is now public is due to the
law making companies file the LM10 form, which shows how much they spent on labor consultants. To
see the actual form filed with payments, click
here (http://kcerds.dolesa.gov/query/orgReport.do?
rptId=529329&rptForm=LM10Form) . Summary & Resources
Summary of Chapter Concepts
• The National Labor Relations Act sets out a stepbystep process for how a union is to be formed
and recognized.
• The first step in union recognition is to identify which worker s are employees, which are those
employees who are covered by the NLRA and are not supervisors, ind ependent contractors,
agricultural workers, or domestic servants.
• Workers who wish to unionize must form a bargaining unit, whic h must share a community of
interest. The community of interest test involves factors such as a b argaining history,
operational integration, geographic proximity, common sup ervision, similarity in job function,
and degree of employee interchange.
• Once the bargaining unit is established, workers sign authoriz ation cards to indicate their
interest in unionizing. At least 30% of the employees must sign the c ards in order to move
forward with union formation. Authorization cards are submit ted to the NLRB, which can then
certify the bargaining unit.
• A petition is next filed with the NLRB that sets forth informat ion about the proposed bargaining
unit and asks for recognition. The NLRB investigates, and if all i s in order, an election to
determine if workers wish to be represented by a union in their wo rkplace can take place.
• The NLRB supervises the election to determine whether the work ers wish to be represented by
a union in their workplace; a 50% majority of those voting is nee ded for the union to become the
employees’ representative.
• Once the union is in place, the employer must recognize it and b argain with it in good faith.
• At workplaces that do not comply with the tenets of the NLRB, a c ourt can order a Gissel
bargaining order, which requires the employer to bargain wit h the union even though the union
has not been elected to represent the employees. This is because the employer made it
impossible to hold a fair election.
• There are numerous unfair labor practices that employers can c ommit during the union process.
These include bestowing or conferring benefits on employees, sol iciting grievances, engaging in
surveillance of employees, interrogating employees, making d ire statements about the
company’s fate if a union is elected, regulating solicitation b y employees unless it is necessary
for production or discipline, moving or closing a plant, and fi ring workers involved with a union.
• The captive audience rule states that neither unions nor emplo yers may hold a mandatory
meeting of employees within 24 hours of a union election.
• Under the NLRA, unions are also regulated in how they deal with employees before an election.
Unions may not coerce employees into voting for a union by makin g threats, promising benefits,
making misstatements about retirement benefits, and/or engagi ng in electioneering the day of
voting.
• Labor relations consultants are experts who have dealt with lab or campaigns and know how to
legally counter statements by unions that may be untrue. Chapter 4 Review Quiz Chapter 4 Flashcards
Choose a Study Mode
Key Terms
agricultural laborers
Farmers, including dairy farmers and those who raise livestock.
authorization card
A card signed by employees to indicate their willingness to join a union and used to determine the
percentage of workers who will support unionization.
captive audience meetings
Meetings held before a union election and made mandatory by em ployers to present materials about
why the union will be bad for the company.
community of interest test
The shared commonalities of a group of workers.
consent election
When 50% or more of workers sign authorization cards and manageme nt agrees to union formation.
employer unit
A community of interest based on all of the employees who work for the same employer.
Excelsior list
The list of all employees eligible to vote in the election.
Gissel bargaining order An order mandating that the employer enter into a collective bargaining agreement with the union
even though the union has not won an election.
micro units
Groupings of workers that are much smaller than the traditional bargaining unit.
Milchem rule
The rule that elections will be overturned if representatives of any party to the election engage in
“prolonged” conversations with voters waiting to cast their bal lots, regardless of the content of the
conversation.
no-solicitation policy
A rule set forth by an employer that prohibits the distribution o f union pamphlets or recruiting to join
a union.
Peerless Plywood rule
The rule that states neither unions nor employers may hold a meeti ng within 24 hours of an election.
petitioning process
The process whereby employees request that the NLRB oversee a unio n election.
plant unit
A community of interest based on working in the same geographic place.
solicitation
The distribution of information to fellow employees for the purpose of getting them to join a union.
solicitation of grievances
The process whereby an employer asks employees about changes they w ould like to see made at the
workplace in anticipation of a union vote.
supervisors
Workers who have authority to hire, transfer, suspend, lay off, recall, promote, discharge, assign,
reward, or discipline other employees.
voluntary recognition
The process whereby an employer willingly recognizes a union wi thout a formal election.
Critical Thinking Questions
1. Why does federal labor law go to such extremes to protect the pr ocess of union elections? Do
you think that the law is too detailed and comprehensive, or do y ou think that the legislation is
necessary? Explain your answer.
2. The NLRB attends every election and supervises the voting. Do y ou think this is necessary to
obtain a fair result? Why or why not?
3. Of all the petitions filed with the NLRB, what percentage re sult in union formation? How do you
explain this number?
4. Employers are not allowed to coerce employees who are about t o vote in a union election, which
includes offering them improved benefits. Do you agree with th is rule, or would you change it to allow employers to make such improvements to their employees’ benefits packages? How could
allowing such a policy decrease labor strife?
5. Suppose a hotel’s employee handbook contains various rules reg arding employee behavior. One
clause in the handbook states it is unacceptable to make false, vic ious, profane, or malicious
statements toward or concerning the hotel or any of its employee s. An employee is overheard
complaining to another employee about his pay and hours while e mployed at the hotel. As a
result of his statements, he is fired. He then brings a complaint to t he NLRB. What do you think
would protect the employee? What do you think would be the resu lt of this action? Explain your
reasoning.
Research Project
1. Read the following article about Boeing’s decision to move i ts plant from the state of Washington
to South Carolina, a state that is known for its antiunion positio ns:
http://www.nytimes.com/2011/04/21/business/21boeing.htm l?_r=0
(http://www.nytimes.com/2011/04/21/business/21boeing.html?_r=0) . After reading the article, take
the side of management or labor and argue either for the right o f Boeing to move the plant or for
the right of the NLRB to find that such a move violates the act.
