4.12 Unions

• Library: The Virginia Lawyer: A Deskbook for Practitioners (Virginia CLE) (2018 Ed.)

4.12 UNIONS

4.1201 In General. At one time, practice and procedure under the National Labor Relations Act (NLRA), ⁴³⁵ which protects employees' rights to join or form a labor union and applies to all employers engaged in interstate commerce with a few specifically defined exceptions, constituted the bread and butter of employment law practice. The National Labor Relations Board (NLRB), created to enforce the Act, consists of five members appointed by the President and confirmed by the Senate. ⁴³⁶

By 2011, however, union membership constituted a tiny percentage of the total American workforce, and in Virginia, where deep cultural traditions had always posed a hurdle for would-be union organizers, the unionized workforce was even smaller still. ⁴³⁷

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Virginia is a right-to-work state. ⁴³⁸ As a result, an employee has the right to join or not join a union. Although employees in all fifty states technically have the right to join or not join a union, in some states that choice is illusory because the employee is required to pay union dues as a condition of employment regardless of whether he or she joins the union.

4.1202 Protected Concerted Activity and Union Organizing.

A. In General. Under section 7 of the NLRA, employees are guaranteed the right to "self organization, to form, join or assist labor organizations" in becoming representatives of employees. ⁴³⁹

The protections of the NLRA do not apply to supervisors. ⁴⁴⁰ In NLRB v. Kentucky River Community Care, Inc., ⁴⁴¹ the Supreme Court held that the burden of proving that an employee is a "supervisor" rests on the employer that seeks to rely on the exclusion and not on the National Labor Relations Board (NLRB). However, the Court also rejected the NLRB's test for determining supervisory status for professionals, finding it inconsistent with the NLRA. The NLRB's finding that nursing supervisors were covered as "employees" was reversed.

The NLRA's remedies may not be available to illegal aliens if the remedies are contrary to federal immigration policy. ⁴⁴²

B. Protected Concerted Activity. ⁴⁴³ "Protected concerted activity" is defined as activity by a person or employee, relating to wages, hours, and working conditions, that affects other employees of the same employer. ⁴⁴⁴ The question of whether two or more employees must be involved to

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meet the "concerted" test has been the subject of much debate. Currently, there must be two employees involved. ⁴⁴⁵

Anyone, in any setting, union or nonunion, can file an unfair labor practice charge with the NLRB, and if it has merit, it will be processed to a conclusion.

C. Union Organizing. The procedure is as follows: ⁴⁴⁶

		1.	If authorized in writing by 30 percent of the employees, a union or group of employees may file a petition with the regional office of the NLRB seeking a secret ballot election;
2.	If the petition is supported by 30 percent of the employees and if the unit 447 sought is appropriate, an election will normally be scheduled;
3.	Elections are by secret ballot and are determined by the majority of the votes cast (not by a majority of the employees in the unit); and
4.	If the union wins the election, it becomes the "certified representative" of all the employees in that unit, and the employer must deal with ("bargain with") that union in connection with all matters concerning wages, hours, and working conditions for all unit employees.

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Even if a union loses an election, it may still become the bargaining agent in certain extraordinary circumstances. A union may be imposed on employees if (i) the union enjoyed a preelection majority; (ii) the employer committed an unfair labor practice; (iii) the unfair labor practice caused the union to lose its majority; (iv) the possibility of conducting a fair reelection would be slight; and (v) the employees' preelection sentiments would be better protected by a bargaining order than by a new election. ⁴⁴⁸

D. Card Check Recognition. A second method of organizing a unit is also permitted under the NLRA. If the union obtains authorization from more than 50 percent of the employees in a unit and demands recognition from an employer, the employer is permitted but not required to recognize the union as the representative of its employees without the need for a secret ballot election.

4.1203 Preelection Campaigning.

A. In General. During the preelection period, it is normal for both the union and the company to engage in a campaign to urge the employees in the unit to vote for or against the union in the secret ballot NLRB election. Each party is free to say what it wishes, within reason. ⁴⁴⁹ However, there are some rules that must be followed by each party. ⁴⁵⁰

B. Employer Conduct. Employers must carefully avoid certain conduct that may be summarized by the acronym "TIPS." The company cannot engage in any conduct which:

		T	Threatens employees with discharge, demotion, transfer, or any other reprisal from the company if they do not support the company or if they engage in any conduct supporting the union.
I	Interrogates employees about whether or why they support the union or the company.

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		P	Promises employees a benefit if they do not support the union or do support the company.
S	Surveys union meetings or union organizers or gives the impression of keeping these employees under surveillance.

If these "TIPS" are violated, unfair labor practice charges may be filed that could result in setting aside an election won by the company or in scheduling a second (re-run) election.

In addition, improvements in working conditions or wage increases granted before an election may be viewed as the granting of a benefit designed to thwart unionism and treated as an unfair labor practice. ⁴⁵¹ Any employer activity that could be interpreted as soliciting grievances may also be considered an unfair labor practice. ⁴⁵²

Aside from these general prohibitions, a company is protected by the free speech provision contained in the NLRA. ⁴⁵³ If couched in terms of an opinion, the expression of opinion is perfectly lawful. ⁴⁵⁴

C. Union Conduct. The general rule is that unions are free to make promises to employees to get support for the union. The following limits apply to unions during a campaign:

		1.	The union may not grant benefits, such as providing employee life insurance coverage 455 or other free items; 456
2.	The union may waive initiation fees, but it may not do so selectively to obtain an employee's signature on an authorization card; 457 and

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3. The union may not engage in discrimination or threats of violence. ⁴⁵⁸

D. Prohibitions. Neither party may misuse or fraudulently deface federal government property or NLRB official notices. ⁴⁵⁹ Neither party may engage in appeals to racial prejudice. ⁴⁶⁰

Carelessness in preparing and disseminating campaign material can cause an election to be set aside or to be re-run and, in the case of an employer-won election, could possibly subject the employer to a bargaining order negating its election victory. ⁴⁶¹

4.1204 Access to Employer's Property.

A. Nonemployee Access. Often nonemployee union organizers will attempt to enter an employer's property to distribute authorization cards and similar campaign materials to solicit union support. Unless the employer has historically allowed other groups, civic or otherwise, to enter its property, the employer can prevent that entrance. ⁴⁶²

B. Employee Access. Employees, on the other hand, as part of their rights, are free to engage in any organizational activity at their place of employment, subject to the company's lawful restrictions. ⁴⁶³

4.1205 Duty to Bargain.

A. In General. The duty to bargain is the center point of the NLRA. The duty to bargain in good faith is defined as the "obligation to meet

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at reasonable times and to confer in good faith with respect to wages, hours and other terms and conditions of employment." ⁴⁶⁴

B. Surface Bargaining. If a party bargains in a way that does not seem like a true attempt to reach an agreement, that party is engaging in "surface bargaining." ⁴⁶⁵

C. Bargainable Issues. Most wage, hours, and working conditions issues are subject to the mandatory duty to bargain and must be bargained over when a union represents an affected unit.

Some employment issues are permissive rather than mandatory bargaining subjects. As the name implies, these issues may be bargained by the parties, but the parties are not required by the NLRA to meet and discuss these subjects in an effort to reach agreement. However, once the parties engage in bargaining on a permissive subject, they cannot withdraw from the bargaining on that subject. ⁴⁶⁶

D. Changes in Working Conditions Before First Contract Changes. The initial recognition of a union presents special problems for employer and union. During the period between union certification and the negotiation of the parties' first collective bargaining agreement, an employer is prohibited from making changes in wages, hours, and working conditions without giving the union an opportunity to bargain about them. ⁴⁶⁷ The employer is obligated to meet with and give the union an opportunity to discuss the proposed changes even though it is not required to reach an agreement. If no agreement can be reached and the parties are at an impasse, the employer may implement its last proposal. ⁴⁶⁸

E. Duty to Supply Information. The duty to bargain does not end with the duty to meet with the union in an effort to reach agreement.

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Incorporated within the duty to bargain is the duty the courts have imposed on both parties to supply to the other relevant information that will assist the parties in fulfilling their bargaining duty. ⁴⁶⁹

F. Financial Information—Inability to Pay Claim. If an employer claims it is financially unable to pay the union's requested financial...