A. Representation

• Jurisdiction: New York

A. Representation

The first task of the administrative agency in a representation case is to identify the parties who should meet in negotiations. It is relatively easy to identify the employer, especially in the private sector. Even so, there may be complications, such as when a group of employers forms a multi-employer association and seeks to negotiate a single agreement covering all the employers in the association, or when an employee is "leased" through a third party.²⁵⁷

The problem of identifying the employer is more complicated in the public sector. Cities and states have separate legislative and executive branches that are partly independent of one another and control different aspects of employees' terms and conditions of employment. Furthermore, some public entities are dependent upon other public entities for funding; thus, the employees may find themselves dependent upon one entity for wages and on another entity for the determination of their day-to-day terms and conditions of employment.²⁵⁸

1. Bargaining Unit

Having identified the employer, the administrative agency is then confronted with the more difficult task of identifying the appropriate unit in which employees should be represented to negotiate with the employer.²⁵⁹ The NLRB finds that a unit is appropriate if the employees share a community of interest.²⁶⁰ The NLRB will first determine whether the petitioned-for unit is appropriate, and if the employer objects to such a finding it has the burden of demonstrating that employees in a larger or different proposed unit share a community of interest. ²⁶¹ The NLRB has promulgated a rule²⁶² which provides that absent extraordinary circumstances, all health care employees are to be placed in one of the eight specified units.²⁶³

The NLRA includes certain statutory restrictions relating to bargaining unit composition. Professional employees may not be placed in the same unit with nonprofessional employees unless the professional employees consent,²⁶⁴ and plant guards may not be placed in the same unit as other employees regardless of their wishes.²⁶⁵ Unlike the Taylor Law, the NLRA excludes supervisors from coverage.²⁶⁶

Under the Taylor Law, there are three statutory criteria for determining a negotiating unit. The first is that the unit should correspond to a community of interest among the employees. The second is that representatives of government at the level of the unit must have the power to agree, or to make effective recommendations, with respect to the terms and conditions of employment of the employees. The third is that "the unit shall be compatible with the joint responsibilities of the public employer and public employees to serve the public."²⁶⁷ PERB has found that the latter two standards, especially the third, as limiting the community-of-interest standard. Accordingly, it has evolved a doctrine of "most appropriate unit"²⁶⁸ in place of the NLRA's "appropriate" unit. In most instances, this means that the unit should be the largest one in which employees share a significant community of interest.²⁶⁹

Effective January 1, 2020, farm laborers in New York have the right to collectively bargain and engage in activities for mutual aid and protection under SERA. Under the SERA amendments, "farm laborers" is defined as "any individual engaged or permitted by an employer to work on a farm, except the parent, spouse, child, or other member of the employer's immediate family."²⁷⁰ "Agricultural employer" is defined as "any employer engaged in cultivating the soil or in raising or harvesting any agricultural or horticultural commodity including custom harvesting operators, and employers engaged in the business of crops, livestock and livestock products as defined in section three hundred one of the agriculture and markets law, or other similar agricultural enterprises."²⁷¹

Although farm laborers have the right to unionize and negotiate with an agricultural employer, SERA prohibits a farm laborer or an employee organization representing farm laborers from striking or engaging in a concerted work stoppage or slowdown.²⁷² Similarly, agricultural employers will also be prohibited from locking out farm laborers from work "as a result of a dispute with such farm laborers or employee organization representing such farm laborers that affects wages, hours and other terms and conditions of employment of such farm laborers."²⁷³

SERA's jurisdiction also covers parochial schools; this is because the United States Supreme Court ruled that the NLRB should decline to assert jurisdiction over religiously affiliated institutions because to do so would create a significant risk of infringing on religious rights protected under the First Amendment.²⁷⁴ In contrast, the application of SERA to religious schools has been found to not infringe on protected religious liberty.²⁷⁵ The statutory and constitutional questions concerning religiously affiliated schools are complex, and a general practitioner should consult with an attorney experienced in this area of law.

PRACTICE GUIDE

The statutes also allow voluntary recognition by an employer of a union to represent a bargaining unit without undergoing a formal administrative unit determination and the holding of an election.

2. Elections

Once the at-issue unit is defined, the administrative agency must ascertain the choice of the unit employees. Do they want union representation? If there is more than one union seeking to represent them, which do they prefer? Under the NLRA, these questions are resolved by elections held under the auspices of the NLRB.

The Taylor Law and SERA, however, favor certifications without an election, also known as card check certification. Both statutes direct PERB to ascertain the choice of the employees "on the basis of dues deduction authorization and other evidences, or, if necessary, by conducting an election."²⁷⁶ With respect to farm laborers, SERA now states that card check certification shall be based on dues deduction authorizations rather than elections when "the choice available to the employees in a negotiating unit is limited to selecting or rejecting a single employee organization."²⁷⁷

Both the NLRB and PERB administer and monitor the electoral process to assure fairness, and each agency may set aside an election where inappropriate conduct has tainted its results.²⁷⁸ Furthermore, conduct that interferes with the exercise of free choice by employees will violate the respective statutes.²⁷⁹

The NLRA declares such coercive interference or discrimination to be an unfair labor practice that the NLRB is authorized and directed to remedy.²⁸⁰ Under the Taylor Law, such conduct is declared to be an improper practice, subject to the jurisdiction of PERB.²⁸¹

The administrative agency must resolve issues involving the mechanics of the election. Will the vote be in person, by mail ballot or by internet, electronic and telephonic means? ²⁸² What payroll date will be used to determine voter eligibility? When and where will the election take place? Who may serve as observers on behalf of the various parties? How shall the election be publicized? In general, these questions are resolved by consent and agreement among the various parties. If, however, there is no agreement, the administrative agency must make the determinations.

3. Interference with Employee Rights—Coercion

Conduct of an employer or a union that interferes with the employees' exercise of free choice in an election may not only be grounds for setting aside that election, but it also may precipitate an administrative charge under the NLRA, the Taylor Law, and SERA claiming that conduct was unlawful. In determining whether an employer's conduct violates a particular labor relations statute, the administrative agency will generally apply a balancing test. The mere expression of opposition to unionization by an employer might coerce employees. Restrictions upon those expressions, however, would violate the employer's right of free speech.²⁸³ The discharge or lesser discipline of an employee who is active in a union organizing campaign could discourage union organizing activities, but union activities do not insulate employees from discipline for legitimate non-discriminatory reasons such as incompetency or misconduct.²⁸⁴

Applying the balancing test to speech, the NLRB has determined that an employer exceeds its right of free speech when it threatens employees in order to dissuade them from supporting a union or promises them benefits if they refrain from doing so.²⁸⁵ The United States Supreme Court has articulated the balancing test as follows: "[A]n employer's rights cannot outweigh the equal rights of the employees to associate freely, as those rights are embodied in § 7 and protected by § 8(a)(1) and the proviso to § 8(c)."²⁸⁶

Whether an expression of opinion by an employer is deemed coercive depends not only on the words of the employer but also upon the context in which those words were uttered. Thus, the NLRB may find words that, standing alone, appear relatively innocuous, but are coercive under the "totality of the circumstances."²⁸⁷ In determining whether an employer's expressions constitute interference with a free election, the NLRB considers whether the union has had an opportunity to respond to those expressions.²⁸⁸ The NLRB does not inquire into the truth or falsity of campaign statements unless the falsity is based upon forged documents.²⁸⁹

Under SERA, however, agricultural employers are broadly prohibited from discouraging union organization by farm laborers or "discourag[ing] an employee from participating in a union organizing drive, engaging in protected concerted activity, or otherwise exercising the rights guaranteed under this article."²⁹⁰

The NLRB has long held that an employer in a representation case is obligated to provide the petitioning union with the names and addresses of eligible employees to facilitate union communication with employees.²⁹¹...