Category: NLRB

September 12, 2018

Union Decertification

Private sector employees unhappy with their union can initiate a decertification process through the National Labor Relations Board. If successful, this process removes the union as the employees’ exclusive bargaining representative and relieves them of the obligation to pay dues or other fees. Once the union is out, employees can deal directly with their employer concerning terms and conditions of employment.

Common reasons union members vote to decertify their union are they don’t believe the union is worth the dues, they prefer to resolve issues directly with management, or the union is no longer useful. Employees can also decertify their union to replace it with another union.

No Company Involvement

Companies cannot be involved in the union decertification process. Efforts to decertify a union cannot occur on work time, in work areas, or while using company equipment. If management assists in any decertification procedures, the employer may have committed an unfair labor practice. Employees wishing to decertify their union can seek outside assistance.

Filing Period

Employees may only attempt to decertify their union at certain times.

Employees cannot try to decertify a new union until one year after its certification. Once a year passes, employees may only ask for decertification during a 30-day “window period.” This window is typically open between 60 and 90 days before the expiration of a collective bargaining agreement. For healthcare institutions, the window period runs from 90 to 120 days before contract expiration.

Once a collective bargaining agreement expires or remains in effect longer than three years, employees may ask for decertification at any time.

Decertification Petition

The process of decertifying a union begins with a petition demonstrating the desire to decertify. Any employees in the bargaining unit, including non-union members, may sign the petition. Signatures must occur off work time and at a non-work location. The petition must bear the signatures of at least 30% of the bargaining unit for the NLRB to conduct a secret ballot election. (In some cases, an employer may withdraw recognition of the union if at least 50% of the employees in the bargaining unit sign a properly worded petition demanding withdrawal.)

Employees should submit this “showing of interest” petition to the NLRB regional office. Then the employees must serve certain forms on the employer and the union. The required documents can be electronically filed and served, mailed, or delivered in person.

Decertification Election

Following receipt of a valid decertification petition, the NLRB will administer a secret ballot election. If at least half of the employees vote against the union, it will no longer represent the employees.

Employers and unions cannot ask how employees are voting. Harassment or threats by either side about voting can constitute unfair labor practices and may overturn the election results.

Public Employees

Since the National Labor Relations Act only covers the private sector, employees of public employers must follow different procedures. A recent Supreme Court decision (Janus) could create a wave of public sector union members walking away from unions (at least by withdrawing financial support). If so, private-sector employees might become more eager to do so as well.

Employer Cautions

Remember that management cannot organize a decertification effort. Companies who learn of employee interest in potentially removing a union should consult with experienced labor counsel to review applicable parameters. Any violations of the National Labor Relations Act by supervisors could unduly undermine employees’ ability to choose to be union-free.

For more on what it means it to have a union in your workplace, check out this webinar on Union Basics for Employers.

July 30, 2018

Strike Basics for Employers

The National Labor Relations Act (NLRA) allows both union and nonunion employees in the private sector to participate in strikes. Make sure you understand when and how a strike could affect your company before one occurs.

[Read here to see whether your organization is subject to the NLRA.]

What Is a Strike?

A strike is a work stoppage resulting from employees collectively refusing to work. Since most union contracts have no-strike clauses, strikes most often occur during negotiations after the collective bargaining agreement expires. Official strikes take place after a majority vote by union members.

Although strikes are rare, employers should be aware of the labor laws surrounding this process. While the NLRA guarantees the right to strike, it also places limitations on exercising this right. Whether a strike is lawful depends on its purpose, timing, and the conduct of striking employees.

Employer Limitations

Companies cannot terminate or take other adverse actions against employees who participate in legal strikes. Employers also may not harass or otherwise question employees about their intent to strike or offer special benefits or other incentives in exchange for individual employees not striking.

Types of Strikes

Strikes generally fall into one of two categories: economic strikes and unfair labor practice strikes. Economic strikes occur in response to complaints about work conditions, such as wages or hours. Unfair labor practice strikes protest alleged unfair labor practices by an employer.

Unfair labor practice strikers have greater rights to reinstatement than economic strikers, whom employers may permanently replace. After an unfair labor practice strike ends, the employer must terminate temporary replacement workers and allow the strikers to return to their positions.

The NLRA does not protect all strikes. It is illegal for employees to strike against secondary employers or engage in “sympathy” strikes. Sit down strikes and workplace slowdowns also do not receive NLRA protections. “Sick-outs,” where employees who cannot legally strike (e.g., because of a no-strike clause) collectively call in sick, are not protected.

“Wildcat strikes” occur when represented employees engage in a work stoppage without union authorization. These unofficial strikes are usually illegal.

Employees who participate in illegal strikes may be subject to discharge.

Strike Pay

Employers do not have to pay striking employees or offer benefits during the strike. Unions often have strike funds that provide some pay or occasionally employee benefits. Striking employees do not receive unemployment benefits.

Picketing

Picketing often occurs during strikes. It involves employees congregating outside the employer’s location to protest grievances and discourage others (employees, customers, vendors, etc.) from crossing the picket line. Similar to the right to strike, the right to picket is subject to limitations relating to its purpose, timing, and potential misconduct on the picket line.

Employers can discipline employees for inappropriate conduct during picketing, such as physically blocking workers from entering the building or threatening violence.

Unions may fine employees who cross the picket line.

Healthcare Exception

Unlike employees in other industries, employees working for healthcare institutions must give at least a 10 days’ written notice to the employer and the Federal Mediation and Conciliation Service before picketing or going on strike. The notice must indicate when (date and time) the activity will begin.

Conclusion

The laws surrounding labor strikes are complex, and employers who anticipate a strike are highly recommended to obtain the assistance of an experienced labor lawyer.

The good news is strikes are rare. Almost all union contracts in the United States eventually settle without a strike. Nonetheless, employers who anticipate a work stoppage may take out strike insurance to offset potential losses.

For more updates on emerging labor and employment law topics, please subscribe to the Horton Law email newsletter.

July 17, 2018

NLRB Charges: What’s an Unfair Labor Practice?

The National Labor Relations Board’s General Counsel (through Regional Offices) investigates violations of the National Labor Relations Act. An Unfair Labor Practice (ULP) occurs when an employer or union violates Section 8 of the Act. Those affected by these violations, including nonunion employees, can bring NLRB charges against the offending party. The NLRB receives 20,000 to 30,000 charges a year from employers, employees, and unions. Employers should be aware of the most common board charges to help them reduce the chance of receiving one.

Common NLRB Charges Against Employers

Employers incur NLRB charges by interfering with employee rights to engage in concerted or union activity and engaging in “bad faith” collective bargaining. Common allegations against employers include threatening or disciplining employees for union activity and promises of certain benefits in exchange for employees not to engage in union activity. In collective bargaining, common allegations against employers include refusals to provide requested information, bargaining in “bad faith,” and attempting to negotiate directly with employees.

To lessen the chance of receiving charges, employers should train managers in complying with the Act. Furthermore, charges of “bad faith” bargaining do not mean employers cannot take a hard stance in negotiations or leave the bargaining table. However, an employer cannot bargain with no intention of actually reaching a deal.

It is also important for employers to be aware that the balance between employer and employee rights under the NLRB tends to fluctuate based on the political climate in Washington.

Common NLRB Charges Against Unions

Charges against unions are less common than allegations against employers. Common charges against unions include failure to represent an employee in a grievance and failure to bargain in “good faith”. It is also common for charges against unions to allege illegal coercion of employees, illegal picketing, secondary boycotts, and discrimination against employees. Both employers and employees can bring charges against unions.

Investigation Process

Once a charge is filed, the General Counsel investigates the allegation to determine whether there is reasonable cause to issue a complaint or dismiss the charge. The investigation is delegated to the Regional Director of the area where the alleged violation occurred, assuming the parties involved fall under NLRB jurisdiction. If the Regional Director decides to issue a complaint, an Administrative Law Judge will hear the case. As shown in the chart below, most charges result in withdrawal or settlement.

The NLRB encourages voluntary resolution throughout the investigation process. This includes an alternative dispute resolution (ADR) program which aids in settlement through mediation and arbitration. The NLRB recently announced an initiative to be more proactive in encouraging parties to participate in ADR.

Potential Consequences of NLRB Charges

In some cases, the NLRB’s General Counsel can seek a temporary injunction under Section 10(j) of the Act. Temporary injunctions are intended to stop ULPs and irreparable harm to employees during the litigation process. The Act defines 15 categories of labor disputes where temporary injunctions are appropriate, including secondary boycotts and hot cargo agreements. Temporary injunctions cease once the NLRB decides the case.

If the NLRB ultimately finds a violation, it can order reinstatement of employees, pay back pay, or other make-whole remedies. It can also issue informational remedies, such as requiring an employer to post notices in the workplace. The NLRB cannot assess pure penalties under the Act. It has no statutory power to enforce its decisions directly, but can seek enforcement through the federal court system.

The consequences of a charge also include the time and money spent during the investigation, adjudication, and litigation processes.

For more updates on emerging labor and employment law topics, please subscribe to the Horton Law email newsletter.