By Lisa F. Harper, Esq.
The National Labor Relations Act (the “NLRA”) is a federal statute enacted in 1935 that, among other things, gives employees the right to engage in concerted activities to improve working conditions and/or to form or join a union.- The National Labor Relations Board (the “NLRB”) was created by Congress to enforce the NLRA, and in that regard it promulgates rules under the NLRA; supervises union elections; investigates, conducts hearings and rules upon alleged violations of the NLRA; and facilitates settlements between employers and employees.
- A labor union can be made up of one or more “bargaining units.” A bargaining unit in a labor union is a group of employees with similar interests. For example, cooks may be in one bargaining unit, while servers are in another bargaining unit within one labor union.
- Any private employer with two or more employees is subject to unionization by its employees, as a bargaining unit can be just two (2) people who share a work-related interest, mission or goal.
- Excluded employees from coverage under the NLRA are managers and supervisors and can also be “confidential employees.”
a. Managers and supervisors are not included within the definition of employee under the NLRA. Title alone, however, is not sufficient to deem an employee a manager or supervisor, as a supervisor under the NLRA is defined as:any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.b. Confidential employees can also be excluded from the definition of employee under the NLRA. Such employees can include those who participate in making management HR related policies and have access to confidential information to make such policy. Confidential employees could include those in HR and/or assistants to those who make such policies and thus have access to confidential information related to the same. According to the NLRB Guide for Hearing Officers”
Confidential employees are those who assist and act in a confidential capacity to persons who formulate, determine and effectuate management policies with regard to labor relations or regularly substitute for employees having such duties. Mere access to confidential labor relations material is not sufficient to confer confidential status.
Because of the factual based nature behind the classification of employees as managers, supervisors, and/or confidential employees, these classifications frequently become the subject of disputes before the NLRB and the Courts
- If 30% of the employees sign cards or a petition indicating that they want a union, the NLRB will conduct an election and if a majority vote in favor of the union, then the union will be certified by the NLRB. Or, an employer may voluntarily recognize a labor union upon evidence that a majority of employees want one.
- After a union is certified, the employees will select their union representatives who will, among other things, attempt to negotiate a collective bargaining agreement with the employer.
- A collective bargaining agreement sets the terms and conditions of work, which may include but not be limited to wages, hiring practices, layoffs, promotions, job functions, working conditions, hours, discipline and termination, and benefit programs.
- Georgia is a “right to work state.” which means that a businesses’ employees do not have to join the union to work at the business or pay union dues if those employees choose not to do so.
- What an employer can and cannot do or say if a union organizing effort has begun is a minefield as the employer needs to be careful not to engage in activities that could be deemed unfair labor practices under the NLRA.
a. For example, the employer should not say anything that could be deemed to be:
(i) Threatening to fire employees or take away their benefits for joining a union.
(ii) Promising benefits to employees for not unionizing.
(iii) Threatening a business closure if employees organize.
(iv) Taking a straw poll as to which way employees would vote.
(v) Discriminating against, threatening or punishing employees who express interest in or vote for the union.
(vi) Prohibiting pro-union activities before or after work hours.
b. Being mindful at all times of the need not to engage in unfair labor practices as referenced above, an employer who opposes unionization can carefully voice the basis for its opposition, including, for example, discussions about:
(i) The possible change in relationship dynamics between management and employees that can occur as a result of unionization.
(ii) The possible elimination of aspects of individualization with respect to employees, in that the employer is frequently not able to incentivize employees or reward star performers (given that wage provisions are set by the collective bargaining agreement and many wage raise provisions in collective bargaining agreements are based on seniority, rather than performance) and in that the employer may have difficulty eliminating poor performers (which can serve as a disincentive to high achievers).
(iii) The possibility of strikes and picket lines and union dues for employees who join the union.
(iv) The potential for an us versus them culture rather than a team culture.
Additional information is available on the web. As a starting point, a link to the NLRB site can be found here: https://www.nlrb.gov/about-nlrb/rights-we-protect/your-rights/employer-union-rights-and-obligationshttps://www.nlrb.gov/about-nlrb/rights-we-protect/your-rights/employer-union-rights-and-obligations