American Labor Unions – Laws and How To Protect Your Rights as An Employer

American labor unions have been labeled many things over the years; from the support system for common interests of blue-collar workers to the bane of employer’s existence. Over the last 70 years, the number of labor unions has decreased from 35 percent to 11 percent, with most unions existing in the public sector. However, earlier this year the country saw its first successful “wildcat” strike in over 40 years from the West Virginia Teacher’s Association. While the idea of unions has been polarizing throughout history, it’s not only important to understand how we got to the lowest level of union participation ever, but also review the laws surrounding the creation of unions and the rights you have as an employer.

Brief History of Unions

The labor movement began in 1935 with the signing of the National Labor Relations Act (NLRA) which created the right for employees to unionize. The law also recognized some employers had created unfair labor practices surrounding unionization, which the NLRA declared unlawful.  The National Labor Relations Board (NLRB) was created to enforce the principals of the NLRA. Within the first decade of creation, the board helped reinstate 76,268 workers and reclaim $12,418,000 in wages owed. Today, many employers believe that the NLRB has created policies that make it too easy for employees to organize and put unrealistic constraints on employers (i.e. creating handbook policies that could be perceived as having a chilling effect on the movement). By the end of World War II, more than 12 million American workers belonged to unions. However, the same rights granted under the NLRA were not provided to minorities and women in the workforce.

The formation of the American Federation of Labor-Congress of Industrial Organizations (AFL-CIO) continued to strengthen the power and appeal of labor unions. However, throughout the next 70 years unions saw both an influx of union friendly laws and laws that restricted the rights of unions and put more power in the hands of employers. By 2009, only 12 percent of American workers belonged to labor unions. Following the election of Barack Obama in January 2009, American Labor unions saw their first resurgence of pro-union policies since the early 1980s.  

Previous Administration

Under the former Obama administration, multiple executive actions were issued in what the administration called an attempt to “level the playing field for labor unions in their struggles with management”. The most striking changes came to the rules surrounding the election process known as “ambush elections”. These new guidelines shortened the time from when union elections could be held, from 38 days to 10 days. Thus, making it easier for unions to win elections against employers because they no longer have time to explain why not unionizing would be better for employees or address the company’s goals to meet employees’ requests or needs. However, many other smaller legal changes expanded the powers of unions and employees, including; 

  • Eliminating retaliation against employees for discussing wages with coworkers in the workplace
  • Five additional states passed “right to work” laws (AL, KY, MI, WI, WV)
  • Establishment of “micro-unions” within one company. Micro units allow certain groups of employees to unionize within their own group. For example, all servers unionize amongst themselves and at the same restaurant all line cooks unionize within their own group.
  • Changes to the definition of joint employers; creating a greater sense of liabilities for franchisers based on the unlawful practices of their franchisees.

Current State

Like President Obama, candidate and President Donald Trump coined himself as the man of working people and an advocate for the American union worker. Initially he reflected this in his first weeks in office by pulling out of the Trans Pacific Partnership and inviting the heads of top unions to the White House for a roundtable discussion. Following those initial meetings President Trump appointed new leaders (John Ring as chairman, Marvin Kaplan and William Emanuel-members) to the National Labor Relations Board. All new appointees are Republican leaning and have ties to big business. They’ve also made quick work at challenging and reversing many of the Obama era rulings previously discussed.

The most critical blow to unions under the new administration came not from the executive branch but the judicial branch in the Supreme Court decision Janus V. Afscme. In June 2018, in a 5-4 landmark decision the court ruled that it was no longer legal for unions to force the collection of fees from public employees who are not members of the union. The ruling stated, employees must “clearly and affirmatively consent before any money can be taken from them”. What does this decision mean? If you are a non-union employee working for a company that has other groups of employees who are unionized, you are no longer on the hook to pay “agency fees”. Unions believe they are due these fees because these non-union employees receive certain benefits created by the union’s presence in the company and cover collective bargaining costs. Labor activists believe this decision hinders the ability of workers to “join collectively behind the power of a unified voice”.

After understanding where we have come as a country when it comes to the establishment of unions and where things stand today, it’s important to understand your rights as an employer and how you can prevent all employees or units of employees from unionizing;

  1. Avoid Chilling Statements in Handbooks: When reviewing or writing your Company handbook ensure there isn’t any policy language that could be considered to chill employees in the exercise of protected activity; such as speaking of wages with co-workers or speaking out on social media about work conditions. Note: Avoid using overly general statements and instead focus on the interest of the employer by making a clear statement. If you believe any of your policies may have a chilling effect, please reach out to your HR department or your StratEx HR Consultant for review.
  2. Guidelines/Parameters for Solicitation: Companies can prohibit distribution of union election campaign material in all work areas during working hours. Restaurants specifically can prohibit solicitation in selling areas during both working and nonworking hours. However, prohibiting distribution in nonwork areas is illegal. Nonwork areas include locker rooms, rest rooms, parking lots and breaks areas. Note: If you let employees bring in materials for selling goods for a side business or their children’s school this could open the door for other forms of solicitation. Best case scenario is to stick to your policy and allow no solicitation.
  3. Be Proactive with Employees: Don’t catch yourself flatfooted and playing catch up when it comes to potential unionization in the workplace. Using the following best practices can help companies avoid a union coming into their workplace;
    • Engage with employees on a regular basis regarding work conditions, pay structure, and overall general satisfaction. Then be prepared to address the information employees provide. Letting things slip through the cracks will lead employees to go elsewhere to get their needs met.
    • Be transparent when new policies and work rules are put in place, so expectations are known and there is no room for misunderstanding.
    • Get management in the mix! Ensure they are committed to creating a culture that supports diversity of ideas and constructive feedback.
  4. Develop an Action Plan/Task Force: These small things could shift employees’ opinions in voting yes to unionization;
    • Be ready to push out your anti-union campaign and appeal to employee concerns about labor conditions should a successful union petition be submitted to the NLRB. Note: 30% of workers need to sign a petition for the process to begin. Also Note: Anti-union rhetoric should not be used prior to union petitioning occurring.
    • Be well educated on the history and current state of the labor union trying to enter your work place so you can provide details to your employees.
    • Hold meetings with your employees to answer questions and discuss the company’s position and concerns about unionization. Use these meetings to highlight positives of the company, provide more context on why joining a union would not be advantageous to them, provide a game plan for addressing employees’ concerns.
    • Ensure there is a member of management available to observe election procedures of fairness and accuracy.

Navigating a workplace that unionized can be extremely difficult. However, being proactive in gathering feedback from your employees and working with management to create a transparent environment will mitigate a company’s risk of having to deal with a unionized workforce in the future.