Bus 372 week 2 discussion 1&2

Learning Objectives

After completing this chapter, you should be able to:

• Evaluate the steps of union formation under the National Labor Relations Act.

• Analyze employers’ use of unfair labor practices such as coercion, interrogation, and

surveillance.

• Assess employers’ use of unfair labor practices such as regulating solicitation,

relocating the workplace, and holding captive audience meetings.

4Representation Elections Under the National Labor Relations Act

Robert Churchill/iStock/Thinkstock

• Examine union activities that may invalidate union representation elections, the

process by which the workforce votes for or against union representation in the

workplace.

• Summarize the ways in which labor relations consultants may assist employers in the

union representation election process to determine if workers wish to be represented

by a union.

Introduction

This chapter and the next offer a detailed explanation of the National Labor Relations Act (NLRA), the

federal law initially enacted in 1935 that first granted workers the right to form a labor union. We will

examine how to form a union and achieve recognition pursuant to the act. Then we will study how

employers sometimes violate the act and examine ways employers can stay within the parameters of the

law.

Much of this chapter will refer to elections under the NLRA. Elections refer to the process in which

workers vote at their workplace to determine whether they wish to be represented by a union; other

ways to refer to this process include representation elections or the election process.

4.1 How Unions Are Formed Under the NLRA

This section discusses how a labor union is formed in a private business under the National Labor

Relations Act. We will begin by covering who is qualified to start the unionization process and then

examine how the petition is actually filed with the National Labor Relations Board (NLRB), the

administrative agency entrusted with overseeing representation elections and resolving labor disputes

under the act. Defining who is an employee is an important first step to determining which workers are

eligible to vote for union representation.

Defining Employees

The first step in forming a union is to identify which members of the working unit qualify to participate

in the representation election. Union formation is limited to particular employees, which begs the

question: Who is an employee? Generally, employees are workers with two characteristics: (a) they are

compensated for their service to the employer, and (b) the way in which they carry out their duties is

under the employer’s control and direction.

Simply declaring a worker an employee does not make it so. Nor is it necessarily obvious that some

people are employees at all. For example, football players at Northwestern University sought recognition

as a bargaining unit, arguing that they were employees of the university since they received

compensation in the form of scholarships and worked as athletes under the supervision of a coach.

Ultimately, the National Labor Relations Board heard their case, more details of which can be found in

the In the News feature box titled “Are Northwestern Football Players Employees?”

In the News: Are Northwestern Football Players Employees?

Higher education is becoming a battleground for labor relations decisions. Of note is the 2014

case concerning football players at Northwestern University, who sought recognition from the

NLRB to form a union at their school.

The students argued that they met the two criteria of employees: First, they “worked” for the

university because they received scholarships that paid for their tuition, valued at some $65,000

each per year; second, they were under the control of their coaches, who told them what to do,

when to do it, and basically structured their days.

The case was first heard by the NLRB’s regional office. There, the administrative law judge found

that those athletes who received scholarships qualified as employees, which then made them

eligible to vote in the representation election (to determine whether a union would represent

them). The university appealed to the full NLRB in Washington, D.C. They argued that football

players are not employees and therefore could not legally form a union.

In the meantime, the football players were allowed to vote, but because of the appeal, the ballots

were impounded until the case could be heard. At issue is whether the NLRB will uphold the

decision of the regional office in allowing the football players to be classified as employees, and

therefore eligible to form a bargaining unit leading to the election process for union

representation (Strauss, 2014).

Discussion Questions

Watch this video (https://www.youtube.com/watch?v=a­i8lOSb1Ck) and answer the following

questions.

1. Why were only scholarship players eligible for classification as employees?

2. Why do you think that football players would want to form a union? What issues do you

think they had with the university that necessitated this effort?

3. Why have the players’ votes been impounded until the process is finished?

As a general rule, an employee works for compensation under the discretion of a supervisor. However,

the NLRA does not put forth such a definition. Instead, the act lists categories of workers who are not

covered, referred to as exempt employees. These categories include:

1. Government workers in state and federal offices, Federal Reserve banks, and employees subject

to the Railway Labor Act. As we will discuss in Chapter 7, which covers public unions,

government workers such as police and firefighters are government employees, and as such are

not under the jurisdiction of the NLRA.

2. Agricultural laborers, such as farmers, including dairy farmers and those who raise livestock.

3. Domestic servants, including nannies and housekeepers.

4. A person employed by his or her parent or spouse.

5. Independent contractors, or workers usually hired for one job, who are paid once; have

discretion over when, how, and where they do the work; and are not covered by the employer’s

worker’s compensation, retirement, or tax withholding.

6. Supervisors, or workers with “the authority to hire, transfer, suspend, lay off, recall, promote,

discharge, assign, reward, or discipline other employees” (29 U.S.C.A. § 152[11]). Why are they

exempt? One of the purposes of the NLRA is to provide workers with the ability to organize with

other workers, wielding them greater power when they negotiate with management.

Supervisors, on the other hand, already have power, and even if they are not the owner of the

business, they have much more control over their work and the conditions of their employment

than their subordinates. In short, because supervisors exercise authority and independent

judgment, the act does not need to protect them in their dealings with management.

In summary, although the NLRA does not define the characteristics of an employee, it clearly excludes

particular types of workers from coverage, most notably supervisors, government workers, and

independent contractors.

Forming a Community of Interest

Once it is established that the workers in question are employees, it must next be determined which of

those employees can form a bargaining unit. A bargaining unit is a group of employees who share a

common interest and therefore can be identified as a discrete group. For example, suppose a plant

consists of 4,000 workers, 150 of whom are electricians. The electricians make up a bargaining unit,

because they are an identifiable group within a larger group of employees (see Figure 4.1).

Figure 4.1: Illustration of a discrete bargaining unit

Employees in a discrete bargaining unit have a common interest, making them an

identifiable group within the large organization of employees.

Generally, to determine which employees make up a bargaining unit, the NLRB applies a community of

interest test that identifies what commonalities the group shares. For example, electricians at the same

plant have the same type of job, and therefore form a discrete work unit. Another configuration is a

plant unit, which consists of all workers at the same geographic location. For instance, all of the workers

at Plant #101 of Atlas Industries, regardless of their position, make up a plant unit. If Atlas was a large

multinational company with multiple plants, and all employees from all of its plants wished to unionize,

an employer unit would be formed.

In the News: Micro Units May Be the New Bargaining Units

The case Specialty Healthcare and Rehabilitation Center of Mobile is a good example of whether

employees correctly constituted a bargaining unit. In order to form a union in a workplace,

employees must show that their bargaining unit has a commonality of interest. This court

decision allowed workers to form much smaller units, dubbed micro units, rather than

Watch This

To watch an employee submitting

authorization cards to his local NLRB

office prior to the union

representation election process, click

here

(https://www.youtube.com/watch?

v=9XDZIKHSgS8) .

bargaining units. What sets micro units apart is that they are composed of a much smaller defined

group, which makes it easier to form a union since there are fewer workers to organize.

The NLRB has “wide discretion” in determining which workers should be included in a

bargaining unit, and courts reviewing the decisions of the NLRB must uphold the board’s decision

“unless the employer establishes that it is arbitrary, unreasonable or an abuse of

discretion” (Specialty Healthcare and Rehabilitation Center of Mobile, 2011). “By organizing a

small group of workers, a union can gain a foothold within a company’s workforce, as well as

access to company information during contract negotiations that can give it leverage and make

subsequent organizing campaigns easier” (Specialty Healthcare and Rehabilitation Center of

Mobile, 2011).

Discussion Questions

1. Can you think of a reason the NLRB would support allowing smaller groups of workers to

form a bargaining unit?

2. Does recognizing smaller units help workers or the employer? Explain.

3. How small a unit would you advise the NLRB to allow? What is your justification for the

number you came up with?

Signing Authorization Cards

After the bargaining unit is identified, the next step is to

determine if there is sufficient support to form a union within

that unit. This can be accomplished informally as employees talk

with one another and gauge the level of support. However, when

the employees decide that they want to move forward, each

worker must sign an authorization card stating that they are

willing to join the union. A sample authorization card is shown in

Figure 4.2.

If the prospective unit can garner at least 30% of all bargaining

unit workers’ support (as demonstrated by the number of signed

authorization cards), the workers can then file a petition with the NLRB asking for representation by the

union of their choice.

Figure 4.2: Authorization for representation card

Workers must sign an authorization card if they support the identified bargaining

unit and would like them to become the employees’ representative in collective

bargaining and negotiation.

NLRB, Representation Petitions, RC (2014).

Filing the Petition With the NLRB

Following the submission of the authorization cards, a petition must be filed with the regional office. The

employees or the union typically do this, but in some cases employers may also file a petition to

determine how widespread support is within the operation.

What are the chances of actually forming a union once a petition is filed with the NLRB? Figure 4.3

shows how few unions actually emerge after the authorization cards are submitted and the petition is

filed with the NLRB.

Figure 4.3: Actual unions formed after filing a petition

This figure shows the number of unions formed (or not formed) after a petition was

filed for the years 2004–2013. Even after a petition is filed, some groups decide to

withdraw petitions, an event that happens for different reasons.

NLRB, Representation Petitions, RC (2014).

This figure shows in red the number of petitions that were filed each year from 2004 to 2013. This

number is then compared to the blue lines that show how many union representation elections were

actually held compared with the number of petitions filed. Of the petitions filed that resulted in a union

representation election, the green bars show in how many union representation elections the workers

voted for a union to represent them in the workplace, compared to the beige bars, which represent the

number of times workers voted against having a union represent them. Perhaps most interesting is the

pink bar that depicts the number of petitions withdrawn after being filed. There are many reasons for a

withdrawal, including workers’ demands being granted by the employer, an error in the petition, or a

loss of support that prompts the union to try for recognition at a different time.

Table 4.1 shows what happened to petitions filed between 2004 and 2013. In 2004, 141 petitions were

filed, and of those, 60 were withdrawn. Only 37 out of the 141 actually resulted in an election, and of the

141 petitions filed, the union won only 12, or about 8.5%. Based on these figures, one could deduce that

from an employer’s point of view, the odds of union representation actually transpiring from a filing are

low.

Table 4.1: Petitions filed with the NLRB, 2004–2013

Year Petitions

filed

Elections Won by

union

Lost by

union

Petitions

dismissed

Petitions

withdrawn

FY2004 141 37 12 25 37 60

FY2005 102 52 17 35 18 43

FY2006 108 37 11 26 18 54

FY2007 92 23 7 16 21 43

FY2008 150 25 6 19 30 101

FY2009 75 16 7 9 30 20

FY2010 67 13 5 8 27 22

Watch This

To watch Calpine workers file with

the NLRB, click here

(https://www.youtube.com/watch?

v=OfPZiYKVMno) .

Year Petitions

filed

Elections Won by

union

Lost by

union

Petitions

dismissed

Petitions

withdrawn

FY2011 97 60 11 49 16 25

FY2012 31 14 6 8 13 19

FY2013 49 13 5 8 3 27

In addition to employees and employers filing a petition, there

are certain circumstances in which labor organizations may also

file. This can occur when the employer does not recognize the

union or if the employer recognizes the union but seeks to go

through the formal petition route so it can obtain the benefits of

certification.

The NLRB Investigation

The NLRB next determines whether 30% of employees in the bargaining unit have submitted their

cards. To do this it uses the employers’ payroll list, also known as the Excelsior list, which contains the

names and addresses of current employees and therefore all of the persons eligible to vote in the

representation election. The authorization cards are compared against the Excelsior list, and if 30%

support is reached, the NLRB will accept the petition from the union. When the petition is filed, the

NLRB notifies all parties involved. At this point in the process, the regional office will request any

additional information, if needed.

When all parties are informed that a petition has been filed, the regional office will conduct an

investigation to make sure the NLRB has jurisdiction and whether the petition is in order. Most of the

investigative work is done via telephone and e­mail. The agents will work out the logistics for the

election, which includes where the balloting will take place, the language that will be used on the ballots,

and how it will be determined who is eligible to vote (NLRB, n.d.a). Once the parties arrive at an

understanding about how the union representation election process will take place, the regional director

is authorized to conduct the election.

If the parties have issues with the election or there are problems with the petition, however, then there

might be matters to resolve before an election can take place. In that event the entire proceeding stops

as the issues are heard (in a hearing) at the regional level and, if needed, the national level. The most

common issue typically regards the description of the bargaining unit in the petition. For example, if the

status of individuals in the bargaining unit changed due to a personnel action, then the description is

inaccurate. This could happen if an employee designated as a supervisor is reclassified as

nonsupervisory or if employees are transferred out of the bargaining unit (FLRA, n.d.c.).

Hearings before the NLRB are similar to civil trials,

except without a jury. The hearing officer is an employee

of the NLRB, and attorneys for both sides present their

cases through witnesses, as in a court case. Witnesses

are examined and cross­examined so that evidence can

be presented. At the conclusion of a regional hearing, the

hearing officer will not rule on the matter, but instead

Jae C. Hong/Associated Press

Facilitating fair union elections is one of

the NLRB’s main goals.

will write a report to the board, which ultimately makes

the decision.

Once these issues are raised and resolved, the election

can proceed. There are situations in which a hearing is

not necessary—for example, if the petition is withdrawn

for lack of support, inadequacy, lack of jurisdiction, or an

inadequate showing of interest. Likewise, a hearing does

not take place if the regional director dismisses the petition.

The Voting Process

Fair and non­coercive union elections are at the heart of the NLRB’s mission. If workers can vote to

unionize without fear of reprisals, job loss, or physical harm, then the NLRB has successfully created an

atmosphere conducive to a fair outcome. The rules governing union elections have evolved over time

and are partly the result of past eras in which corruption and violence occurred. For this reason, the

rules and regulations governing the electoral process may seem overly complicated, but their purpose is

to create a noncoercive atmosphere in which to hold elections.

The NLRB provides written notice of election­related events; these are posted around the employer’s

place of business explaining the details of the election. These posters tell workers that a representation

election is to be held and that they have the right to vote if they are part of the bargaining unit. On the

day of the election, representatives from the NLRB arrive at the place of business to supervise the

election. They bring the voting booth, ballot box, and preprinted ballots for the election and do the actual

count, unless the ballots are sealed.

As in the case with the Northwestern football players, ballots are sometimes sealed or confiscated

pending a hearing by the NLRB. If the NLRB rules, for example, that the football players were not

correctly classified as employees, then their votes are moot; on the other hand, if they really are

employees, then they have the right to vote, and their ballots will be lawfully counted.

NLRB representatives also watch the voting area for any signs of interference by either side that may be

coercive or a violation of the NLRA. They are especially watchful for electioneering, in which

representatives of any party engage in “prolonged conversations with voters waiting to cast their

ballots, regardless of the content of the conversation”(Milchem, 1968). Under the Milchem rule,

elections in which electioneering occurs will be overturned. A proportionate number of observers are

allowed for each side, depending on the total number of employees in the business.

The election process is held via secret ballots. Election outcomes are determined by the majority of the

employees in a unit, which means the majority of employees who vote in the election. NLRB

representatives oversee all elections, and they count and report the vote. The NLRB then issues a

certification: either one of representation or one of results. A certification of results means that a

majority of employees in the bargaining unit did not vote in favor of union representation. A certification

of representation means that a majority of employees in the bargaining unit voted in favor of joining the

union and authorize the union to represent them in negotiations with the employer.

Either side can object to the outcome of the election by filing an objection with the regional NLRB office

within 7 days of certification, and the NLRB can then investigate. If the election is set aside, or

invalidated, the NLRB can make arrangements for a new election to take place.

If unionization prevails, it cannot be challenged for at least 1 year, meaning that another union cannot

claim that it now has a majority of workers; otherwise the workplace would be disrupted by constant

elections.

At any point in the process, the employer can challenge (either before the NLRB or in court) any aspect

of the election, from the accuracy of the authorization cards to the determination of what constitutes the

bargaining unit. The NLRB was created and is organized to hold hearings on such issues and make

rulings, much like a court. This process will be discussed in detail in Chapter 6.

Union Representation Without an Election

Sometimes a union is put in place without an actual election. This may happen in a number of ways, such

as a consent election in which the employer agrees to the formation of the union. At the other end of

the spectrum are those workplaces that are so polluted by employer misconduct that a fair election

becomes impossible. In those cases the NLRB will order the employer to recognize the union without an

election.

Voluntary Recognition

One way that a union can represent workers without an election is through a process called voluntary

recognition. If the union has the support of 50% or more of employees from the start (rather than

30%), the employer may avoid going through the petitioning process (as long as the proof of 50%

support is valid) and instead allow a consent election. In that case the NLRB director conducts an

election to ensure that a majority of the employees in the bargaining unit want to be represented by the

particular union. For this to happen, the employees must approach the employer and inform him or her

that a majority of workers wish to unionize.

Upon learning this information, the employer is not obligated to comply with the request to unionize. If

that happens, the workers have no choice but to proceed with an election. “Although unions may try to

pressure the employer to recognize their union without going through the process of an election, this

rarely happens. For example, employees may use a strike or picketing to apply such pressure. Unions

will instead usually use the route of a secret ballot election. In most cases the union will seek a secret

ballot election conducted by the NLRB” (Associated Builders and Contractors, n.d.). If, however, the

employer is willing to recognize the majority, then the employer will request proof that a majority of

workers support the union, which is proven by a count of the authorization cards.

An employer may not wish to entertain voluntary recognition. One reason is because pro­union workers

could pressure other workers into signing authorization cards. Signed cards may indicate that there is

great support for union formation, but if workers were to vote anonymously, the outcome may be very

different. Like political elections, elections for whether to unionize take place in a private booth so no

one can see how each person votes; authorization cards, on the other hand, are not necessarily

confidential. A second reason is that voluntary recognition does not result in certification of the union,

whereas an election does. A certified union enjoys a year of presumptive support and cannot be

challenged within that year, whereas a noncertified union can be decertified sooner than that.

Gissel Bargaining Order

Watch This

Work in textile mills was hot,

oppressive, and paid little. In 1934

there was an uprising at a mill that

resulted in seven deaths. To view a

documentary about that event, click

here

(https://www.youtube.com/watch?

v=D_Sl9OTtUkU) .

To read about the making of the

documentary, click here

(http://www.ejumpcut.org/archive/jc45.2002/whiteman)

Outside of voluntary recognition, electionless union representation can take place by virtue of a Gissel

bargaining order. This order mandates that the employer enter into a collective bargaining agreement

with the union even though the union has not won an election. If the employer commits unfair labor

practices and the work environment is not conducive to fair elections, then the NLRB might take this

extraordinary measure. The employer must have committed infractions so serious that it would be

impossible to hold a fair election.

The Union Becomes the Exclusive Bargaining Agent

Once the election is finalized by the NLRB, the union becomes the

employee representative for the purpose of collective bargaining.

This representation is exclusive. This means that the employer

may not meet with factions of other employees who do not

support the union. All employees will be covered by the collective

bargaining agreement determined by the union and management

as long as they are members of the bargaining unit, even if they

did not support unionization.

Sometimes a union does not act as the exclusive agent for the

workers following an election. This occurs when the election is

invalidated, or set aside. The NLRB will set aside an election if it

was conducted in “an atmosphere of confusion or fear of reprisals

and thus interfered with the employees’ freedom of

choice” (Pacific Micronesia, 2000). According to the Pacific

Micronesia case, “In any particular case, the NLRB does not attempt to determine whether the conduct

actually interfered with the employees’ expression of free choice, but rather asks whether the conduct

tended to do so. If it is reasonable to believe that the conduct would tend to interfere with the free

expression of the employees’ choice, the election may be set aside.”

4.2 Unfair Labor Practices by Employers: Coercion, Interrogation, and

Surveillance

Election campaigns present a unique set of circumstances for managers. Preelection actions that

interfere with the election process—even if unintended—may violate the NLRA. If the NLRB determines

that violations occurred, it can rule that another election must be held or require the employer to

bargain without an election.

This chapter will acquaint you with some of the laws governing the election process, discuss situations

to avoid, and examine some of the rights that managers have. However, when dealing with a business

undergoing unionization, it is essential to hire a labor consultant and solicit the advice of an experienced

labor attorney who is familiar with current NLRB rulings. Any business that is experiencing a union

campaign at its workplace should hire a team of experts for guidance.

When should that guidance begin? While workers may initiate the idea of unionizing in discussions and

meetings among themselves, it is not until they sign authorization cards or begin leafleting that

employers know organizing is occurring. Once aware, the astute manager must view this event as a

turning point and immediately make sure his or her behavior complies with the NLRA.

Employee Coercion

One reaction that managers have to the onset of union activity is to discuss complaints with their

employees and try to remedy or otherwise address them. Although this may be a natural response to

employee dissatisfaction, the general rule under Section 8(a)(1) of the NLRA “prohibits employers from

interfering with, restraining, or coercing employees in exercising their rights to” form a union. Coercing

can take many forms. One is that by bestowing benefits on employees, the employer is coercing them

into voting against the union (Pacific Coast M.S. Industries Co., 2010). Promises of more flexible

attendance policies, increased pay, retirement, or a bonus all constitute violation of this section (Center

Service System Division, 2005).

Another response managers may have is to discuss work conditions and complaints with employees.

This could be deemed another violation called a solicitation of grievances. If the employer has a

history of approaching employees and asking their opinions about work conditions, it may not

constitute a violation. But when the solicitation is sought for the first time immediately prior to a vote, it

may be considered a form of coercion (Caraustar Mill Group, 2011).

The bottom line is that if the employer has a history of giving benefits at a certain time each year, and if

this is a widely known and provable fact, then continuing such benefits will not likely be viewed as

coercion; new benefits suddenly offered when a campaign begins, however, are highly suspect of

violating the NLRA.

You Be the Judge: Interrupting Organizing Activity

In this case, Local Joint Executive Board of Las Vegas v. NLRB (2008), the court considered

whether the actions of a human resources manager violated Section 8(a)(1) on unlawful

surveillance. The company involved operates a hotel and casino in Las Vegas, Nevada. On May 30,

2000, the unions began an open campaign to organize the casino’s housekeeping, food, and

beverage departments.

The company provides a dining room in which all employees, supervisors, and managers can eat.

Two employees who worked as buffet servers were having lunch together in the employee dining

room. The employees approached other buffet servers at the table next to them and asked them if

they would like to sign union (authorization) cards.

After observing the two employees approaching other buffet workers, Tracy S., the company’s

vice president of human resources, who was also eating lunch in the dining room, approached the

buffet servers. She interrupted the organizers and said to the servers, “I would like to make sure

you have all of the facts before you sign that card.” Tracy said they should understand that the

cards were “legal and binding,” and if the union ever became the collective bargaining

representative, the “card authorizes union dues to start coming out of [the card signer’s]

paycheck.” One of the union organizers assured Tracy that she had given the buffet servers all the

facts.

“There was then a brief conversation about union benefits, including insurance, and Tracy offered

her opinion that even if the union organizing campaign was successful, there was no guarantee

that the hotel employees would receive different medical insurance” (Local Joint Executive Board

v. NLRB, 2008). “Tracy told the servers that union dues were $32.50 a month” (Local Joint

Executive Board v. NLRB, 2008) and the union organizer indicated that they had already told the

other servers about dues. Then Tracy said that it “looked like the union organizer had all [her]

bases covered” (Local Joint Executive Board v. NLRB, 2008) and walked away.

Tracy typically ate lunch in the employee dining room, but usually sat with other human

resources employees rather than uniformed employees like buffet servers. She acknowledged

that as she approached the table to talk to the servers, she knew they were talking about signing

union cards. She further testified that she approached the employees with the intention of giving

them “the facts.”

The case was first heard by a regional administrative law judge who found that the statements by

the human resources supervisor were illegal surveillance in violation of Section 8(a)(1). The

NLRB reversed. The union then appealed to this court.

Discussion Questions

1. What violations do you see? What specific NLRA statutes are each of the violations under?

What do you think would be the result of a complaint about the conduct with the NLRB?

2. What is the three­part test that the court will use to determine whether or not

surveillance took place? (The three­part test is found in this chapter.)

3. If you owned this company, how would you address these issues ahead of time with your

human resources personnel? What instructions would you give them about speaking to

employees regarding union activity?

4. How do you think human resources personnel could be so unaware of labor relations

rules during the pendency of a campaign?

After you have answered the discussion questions, click here to see the holding for this

case.

HOLDING: The supervisor’s “brief, spontaneous interruptions were not coercive” because these

were ruled as being “rational and consistent” with the NLRA. “Applying its three­factor test, the

Board reasonably determined that where the duration of the observation was short and the

employer’s behavior was not out of the ordinary, verbally interrupting organizing activity does

not necessarily violate” the act (Local Joint Executive Board v. NLRB, 2008).

Interrogation

In addition to employee coercion, another common violation committed by managers is talking to their

employees about an upcoming election. Under the NLRA, discussions with employees that become an

interrogation violate the law. The word “interrogation” may conjure images of a dark room in which a

worker is asked probing and accusatory questions, but in reality, any interaction between a supervisor

and an employee may be characterized as an interrogation if the discussion coerces that employee or

makes the employee feel threatened in any way. Bear in mind that there is a power differential between

supervisors and workers that alone may make conversations uncomfortable to workers; add to that

questions about unionizing and the conversation becomes even more fraught with the potential to be

intimidating to a worker.

The courts use four factors to determine whether a supervisor is acting coercively toward workers

during a campaign to unionize. These are:

1. if the interrogator appears to be seeking information on which to base taking action against

individual employees,

2. the interrogator’s level in the company hierarchy,

3. if the employee was called away from work into the boss’s office or if a conversation took place

in an atmosphere of unnatural formality, and

4. the truthfulness of the employee’s reply (Bourne v. NLRB, 1964).

Statements to employees such as “If we got a union in here we’d be in the unemployment line” (Big Ridge

Inc. and United Mine Workers of America, 2012) or “The union is no good,” or implying that if the union

wins, employees will lose benefits, be paid less, or lose their vacations (Portola Packaging, Inc. and Marta

Magallon Corona, 2012) are examples of interrogation. Another example is announcing to workers that

voting to unionize will cause the business to close. It is also coercive to state that the employer is being

forced to spend large amounts of money on attorneys’ fees defending against the union’s unfair labor

practice allegations at a time when the employer is struggling to remain open (North Star Steel Company,

2006).

Another example of interrogation involved a display by an employer at the place of business. In the case

Eldorado Tool, 325 NLRB No. 16 Case 34­CA­6966­1 (1997), an employer created a wall of shame

consisting of tombstones. On each tombstone he put the name of a business or plant that had shut down

as a result of United Automobile Workers (UAW) organizing. Every day or two, he added a tombstone

with the name of another closed plant. On the day before his employees voted on whether to unionize,

he posted a tombstone with the name of his business (Eldorado) on it and a question mark in the middle

(Eldorado Tool, 1997). This action was held to be a violation of Section 8(a)(1) because

the Respondent (Eldorado Tool) offered no explanation of the basis for its assertion that the

UAW was to blame for the closings of the other plants. Nor did it offer any objective facts as the

basis for a belief that, for reasons beyond its control, selection of the UAW as the employees’

bargaining representative might well cause the Eldorado plant to suffer the same fate. In the

absence of such an explanation, based on objective facts, and noting particularly that top

employer officials were otherwise threatening closure, the message conveyed to employees

was not that economic realities might lead the plant to close, but that the Respondent might

retaliate against them and close the plant merely because they chose union representation. We

therefore find that the “UAW Wall of Shame” campaign in the context presented here,

constituted an unlawful threat of plant closure, in violation of Section 8(a)(1). (Eldorado Tool,

1997)

Under certain circumstances, managers are allowed to express their opposition to unionization. Section

8(c) permits employers to express

“any views, arguments or opinions” concerning union representation without running afoul of

Section 8(a)(1) of the Act if the expression “contains no threat of reprisal or force or promise of

benefit.” The employer is also free to express opinions or make predictions, reasonably based

in fact, about the possible effects of unionization on its company. In determining whether

questioned statements are permissible . . . the statements must be considered in the context in

which they were made and in view of the totality of the employer’s conduct. Also recognized

must be the economically dependent relationship of the employees to the employer and the

necessary tendency of the former, because of the relationship, to pick up intended implications

of the latter that might be more readily dismissed by a more disinterested ear. (National

Propane Partners, 2002)

For example, a supervisor can say to employees, “I am against a union and I think it is a bad idea in this

plant,” and then explain why based on factual information. Supervisors can also advise employees that

they do not have to sign union authorization cards or join a union. Employees may be advised of what

benefits they would receive should a union represent the employees (as opposed to what the employer

offers), and they may also be told that if they go on an economic strike they may be replaced (National

Propane Partners, 2002). Economic strikes, which are different from unfair labor practice strikes, will be

discussed in Chapter 5.

In short, employers are allowed to discuss objective facts about the consequences of unionization that

are provable, but they must be wary of implying that unionization will have dire consequences that may

not come to fruition. For this reason, making factually based comparisons of quantifiable information

(such as how pay and benefits will be different with and without unionization) are the least likely to

violate the NLRA.

Surveillance of Employees

Employers who think a union campaign is about to get underway are generally curious about their

employees’ activities. One way to satisfy this curiosity is through some sort of surveillance, which may

mean monitoring employee activity or having others monitor and provide reports. The employer might

want to know, for example, how many employees are genuinely interested in forming a union and might

ask supervisors to count the numbers at a gathering. Does such surveillance qualify as being coercive?

Surveillance concerns are complicated by other issues. These include where the surveillance takes place.

For example, surveillance of employees on the employer’s private property is different than surveillance

of employees on public property such as a park or mall, where they might be holding a meeting. In

addition, the surveillance of employees is different from surveillance of nonemployees such as union

organizers, who might stand outside the employer’s gate and hand out materials to entering and exiting

workers.

In response to these various scenarios, the NLRB “has determined that management officials may

observe public union activity on company premises without risking a violation” of Section 8(a)(1)

(Eddyleon Chocolate Co., 1991). Likewise, if employees conduct “union activities openly or near company

premises, this observation by the employer” has been held to be lawful (Roadway Package System,

1991).

However, sending representatives to union meetings, hiring a private police force, and installing

surveillance equipment represent a violation of Section 8(a)(1) (Cogburn Health Center, Inc., v. NLRB,

2006). In cases that are not so clear­cut, the board takes into account how long the employer observes

employees, the proximity of the employer to the employees, and whether any of the observations are

coercive (Intertape Polymer Corp. and United Steel, Paper & Forestry, Rubber, 2013).

Managers should not change their normal routines when union activity begins. This means that new

types or areas of surveillance should not be undertaken; nor should increased surveillance take place. If

the company has surveillance cameras located at the gate that are turned on between 3:00 a.m. and 9:00

a.m., for example, then they should continue to operate during those hours. If the cameras are pointed in

a certain direction, they should not be adjusted to better monitor employee behaviors. Employers

should also refrain from asking other employees or managers to report on the content of meetings or the

likelihood of a union vote.

In the following case a company undergoing unionization engaged in surveillance of its employees. Note

where the union activity takes place and, putting yourself in the role of management, consider how you

would respond if you were in charge of the California Acrylic business.

You Be the Judge: Videotaping Employees

The case California Acrylic Industries, Inc. 322 NLRB No. 10 (1996) raised the question of how

much surveillance an employer may use. At the hearing before the NLRB, an employee named

Camacho testified that he addressed a crowd of about 200 employees while they were having

lunch outside the employer’s facility. This was the first mass meeting of bargaining unit

employees, which the union conducted outside of the plant. Camacho said he spoke to the

employees in Spanish and English from the public sidewalk, informing them of the filing of the

election petition, of their rights under the act, and of a union meeting scheduled to be held at a

local church the next evening. He said that while he addressed the employees, two managers

walked out of the woodshop building “and they stood on the sidewalk by the place where I was

talking to the employees and they stayed there . . . until I finished” (California Acrylic Industries,

1996). According to Camacho, when he finished speaking, he walked over to the managers,

identified himself as an official of the union, said that he did not want to have any problems, and

shook their hands. The managers then responded that as long as the union stayed off company

property, there would be no problems (California Acrylic Industries, 1996).

Following this incident, the company rented video cameras to record meetings between its

employees and union representatives in front of the Pomona plant.

The company also provided a security guard with a video camera for the sole purpose of

recording the employees’ union activities. During lunch, when union representatives

spoke to the employees, the security guard pointed his video camera at the group,

thereby videotaping or creating the impression he was videotaping their activities.

(California Acrylic Industries, 1996)

Discussion Questions

1. Does the union have a legal right for speakers to address employees if the union member

is standing on public property?

2. Can the employer have the union member removed from public property if the union

member is addressing the employer’s workers standing on employer property?

3. At a minimum, what information could the managers have elicited from the union

speaker that would be beneficial to the employer?

4. If the speech by the union representative is the first time that management is aware of

union activity, what steps can it now take with regard to its employees to try and avoid

unionization at this facility?

After you have answered the discussion questions, click here to see the holding for this

case.

HOLDING: The NLRB found that the employer had rented video cameras in order to record

meetings between its employees and representatives of the union in front of the Pomona plant

and that:

the employer provided a security guard . . . who had been stationed on the grass area in front of

the woodchuck building for no conceivable purpose other than to engage in overt surveillance

of such meetings, with one of the newly rented video cameras to videotape the employees’

aforementioned union activities. Furthermore, pointing the video camera at workers meeting

in small groups who were speaking of union organizing created an impression of surveilling

protected concerted activity. (California Acrylic Industries, 1996)

4.3 Unfair Labor Practices by Employers: Regulating Solicitation,

Moving the Workplace, and Captive Audience Meetings

This section will discuss three areas that are of particular concern to managers. First, when unions want

to reach employees, they often hand out pamphlets or brochures about their organizations to employees

near or around the workplace; this is referred to as solicitation, and there are many nuanced rules

regarding when and where it can take place. Then we will look at businesses that react to unionization

by moving their plants to other countries or places without a union presence. This reaction may be

deemed an unfair labor practice if done for the wrong reasons.

Finally, we will look at captive audience meetings prior to union votes. These are meetings that

employees are required to attend to hear about the union from management’s perspective. Many

regulations also exist around this activity. Overall, these three scenarios present many challenges for

managers and are important to understand in order to avoid liability.

Regulating Solicitation

The distribution of literature to employees is a form of solicitation that is a commonplace occurrence

during a union campaign. Suppose the union would like to hold meetings and explain its position on

employment issues. In such a case the union may choose to stand outside the employer’s place of

business and hand out literature to the workers as they leave their shift.

If such leafleting is conducted by employees on the employer’s property, then the general rule is that

employers may not restrict employees’ “right to discuss self­organization among themselves unless the

employer can demonstrate that a restriction is necessary to maintain production or

discipline” (Lechmere, Inc. v. NLRB, 1992).

In the case of union officials handing out materials to workers who enter and exit the plant, as a general

rule, employers may limit who comes on their property for the purpose of distributing literature. This

means that nonemployee organizers may be prevented from coming onto a company’s property

(Lechmere, Inc. v. NLRB, 1992). The employer may also put signs on the property that say nonemployees

may not distribute union literature there.

There is an exception to this rule, however. If the union can show that employees have no access to the

union’s information other than by union representatives handing out literature at the plant, then the

union may be permitted to distribute leaflets. Therefore, the employee’s right to unionize might “in

certain limited circumstances, restrict an employer’s right to exclude nonemployee union organizers

from his property” (Lechmere, Inc. v. NLRB, 1992, at 532).

Sometimes employers allow third parties to enter their property to distribute materials to employees.

For example, an employer might allow the Girl Scouts to come into the plant and sell cookies, the Red

Cross to hold a blood drive, or the United Way to solicit contributions. Once an employer provides access

to its private property to one group but denies the same access to a union, it is a violation of Section 8(a)

(1).

Interestingly, even otherwise legal actions against employees may sometimes constitute a violation of

the NLRA. Suppose preelection activity is taking place at a company’s plant, which it strongly opposes.

The company learns that one of its employees, who is a union advocate, is also an undocumented alien.

The company reports this employee to the U.S. Immigration and Naturalization Service, knowing that he

will be deported because of his illegal immigration status. If the worker is deported, is that an unfair

labor practice under 8(a)(1)? The NLRB ruled that this action was in violation of this section because the

employer reported the employee “in retaliation for participating in union activities” (Sure­Tan, Inc. v.

NLRB, 1984).

Generally, soliciting other workers on company time and premises is protected under Section 7, which

gives to employees the right to form a union, so long as it does not interfere with the work environment.

Firing an employee for approaching fellow workers to discuss union membership on company time and

company premises is not allowed under the NLRA. Therefore, an employer may be held liable for

discharging an employee for such activity (Frazier Indus. Co. Inc. v. NLRB, 2000). Firing an employee for

asking a coworker about signing a union card while they were both at work, on the grounds that it

violates the company’s no-solicitation policy, is another example of an unfair labor practice under this

section, since it discriminates against encouraging or discouraging membership in any labor

organization (Valmont Industries, Inc. v. NLRB, 2001).

You Be the Judge: Disparate Treatment of Employees Engaged in

Union Activity

The following is based on the case Marshall Durbin Poultry Company v. National Labor Relations

Board (5th Cir. 39 F.3d 1312, 1995).

Garwood, Circuit Judge:

Chisholm, an employee “of the Company from July 1985 to July 1990, was an active Union

supporter. For six months prior to his discharge, Chisholm participated in distributing handbills

on behalf of the Union and often talked to employees about signing Union cards. Chisholm, who is

going blind, stated that over the years of his employment, he often sat in the Company break

room in the cafeteria, or in a relative’s car in the company parking lot waiting for his ride

home” (Marshall Durbin Poultry Company v. NLRB, 1995).

Shortly after Chisholm’s union activity began, a manager told him that he could no longer sit in

the company cafeteria to wait for his ride home. Chisholm testified, however, that other workers

who had finished working their shifts were allowed to remain in these areas. He was given a

formal disciplinary write­up for sitting in the cafeteria after he got off work. At a hearing before

the NLRB, a company manager admitted that he was told to “run off pro union employees from

the break room (cafeteria) after work” (Marshall Durbin Poultry Company v. NLRB, 1995).

Discussion Questions

1. Chisholm would be able to bring a lawsuit against the company on the basis of

discrimination in this case. What do you think would be the basis of his discrimination

lawsuit?

2. In terms of union activity, what did the company do wrong? If the company had wanted

to clear the cafeteria, what could they have done that would not have violated the law?

How should they have gone about doing it?

3. Do you think that the owners of this business need to train their managers about

violating labor and employment laws?

After you have answered the discussion questions, click here to see the holding for this

case.

HOLDING: The NLRB found that Chisholm’s testimony constituted “substantial evidence to

support the board’s conclusion that the company unlawfully retaliated against Chisholm,

contrary to Sections 8(a)(3) and (1), by excluding him from the company premises and giving

him a disciplinary write­up” (Marshall Durbin Poultry Company v. NLRB, 1995).

Another aspect of solicitation can involve patches, pins, or other symbols that employees wear to show

union support during an election campaign. It is illegal to force employees to remove pins, labels, hats

with patches, or other markers of union support. This holds for cases in which symbols implicitly show

support. For example, suppose employees who support the union decide to show their support by

wearing green T­shirts to work. If the employer allows all of the employees who oppose the union to

wear green T­shirts but does not allow the union employees to do so, then discrimination has occurred

along union lines. But if no employees may wear a green T­shirt, whether they are for or against the

union, then the rule is applied equally to all and is deemed nondiscriminatory. This is true for

solicitation as well. As long as the employer has a rule for on­site solicitation that is applied equally to

all, the employer will most likely not violate the act.

As with other issues regarding union activity, managers should have policies regarding pro­union

symbols or clothing that remain the same before and after union activity. If workers are allowed to wear

green T­shirts before the election, then they should be allowed to wear green T­shirts after. Likewise, if

employees wear pins or buttons with political speech on them, once the campaign begins they cannot be

told not to wear them just because they relate to union activity.

Closing a Plant, Moving a Plant, or Firing Employees to Avoid Unionization

Some employers react to a union campaign by firing organizing workers, closing a plant, or moving the

plant to a region of the country without unions or to another country altogether. For example, in 2011

airline manufacturer Boeing decided to move part of its production from Puget Sound, Washington, to

South Carolina. The union argued that the company was avoiding the union and its demands at the

Washington facility, although Boeing stated that its reasons included factors such as the international

port available and the lower cost of doing business (Jonsson, 2011).

Employers who tell employees that if they form a union the plant will shut down violate Section 8(a)(3)

of the NLRA (Healthcare Employees Union, 2006). Additionally, telling employees they will lose their jobs

due to union activity is also a violation of Sections 8(a)(1) and (3) (Nabors Alaska Drilling, Inc. v. NLRB,

1999).

Despite the law, such threats can occur during preelection activities. For example, labor expert Kate

Bronfenbrenner reports that

from 1993 to 1995, employers threatened to close the plant in 50 percent of all union

certification elections and in 52 percent of all instances where the union withdrew from its

organizing drive (“withdrawals”). In another 18 percent of the campaigns, the employer

threatened to close the plant during the first­contract campaign after the election was won.

Nearly 12 percent of employers followed through on threats made during the organizing

campaign and shut down all or part of the plant before the first contract was negotiated.

Almost 4 percent of employers closed down the plant before a second contract was reached.

(Bronfenbrenner, 1997)

Other experts allege that American employers intentionally fire those workers who are engaged in union

organizing and that these firings seriously “undermine the success” of union representation campaigns.

“The numbers of workers are surprisingly high and appear to be climbing: in the early 1980s almost 3%

of pro­union workers involved in union­election campaigns were fired illegally in connection with those

campaigns; in 2005, union organizers and activists faced a 15% to 20% chance of being fired” (Schmitt &

Zipperer, 2007).

You Be the Judge: Relocating the Dorsey Trailers Plant

In the case Dorsey Trailers v. NLRB (2000), a company was involved in searching for a new facility

in which to build its trailers. The company had received two of the largest orders in its history.

The search for the new facility began before the workers went on strike. Their strike, however,

greatly impacted the company’s ability to fill the orders, leading to a loss of business and

customers.

Before deciding to relocate the plant from Northumberland, Pennsylvania, to “Cartersville, the

company attempted to find alternative ways to fill their orders. When the company learned that

the facility in Cartersville, Georgia was available to purchase they were impressed by the fact that

it would allow them to produce more trailers because the size of the facility was 75% larger than

their current plant. Additionally, because of the increased size, they would be able to establish a

needed 500­foot long assembly line in contrast to their current assembly line of only 250 feet.

The longer assembly line would increase how fast they could produce trailers because there

would be fewer turns. Each turn slowed down production. Finally, management argued that

shipping costs would be greatly reduced by the location in Georgia because most of their

customers were located in the southeast” (Dorsey Trailers v. NLRB, 2000).

The union argued that the company was relocating the plant in order to avoid the strike at the

Pennsylvania plant. By setting up shop in Georgia, the company could fire all of the workers in

Pennsylvania, thus eliminating the union, and reestablish itself in Georgia, where there was not a

strong union presence. The company argued, however, that the move was about economics, the

better and larger plant, and cheaper shipping costs.

Discussion Questions

1. What factors in the Dorsey Trailers case could management argue were plausible reasons

for relocating the plant to another location?

2. What factors could the union argue that would be just as strong an argument?

3. What do you think the court or NLRB held in this controversy?

Watch This

To watch a discussion of captive

audience meetings, click here

(https://www.youtube.com/watch?

v=w4oDtjaM8EY) .

After you have answered the discussion questions, click here to see the holding for this

case.

HOLDING: Dorsey Trailers was successful in arguing that the reason it moved its plant was

economic and not because it opposed the unions. The factors the NLRB found relevant

included:

1. The fact that the “company searched for a facility after the strike began because it needed

to fill backlogged orders, not because of antiunion animus” (Dorsey Trailers v. NLRB, 2000).

2. “Before deciding to relocate to Georgia, the company tried to find other ways to fill its

orders.

3. It tried to use salaried workers and investigated hiring temporary help.

4. The company turned to the Georgia facility in order to restart production and to build the

trailers that the Northumberland plant was not producing.” (Dorsey Trailers v. NLRB, 2000)

5. The company found that the Cartersville location was tremendous and better suited its

needs.

6. “The long assembly line and the vast increase in the amount of space at Cartersville offered

substantial efficiency gains over the Northumberland plant” (Dorsey Trailers v. NLRB, 2000).

Holding Meetings Before an Election

Prior to an election, the employer may require that employees

attend meetings about the impact that unionizing will have on the

business. These meetings are allowed under the NLRA and are

sometimes referred to as captive audience meetings. In a

captive audience meeting, the employer will call all of the

employees to a meeting room in the plant. There a representative

of the employer will present on how voting for a union will

negatively impact the place of business.

Although these meetings allow the employer to keep employees “captive” for an undetermined amount

of time, they are permitted as long as they are not held within 24 hours of the election under the

Peerless Plywood rule (which prohibits both employers and unions from mandating meetings within

24 hours of the election). If an employer did mandate such a meeting, it would be an unfair labor

practice in violation of the NLRA (J&D Transportation Employer and Teamsters Local Union No. 469,

2010).

You Be the Judge: Mass Electronic Messages

Twenty­three hours before a union vote, an employer sent an electronic message to all 174 of its

driver employees in their trucks through a special device that was built into the dashboard of the

vehicle. The message said, “BRING IT TO AN END!” and “VOTE NO! Time to Decide Your

Future” (In re Virginia Concrete Corp., 2003). The message could not be ignored because a beeper

came on and stayed on until the driver turned it off. It was possible for the driver to delete the

7­minute message by sending a message or scrolling to another message, but by that time the

employer would have succeeded in communicating its short campaign message. There was no

opportunity for the union to send the drivers such a mass message in the 24­hour period before

the election.

Discussion Questions

1. How have the NLRA rules about contact with employees failed to keep up with

technology?

2. In your opinion, is a mass­distributed electronic communication the same as holding a

meeting? Why or why not?

After you have answered the discussion questions, click here to see the holding for this

case.

HOLDING: The legality of this action was brought before the NLRB, which held that permitting

the employer to send its uninvited mass message within the 24­hour period in this high­tech

way violated the board’s objective to “keep elections free of undue advantage for any party.”

The employer’s conduct “deprived the employees of a free and fair choice in the election, and

so the board ruled that . . . the election should be set aside and that another election should be

directed” (In re Virginia Concrete Corp., 2003).

4.4 Undue Union Interference

Not only must the employer abide by the rules set forth in the NLRA, but unions, too, cannot run

unbridled. The NLRB is on guard for evidence that a union has threatened physical or economic harm,

appealed to racial prejudice, and/or created an atmosphere of fear and coercion. If any of these are

present, the election can be voided. The entity challenging the election must show that the improprieties

substantially affected the election results (Beaird­Poulan Div. v. NLRB, 1981).

Inducements offered by the union also constitute coercion that can invalidate an election. In one case the

union offered to waive initial fees (union dues) for all employees who signed union authorization cards

before a certification election. This essentially made them union members before the vote occurred. The

court said that such an inducement interfered with employees’ statutory right to refrain from union

activities and did not support the principle of having a fair and free choice of bargaining representative,

and was therefore grounds for denying enforcement of the order to bargain with the union, which won

the election (NLRB v. Savair Mfg. Co., 1973).

In another case of interference, a pamphlet circulated by the union had misstatements about benefits

and retirement, which were of vital concern to employees (NLRB v. Bonnie Enterprises, 1965). The

record in this case contains indisputable “evidence that cost of living adjustments were a major issue in

the misrepresentation campaign, that the union substantially misrepresented cost of living provisions in

another collective bargaining agreement between the union and the employer, and that the

misrepresentations were made the night before the election in a way that made it virtually impossible

for the employer to answer effectively. The record also discloses clearly coercive conduct on the part of

union supporters. At a minimum, three employees were directly threatened and a fourth was

assaulted” (NLRB v. Van Gorp Corp., 1980).

Like employers, unions are subject to federal legislation regarding their activities and behavior in the

workplace. Unions may not threaten or coerce employees into joining their organization, nor may

unions misrepresent information in a manner that denies the employer the chance to address and

correct any errors.

4.5 The Use of Labor Relations Consultants

Employers faced with the prospect of unionization often hire labor relations consultants to assist them

with the election process. Labor consultants are often used in two ways: First, labor attorneys who

specialize in defeating efforts to unionize are hired to guide the employer through the process of

opposing the unionization attempts; and second, consultants meet with workers in captive audience

meetings and explain the downside of unionizing and pre­sent the company’s positive aspects free of the

union’s influence.

Statistically, consultants are very successful at defeating unions. One reason is that employers have the

authority to make employees go to a room and listen to presentations about unions’ negative aspects. On

the other hand, the union cannot force workers to listen to its message, making this an uneven playing

field. Research shows that when consultants are hired, the chances of union success decrease. For

example, labor expert Kate Bronfenbrenner found that

more than 75% of employers studied engaged in aggressive anti­union tactics, including some

combination of discharge for union activity, captive audience meetings, supervisor one­on­

ones, promises of improvements, anti­union committees, leaflets, and letters. Most of these

tactics were associated with win rates 10–20% lower than in units where they were not

utilized. (Bronfenbrenner & Juravich, 1994)

Because the industry is so lucrative, a law passed by the U.S. Department of Labor requires that

employers disclose the agreement between themselves and consultants, thus making the use of

consultants a matter of public record. Under the Labor Management Reporting and Disclosure Act

Section 203(a), an employer must report “expenditures and activities, including any agreement or

arrangement with a third­party consultant, to persuade employees as to their collective bargaining

rights or to obtain certain information concerning the activities of employees or a labor organization in

connection with a labor dispute involving the employer” (U.S. Department of Labor, 2014). Similarly,

labor consultants must file forms with the government showing the monies they received for their work.

These forms are public and can be accessed at the Labor Department website (U.S. Department of Labor,

2014).

A recent article concerning Bed Bath & Beyond claims that the company spent more than $854,000 to

defeat a union campaign (6412093, 2014). The only reason this information is now public is due to the

law making companies file the LM­10 form, which shows how much they spent on labor consultants. To

see the actual form filed with payments, click here (http://kcerds.dol­esa.gov/query/orgReport.do?

rptId=529329&rptForm=LM10Form) .

Summary & Resources

Summary of Chapter Concepts

• The National Labor Relations Act sets out a step­by­step process for how a union is to be formed

and recognized.

• The first step in union recognition is to identify which workers are employees, which are those

employees who are covered by the NLRA and are not supervisors, independent contractors,

agricultural workers, or domestic servants.

• Workers who wish to unionize must form a bargaining unit, which must share a community of

interest. The community of interest test involves factors such as a bargaining history,

operational integration, geographic proximity, common supervision, similarity in job function,

and degree of employee interchange.

• Once the bargaining unit is established, workers sign authorization cards to indicate their

interest in unionizing. At least 30% of the employees must sign the cards in order to move

forward with union formation. Authorization cards are submitted to the NLRB, which can then

certify the bargaining unit.

• A petition is next filed with the NLRB that sets forth information about the proposed bargaining

unit and asks for recognition. The NLRB investigates, and if all is in order, an election to

determine if workers wish to be represented by a union in their workplace can take place.

• The NLRB supervises the election to determine whether the workers wish to be represented by

a union in their workplace; a 50% majority of those voting is needed for the union to become the

employees’ representative.

• Once the union is in place, the employer must recognize it and bargain with it in good faith.

• At workplaces that do not comply with the tenets of the NLRB, a court can order a Gissel

bargaining order, which requires the employer to bargain with the union even though the union

has not been elected to represent the employees. This is because the employer made it

impossible to hold a fair election.

• There are numerous unfair labor practices that employers can commit during the union process.

These include bestowing or conferring benefits on employees, soliciting grievances, engaging in

surveillance of employees, interrogating employees, making dire statements about the

company’s fate if a union is elected, regulating solicitation by employees unless it is necessary

for production or discipline, moving or closing a plant, and firing workers involved with a union.

• The captive audience rule states that neither unions nor employers may hold a mandatory

meeting of employees within 24 hours of a union election.

• Under the NLRA, unions are also regulated in how they deal with employees before an election.

Unions may not coerce employees into voting for a union by making threats, promising benefits,

making misstatements about retirement benefits, and/or engaging in electioneering the day of

voting.

• Labor relations consultants are experts who have dealt with labor campaigns and know how to

legally counter statements by unions that may be untrue.

Chapter 4 Review Quiz

Chapter 4 Flashcards

Choose a Study Mode 

Key Terms

agricultural laborers

Farmers, including dairy farmers and those who raise livestock.

authorization card

A card signed by employees to indicate their willingness to join a union and used to determine the

percentage of workers who will support unionization.

captive audience meetings

Meetings held before a union election and made mandatory by employers to present materials about

why the union will be bad for the company.

community of interest test

The shared commonalities of a group of workers.

consent election

When 50% or more of workers sign authorization cards and management agrees to union formation.

employer unit

A community of interest based on all of the employees who work for the same employer.

Excelsior list

The list of all employees eligible to vote in the election.

Gissel bargaining order

An order mandating that the employer enter into a collective bargaining agreement with the union

even though the union has not won an election.

micro units

Groupings of workers that are much smaller than the traditional bargaining unit.

Milchem rule

The rule that elections will be overturned if representatives of any party to the election engage in

“prolonged” conversations with voters waiting to cast their ballots, regardless of the content of the

conversation.

no-solicitation policy

A rule set forth by an employer that prohibits the distribution of union pamphlets or recruiting to join

a union.

Peerless Plywood rule

The rule that states neither unions nor employers may hold a meeting within 24 hours of an election.

petitioning process

The process whereby employees request that the NLRB oversee a union election.

plant unit

A community of interest based on working in the same geographic place.

solicitation

The distribution of information to fellow employees for the purpose of getting them to join a union.

solicitation of grievances

The process whereby an employer asks employees about changes they would like to see made at the

workplace in anticipation of a union vote.

supervisors

Workers who have authority to hire, transfer, suspend, lay off, recall, promote, discharge, assign,

reward, or discipline other employees.

voluntary recognition

The process whereby an employer willingly recognizes a union without a formal election.

Critical Thinking Questions

1. Why does federal labor law go to such extremes to protect the process of union elections? Do

you think that the law is too detailed and comprehensive, or do you think that the legislation is

necessary? Explain your answer.

2. The NLRB attends every election and supervises the voting. Do you think this is necessary to

obtain a fair result? Why or why not?

3. Of all the petitions filed with the NLRB, what percentage result in union formation? How do you

explain this number?

4. Employers are not allowed to coerce employees who are about to vote in a union election, which

includes offering them improved benefits. Do you agree with this rule, or would you change it to

allow employers to make such improvements to their employees’ benefits packages? How could

allowing such a policy decrease labor strife?

5. Suppose a hotel’s employee handbook contains various rules regarding employee behavior. One

clause in the handbook states it is unacceptable to make false, vicious, profane, or malicious

statements toward or concerning the hotel or any of its employees. An employee is overheard

complaining to another employee about his pay and hours while employed at the hotel. As a

result of his statements, he is fired. He then brings a complaint to the NLRB. What do you think

would protect the employee? What do you think would be the result of this action? Explain your

reasoning.

Research Project

1. Read the following article about Boeing’s decision to move its plant from the state of Washington

to South Carolina, a state that is known for its antiunion positions:

http://www.nytimes.com/2011/04/21/business/21boeing.html?_r=0

(http://www.nytimes.com/2011/04/21/business/21boeing.html?_r=0) . After reading the article, take

the side of management or labor and argue either for the right of Boeing to move the plant or for

the right of the NLRB to find that such a move violates the act.