Unions Seek Minority-Union Bargaining Rights From NLRB

In an effort to enhance their ability to effectively organize employees, several unions recently filed a petition with the NLRB seeking the ability to collectively bargain, even if they do not have support of a majority of the workforce. This effort at achieving minority-union bargaining represents a major new initiative by the unions that has far reaching implications for employers in all industries.

Under current law, unions may not represent a unit of employees unless a majority of the employees support the union. Indeed, majority support is a pillar of labor law. It requires unions to actively recruit members and obtain authorization cards from at least 30% of the workforce. Once the union has obtained the appropriate number of authorization cards it may file a petition with the NLRB seeking a secret ballot election requiring an up or down vote on the question of union representation. The ensuing campaign gives both the union and the employer the opportunity to share its opinions about what is best for the employees.

This framework has been the primary method of union organizing for decades. But union membership has severely declined from its height 50 years ago and election campaigns typically end in defeat for unions. Consequently, in recent years unions have explored alternative strategies to circumvent the NLRB process. For example, unions have put political and economic pressure on employers in an effort to convince them to sign neutrality agreements. Such agreements require employers to permit union access to its premises, refrain from voicing its opinions about union representation of its employees, and submit to a card check procedure whereby the employer will voluntarily recognize the union if a certain number of authorization cards are signed.

Now seeking yet another, more convenient and less burdensome, method of organizing, unions have seized on an antiquated portion of the National Labor Relations Act in an effort to permit employees to organize even if they do not have majority support from the workforce. According to Charles Morris, the chief benefactor of the strategy and professor emeritus at Southern Methodist University's School of Law, minority-union bargaining was commonplace during the New Deal. However, unions abandoned the practice because in the early days of the NLRB they could grow faster by winning majority recognition (at that time unions won a majority of elections).

Morris contends that the pro-business composition of the NLRB requires unions to return to the historical practices of minority-bargaining and rediscover the original intention of the law. He argues that it is permitted by Section 7 of the NLRA, which allows employees to fight to protect themselves as long as they are taking collective action about wages, hours and working conditions.

The test case for minority-representation was at Dick's Sporting Goods. There, a union helped employees form an employee council that charged $4 in monthly dues, in return for workers counseling, training and other benefits, plus a promise to bargain on their behalf. Dick's management refused to recognize the council, because it represented only a minority of employees. The union filed an unfair labor practice claiming their entitlement to collectively bargain, but lost because they did not have majority support.

Minority-bargaining, if permitted, presents a host of problems for employers. First, it would be a logistical and financial nightmare as employers would be confronted with the possibility of bargaining with multiple minority unions for one group of employees. Second, picketing and unfair labor practice charges will increase as employers will be confronted with many additional attempts at organizing, who may or may not be working in conjunction with one another. Third, additional unions will lead to larger numbers of burdensome request for information, additional access to facilities, and more restrictions on management's ability to run its operations. Finally, if bargaining unit determinations are no longer necessary it could spawn non-traditional labor organizations grouped by common interests and skills, such as professional and highly skilled technical employees.

It is unlikely minority bargaining will become an accepted form of organizing. Nonetheless, there are several important actions employers can take to protect themselves. As the old saying goes, the best defense is a good offense. Act first to ensure that employees remain loyal to management and would not want a union to represent them. For example, cultivate relationships between managers and employees and improve the lines of communication. Ensure that employees feel respected in the workforce and have access to their managers. Furthermore, identify and address key employee concerns and provide appropriate feedback to explain how the concerns will be addressed, or why they cannot be addressed. Finally, create a pro-employee environment with the establishment of employee of the month awards, monthly birthday parties, and other forms of positive reinforcement.

For more information regarding minority bargaining and the organizing process, please contact Evan Rosen (404.869.5325 or [email protected]), or Paul Rosenberg (212.351.4564 or [email protected]).