Fighting back

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Even the hint of an organizing effort in your business can send a chill down your spine. The thought of employees establishing a union in your company isn’t usually a pleasant one, but if the movement starts, there are things you can legally do to stop it.

“The employer has the right and the obligation to make its case as to why the employees don’t need an intermediary between employees and the employer,” says Larry Lorber, partner in the Washington, D.C., office of law firm Proskauer Rose. “The employer needs to make it clear that there is an open door, that the employees have access to management and that management is aware of their needs. The employer will also have to make decisions quickly and be flexible.”

What the employer can’t do is threaten. You can’t threaten that a union vote will close the business, and you can’t threaten your employees, which includes conducting surveillance of them.

The employer cannot taint the election process,” says Lorber. “If an employer says it doesn’t have the money to pay for increases and stay competitive, it is opening itself up to having its books checked. The business also cannot institute a pay increase during an election campaign. An election campaign effectively freezes the status quo.

“If you did implement a pay increase, you would have to show that the increase was preplanned.”

You have an advantage in that you have access to the employees on your jobsite; the union does not. You can call your employees together and make your pitch. The union is entitled to a list of the names and addresses of all your employees so it can contact them outside of work. It can also set up informational pickets outside the workplace, but cannot block entrances and use other tactics it might during a strike.

“The employer controls the four walls of the facility,” says Lorber. “They control who gets in, and that means they don’t have to let union organizers in.”

The parking lot is a gray area that the courts have gone back and forth on, but unions usually get access to this area. Employers with security cameras on these lots must make sure they are not using that information to determine who is taking information and who isn’t.

Employees also cannot put up posters or other pro-union information, but can wear buttons to show their support.

“Organizing is a protected activity, but employees don’t have the right to leave their job to organize,” says Lorber, who served as Deputy Assistant Secretary of Labor under President Ford. “They can’t have rallies in the workplace. Organizers have no right not to do their jobs. They are not being paid to organize.”

A union will issue cards for employees to sign that signify their interest in organizing. All it needs is 30 percent of employees in favor to trigger an election, but unions usually won’t bother unless they’re sure they have 50 percent or more. Elections cost too much time and money to bother with less than that.

If they lose, they don’t get another chance for one year.

“If the union doesn’t think it has a fighting chance, it will not file the petition,” says Lorber.

Once the cards are filed, there is a hearing to determine who should be represented by the union and who shouldn’t. All the union needs is a majority of any unit to get everyone in that unit.

Six to 10 weeks after the filing, an election is conducted by the National Labor Relations Board. A representative from both the union and the employer will identify voters and issue any challenges. Eligible voters are determined by the employee roster at the time of the filing — even if some of those employees have left the company in the meantime.

The votes are counted immediately.

“Eventually the election will be certified,” says Lorber. “If the union wins, the employer will now have to negotiate the first contract. This can take an incredibly long time, and there is no guarantee the process will work itself to a conclusion.”

After a year, the same rules apply to decertify the union. A 30 percent show of interest for decertification is enough to trigger another election.

“The rules for these processes are technical,” says Lorber. “What you don’t want to do as an employer is cross the line, even if you won the election. If you commit an unfair labor practice, then a new election will be held. You will also have to post notice that you violated the law.

“The rules are such that an employer should be guided by professional advice. The law changes fairly frequently, and it’s important that an employer be advised of what the current state of the law is.

“Whatever you do, don’t wait until the petition is filed before reacting,” says Lorber. “If you wait that long, you’re dead.”