UNIONIZING YOUR SMALL BUSINESS

prepared by:  Independent Business Association 3/04

 

What do you do when a union organizer wants to meet with you, your employees or is already meeting with your employees?

 

That’s a questions most small business owners can’t answer correctly.  Answer the wrong way or do the wrong thing can lead to big legal problems for you, likely loss of your rights and your business becoming a union shop.

 

IMPORTANT NOTICE:  The following information is NOT legal advice and should not be relied on as such.  It is being provided to you in a summary fashion to alert you to some but not all issues that may be involved an effort to unionize a small business.  The reader is advised to contact a qualified attorney to advise you on any issues involved with unionizing a small business.

 

The Basics

Workers, employers and unions are governed under the National Labor Relations Act with respect to unionizing a small business.  These are very complex laws.  The administration of these laws as well as disputes involving these laws is handled by the National Labor Relations Board.

 

Are Small Businesses Covered By These Laws?

      In almost all cases, yes they are.  The laws defining the size of businesses covered by these laws have not changed since the 1950s. As a result, there are very few companies that are not covered by them. For example, to be EXEMPT, a wholesale store would have to have annual sales below $50,000; a retail store, below $500,000; and a law firm, below $200,000.  Plus, if a business is involved in interstate commerce, meaning buying or selling goods or services that cross state lines, the business is covered by these laws.

 

The Unionizing Process

      The unionizing process generally involves the employees of a business expressing interest in being represented by a union to collectively bargain with the employer for wages, hours and working conditions.  This may occur because the employees approached a union, a union approached the employees, or a “salt” was hired who works with the union to unionize a business.  Usually, the showing of interest is done by employees signing cards expressing their interest for a “representation election” which is a secret election overseen by the National Labor Relations Board.  If 30% of the employees sign the cards, an election will be held.  If the majority of employees vote to be represented by a union, the employer is obligated to negotiate with the union in good faith.

 

Common Errors By Employers

      Following is a list of common errors made by small employers faced with unionizing efforts.     NOTE:  This is NOT legal advice, it is not a complete list nor does it provide all of the necessary details to protect the rights of a small employer.  The reader is advised to contact a qualified attorney to advise him/her on the correct actions to take for the situation involved.

 

¨ Prohibit Soliciting At Your Business  You should have a written “non-solicitation” policy in your “employee policy guide” that clearly states that no solicitation will be allowed when employees are working and not in work areas.  You must enforce this to maintain its validity.  There are a number of important details here that you must comply with and you are advised to consult with a qualified attorney for the details that apply to your business. For example, you cannot prohibit employees from meeting with union representatives during lunch, breaks or other times they are not working for you.  CLICK HERE for a sample Non-Solicitation Policy.

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¨ Inadvertent Voluntary Recognition  One of the most common tactics used by a labor union is to present the “cards” signed by the employees of the firm asking for a union representation election.  If the employer looks at the cards and the cards have been signed by a majority of the firm’s workers, the employer may well be obligated to bargain in good faith with the union.  If confronted with such a situation, IBA strongly advises a small employer to NOT take or look at the cards but instead contact a qualified attorney immediately for advice on what to do.  If you look at the cards and a majority of the employees have signed cards, you may lose your right to a secret election and the employer and workers loose the opportunity to present and consider the appropriate issues prior to the union representation election.  Refusing to bargain in good faith after an “inadvertent voluntary recognition” is an unfair labor practice and can result in serious legal problems with the NLRB.

 

¨ Do Not Interfere With Employee’s Rights or Coerce Your Employees  Following are several examples of common violations small employers make.  There are others and you must consult with a qualified attorney to protect your rights.  Violating any of these provisions is an unfair labor practice and can result in serious legal problems with the NLRB and a union forcing you to unionize: 

·  Threatening employees with loss of jobs or benefits if they should join or vote for a union.

·  Threatening to close down the plant if a union should be organized in it.

·  Questioning employees about their union activities or membership in such circumstances as will tend to restrain or coerce the employees.

·  Spying on union gatherings, or pretending to spy.

·  Granting wage increases deliberately timed to discourage employees from forming or joining a union.

 

¨ Discriminating Against Employees Supporting Unionization  Following are several examples of common violations small employers make.  There are others and you must consult with a qualified attorney to protect your rights.  Violating any of these provisions is an unfair labor practice and can result in serious legal problems with the NLRB and a union forcing you to unionize:   

·  Discharging employees because they urged other employees to join a union.

·  Refusing to reinstate employees when jobs they are qualified for are open because they took part in a union's lawful strike.

·  Granting of "superseniority" to those hired to replace employees engaged in a lawful strike.

·  Demoting employees because they circulated a union petition among other employees asking the employer for an increase in pay.

·  Discontinuing an operation at one plant and discharging the employees involved followed by opening the same operation at another plant with new employees because the employees at the first plant joined a union.

·   Refusing to hire qualified applicants for jobs because they belong to a union. It would also be a violation if the qualified applicants were refused employment because they did not belong to a union, or because they belonged to one union rather than another.

·  Refusing to reinstate employees when jobs they are otherwise qualified for are open because they filed charges with the NLRB claiming their layoffs were based on union activity.

·  Demoting employees because they testified at an NLRB hearing.