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Unionizing campaign as October 27 , 2006 Excerpted from Michigan Employment Law Letter, written by attorneys at the law firm Vercruysse Murray & Calzone, P.C. by Robert Vercruysse and Gary Fealk Last year, disagreements about organizing issues led the International Brotherhood of Teamsters, the Service Employees International Union, and the United Food and Commercial Workers to split from the AFL-CIO, the biggest rift that organized labor has seen in 70 years. There's no doubt, however, that unions are making organizing a big priority in an attempt to stem the losses in union membership during the past 20 years. For example, it recently was reported that at the 2006 United Auto Workers' Constitutional Convention, the union authorized $60 million in organizational spending during the next four years. Shift in strategy Unions historically have been reactive in nature, waiting for disgruntled employees to call them. Then the union aggressively tries to convince workers at that facility to unionize with the help of the employees who called it in the first place. Unions, however, realize that their biggest obstacle in organizing workers is employer opposition. When employers, within the limits of lawful employer free speech, point out to employees the disadvantages of unions, the chances of one being certified are greatly lessened. Now, unions have decided that it's in their best interest to skip the whole National Labor Relations Board (NLRB) election process. It's hard enough for them to get a majority of employees to sign union authorization cards. By going through an NLRB election, they risk losing employees' support, especially when an employer expresses opposition. As a result, more and more unions are focusing their efforts on convincing management to remain "neutral" on the issue of unionization and to agree to recognize the union based on a review of union authorization cards. Why do employers agree to neutrality and card checks? Employers agree to neutrality agreements for a variety of reasons. Some employers fear economic losses associated with labor disputes, such as work stoppages and interruption in production. Some employers feel pressure from a large customer that is organized. Unions also use the threat of picketing and hand billing to discourage customers from doing business with unorganized employers. They may take other measures to stir up community support so employers in the area will feel pressured not to oppose them. They may file charges of safety violations. They may use political pressure by threatening to use their influence with legislators to attempt to defeat or advance legislation that the company supports depending on whether they agree to a neutrality/card check agreement. Other employers agree to neutrality agreements to obtain seed money from the union or to garner community goodwill. Dana/Metaldyne The Dana/Metaldyne cases are currently pending before the NLRB. The main issue in those cases is whether a union that is recognized because of a neutrality agreement/card check procedure is entitled to the same one-year ban against decertification elections (i.e., elections to remove the union) as is a union that won an election. Unions are fearful that the NLRB won't apply the ban to recognition by neutrality/card check. Their fear is well founded. Employees who didn't have an opportunity to vote on the union in the first place and who oppose the union may well file decertification petitions if they are permitted to do so. Unions often pressure employees into signing authorization cards. Some employees who may be undecided about the union think the card will be used to get an election. Often, that's because that is what the union told them. They are then shocked when the union is recognized because it has obtained signed cards from a majority of employees and the employer confirms the signatures. Unions also may make wild promises about what they're going to do for employees, and without the benefit of an employer's free speech, employees sign cards without realizing the full implications of their actions or the true nature of the bargaining process. They don't realize that employers aren't compelled to agree to anything demanded by the union. Some employees sign cards simply because they feel pestered by union supporters and want them off their backs, figuring that they can vote against the union in the secret-ballot election. Signing a neutrality/card check agreement is clearly an open invitation to be organized. The union knows it has eliminated a big obstacle and will spend lots of time and money attempting to get cards signed. If you sign such an agreement, you will likely end up with a unionized workforce sooner or later, regardless of whether the majority of your employees really want a union. Bottom line Neutrality agreements shouldn't be entered into lightly. Before entering one, make sure you understand what the agreement means and what the implications of a unionized workforce will mean for your business. Even in the absence of a neutrality agreement, employers shouldn't review recognition cards presented by the union because confirming the signatures will mean a union without an election. If you're faced with an organizing campaign and want to exercise your right to lawfully oppose the union, make sure you're familiar with what is permissible free speech and what types of statements and conduct could result in unfair labor practice charges being filed. Copyright 2006 M. Lee Smith Publishers LLC. This article is an excerpt from MICHIGAN EMPLOYMENT LAW LETTER . MICHIGAN EMPLOYMENT LAW LETTER is intended to provide information but not provide legal advice regarding any particular situation. The information in this Law Letter is to make you aware of the implications of several contemporary problems. This Law Letter is not intended to be, and should not be regarded as, a legal opinion or legal advice. It is simply not possible or prudent to offer legal advice or a legal opinion without a prior thorough investigation and analysis of the facts attendant to any specific situation. Additional resources on HRhero.com Subscribers Area Resources (available to Employment Law Letter subscribers)
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