While the National Labor Relations Act (NLRA) doesn’t change year over year, decisions by the National Labor Relations Board (NLRB) alter interpretation of the NLRA on a regular basis. For example, a 2007 NLRB decision held that employers do not have to allow employee use of company email for union organizing. This position was reversed in 2015, when the NLRB decided that employees can use company email for this purpose, as long as the messages are created during non-work time.
Staying current with labor relations case law can be a challenge for a company’s leaders, particularly when they are focused on core business functions. Unfortunately, getting caught off guard can have far-reaching consequences.
A union’s demand for recognition is a common situation that gets out of hand quickly as a brief meeting between union leaders and business leaders turns into voluntary recognition of union representation. Without appropriate training, businesses that prefer to stay union-free can suddenly find a union in place, without an election ever being held.
Union Card Signing and Demand for Recognition
When unions determine that a bargaining unit is interested in organizing, they begin their campaign by requesting that employees sign union authorization cards. Once 30 percent of the unit employees have signed cards, the union can file a representation petition with the regional NLRB office. This prompts the NLRB to arrange for a secret ballot election.
There is, however, another method of gaining recognition without going through the election process. Union representatives that have collected signed cards from a majority of the bargaining unit’s members can ask business leadership to voluntarily recognize the union. This request is often referred to as a "demand for recognition," or "card check." Of course, those experienced in union organizing are experts at building a compelling case, using arguments that include the obvious support for union representation among employees. Mishandling of this meeting can lead to unintended results — particularly in companies focused on union avoidance.
The 3 Most Common Missteps in Demand for Recognition
When faced with a demand for recognition, managers often engage in at least a brief discussion to show that they are listening to employee concerns. Unfortunately, there are a number of traps that come up with these conversations — and experienced union leaders are prepared to exploit them all.
First, union representatives may offer managers the opportunity to review the signed cards. Looking at or handling the cards in any way is a mistake. There have been situations in which the NLRB decided that the very act of examining the cards was in itself recognition of the union’s legitimacy.
Second, managers may be unclear about their unwillingness to recognize the union. It is important to make a firm, unambiguous statement: This company does not recognize the union. Please submit appropriate documentation to the NLRB and request a secret ballot election. This company will honor the results of a secret ballot election only. Anything less than this is subject to the NLRB’s interpretation, and that interpretation could be in favor of the union.
Third, do not engage in any conversation remotely related to terms and conditions of employment. Discussion of matters that could be covered in a collective bargaining agreement could be regarded as actual negotiation — and subsequently, de facto recognition of the union’s right to negotiate for the bargaining unit.
Laws and policies pertaining to union organizing are complex, and there are frequent changes in how a specific facet of the law is applied. Business leaders committed to union avoidance are well-advised to consult with a specialist in employment and labor law.