Unions, NLRB and your business
The National Labor Relations Board has been busy lately.
For those of you unfamiliar with the NLRB, the board is responsible for
enforcing the nation
’s labor laws relating to union activity.
 | ||
If you were to fire a pro-union employee during an organizing campaign, unfair
labor practice charges could be filed with the NLRB.
The NLRB does not just prevent discrimination based on union activity. It also
protects employees engaged in what is called
“concerted activity.”
For example, if three employees complain about working conditions, even with no
union in sight, the complaints are considered concerted activity and therefore
protected.
Federal law allows non-supervisory employees to get together to discuss working
conditions, including wages and benefits, without risk of retaliation from
their employers.
For this reason, employees cannot be prohibited from discussing their wages with
each other
— again, even in a non-union environment — under the National Labor Relations Act.
The NLRB recently decided a case where female employees complained about
maternity benefits, which is usually the province of the EEOC, and the employer
retaliated against them.
The Board ruled that the complaints were protected concerted activity, and the
employer was found to have committed unfair labor practices by withholding a
planned wage increase and eliminating a short-term disability plan.
It is important for small employers to understand that the National Labor
Relations Act applies to them even in instances where the anti-discrimination
laws do not.
For example, the Civil Rights Act of 1964 applies to companies with 15 or more
employees. The National Labor Relations Act, however, applies to most companies
that purchase or sell goods and services across state lines in amounts
exceeding $50,000 annually.
Thus, firing employees for complaining about sexual discrimination may be an
unfair labor practice, even where it is not unlawful sex discrimination.
The NLRB also decided a case recently changing the rules on hiring
discrimination.
Many unions in the last couple of decades have adopted a practice called “salting.” Unions target non-union companies, then send union members or union officials
(called
“salts”) to apply for jobs.
If the “salts” are hired, they try to unionize the employer from the inside.
If the “salts” are not hired, the union files charges under the National Labor Relations Act
for union discrimination. The idea is to either unionize the company or punish
it with litigation.
It was clear to everyone involved in these salting cases that these individuals
applying for jobs really did not want to get hired. Rather, they wanted to have
a reason to file unfair labor practice charges for back pay.
The NLRB, after many years of decisions that made little sense, decided that in
the future, the government must prove that the
“salts” were serious job applicants. In the past, it was the company’s burden to show that the employees did not really want to get hired.
Employers who are not unionized should start paying closer attention to the
rules and regulations under the National Labor Relations Act. Most, if not all,
of the Democratic candidates for president have vowed to make it easier for
unions to organize companies if elected.
The House of Representatives passed legislation last year that would have
effectively abolished secret ballot elections; the Senate blocked the bill, for
now.
Of course, there is no substitute for being a good, fair employer. If you are
non-union and want to remain non-union, you need to treat your employees with
the proper respect and pay them competitive wages.
I have known many union organizers, and each one has said that it is the
employer, not the union, that convinces an employee to seek union assistance.
Unions rarely try to organize a company unless there is already some interest in
union representation. Keep that in mind.
