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Positive Management Leadership, Inc. |
info@positivemanagementleadership.com tel 864.229.1489 fax 864.229.2367 |
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Ask Jimmie Stewart . . .
Q. There are employees volunteering that a union is holding meetings and trying to get an organizing drive started. Should we wait until we hear directly from the union or the National Labor Relations Board (NLRB) before we take any action?
A. No. You will lose valuable time if you do not address the issue right away. Unions like to surprise an employer after the organizing drive is well under way. They use "stealth" campaigns to build support before they ever contact the NLRB or management. Time is of the essence. The NLRB now follows a rule that elections must be held within 42 days after the petition is filed. Unions are very smart at using weekends and holidays when filing the petition to reduce the real campaign time even further. It is unwise, however, to act without evaluating "where you are" and what type of response or action is appropriate. If the activity looks serious, one of the first things management should do is use its free speech right to advise employees about the serious legal impact of signing union cards. If the union is stopped short of getting 30% of the eligible voters signed up on union authorization cards, there will never be an election.
Past Q & A with Jimmie Stewart:
Q. At my company, we have "regular" employees on our own payroll and contract employees who work for a third party. The contract employees work along side our employees and are supervised by our supervisors. If there were a union election at our facility, would the contract employees vote in the same unit as our regular employees?
A. No. Not unless your company and the contract company consented. This has generally been the rule over the years. In 2000, the National Labor Relations Board broke with traditional precedent and ruled that the employees of both employers could be included in the same voting unit without the consent of those employers. In 2004, the NLRB reversed the 2000 decision. Now, the Board will follow the traditional rule that regular and third party contract employees (even if the contract employees are considered jointly employed) do not belong in the same voting unit without the consent of both employers.
Q. We are a non-union company. We had an incident that could result in discipline. When we called the employee we suspected in for an interview, she demanded a witness. Is it an unfair labor practice to refuse the request for a witness?
A. No. This is a confusing area of the law because the National Labor Relations Board (NLRB) has flip-flopped on the rule in recent years. In a unionized environment, a union member has a right to have the union steward present at an interview that could lead to discipline. It is called a "Weingarten right", named after the case that first confirmed this right. Since 1935 when the National Labor Relations Act was enacted, the right to have a witness in an interview that could lead to discipline has not existed in a non-union environment except for two brief periods (one in the mid 1980's and one from 2000 to 2004). In 2004, the NLRB returned to the traditional rule that the right to a witness does not exist in the non-union setting. Therefore, it would not be an unfair labor practice to refuse a witness.
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