By: James B. Sherman, Esq.
The National Labor Relations Board’s (NLRB) Minneapolis Regional Office recently sued an employer in federal district court in Minnesota, seeking to force an employer to recognize and bargain with a union that had lost an election among its employees. The court denied the NLRB’s request for injunctive relief, but the case holds important lessons for employers. The first lesson is that employers can be saddled with a union in certain circumstances even where no election has taken place, or where the union has actually lost an election. Another lesson is that a more aggressive NLRB (and regional office #18 in Minnesota) will not hesitate to sue in court if it determines an election was tainted by “unfair labor practices.” A more subtle but perhaps more important lesson is that employee “authorization cards” solicited by unions are legally significant and binding in the eyes of the NLRB, as the facts of this particular case clearly demonstrate.
Usually the only way that an employer becomes obligated to recognize and bargain with a union is if a majority of the employees elect that union as their exclusive bargaining representative in an election conducted by the NLRB. While the NLRB’s procedures changed drastically as of April 14, 2015 with the implementation of its highly controversial new so-called “Ambush Election Rules,” the process continues to begin with union organizers or supporters soliciting support from employees in the form of a signed authorization card. These cards vary somewhat depending on the union, but they generally state in writing that the signing employee hereby “authorizes,” “selects,” or otherwise “designates” a particular union to act as her or his “exclusive bargaining representative with respect to wages, hours and other terms and conditions of employment.”
Despite what clearly is very legal and binding language, employees are often told to sign union authorization cards purely to allow an election to take place; in other words, union advocates frequently tell employees the cards are meaningless and serve only to allow the NLRB to conduct an election, where employees are then free to vote as they choose. While a pitch for “Democracy” may sound appealing, in truth (and not surprisingly) the NLRB interprets signed authorization cards to mean what they say – that the person who signed the card actually designates the union to act as her or his exclusive bargaining representative, for all terms and conditions of employment!
The case, Osthus v. A.S.V., Inc., involved an election which the employer won by a majority vote of 26-15. However, the union alleged that the vote was tainted by a number of allegedly very egregious labor law violations. Based on these allegations, coupled with the fact that a majority of employees had signed union authorization cards well prior to the election, the NLRB’s Regional Director in Minneapolis sued in federal court to order the employer to recognize the union.
In the week leading up to the election, several members of management allegedly made comments suggesting that if the employees chose to unionize, production would shift from their location to a different, non-unionized location. Prior to these statements, a majority of the bargaining unit signed authorization cards. However, after the comments were allegedly made, the employees voted down the union by a 26-15 vote. The NLRB used this as evidence of a sharp decline in support for the union after the employer allegedly made unlawful comments. However, authorization cards do not necessarily show support for a union. When soliciting authorization cards, unions will frequently tell employees that the cards will only be used to get an election, and at that time, the employees will vote whether or not they want the union. However, this case highlights how the cards can be used in other ways—in this case the NLRB used the cards as evidence that at one time, the union had the support of the majority of the bargaining unit employees, and tried to force the employer to bargain with the union on this basis.
Many employers are unprepared when faced with a union organizing drive, and find themselves in trouble after saying something that is construed as an improper threat, promise, or interrogation. Employers should have a plan in place so they are trained in what they can and cannot say or do to oppose union organizing.
For help in responding to a current union organizing campaign, or to be proactive in case of any future organizing, contact Jim Sherman at (952) 746-1700 or by email at email@example.com.