May 2015
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 jasherman@wesselssherman.com.
