When A Union Demands Recognition

In the early stage of a union drive, the wrong move on the part of management can lead to inadvertent unionization of the company.

Tweet

The president of a small nonunion manufacturing company in Pennsylvania faced a problem: A union organizer was in his office demanding that the company recognize the union. To prove that a majority of the company's workers supported the union, the organizer offered a stack of authorization cards. After carefully examining them, the president conceded that most employees had signed a card and he agreed to meet union representatives in a few days to negotiate a contract. Much to his chagrin, the company's president later learned that he had inadvertently unionized his company.

Under federal law an employer must recognize a union chosen by a majority of employees in a bargaining unit. That is, the employer must acknowledge that the union is the exclusive bargaining agent for all employees who will be covered by the collective bargaining agreement and who are eligible to vote on union representation. Ordinarily, the employer is not required to recognize the union until it has won a secret-ballot election conducted by the National Labor Relations Board. But the company may, if it wishes, extend recognition voluntarily in response to a demand by a union supported by a majority of the employees.

Even though union demands for recognition occur almost daily throughout the country, many executives don't know how to handle them. Unfamiliar with their rights and duties under the National Labor Relations Act, they nevertheless must cope with the situation as best they can. All too frequently they, like the Pennsylvania manufacturer, wind up installing the union as their employees' bargaining agent despite the company's desire to remain union-free.

Responding properly to the union's demand for recognition is vital. A misstep at this point may mean that the company forfeits its right to an election by recognizing the union voluntarily, albeit unintentionally. Or the company may commit such serious "unfair labor practices" (violations of the National Labor Relations Act) that the NLRB will order it to bargain with the union without an election or even if the union losesin a vote.

The Pennsylvania manufacturer broke the cardinal rule for dealing with demands for recognition if a company doesn't want to accede to them: Never look at authorization cards. An authorization card is simply a card signed by an employee to appoint the union as his or her agent for collective bargaining. Union organizers and the employees helping them usually try to collect signed cards secretly. Once the cards are collected, unions use them to prove employees' support. As in the case of the Pennsylvania manufacturer, the cards may be shown to the employer in the hope that, intentionally or not, the employer will recognize the union voluntarily. The cards may also be submitted to the NLRB to support the union's petition for a representation election. (The NLRB requires the union to show that it has the support of at least 30% of the employees in the unit before it will order an election. In practice, however, unions seldom request an election unless they have collected cards from a majority of employees.)

Authorization cards are not reliable gauges of employee sentiment. Many employees sign only to support the union's petition for an election. Others simply succumb to peer pressure. And generally, the employees have heard only the union s sales pitch, so they know nothing of the many disadvantages that may be inherent in union representation. But aside from the unreliability of authorization cards, there are strong legal reasons for refusing to look at them.

Although examining cards does not, by itself, constitute voluntary recognition of the union, it puts the employer in a difficult position. The NLRB will rule that the employer has voluntarily recognized the union if he takes any action consistent with recognition, or if he verifies the union's claim of majority support (by, for example, comparing signatures on the cards with payroll records). In the manufacturer's case, the company president slipped up when he agreed to meet with union representatives for negotiations.

The hypothetical case of Ace Excavating Co. illustrates other mistakes often made by employers when responding to a union's demand for recognition.

When the union's business agent appeared in Ace's president's office, he put a packet of authorization cards on the president's desk and demanded recognition. Unlike the Pennsylvania manufacturer, however, Ace's president did not inspect the cards.

Ace's president desperately wanted the company to stay nonunion, so he decided to fight as hard as he could. Shortly after the business agent left his office he assembled his employees for a special meeting. After telling the employees about the union's demand for recognition, he asked for a show of hands by those who really wanted the union. The vote for the union was unanimous.

Agitated by this turn of events, Ace's president then told the employees that he didn't want the union. "I started this company from scratch," he said, "and I'll go out of business and start all over again before I'll operate a union shop. Then you folks who want to work union can go get jobs at union companies."

Turning conciliatory, Ace's president asked why the employees wanted union representation. It quickly appeared that the employees were motivated by dissatisfaction with what they considered to be an unreasonably short lunch break and Ace's practice of ignoring seniority. "Well, you should have come to me with these problems. You don't need a union for that," the president responded. He immediately lengthened the employees' lunch period and instituted a seniority system.

At the end of the meeting Ace's president again asked for a show of hands. Not a single hand went up to support the union. "That," said the president, "takes care of the union."

Indeed it did, but not in the way he thought. His actions ensured that Ace's employees would be represented by the union. Not only did he, like the Pennsylvania manufacturer, voluntarily recognize the union, but Ace also committed unfair labor practices that might well cause the NLRB to issue a bargaining order.

In the first place, Ace's president violated the law in polling the employees by requiring a show of hands. Under standards developed by the board, such polls must, among other things, be taken by secret ballot. More important, once an employer takes a poll he is stuck with the result if it favors the union. Since the first vote favored the union, Ace voluntarily recognized the union.

In addition to the unlawful poll, Ace also committed two unfair labor practices the NLRB considers quite serious. The president's threat to go out of business and throw his employees out of work if they brought in the union was one.

The second is a violation that many executives, who are problem solvers by nature, find difficult to avoid. Ace "solicited grievances" from the employees and then remedied those brought to its attention. To many businesspeople this simply makes sense. After all, if events show that production policies or marketing programs have problems, you fix them. So if a union drive discloses problems with personnel policies, why not fix them as well? To the NLRB, however, soliciting grievances, and even implying that they will be taken care of, unlawfully "interferes" with employees' freedom of choice.

The NLRB has the power to order an employer to bargain with a union if the employer's unfair labor practices prevent the holding of a fair election, as in the Ace example. These orders can be issued before the election has been held or even though the employees vote overwhelmingly against the union. (Except in extreme cases, before issuing a bargaining order, the NLRB requires the union to show that at some point it was supported by a majority of employees. This is generally proved by authorization cardsT.)

In case after case, the NLRB has issued bargaining orders when companies have committed the unfair labor practices illustrated in the Ace example. How, then, should an executive handle union demands for recognition in order to avoid problems? The rules are actually quite simple:

1. Do not look at authorization cards-or even touch them.

2. The moment you suspect that a demand for recognition will be made, make sure someone else from the company, preferably a manager, is also present. You may need him or her later on to corroborate your version of what happened. If your company has a labor lawyer, call him or her.

3. Politely, but firmly, tell the union that you will recognize it only if the NLRB "certifies" it as your employees' bargaining agent on the basis of a secret-ballot election. Say nothing else.

4. Say nothing to supervisors or employees about the union's demand until you have received advice from your labor lawyer or other competent specialist.

5. Be especially careful not to threaten or interrogate employees, promise them benefits, or attempt to spy on them.

As the examples show, much can go wrong rather quickly once a union demands recognition. But employers who are prepared can preserve their right to force an election. Those who do so stand an excellent chance of staying union-free. For several years, employers have won well over half of all representation elections held by the NLRB.