by Merlin Hernandez

The question of whether a company can legally prohibit employees from attempts to organize the workplace comes up quite often in small businesses. Labor laws fall under the National Labor Relations Act of 1935 and grant employees the right to form, join and assist labor organization and to engage in efforts to promote these rights. It is a body of law that is meant to equalize the relationships and bargaining power between employers and employees. While employers may not prohibit employees from attempts to unionize, they do have the power to control union solicitation by minimizing opportunities for professional organizers to operate in the workplace or by having a written and posted no-solicitation/no-distribution rule that governs the disbursement of any type of literature on the premises as part of an overall risk management strategy at the outset of operations.

But the question of employee organizers poses a different challenge. Employees must be permitted to talk about a union on breaks, lunches, and personal time. But employers have the right, under the Labor Management Relations Act of 1947, to engage in free-speech against labor unions as part of a campaign prior to a union election. Employers are also allowed to contest union elections for which a simple majority (50%) will create a winner. They must, however, be careful not to engage in Unfair Labor Practices for which there are serious penalties, if found guilty. These practices include:
– Threats against union activity
– Asking about union activities
– Offering incentives not to unionize
– Spying on union activity.
Under the Fair Labor Standards Act (FLSA), there are certain categories of employees who may not unionize – executives, security guards, and other classes of exempt employees who are usually salaried workers, professional staff, outside sales personnel, or employees earning more than $100,000.00 annually. It may not be possible to prevent the local union from speaking to any or all employees at a company but an employer may advise employees of the regulations, and direct a union organizer to the relevant statute that would preclude the union from approaching those categories of employees.

Having only one union with which to bargain may have the advantage of a single collective bargaining unit that affords ease of management of the company’s industrial relations. But there can be some advantages to having more than one. Under the NLRA, a bargaining unit can comprise the employees of a single company or a group within a single company. This means that there may be several groups within a company, fitting into several bargaining units that may be represented by different unions e.g. maintenance workers and clerical workers may elect to have different representation based on their different characteristics and needs. In this scenario, should one bargaining unit go out on strike, operations may not be as adversely affected as in the case of a single union. The company may very well be able to re-deploy the workers on hand efficiently enough not to be compelled to hire ‘scabs’ (replacement workers).

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