Printer Friendly Version

RHOADS & SINON LLP ATTORNEYS AT LAW
ONE SOUTH MARKET SQUARE
P.O. BOX 1146
HARRISBURG , PA 17108-1146
www.rhoads-sinon.com

David F. O’Leary’s Direct Dial: 717-231-6633
FAX: 717-231-6637

Email: doleary@rhoads-sinon.com

Employment & Labor Law Group

TO: Clients, Friends and Colleagues of Rhoads & Sinon

FROM: David F. O’Leary

RE: Employment Law Note #6. NLRB War Story. How To Defeat A Union Organizing Drive Without Even Having AN NLRB Election (July 2003). Part 1  

Periodically (no more than once a month), I write a brief essay on an employment law issue in which I am interested. I try to provide practical advice. Please do not hesitate to contact me if you have any questions or comments.

NLRB War Story. How To Defeat A Union Organizing Drive
Without Even Having An NLRB Election (Part 1)  

If a union wants to represent a group of employees in a private business, the union must accomplish four objectives.

First, the union must convince at least 30% of the employees in the group that the union wants to represent to sign preprinted cards authorizing the union to represent the employees for the purposes of collective bargaining. These cards are called union authorization cards.

Second, the union must file the authorization cards and a Petition for an Election with the National Labor Relations Board (NLRB) requesting that the NLRB conduct a secret ballot election to determine whether the employees actually want the union to represent them.

Third, the union must convince the NLRB that the group of employees that the union wants to represent is what the NLRB calls an “appropriate unit” of employees for the purposes of collective bargaining; and

Fourth (assuming the union has cleared the first three hurdles), the NLRB will schedule a secret ballot election at the employer’s place of business. The union must convince a majority of the employees who vote to vote “yes” for union representation. The union must accomplish all four objectives; otherwise the employees (and the employer) remain union free.

What is an “appropriate unit” of employees? The union cannot represent supervisors or other management employees, and the NLRB frowns upon proposed units mixing white and blue collar employees. For employers who operate out of multiple locations, the fundamental question is whether an appropriate unit can consist of employees from only one of the employer’s locations or whether an appropriate unit must include employees from more than one or all of the employer’s locations? Obviously, it is far more difficult for a union to simultaneously organize employees from multiple locations than it is for the union to organize employees from a single location.

Fortunately for unions, the NLRB assumes that notwithstanding the fact that an employer operates out of a number of locations, a single location of an employer can be an appropriate unit. Accordingly, unions frequently try to organize a single location of an employer in order to get a foothold into the employer’s business. The employer can defeat the union’s proposal for a single location unit only by convincing the NLRB that the single employer location has no separate identity and is functionally integrated with other employer facilities. There are a number of factors which the NLRB looks at to determine whether an employer has proven that a single location is not an appropriate unit. Two factors are frequently decisive. First, whether management at the single location has the autonomy to hire, fire, and discipline employees. The more autonomy the managers have, the more likely the NLRB will find that the location is an appropriate bargaining unit; and second, whether there is “regular and substantial” interchange of employees among the employer’s facilities. In other words, do employees at the employer facility, which the union is seeking to represent, temporarily transfer from that facility to other employer locations and do employees at those other locations temporarily transfer to the facility that the union is seeking to represent? The less interchange of employees in and out of the facility, the more likely the NLRB will find that the single location is an appropriate unit.

Recently, my colleague, Kevin Gold, and I represented a company which had 5 manufacturing plants in central Pennsylvania, within a 45-mile radius, employing nearly 900 employees. A union began an organizing campaign at one of the employer’s plants in Lancaster, PA and filed a petition for an election with the NLRB to represent the approximately 160 production and maintenance employees in Lancaster. The union had obtained signed authorization cards from at least 30% of the employees from the Lancaster plant. The union did not seek to represent any employees from the employer’s other four plants, and obviously did not obtain authorization cards from any employees from these other plants.

We objected to the union’s proposed bargaining unit on the grounds that the Lancaster plant did not have a separate identity but was thoroughly integrated with the other employer plants in central Pennsylvania. We argued that the union’s proposed bargaining unit was not an appropriate unit and that the only appropriate unit consisted of all the production and maintenance employees at the employer’s five plants in central Pennsylvania. In my next Employment Law Note (#7), I will write about the NLRB hearing in Philadelphia at which we presented evidence to the NLRB’s Regional Director, the NLRB’s decision, and the practical implications for employers that operate out of multiple locations.