Employee Councils and Minority Collective Bargaining—

David Keene, II
December 3, 2007 — 2,003 views  
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Unions are using two long forgotten tools in their effort to turn around failing organizing efforts and declining membership—employee councils and minority bargaining. Employee councils and minority bargaining were some of the first organizing methods used under the National Labor Relations Act after it was enacted in 1935. Such councils and minority bargaining fell into disfavor, however, after unions realized that it was easier to petition the National Labor Relations Board to conduct an election and hope to win that election to represent all employees. Fast forward to 2007. Labor unions are in trouble, representing only 8% of all private sector employees, and winning less than half of all elections. The AFL-CIO is falling apart, with four large unions (SEIU, the Teamsters, UNITE HERE, and UFCW) and their combined 28 million members and $32 million in annual dues having resigned since July 2005. In reaction, unions are returning to employee councils. The first such current council was started at a sporting goods store in southwestern Pennsylvania. The idea is simple: the council is a “members-only” organization that does not actively recruit employees. The council is open to all employees (regardless of work schedule, type of work performed, etc.), membership is optional, and dues are minimal. The advantages to the union in starting with an employee council include that: • The council is out in the open. There is no slinking around, trying to get employees to secretly sign union cards, or trying to meet potential members at their homes. • The employer is hamstrung to take any action against members of the council, for fear of facing an unfair labor practice charge. • Employees become comfortable with paying dues. • It provides the council with income without any representation expenditures. • Signing the membership application gives the council the right to represent the employee for the purpose of collective bargaining (eventually). Make no mistake—the entire purpose of these councils is to lay the groundwork for a union. The disadvantages to the employer are: • The never-ending union campaign. Since the council isn’t pushing employees to sign union cards or filing a representation petition anytime soon, the council can slowly add membership. The council can advance at its own pace. • The council becomes viewed as a normal part of the workplace. As employees join the workforce, it is only natural for the council to exist. • The council doesn’t have to act until it is certain that it has an overwhelming majority of employees behind it. • The employer may become gun-shy when administering discipline against council members, fearing an unfair labor practice charge in response. Further, since council members will be out in the open, employers will be unable to say they did not know an employee was a council member if discipline is taken. Once the council is in place, it can either: (1) continue to add members until it has at least 50% of the workforce as members, then ask the employer for voluntarily recognition or file a petition for an election, or (2) maintain its members-only and minority status, and ask the employer to recognize it as the exclusive bargaining representative for its members. Should the employer refuse, the council could file an unfair labor practice with the NLRB. This raises two questions from employers: How can the NLRA apply if my employees aren’t in a union? And if the council doesn’t represent a majority of my employees, how can I be required to bargain with them? First, the NLRA applies to both unionized and non-unionized employees. You don’t have to be a union member to be fall under the NLRA. And regardless of your employees’ status as bargaining unit members, your conduct as an employer could still violated the NLRA. (If your non-unionized employees file an unfair labor practice in response to your actions, there is a very good chance that an organizing effort is underway at your business.) Second, there is nothing in the NLRA stating that a union can only represent a majority of a company’s employees. In fact, such councils are exactly how many unions got their start in the early days of the NLRA. The current NLRB has not indicated how it would rule on such an issue, and it will likely be years before it does. Further, whichever side loses before the NLRB is certain to appeal all the way to the Supreme Court. If you have any comment or questions about this or any other labor or employment law matter, please contact David Keene at 423.928.0181.

David Keene, II

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David Keene, an associate in Baker Donelson's Tri-Cities office, concentrates his practice in the area of labor and employment law. Mr. Keene has experience in a multitude of labor and employment areas including negotiating collective bargaining agreements for both private and public sector employers; representing employers in grievance and issue arbitrations; representing employers in all matters, including elections and unfair labor practices, before the National Labor Relations Board and state labor boards; helping clients maintain union-free workforces; handling unemployment claims from initial applications for benefits through court appeals; counseling clients on a multitude of federal employment laws, including the ADA, FMLA, ADEA, and FLSA; litigating employment discrimination claims; and representing individuals against unions. Mr. Keene has been published in The Labor Lawyer, Labor Law Journal, and numerous other publications, and has taught seminars on a wide variety of labor and employment topics.