Presented by Marci Rechtenbach and Christian Vanderhooft at the 2023 Employment Law Seminar with SL SHRM - Salt Lake City

1. parsonsbehle.com
May 9, 2023 | Sheraton Salt Lake City Hotel
Labor Issues for the Non-Union Employer
Marci Rechtenbach Christian Vanderhooft

2. This presentation is based on available information as of May 9, 2023,
but everyone must understand that the information provided is not a
substitute for legal advice. This presentation is not intended and will
not serve as a substitute for legal counsel on these issues.
Legal Disclaimer
2

3. Unions in the News
Unions appear to be having a moment after high profile unionizations
at various Amazon, Starbucks, and Trader Joes locations.
3

4. Some of this hype is real . . .
According to a recent Gallup poll, 68% of Americans support unions,
which is the highest level polled since the 1960s.
The number of union petitions filed with the National Labor Relations
Board (“NLRB”) in FY 2022 was up by 53% over FY 2021 (2,510
compared to 1,638).
This pattern has continued through the first half of FY 2023, with
petitions up by 14% for the same time period in FY 2022.
4

5. Some of this hype is real . . .
There has also been a corresponding increase in the number of
unfair labor practice charges.
The number of unfair labor practice charges in FY 2022 was up by
19% over FY 2021 (17,988 compared to 15,082).
This pattern has continued through the first half of FY 2023, with
petitions up by 16% for the same time period in FY 2022.
5

6. . . . but it may be too soon to see if it will last.
 The percentage of unionized
employees in the United States
actually decreased in 2022, from
10.3% to 10.1%.
 This decrease is fairly consistent
with decades of decreases in
unionization, and whether this
changes going forward remains an
open question.
6

7. How Are Unions Formed

8. What is a Union?
Federal law doesn’t use the word union. Instead, it uses the phrase
“labor organization,” which is defined as:
“any organization of any kind, or any agency or employee representation
committee or plan, in which employees participate and which exists for the
purpose, in whole or in part, of dealing with employers concerning
grievances, labor disputes, wages, rates of pay, hours of employment, or
conditions of work.”
Section 2(5) of the National Labor Relations Act, 29 U.S.C. § 152(5).
8

9. What is a Union?
More commonly, when we talk about “unions,” we usually are not
referring to all labor organizations.
Instead, we are typically talking about specific labor organizations
that have been “certified” as an organization that represents a
specific group of employees before a particular employer.
And when we talk about “forming a union” or “organizing a union,” we
are typically referring to this certification process.
9

10. How a Union is Formed
 First, an employee or group of employees must formally ask their
employer to recognize their union.
If an employer believes a majority of employees support the union,
the employer may simply voluntarily recognize the union.
Employers typically will reject such requests. That sets the stage for
the employees file a “petition for certification” with the NLRB.
10

11. How a Union is Formed
 Upon receiving a petition for certification, the NLRB investigates
whether a sufficient number of employees—typically 30%--are
legitimately interested in unionizing. If employees satisfy this
requirement, the NLRB will order an election.
Employees will vote by secret ballot, typically at the work site.
If a majority of employees vote in favor, the NLRB will certify that a
union now exists, and under federal law, the employer must
recognize and negotiate with that union.
11

12. A Quick Note on Terminology
When we discuss steps that “employees” take to form a union, it will
often be an existing union that actually undertakes these actions.
Many unions are large, national organizations looking to expand, and
will work with employees to guide them through the unionization
process.
12

13. A Union Exists: Now What?

14. A Union Exists: Now What?
Collective Bargaining
 Instead of negotiating contracts with each individual employee, the
union will select certain representatives to negotiate with the
employer on behalf of all employees.
 The employer and the union representatives will ultimately agree to
a single contract for all employees called a collective bargaining
agreement (“CBA”).
14

15. A Union Exists: Now What?
Both the employer and the union have a legal obligation to negotiate
in “good faith.”
Each side may engage in what courts sometimes call “hard
bargaining.” But they cannot refuse to negotiate altogether, and they
cannot negotiate in bad faith.
15

16. A Union Exists: Now What?
Mandatory Subjects
 CBA’s must address wages, hours, and other “terms and conditions” of employment, such as
benefits (i.e., health care, pensions, etc.), schedules (shifts, absences, breaks, etc.), and
discipline policies (suspensions, terminations, etc.).
Unlawful Subjects
 CBA’s cannot address certain issues that topics already governed by federal law. Most notably,
CBA’s cannot limit the application of federal nondiscrimination or harassment laws.
Permissive Subjects
 There is a lot of gray area between mandatory subjects and unlawful subjects, which may, but
need not, be included in a CBA. Examples include internal union matters (union dues, how the
union selects representatives, etc.) and using a new CBA as an opportunity to settle any
pending disputes between the union and employer.
16

17. A Union Exists: Now What?
Grievances
 Grievances are one of the most common topics addressed by CBAs
 Grievance procedures create a process for the union to object to
actions taken by an employer that the union believes violate the
CBA.
 The grievance process is something that can be negotiated as part
of the CBA, and so can vary from contract to contract, but
frequently requires that the employer try and informally resolve the
dispute with the union, or have the dispute be referred to a neutral
arbitrator.
17

18. Right-to-Work Laws
Utah, like 28 other states, is a “right to work” state.
 In right-to-work states, employees cannot be required to join a
union or pay union dues as a condition of employment.
 Unions can still exist in these locations, and the employer must still
negotiate a single CBA that applies to all employees, whether or not
they are members of the union.
 But employees who decline to join the union avoid paying dues, do
not participate in union elections, and may not receive union
support during grievances.
18

19. Picketing, Striking, and Lock-Outs
19

20. Picketing and Striking
Picketing: Standing outside a work site with picket signs; often form
a literal or symbolic line and urge people not to cross that line and
enter the business.
Striking: Employees not coming to work. If a strike is legitimate,
employees cannot be terminated for striking. At the same time,
employers need not pay employees while they are on strike.
20

21. Picketing and Striking
There are relatively complex rules regarding when employees are
allowed to picket or strike, and when employers are allowed to
implement lock-outs.
Examples:
No more than 30 days of picketing is allowed if the object is to obtain
recognition of the union
Unlimited picketing is allowed for other objects, such as increased
wages or complaints about working conditions
21

22. Picketing and Striking
More Examples:
While CBA negotiations are ongoing, employees can strike if the
negotiators reach an impasse over mandatory subjects (i.e., wages).
But it is illegal for employees to strike if the impasse is merely over
permissive subjects.
Once a CBA is in place, strikes relating to the CBA are generally only
permitted if the union provides 60-days notice of the strike and
agrees to negotiate a possible resolution in the interim.
22

23. Section 7 Rights of Employees

24. Employee Rights Under Section 7
Under the National Labor Relations Act (“NLRA”), employees have
certain rights even without a union. Under Section 7 of the Act,
employees have the right to:
o Self organize;
o Form, join, or assist a union;
o Collectively bargain;
o Engage in other protected concerted activities;
o Refrain from protected concerted activities.
24

25. Examples of Union-Related Protected Concerted Activities:
Circulating petitions about unionizing
Distributing union literature
Wearing union t-shirts/buttons
Soliciting co-workers to sign union cards
Discussing the union with co-workers
25

26. But There’s More . . .
The NLRA also provides employees with expansive rights outside of
the union context. Section 7 protects employees’ right to engage in
“concerted activities for the purpose of . . . mutual aid or protection”
(AKA “protected concerted activity.”)
26

27. NLRB Explanation of Protected Concerted Activity
27
“You have the right to act with co-workers to address work-related issues in
many ways. Examples include: talking with one or more co-workers
about your wages and benefits or other working conditions, circulating a
petition asking for better hours, participating in a concerted refusal to
work in unsafe conditions, openly talking about your pay and benefits,
and joining with co-workers to talk directly to your employer, to a
government agency, or to the media about problems in your workplace.”
“A single employee may also engage in protected concerted activity if he
or she is acting on the authority of other employees, bringing group
complaints to the employer’s attention, trying to induce [or prepare
for] group action.”

28. Why Does Section 7 Matter to a Non-Union Employer?
Over the last decade, the NLRB
has increasingly focused on
Section 7 rights in the non-
union workplace. For example,
the Board has scrutinized:
28
Social media policies
Civility and conduct rules
Confidentiality policies and agreements
Conflict of interest policies
No recording policies
Dress codes
Policies regarding contact with the media
E-mail and communication systems policies
Policies that limit employee rights to talk about pay
Non-disparagement rules

29. Section 7 and Employer Work Rules
NLRB Action: On January 6, 2022,
the Board issued a notice and
invitation to the parties in Stericycle,
Inc. 371 NLRB 48 (2021), and to amici,
to submit briefs regarding “whether the
Board should adopt a new legal
standard to determine whether
employer work rules violate Section
8(a)(1) of the NLRA,” and, if so, what
that standard should be.

30. Evaluating Employer Rules Under Section 7
 Trump Era Rule: NLRB will consider two factors when evaluating a facially
neutral policy: (1) the nature and extent of the potential impact on NLRA
rights, and (2) legitimate business justifications associated with the rule.
Certain categories of rules are always lawful to maintain.
 Obama Era Rule: Workplace policies violate the NLRA if an employee
could “reasonably construe” the language to prohibit Section 7 rights, i.e.,
the right to engage in “concerted activity” to improve working conditions.
 The current NLRB is widely expected to return to the Obama Era Rule, or
something similar. Employers should carefully review their policies under
that standard.

31. Key Takeaways for Employers
31

32. What Employers Cannot Do
 Threaten to punish/discharge/reassign/demote employees who participate in
union activities.
 Threaten to shut down business or lay off workers if they form a union.
 Prevent employees from soliciting others to join the union during non-working
hours.
 Question employees about union matters (meetings, supporters, etc.).
 Ask how individuals will vote in an election.
 Ask individuals if they have signed up for or joined the union.
 Threaten to terminate benefits if workers unionize.
32

33. What Employers Cannot Do
 Promise benefits or payment to workers who oppose unionizing.
 Prevent pro-union solicitation during non-working hours or in a discriminatory
way.
 Prohibit distribution of union literature during non-work hours in non-work areas
or in a discriminatory way. Prohibit union insignia on shirts/jackets (unless
unusual “special circumstances” exist).
 Engage in surveillance of employees to determine their views on unionization.
 Maintain or enforce employer rules that prohibit or chill employee’s exercise of
Section 7 rights to engage in protected concerted activity regarding the terms
and conditions of employment.
33

34. What Employers Can Do
 Create and enforce, in a consistent manner, a non-solicitation policy that
prohibits solicitation/distribution by non-employees on employer’s private
property and prohibits employee solicitation when anyone involved is on
working time in work areas.
 Discuss the employer’s stance on unionization and express hope that
employees vote against unionization.
 Reiterate the benefits of your company, and highlight positive aspects of the
work environment.
 Discuss disadvantages of unions, including dues.
34

35. For more information, contact:
 Marci Rechtenbach
mrechtenbach@parsonsbehle.com
801.536.6883
 Christian Vanderhooft
cvanderhooft@parsonsbehle.com
801.536.6983
35