How anti-union employers respond to workers’ organizing efforts
| Step in process | Anti-union employer response |
|---|---|
| Workers are hired by employer. | Orientation includes anti-union indoctrination by employer, either directly or through a third-party consultant.* |
| Workers begin discussing workplace issues and possible unionization with each other. | When employers believe there is union-organizing activity occurring, they often illegally fire pro-union workers, knowing that litigation will last months or years and there are no financial penalties. Firing activists scares other workers and undermines the organizing campaign. |
| Workers file a petition for a representation election with the National Labor Relations Board, supported by signatures from at least 30% of workers. This formally starts the representation election process.** | Once workers file a petition for a representation election, the employer’s anti-union campaign begins in earnest: circulation of anti-union literature, anti-union meetings, one-on-one anti-union conversations between supervisors and workers, and more.*** |
| Employer is given seven calendar days to respond to the union representation petition. | Employer responds by challenging the composition of the proposed bargaining and raising other issues to complicate and slow the process and give the employer more time to run its anti-union campaign. |
| NLRB investigates the petition and, if necessary, schedules a hearing on the petition. Hearing is typically scheduled for within eight days of the notice of hearing. Note that parties are always free to agree (stipulate) to the terms of an election without having a hearing, and many do.
|
Employer anti-union campaign continues. Employer refuses to reach agreement on issues and instead participates in NLRB hearing and continues to raise objections over the composition of the bargaining unit in order to complicate and delay proceedings. |
| NLRB Regional Director issues a decision on issues and schedules an election. | Employer appeals the Regional Director’s decision to the NLRB for review. Review by the NLRB is discretionary and only delays the election if the NLRB so orders. |
| Unfair labor practices are filed over employer union-busting leading up to the election (firing activists, etc.) | Employer disputes and litigates the unfair labor practice charges.
|
| Workers vote in NLRB-supervised representation election (unless the unfair labor practices are so pervasive as to make a fair election impossible). | Employer engages in surveillance of workers during the on-site election. Many of these practices are illegal, but their use is widespread by employers. Employer challenges some ballots on grounds that certain workers are ineligible to vote. This further delays the process. If the employer challenges a sufficient number of votes to affect the outcome of the election, ballots are impounded and results are delayed until the challenges are resolved. |
| Results of vote are announced: A majority of voters have chosen union representation. | Employer files objections to election over alleged problems with the election and/or bargaining unit issues. Certification of union is delayed until Regional Director holds a hearing and rules on objections. |
| NLRB rules on employer challenges, rejects challenges, and certifies election. Parties are obligated to bargain in good faith toward reaching an agreement. | Employer stalls the bargaining process—delays agreeing to dates for bargaining, engages in extended and slow bargaining at the table, and refuses to reach agreement. This is a tactic to undermine the union and also allows the employer to challenge the NLRB’s bargaining unit decision in federal court.
|
| Union files unfair labor practice charge over employer’s delaying tactics and refusal to bargain in good faith. | NLRB issues “technical 8(a)(5)” ruling, finding that employer has refused to bargain. Employer seeks review of the NLRB’s decision in the federal circuit court of appeals and uses this as an opportunity to continue litigating over the NLRB’s decisions about the composition of the bargaining unit. Review by the federal circuit court can take years. |
| Workers get frustrated because despite voting to unionize, they have not been able to win a first collective bargaining agreement due to their employer’s delaying and union-busting tactics. Workers circulate and file a petition to decertify the union. | This is the goal of the anti-union campaign, and employers either illegally encourage decertification petitions or tacitly support them. |
Notes: * Anti-union indoctrination usually involves characterizing the union as a third party and falsely asserting that having a union will interfere with direct communication between workers and managers. Employers typically make assertions about the negative impact of having a union: plant closings, strikes, wages being paid for union dues, etc. Under the law, employers are not permitted to threaten employees about negative consequences if they unionize, but they can make statements and predictions. The line is blurry, and many statements are perceived by workers as threatening, given the power relationship their employers hold over them.
** Workers can also ask their employer to voluntarily recognize their union, based on a showing of majority support from the bargaining unit, and some employers do agree to voluntary recognition. Under Cemex Construction Materials Pacific LLC, if workers ask their employer to voluntarily recognize their union, the employer must either recognize the union or file a petition for an NLRB election. They cannot lawfully ignore their workers’ request.
*** In Amazon Services, the NLRB ruled that captive audience meetings are illegal. Employers may hold group anti-union meetings, but workers cannot be required to attend them.
