Episode 18: State of the Unions — Labor and Employment Law

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Protesters in Wisconsin picketed a law limiting unions' collective bargaining rights. The law is on hold.

In this podcast, we take a look at labor and employment law, particularly as it pertains to unions. After taking a look at the situation of nuclear power plant workers in Japan and the union struggle in Wisconsin, we talk to Portland-based attorney Nelson Atkin about the legal aspects of unions, and how businesses and unions work (or don’t work) together. In our system, you’re either an employee or contractor, or you’re part of management and negotiate with workers. If you’re on either side of the labor coin, this is the podcast for you.

00:00 Introductions. Charley and Juli give a rundown of the day’s topics, from worker’s comp to collective bargaining to the negotiations between businesses and unions.

01:23 We briefly go over last week’s Legally Easy blog post on “nuclear gypsies“, as well as the issue of worker’s compensation for hazardous jobs. While the workers in Japan have heroically put their health and lives at risk to prevent the Fukushima plant from melting down following the earthquake and tsunami, the history of workers in the nuclear energy industry hasn’t always been pretty even during non-catastrophes. Even in the United States, the majority of workers in a given plant aren’t direct employees of the power companies but are subcontractors, and they’re often given the more dirty/dangerous jobs. Hopefully, as the world pays more attention to the regulation of energy resources and policy, working conditions will improve for all. We also reference Deadwood and the Pinkerton Agency (see if you can guess how it ties into our topic).

5:43 Unions have a long history in the United States, and have been a huge part of the labor history of nations around the world. The other subject in the news was the public sector drama happening in Wisconsin. Everyone remembers the news stories about the sit ins at the capitol in Madison, and the flight of the Democratic state senators. The law abolishing the public employee unions’ collective bargaining rights has been put on hold, so we’ll see what legal precedents are used to either uphold or strike down the law.

7:57 We interview Nelson Atkin, a lawyer specializing in labor and union issues in Portland, Oregon. He’s worked in both the public and private sectors, representing employers with respect to union organizing and collective bargaining. Charley and Nelson talk about hearing from the management side of things growing up, but of course there are two sides to these sorts of issues.

10:17 After learning about the subcontracted nuclear power workers, we had to wonder what exactly a business’ responsibilities are towards subcontractors as opposed to regular employees. In the same way that the company is directly responsible for its employees, the subcontracting agency is also obligated to its workers: both organizations have to comply with workplace safety laws under the Occupational Health and Safety Act to provide a safe work environment. If subcontractors are injured while working on the company’s premises, even though the subcontracting agency is responsible for its workers, the main company can still be held liable because it did not comply with workplace safety. This is why many employers get premises liability insurance before bringing on subcontractors.

12:04 How hard is it to form a union of workers? The private sector of the United States is governed by the National Labor Relations Act, which has a National Labor Relations Board (an executive agency with 5 members appointed by the president). This board must prevent and remedy unfair labor practices and also conduct secret ballot elections to determine if employees want to be represented by a union. Unions have to gather signature authorization cards before they can take the motion to the NLRB. While this is going on, the employer can campaign to try to convince employees they don’t need a union- as long as they refrain from making promises, interrogating, threatening or spying.

14:13 How do Right to Work laws function, and do agency shops still exist? Under federal NLRA law, unions have the power to negotiate contracts which would enquire employees to be members of the union in order to work for the employer. However, the statute was amended back in 1947 by the Taft-Hartley Act that allowed individual states to adopt Right to Work laws that preclude the unions from negotiating these contracts with employees (meaning employees don’t have to be part of the union in order to work for the company). This reduces the power of the union because it has to work every day to win the hearts and minds of employees to become members and pay dues; even in areas where only a minority of employees are union members, the union has to represent everyone. It’s important for people to know what the Right to Work laws are in their state, because even in non-Right to Work states, the economics of joining a union can be a contentious issue.

18:17 Do start up businesses have to work with unions, or is it really only established industries like manufacturing, or even public sector like education? Startups aren’t really the targets of union organizing. Nelson talks about the difference between how unions used to be formed, and the current, less organic and more targeted approach. For example, the Service Employees International Union has focuses on healthcare, from hospitals to nursing homes. Nelson also goes over the limited bargaining rights of federal unions, which can basically only negotiate working conditions but not wages or benefits. Depending on the state, public sector employees have collective bargaining rights, and except for some areas of employment like law enforcement and firefighters, they also have the right to strike.

21:07 In case you do start a business in a field where labor unions are common, what are the documents you need to have on your side before you start dealing with a union? Well, if you wanted to avoid a union, Nelson suggests adopting “no solicitation, no distribution” rules to prevent solicitations for any purpose in a work area during work times. This means that non-employees can’t come in to talk about unions whenever they want. You could also prohibit te distribution of literature in the workplace but you have to enforce it on a non-discriminatory basis: if someone can put up a flyer in the breakroom’s community bulletin board for a tupperware party, they can also put up a notice for a union meeting. In your employee handbook, you can also explain to your employees why you think you don’t need a union (as long as you don’t commit unfair labor practices by making promises or threats).

22:47 Ultimately, if the union gets in, it’s not going away, so work with it effectively, be transparent, and don’t let the union representative be surprised by anything that happens in your workforce. By updating the union representative before making changes at your business, he or she is already informed in case an employee calls with questions. Essentially, by keeping everyone informed, you keep everyone looking good. A relationship with a union doesn’t have to be adversarial—remember, the union wants the employer to succeed, because jobs are important to everyone!

2:43 When we talked about the education sector and the struggle between the teachers’ union in Wisconsin and the legislature, “collective bargaining” seemed to be the most contentious issue. What exactly is collective bargaining? It’s the process where the employer and the employer’s representatives sit down with the union representatives and some employees to negotiate the terms and conditions of employment: wages, compensation, hours of work, layoff procedure, grievance and arbitration procedures, etc. This is also where managements rights clauses and no-strike clauses come into play. When you don’t have collective bargaining, it’s almost like working for the federal government in that there are things that you can no longer negotiate (benefits, wages, etc.). Unions are the legal structure for dealing with negotiations between employers and employees; otherwise, we have to rely on lawsuits. Unions do protect employers in one way: employee grievances go through arbitration before going to a lawsuit.

28:37 If you have more burning questions about employment law and unions or need the help of a professional, you can contact Nelson Atkin via his Rocket Lawyer Profile.

29:21 Welcome back for our third segment, the Rocket Docket! This time, we’re asking about Right to Work laws: should states pass these laws limiting the ability of unions to enforce contracts with employees, or should unions be allowed to create union shops that represent all the employees? We tentatively landed on the side of Right to Work mainly based on economics, but we don’t really know enough about the issue. So answer our poll on Facebook and let us know what you think! You can also reach us by twitter or by commenting on our blog.

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Related articles

• Worker’s Comp and Japan’s “Nuclear Gyspies” (legallyeasy.rocketlawyer.com)
• Wisconsin Protests Continue Over Collective Bargaining Rights (legallyeasy.rocketlawyer.com)
• Employment Law, Silicon Valley-Style (podcast.rocketlawyer.com)