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Employers Must Avoid Actions That Interfere with Employee Rights to Union Representation

Union and employer corruption scandals have dominated the headlines in recent months.  Many union and company officials have been convicted and given lengthy prison sentences for bribery, embezzlement and other forms of corruption. For example, several automotive companies and the United Auto Workers (UAW) union have been targets of federal criminal investigations and prosecutions involving allegations of corruption.  Some things are (or should be) obviously illegal, e.g., paying a bribe to a union official to side with the company on an issue.  These schemes are often designed to benefit the employer to the detriment of the unionized workforce.  Employers, however, should be aware that many not-so-obvious actions involving unions could be considered unlawful.

Under Section 8(2)(a) of the National Labor Relations Act (NLRA), it is unlawful, i.e., an unfair labor practice, for an employer “to dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it.” This provision of the NLRA covers conduct that has a tendency to undermine or interfere with the interests of union employees and their right to be represented by a union of their choosing.  Although cases of this nature are often highly fact-specific and assessed based on the totality of the circumstances, some examples of conduct generally considered unlawful include:

  • An employer recognizing a union as the exclusive representative of employees before the union has obtained majority support from employees

  • A supervisor participating in union organizing efforts, such as soliciting employees to sign union authorization cards

  • Threatening or coercing an employee to sign an authorization card

  • An employer establishing and controlling a company union

  • Remitting employee dues to a union without a valid, signed dues checkoff authorization

  • Contributing money to a union, e.g., paying for a conference room where union organizing activity is taking place

  • Wining and dining union officials

Employer actions, even if well-intentioned and designed to foster a positive labor-management relationship, could be considered unlawful.  Employers must maintain an arms-length relationship with the union and avoid conduct that interferes with employees’ right to representation of their choice, or that could be construed as attempting to control or dominate the union.

© 2021 Foley & Lardner LLPNational Law Review, Volume X, Number 76
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About this Author

Philip B. Phillips, Foley Lardner, Automotive Industry Lawyer, Labor Rights
Partner

Philip B. Phillips is a litigation partner with Foley & Lardner LLP and chair of the firm’s Litigation Department in Detroit. He is a member of the Labor & Employment Practice and Automotive Industry Team, and also serves as the professional responsibility partner for Foley’s Detroit office. He counsels and represents business clients across the country in all aspects of labor and employment law, including FLSA wage and hour collective actions and multi-plaintiff employment litigation defense, non-competition and trade secrets matters, collective bargaining and...

313-234-7109
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