Union activity is on the rise - even in Utah

Is your business prepared? 

Kathleen D. Weron 

New data released by the National Labor Relations Board (NLRB) reported that unfair labor practice petitions filings are up 10 percent in FY 2023 and union petitions rose an additional 3 percent in 2023. This is following a 53 percent increase from FY 2021 to 2022. With the board’s precedent-turning decisions in this calendar year, particularly in August, employers may again begin to experience an uptick in unfair labor practice charges and election petitions.

While this uptick has occurred on a national stage, union efforts in Utah have also been on the rise in recent years. According to a Jan. 19 news release from the Bureau of Labor Statistics, in 2021, 3.5 percent of Utah workers were members of a labor union or employee association similar to a union and 6.5 percent of workers’ jobs were covered by a union or an employee association contract. In 2022, these percentages increased to 3.9 percent and 8.7 percent, respectively. Just last month, healthcare workers at the University of Utah organized, citing poor working conditions and chronic understaffing as the reason. Prior to the healthcare workers, associates at Dragonfly Wellness (a cannabis dispensary) and at Starbucks in Cottonwood Heights also unionized. Given both the national and local trends, it is important for Utah employers to develop a game plan in the event they are confronted with unionization efforts, as such efforts are protected by the National Labor Relations Act (NLRA).

The National Labor Relations Act

The NLRA protects the rights of employees to engage in “concerted activity,” which is when two or more employees engage in some activity for their mutual aid or protection relating to the terms and conditions of employment. Under the NLRA, employers may not interfere with, restrain or coerce employees in the exercise of these “Section 7” rights. Section 7 of the NLRA guarantees employees “the right to self-organization, to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”

These other “concerted activities” are a broad category and may apply to even a single employee if that employee is acting on the authority of other employees, bringing complaints by the group to an employer’s attention or attempting to induce group action (i.e., one employee speaking to an employer on behalf of one or more of his or her co-workers regarding the improvement of workplace conditions). Section 7 also protects employees’ right “to refrain from any or all such activities.”

The NLRA applies to most private-sector employers, including manufacturers, retailers, private universities and healthcare facilities. Importantly, the NLRA does not just apply to employees represented by a union. Employees at union and non-union workplaces have the right to assist each other by sharing information, signing petitions, discussing and seeking to improve their wages and working conditions.

Section 8 of the NLRA makes it an unfair labor practice for an employer “to interfere with, restrain or coerce employees in the exercise of their rights guaranteed in Section 7” of the act. The NLRB — the federal enforcement authority for the NLRA — has created an extensive list of employer actions it considers unfair labor practices, or actions that would unduly interfere with an individual employee’s labor rights including:

• Interference, restraint, or coercion of employees in the exercise of their rights;
• Interference with the formation or administration of any labor organization, or financial contributions or other support to such an organization;
• Discrimination on the basis of labor activity in hiring, or tenure of employment, or any term or condition of employment;
• Discrimination regarding any term or condition of employment in retaliation for reporting to the NLRB;
• Refusal to bargain collectively with the representatives of the employees;
• Refusal to recognize a majority union;
• Taking unilateral actions;
• Refusing to provide necessary information to union representatives;
• Refusing to sign a written contract once an agreement is reached; or
• Imposing conditions on an employer’s willingness to bargain.

Further, management cannot interrogate employees or threaten employees with loss of jobs. Management also cannot threaten to close or impose more onerous working conditions if employees support a union, engage in union activity or select a union to represent them. Similarly, management cannot promise benefits to employees to discourage employee union support. Additional unlawful conduct includes:

• Management coercively questioning employees about their own or their co-workers’ union activities or sympathies;
• Prohibiting employees from talking about the union during working time (if the employer permits employees to talk about other non-work-related subjects);
• Polling employees to determine the extent of their support for a union (unless the employer complies with certain safeguards);
• Spying on employees’ union activities;
• Photographing or videotaping employees engaged in peaceful union or other protected activities;
• Denying off-duty employees access to outside nonworking areas of the employer’s property (unless business reasons justify such denial);
• Prohibiting employees from wearing union buttons, T-shirts and other union insignia unless special circumstances warrant; and
• Discharging, suspending, laying-off, failing to recall from layoff, demoting, disciplining or taking any other adverse action against employees because of their protected, concerted activities.

Proactive Measures to Adopt to Avoid Unionization

Although union activity is on the rise, there are strategies you can adopt to minimize the likelihood employees will feel the need for union or employment association protection. Importantly, effective and transparent communication with employees helps create a satisfied workforce. You should endeavor to keep employees informed about the state of the business and maintain a dialogue with employees regarding working conditions, benefits, compensation and policy changes. Consider implementing an open-door policy allowing employees to discuss their concerns or suggest improvements to working conditions. It is also advisable to create and maintain a labor action plan and implement facially neutral policies relating to union and non-union activity before union activity arises.

If a unionization effort surfaces, however, you should carefully consider next steps and engage legal counsel to understand what actions you may and may not legally take in response. Avoiding contact entirely can be deadly, and you have a right to communicate with employees, provide facts known to be true and even offer an opinion on whether you believe the union is not right for the company or its employees, as well as share union-related experiences from the past.

To avoid an unfair labor practices claim, proactively train your management team, including executive-level managers and supervisors who interact with employees daily, regarding lawful activities and communications management can make while engaging with employees. Working time is for work; you may maintain and enforce non-discriminatory rules limiting solicitation and distribution. However, you cannot prohibit employees from talking about or soliciting for a union during non-work time, such as before or after work or during breaks.

In addition, you may tell employees that management and the company are opposed to unionization. You can explain to employees that they do not have to sign union cards and that the law allows them the absolute right to refrain from joining a union. You can tell employees that they do not have to speak to union organizers or admit them into their home. You can share information about the benefits provided by the company and compare benefits with those in unionized companies. You can point out the costs of belonging to a union, such as the payment of dues and initiation fees.

You can also inform employees that with a union, they may have to bring their issues to a shop steward instead of dealing with their supervisors and remind employees that merely signing a union authorization card or application for membership does not mean they must vote for the union election. Finally, you can correct any untrue or misleading statements made through an organizer, by handbill or through any union disinformation.

Union activity is on the rise and the NLRB is more active than ever. The NLRA protects all employees and employers must be aware of unlawful conduct that could result in unfair labor practice charges. In addition, fair and consistent policies, open-door policies and competitive pay and benefits help create a culture built on mutual trust, recognition and respect and make the need for unions unnecessary.

Kathleen D. Weron is a shareholder specializing in labor and employment law in the Salt Lake City office of Ogletree Deakins. Amanda Fuller is an associate with an emphasis in labor and employment law in the Salt Lake City office of Ogletree Deakins.