By Kara M. Maciel, Eric J. Conn & Lindsay A. DiSalvo
As the private sector continues to see a decline in labor union membership among employees, labor unions are struggling to remain relevant and recruit new, dues-paying members. Traditionally, when a labor union begins an organizing campaign at a workplace, the federal agency at the center of the process is the National Labor Relations Board (“NLRB”). The NLRB’s purpose is to protect the rights of workers to organize and to freely choose whether or not to be represented by a labor union. Indeed, the NLRB is an intrinsic part of the election process, and the NLRB may also become involved in a union organizing campaign if, for instance, the union asserts that the employer has committed an unfair labor practice.
However, unions are more and more often engaging with or depending on the regulations of other federal agencies as a tactic to gain leverage during organizing campaigns. There are numerous ways a union may influence the outcome of an organizing campaign by using federal agencies, such as the Occupational Safety and Health Administration (“OSHA”) or the Wage and Hour Division (“WHD”) of the Department of Labor (“DOL”), to persuade employees to embrace the union, or to put pressure on employers to concede to union representation.
Taking OSHA as an example, an on-site workplace safety inspection, or even just the threat of an inspection, can impact an organizing campaign in a manner favorable for the union. The threat of making an OSHA complaint or inviting OSHA into the workplace to conduct an inspection can put pressure on an employer to stand-down against a union’s organizing efforts, even if it does not believe a particular violative condition or safety hazard exists. A safety complaint could spark an OSHA inspection and, with 75% of all OSHA inspections resulting in the issuance of at least one citation, the chances are high that the employer would have an OSHA enforcement action on its hands.
During the Obama Administration, an OSHA inspection would have been particularly beneficial to a union’s organizing efforts at a non-unionized worksite because of OSHA’s 2013 Letter of Interpretation that allowed a union representative to participate in an on-site inspection. Specifically, the Letter explained that an employee’s authorized inspection representative “shall” be permitted to participate in an OSHA inspection, and that the representative could be a non-employee union member, even if employees at the worksite had not elected the union and had no collective bargaining agreement in place; i.e., a union representative could participate in an OSHA inspection at a non-union facility. This generated even greater motivation for unions to use safety complaints (even fabricated complaints) and OSHA inspections as a tactic in organizing campaigns.
In welcome news for employers, the Trump Administration revoked this letter of interpretation on April 25, 2017, and its guidance is no longer applicable. However, the threat of a complaint or inspection remains a tool at the union’s disposal to coerce an employer.
An inspection and any resulting citations may also serve to benefit a union by creating a platform upon which the union can assert that organizing would serve the interests of the employees. Workplace safety is a significant issue to employees, and one that can be quite influential in considering whether to unionize. Citations resulting from an OSHA inspection, for example, although simply unproven allegations of non-compliance with safety requirements at first, can be waived about by the union as a central issue it would tackle on behalf of employees, should employees vote in favor of representation.
This tactic is not limited to just OSHA complaints, inspections, and citations. The topic of wages and benefits is another chief concern for employees, so accusations of failure to pay overtime wages made to the Dept. of Labor’s Wage & Hour Division, or the threat of an enforcement action initiated by the Employee Benefits Insurance Administration, could similarly create an environment more conducive to unions’ organizing efforts. Indeed, any type of complaint to or enforcement action undertaken by a federal agency could give the union grounds to assert that it would improve some relevant aspect of the work conditions or environment. If the union or one of its proxies made the complaint leading to an inspection or investigation, this may give even greater credibility to the union, and more credence to the union’s claims that it can protect the workers’ interests. Additionally, enforcement actions and any allegations of non-compliance can harm the public image of the employer and cause it to defer time and resources to defending itself on the regulatory and PR front, as opposed to presenting its case to employees who are considering whether to organize.
Records and data required to be maintained by a federal agency may also be used to curie favor for the union among employees, as has been recently demonstrated in the context of OSHA work-related injury and illness records. OSHA requires employers to maintain records of work-related injuries and illnesses, and if, during an organizing campaign, the union obtains a copy of these types of records, it could use the data to contend that the employer is not doing enough to protect the safety of its employees, supporting the need for union representation. This scenario has been playing out for one auto-maker as a union-affiliated occupational safety non-profit recently published the injury rates from one of its California facilities to demonstrate that the rates were historically higher than the industry average amidst union organizing efforts. Although the rates themselves give little to no context to the type or cause of injury, including whether the employer could have even done anything to prevent the injuries, the sheer numbers can be sufficient to sway an employee in the union’s favor. Indeed, OSHA characterizes injury and illness recordkeeping as a “no fault” system because OSHA recognizes that “many circumstances that lead to a recordable work-related injury or illness are ‘beyond the employer’s control.’” Nevertheless, these numbers can be manipulated by a union to tell a story about employee safety, or other relevant work conditions, that fits its organizing efforts.
Although unions have these various tactics at their disposal, employers can take proactive measures to thwart these efforts and decrease their impact on the organizing front. Employers should implement procedures by which employees can raise safety, wage, or other concerns with management representatives and that require management follow up so employees feel their voices have been heard. Forming an employee safety committee and/or holding regular meetings with employees are other methods by which employers can ensure they are addressing employee interests. Employers can also prepare ahead of time for an inspection or investigation by a government agency by establishing a procedure for such actions, assigning necessary resources and personnel, and training relevant personnel on how they should conduct themselves during an inspection or investigation. Such preparation could limit the impact of a federal agency investigation and, at the very least, permits an employer to allocate resources without also taking them away from its efforts in a union organizing campaign. For guidance on preparing for an OSHA inspection, checkout our OSHA Inspection Toolkit.
Finally, employers may consider sharing certain data and the context of that data with employees. In the case of OSHA injury and illness data, all employers must post their OSHA Form 300A injury and illness data summaries annually and this presents a good opportunity to review with employees what the data means and how the employer’s safety and health policies and procedures impact that data. In the case of wage data required to be maintained under the Fair Labor Standards Act and open to review by the WHD, employers may consider some level of transparency with employees regarding how base pay is determined and why pay might differ among similarly positioned employees based on performance, experience, and credentials. This gives employees an understanding of pertinent data before the union attempts to use the data to its own advantage.