Employees have the right to choose a union to represent them without employer interference, and the employer is legally required to bargain with the union if they demonstrate majority support.  Forming a union should not be as mysterious and complicated as it is.  Here is what every manager and supervisor should know.

The union campaign

For many nonprofit employers, the first time they hear that their employees are organizing is when they receive a formal request for union recognition. Some will hear reports beforehand that a petition is going around or that employees are talking about unionizing.

During the phase before union recognition, employers may believe they should be neutral. Neutrality in a union campaign is when an employer does not oppose or support employees’ efforts to form a union. In contrast, the default position of most private employers in the U.S. is to actively oppose unionization by communicating anti-union sentiments and distorting the process to delay and avoid recognition.

However, social justice nonprofit organizations support workers’ rights and self-determination, which is why they need to go beyond neutrality and proactively communicate that they are a “pro-union, anti-racist, and mission-driven organization, that unions are good for democracy and the economy and are a viable path for the organization’s employees, should they choose to go this route.”

The request for recognition 

To begin the process of forming a union employees sign an authorization petition or card stating they want to have a particular union represent them as their “sole and exclusive collective bargaining agent.” Once a majority has signed - often a super-majority - the union takes the following steps:

1. Contact the employer to request recognition for a particular group of employees called the “bargaining unit.”  [see below for more on bargaining units.]

2. Ask the employer to respond within a certain amount of time.  The employer can request additional time if needed to get legal advice and to consider what positions they agree to include in the bargaining unit.

3. If the employer refuses to recognize the union voluntarily, the union or the employer can file for an election with the National Labor Relations Board [NLRB].

The recognition agreement

In the voluntary recognition process, the parties negotiate a “recognition agreement” that spells out which categories of employees are being recognized and how majority status will be demonstrated. The agreement includes the following:

1. Which employees will be represented by the union - the “bargaining unit.”

2. A process to verify signatures on a petition or cards – either directly to the employer or through a neutral third party - to prove the union’s majority status. (often called a “card check”)

3. That once the union proves its majority, the employer agrees to recognize the union and bargain in good faith. 

About bargaining units

Bargaining units are groups of employees who have a shared interest.  A union may propose a bargaining unit spanning many jobs and roles - a “wall-to-wall” unit - or specify a subgroup of employees.   For example, some units include support staff, some don’t; some include headquarters and field-based staff, and some don’t. In addition, the unit typically excludes the following categories:

1. Managerial and executive personnel.

2. Supervisory staff with the power to hire and fire.

3. Temporary employees.

4. Confidential employees (those who play specific support roles to management during bargaining or who have access to certain confidential labor relations information).

The process can involve negotiation to determine who falls into these categories. If the union and management can’t agree, they may resort to an NLRB (National Labor Relations Board) process, which includes a ruling on the appropriate unit. 

Sometimes, the process of delineating the bargaining unit reveals the need for management to clarify the roles and responsibilities of certain employees, especially those with supervisory or managerial responsibilities.

The election route

As you have seen in reports of Starbucks and Amazon campaigns, unions can force anti-union employers to recognize the union by winning a secret ballot election conducted by the National Labor Relations Board. Unions can file for elections with as little as 30% of eligible employee signatures. However, most wait until they have over 75% to file.

While elections may sound like a small “d” democratic way to determine union support, it is an option with its origins in the anti-union history of the United States. Employees' signatures should suffice as proof of their choice, just as they do for so many other decisions employees make.

As a result of this history, the NLRB ruled in August of 2023 that if presented with a demand for recognition, employers must promptly grant recognition or file a petition with the NLRB for a representation election process.  If they choose the election route and then engage in union-busting activities, the Board can certify the union without a new election.

In the nonprofit sector, the union wins nearly all elections. Given these odds, it is unwise to start the relationship off with the impression that they have “beaten” the employer.  More and more, voluntary recognition is seen as the best option. 

Communicating about union recognition

It is common for the employer – or the union and the employer jointly – to send a letter to all staff announcing union recognition and that they intend to bargain in good faith. It is also important for employers to communicate with managers and other non-bargaining unit staff and to train managers on how union recognition impacts their jobs.   It’s important to note that a formal labor-management relationship - and the “status quo” period - starts with union recognition.   

For more on this topic see: What to Do | Union Recognition and other resources that can be be found on the Beyond Neutrality Resource Hub.