Non-profit employers should consider the impact of unionization
In recent years, the Service Employees International Union, the American Federation of State, County, and Municipal Employees, and the Office and Professional Employees International Union have made substantial progress in organizing nonprofit employees. Organizing and collective bargaining raise particular issues in the nonprofit sector. Associative employers must understand these issues in order to meet their legal obligations and continue to carry out their missions.
Access to information
Under the National Labor Relations Act (NLRA), an employer has no obligation to respond to requests for information relating to the collective bargaining process unless and until a union wins an election or is otherwise recognized as the representative of the workers during the negotiation. This rule gives for-profit employers an informational advantage in the early stages of union activity.
On the other hand, a union can get a lot of information about a nonprofit employer, whether the union has won an election or otherwise been recognized. An organization’s Form 990s are subject to public disclosure and are generally available to anyone online. Additionally, depending on state freedom of information laws, the organization may be subject to the state freedom of information law or public information law. Many nonprofits have community boards, and individual board members who support unions may share information to advance the interests of workers.
It can be difficult to reconcile the obligation to negotiate with the grant funding process. When a union wins an election or is otherwise recognized, the NLRA imposes an obligation on the employer and the union to bargain in good faith over wages, hours of work, terms and conditions of employment. In short, employers are prohibited from unilaterally making decisions on matters such as wages and benefits. However, many nonprofit employers must submit budgets and other information to funders in order to receive funds. Budgets and grant applications require many decisions about staffing and compensation. The deadline for these decisions does not always coincide with the timetable for negotiations. Nonprofit employers can find themselves stuck between the proverbial “rock and hard place”. They have to meet grant deadlines and they have to negotiate, but it’s not practical to negotiate every time a grant application or a budget has to be submitted.
Navigating the dual obligation of meeting grant deadlines and negotiating is an art that requires finesse. Grant submissions should anticipate and allow flexibility to accommodate as much as possible staffing and compensation changes that may arise from future negotiations. Some funders recognize the need and will leave enough leeway to facilitate negotiation, and some will not. Grant funds can have all sorts of restrictions, including compensation floors and caps. In these circumstances, the best employers can do is to negotiate within these restrictions and be prepared to explain that the restrictions are the responsibility of the funder and not the product of decisions made unilaterally by the employer.
Another challenge specific to nonprofit employers is that, depending on state law, they may be subject to public meeting requirements. If open meeting laws apply, the only way to maintain confidentiality is for the council to meet in executive session. However, unions will be on the lookout for arguments that an executive session was not properly invoked. In some cases, members of the public, including union members, may request speaking time at “open” council meetings. This practice gives union members the ability to “step over” union bargaining representatives and present their case directly to the board. Unfortunately, it is difficult for people who have not been “at the table” to get a clear picture of the ongoing negotiations from information shared with them through unofficial channels.
Organization and Advocacy
Many nonprofits engage in community organizing and advocacy as part of their missions. The skills employees use to serve their organizations are the same skills that allow them to unionize. And there can be tensions between an organization’s business philosophy and practices and its desire to limit unionization.
© Steptoe & Johnson LLC. All rights reserved.National Law Review, Volume XII, Number 98