Submission Date:
Question:
I understand that, as employers of a union shop, the library is required to allow the union a reasonable amount of time to conduct union business.[1] However, how much time is reasonable? Can employees meet with their shop stewards on the clock at the library for 5+ hours a week, taking both away from their duties? Is there a ballpark? Could we set a limit of 1-2 hours a week?
Thank you!
[1] At least as of April 11, 2023, things don't work quite this way.
Answer:
The care required when addressing union-related issues in so critical, we're going to start with a small cautionary poem:
When employees seek to organize
A good employer must emphasize:
Contract, practice, policy...
If not there, don't intervene.
Why do I have to start this answer with a warning?
When it comes to employees communicating about their working conditions--whether they are in a union, talking about forming a union, or posting notices about union activity--if the activity is not governed by a contract or clearly established policy[1], there should be no effort to limit the activity. Rather, the director and/or the board should consult the library's lawyer, and make sure you proceed with written advice from them.
This is the only way to safely proceed.
This extreme caution is necessary because: 1) if perceived as seeking to improperly limit communications, an employer can cause immense damage to employee relations in a short period of time; 2) both the National Labor Relations Board and the Public Employee Relations Board (who will handle any disputes, based on the "type" of library[2]), broadly recognize workers' right to organize and communicate regarding workplace conditions and union activity.
As the member's question alludes to, there are protections in place an employer must honor. For instance:
If there is an employee break room where pretty much anything can be discussed[3], workplace conditions and union organizing efforts can also be discussed;
If there is a bulletin board where general information can be posted, union-related materials can be posted there;
If employees are allowed to chat about pretty much anything they want as they perform work tasks, discussions of workplace conditions and organizing can't be barred.
These examples sound simple, but in real life, this issue is complex; a long line of cases going back to the 1940's[4] shows that there is an ever-changing balance between what a union and workers can and can't do on company property (and/or on company time).
This complexity is present even when union contract is in place.
For instance, a union contract may provide something like this clause (taken from a contract posted on the PERB site):
Just as referenced in the member's question, this contract language allows for a "reasonable" use of on-the-clock time to post notices, distribute literature, transmit communications, and consult with representatives on contract issues. This is a common clause in union contracts, and it is based on prior court decision stating that some access to employer resources may be required for union activity.
But as the member writes: "...how much time is reasonable?"
The only answer I can provide is: there is no right answer except to get a good answer about how to get the right answer.
Or, to add to our cautionary rhyme:
When employees seek to organize
A good employer must emphasize:
Contract, practice, policy...
If not there, don't intervene.
And if something needs more clarity
Ask your lawyer for strategy.
Many contracts, policies, or past practices will list (or have citable past examples of) what is a "reasonable" time for a meeting. If, however, there is no clear information allowing the parties (the employer and the bargaining unit or employee) to discern what amount of time is "reasonable", the parties will need to discuss it. For the library (the employer) this means calling in their lawyer to confirm:
how to raise the issue
with that specific union,
under those precise circumstances, and
at that specific time.
This may sound overly paranoid[5], but sadly, it is not. Here is 2023, the NLRB keeps back-flipping on precent, and the PERB doesn't have much out there on what "reasonable" means. This leaves me without any solid precedent or definition to point to (and even in the most stable of times, the interpretation of "reasonable" is highly fact-specific).
Without clear shared understanding between the employer and the unit, a well-crafted legal strategy that considers the big picture is the only responsible[6] way to address union-related concerns, including ones related to union activity on company time.
Because of this, a board or director who believes it is in the best interests of their library to raise such a concern should proceed only after securing attorney-client privileged legal advice based on a thorough analysis of the contract (or policy), past practice, and the present situation.[7] The approach (which should be in writing) must be crafted so the outreach doesn't risk the appearance of undue pressure or restrictions on protected activity, and to ensure the parties reach (and document) an articulable understanding that both can rely on with confidence. Ideally, the way the issue should be raised in a way that will reinforce (or create) trusted pathways of communication with bargaining unit leadership.
This technique will be different for different libraries. Some will have to consider recent decisions from the NLRB[8], others will have to review decisions from the PERB[9]. Regardless of library "type", the precise contract, relevant policies, past practice, and overall climate and relationship will need to be considered.
Once a strategy is in motion, if the lines of communication have been positive, the issue may be able to be resolved "at the speed of trust." If the relationship is hostile or rocky, raising such a concern may result in other matters being brought up, with the worst-case scenario leading to filing a grievance or accusations of a labor law violation. All of this needs to be considered before the employer's position is communicated to the employee[10] or the union.
In fairness to the member who asked the question with the reasonable hope of getting an actual answer[11], I have to say that both the NLRB and the PERB are very fond of the word "reasonable"-- but provide very little guidance as to what the term means. Looking at NLRB decisions and other authorities, "reasonable" seems to be whatever makes sense to the decision-maker at the time.[12] There just isn't a more reliable answer.
Because of this, what's important is that the employer and the union have clarity about what they jointly agree is "reasonable" and that they use good communication to maintain that understanding over time.
Or to add a final couplet to our poem:
When employees seek to organize
A good employer must emphasize:
Contract, practice, policy...
If not there, don't intervene.
And if something needs more clarity,
Ask your lawyer for strategy.
But most critical to good relations
Are trust and careful communications.
May your union-employer relations be smoother than my rhymes!
[1] Note that I say "activity", not "communication." More on this soon.
[2] The PERB will handle libraries that are "public employers", the NLRB will handle the rest.
[3] Except things that are harassing, discriminatory, threatening, etc...
[4] Starting with this case here: https://www.law.cornell.edu/supremecourt/text/324/793
[5] I usually sound so hopeful and encouraging in these columns!
[6] By "responsible", I mean: "less likely to cause a grievance, more likely to foster good relations, less likely to cause needless resentment and panic, more likely to cost less legal fees in the long run."
[7] This is not the time to call the lawyer you know to get a quick informal opinion.
[8] Found at https://www.nlrb.gov/cases-decisions/decisions
[9] Found at https://perb.ny.gov/nys-perb-board-decisions/
[10] If it is a union matter, don't raise it with the employee, if the contract calls for something else.
[11] Which they clearly haven't gotten, but truly, this is the most responsible way to reply.
[12] Okay, it's not that bad, but still, the flip-flipping out there in Labor Law jurisprudence is de-stabilizing the legal playing field. If you know an attorney who regularly negotiates union contracts, say "Hey, how about that Caesar's decision?" and you'll likely get a tense smile. https://www.nlrb.gov/case/28-CA-060841
Tag:
Labor, Unions, Library Employment Contracts, Employee Rights, Legal Poems, National Labor Relations Board
