Frequently Asked Questions
I own a small construction company. Lately, the union has been coming to my job sites and talking to my employees about joining the union. What can I do?
Unions often target small construction companies (as well as large construction companies) for their organizing drives. Depending on the kind of construction work you do, you may have one, two or several unions trying to organize your employees.
The National Labor Relations Act prohibits employers from interfering with, restraining or coercing employees in the exercise of rights guaranteed under the Act. Employees have the right to form, join or assist a labor organization, to bargain collectively and to engage in other concerted activities for the purpose of collective bargaining. Employees also have the right to refrain from such activities. In other words, you cannot keep your employees from talking to the union about organizing your company, even if you do not want the union. You can, however, require that the union talk to your employees only before or after the shift, on breaks or during lunch periods. Under certain circumstances, you can prevent union organizers from entering the work site altogether. You should ask your labor law attorney to give a more detailed explanation of your rights as an employer when the union comes calling. What do I do if the union gives me a bunch of cards and tells me most of my employees want the union to represent them? First of all, unless you want to voluntarily recognize the union, do not accept the materials from the union. Tell the union that if your employees believe they need the union to represent them, they can file a petition for an election with the National Labor Relations Board. Tell the union to contact your labor law attorney, then you call your attorney to let him or her know what has happened.
I recently received a petition for an election from the National Labor Relations Board. What can I do? If my employees vote for the union, do I have to sign a contract? A petition for an election is a request either by the union or a group of employees to vote as to whether the union is to be the collective bargaining representative of the employees. Once the petition is filed with the Board, the Board's election process kicks into gear. You should contact your labor law attorney right away.
A preliminary hearing may be scheduled to determine whether there are any issues that may affect the election, such as the scope of the bargaining unit, the supervisory status of certain employees (supervisors cannot vote in the election), the authenticity of cards submitted with the petition or whether employees or the union were assisted in their organizing activities by supervisors. Once any issues such as these have been resolved, an election will be scheduled, usually within four (4) weeks. The union will certainly mount an election campaign, and you should do the same. Contact your labor law attorney to assist you in your campaign.
If the a majority of the employees voting do not vote to have the union represent them, the union cannot attempt to organize them again for one (1) year. If a majority of employees voting vote to have the union represent them, you will be required to bargain with the union over the terms and conditions of employment for the employees in the unit designated in the petition. You do not have to sign the contract the union presents to you, nor do you have to agree with any of the union's proposals. The law simply states you must bargain in good faith with the representative of your employees. Again, contact your labor law attorney for your rights and obligations after the election.
I'm a nonunion subcontractor on a large construction project with both union and nonunion employers. The union has said it is going to picket the construction site because one of the other nonunion subcontractors is allegedly being unfair. What do my employees do if the union sets up a picket line? Under these circumstances, the general contractor will probably set up a two-gate system - one for the union subcontractors (normally called the "neutral" gate) and another for the nonunion subcontractors (the "reserved" gate). If the situation permits, the general contractor may establish three (3) gates - one for union subcontractors, one for the targeted nonunion subcontractor, and a third for all other nonunion subcontractors. The union will not ordinarily picket the neutral gate, and employees of nonunion subcontractors generally cross picket lines without remorse. However, should there be problems on the picket line, it may become necessary to go into state court to seek a temporary restraining order and a preliminary injunction against the union. Your labor law attorney can assist you in these matters.
What do I do if the union files charges against my company with the National Labor Relations Board? The first thing to do is contact your labor law attorney and send a copy of the charge to him or her. Don't panic. Unions often use charges with the Board as leverage in their organizing drives. The materials you receive from the Board may state an immediate response to the charge is necessary. However, the practical reality is that the Board agent will notify your labor law attorney when evidence has been presented by the charging party, at which time you will be asked to present evidence disputing the charging party's evidence. Your labor law attorney is in the best position to advise you about what evidence should be presented and whether to make you or any of your employees available for Board affidavits.
My company just received notice from the Department of Labor that they want to audit our records. What do I do about giving them access to the records? The Department of Labor (DOL) may audit an employer's records for a number of reasons. A DOL audit may be part of a routine audit for a particular industry, or it may be the result of a complaint by current or former employees concerning overtime pay. The Fair Labor Standards Act (FLSA) requires that you make your records available for inspection. If your employees have been paid in accordance with the FLSA and you maintain the appropriate payroll records, you should have no problems. You should contact your labor law attorney if you are notified by the DOL that they want to audit your records.
If I put all of my employees on salary, do I still have to pay them overtime? Most employees are covered by the Fair Labor Standards Act (FLSA) in respect to overtime payments. State laws can require greater overtime pay than the FLSA, but not less. However, how employees are paid is not the determining factor when it comes to overtime pay. What employees do determines whether they must be paid for hours worked beyond forty (40) in a week or beyond eight (8) in a day in some states. Employees can be paid on a salary basis, and still be entitled to overtime pay, depending on their job duties. You should contact your labor law attorney if you have specific questions about overtime pay.
Branton Law Office
312 S. Jones Blvd.
Las Vegas, NV 89107
Phone: 702-475-3534
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