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 employees of nonprofit organizations. Unionization and collective bargaining give rise to specific issues in the nonprofit sector. Nonprofit employers should 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 answer requests for information related to the collective bargaining process unless and until a union wins an election or otherwise is recognized as the workers’ bargaining representative. This rule gives for-profit employers an information advantage during the early stages of union activity.
On the other hand, a union can obtain a great deal of information about a non-profit employer regardless of whether the union has won an election or has otherwise been recognized. An organization’s Forms 990 are subject to public disclosure and are usually available to anyone online. Moreover, depending on state freedom of information laws, the organization may be subject to Freedom of Information Act or state public information act requests. Many nonprofit organizations have community-based boards, and it is possible that individual board members who support labor might share information to further labor’s interests.
It can be challenging to reconcile the duty to bargain with the grant funding process. When a union wins an election or otherwise is recognized, the NLRA imposes a duty on the employer and the union to bargain in good faith over wages, hours, terms, and conditions of employment. In short, employers are prohibited from unilaterally making decisions about matters such as wages and benefits. However, many non-profit employers must submit budgets and other information to funders in order to receive funds. Budgets and grant requests require numerous decisions about staffing and compensation. The deadline for such decisions does not always coincide with the timeline for bargaining. Nonprofit employers can find themselves stuck between the proverbial “rock and hard place.” They must meet grant deadlines, and they must bargain, yet it is impractical to bargain every time a grant request or budget must be submitted.
Navigating the dual obligations to meet grant deadlines and to bargain is an art that requires finesse. Grant submissions must anticipate and allow flexibility to accommodate insofar as possible staffing and compensation changes that may flow from future bargaining. Some funders recognize the need and will allow enough discretion to facilitate bargaining, and some will not. Grant funds can come with all sorts of restrictions, including floors and ceilings on compensation. In these circumstances, the best employers may be able to do is bargain within those restrictions and be prepared to explain that the restrictions are the purview 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 open meeting requirements. If open meeting laws apply, the only way to preserve confidentiality is for the board to go into 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, can request speaking time at “open” board meetings. This practice affords union members the opportunity to “leapfrog” the union’s bargaining representatives and make their cases directly to the board. Unfortunately, it is difficult for individuals who have not been “at the table” to get a clear picture of ongoing bargaining from information that has been shared with them through unofficial channels.
Organization and Advocacy
Many nonprofit organizations engage in community organization and advocacy as part of their missions. The skills that employees use to serve their organizations are the same skills that enable them to unionize. And there may be tension between an organization’s philosophy and business practices and its desire to limit unionization.\
The Steptoe & Johnson National Labor Relations Act Team has extensive experience with the impacts of union organization and bargaining on nonprofit organizations. We stand ready to help you fully evaluate the issues unique to your organization.