You may have heard some misinformation lately from T-Mobile about whether T-Mobile Workers United (TU) can represent T-Mobile workers, given its stance as a 'minority union.' They've even sent a vaguely threatening letter to T-Mobile workers, incorrectly claiming they are legally barred from talking to TU workers as they're members of a 'minority union.'  

To clear things up, we held the following interview with labor law expert Catherine Fisk, a professor at University of California, Irvine School of Law, about whether it is legal for TU to represent workers at T-Mobile, and what TU can and can't do.

In a nonunion workplace, is it legal for a company to talk about workplace issues with representatives elected by a segment (even a minority) of its workforce? 

Answer: Yes, it is entirely legal for a company to talk with representatives elected by a segment, including a minority, of its workforce.

A company cannot dominate the formation of the employee organization, by controlling its leadership or agenda, but if the employees form it themselves the employer is free to meet and confer with the representatives.

Once a union is certified by the NLRB as the exclusive representative of a bargaining unit, the company violates labor law by bargaining with a minority representative. But until there is a majority union, there is no legal obstacle to the company meeting with representatives of a minority of the workforce.

If it is legal, has it ever been done before?

Answer: Indeed, companies do it all the time on all kinds of issues. Companies meet with groups of workers who are formally or informally selected by co-workers to discuss concerns about benefits, wages, how work gets done, scheduling, and everything else.

If it is legal, how far can a minority union go in representing its members? (For example: could a minority union go beyond just meeting and discussing issues with the company? could it bargain a binding members-only contract?)

Answer: A minority union can bargain a binding members-only contract, and the contract will be enforceable on the same terms as any other contract between a company and its individual employee or a group of employees. The Supreme Court held in Consolidated Edison Co. v. NLRB, that a contract between a company and a union covering only the union’s members was enforceable.

Why would a company and some of its employees want to engage in meet-and-confer through a minority union?

Answer: A company might find it more efficient to meet and confer with a minority union, as it would spare the time necessary to meet separately with dozens of individuals. Company managers often prefer to speak with workers who are informed and articulate about the concerns of their co-workers because they find the discussions more productive and informative. And they may also prefer to speak with people who will be influential in persuading co-workers that the company’s point of view is sensible and fair.

In a nonunion workplace, do employees have a right to ask the company to speak with their co-worker representatives about workplace issues, even if those representatives are not speaking for the majority of workers (or exclusively for all workers)?

Answer: Employees in a nonunion workplace have a right protected by section 7 of the National Labor Relations Act to bargain collectively and to engage in other activities for protection. The right to ask the company to meet with representatives of the employees does not turn on whether the representative has been elected by a majority of the workforce.