The Decision to Recognize a Union versus a Board Election— the Denver Art Museum’s Recent Unionization

Ashley Graves, Associate

In the wake of a contentious unionization effort, Denver Art Museum (the “Museum”) workers successfully unionized on March 7th, 2024.[1]  Museum workers voted to affiliate with the American Federation of State, County, and Municipal Employees (“AFSCME”).  The vote came after AFSCME filed a charge with the National Labor Relations Board (“NLRB”), accusing the Museum’s management of unfair labor practices during the unionization drive.

Background

On January 11, 2024, Museum workers notified management that they planned to unionize, citing concerns about higher wages, leadership accountability, career development opportunities, and better safety protocols as being the top issues fueling the effort to organize.[2]  Management initially declined to recognize the employee bargaining unit, Denver Art Museum Workers United (“DAMWU”), which at the time had already received support from over 200 workers.  DAMWU subsequently petitioned the NLRB for a supervised election.

During the employees’ ongoing unionization efforts, AFSCME filed a charge with the NLRB against the Museum on February 28, 2024, accusing it of over twelve unfair labor practices including chilling employees’ right to engage in concerted activity, dissuading employees from forming a union, surveilling and interrogating employees interested in unionizing, and using employee lunch breaks to hold meetings “informing” them of their statutory labor rights.[3]    

The NLRB held the representation election on March 6, and 7, 2024 where over 67% of participating eligible employees voted in favor of unionizing.  Per the AFSCME’s recent statements, it and employees will now prioritize addressing staffing issues; career advancement; fair disciplinary processes; and securing wages commensurate with experience, tenure, and inflation.[4]     

 Voluntary Union Recognition vs. Board Elections

There are two ways workers may form a union: 1) through voluntary recognition, and 2) through an NLRB election.  As explained above, Museum employees initially tried to unionize by requesting that the Museum voluntarily recognize their bargaining unit.  This may be accomplished when a majority of eligible employees sign union authorization cards and present them to the employer along with making the request.  Alternatively, when the employer refuses to recognize the union, as the Museum did here, employees must then have at least 30% of coworkers sign union authorization cards, file a petition with the NLRB, and, at the election, over 50% of employees casting votes must vote in favor of unionization in order for the union to be recognized as the employees’ exclusive bargaining representative.  

Importantly, during an election campaign, an employer may communicate to employees its views about unions provided that the employer does not make any threats or promises; communicate predictions about “the precise effects” unionization may have on the company, as long as the prediction is based on objective facts; and maintain and enforce nondiscriminatory rules prohibiting employees from engaging in solicitation during work hours.[5]

 Key Takeaways

Employers are free to put employees’ initial showing of interest in favor of unionizing to the test by going to an NLRB-supervised election, but employers must be mindful of the NLRB’s restrictions and requirements as to how they may campaign against unionization—or else they risk drawing charges similar to the charge drawn by the Museum.  Campbell Litigation remains available to assist with these and other issues relating to union organization campaigns, as well as other labor and employment issues.

[1]https://www.denverartmuseum.org/en/press/release/statement-denver-art-museum-re-unionization-election

[2]https://www.damworkersunited.org/letter-colleagues

[3]https://www.nlrb.gov/case/27-CA-336818

[4]https://www.afscme.org/blog/success-workers-at-the-denver-art-museum-elect-their-union

[5]https://www.nlrb.gov/about-nlrb/rights-we-protect/the-law/election-related-content