Have your employees become discontent, asked for higher pay and better benefits or grumbled about recent management changes? If so, beware-it’s these workers who are most likely to become interested in forming a union. And if this happens, it’s critical that you know exactly what the law allows you to do in response to their organizing efforts. The rules are strict and a single misstep could be costly. One employer recently learned this after it fired employees and subcontracted out their work on the eve of a union election. We’ll go over what happened and give you tips on how to handle this tricky situation.
Employees Disgruntled Over New Work Conditions
Liquid Air Corporation merged with another company and shifted its union truck drivers to the new firm’s non-union plant in Southern California. Although the drivers were no longer part of a union, Liquid Air allegedly assured them nothing would change.
But not long after the move, the company began paying workers a piece rate rather than an hourly wage. Over the next year, the rate was cut so that the truckers had to work harder and longer hours to make the same money. Drivers also began complaining about poor truck maintenance and other problems.
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Employer Fires Workers Just Before Union Election
The situation deteriorated and the truckers began to organize a union. On the eve of the union election, Liquid Air fired them and subcontracted out their work to an independent trucking company.
A group of drivers took Liquid Air to court, charging they were fired illegally because the company feared that the union was going to win the election. Liquid Air, however, argued that it legitimately terminated the workers and outsourced the work to save costs.
Big Verdict Against Employer
A jury sided with the workers and ordered Liquid Air to pay more than $860,000.9 Plus, the company settled with several other truckers before trial for an additional $475,000.
Typically, the National Labor Relations Board (NLRB) decides cases involving charges that an employer interfered with union organizing efforts. However, due to a technicality, a jury heard this dispute. Cases before the NLRB can be just as expensive, though, because the agency can award back pay and order you to reinstate the workers.
Know Your Rights
The surest way to avoid these problems is to be on your toes before employees begin organizing. Robert M. Cassel, a partner in the San Francisco office of the law firm of Jackson, Lewis, Schnitzler & Krupman, points out the common-sense philosophy that if you offer employees competitive pay, benefits and working conditions, and respond swiftly to their concerns, they’ll be less likely to seek out union representation. And if a union targets your organization, employees might not be receptive if they are already satisfied.
But if an organizing effort is under way, it’s critical to have a clear understanding of the strict rules about what is permitted:
- Educate workers. One effective way to handle a union campaign is to let employees know the facts about the union so they can make an informed decision. Cassel says you can show workers the union’s financial statements and constitution, its negative press clippings, its strike record and results, and even contracts it has with other employers in your industry showing the wage rate is no better or perhaps lower than you currently pay.
You can also present testimonials from individuals who have had prior experience with the union. However, to avoid losing your credibility with workers, it’s important to present the information truthfully.
Note, too, that you can express your own opinions about having a union. For example, you can tell employees you think a third party who knows nothing about your company’s operations is not in the best position to make decisions on behalf of the workers.
- Handle discipline and performance issues cautiously. You’re prohibited from disciplining, terminating, or in any way discriminating against workers for their organizing efforts, such as attending union meetings. But behavior for which an employee would have been disciplined or fired regardless of their union activity is not protected. So if someone isn’t doing their job properly, you can take action. However, make sure any problems are well documented and you follow your policies and procedures to the letter.
- Have clear economic justifications for layoffs. If you’re going to terminate workers while a union election is pending, be careful to avoid the pitfalls that tripped up Liquid Air. You’ll have to show the move was motivated by economics and not in any way by a desire to defeat the union. This may be impossible unless the layoffs were planned before the organizing started.
- Avoid making threats or promises. Cassel notes, for example, that you can’t tell employees that if the union comes in you’ll close up shop, cut wages or increase work hours. Also, you can’t make promises about what you’ll do if the union election fails, such as pledging a bonus. Similarly, while an election is pending, it’s important to avoid changing pay, benefits or working conditions unless there were previous concrete plans to do so.
- Don’t question or monitor workers’ union activities. Asking employees how they intend to vote is illegal. And, you’re prohibited from setting up any surveillance to monitor workers’ union activities, such as meetings and discussions.
- Use caution when restricting buttons and meetings. Workers have the right to wear buttons proclaiming union support. But if employees deal with the public, you can ask that they not wear buttons carrying offensive messages. Also, employees can have meetings and discussions regarding the union, but you can forbid these activities during work hours.
- Allow leafleting in non-work areas. Employees may pass out union leaflets. However, you can restrict this activity to non-work areas and non-work time so long as you have a no-solicitation policy and apply it consistently to all types of workplace solicitations and distributions.