Have your employees been grumbling about wanting better pay and benefits? If so, you could be headed for a union-organizing drive, and it’s critical that you know what the law allows you to do. A recent case involving an employer that promised better pay and handed out perks to employees on union election day demonstrates that your missteps can have serious consequences.
Disgruntled Employees Begin Organizing
Harlan Cross, an employee at Berkeley telefundraiser Stephen Dunn & Associates, was dissatisfied with his pay and benefits. When he learned that a competitor’s employees were unionized, he contacted a union representative. Soon, a small group of Stephen Dunn employees began organizing.
Employer Kicks Off Anti-Union Campaign
Stephen Dunn responded by launching an anti-union campaign. At weekly “captive audience” meetings, the company allegedly threatened employees with more onerous work conditions if the union was voted in. It also implied that it would remedy worker complaints and increase benefits if employees rejected representation. Plus, the company reportedly gave the first across-the-board wage increase in more than two years.
Stephen Dunn also allegedly interrogated employees about their union sympathies, banned distribution of union literature, enforced dormant work rules and hired unneeded employees to dilute the strength of the pro-union majority. And on election day, the employer gave all employees new ergonomic chairs.
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Union Claims Employer Committed Unfair Labor Practices
The union garnered the majority support needed to hold an election but then lost by a two-thirds vote. The union marched to the National Labor Relations Board, claiming that Stephen Dunn had engaged in illegal anti-union activities that interfered with the election. The NLRB asked a federal court to order Stephen Dunn to bargain with the union pending the agency’s full review of the charges. Stephen Dunn, however, contended that it couldn’t be forced to bargain before the NLRB resolved the underlying unfair labor practice charges. The court denied the NLRB’s request for an interim bargaining order, and the NLRB appealed.
Court Says Employer Must Negotiate With Union
The Ninth Circuit Court of Appeals sided with the NLRB. The court explained that an interim bargaining order is an extreme and unusual remedy. But it is appropriate when either 1) it’s likely that the NLRB will ultimately find that the employer engaged in such outrageous and pervasive unfair labor practices that a fair election couldn’t be held, or 2) the union had majority support going into the election that was undermined by the employer’s unfair labor practices.
The court found that Stephen Dunn’s alleged violations were sufficiently egregious to erode union support and prevent a fair second election. Employees admitted that the company’s tactics made them afraid to vote for the union. And the last-minute wage increase and election-day gift of ergonomic chairs were highly coercive actions that likely discouraged union support. Thus, the court ordered Stephen Dunn to bargain with the union pending the outcome of the union’s charges before the NLRB.
Do’s And Don’ts During Union-Organizing Campaigns
The surest way to avoid similar problems is to respond to worker concerns before employees begin organizing. Employees will be less likely to seek union representation if you offer competitive pay, benefits and working conditions and promptly address their concerns. But if an organizing effort is under way, it’s crucial that you know the strict rules governing what’s permitted:
- Do educate workers. Let employees know the facts about the union so they can make an informed decision. You can show workers the union’s financial statements and constitution, negative press clippings, strike record and results, and even industry and regional wage comparisons that show other employees don’t earn more than you currently pay. Also, you can express your opinions about having a union.
- Do handle discipline and performance issues carefully. It’s illegal to take adverse action against workers for their organizing efforts. But behavior you would have disciplined or fired someone for regardless of their union activity isn’t protected. Make sure problems are well documented before taking action and scrupulously follow your policies and procedures.
- Do be careful about e-mail. Because e-mail can quickly reach many people, union organizers are increasingly using company e-mail to enlist employee support. You can’t block union access to your e-mail unless you have and enforce a policy allowing company e-mail use only for business purposes.
- Don’t make threats or promises. You can’t, for example, tell employees that if the union comes in you’ll close up shop, cut wages or increase work hours. Nor can you promise perks if the election fails. And while an election is pending, don’t change pay, benefits or work conditions unless you had concrete plans to do so beforehand.
- Don’t question or monitor workers’ union activities. It’s illegal to ask employees how they intend to vote. Surveillance of workers’ union activities, such as meetings and discussions, is also prohibited. But you can forbid union discussions during work hours and ask employees not to wear buttons with offensive messages.
- Don’t ban all leafleting. You can restrict leafleting to non-work areas and non-work time if you have a no-solicitation policy and apply it consistently to all types of workplace solicitations and distributions.