H. Mark Adams
Direct Dial: 504-582-8258
Direct Fax: 504-589-8258
madams@joneswalker.com
Steve Cupp
Direct Dial: 228-822-8519
Direct Fax: 228-864-0516
scupp@joneswalker.com
Sidney F. Lewis V
Direct Dial: 504-582-8352
Direct Fax: 504-589-8352
slewis@joneswalker.com
THE NEW UNION ORGANIZING THREAT
INTRODUCTION
The National Labor Relations Board (the “Board”) has been as active in 2012 as
any other year on record. There have been some major role changes and Board
decisions that may very well kick start unions into an organizing mode. The following
depicts those changes, and information on how employers can best prepare their
defenses.
1.
EMPLOYERS REQUIRED TO POST NOTICE OF EMPLOYEES’
RIGHT TO UNIONIZE
On April 30, 2012, most private sector employers will be required to post a
workplace notice of employee rights under the National Labor Relations Act (NLRA). In
essence, the notice (see Section 2 and attachment) informs employees that they have
the right to form and join unions and bargain collectively with their employers and to
engage in other protected concerted activities, or to refrain from engaging in any of
those activities. Specific rights are outlined, as well as prohibited conduct by employers
and unions.
The 11” x 17” poster will be provided at no charge by regional NLRB offices or
can be downloaded from the NLRB’s website. Translated versions also will be
available, and must be posted at workplaces where at least 20% of employees are not
proficient in English. Employers also must post the notice on an internet or intranet site
if personnel rules and policies customarily are posted there. The notice is similar in
content and design to the one employers who are federal contractors are required to
post under a rule published by the U.S. Department of Labor (DOL) last year. (See
{N2440413.2}
JONES, WALKER, WAEC HTER, POITEVENT, CARRÈRE & DENÈGRE L.L.P.
201 ST. CHARLES AVENUE ▪ NEW ORLEANS, LOUISIANA 70170-5100 ▪ 504-582-8000 ▪ FAX 504-582-8583 ▪ E-MAIL info@joneswalker.com ▪ www.joneswalker.com
ALABAMA
ARIZONA
DISTRICT OF COLUMBIA
FLORIDA
LOUISIANA
MISSISSIPPI
TEXAS
section 3.) Under the NLRB’s new posting rule, employers who post the DOL notice
required for federal contractors will be considered to be in compliance with the new
NLRB posting rule.
The United States government and wholly-owned government corporations,
federal reserve banks, states and their political subdivisions, the U.S. Postal Service,
and agricultural, railroad and airline employers are exempt from the new posting
requirement. So are small employers that don’t meet the annual volume of business
thresholds required for NLRB jurisdiction. The threshold for retail employers is a gross
annual volume of business of $500,000 or more. For non-retail employers, the Board
generally has jurisdiction if the employer’s annual inflow or outflow to other states is at
least $50,000.
The NLRB will not inspect employers for compliance. Employers found not to be
in compliance will be ordered to cease and desist from the unlawful conduct and to post
the notice as well as a remedial notice. There are no fines or penalties.
The National Association of Manufacturers (“NAM”) and other employer
associations filed suit in an effort to have the federal court strike down the NLRB rule. In
March, 2012, in a 46 page opinion, Washington, D.C. Circuit Judge Amy Berman
Jackson held that the NLRB had the authority to require employers to post the notice,
but ruled that that part of the rule that made it a failure to post a notice a separate unfair
labor practice was invalid. Judge Jackson also struck down the provisions of the rule
that tolled the National Labor Relations Act’s six month statute of limitations during the
period the notice was not posted at a worksite. Finally, Judge Jackson refused to rule
that the Board’s recess appointments were invalid. The NAM and other employer
associations asked Judge Jackson to enjoin the mandatory requirement of posting the
notice during the pendency of their appeal in the Court of Appeals, but the judge
refused to enjoin this requirement. The ruling means that all employers covered by the
NLRA must post the notice beginning April 30, 2012.
2.
NATIONAL LABOR RELATIONS BOARD LANGUAGE
The National Labor Relations Act (NLRA) guarantees the right of employees to
organize and bargain collectively with their employers, and to engage in other protected
concerted activity. Employees covered by the NLRA* are protected from certain types of
employer and union misconduct. This Notice gives you general information about your
rights, and about the obligations of employers and unions under the NLRA. Contact the
National Labor Relations Board (NLRB), the Federal agency that investigates and
resolves complaints under the NLRA, using the contact information supplied below, if
you have any questions about specific rights that may apply in your particular
workplace.
a. Under the NLRA, you have the right to:
{N2440413.2}
2















Organize a union to negotiate with your employer concerning your wages,
hours, and other terms and conditions of employment.
Form, join or assist a union.
Bargain collectively through representatives of employees' own choosing
for a contract with your employer setting your wages, benefits, hours, and
other working conditions.
Discuss your terms and conditions of employment or union organizing with
your co-workers or a union.
Take action with one or more co-workers to improve your working
conditions by, among other means, raising work-related complaints
directly with your employer or with a government agency, and seeking
help from a union.
Strike and picket, depending on the purpose or means of the strike or the
picketing.
Choose not to do any of these activities, including joining or remaining a
member of a union.
Under the NLRA, it is illegal for your employer to:
Prohibit you from soliciting for a union during non-work time, such as
before or after work or during break times; or from distributing union
literature during non-work time, in non-work areas, such as parking lots or
break rooms.
Question you about your union support or activities in a manner that
discourages you from engaging in that activity.
Fire, demote, or transfer you, or reduce your hours or change your shift, or
otherwise take adverse action against you, or threaten to take any of
these actions, because you join or support a union, or because you
engage in concerted activity for mutual aid and protection, or because you
choose not to engage in any such activity.
Threaten to close your workplace if workers choose a union to represent
them.
Promise or grant promotions, pay raises, or other benefits to discourage or
encourage union support.
Prohibit you from wearing union hats, buttons, t-shirts, and pins in the
workplace except under special circumstances.
Spy on or videotape peaceful union activities and gatherings or pretend to
do so.
b. Under the NLRA, it is illegal for a union or for the union that represents you in
bargaining with your employer to:


Threaten you that you will lose your job unless you support the union.
Refuse to process a grievance because you have criticized union officials
or because you are not a member of the union.
{N2440413.2}
3





Use or maintain discriminatory standards or procedures in making job
referrals from a hiring hall.
Cause or attempt to cause an employer to discriminate against you
because of your union-related activity.
Take other adverse action against you based on whether you have joined
or support the union.
If you and your co-workers select a union to act as your collective
bargaining representative, your employer and the union are required to
bargain in good faith in a genuine effort to reach a written, binding
agreement setting your terms and conditions of employment. The union is
required to fairly represent you in bargaining and enforcing the agreement.
Illegal conduct will not be permitted. If you believe your rights or the rights
of others have been violated, you should contact the NLRB promptly to
protect your rights, generally within six months of the unlawful activity. You
may inquire about possible violations without your employer or anyone
else being informed of the inquiry. Charges may be filed by any person
and need not be filed by the employee directly affected by the violation.
The NLRB may order an employer to rehire a worker fired in violation of
the law and to pay lost wages and benefits, and may order an employer or
union to cease violating the law. Employees should seek assistance from
the nearest regional NLRB office, which can be found on the Agency's
website:
http://www.nlrb.gov.
You can also contact the NLRB by calling toll-free:
l-866-667-NLRB (6572) or
(TTY) 1-866-315-NLRB (1-866-315-6572) for hearing impaired.
The National Labor Relations Act covers most private-sector employers.
Excluded from coverage under the NLRA are public-sector employees, agricultural and
domestic workers, independent contractors, workers employed by a parent or spouse,
employees of air and rail carriers covered by the Railway Labor Act, and supervisors
(although supervisors that have been discriminated against for refusing to violate the
NLRA may be covered).
"This is an official Government Notice and must not be defaced by anyone."
Subpart B -- General Enforcement and Complaint Procedures
§ 104.210 How will the Board determine whether an employer is in
compliance with this part?
{N2440413.2}
4
Normally, the Board will determine whether an employer is in compliance when a
person files an unfair labor practice charge alleging that the employer has failed to post
the employee notice required under this part. Filing a charge sets in motion the Board’s
procedures for investigating and adjudicating alleged unfair labor practices, and for
remedying conduct that the Board finds to be unlawful. See NLRA Section 10-11, 29
U.S.C.160-61, and 29 CFR Part 102, Subpart B.
§ 104.211 What are the procedures for filing a charge?
(a) Filing charges. Any person (other than Board personnel) may file a charge
with the Board alleging that an employer has failed to post the employee notice as
required by this part. A charge should be filed with the Regional Director of the Region
in which the alleged failure to post the required notice is occurring.
3.
FEDERAL CONTRACTOR NOTICE LANGUAGE
The National Labor Relations Act (NLRA) guarantees the right of employees to
organize and bargain collectively with their employers, and to engage in other protected
concerted activity or to refrain from engaging in any of the above activity. Employees
covered by the NLRA* are protected from certain types of employer and union
misconduct. This Notice gives you general information about your rights, and about the
obligations of employers and unions under the NLRA. Contact the National Labor
Relations Board (NLRB), the Federal agency that investigates and resolves complaints
under the NLRA, using the contact information supplied below, if you have any
questions about specific rights that may apply in your particular workplace.
a. Under the NLRA, you have the right to:







Organize a union to negotiate with your employer concerning your wages,
hours, and other terms and conditions of employment.
Form, join or assist a union.
Bargain collectively through representatives of employees' own choosing
for a contract with your employer setting your wages, benefits, hours, and
other working conditions.
Discuss your wages, benefits and other terms and conditions of
employment or union organizing with your co-workers or a union.
Take action with one or more co-workers to improve your working
conditions by, among other means, raising work-related complaints
directly with your employer or with a government agency, and seeking
help from a union.
Strike and picket, depending on the purpose or means of the strike or the
picketing.
Choose not to do any of these activities, including joining or remaining a
member of a union.
{N2440413.2}
5
b. Under the NLRA, it is illegal for your employer to:







Prohibit you from talking about or soliciting for a union during non-work
time, such as before or after work or during break times; or from
distributing union literature during non-work time, in non-work areas, such
as parking lots or break rooms.
Question you about your union support or activities in a manner that
discourages you from engaging in that activity.
Fire, demote, or transfer you, or reduce your hours or change your shift, or
otherwise take adverse action against you, or threaten to take any of
these actions, because you join or support a union, or because you
engage in concerted activity for mutual aid and protection, or because you
choose not to engage in any such activity.
Threaten to close your workplace if workers choose a union to represent
them.
Promise or grant promotions, pay raises, or other benefits to discourage or
encourage union support.
Prohibit you from wearing union hats, buttons, t-shirts, and pins in the
workplace except under special circumstances.
Spy on or videotape peaceful union activities and gatherings or pretend to
do so.
c. Under the NLRA, it is illegal for a union or for the union that represents you in
bargaining with your employer to:







Threaten or coerce you in order to gain your support for the union.
Refuse to process a grievance because you have criticized union officials
or because you are not a member of the union.
Use or maintain discriminatory standards or procedures in making job
referrals from a hiring hall.
Cause or attempt to cause an employer to discriminate against you
because of your union-related activity.
Take adverse action against you because you have not joined or do not
support the union.
If you and your co-workers select a union to act as your collective
bargaining representative, your employer and the union are required to
bargain in good faith in a genuine effort to reach a written, binding
agreement setting your terms and conditions of employment. The union is
required to fairly represent you in bargaining and enforcing the agreement.
Illegal conduct will not be permitted. If you believe your rights or the rights
of others have been violated, you should contact the NLRB promptly to
protect your rights, generally within six months of the unlawful activity. You
may inquire about possible violations without your employer or anyone
else being informed of the inquiry. Charges may be filed by any person
and need not be filed by the employee directly affected by the violation.
{N2440413.2}
6
The NLRB may order an employer to rehire a worker fired in violation of
the law and to pay lost wages and benefits, and may order an employer or
union to cease violating the law. Employees should seek assistance from
the nearest regional NLRB office, which can be found on the Agency's
website:
http://www.nlrb.gov.
You can also contact the NLRB by calling toll-free:
l-866-667-NLRB (6572) or
(TTY) 1-866-315-NLRB (1-866-315-6572) for hearing impaired.
If you do not speak English well, you may obtain a translation of this notice from
the NLRB’s Web site or by calling the toll free numbers listed above.
The National Labor Relations Act covers most private-sector employers.
Excluded from coverage under the NLRA are public-sector employees, agricultural and
domestic workers, independent contractors, workers employed by a parent or spouse,
employees of air and rail carriers covered by the Railway Labor Act, and supervisors
(although supervisors that have been discriminated against for refusing to violate the
NLRA may be covered).
"This is an official Government Notice and must not be defaced by anyone."
4.
PERMISSIBLE “COUNTER NOTICE”
ABC Company is committed to maintaining positive relations among its
employees so as to promote maximum personal and professional development,
productivity and achievement. We are dedicated to treating all employees fairly and with
the respect that each individual deserves. We believe just as strongly in providing a safe
workplace, good working conditions, competitive compensation, and open
communications among employees at all levels to permit timely resolution of concerns
in an atmosphere of mutual trust. We are committed to ensuring that all employees
share this philosophy.
We greatly value our ability to work with our employees individually, and we
firmly believe the interests of all of us are best served without the involvement and
interference of a union. We believe unions intentionally disrupt positive employee
relations in an effort to create an unhealthy adversarial relationship between employees
and company management. We respect the rights of employees allowed by law to
participate in a union if they choose to do so. However, if a union ever attempts to
organize at our company, we will oppose that effort to the full extent permitted by law.
{N2440413.2}
7
5.
NEW ELECTION RULES
Due to the failure of the Employee Free Choice Act (EFCA) to pass Congress,
which would have made it easier for unions to organize employers by bypassing the
NLRB secret ballot election process, Organized Labor began pressuring the
Administration to implement as much as it could of what EFCA would have provided
through regulatory action. As a result, the NLRB’s new representation election rules,
which go into effect on April 30, 2012, are designed to give unions a leg up and to limit
the ability of employers to oppose union election campaigns. Among other things, the
new election rules mandate so-called “quickie” elections and leave employers very little
time to mount an effective opposition campaign. The new election rules limit the type of
pre-election legal challenges available to employers. There will be fewer pre-election
hearings and balloting will take place more rapidly. Furthermore, because employers
may no longer contest voter eligibility, including a determination of who is a supervisor,
prior to the election, they will be more susceptible to unfair labor practice charges for
acts committed by employees who are later found to be supervisory in nature.
The only challenges left to employers will be limited to whether a union has
produced a sufficient showing of interest. Furthermore, in any pre-election hearing, the
hearing officer has the discretion whether to accept post-hearing briefs. Where such
briefs are not accepted, the decision process and election time frame shrinks. Finally, a
review of the Regional Director’s pre-election decision is no longer permitted.
The new rules also give unions easier access to employees by requiring
employers to include employee phone numbers and e-mail addresses on eligible voter
lists provided to union organizers. The current rules require employers to disclose only
names and home addresses of their employees.
The Chamber of Commerce has already filed a legal challenge to the new rules,
and the House of Representatives passed H.R. 3094, the Workplace Democracy and
Fairness Act, which would reverse a number of the changes.
6.
ANOTHER PRO-UNION DECISION BY THE NLRB: UNIONS NOW
ALLOWED TO ORGANIZE SELECT EMPLOYEE GROUPS INSTEAD
OF COMPANY-WIDE
In the latest move by the National Labor Relations Board (the “Board”) making it
easier for unions to organize, the Board ruled on December 30, 2011, that unions may
now target select groups of employees instead of organizing larger groups of
employees with general common interests company or facility-wide. In a case involving
Northrop Grumman Shipbuilding, Inc., the Board affirmed a Regional Director’s Order
directing an election for a union-selected unit consisting only of nuclear safety
technicians at a shipyard that builds nuclear-powered aircraft carriers and submarines.
In other words, the Board allowed the union to carve out only the technicians the union
wanted to organize, ignoring the other technicians at the facility even though they
shared some community of interests with the nuclear safety technicians.
{N2440413.2}
8
The Board based its decision on their prior ruling that the National Labor
Relations Act does not require the most appropriate unit, but merely an appropriate unit.
In the Specialty Healthcare case, decided in August, 2011, the Board reversed over 50
years of legal precedent in deciding that additional employees outside a voting unit
proposed by the union can be included only when there is no “legitimate” basis on which
to exclude them.
The effect of these decisions is that unions may now try to organize narrow
groups of employees, such as those in a particular job title or department, who may be
disgruntled for one reason or another.
7.
HOW UNIONS SELECT THEIR TARGETS
a.
Role of Employees
More often than not, employees are the genesis of a union organizing drive.
Based upon any of the reasons discussed in the previous section, employees may go
seek out a union to change or correct perceived or real problems. This is in contrast to
instances where a union actually targets a particular company or facility, and
professional organizers enlist the support of employees in the organizing process.
b.
Unionized Sister Facilities
A union that represents the employees at a particular facility of a company is well
aware of the other company facilities. If they are nonunion, they represent a clear and
perhaps easy opportunity to gain new members.
In these instances, the union has built-in arguments which can be very effective
in persuading employees to sign union authorization cards and to vote for the union.
The union can point out that the company already enjoys an existing relationship with
the union; there is no problem with supporting the union here. If the wages and benefits
are stronger at the sister facility, then the union can tell the employees that it will be able
to get the same for them since the company has already agreed to those wages and
benefits once before, or, a variation would be to tell the employees that they are as
good as the workers at the other union facility, and they should be treated the same. A
very significant advantage to a union in this instance is that it can employ unionized
workers from the sister facility to use in attempting to organize the other nonunion
facility.
c.
Local Union Office
The source of a union organizing campaign can be the location of a local union
office in the geographic area of a national union. The local office can be the eyes and
ears of a national union for the locality. It knows what is going on in the business
community in the area. It knows when new facilities open and others close. It is aware
of growth and expansion plans of business facilities and properties in an area. Most
{N2440413.2}
9
importantly, a local union office has a presence--political and economic--in the
employees who are its members.
d.
Number of Employees
The size of a company can make it a target. Facilities with large numbers of
employees offer unions an opportunity to expand their membership base and their
economic strength through initiation fees, dues, and assessments. Larger companies
also tend to be high profile companies, and a union organizing campaign can thrust the
union into the local spotlight with the possibility of building its reputation, and more
importantly, attracting employees of other nonunion companies to seek it out.
Companies with small numbers of employees are not normally a prime target unless
they happen to be a high profile employer despite their size.
e.
Past Conflicts and Problems
A company which has had its share of employee relations problems and
difficulties can be a magnet for a union. Employee discontent which becomes known in
the local business community or to the media is fertile ground for a union.
f.
Wages and Benefits
Are the wages and benefits at the facility low for the area? Are they low for the
industry? This can be a factor which causes a union to target a facility.
g.
Community Attitude
What is the attitude in the community toward unions? Is the community populated
with businesses and companies that are predominantly union? Is the city a “union
town?” Do union officials play an active and significant role in local politics?
h.
Other Unions in the Area
Are there other unions in the area? The more unions in an area, the more likely
one is to target a particular nonunion company.
i.
The Anticipated Response of the Company
What is the anticipated response from the company? Does the company have
unions at its other facilities and get along with unions, or is the company’s reputation
that it will strongly oppose any union organizational attempts?
8.
HOW UNIONS GAIN RECOGNITION
a. Overview
There are a number of ways in which a union can gain recognition of the
employees at a company. Generally speaking, the union will seek the means which
{N2440413.2}
10
offers the union the most desirable unit of employees at the least cost (money, man
hours, concessions) and is the most readily achievable. Voluntary recognition of the
union by the company as discussed below would normally be the union’s favored
method. Should the company not voluntarily recognize the union, but choose to oppose
the union’s organizing efforts, the union may try various tactics to achieve its organizing
goal. The traditional approach would be to file a petition with the National Labor
Relations Board seeking an election in the desired bargaining unit. On the other hand,
the union may seek to pressure the company to recognize the union and/or to not
oppose the union’s organizing efforts. Finally, even if a Board-certified election is held
and the union loses, the union may still seek to be certified as the bargaining
representative by claiming that the company was guilty of such massive unfair labor
practices during the course of the campaign that the only appropriate remedy would be
to certify the union as the bargaining representative.
b. Voluntary Recognition
The simplest method by which a union can become the bargaining representative
for employees would be through the so-called card check. By this means, a union
demonstrates to the employer that a majority of the employees in the bargaining unit
have signed authorization cards authorizing the union to represent them with respect to
wages, hours and working conditions with the employer. If the union has authorization
cards from a majority of the employees in the bargaining unit and the employer reviews
those authorization cards, the employer can be bound to recognize the union based
upon such conduct. Therefore, it is very important that if the company does not wish to
recognize the union as the collective bargaining agent of its employees, or if it wishes to
reserve that option, the company should not take part in reviewing any authorization
cards tendered by the union or sent to the company, its supervisors, managers or
agents by the union. The best response to the union in that situation is to decline to
review the cards and to advise the union that if it claims to represent a majority of the
company’s employees, it should follow the procedures under the National Labor
Relations Act to establish that through an election.
It is frequently the case that the card check will be held before an impartial party who
will be called upon to verify that the union in fact presented cards from a majority of the
employees in the bargaining unit.
c. Winning an NLRB Election
The traditional method for unions to obtain recognition of employees is through
an NLRB-supervised election among the employees in the bargaining unit. Before the
Board will order an election, the union must produce the signatures of 30% or more of
the employees in the bargaining unit stating that they wish to be represented by the
union. The normal method for submitting the signatures is through authorization cards
issued by the union. A union generally will not file a petition unless it has substantially
more than the 30% minimum of the employees signed up some unions decline to file a
petition unless they have cards from 70% to 80% of the employees.
{N2440413.2}
11
9.
HOW TO RECOGNIZE THE BEGINNINGS OF UNIONIZATION
Early recognition of a union organizing attempt greatly enhances an employer’s ability
to legally and successfully oppose that effort. Unfortunately, many employers who receive a
copy of a union’s petition for an election from the National Labor Relations Board are
“blindsided” by the arrival of the petition, which may well constitute their first notice that any
organizing activity was ongoing. When many of these same employers discuss the matter
with first-line supervision and middle management, however, those supervisors and
managers frequently admit that they did suspect some unusual activity was going on,
but did not think enough of it to report it to higher levels of authority. When the scenario
enfolds like this, the employer is not only left scrambling to determine the issues and develop a
campaign strategy, but it has also missed a cost-effective means of opposing unionization:
namely, heading off the organizing drive before it reaches the petition stage and the
consequent full-blown election campaign. An awareness on the part of all levels of
management as to the signs to watch for, as well as a plan on how to deal with them, are
invaluable.
a.
Identifying Key Players
To have a chance to successfully resist unionization, every employer should strive to
identify “key players” in three camps: the organizing union itself, the employee contingent, and
management. In the case of management, this task should begin even before a union
organizing effort begins. One or more managers (normally the human resources professional)
should be designated as the central repository of all information gathered pertaining to union
organizing efforts at the gaining or hospitality facility involved. All supervisors and managers
should be instructed to immediately report any signs of activity to this central manager or
managers, no matter how insignificant the sign may appear. This should ensure that critical
information does not fall through the cracks and that upper management will be in a better
position to gauge the appropriate level of response to any organizing activity. In addition to the
central information source, other key supervisors and managers should be identified who are
known to have the best rapport with employees and communication skills, since their efforts
may quickly become necessary in the course of the company’s response.
Once there is an indication of the identity of an organizing union, efforts should be
made to determine the identity of the particular organizer assigned to the case, as well as that
of the local union officers. Two purposes are served by this: first, by consulting with local
business associations, labor counsel or other contacts in the community, the employer may
well be able to learn of the organizer or local staffs’ normal modus operandi in organizing.
Second, the identity of the organizer or local union officials may in and of itself provide the
employer with a campaign tool, particularly in the case of unions whose officials have run into
trouble with the law, been accused of corruption, etc.
Finally, with respect to identifying key players among the employee contingent, an
employer may acquire an early indication of the strength and chances for success for the
union movement. Where in “in-house” leadership of the organizing drive consists of employees
who are hard workers and who are respected by their peers, the employer may be in for more
of a battle than cases where the “leaders” are widely disregarded as mere malcontents with
{N2440413.2}
12
their own individual axes to grind. In addition, a knowledge of the union’s leadership within the
facility is important in the sense that it is always critical for an employer to “know who he is
talking to” in the course of its campaign efforts. It should be stressed, however, that this
information may only be gathered lawfully (not through interrogation of other employees) and
in-house employee organizers may not be discriminated against because of those union
activities.
b.
The Early Warning Signs
It is difficult to enumerate every conceivable indication of a union organizing effort, and
much reliance must always be placed by employers in the common sense of their supervisors
and managers, however, the following are among the more common signs of a union effort
being underway:




“Huddles” of employees that quickly break up as a supervisor
approaches: this may, of course, simply be a sign that the
employees do not want to be thought of as shirking their work
duties, but if it happens more frequently than normal, or takes place
on breaks or other times when employees are not expected to be
working, then it may be a sign that an issue is being discussed
which the employees do not want the supervisor to overhear. That
subject may or may not be union organizing.
Employees seem to have difficulty looking supervisors or managers
in the eye: again, there are some employees who always have that
difficulty, but others first suffer from it when they are guilty or
nervous about some activity they are engaged in which they know
their supervisor would disapprove of.
Movement of employees outside their usual work and break areas:
some employees have a legitimate need to “roam” throughout the
facility for work-related purposes; others do not. If the latter group
are observed wandering away from their work stations, apparently
for the purpose of talking to employees in other areas or
departments, this may be a sign of union activity. It is important,
however, for the supervisors to recognize what is normal activity
and what is not, since the employee may simply be roaming the
floor to talk about a football game or a wedding or another matter of
personal interest not related to the union. Nevertheless, if this
activity increases in frequency or is engaged in by employees who
are not known for doing so, this may be cause for concern.
Conversations between employees who were not formerly friends:
Supervisors and managers frequently mention this observation in
hindsight as a precursor to a union petition. The union’s core
committee of in-house organizers are charged with the
responsibility of soliciting support for the union among their fellow
employees, and this is generally not limited to their close circle of
friends.
{N2440413.2}
13

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Changes in the nature and frequency of employee complaints:
these may not only be a sign of general discontent in the
workplace, but also a sign of a more “organized” realization on the
part of employees that they should even have these complaints.
Union organizers may be counted upon to stress with employees all
of the things they have to be unhappy about in their working lives,
and this heightening of their awareness may manifest itself in their
comments and complaints to supervisors.
Unusual inquiries concerning specifics of benefit plans or policies:
such inquiries may be at the behest of the union organizer in his
attempt to gather as much information as possible about the
employer. In particular, a request for a “summary plan description”
or other, more esoteric questions about benefits not typically heard
from employees may have been planted by a union organizer.
Union cards lying around in trash cans or “Union Now” written on
the bathroom stall: not all signs of organizing activity are subtle,
some may hit an employer over the head like a brick bat. By the
time that happens, of course, the organizing effort may well be
beyond the incipient stages. On the other hand, employees are
sometimes careless and leave material laying around that the
organizer did not intend to be left in the open.
Any other deviations from normal patterns of behavior: an
employer’s ability to recognize many of the early warning signs
previously mentioned depends in large part on the awareness of
supervisors of what is normal, commonplace behavior on the part
of employees. Without knowing what is normal, there is little hope
that employers can detect what is abnormal. Thus, knowing
friendship patterns, behavior patterns, and normal “volume levels”
on the workplace floor can enhance the employer’s ability to
recognize the changes which may be attributable to union
organizing efforts.
In addition to the foregoing warning signs, employers are perfectly free to listen to any
information volunteered by pro-company employees. Despite the union’s best efforts to keep
its early organizing activities under wraps, it is difficult for them to entirely accomplish that goal.
For example, an employee who initially expressed an Interest in the union movement may
subsequently have a change of heart and pass along information to his supervisor or
manager. As long as that information is voluntarily provided and not acquired through
interrogation, the employer is perfectly free to take advantage of it. There are two key rules
which should be ingrained in all levels of supervision: (1) stay alert to what goes on in the
workplace, and (2) immediately report the observations they make to the appropriate
manager.
{N2440413.2}
14
c.
Union Authorization Cards
Union authorization cards come in a variety of shapes, sizes and colors, but from the
union’s standpoint at least, they all have one primary purpose: enabling the union to either
make a demand for voluntary recognition on the part of an employer or file a petition for an
election with the National Labor Relations Board. In spite of that overriding purpose, however,
cards do in fact differ in their terminology and in the legal significance of such terminology. For
example, most cards simply state something along the lines of the following: “I hereby
authorize the ABC Union to be my exclusive bargaining representative with respect to wages,
benefits, and all other conditions of employment.” Others go so far as to expressly indicate that
the employee is accepting (or at least requesting) membership in the particular union. A few
others may actually state that the card will be used solely for the purpose of requesting an
election of the National Labor Relations Board.
It is important for the company to understand the language on the particular card being
used at his facility, if it can lawfully acquire a copy of such a card (such as through an
employee volunteering one). Depending on the type of card used, several campaign
opportunities may present themselves for an employer. First, if employees have been
asked to sign cards which expressly state they are applying for membership in the
union, an employer may immediately begin discussing with employees the costs and
obligations of such union membership. For example, employees may be told that by
joining a union they subject themselves to a wide panoply of union rules and regulations, the
violation of which may lead to monetary fines, and that union membership also ordinarily
entails the payment of dues, initiation fees and other assessments. While organizers frequently
tell employees they will not have to begin paying these costs until a first contract is signed,
they are nonetheless inevitable, and employees may be advised of this fact in the early going.
It should be added that these same points may be made where a union is using a card which
simply indicates that the employee is authorizing them to represent them in collective
bargaining, the point being that if a union is ever voted in, employees may be required to join
(in non-right-to-work states) or face intense pressure to do so (in right-to-work states).
While it is advantageous for an employer to see an example of the type of union
card being distributed to its employees, care should be exercised not to examine any
stack, bag or other accumulation of cards executed by employees. If an employer
visually inspects such an accumulation of cards and in fact confirms that a majority of its
employees have signed such cards, the employer may waive its right to a Board-conducted
election.
While the phenomenon is a bit rare today, unions formerly were known to attempt to
lure an unwitting employer into inspecting signed authorization cards either by handing them
through an employee to a supervisor or mailing them in an unmarked envelope to the
employer’s place of business. Supervisors should be instructed that they have no authority to
review signed authorization cards (in multiple), and that if asked to do so by an employee or
union organizer, simply inform that individual of that fact. If an employer receives an envelope
in the mail which the employer has reason to believe contains authorization cards (such as a
letter with a union return address or an envelope which, when shaken, appears to possess
{N2440413.2}
15
multiple cards or other pieces of paper), the envelope may simply be returned unopened to the
union. If an employer receives an unmarked envelope or mistakenly opens an envelope which
contains cards, it should be immediately sealed back, returned to the union at the nearest local
address with a cover letter indicating that the envelope was opened in error but the contents
not examined.
d.
Company Defensive Policies
While an employer can never completely remove its workplace from the reach of union
organizers (and certainly not from in-house employee organizers), certain policies may be
adopted which make the union organizer’s task more difficult. These are the solicitation,
distribution and access policies of the employer.
e. No-Solicitation Policies
It should first be noted that different rules apply to the organizing activities of
non-employee union representatives and employees of the company. Generally speaking, an
employer may prohibit its employees from engaging in union solicitation activities during their
working time (and the working time of the other employees they are trying to solicit). In other
words, an employer may adopt a policy providing that employees may not engage in
solicitation activities during the time they are expected to be working. This would encompass
any time during the work day other than breaks, meal periods, cleaning-up periods, or other
times when the employee is not expected to be engaged in his or her regular job.
Two caveats to this rule should be kept in mind: first, a no-solicitation rule applicable to
employees can be successfully defended only where it has been consistently applied.
Routinely allowing employees to roam the workplace soliciting their peers to contribute to
school fund raisers, charity bazaars, church functions, etc. may well make it impossible to
apply the rule to union solicitations. Second, the Labor Board takes a rather dim view of
employers attempting to completely ban any and all “talk” regarding union matters even during
work time where such casual discussions do not interfere with the employees’ work. The
Board’s theory is that unless the employer can show that it does not allow any
non-work-related conversations of any kind to occur during working time, it is in effect
discriminatorily applying its policy. Since most employers would have a hard time showing
such a state of affairs, care should be exercised in not overreacting to union conversations.
Nevertheless, an employer is not required to allow its employees to abandon their jobs for the
sake of union organization efforts.
Perhaps a third caveat should be added, and that is even though an employer may
have a perfectly valid no-solicitation policy, this does not necessarily mean that an employee
may be terminated for talking about unions during work time (or even for wandering away from
his work station to engage in such activities). The employer must address that violation in the
same fashion that it would any other situation where an employee neglected his work duties to
talk about other non-work-related matters. Most employers would presumably not discharge an
employee for a first offense of neglecting his job duties to talk about personal affairs of some
other kind, so the same approach should be taken in the union context. Of course, if the
{N2440413.2}
16
employee repeatedly refuses to heed warnings to perform his job during working time, then
discharge may become appropriate.
f. Bulletin Boards
With respect to the notion of solicitation by in-house employee organizers, an employer
may also adopt a no-bulletin board solicitation rule (or other similar policy) which forbids the
posting of any solicitation for outside purposes on company bulletin boards or elsewhere
throughout the workplace. As in the case of verbal solicitations, however, employers often find
themselves unable to successfully enforce such a policy (or defend it against legal attack)
because of inconsistencies in its application. If employees are allowed to post notices
regarding other outside causes, sales, events, etc., the employer may be unable to enforce a
policy against union postings. This is not to say that an occasional exception to the rule will
render the rule entirely unenforceable. Interestingly, the Labor Board has specifically
recognized an exception for United Way campaigns, and one or two other exceptions may
likewise be permissible, particularly if they are company-generated solicitations, but the
more evidence there is of employees being allowed to post these materials, the less likely the
rule will withstand scrutiny by the Board.
As an aside, some employers have attempted to get around this state of affairs by
promulgating a policy which provides that only those employee solicitations which are
approved by the employer may go up on the bulletin boards. The Board has generally held to
the presumption, perhaps not unreasonably, that most employers would not “approve”
pro-union postings, and thus these kinds of policies have been held invalid if used to exclude
union postings.
g. Distribution Rules
Akin to no-solicitation rules are distribution rules adopted by many employers.
Somewhat different considerations--such as cleanliness and good housekeeping--apply here,
however, and employers may generally prohibit any union material (except cards) in working
areas, even during non-working time, as long as it takes the same approach with non-union
related distributions.
While it may initially seem desirable that an employer adopt as restrictive a set of
policies on solicitation and distribution as is legally allowable, each employer should carefully
weigh the benefits of such policies from an organizing standpoint against possible negative
fallout such policies may have on employee morale. Some employers have come to the
conclusion that the benefits of these policies in helping it stem union organizing are
outweighed by the benefits of allowing free and unrestricted interchange between employees
on whatever issue interests them--even something seemingly as trivial as their desire to sell a
used car or washing machine. This is a particularly important consideration if the
employer is contemplating taking away a “for sale” bulletin board or some other
existing communications outlet the employees have been accustomed to using.
{N2440413.2}
17
h. Access Rules
In addition to no-solicitation and no-distribution rules applicable to employees,
employers may generally preclude access by non-employee union organizers to its premises
for the purposes of engaging in organizational activity. The only two provisos to this general
rule have been (1) that the rule be enforced in a non-discriminatory fashion, and (2) that the
union organizers have some alternative means of communicating with employees off the
employer’s premise.
This rule has been simple enough to interpret and apply in situations where a private
employer’s place of business is not open to the public, but, the issue is a bit more complicated
for employers whose workplaces are almost by definition open to the public (aside from
kitchens, maintenance shops and other “employee only” areas). In these cases, union
organizers generally have the same right to come on to the employer’s property as any other
member of the general population, but only to use the premises for the same purposes as
used by other individuals.
Interestingly, two situations which have from time to time been held to be exceptions to
the rule regarding non-employee access have been remote logging camps and resort hotels in
rural areas. One of these cases involved a Catskills-area resort whose employees lived and
worked at the hotel, which was removed from the public highway by a lengthy private road.
Absent such extraordinary circumstances, however, employers may continue to feel free to bar
union organizers from their property, at least where the access is sought for organizing
purposes.
i.
Union Letters and Visits
A common tactic employed by most unions during the course of organizing campaigns
is to send a so-called “demand letter” to the employer just prior to filing a petition for election.
The letter typically states that the union represents a majority of the employees in the unit
sought, that the union is willing to have the signatures on authorizations cards verified by an
independent third party, and assuming majority status is confirmed by that individual, the union
is ready and willing to begin bargaining for a contract. If a letter such as this is received, a
petition can be expected within a matter of days.
The purpose of writing such a letter is not so much that the union expects the employer
to voluntarily agree to recognize the union, but instead that it officially confirms for the
employees a majority of their peers have signed on to the union cause. The employer-presuming it wishes to oppose the unionization effort--should simply write a polite response
declining recognition, indicating its lack of belief that the union truly represents an uncoerced
majority of employees in any unit appropriate for bargaining.
Either in the same letter or one shortly thereafter, unions also frequently advise
employers of the identity of their in-house organizing committees. The unions then demand
that these employees not be interfered with or discriminated against and challenge legal action
if they are.
{N2440413.2}
18
During the period leading up to the filing of the petition, a union may attempt to visit the
homes of employees for the purpose of encouraging their support in an organizing effort. The
organizer may be accompanied by an associate who is the same race or sex as the employee
being visited (if he does not fit that bill himself), and on other occasions has been known to be
accompanied by former employees of the company who may have been discharged for
controversial reasons. The organizers, of course, meet with mixed responses to these visits,
ranging from outright hostility on the part of anti-union employees to curiosity among the
undecided, to open arms from those who are already inclined to support the union effort.
Before the union can make such visits or send letters to employees’ homes, however, it
obviously needs names and addresses of the employees. Because this information is so vital,
unions have been known to offer significant sums of money or other rewards to supportive
employees who can access a list of the names and addresses and/or phone numbers of
employees in the potential voting unit. In many instances, however, no such reward is
necessary since some employers leave such lists openly lying about, or are otherwise lax in
securing such important documents. If security measures are not already in place to guard the
distribution of employee names and addresses, those steps should be taken immediately.
j.
Employer Responses
Deciding upon the appropriate measure of response in the initial stages of union
organizing is one of the most difficult determinations an employer has to make. The
appropriate magnitude of the employer’s response in relation to the progress the union’s
organizing attempt has made can be viewed as a kind of bell curve. At the very earliest stages
of organizing activity the employer must be careful not to over-emphasize the issue and draw
more attention to the effort than it is otherwise getting on its own. Thus, where there are only a
few unconfirmed rumors of organizing activity which are sketchy at best--and the employer
does not believe it has been isolated from a free flow of communication regarding the
subject--some patience may be in order, as the effort may die of its own volition. At the other
extreme, if an employer believes that the organizing effort has been under way for some time,
has gathered considerable momentum, and an election petition is imminent, there is little to be
gained by engaging in extensive campaigning prior to receipt of the petition. First of all, if the
employer gathers his work force together, and makes even the most effective and heart-felt
anti-organizing speech possible, only to receive a copy of a petition the next day, he may be
left with egg on his face. Second, if a petition is unavoidable, the employer will have a period
of some six to eight weeks to deliver its message, and must be careful not to use up valuable
“ammunition” at a prematurely early stage.
Somewhere in between these two extremes, then, lies a time frame in which the
employer may wish to conduct a vigorous anti-card signing campaign, in hopes of heading off
a union organizing effort before it reaches the petition stage. The methods available to the
employer are plentiful. Large captive-audience group meetings in which a high-level manager
explains the dangers of signing a card or becoming involved with a union can be particularly
effective. Many--if not most--employees may not be aware of the company’s feelings about the
matter, and even those who do may not know all the reasons for that position or all of the
dangers and risks associated with an organizing effort. Similarly, individual one-on-one
conversations between supervisors and employees regarding the downside of joining a union
{N2440413.2}
19
and letters to the homes (for spousal as well as employee consumption) may also reinforce the
employer’s position and convince employees not to give the union encouragement for going
ahead with a full-fledged campaign.
Finally, one tool which is commonly overlooked, but potentially available to employers in
the pre-petition stage are home visits. While not “illegal,” home visits by employers after the
filing of a petition are considered “objectionable,” and ordinarily result in the setting aside of a
victory in the election by the employer. Post-petition home visits by employers were ruled
objectionable some years ago by the Board precisely because they proved to be so effective
in discouraging union activity on the part of employees. In appropriate situations, therefore,
they may be worth considering in the pre-petition stage.
10.
THE RIGHTS OF THE PARTIES IN UNION ORGANIZING
a.
Overview
During a union organizing campaign, the conduct of company officials and supervisors
may be made the subject of an unfair labor practice charge or of an objection to the election.
During such an organizing campaign it is important to keep in mind two basic rules: First, a
company is not permitted to discriminate against employees because of their union
sympathies or activities. Second, a company is not permitted to interfere with union organizing
by making threats or promises.
Employers’ conduct during the critical era (i.e., from the date the election petition is filed
to the election) of a union organizing campaign is of particular significance. Discussed below
are examples of conduct by an employer that are likely to be held permissible as well as
conduct that is likely to be held impermissible:
b.
Permissible Conduct
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The company may refuse to allow outside union organizers access
to its buildings, the parking lot or any other company premises
provided there is adequate opportunity for organizers to contact
employees without entering company property, the company has in
place an adequate “no solicitation” rule and the company does not
allow other solicitation or distribution (such as by a charitable
organization).
The company may establish and enforce a rule forbidding its
employees to engage in union solicitation (oral) during working time
in my work area.
The company may establish and enforce a rule forbidding
distribution or circulation of literature by its employees in work
areas during working and non-working times.
Company representatives may freely express the company’s
position and attempt to enlist employees’ support for the company
position through such approaches as: (a) direct contact and
{N2440413.2}
20
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c.
conversation between supervisors and employees; (b) letters to
employees; (c) bulletin board postings; and, (d) speeches to
employees.
The company may point out that if a union makes lavish promises
to employees in order to obtain their votes, none of the promises
can be fulfilled except by agreement of the company.
The company may reassure employees that no threats or
intimidation by any union will be tolerated and that any such union
behavior may be immediately reported to the Personnel
Department.
The company may point out that Federal Law forbids a union or its
agents from restraining or coercing employees in the exercise of
their rights, including the right not to support a union.
The company may at the appropriate time, emphasize that an
NLRB election is a secret ballot election; that no one will know for
whom each individual employee cast his vote; and that employees
are free to vote as they wish without fear of reprisal.
In making speeches to employees, the company may assemble the
employees for such purpose on company premises and during
working hours and may pay the employees for the time spent in
attending the meeting. The only restriction is that this may not be
done within the 24-hour period immediately preceding the
scheduled starting time of voting in a National Labor Relations
Board election. Furthermore, the company is not obligated to give
the union a similar opportunity to address the employees.
Impermissible Conduct
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During a union organizing campaign, company representatives may
not make any statement, whether by direct conversation, letter,
bulletin board, or speeches which contain promises of benefit or
threats of reprisal. Thus, for example, it is not permissible to
promise or indicate to employees that they will get a wage increase,
a better job or any other benefits if the employees vote against the
union or if the union is defeated in an election.
Threaten or indicate to employees that they will get a wage cut, a
less desirable job, or any other loss of benefits if the employees
support the union or if the union wins the election.
Threaten or indicate to employees that they will be discharged,
demoted, laid off or otherwise discriminated against if the union
succeeds in organizing the company.
State or indicate that the company will close down the operation if
the union succeeds in organizing the company.
State that the company will refuse to bargain with the union if the
union is successful in organizing the company.
{N2440413.2}
21
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The company may not poll or interrogate employees regarding their
union sympathies or union activities.
The company may not solicit employees to demand the return of
their signed union authorization cards, or assist employees in any
attempt to secure the return of signed authorization cards.
The company may not forbid its employees to discuss union
matters on company premises when they are not on duty, during
rest periods, lunch periods, etc.
Company representatives may not call employees individually or in
small groups into the private offices of management or supervisory
personnel for the purpose of making statements in opposition to the
union or unions involved.
The company may not Prohibit its employees from passing out
union literature in non-working areas during non-working-time.
The company may not forbid its employees to wear union buttons
or other union insignia while at work, except in limited
circumstances.
The company may not keep union meetings under surveillance for
the purpose of ascertaining which company employees were
present at the meetings. Nor may the company create the
impression of such surveillance.
Management or supervisory personnel may not visit employees in
their homes for the purpose of discussing matters relating to union
organizational activities after a petition has been filed.
Following the period when a union has demanded recognition by
the company and/or filed a petition with the National Labor
Relations Board, the employer should not institute wage increases
or other employee benefits, unless the company can show that
such benefits were in contemplation prior to the time the union
demanded recognition, and that such benefits are instituted in the
normal course of business and not for the purpose of influencing
the employees in their choice of a bargaining representative.
Conversely, the employer should not withhold a scheduled wage
increase or other employee benefits, unless the company can show
persuasive business reasons unrelated to the union activity.
The employer may not converse with employees, on any subject, in
the polling area while employees are waiting to vote.
A common acronym for reminding supervisors of their legal
obligations is the word “TIPS.” Employer representatives should
not:
{N2440413.2}
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11.
i.
Threaten employees
ii.
Interrogate employees
iii.
Promise benefits
iv.
Spy on employees’ union activities
DO’S AND DON’TS FOR SUPERVISORS
a.
WHAT THE SUPERVISORS CAN DO:
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Keep outside organizers off the premises.
Inform employees from time to time of the benefits they presently
enjoy. (Avoid promises or threats).
Tell employees that signing a union authorization card does not
mean they must vote for the union if there is an election.
Inform employees of the disadvantages of belonging to the union,
such as the possibility of strikes, serving in a picket line, dues,
fines, assessments and possible loss of freedom to the union.
Inform employees that you prefer to deal with them directly rather
than have a union settle employee grievances.
Tell employees what you think about unions and union policies.
Let employees know about any prior experience you have had with
unions and whatever is known about the union officials trying to
organize them.
Inform employees that the law permits you to operate, even during
a strike.
Be sure employees know that no union can obtain more than an
employer is able to give.
Keep employees informed how their wages and benefits compare
with unionized or union-free companies, especially where other
wages are lower and benefits less desirable.
Inform employees that many local unions are dominated by the
international union, and that they, the local members, have little to
say in its operation.
Inform employees of any untrue or misleading statements made by
the organizer. You may give employees the facts.
Give opinions on unions and union leaders.
Reply to union attacks on company policies or practices.
Be sure employees understand their legal rights and the
company’s.
Campaign against a union seeking to represent the employees.
Insist that any union membership solicitation of employees be
conducted outside of working time. (Assuming valid no solicitation
policy and consistent past practice.)
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
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Administer discipline, layoffs, grievances, etc., justly and without
regard to the union membership or nonmembership of the
employee involved.
Treat union and union-free employees alike in making assignments
of work, over-time, etc.
Enforce plant rules impartially, regardless of the employee’s
membership or activity in a union.
Tell employees, if they ask, that they are free to join or not to join
any organization, and their status with the company will not be
affected.
Answer questions about unions.
Listen to employee comments about unions.
Run your operation to the best of your ability.
If you have any doubt about answers to questions or
situations-check with management.
b. What the Supervisors Cannot Do (TIPS):
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Attend any union meetings, park across the street from the union
meetings to see which employees go to the meeting or engage in
any undercover activity that would indicate that employees are
being kept under surveillance to determine who is and who is not
participating in the union program.
Tell employees that the company will fire or punish them if they
engage in union activity.
Lay off or discharge any employee for union activity.
Grant employees wage increases or special concessions in order to
keep the union out.
Bar employee union campaigners from soliciting employee
memberships during nonworking hours.
Ask employees about confidential union matters, meetings, etc.
(Some employees may, of their own accord, walk up and tell of
such matters. It is not an unfair labor practice to listen, but you must
not ask questions to obtain additional information.)
Ask employees what they think about the union or a union
representative.
Ask employees how they intend to vote.
Threaten employees with economic reprisal for participating in
union activities. For example, a supervisor may not threaten to
move the plant or close the business, curtail operations or reduce
employee benefits.
Promise benefits to employees if they reject the union.
Give financial support or other assistance to a union or to
employees, regardless of whether or not they are supporting or
opposing the union.
{N2440413.2}
24

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c.
Announce that you will not deal with the union.
Tell employees that the company will fire or punish them if they
engage in union activities.
Ask employees whether or not they belong to a union or have
signed up for a union.
Ask an employee, during the interview when hiring the individual,
about his affiliation with a labor organization.
Make anti-union statements or actions that might show your
preference for a union-free employee.
Make distinctions between union and union-free employees when
assigning overtime work or desirable work.
Purposely team up union-free employees and keep them apart from
those thought to belong to the labor organization.
Transfer workers on the basis of union affiliations or activity.
Choose employees to be laid off on the basis of weakening the
union’s strength or discouraging membership in it.
Discriminate against union people when disciplining employees.
By the nature of the work assignment, indicate that you would like
to get rid of an employee because of his union activity.
Discipline union employees for a particular action and permit
union-free employees to go unpunished for the same action.
Deviate from company policy for the purpose of getting rid of a
union employee.
Take actions that adversely affect an employee’s job or pay rate
because of union activity.
Become involved in arguments that may lead to a physical
encounter with an employee over the union question.
Threaten a union member through a third party.
Threaten workers or coerce them in an attempt to influence their
vote.
Promise employees a reward or a future benefit if they decide “no
union.”
Tell employees overtime work (and premium pay) will be
discontinued if the plant is unionized.
Say unionization will force the company to lay off employees.
Say unionization will take away vacations or other benefits and
privileges presently enjoyed.
Promise employees promotions, raises or other benefits if they get
out of the union or refrain from joining it.
Example of Statements that Can be Made:
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The bargaining process between the company and the union starts
with a blank piece of paper.
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That means that employees are not guaranteed that any particular
provision will end up in the final contract between the company and
the union, or even that there will ever be a contract reached
between the company and the union.
All the union can do is ask, and the company has the right to say no
to anything they feel is not in the best interest of the company.
All the union has the right to do is sit down at a table and bargain
with the company. That is all - nothing more.
The company will never agree to anything that hurts our
competitiveness. We can’t or we’ll all be out of a job.
Federal law is perfectly clear, this Company would have the right in
good faith bargaining to say no to any union proposal it felt was not
in the best interest of the employees, our customer, or this faculty.
If the union were to get in, you would have no guarantee that the
pay and benefits which you now have would be maintained at the
same level following good faith bargaining.
Anybody that thinks they’re automatically going to get a wage
increase couldn’t be more wrong. In fact, with all the things the
union asks for that benefits itself, there is always that very real risk
that the employee could lose wages or benefits.
You need to realize that it’s possible for you to lose what you
already have if a union gets in here. The only thing guaranteed
would be federal minimum wage.
Bargaining is a two way street, you can go up, you can go down, or
you can stay where you are.
Strikers do not get paid and they cannot collect unemployment in
most states.
The company can permanently replace strikers who don’t get their
jobs back after the strike until a vacancy occurs.
Do you really think the union is going to care if this place closes
because of a union strike. All the shots are called by the union
bosses up in Washington and they don’t give a darn about you.
You can’t just try the union and if you don’t like it get rid of it. If the
union comes in and is quick to sign a contract, you’re stuck with
them for three years. That’s three years of them hounding you to
pay dues.
If the union is voted in, you would have to obey and live by their
rules which give the union the right to charge and fine people
because they had to keep working to feed their families, or they
were disloyal, or they said something bad about the union or did
something else the union bosses didn’t like. Do you want to be
subject to the laws, rules, regulations and policies of bosses you
don’t know and will never see?
Union dues and assessments do not come from the Company, they
come out of the employees’ paychecks before taxes and other
deductions.
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Do you know who pays the salaries of the union bosses? The
employees do. The only source of income for the union is from
dues, penalties and assessments.
Do you know what assessments are? If the union bosses decide to
have an expensive convention in Las Vegas, they can levy an
assessment to make sure they cover their costs. This assessment
is paid by the union members.
One of the first things the union will bargain for is a dues check-off
clause. This is where they want the company to withhold monthly
dues from the employees check so they don’t have to go out and
collect it.
Your first year in the union could cost you $400-$500 for initiation
fees and monthly dues.
If our business leaves, the union isn’t going to get hurt at all. The
union pushers are going to walk away and try to organize another
Company down the road.
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