Employee Lawsuits: Discouraging Union Organizers

Strict rules can stem activities of union organizers.

Many employers, unfamiliar with their own property rights and perhaps more wary of union "rights" than they need to be, do not realize that they can keep nonemployee union organizers off company property. A 1992 decision of the U.S. Supreme Court has upheld the right of employers to bar nonemployee union organizers from entering an employer's private property for the purpose of attempting to organize its employees. Under the Court's ruling, only in very limited circumstances will employers now be required to permit unions onto their property.

In Lechmere Inc. v. NLRB, the Supreme Court addressed the relationship between the rights of employees to organize under Section 7 of the NLRA and the property rights of their employers. The case arose in the context of the United Food and Commercial Workers Union's attempt to organize the employees of a retail store owned and operated by Lechmere. Lechmere's store was located in a shopping plaza in Newington, Connecticut. After Lechmere denied the nonemployee union organizers access to the parking lot to place handbills on employee cars, the union filed unfair labor practice charges with the NLRB.

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The Supreme Court found that Lechmere had not violated the Act. The Court stated that "Section 7 simply does not protect nonemployee union organizers except in the rare case where 'the inaccessibility of employees makes ineffective the reasonable attempts by nonemployees to communicate with them through the usual channels.' " The Court explained that a balancing of Section 7 rights versus private property rights should be considered only after it is clear that reasonable access to the employees is "infeasible." The Court further noted that reasonable access is infeasible only when the "location of a plant and the living quarters for the employees place the employees beyond the reach of reasonable union efforts to communicate with them," such as at logging camps, mining camps, and mountain resort hotels.

In applying these principles in Lechmere, the Court found that the employees were accessible to the union. Specifically, the record showed that the union had been successful in contacting a substantial percentage of the employees by mail, telephone, and home visits. The Court further explained that direct contact is not a necessary element of reasonable access and that signs or advertising also may suffice.

Employers can prohibit nonemployee organizers from entering their property to solicit their employees. Employers may ordinarily refuse to allow outside union organizers access to their plant, parking lot, or to any other part of their premises, provided that there is adequate opportunity for union organizers to contact employees without entering company property. Also, the company may not discriminate against the union by allowing other solicitations or distributions on its property, such as by charitable organizations, by vendors, or by rival unions. Employers should implement and uniformly enforce a no-access rule for nonemployees that can be used effectively during union organizing campaigns.

Decisions like Lechmere dictate that unions must rely on employee organizers to win representation rights. Indeed, an organizing campaign almost always starts with a small group of employees who work secretly to increase support for a union. These employees may seek out the assistance of a union on their own initiative or the union may have fomented the employee unrest by sending a union employee to ostensibly work for the employer while he organizes the employees from the inside. These "plants" or "salts," as they are called, care little about the employer's product or their own job duties - their goal is to organize the employee work force for the union. Unfortunately, this "salting" tactic has been legitimized by the Board and the courts and these union "plants" have the full protection of the National Labor Relations Act.

Employers should implement no-solicitation, no-distribution rules to regulate employee organizing. This kind of rule, if enforced uniformly, will prevent employees from engaging in oral solicitation of union membership or distribution of union materials during "working time." The rule should also forbid the distribution or circulation of literature by employees in work areas during both working and nonworking times.

Importance of Front-line Supervision

Supervisors who communicate effectively with the employees working for them - that is, they talk and listen to employees - and who administer the company's policies in a fair and uniform manner are essential to union avoidance. If employees don't trust the front-line supervisors in the company, the employer will most likely lose the representation election.

The primary step supervisors must take is to practice positive employee relations - open, honest communication with employees and fairness in the application and enforcement of policies. In addition, they must be committed to a union-free workplace.

What Supervisors Can Expect with a Union

Here are a few points all supervisors should think about if they have even the slightest notion that working in a union shop would not be burdensome to them.

  • Supervisors will have someone second guessing them; a shop steward will police their decisions.
  • Supervisors will work more hours and longer workweeks because of grievance meetings, negotiations, and arbitrations.
  • Shop stewards may file numerous grievances against the supervisor to get him or her to relax standards or may pressure management to remove the supervisor from his or her position.
  • The supervisor's job may be more dangerous, such as in a situation when he or she has to cross picket lines during strikes.
  • Loss of peace of mind caused by threats to the supervisor and family members during labor strife.
  • Tension and an uptight working atmosphere.
  • Rigid union seniority restricting work assignments.
  • Employee dissension, suspicion, and poor discipline caused by union interference.
  • Performing an employee's job during strikes and work stoppages.
  • Union gets all the credit for wage and benefit increases.
  • Employee morale breakdown.
  • An "us versus them" attitude develops.

Supervisory Steps in Preserving Nonunion Status

Supervisors who are committed to a union-free workplace will take a number of steps to ensure that employees working for them are happy, or at least secure in the belief that they will get a fair shake from the supervisor. Here is what a good supervisor will do to promote union avoidance:

  • Opens lines of communication.
  • Realizes that a supervisor can promote a motivated group of employees or create an atmosphere that invites union intervention.
  • Participates in "two-way" communications.
  • Recognizes there are problems in every group of employees, but believes such problems can be solved.
  • Solves problems either by explaining the policy to the employees or taking steps to correct the situation.
  • Learns what employees think of the company.
  • "Sells" the many benefits provided by the company.
  • Establishes an atmosphere that makes employees comfortable in talking about matters of concern to them.
  • Knows the employees' background and relationships.
  • Looks for opportunities to suggest promotion of qualified employees. A supervisor should tactfully point out weaknesses of employees so that they can advance with the company.
  • Disciplines evenhandedly; avoids favoritism in scheduling assignments, overtime, etc. The supervisor should know what discipline has been imposed in the past and put past practice to use.
  • Recognizes and responds to evidence of employee discontent.
  • Cultivates leadership among the employees.
  • Supervises people, not a file.

The supervisor should solve small problems daily; neglecting the concerns and needs of employees indicates a lack of interest in employee welfare. A good supervisor does the following:

  • Gives a pat on the back for a job well-done.
  • Shows an interest in employee suggestions about operations.
  • Gives a sincere "Hello, how are you?" to employees every day.
  • Interprets all policies regarding overtime, shifts, etc., only after he or she is sure the interpretation is correct.
  • Is sensitive to and anticipates employee concerns; does not sit back and wait for employee complaints.

What Type of Campaign Works Best?

When faced with an impending representation election, many employers initially lean toward a neutral or low-key campaign in the weeks preceding an election. This is a mistake. If the employer stays neutral, it will lose the election. There are many employees who sign an authorization card because they are fooled by the union's promises and don't know the real facts about unions. There are others who are just trying to get management's attention and who realize that they don't have to vote for the union in the election. Still others sign cards because of peer pressure. All these employees, even though they have signed cards, want to hear the company's message. If the employer stays neutral or does not adamantly oppose the union, these employees will think that the company does not care whether it is organized or that it has, in effect, "surrendered" to the desire for union representation.

Although there is no evidence that a less vigorous campaign wins significant points with employees, some employers adopt such an approach apparently in a mistaken belief that a more neutral stance is required by the representation process itself. This is just not true. Simply because a substantial number of employees may have instigated the organizing drive and eventually supported the filing of the petition with the NLRB, an employer need not sit on the sidelines and let opposing employee factions fight it out. An employer should stay engaged during an organizing campaign by stressing the positive qualities of a nonunion workplace and the company in general and by providing comprehensive information to employees about NLRB election procedures and their right to participate in the election process.

Employers must communicate their views to employees during a representation campaign. The message should be positive and factually accurate. In this way, employees will never resent hearing the employer's side of the story. There are many ways to communicate the company's message, including direct contact and conversation between supervisors and employees, letters to employees' homes; bulletin board postings, handouts, paycheck enclosures, video presentations, and group speeches. The most effective method for gaining the support of employees in opposition to the union is one-on-one conversations between supervisors and employees.

Possible Campaign Themes

A number of themes can be used by an employer in confronting a union-organizing campaign. Some are as follows:

"Most employees are nonunion." With all the statutory protections available to employees, unions have become irrelevant. Unions maintain power only in the legislative arena where PAC dollars are available for lobbying. Union activity in this arena, however, can be portrayed as defensive and obstructionist. As mentioned, eight out of every nine employees have chosen to be nonunion for good reasons. A modern work force is a flexible work force without artificial barriers to improvements in skills, transfer, or promotion.

"Union finances are funded by members." Many employees who are enticed into becoming union members do so because of inflated promises of higher salaries and greater benefits. These employees fail to consider, however, the financial burdens that often accompany union membership, especially the obligation to pay dues, fees, and assessments. Unions must file financial reports with the federal government and often these documents contain useful information for the employer's campaign. Unions can be shown to be a big business with enormous budgets dedicated to the salaries and benefits of union leaders. Employees should be reminded that it is union dues, paid out of their weekly salaries, that will pay for the salaries and benefits of union leaders. It should also be explained that much of the money they will have to pay in dues will not come back to assist them but will be used for organizing activities elsewhere or lobbying and political campaigns.

In response to this theme, management must be prepared for a challenge from union supporters as to why the company does not reveal its own financial report. One answer is that the union's financial report is relevant because the employees' dues payments will be funding the union's expenditures whereas the opposite is true with company revenues: they are used to pay the employees' salaries and benefits.

"Union corruption is a legitimate concern." Certain unions have a particularly sordid past that is well-documented in newspaper articles and case summaries of judicial decisions. Although this theme should be used only in the early stages of the campaign and should not be overdone, this information may be an eye-opener for employees who have only been exposed to a local union organizer. Corruption at the International Union level can be made relevant by showing the control exercised over local unions by the International Union.

"Retain your independence." This theme appeals to employee desires to speak for themselves. It works well where individual supervisors already have a good relationship with employees in their department. It is a very basic message: union representation means that management can no longer deal directly with employees to solve workplace problems. A "No" vote means no union, and the freedom for employees to speak for themselves without a union "go-between." Union dominance and control over the individual employee can be emphasized in this theme. Also, the "collective" nature of the union as an institution makes it very vulnerable to an argument that the desires and opinions of individual employees will be ignored.

Union control can be illustrated by the fact that the union's primary goal in negotiations is to obtain a union shop clause (forcing the employee to pay dues as a condition of employment) and a dues check-off clause (dues deducted automatically from the employees' checks). The local union's bylaws should also be a fertile source of information for demonstrating the union's control over the individual, including its system for disciplining (trial, fines, expulsion) members for speaking out against the union.

"Don't let them push you around." Employers who want to communicate their views regarding the merits of staying union-free to employees but who do not want to run the risk of alienating the employees by being too heavy-handed about the union sometimes choose a "don't let them push you around" or "you have rights" theme for the campaign. This theme can be used when unions are too aggressive in trying to win certification. Issues like preservation of employee privacy (too many phone calls or union visits to the home) and stopping harassment or threats by overzealous union supporters can be emphasized. The employer is viewed as the "good guy" in this scenario by trying to preserve a "zone of neutrality" for those employees who don't want to get involved in the debate.

"There are no guarantees in the collective bargaining process." This theme allows the employer to point out that, although the union, like all unions, is making lavish promises to employees to obtain their vote, none of these promises can be fulfilled except with the voluntary agreement of the company. In other words, the union cannot provide any guarantees as to the outcome of negotiations. During negotiations, wages and benefits may go up but they can also go down. The employer is also allowed to point out that in a substantial number of cases, negotiations for a first-time contract never result in an agreement. This latter message should be accompanied by a disclaimer that "the company would always bargain in good faith."

"Striking employees face heavy financial burden." There is no more important campaign theme than the dangers of a union strike and the burden employees and their families will face (not the union leadership) if they are forced to go out on strike. In addition to the obligation to pay union dues and fees, union members face the severe financial consequences of strikes.

Many employees who are encouraged by their union leaders to walk off their jobs are simply not prepared for the economic consequences that result from a decision to strike. In most cases, employees have not been informed of the economic realities of a strike by their union leadership. An employee who goes out on strike for economic reasons will lose all wages while on strike. Where positions are available, but the striking employee still refuses to go back to work, that individual will also not be entitled to unemployment compensation. Striking employees also lose their fringe benefits such as medical insurance and life insurance that can be discontinued at the commencement of a strike. The employee who chooses to walk off a job and strike is not even entitled to food stamps.

Another important issue to emphasize about strikes is the employer's right to hire replacement workers to keep operations going during a strike. Striking employees can be permanently replaced while they are out on an economic strike. When the strike ends, they may no longer have a job. Although their names must be placed on a preferential hiring list, the employer is not required to bump employees who may have been hired to work during the strike. Also, because strikes inevitably result in a loss of production and sales, the employer is not likely to be in a hiring mode for some time after the strike.

Employers who are faced with union organizing drives should make their employees aware of the problems that can arise during union strikes. The union's strike record should be highlighted if it is particularly egregious. Employees should be made aware that they will receive no financial assistance from the state or federal government when the union strike fund is found to be insufficient to provide for their basic needs during a strike.

Finally, unions are attempting to respond to the shift in the American economy from manufacturing to service-based businesses by changing their image from that of bastions for predominately white, male, blue-collar workers to that of organizations attuned to the values and concerns of minorities and women. In fact, in their attempt to make themselves more palatable to the traditional professions, such as those involved in health care, some unions are portraying themselves as "professional associations" rather than labor unions. Regardless of the rhetoric, old habits are hard to break. When faced with any type of dissonance among its ranks, unions resort to their old tried-and-true methods of conflict resolution - threats, intimidation, and violence. There is always a recent strike story that can be used to highlight the potential for violence during strikes.

"You're doing fine without a union." A frequent theme in representation campaigns is to stress how well employees are doing without a union. In such campaigns, managers discuss how well the company's employees are treated and how costly union dues are for union members. Despite the frequency with which companies use this theme, results can be mixed. Managers have to be careful that they don't promise things will be even better if the employees vote against the union. Rather, management must be able to document the benefits already afforded employees. Highlighting the benefits already provided to employees has its advantages because a campaign that overemphasizes the negatives of the union is usually not as effective as one that stresses the positives of the company. Obviously, however, an employer who does not provide competitive wages and benefits for its employees will have trouble with this theme.

"You're in good hands." This theme stresses the employees' importance to management, the fairness with which employees will always be treated, and management's desire to "work together" with employees. In other words, management must let the employees know that the company will not let them down. There are ways to assure employees that things will be "okay" after the union is defeated without promising specific increases in wages and benefits. The often-used phrase "We have heard your concerns" or "You don't need a union to achieve your personal and professional goals" sends a message to employees despite its ambiguity.

The basic message is that employees do not need union representation to be treated fairly by the company; that there will be no retaliation, regardless of the outcome of the election; that management can solve all problems without outside third party representation; and that the company will always pay the best wages and have the best benefits it can afford to pay.

Excerpted from Slam the Door on Employee Lawsuits: Keep Your Business Out of Court. Copyright 1998 by Paul M. Lusky. Published by arrangement with Career Press.
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