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How Should Employers Respond to the New Age of Unionism?

October 26, 2022
NLRA

Previously, we published content alerting you to the increase in union activism and successful union campaigns. Starbucks now has more than 300 of its locations in the throes of union campaigns. Employers targeted by recent union organization efforts may be new to the unique pressures and challenges presented; realizing there is only so much an employer can do, which is sometimes very little indeed, to counter the employees’ efforts to unionize.

Large Corporations Involved in Recent Union Battles

Tesla, Inc.

The National Labor Relations Board (NLRB)  issued a precedent-shifting opinion against Tesla, Inc. finding that its prohibition against employees wearing apparel with union logos during a union drive constituted an unfair labor practice. The NLRB reinstituted its prior position that barred an employer from interfering with employees’ rights to display union insignia absent “special circumstances” that would justify such interference.

Starbucks

Starbucks went further than just controlling apparel and instituting discipline and even termination of several employees involved in a union campaign. Starbucks’ reaction to the union campaign included:

  • Discipline of the employee who instigated the campaign
  • Micro-surveillance of employees
  • Removal of public access to the area of the store where employees invited customers to show union support
  • Removal of all pro-union materials from community bulletin boards inside the store; and
  • Termination of seven employees in one day, five of whom were on the six-member union organizing committee

Upon a petition filed by the NLRB’s regional office in Memphis, TN, the federal court found that Starbucks’ conduct constituted unfair labor practices and enjoined it. The fired employees have been reinstated under court order.

In response Starbucks has decided to hit the beehive with a honey stick and has initiated a program to institute new benefits for employees who have opted to not seek representation by organized labor. Those benefits include a new company credited savings account and a tool to help employees manage their student loan debt. Starbucks’ position is that it cannot offer such benefits to employees who have unionized without the tedious work of amending the applicable collective bargaining agreement. The union position is that such efforts are unlawful and interfere with worker’s rights to unionize. It has filed another lawsuit against Starbucks teaming up with the National Labor Relations Board. Stay tuned to further updates.

Chipotle

Chipotle is now on the other end of a complaint filed with the NLRB by its employees after it closed its restaurant in Augusta, Maine, which restaurant was the chain’s first to file for a union election. The union claims it was an effort to retaliate against the employees for their efforts to obtain union representation.

What Can and Can’t Employers Do?

The National Relations Labor Relations Act (NLRA) was enacted to provide employees the right to organize, to engage in group efforts to improve their wages and working conditions, to encourage collective bargaining and to curtail certain private sector labor and management practices which could impede those goals. To that end it identifies as prohibited conduct by employers:

  • Interference, restraint or coercion in the exercise of these labor rights
  • Employer domination or support of a labor organization
  • Discrimination on the basis of labor activity
  • Discrimination in retaliation for going to the NLRB
  • Refusal to bargain

What, if anything, can employers facing the challenge of union organization do? Employers can take certain actions so long as they do not threaten employees or affirmatively act to chill the employee’s efforts to campaign. For example, employers may:

  • Share information that is factually accurate regarding current company benefits, wages and practices
  • State their viewpoints on unions in general and why they are opposed to a union in the employer’s workplace
  • Let employees know they have the right not to join a union and not to speak with union organizers
  • Provide examples of historical outcomes as a result of employees unionizing such as strikes which can cause lost wages and lost jobs or having grievances handled by stewards instead of dealing directly with the company
  • Inform employees of untrue statements made by organizers whether in handbills or the media

An employer MAY NOT:

  • Take any action intended to discourage union membership such as closing down a plant, relocating the company or decreasing benefits or wages
  • Threaten employees with adverse consequences if they vote for the union
  • Interrogate employees regarding confidential information received from the union or discussed at meetings
  • Promise to increase wages or benefits in exchange for a NO vote or grant wave increases specifically timed to deter a YES vote
  • Spy on or supervise union organizing activities
  • Question employees on their views
  • Transfer or remove employees who are union instigators or pro-union
  • Increase employees’ workload or otherwise impede time employees may have for campaign meetings

Employers Should Review Handbooks and Policies

It is worth noting that the NLRA applies to non-union shops even outside of unionizing campaigns. Section 7 of the Act grants all employees the right to concerted activity for the purpose of not only collective bargaining but also “other mutual aid or protection.” The NLRB finds that includes the right to gather and discuss or otherwise address wages, and other terms and conditions of employment amongst themselves, with management or to the public, including on social media. In furtherance of protecting this right, the NLRB has periodically issued guidelines outlining prohibited conduct by employers in areas such as restricting use of social media by employees to discuss such work-related matters, prohibiting employees from discussing salaries and other compensation, or even restricting the use of profane language in the workplace. Employers should be regularly reviewing their handbooks and policies in light of the NLRB guidelines.

Whether you are an employer facing a union organizing campaign or merely instituting employment policies, you must be aware of the impact of Section 7 of the Act. Because the NLRB membership is politically appointed, the guidance can fluctuate on a regular basis. If you need assistance, our attorneys in the Labor and Employment Practice are here to help you. Please contact KJK Partners Maribeth Meluch (MM@kjk.com; 614.427.5747), Rob Gilmore (RSG@kjk.com; 216.736.7240) or Alan Rauss (AMR@kjk.com; 216.736.7221) for further questions and clarifications.

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