By: Scott A. Hagen
In the next installment of our Labor and the Law Blog, RQN Attorney Scott Hagen answers common employer questions and educates about the basics of NLRA Compliance.
Federal labor law gives employees the right to form or join unions to represent them in negotiating with their employer regarding wages, hours, and other terms and conditions of employment. On the other hand, employers have the right to express their opinion about unionization, and most employers do not want their employees to be represented by a union. In addition, employers have unique powers of persuasion over their employees because they have the power to hire, fire, adjust wages, and so forth. Because of these factors, the law limits what employers can say or do in response to a unionizing campaign.
These rules are summarized in the “TIPS” acronym. The letter “T” refers to “threats” and means employers may not threaten employees with adverse consequences if they vote for a union. The letter “I” refers to “interrogation” and means employers may not interrogate their employees about their union sympathies. The letter “P” stands for “promise” and means employers cannot make promises to employees in return for their vote against the union. The letter “S” stands for “spy” and means employers may not spy on their employees to determine their union sympathies.
In a recent case involving a union campaign at Tesla vehicle manufacturing plant in California, the Fifth Circuit Court of Appeals reiterated the rule that an employer “violates Section 8(a)(1) of the National Labor Relations Act if it solicits and promises to remedy employee grievances during a union campaign.” However, the court clarified, if the employer does not solicit the grievances, but merely continues a past practice of soliciting grievances, there is no violation, even if the employer remedies the grievances.
But, as often happens in a unionizing campaign, what if employees demand certain changes in the workplace as part of their campaign for a union? For example, suppose employees claim the workplace is unsafe, and demand that the employer make certain specified changes, such as repairs to machinery and the hiring of a safety manager? If the employer makes the changes and hires a safety manager, has it violated the Act?
The answer is that it depends on the circumstances. If the employer did not solicit the grievances, that is, the demands for the specified safety changes, and the employer also determined in good faith that the workplace was unsafe without the changes, it would probably not violate the Act to remedy those specific grievances, so long as their was no other evidence that the employer had agreed to the changes as a quid pro quo for voting against union representation, and no other evidence of anti-union animus on the part of the employer.
Nevertheless, employers who hope to avoid the complications of union representation should not wait for a union campaign to receive and address meritorious employee grievances. The best practice is to have a regular practice of listening to employees, including employee grievances, and responding appropriately when those grievances identify genuine problems in the workplace.
Scott A. Hagen
Scott A. Hagen is the former Chair of the Firm’s Employment and Labor Section. His practice includes labor relations, employment litigation, employee benefits (ERISA) litigation, and representation of clients before administrative agencies. Mr. Hagen has represented management in collective bargaining, labor arbitrations, unfair labor practice charges, representation elections, collective bargaining, state court injunctions regarding improper picketing, and hybrid lawsuits alleging breach of a collective bargaining agreement and breach of the fair duty of representation.