Monday, November 1, 2010

Is it illegal to ask employees to promise not to sign union authorization cards?

1888_vote While the Employee Free Choice Act has stalled in Congress, it does not mean that it is no longer newsworthy. For example, tomorrow, four states (Arizona, South Carolina, South Dakota, and Utah) will have ballot measures aimed at preventing the EFCA from being implemented on a state level.

For more evidence of the continued relevancy of the debate over the ECFA, consider the case of Regis Corp. The NLRB issued a complaint against Regis as a result of allegations that it asked its employees to sign a document revoking their future right to form a union by using an authorization card. According to Regis, the purpose of the document was to protect the workers’ ability to vote in a secret ballot election. Regis also contends that the agreement was completely voluntary—up to 20% of its workers have refused to sign it and none have been terminated. Yet, five employees complained to the NLRB that they felt their jobs were at risk if they didn’t sign the form, or who said they lost jobs because they questioned it.

Last week, the NLRB issued a complaint against Regis as a result of the secret ballot pledge:

The NLRB today issued a complaint against Minneapolis-based Regis Corporation … alleging it illegally solicited employees to promise in writing that they would not sign union authorization cards in the future.

The complaint also alleges that, in a DVD played to employees across the country, the company’s Chief Executive Officer warned that hair stylists would be blacklisted from the industry if they supported a union. In the recording, he exhorted employees to sign a “Protection of Secret Vote Agreement”, which would prospectively revoke any union authorization cards signed in the future. The complaint further alleges that a district manager threatened employees with job loss if they refused to sign the agreement.

The alleged events occurred in the fall and winter of 2009-2010, at a time when legislation was pending in Congress that would have required employers to recognize a union if a majority of employees signed authorization cards. It has not been enacted.

I have not done the research to conclude whether Regis’s pledge is legal or illegal. But, as this case illustrates, under the current pro-labor NLRB labor practices that come close to the line scrutinized before being put into practice. As the NLRB is currently constituted, this federal agency is a hostile audience for employers accused of anti-union measures. When dealing with labor unions or employee concerted activities, employers should view their measures through the same labor-tinted glasses as will the NLRB.

Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or