Wednesday, October 31, 2012

What scares employers? How about a union organizing campaign

Oooh, Scary!
Since today is Halloween, I thought it appropriate to theme today's post around that which scares employers. Something of which I know most employers live in undying fear is a union organizing campaign.

Do you know what one of the best tools employers have at their disposal to combat this fear? A no-solicitation policy, which prevents employees from discussing union-related matters in work areas and during work time.

These policies, however, have to be both lawfully drafted and lawfully enforced. For example, two weeks ago a federal court in Cleveland entered an injunction preventing an employer from enforcing a no-solicitation policy against its employees who were engaged in a union campaign. The policy, which was non-discriminatory on its face, read as follows:
During work time, each associate is to be occupied with his or her assigned responsibilities. Engaging in the distribution of literature during work time or in working areas or soliciting support of other associates for any group, cause or product on work time is prohibited.
On its face, there is nothing wrong with that work rule. It non-discriminatorily and equally applies to union and non-union activities, and only prohibities solicitations during work time or in working areas. 

The court, however, did not limit its examination to the face of the policy. It also looked at statements made by the employer's CEO about the policy. He allegedly told a non-employee union organizing representative that "the facility would neither recognize nor bargain with the Union." Then, in an employees-only meeting, the CEO bragged about the number of nursing homes he owned, "that none of them are union, and none of them will be union," and that there would be no union solicitations on the premises.

Based on those series of comments, the court concluded that the CEO's statements were sufficient to transform a facially lawful no-solicitation policy into an overly broad illegal policy.

What's the lesson for employers from this scary tale? It is not enough merely to have a no-solicitation policy. You must also take seriously the NLRA's rules against applying policies to single-out labor unions and the employees who support them. 

If you only enforce your no-solicitation policy when faced with a union organizing campaign or to ban union-related activity, no amount of vanilla in your policy will save you from an unsavory trick when your enforcement is challenged.