Wednesday, June 15, 2022

Making threats vs. stating facts during union organizing

"Just know that if you unionize, when you are negotiating your benefits, you could gain, you could lose, or you could stay the same."

This is what Neha Cremin, a transgender and pro-union Starbucks worker, claims her manager told her. She alleges in her unfair labor practice charge with the National Labor Relations Board that the statement was an anti-union threat. How? 

1/ The company's health insurance covers gender reassignment surgery (include travel expenses) and other gender-affirming procedures such as hair transplants or breast reduction.

2/ Cremin's manager knew that she had previously used those benefits. 

3/ Therefore, mentioning the possibility of losing benefits during collective bargaining was a threat to take away trans health benefits after a union victory.

The manager's statement was not unlawful under the National Labor Relations Act, no matter how Cremin interpreted it or is attempting to spin it in her unfair labor practice charge.

The National Labor Relations Act makes a key distinction between threats of what will happen if the union wins and statements of fact about unionization and the bargaining process. The former are unlawful during union organizing, while the latter are perfectly legal.

What's the difference?

  • If the union wins we will/could close the facility.
  • If the union wins we will/could relocate the facility.
  • If the union wins there will/might be layoffs.
  • If the union wins you will/might get paid less or lose benefits.
  • We plan on disciplining or firing any employee who supports the union.

Statements of Fact
  • This is how collectively bargaining works.
  • This is what an employer and a union can and cannot do during union organizing.
  • This is the amount of union dues you should expect to be deducted from your paycheck if the union wins.
  • Have you seen this news story about this labor union's corruption.

So, is the statement, "You could gain benefits, you could lose benefits, or your benefits could stay the same," an unlawful threat or a lawful statement of fact?

I think it look a lot more like a lawful expression of how collective bargaining works than an unlawful threat to take away or diminish employees' benefits after a union win.

The manager did not tell Cremin that she'd lose her trans health benefits following a union election. Heck, the manager didn't even mention trans health benefits at all. The manager simply stated the fact that benefits are on the table during collective bargaining, and that as a result of such bargaining they could go up, down, or stay the same. That's not a threat; it's a simple statement of fact how collective bargaining works. If an employer can't lawfully make that statement during union organizing, it can't say anything at all.