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The right to resist the union label.

YOU ARE A SECURITY SUPERVISOR at a well-established company that employs thousands of people. The company has been in business for many years. Recently you have heard rumors of possible union organization activity within your proprietary guard force. You are a conscientious employee and would like to do everything you can to keep a union out of the company.

One of your most trusted guards informs you that there will be a meeting at the home of another guard concerning union organization. You ask the trusted guard for her opinion of unions, and she replies that she does not want to have a union at the company.

You tell the officer that you do not like unions either, and ask her to inform you of any union activity that is going on and the results of the scheduled meeting. You imply that her help will be greatly appreciated and taken into account at her next salary review.

The officer reports back the next day that authorization cards were handed out at the union organization meeting.

Two weeks later, at a regularly scheduled guard training session, a guard asks the supervisor, "Do you recognize that we are wearing union buttons?" "Yes," the supervisor replies. The guard then asks, "Do you recognize that there are 15 of us here today and that we are a majority of your employees?" The supervisor again replies, "Yes, we have 29 guards, and more than half are here. What is your point?" The guard then replies, "The union you have just recognized is ready to begin collective bargaining on behalf of its members."

How would you like to be the supervisor who now has to go back to the company's senior managers and inform them that they now have a union? Scary? Yes! Can this really happen? Yes.

In a similar case, an appellate court ruled that, although the supervisor was caught unprepared and quite possibly unaware of an employer's right to require an election, the employer did recognize the majority status of the union. Although the supervisor granted recognition unwittingly in response to a staged performance, the court ruled that he was legally unable to change his mind.(1)

The rules and procedures that must be followed by both employees and employers as they relate to union activity are found in the basic law and procedures of the National Labor Relations Act (NLRA). Congress established the NLRA, also known as the Wagner Act, in 1935. It is considered the Magna Carta for workers.(2)

The act and its amendments are intended to define and protect the rights of employees and employers, encourage collective bargaining, and eliminate certain practices by labor and management that are harmful to the general welfare and national interest of the United States.

The act states and defines the rights of employees to organize and bargain collectively with their employers through representatives of their own choosing. It ensures that employees can freely choose their own representatives for the purpose of collective bargaining and establishes a procedure by which they can exercise their choice in a secret ballot election conducted by the National Labor Relations Board (NLRB).

The act is also intended to prevent labor disputes that would adversely affect the rights of the public and has defined certain practices of employers and unions as unfair labor practices. The law is administered and enforced by the NLRB and the Office of General Counsel.(3)

Some examples of employees' rights protected under Section 7 of the act include

* forming or attempting to form a union among the employees of a company,

* joining a union whether or not the union is recognized by the employer,

* assisting a union to organize the employees of an employer,

* striking to secure better working conditions, and

* refraining from activity on behalf of a union.

Interference with Section 7 rights are contained under Section 8(a)(1) and are called Unfair Labor Practices of Employers. In general, employers may not threaten, interrogate, make promises to, or conduct surveillance on employees in reference to union activity.

Examples of violations of Section 8(a)(1) of the act include

* threatening employees with loss of jobs or benefits if they join or vote for a union,

* threatening to close down the plant if a union is organized,

* questioning employees about their union activities or membership in circumstances that tend to restrain or coerce employees,

* spying on union gatherings or pretending to spy, and

* granting wage increases deliberately timed to discourage employees from forming or joining a union.

Section 8(a)(2) makes it unlawful for an employer to dominate or interfere with the formation or administration of any labor organization or contribute financially or provide other support to it.

Section 8(a)(3) makes it unlawful for an employer to discriminate against employees in hiring or tenure of employment or any term or condition of employment for the purpose of encouraging or discouraging membership in a labor organization.

Section 8(a)(4) makes it unlawful to discharge or [otherwise] discriminate against employees because they have given testimony under the act.

Section 8(a)(5) makes it unlawful for an employer to refuse to bargain in good faith about wages, hours, and other conditions of employment with the representative selected by a majority of employees in a unit appropriate for collective bargaining.

Section 8(b) is primarily concerned with restraint and coercion of employees by labor bargaining units. In essence, this section protects all employees from unlawful union activities. Examples of restraint and coercion that violate this section include

* acting with force or violence on the picket line or in connection with a strike,

* threatening to do bodily injury to nonstriking employees,

* threatening employees with losing their jobs unless they support the union's activities,

* entering into an agreement with an employer that recognizes the union as the exclusive bargaining representative when it has not been chosen by a majority of employees,

* fining or expelling members for crossing a picket line that is unlawful under the act or that violates a no-strike agreement,

* fining employees for conduct in which they engaged after resigning from the union, and

* fining or expelling members for filing unfair labor practice charges with the board or for participating in an investigation conducted by the NLRB.

Section 8(b) also deals with refusing to bargain in good faith and with prohibitive strikes and boycotts.

AS YOU CAN SEE, EMPLOYEES HAVE many rights. Let's take a moment and go back to our hypothetical case to see if the security supervisor violated any employee rights during the course of union organization at his company.

As you recall, the security supervisor had asked the trusted guard for her opinion of the union. When the supervisor questioned the employee about her union activities and membership status--while implying that he was against the union--he violated Section 8(a)(1).

In asking the employee to spy and gather information, once again he violated Section 8(a)(1). By implying a wage increase and tying it to antiunion activities, the supervisor again violated Section 8(a)(1). All these violations are considered unfair labor practices by the employer.

The NLRA is not a criminal statute but rather a remedial statute. It is intended to prevent and remedy unfair labor practices, not to punish persons responsible for them. The board is authorized by Section 10(c) to

* use cease and desist orders;

* take affirmative actions, including reinstatement of employees with or without back pay;

* set aside elections and have them rerun; and

* require bargaining orders in cases where violations are so severe as to make a fair and unbiased election impossible.

Bargaining orders are normally issued when the board believes the union would have won if not for the illegal conduct of the employer.

The board does have additional powers during the course of investigations such that any person who willfully resists, prevents, impedes, or interferes with any member of the board or any of its agents or agencies in the performance of duties pursuant to the act will be punished by a fine of not more than $5,000 or by imprisonment for not more than one year or both.

The board can also impose fines and penalties for illegal money transactions. Illegal monetary transactions that are misdemeanors include fines of up to $10,000 or imprisonment for not more than one year or both, whereas felony violations include fines of up to 15,000 or imprisonment of up to five years or both.

To better understand union organization campaigns, refer to the chart. Most union organizing campaigns begin when some portion of the employee population decides it would be better off if it could bargain collectively with the employer.

The campaign may begin when national union organizers target specific nonunion firms in predominantly unionized industries in an effort to bolster union membership. In other cases, and normally in the guard force case, the employees would contact the NLRB.

Section 9(b) of the Labor-Management Relations Act, also known as the Taft Hartley Act, includes constraints on certain bargaining unit determination. One of those constraints is that no bargaining unit may jointly consist of guards hired by employers to enforce the company rules and of other employees. It is because of this clause that guard unions are always separate from other unions in a company.

Once the employees receive guidance from the NLRB and other outside counsel, they can begin to conduct a union authorization card campaign. Organizers seek signatures from all potential members of the bargaining unit, in this case, security guards.

When the number of cards signed equals 30 percent or greater but less than 50 percent plus one or greater, the officers may petition for a representation election to the NLRB. The board must first determine whether they have jurisdiction in the proposed election.

Jurisdiction requirements vary by type of business involved but normally require a certain dollar value of business be conducted in interstate commerce. The NLRB then investigates the cards received and determines whether the signatures given represent individuals who would make up a legitimate bargaining unit.

If 30 percent or greater of the cards are still recognized by the NLRB, then the board can hold a representation election of the proposed bargaining unit population.

If the outcome of the election provides ballots equal to 50 percent plus one or greater of the proposed bargaining unit, then the union is recognized and bargaining between the company and the union may begin.

If ballots counted are 50 percent or less, then the union election is barred for one year. If the authorization card campaign should produce cards equal to 50 percent plus one or greater, then the union may request recognition directly from the company.

If union recognition is granted by the company, then union bargaining may begin. In this process, the NLRB election is bypassed. As you recall from the example, this is what happened to the ill-prepared security supervisor.

In cases where a company does not want a union, it is always best to deny recognition when approached by union representatives claiming majority status. This delays the process and forces an election. In most cases, the longer the organization process can be delayed, the more time the company has to counter the organization effort, and the greater the chances are that the company will succeed in defeating the union organization attempt.(4)

NOW LET'S LOOK AT WHAT COMPANIES can do to resist. The first move companies should make is to take a preventive approach and have a formal statement of the company's position on unions. The statement should say that the company is opposed to union organizations and that the company believes that unionization is not in the best interest of its employees, its customers, or the community it serves.

The statement should say that unions are not needed to obtain fair treatment. It is the company's policy to pay fair and competitive wages and provide good benefits and pleasant working conditions; that the company has a system to provide fair treatment to all employees; that the company can provide these benefits without any need to pay union dues, union fees, or other union membership costs and without risk of loss of pay due to a strike. The statement should end by reemphasizing that unions are unnecessary at the company.(5)

Security supervisors should be trained to recognize early organization activities. Some examples of such activity include

* employees shunning a supervisor who they normally talk to;

* a group of employees immediately halting their discussion when supervisors approach;

* employees taking longer breaks, questioning authority, complaining more frequently, and decreasing their productivity.

The language of the guard force may also change. Words such as grievance, seniority, bumping, health coverage, pension plans, comparable worth, and job security pop up. Talk of what other unions are doing may also surface. Contract settlements and union slogans may appear. It's important that supervisors recognize the signs of organization and are ready to confront the situation that results.

Company supervisors are entitled to exercise their right of free speech as guaranteed by the Bill of Rights and amendments to the Constitution. A good rule of thumb is that supervisors may say anything that is factual and does not include a threat, an interrogation, a promise, or a form of surveillance in dealing with an employee and union activities.

This is not as restrictive as it may sound. At the first sign of union organization activity, a team should be formed, including security managers, legal counsel, and facility managers. A legal consultant specializing in labor relations law should be retained.

Although each campaign must be analyzed for specific facts, supervisors can make factual comments regarding

* financial costs of union membership, such as the proposed initiation fee and monthly dues;

* the special assessments levied to support striking workers or other companies and unions;

* assessments levied to support political candidates whose views may be dramatically opposed to some members of the union;

* members' loss of their individuality; and

* length of service or seniority as more important factors than ability under most union contracts.

Ambitious or highly productive workers may be at a disadvantage under this type of contract. If the local union is part of a national or international organization, local members often have little to say concerning their own affairs. Orders often come from the national office.

If the national office thinks the local office is out of line, it can put it under trusteeship and take over its operations. In some cases, employees may not even be able to elect their own union stewards.

Unions cannot guarantee anything during negotiations with the company. Employees could wind up with the same wages and benefits, with less wages and benefits, or more wages and benefits.

Should negotiations break down, a strike may ensue. A strike is the greatest weapon a union has in its power. During a strike, employees may never recover lost wages. The only persons who do not suffer in a strike situation are paid union officials.

In an economic strike, workers can be replaced permanently. These permanently replaced employees would be put on a preferential hiring list and called back after the strike only when a comparable job becomes available.

Employees may ask supervisors questions about card signing. Supervisors should understand that, under the law, employees have the right not to sign up with the union, and no one can threaten or coerce them into signing.

In addition, by signing an authorization card, the employee may be giving up his or her right to vote in a union election. Under certain circumstances, the government may order the company to bargain with the union based on authorization cards only. Employees should be sure to read the fine print on their union authorization cards.

Also, before signing the card, employees should review the union bylaws. Employees should also know that if they do sign a card and change their minds, they can write their union organizers asking for the card back. In addition, employees do not have to speak to union organizers or admit them into their homes.

It is also acceptable for supervisors to tell employees of the benefits they enjoy compared to benefits of companies under union situations, provided they state facts only. Employees should also know that if a union is formed, they may have to bring their problems to a shop steward rather than deal with the supervisor directly.

Employees should also know that they may be required to picket their employer, even when they are not on strike.

It is acceptable for a supervisor to urge employees to vote against the union and encourage others to do the same. However, they cannot probe into what employees intend to do.

Supervisor training and education is crucial to defeating a union organization campaign. Example situations and role playing are effective tools to train supervisors and avoid situations like the one mentioned above.

Management must be prepared to distribute information on the com-pany's position concerning unions and union activity. Company policy should prohibit solicitations by any organization on company property or on company time. This restricts labor organizers from gaining easy access to employees on company property.

US Supreme Court rulings differentiate the rights of employees and nonemployee organizers.(6) The court has ruled that employees may solicit fellow workers on company premises but only during nonworking time and only if such solicitation does not interfere with production. Nonemployee organizers, in most instances, can be prohibited from soliciting on company property.

Special instances exist where union organizers may solicit on the company's property such as when no other reasonable means of access to employees are available. Exceptions exist for health care facilities, retail stores, and restaurants. Companies in these environments must review the law on solicitation for their particular business.

Companies should be ready to counter the misstatements of union organizers and capitalize on their misconduct. Research indicates that most employees unionize because they are dissatisfied with their employers and how they are treated.(7) Employee dissatisfaction issues can include wages and benefits, job security, working conditions, and how they are treated by their supervisors.

Some employees are looking for greater job security and fairer rules and procedures for determining promotions and conducting disciplinary actions. Some employees are looking for an opportunity to be recognized, respected, and heard on the various issues that affect their day-to-day job. Others simply wish to belong to an organization of people with similar needs and desires.

Companies that care about their employees should be able to provide these elements to their employees without the union as an intermediary. Employers can greatly reduce the chance of union organization by paying fair wages and providing competitive fringe benefits.

Employers must establish open communication with employees and implement good employee relations. Confidential suggestion boxes, all-employee meetings, and an ombudsman program are effective ways to open up communication with employees.

The company should have clearly defined policies and procedures for determining promotions and conducting disciplinary actions. These policies and procedures should be shared with all employees so that they understand them and are allowed to comment on their fairness and effectiveness. Supervisors must treat people as they would like to be treated and be open and responsive to employee complaints.

All these actions will go a long way to help employees feel they are valuable members of the organization. Additional incentives such as profit sharing are extremely powerful incentives to work hard and promote the profitability of the company. (1) NLRB v. Brown and Connelly Inc., 593 F.2d 1373, 1 00 LRRM 33072 (1st Cir., 1979). (2) L. L. Byars and L. W. Rue, Supervision--key Link to Productivity (Boston: Irwin, 1990), p. 331. (3) A guide to the basic law and procedures under the National Labor Relations Act, Office of General Counsel, National Labor Relations Board, October 1978. (4) J. A. Fossum, Labor Relations--Development, Structure, Process (Boston: Irwin, 1988) p. 127. (5) R. S. Kaplan, R. Lewis, and P. B. Rosen, Responding to Union Organizing Campaigns, Business Law Monograph No. 9 (New York: Matthew Bender, 1990). (6) J. A. Fossum, p. 127. (7) J. H. Jackson and R. L. Mathis, Personnel and Human Resource Management (St. Paul, MN: West Publishing Company, 1991).

John W. Plifka is manager of government security at Rosemount Inc. in Burnsville, MN, and a member of ASIS.
COPYRIGHT 1992 American Society for Industrial Security
No portion of this article can be reproduced without the express written permission from the copyright holder.
Copyright 1992 Gale, Cengage Learning. All rights reserved.

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Author:Plifka, John W.
Publication:Security Management
Date:Jun 1, 1992
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