Last month I mentioned a number of recent General Counsel (GC) memos of interest. A few days later the General Counsel issued GC 20-13 regarding when an employer can be found to have provided unlawful aid and assistance to a union. This is the most important GC memo I can remember.
It is worth reading the whole thing, but here are the highlights. Sections 8(a)(2) and (1) prohibits an employer from providing support to a union in organizing an unrepresented employer’s workforce. Additionally, it is also unlawful for an employer to help employees decertify or withdraw from a union that already represents them. So far makes sense, right?
The problem is that today the Board uses two completely different standards to determine whether an employer has offered unlawful support to a union or its employees. In the case of an already represented work group the employer violates the Act when it offers “more than ministerial aid” to employees. This is a strict, bright-line test that is reasonably easy to enforce. However, in the case of a union attempting to organize a work group the Board uses a “totality of the circumstances” test.
As GC Robb explains, the “totality of the circumstances” standard is, “difficult to apply because it is more amorphous, and, lacking clear guidelines as to what is lawful and unlawful conduct, yields inconsistent results.” He’s being very kind there. I’d say that it is impossible to apply objectively and leads to massive confusion. It also creates incentives for Big Labor to game the system and disenfranchise voters.
Look at it this way. If there is proof that a manager encouraged employees to decertify or gave them access to company facilities or equipment to help the campaign along, that is clearly a violation of the “more than ministerial aid” test. The bright-line rule is not just easy to enforce, but it creates strong incentives for companies to train managers and leaders to avoid even the appearance of helping or encouraging employees to leave their union.
On the other hand, a manager that allows a union to meet with employees in company facilities and solicit support for the union is allowed under the “totality of the circumstances” test. Under this amorphous test there are many situations where managers or supervisors are found to encourage teammates to sign authorization cards (or look the other way when coworkers are violating no-solicitation rules). In these cases, an employee could possibly believe that if they don’t support the union their boss could get mad and take action against them.
Another problem is so-called “neutrality” agreements. Employers are often pressured in massive anti-corporate campaigns to enter into agreements with unions where the employer agrees to give a union benefits like card-check recognition, access to its property, information about employees (without their consent), and much more to assist a union to organize a work group. Under the “more than ministerial aid” standard these agreements would not stand. It is totally inconsistent to allow employer support during organizing and prohibit it on the other side. And this is the problem GC Robb is trying to solve.
By the way, unions will say these two outcomes make sense. They see the Section 7 right to organize as more of a Hotel California – you can check in any time you like, but you can never leave. But that’s not what the Act says. The right to organize – without interference from the company – is certainly protected. But so too is the right to refrain from organizing.
Interference is a two-way street. A company cannot take action against an employee who is seeking to organize a union at work. But offering aid and assistance to a union is taking an action against an employee who doesn’t want to be represented by a union. More importantly, according to the GC memo, it is also unlawfully providing a financial benefit to a union. And while the GC does not go this far, I believe it is potentially criminal conduct.
Section 302 of the Labor Management Reporting and Disclosure Act makes it illegal for a company or company representative to “pay, lend, or deliver, or agree to pay, lend, or deliver, any money or other thing of value to any employee representative or labor organization who seeks to represent its employees. Full stop. Violation of the Act is a crime punishable by fine and imprisonment. The GC makes abundantly clear that the types of things unions ask for in neutrality and pre-representation agreements like Project Labor Agreements are “things of value.” If they weren’t why would unions spend millions of dollars to force companies to agree to them?
Therefore, I have a suggestion. The next time a union (or a worker center) approaches you to enter into any kind of agreement that benefits them, kindly send them this little note:
We received your request for [insert thing(s) of value here]. It is our carefully considered opinion that what you are asking is an unlawful request for a thing of value under Sections 8(a)(1) and (2) of the National Labor Relations Act and Section 302 of the Labor Management Reporting and Disclosure Act. We of course cannot accept your request as it could create potential liability under these statues. Please note that requesting a thing of value under these statutes may also create similar liability for your organization and we ask that you refrain from further requests. Thank you in advance for your prompt attention to this matter.
Unions have gotten away with unlawful threats and intimidation tactics for far too long, tactics they use to twist the labor laws in a way that takes away free choice from working people. Unfortunately, unions believe these activities are protected. Under the current (unfortunate) state of the law they’re right. Employers should not provide aid and assistance to unions as they try to organize a workforce, the same way they are prohibited from helping employees decertify their union. The GC has done a great service to working people by asking the NLRB to clearly draw the line. I hope the NLRB quickly takes him up on that request.
