Steven Cesare, Ph.D.
A business owner from California called me the other day to talk about a recent event involving one of his Maintenance crews. During a normal workday, his employees were performing their standard job tasks when an unmarked vehicle pulled up next to their Company truck. A man got out of the vehicle and promptly engaged the employees in conversation. Coincidentally, the Company Field Supervisor just happened to approach the job site shortly thereafter, and demanded the man stop disrupting the employees’ work pace. After limited confrontational blather, the man heeded the Supervisor’s request and drove away.
In most cases, this is representative of a landscape competitor seeking initial contact with prospective employees hoping to poach them to join the competitor’s workforce. We know this happens all the time.
That’s not what happened this time.
The visitor was not a competitive recruiter. He was a union organizer.
Due to the Biden regime’s stated goal of increasing union membership across various industries (e.g., construction, fast food, hospitality), the National Labor Relations Board has passed a recent decision (e.g., Stericycle) that weakens companies’ administrative policies, to encourage union activity. To that end, the business owner sought guidance from me about a proper response when this incident will reoccur.
Per the HRSpecialist.com website, here is the standard list of actions that business owners cannot take when confronted with union activity, in that such actions violate Section 7 (i.e., Protected Concerted Activities) of the National Labor Relations Act which guarantees employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection,” as well as the right “to refrain from any or all such activities.”
- Threaten employees with adverse consequences (e.g., workplace shutdown, loss of benefits, more onerous working conditions) if they support a union, engage in union activity, or select a union to represent them.
- Threaten employees with adverse consequences if they engage in “protected, concerted activity.”
- Promise employees benefits if they reject the union.
- Ask job applicants if they currently are in a union or have ever been a union employee.
- Give benefits to employees during an organizing campaign to induce them to vote against the union.
- Withhold changes in wages or benefits during a union-organizing campaign that would have been made had the union not been on the scene.
- Coercively question employees about their own or co-workers’ union activities or sympathies.
- Prohibit employees from talking about the union during working time, if you permit them to talk about other non-work-related subjects.
- Poll employees to determine the extent of their support for a union, unless you comply with certain safeguards. You must not have engaged in unfair labor practices or otherwise created a coercive atmosphere. In addition, you must: (1) communicate to employees that the purpose of the poll is to determine whether the union enjoys majority support (and that must, in truth, be your purpose); (2) give employees assurances against reprisal; and (3) conduct the poll by secret ballot.
- Spy on employees’ union activities.
- Photograph or videotape employees engaged in peaceful union or other protected activities.
- Solicit individual employees to appear in a campaign video.
- Maintain or enforce work rules that reasonably inhibit employees from exercising their NLRA rights.
- Prohibit employees from wearing union buttons, T-shirts and other union insignia.
- Discharge, constructively discharge, suspend, lay off, fail to recall from layoff, demote, discipline or take any other adverse action against employees because of their protected, concerted activities.
The employment landscape has changed dramatically during the past several years. Accordingly, it is incumbent upon business owners to be well-versed in the new rules of engagement, lest they violate a new standard or law they should have been aware of, yet didn’t, and now face governmental reprisal.
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