Local Government Q&A Test your knowledge of municipal
practices and procedures with the questions and answers below.
Municipal Q&A - December 2001
How can governments counter unionization?
ANSWER: When a governmental body becomes aware of Union organizing activists involving its employees there are actions which it can take. These actions are highly regulated and violating the rules can have very serious consequences. The Illinois Public Labor Relations Act and the Illinois Educational Labor Relations Act contain broad protections and prohibitions about employer's actions during labor union organizational campaigns. These Acts, in general, protect an employer's right to 1) freedom of expression if such expression contains no threat of reprisal or force, or promise of benefit; 2) to spend public funds to seek or obtain advice from legal counsel and 3) to internally communicate with its employees.
When an organizational campaign is underway, employers are certainly entitled to express their view of unionization as long as that view can not be interpreted as coercion or threats. For instance, it is completely permissible to point out to employees that if a union is elected, they will pay union dues, whether or not they choose to be a union member. Similarly, if other employees in the workplace are unionized, an employer may show a comparison of wage increases for union and non-union employees after a deduction for union dues. The Labor Board, which enforces the Act described above, has upheld an employer's right to hold informational meetings with employees to inform them of the obligations of union membership, as long as these meetings are not at a time or place that is arguably intimidating (for instance, not one on one in the office of the department head). Management can remind employees that with a union contract grievances will be brought through the union instead of by an employee to their supervisor directly, or that a contract will probably dictate how transfers and promotions will be made. Additionally, it is permissible for an employer to ask employees to share their issues and concerns, as long as it is clear that such communication carries with it no reprisal.
While an employer can most certainly provide what might be characterized as the "other side of the story" of unionization, it has to do so in a fashion that is not prohibited by law. A handy mneumic is provided by the word "TIPS." Employers may not Threaten or Intimidate their staff; they can not Promise a benefit in order to induce staff to forego unionization and they can not conduct Surveillance on their activities. For example, the Labor Board will find that an employer has violated the Act if it passes out "Vote No" buttons (as the employer will then be able to discern who is in favor of representation and who is not causing the potential for intimidation) Similarly, an attempt to question employees on their position on unionization is also impermissible, as is any attempt to identify who attends organizational meetings. Clearly, any adverse employment action, which can not be supported by evidence of a lawful purpose unrelated to union activity also will be held as a violation of the Act. And, while it may seem illogical, an employer will violate the law if it grants a wage increase to staff during an organizational campaign, unless it is a raise that occurs on a regularly scheduled basis (an annual cost of living increase, for instance).
Unions operate under much freer rules although there are actions which a union can take which would allow the employer or individual employees to claim that a union has committed an unfair labor practice. For example, a union is prohibited from misrepresenting the results it can achieve through collective bargaining (for instance, that it will reduce working hours or force a change in supervisors). Also, just as an employer cannot threaten employees in an attempt to prevent unionization, a labor union cannot threaten or intimidate employees to induce them to support the union. Actions such as harassing an employee to sign a union card, threatening an employee's loss of co-worker support, or threatening to create a cause for termination are strictly prohibited and could result in a union losing the right to an election.
Many government employers attempt to counter union campaigns in the workplace by restricting the times and places that outside organizers may enter the premises to meet with employees and how they can distribute information. It is always important to remember that non-employee union organizers can be held only to the same rules that apply to other non-employee visitors or solicitors. For instance, if an employer allows insurance companies or other vendors the opportunity to meet with employees during breaks and lunch periods, then it cannot restrict the ability of union organizers to do the same. This holds true for distributing leaflets or other written material as well. Permission to enter the workplace can be a prerequisite to entering as long as it is not unreasonably withheld. Similarly, the employer can restrict meeting places to break rooms or other common areas and prohibit organizers from entering the actual work areas. The same rule applies to use of the employer's telephone, interoffice mail and e-mail by employee organizers. If an agency's acceptable use policy allows communication of brief personal notes or jokes to co-workers then brief information regarding union representation will also be found permissible. The exception, as with all personal communication on work time, is that it will become impermissible if it causes more than a minimal disruption in the workplace.
A violation of these rules can have dramatic consequences. The union can file a unfair labor practice charge with the state administrative agency. The employer can be required to cease and desist in it's actions. The period for campaigning before an election can be extended so that the union can counter the illegal governmental practices. In a "worst case" situation, the union can be declared to be the collective bargaining agent for the employee unit even without an election. Although rarely chosen as the sanction, it can be invoked if the union can prove that the employer has so poisoned the process as to make a fair election impossible.
Finally, both the Public Labor Relations Act and the Educational Labor Relations Act permit an employer to expend public funds only to seek or obtain advice of counsel in organizational campaigns. Whenever a union is organizing a government workplace, legal advice is an invaluable tool in ensuring that employees receive complete information on union representation without violating the law. Conversely, the expenditure of funds on other consultants, or on materials which go beyond the communication of neutral information and are designed to influence the outcome of a campaign is strictly prohibited. Therefore, the purchase of consultant advice, videos, pamphlets, signs or the like which carry a general anti-union message and not information specific to the workplace, are a violation of the Act and could result in sanctions against the employer. This caution though does not preclude an employer's attorney from "scripting" a message to employees about their workplace. To avoid sanctions and to act within the parameters of the law, the best advice is always consult with an experienced labor attorney before waging a campaign to counter unionization.
This answer was prepared by Margaret Kostopulos and Stewart Diamond. Call them at 312-782-7606 if you have any further questions.
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