The challenge of maneuvering through labor law is that you can answer employee questions honestly and still violate the NLRA. You can be following the FOE rules and still violate the TIPS rules.
In the case of AutoNation, Inc. and Village Motors, LLC v. National Labor Relations Board (Nos. 14-2991 and 14-3361) a manager told a group of workers:
- Negotiations with unions would “start from scratch” concerning wages
- Negotiations are a “wide open game of uncertainty”
- Nothing is guaranteed if they vote to unionize
- Updating current pay was “absolutely possible” and they didn’t need a union to address their concerns
- When employees enter union negotiations, they “tend to lose things”
- Employees at other dealership that are unionized deal with union issues “on a daily basis”
- Unionized employees at an Orlando AutoNation dealership “have been living that nightmare for almost three years now with not one bargaining session, not one contract negotiation”
- The “bargaining process is – is never automatic” and workers “may never see…in your lifetime at the dealership” the benefits they think they are entitled to
- “I don’t know,” when employees asked: “Will we get demoted if we become a union shop?”
- That other employers could “be inclined to pass on you… because of the badge or that scarlet letter” after an employee asked if unionization is “something that’s going to follow you through your lifetime if you transfer to another store”
- “Absolutely” after an employee asked whether “certain people’s careers may be affected by this”
A TIPS Threat by Any Other Name
By the way, an employee secretly recorded the meeting where these statements were made. Legally, the starting point for wage negotiations is the status quo. The NLRB found the manager’s “from scratch” statement was an implied threat of dire consequences. The NLRB found the “absolutely positive” statement as an implied reward for not unionizing.
The Administrative Law Judge’s appellate court decision was that AutoNation violated the National Labor Relations Act in four ways:
- Threatening that unionizing would be futile
- Threatening to demote unionizing employees
- Threatening blacklisting of union supporters
- Impliedly promising salary increases if the employees didn’t vote for the union
The interesting point is that the employer said he was just telling the truth, and he was in reality. The court said the way the employer’s comments might have been viewed was irrelevant. So you can state the truth, but the truth can be a violation of employee rights. He was following the TIPS rules while violating the FOE rules.
Know the TIPS and FOE Rules Inside and Out
Remember the old saying, “Ignorance of the law is no excuse?” Nowhere is that saying more applicable than when an employer says something that can be construed as an unfair labor practice. Here’s an issue to consider though: the interpretation of the law changes from federal government administration to administration. It’s one of many reasons it’s important to get advice and assistance from a labor consultant or attorney when an employer violates the law. Better yet, it’s important to consult them on a regular basis.
A Labor Professional Can Assist With TIPS and FOE Rules
Sometimes ULP charges are found to be without merit because the evidence fails to support the employee’s claim, or the NLRB has reversed or revised earlier decisions. One thing you can count on is that the union will ensure the employee exaggerates the ULP charge. Unions know all aspects of the law. You can find yourself at a distinct advantage if you don’t have a labor professional helping you.
Violating the TIPS rule is serious and expensive business, but the consequences can be minimized with careful handling. Avoiding future violations is critical too. Employees have six months to file an ULP. Racking up a series of incidents that violate Section 7 rights will support the employee’s charge that you are actively working to discourage unionization.
In the AutoNation case, the manager made multiple statements in one meeting that blatantly violated Section 7 rights. One violation may be a slip-up or demonstrate lack of knowledge. A series of statements indicates the employer really doesn’t care about the law in the interest of keeping the union out.
Supervisor training is crucial to avoiding charges of Unfair Labor Practices. Knowing what can and cannot be said tricky business, as the AutoNation case proved. You can tell the truth and still be in violation. Using eLearning tools to explain the TIPS and FOE rules and how to put them into practice makes sense. It can help your supervisors avoid blurting out statements that violate the law. A consultant can provide invaluable advice on creating videos that deliver union avoidance training for leaders and a consistent message to employees.
Psychology of Fear
Fear is a basic response that drives a person to take self-protecting action in certain circumstances. Psychologists have an interesting perspective on fear, and it’s applicable to situations involving employer responses to union organizing. They say fear is not totally automatic, but rather it is part:
- Learned – learn to be afraid of unions because of negative associations or experiences
- Instinct – fear of bodily harm should the union threaten people
- Taught – culture is such that unions have a societally-created impression that they are dangerous to employers
- Imagined – an employer may imagine all the bad things that could happen with unionization, so is fearful
When the fear response is present, it can amplify (creating unreasonable fear of unions) and lead to undesirable responses (supervisor threatens an employee). The psychologists go on to say that real threats drive people into action. Overhearing a couple of employees talking about unionization creates real fear and imaginings about what could happen during an organizing drive. The supervisor is driven to action, like blurting out an inappropriate response.
Educate Your Supervisors
The best way to deal with fear of unions is to offer videos, websites and eLearning resources. They’ll explain what to say and not say, educate organizational leaders on how to manage a union organizing attempt and educate the workforce on the company’s perspective of unions. A labor consultant or attorney will be able to help you develop resources and train your frontline supervisors on how to communicate with employees about unions. You may not like, or even fear, unions, but that won’t stop the union from attempting to unionize your workforce. Rare NLRA violations are likely to be minimized if your leaders develop a fair and ethical workplace and a positive organizational culture.
Franklin D. Roosevelt’s famous quote about fear goes like this: “The only thing we have to fear is fear itself – nameless, unreasoning, unjustified terror which paralyzes needed efforts to convert retreat into advance.” He was saying that fear-driven actions will make things worse. Don’t let supervisor or manager fear, due to lack of knowledge, create a worse situation when the union comes knocking. There are right ways and wrong ways to respond, and the response may be a deciding factor in your ability to stay union free. Do your supervisors know how to recall the right way at the right time?