Favorable Rulings for Merit Shop Employers
By David S Farkas
While the second quarter of 2004 passed through the labor law arena without the more significant decisions detailed in our sections of employment and workers’ compensation law, the National Labor Relations Board did decide two cases that represent a positive development for merit shop employers.
In the first case, Manhattan Crowne Plaza Town Park Hotel, the Board considered an election which the security guards’ union lost by a tally of 13 votes to 5. The union objected to the conduct of the employer because of a memorandum the employer about one week before the election. The memorandum informed the voting employees that, very recently, another hotel had failed to reach an agreement with the very same union seeking to represent its own employees, and that the members had lost their existing benefits. The Regional Director who initially handled the case held that the memorandum implied that the union was responsible for the loss of jobs and benefits, and that the memo predicted similar losses if the employees voted for the union in the pending election. Upon review, however, the Board held that the memo did not exceed the bound of permissible campaign statements.
The Board noted that the employer had simply provided a recent concrete example of a negative outcome for employees who selected the petitioning union as their representative. Moreover, the Board noted that the memorandum did not state that these incidents were bound to happen if the employees would vote in favor of union representation. On the contrary, the memo stated explicitly that each set of negotiations is different. Accordingly, the Board overturned the petitioner’s objections and certified the results of the election.
The next case, JS Mechanical Inc., involved a scenario familiar to many of our readers, where union organizers, otherwise known as “salts,” attempted to apply for jobs in a merit shop business. The employer asked the salts, “why would you want to [apply for work]; we’re an open shop . . . I can see from the gentleman’s hat, he’s a union worker.” The union seized upon these comments as an opportunity to file a charge, alleging that the employer was discriminating against the union by refusing to consider union members for jobs.
In the 2 to 1 decision, Chairman Battista and Member Schaumber said that the employer’s question merely reflected surprise that the organizers would wish to work for a merit shop company. The Board held that the question and the following statements were not coercive, noting that the employer asked this question in the context of explaining its application procedure to the organizers, not while discouraging them. In addition, the Board found it significant that the employer also stated explicitly that no applicants would be discriminated against because of their union or non-union status.
As mentioned above, the two cases highlighted herein are but samples of a constant stream of decisions that cross our desks daily. As part of our practice, RB&S reviews these decisions to learn how they can be of service to our clients. Based upon these decisions, employers might have more limited freedom in certain instances.
Labor questions or concerns? Give Alan Ross or David Farkas a call, at any time.