Hold the Pickets, Hold the Unions?

Employer response to organized labor’s push to unionize the fast food industry. Commentary by Sean Ray of Barran Liebman LLP

If the service industry unions have their way, McDonaldland may soon have a reason to “grimace.”

Last November, some 200 fast food workers walked out on their jobs in New York City to protest for higher wages and the right to join unions.  The movement seeking an increase in pay from minimum wage to $15 per hour, dubbed Fast Food Forward, is supported by service industry unions and various community groups.  Following New York’s strike, the unions took aim at Chicago, where nearly 400 fast food and retail workers, organized by the Workers Organizing Committee of Chicago, protested for higher wages in April – again, an increase in the minimum wage to $15 per hour – and the right to unionize.

Also in April, Fast Food Forward organized another one-day strike in New York, which reportedly drew twice as many fast food workers as the November protest.  And earlier this month, fast food workers in St. Louis followed New York and Chicago and staged its own walkout seeking wages of at least $15 per hour.

But will it catch on here in Oregon?  Due to the higher state minimum wage – Oregon’s minimum wage is nearly $0.50 higher than Illinois and almost $1.50 more per hour than New York and Missouri – and with the significantly lower cost of living here (at least compared to New York City), it may not initially be as well received.

However, Oregon, along with the rest of the west coast, has a fairly high rate of unionized workforces as well as a political climate receptive to labor unions and concerns.  According to a January 2013 Union Members Survey conducted by the U.S Bureau of Labor and Statistics, 16.4 percent of employed wage and salary workers in Oregon are represented by unions, as compared to 24.9 percent of New York workers, 15.5 percent of Illinois workers, and 10.1 percent of Missouri workers (Washington has 19.5 percent of its employed wage and salary workers represented by unions and California is at 18.4 percent).

Therefore, it would not come as a surprise to see a west coast push as well from the unions and coordinating labor groups.  Furthermore, a purportedly leaked memorandum from the Service Employees International Union (SEIU) revealed a plan to target fast food franchises for organizing drives, with Los Angeles as a preliminary testing ground.

The majority of these fast food restaurants are run by independent franchisees.  So what may a franchisee do, and what is a franchisee prohibited from doing, when his or her business is confronted with an organizing campaign?

Unfair Labor Practice Charges are the P.I.T.S.

In general, employers and supervisors are allowed to communicate the company’s position.  However, supervisors and their employers can violate the National Labor Relations Act (“NLRA”) through their comments and reactions if they are not careful.  The acronym “T.I.P.S.” serves as a reminder to employers of the types of activities prohibited by the NLRA.

Threats are prohibited by the NLRA.  Employers and their supervisory employees cannot threaten employees with reprisals of any sort for participating in union activities.  Such prohibited conduct includes threatening to terminate an employee, reduce his or her benefits, transfer him or her to another plant, or any other kind of retaliation prohibited by law.

Interrogations of employees are also prohibited conduct under the NLRA.  Employers (and their supervisory employees) may not ask employees about their union sentiments (how they feel about union representation, how they would vote in a union election, or whether they are supportive of the union’s efforts to organize the workplace) or union activities.  Additionally, employees cannot be questioned about other employee’s thoughts and feelings on the same subject matter.

Promises should similarly be avoided if employers wish to avoid unfair labor practice charges.  Employers and their supervisors cannot make promises to employees in exchange for opposing the union.  For example, employers may not promise an employee (or a group of employees) an increase in wages, promotions, or other future benefits if the organizing campaign fails.

Surveillance is also prohibited by the NLRA.  Employers may not reconnoiter or spy on union activities.  For example, a supervisor cannot show up at an off-site location where a union meeting is being held or gain access to a confidential union social media site or chat room.  Furthermore, employers cannot scout union meetings to determine which employees are participating in such activities.

Contact Your Friendly Neighborhood Labor Lawyer

This is not to say that union activities must go unchecked.  However, union organizing drives are fraught with pitfalls for employers who take unlawful actions.  Violations of the NLRA could lead the National Labor Relations Board to skip the employee election all together and simply declare the union to be the employees’ representative.  Because of the nuances and serious ramifications of violations, employers who are faced with an organizing drive should reach out to trusted legal counsel, as a knowledgeable labor lawyer will be able to assist the employer in the “dos and don’ts” of this legal arena, as well as train managers and supervisors on what they can and cannot do during such a campaign.

Sean Ray is an attorney with Barran Liebman LLP where he advises and represents employers, including fast food restaurants and other franchisees, in labor and employment matters and disputes.  Contact him at 503-276-2135 or sray@barran.com.