HOW NOT TO RESPOND TO AN ORGANIZING CAMPAIGN
March 15, 2022
According to recent news reports, Jersey Shore University Medical Center in Neptune, New Jersey, and its parent company, Hackensack Meridian Health, have been accused of committing unfair labor practices in response to a 2020 union organizing campaign. Jersey Shore is alleged to have interrogated employees unlawfully, promised benefits to discourage employees from voting to unionize, and retaining non-attorney “union avoidance” consultants who, when addressing employees, falsely claimed to be neutral government agents. Hearings on these charges will begin on April 19, 2022, before the National Labor Relations Board.
The Health Professionals and Allied Employees sought to organize Jersey Shore’s housekeepers, technicians and service workers. The employees voted against unionization in an NLRB-supervised election by a sizable margin. HPAE essentially claims that Jersey Shore’s alleged improper conduct poisoned the voting environment and intimidated employees into rejecting unionization. If the unfair practice allegations against Jersey Shore are sustained, the NLRB can nullify the election results and order a new election, giving HPAE a second bite at the unionization apple. If a statewide hospital system, with large human resources departments and having access to extensive resources, can so easily run afoul of the law, how can a small or medium sized business owner successfully navigate a union organizing campaign?
A union seeking to organize a workforce presents a business owner with a potential minefield. A business owner can inadvertently recognize a union, and become bound by an obligation to bargain, by signing a recognition or “project” agreement or counting union authorization cards signed by employees. A business owner commits an unfair practice if the owner or his/her supervisors threaten or interrogate employees, spy on them, or make promises in order to induce them not to join the union. A business owner cannot recruit employees to campaign against the union, ask employees if they have attended union meetings, or ask them to report on what occurred at union meetings.
Business owners are not powerless to respond to union organizing or to encourage employees not to unionize. However, business owners must act within strict parameters. They may offer facts about unions, opinions and examples of unions harming employees. But the line dividing “facts, opinions and examples” from threats, promises, spying and interrogation is thin, vague, and all too often dependent on the composition of the NLRB at any given time. Allegations of unlawful interrogation and making “promises” to discourage unionization can all too easily flow from what a business owner thought to be mere assertions of fact or opinion – as Jersey Shore Medical Center may soon learn to its regret.
The consequences of violating these parameters are severe. The NLRB can strike an election result that rejected unionization and order a new election. In extreme cases, the NLRB can bypass an election altogether and simply order the employer to bargain with the union. An organizing campaign is clearly something that a business owner should take on alone.
The attorneys at Trimboli and Prusinowski are experienced in piloting business owners through these hazardous waters. Call our office to set up an appointment.