248-409-1900 dburke@mi-worklaw.com

By:  Bill Pilchak – 4/24/14

          Beware of words known by their first initial! The “N-Word.” The “C-Word.” Responsible people cannot use such words without being tainted with infamy. Ask Mark Fuhrman, Michael Richards or Paula Deen. Trials have been lost, high profile careers have ended and business empires have crashed because of the words. Even a top-performing racist or sexist can be shown the door for even a single transgression. So, except for professional rappers, professional people don’t even whisper the words.

          Recently resolved cases at P&C have reminded us of another dangerous “N-word:” “Non-Union.” While there are permissible usages, “non-union” is a loaded term that can lead to nearly automatic liability before the NLRB, just as using the other words can spell doom in an EEO setting. Knowing when the “non-union” term will get you in trouble is trickier than knowing who can use the original N-word and when.

          Under the National Labor Relations Act, virtually all non-supervisory employees have the right to form unions and bargain collectively. Employees who seek to do so have “protected status.” Refusing to hire or firing union adherents will trigger enforcement actions by the Board.

          With rare exception, employers resist unions, not only because of the financial burdens of increasing employee compensation, but because of the loss of flexibility and control over operations. Yet, one must be careful when speaking of efforts to remain union-free. There is a fine line between permissible statements and those that reflect “anti-union animus.” Depending on syntax and context, “non-union” can be innocuous and problem-free, such as: “Acme has a non-union workforce.”

          Switch the context slightly, and the employer has problems: “Acme is a non-union company” can be argued to mean that Acme means that it will always be a non-union company, and in that context, the remark will be argued to display anti-union animus. Ideally, any such statement should respect workers’ rights and steer clear of predicting the future: “We don’t have a union” or “nobody has ever sought to organize our workforce” express the sentiment without suggesting animus.

          Similarly, stating that “Acme has long been non-union is permissible, because that is a historical fact, not an expression of sentiment or conviction about the future.

          Expressing the thought that management hopes the company will remain union free, takes a little more finesse. “We treat our workforce well, so they don’t seek to organize” or “We don’t think it’s in the interest of our employees to have a union” is better than declaring the company is (now and in the future will be) “Non-Union.”

          As should be obvious, if a company finds it necessary to speak on these subjects, its time to contact labor counsel for a road-map as to what can/cannot be said.

          An additional problem arises from bids and contracts. Especially regarding a job where the work is presently being done under a collective bargaining agreement, requesting or providing “non-union” pricing or specifying the deal will be “non-union” suggests the current union workers will not be hired for open jobs or the incoming workforce will not be permitted to organize. Failing to offer jobs to displaced union workers will be considered evidence of anti-union animus by the NLRB

          One cannot leave this topic without reminding readers that incoming federal service contractors who have won contracts must offer employment to individuals currently supplying the service on behalf of an outgoing contractor before offering employment to anybody else.   The federal regulations implementing the Service Contract Act, 48 CFR 22.1008-2, also provide that if a collective bargaining agreement was in place, “a successor contractor must pay wages and fringe benefits (including accrued wages and benefits and prospective increases) to service employees at least equal to those agreed upon by a predecessor contractor” if the substantially same services are to be performed in the same locality.

          So, those bidding for work subject to the Service Contract Act will never displace a previous unionized provider by submitting a lower bid premised on reduced wages or benefits.

          Okay, but doesn’t that mean that the federal government can’t rid itself of a service-provider infested with poor performers who are backed by the union? And therein lays a column for the future.