Q. We are a nonunion company and obviously would like to stay that way. We gave a very modest wage increase six months ago, and we just learned that another company in the same industrial park got hit with a union organizing campaign. I think we should be proactive. Normally we review wages every 12 months, but I want to recommend to my team that we break that cycle and do a wage increase now. Can we get in any trouble by going ahead with a wage increase now, even though it’s not in keeping with our regular practice?— C.O.
A. We would say go ahead with the wage increase. You are correct, however, that the timing of wage and benefit increases can be a problem. This is a case where you can be “damned if you do, and damned if you don’t.”
The National Labor Relations Board (NLRB) has long held that it is an unfair labor practice to make benefit changes during a union organizing campaign. In theory, an increase in wages or benefits unlawfully influences the freedom of choice employees should have in deciding whether to have union representation or not. (It demonstrates that you can reward or “bribe” employees to vote against a union.)
Not granting an increase in wages or benefits when you normally would make a change also can be an unfair labor practice. (It demonstrates that you can punish employees who would be interested in a union.) So anything you do may be challenged during a union organizing campaign.
But, in your case, no union organizing campaign has actually started; you are simply worried that a campaign may start. The NLRB recently ruled on such a case, and it split 2-1. The majority held that a change in benefits is only unlawful when the purpose is to interfere with known union organizing. If the employer is not aware of any organizing, it can’t be unlawful.
In the NLRB case, the dissenting board member argued that if the intent was to avoid anticipated union organizing, then the wage increase would be unlawful. (The wage increase would interfere with freedom of choice.) The problem with the dissenter’s view is that you could never grant a wage increase so long as you have a preference to remain union free.
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