Nothing will escalate an already tense workplace during a union-organizing drive and subsequent election than punishing pro-union employees. While you can certainly continue with any evaluations or disciplinary actions that are warranted, beware of targeting anyone involved in the union push.
In fact, it’s a good idea to make sure someone in HR reviews all evaluations and disciplinary actions to make certain they are consistent with past practices and performance.
Be on the lookout for sudden changes—sudden discipline for workers who previously received stellar reviews, criticism seemingly at odds with past appraisals. Make supervisors justify any deviations. That way, an angry supervisor can’t aggravate employees or trigger an unfair labor practice charge.
Recent case: Sira Fanely worked as a customer service representative for El Paso Electric. The utility had been partially unionized since 1944, and the union began a push to add customer service reps to its membership. Fanely was vocally pro-union. She also had consistently earned top evaluations—until the union began its drive.
The union won the election, and the next day customer service representatives found out their lunch schedules had been changed. Fanely complained to the union. That’s when the real trouble began. Union reps alleged that someone in the department told them the restrictions were intended to “straighten out” Fanely, and that she was a “trouble employee.”
Suddenly, nothing Fanely did was right with . First, management complained that during a customer service issues meeting, she had a “negative attitude.” Then she was accused of having been insubordinate in recent months. She was reprimanded and received a written warning.
The union filed an unfair labor practice charge against the company. It argued that by disciplining an outspoken union supporter, the utility committed an infraction.
The 5th Circuit Court of Appeals agreed with the union, writing that there was ample evidence that Fanely’s supervisors knew she supported the union and were unhappy about it. For example, Fanely had excellent reviews until after the union vote when supervisors tried to discipline her for a negative attitude and for “openly resisting coaching and instruction,” as well as for “abusive, threatening, insubordinate, or inappropriate behavior.”
Simply put, the court couldn’t believe that a model employee suddenly became a poor one, especially since there were just a few months between the glowing review and the reprimand. The utility had the burden to show it would have disciplined Fanely even if she had not participated in union activities. It couldn’t meet that burden. (El Paso Electric Company v. NLRB, No. 07-60600, 5th Cir., 2008)
Final note: Don’t ever go it alone when a union is pushing for an election or trying to negotiate that first contract. Instead, hire a well-qualified labor attorney as soon as you think your organization may be a union-organizing target. He or she also can review any disciplinary action you intend to take against union organizers or supporters to minimize the chance of an unfair labor practice lawsuit.
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