Union Wins without Winning an Election!

In a recent case, a marijuana dispensary was forced to bargain with the Union even though the Union was not elected by the employees. The case demonstrates the consequences of unfair labor practices and the government’s new, lower threshold for giving unions the right to represent workers.

Background

The case involves allegations that the Company, I.N.S.A., Inc., violated Sections 8(a)(1), (3), and (5) of the NLRA (and thus committed unfair labor practices or ULPs, for short).  The NLRB determined a fair election was impossible and, therefore, appointed the United Food and Commercial Workers International Union Local 1445 (the “Union”) the representative of the workers.

The issue began when I.N.S.A., Inc. (the “Company”) received a union demand from a majority of their employees on January 14, 2022. Four days later, the Union petitioned for an election. The Company subsequently discharged several employees for violating company policy. The Company also engaged in other behavior the Union found objectionable, all the while not recognizing the Union.

Unlawful and Objectionable Conduct – A Bargaining Order is Issued

Between the demand letter and the election results, the Company is alleged to have engaged in a series of unlawful and objectionable behaviors, including:

1. Discouraging Union Support: The Union alleged the Company held illegal mandatory meetings to discourage employees from supporting the Union. The Court held that none of the captive audience meetings rose to the level of a ULP.
2. Promising Benefits for Non-Support: The Union alleged the Company granted a universal wage increase to induce employees to refrain from supporting the Union. However, the Court decided the Company’s past history of annual raises was indicia that the raise was not designed to encourage employees to refrain from union support.
3. Creating an Atmosphere of Surveillance: The Union alleged owners and high-level managers made repeated visits to the store, thus creating the impression of surveillance. The Court ruled these visits were in line with past Company practices and, therefore, the visits and meetings were not a ULP.
4. Discriminatory Enforcement: The Union alleged the Company discriminatorily enforced work rules and policies leading to disciplinary actions and dismissals of employees engaged in union activities. The NLRB agreed with the Union and decided that the Company discriminatorily applied work rules against union supporting employees.

Consequences of Unfair Labor Practices

Although the Company successfully defended itself against most of the unfair labor practices, the Union convinced the NLRB the termination of employees violated the NLRA. Due to these infractions, the Company is being forced to bargain with the Union, even though the Union lost the election.

This is the first time the NLRB has applied the new Cemex ruling. Cemex was a groundbreaking case that significantly lowered the bar for when an employer’s unfair labor practices will result in the union being appointed the winner of an election (despite the fact that it lost). In the past, if a company engaged in unfair labor practices they were only required to rerun the election.

Lessons for Employers

This case serves as a cautionary tale for employers and offers several key lessons:

1. Understand Labor Laws and Your Employees’ Rights: Employers, including all their supervisors, must understand and not violate employees’ NLRA rights. The stakes are now higher than ever!
2. Fair Enforcement of Policies: Ensure workplace rules and policies are applied consistently and fairly, regardless of an employee’s union affiliation. Also, strictly enforcing these rules prior to a union threat will help you enforce the rules when the union does arrive.
3. Recognize Employee Sentiments: If employees are unhappy and are looking to a union for help, there will be signs in the workplace. If you proactively monitor your workplace, you will see the signs long before the union arrives. Take timely action to keep your workplace issue-free, and you won’t have these union related issues.
4. Understand Your Rights: As an employer, you have rights too. Employers should understand the things they can do to avoid and/or respond to a union drive. We often use the acronym FOE for things you can do.

F       Offer employees Facts about unions, such as “union dues cost employees money monthly.”

O       Offer employees Opinions about unions such as, “I do not think unions are necessary at our company.”

E       Offer employees Examples about unions, such as “The Auto Worker’s strike has put hundreds of employees out of work and cost those workers the money they need to support their families. We don’t need that kind of problem here.”

Conclusion

The case of I.N.S.A., Inc. underscores the importance of maintaining an issue free workplace where unions are not an issue and where leadership has been trained on the laws. The NLRB is making unionization easier and easier so employers must be more proactive than ever.

Brody and Associates regularly advises its clients on all labor management issues, including union-related matters, and provides union-free training.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560.