Fordham University and Service Employees International Union Local 200U (the “Union”) have now entered into an agreement regarding an election before the National Labor Relations Board to determine whether the Union will represent certain Part and Full-Time Non-Tenure Track Faculty. One of the provisions in the Agreement requires the University to adopt a policy of neutrality during the election. This means that the University, and by extension its management, is restricted from favoring one side or the other in the weeks leading up to the election and through the two-week election period. Under the terms of the Agreement, management includes any University officer, administrator, supervisor, designee, or agent
A date for the election has not yet been set, but we expect it will be forthcoming soon. But the obligation to remain neutral is now upon the University. To that end, the Agreement provides that:
- The University has agreed to an official policy of neutrality
- The University will not advise the employees concerning how they should respond or vote during the Union’s organizing campaign or election.
- The University agrees that it shall not conduct an anti-union campaign.
- No University officer, administrator, supervisor, designee or agent shall provide assistance to any individual or group who may wish to pursue an anti-union campaign, including use of employer time, property or resources.
In addition to the obligations imposed by the Agreement, the National Labor Relations Act, which governs employee-union relations and is enforced by the National Labor Relations Board imposes obligations on employer conduct leading up to an election. Those obligations are in addition to the obligations imposed by the Agreement. They are discussed below.
Unfair Labor Practice Analysis
To determine whether any particular statement by a management representative is legal under NLRB rules, the following analysis should be applied. The primary unfair labor practice rules are represented by the acronym T I P S. T I P S stands for the following unfair labor practices:
T – Threats of reprisals relating to union activity.
I – Interrogation concerning union activity.
P – Promises of benefits relating to union activity.
S – Surveillance or creating the impression of surveillance.
1. Examples of Unlawful Threats
- Jobs will be eliminated.
- Departments will close.
- There will be a layoff.
- Raises and merit increases will stop.
- The University will never sign a contract.
- Union supporters will not be promoted.
- The grievance procedure will be eliminated.
- Privileges will be revoked.
- Discipline will be tougher.
2. Examples of Unlawful Interrogation
- I don’t think we need a third party to talk for employees, how about you?
- What do you think the employees have to gain by joining a union?
- Why would our employees want a union here?
- Did you go to the union meeting last night?
- How will you vote in the election?
- What are the employees’ problems?
3. Examples of Unlawful Promises to dissuade employees from supporting the Union
- Wages will be increased.
- A pay increase will be recommended.
- Our retirement plan will be improved.
- Employees will be treated better.
- Preferential duties will be assigned.
- Special privileges will be given.
- Additional time off will be granted.
- The grievance procedure will be improved.
4. Rules for Avoiding Unlawful Surveillance
- YOU MAY NOT imply that you have someone on the inside telling you about union meetings or insinuate that you know when and where meetings have been held (unless the information is public knowledge). Do not create the impression that you know what has been said at union meetings.
- YOU MAY NOT ask employees to report the identity of pro-union sympathizers to you or to other officials of management.
- YOU MAY NOT encourage employees to engage in surveillance of union activities or reveal who is for or against the union.
- YOU MAY NOT question (even when you are off company premises) an employee’s spouse, relative, neighbor, friend, or co-worker as to whether the employee is for or against the union.
- YOU MAY NOT tell employees that co-workers are informing you about union activities, or that some employees are keeping you posted on what is going on with the union. Do not imply, even in a joking way, that you are receiving information about union activities. Do not start conversations with statements like, “I’ve heard that some people are interested in the union …” Any such statement could be viewed by the NLRB as an unfair labor practice since it creates the impression of surveillance.
- YOU MAY continue to visit local bars, restaurants, and other establishments even if a union meeting is taking place there, as long as you have had a practice of going to these places. Before going to any establishment where you know a union meeting is to take place, be sure to check with management first.
Anyone with questions about the contents of this memorandum or their obligations under the neutrality Agreement should contact the Office of Legal Counsel 718-817-3110.