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September 17, 2003

Unions Help Non-Union Workers II

Here's a story on how the existence of unions help non-union workers. A bit of labor law context-- one of the rules in labor law is that once an organizing campaign starts in a particular worksite, the company may neither raise or lower wages or benefits in order to bribe or intimidate workers in how they vote on the union.

Companies often raise wages and benefits to union levels long before the organizers show up -- a perfectly legal thing to do -- but particularly bad employers suddenly get a union drive on their hands and try to jack up wages to fend off the union vote. This kind of documented wage increases to stop a union vote is just a microsm of the general wage increases that non-union workers get that they don't even realize is designed to keep the union organizer from the door. Strengthen labor rights and those wages will just increase for all workers, not just unionized workers.

So enter Wal-Mart at the NLRB (subscription needed, so no link)

, September 17, 2003
The Bureau of National Affairs, Inc.,

AUTHOR: By Eric Lekus

Wal-Mart Stores Inc. increased the wages of 90 employees at one of its stores in Aiken, S.C., and promulgated a no-talking rule in violation of the National Labor Relations Act during a union organizing campaign, a National Labor Relations Board administrative law judge found Sept. 10 (Wal-Mart Stores Inc. and United Food and Commercial Workers Int'l Union, NLRB ALJ, 11-CA-19015, 9/10/03).

The company's actions took place during a 2001 organizing drive by the United Food and Commercial Workers, according to ALJ John H. West. He recommended that a cease-and-desist order be issued requiring Wal-Mart to refrain from promising to improve employee wages or promulgating no-talking rules to discourage union activity, or from issuing verbal warnings to employees joining or supporting the union. His recommended order also would require Wal-Mart to remove from its files any references to unlawful discipline given to employees Kathleen MacDonald and Barbara Hall. His order will stand unless overturned by the full NLRB.

Wal-Mart spokeswoman Christi Gallagher told BNA Sept. 16 that the company still is reviewing the decision and determining whether it will file any exceptions to the ALJ's recommendations. She also noted that the ALJ dismissed several unfair labor practice charges against Wal-Mart, including allegations that managers from the company headquarters labor relations team improperly interrogated employees about their union activities or solicited grievances and promised to remedy them.

UFCW spokeswoman Jill Cashen said the decision could have an impact on organizing activities at other Wal-Mart stores. "They have used this no-solicitation policy everywhere to try and isolate union supporters and silence them," Cashen told BNA.

According to the ALJ, MacDonald contacted UFCW in February 2001. In May 2001, she asked several employees if they would be interested in joining the union. Management became aware of the organizing effort in early June, although it was not initially aware of MacDonald's role. On June 22, an official from the headquarters labor relations team who was at the store to discuss Wal-Mart's philosophy on unions asked MacDonald how much she was making. When she told him, he said that did not sound right for a long-term employee like MacDonald.

At the time, the new store manager already had been talking with the district manager as to whether wages at the Aiken store had become compressed, with new employees earning nearly as much as their more experienced colleagues. Indeed, one employee was granted a raise during the spring after she approached the district manager to complain about her pay. On June 28, Wal-Mart managers told MacDonald that she was being given an 81-cent-per-hour raise. A total of 90 of the store's 425 employees received pay adjustments on or around that date.

In July, Hall -- who was on leave for medical reasons -- came into the Aiken store to discuss a union meeting with MacDonald, who was working. On July 24, the store manager summoned both employees to his office for separate meetings. The manager said he gave a "verbal coaching" to the employees regarding the company's solicitation policy; both workers, however, testified that they were told they were not to speak about anything, whether or not it was union-related, while on the clock.

Union Drive Predated Wage Review.

The ALJ found that the wage adjustment was illegal and that the store manager unlawfully promised to improve wages to discourage union activity. Such adjustments are legal if the employer is following past practice or if they were planned and settled before the beginning of organizing efforts.

Wal-Mart was unable to show either factor in this case, according to the ALJ. The wage compression report began after members of the headquarters labor relations team arrived at the Aiken store, which in turn followed local management becoming aware of the organizing campaign. Furthermore, Wal-Mart could not demonstrate that it had ever granted a wage increase at that facility following a wage compression report, the ALJ said.

The ALJ also found that the store manager's conversations with MacDonald and Hall were improper. The problem with the manager's approach, according to the ALJ, is that the employees were not soliciting in the first place. "To ask an employee for their telephone number to discuss the Union, if the employee is interested, after work is not soliciting by any stretch of the imagination," he said. The solicitation policy that was published on Wal-Mart's corporate intranet and described to the employees was "facially illegal," the ALJ added, and it was not surprising that MacDonald and Hall would be confused as to how to interpret the store manager's warning.

"It is no wonder why the two employees were confused and [chose] to take the safest approach in the circumstances, and not talk to anyone on the sales floor," he said.

Gallagher told BNA that the employees misinterpreted Wal-Mart's policy. Cashen, meanwhile, said the ALJ's decision demonstrates that "talking about a union is not solicitation. It certainly gives support to every other worker trying to talk with their co-workers about the union at Wal-Mart."

Small Voting Unit Rejected.

In a separate Sept. 11 decision, an NLRB regional director rejected a proposed voting unit of overnight stockers, soft line apparel processors, and unloaders at a Wal-Mart in Clinton, Md., finding the employees did not have a separate community-of-interest from other employees (Wal-Mart Stores Inc. and United Food and Commercial Workers Union, Local 400, NLRB Reg.Dir., No. 5-RC-15602, 9/11/03).

There are approximately 400 employees at the store, according to the decision from Regional Director Wayne Gold. The unit sought by UFCW Local 400 would have represented 37 overnight stockers, 14 unloaders, and three assemblers.

All hourly employees begin at the same wage rate unless they have prior experience. While the overnight stockers and assemblers receive a night differential, so do any other employees who work overnight. The employees in the proposed unit are not commonly managed at an immediate-supervisor level, in part because to a certain degree, all hourly associates are managed by any store supervisor, according to the regional director.

The overnight stockers and unloaders performed similar job functions, but they are not the only ones who do stocking, the regional director said. Members of the proposed unit generally do not have to have special skills, training, or certifications, and many have sustained, daily contact with employees in excluded classifications. As a result of those and other factors, the regional director found that the proposed unit was inappropriate. Local 400 was not willing to proceed to an election for any other unit than the one it proposed, according to the decision.

Posted by Nathan at September 17, 2003 12:36 PM