Many technology companies elect not to use their own employees to perform collateral functions such running the corporate cafeteria or performing security and maintenance functions. Instead, they contract with outside vendors to perform these services, often through a competitive RFP process.
Since the technology company does not employ the individuals performing the services, it has nothing to worry about from labor unions seeking to organize them. Right?
Unfortunately, for many technology companies the answer is: wrong.
More and more often, companies are getting caught up in battles not their own. And we’re not talking about irresponsible companies who contract with shady employers that skirt the labor laws and provide substandard wages and benefits.
What’s going on? Many unions have given up on organizing non-union employees directly. Instead they seek to convince their employers to forego a secret ballot NLRB election by signing an “access agreement” (whereby union agents are invited into the workplace to speak with the employees), a “neutrality agreement” (whereby the employer agrees to not say anything negative about the union to the employees) and a “card check agreement” (whereby the employer agrees to bypass a secret ballot NLRB election in favor of voluntary recognition of the union on the basis of authorization cards presented to the employer by the union).
Since non-union employers are unlikely to agree to do this voluntarily, and since direct pressure on them is unlikely to be effective, unions have moved to secondary pressure. They put pressure on companies that are the target employer’s customers in order to force the target employer to agree to the union’s demands, or, in the alternative, to get the customer to replace the contractor with a company on the union’s “approved list.”
What are unions doing to pressure technology companies? The pressure can take many forms, but there are commonly recurring themes.
- Letter from union. The campaign usually starts with a letter from the union casting the tech company’s contractor (often unfairly) as a bad employer who pays substandard wages and benefits and who is interfering with the employees’ aspirations to form a union. The letter usually includes a request for a meeting.
- Handbilling the neutral employer’s premises. The union stations individuals outside the neutral employer’s premises, often holding a large banner featuring language highly critical of the neutral employer. They hand out leaflets designed to cast the technology company in a bad light, as “evil” or “uncaring” or as participating in the contractor’s attempts to interfere with the employees’ attempts to form a union.
- Holding rallies at the neutral employer’s premises. This campaign tactic may shine an unwelcome media spotlight on your company.
- Enlisting celebrities and sympathetic local politicians may similarly draw negative media attention.
- Testifying against the neutral employer at planning commission hearings is another common form of pressure.
Is all this legal? Many employers are incredulous that they are being drawn into a dispute between a union and their contractor. The National Labor Relations Act outlaws “secondary boycotts,” and offending unions are liable for damages in federal court. However, the line that unions are treading is a fine one. It is generally unlawful for a union to “coerce” a neutral employer to force it to cease doing business with another employer, but it’s lawful to “encourage” neutral employers to do so, even if the encouragement seeks to or has the obvious effect of harming the neutral employer’s business interests. Also, other actions may be available to the compan, including defamation, trespass and interference with contract.
What should technology employers do if they are caught up in one of these disputes?
- Decide what’s in your company’s best interest. Even though most employers may be offended by these tactics, some may decide that it’s too distracting to resist and it may be a better business decision to simply go along with the union’s demands and terminate their contractor. If you are considering this response, be sure to review your contract with the vendor to make sure you are not in breach by so doing.
- Know your rights. It is important that the company not threaten the union with legal action unless there is a good legal basis for such action.
- Communicate with your own employees. The union will try to make your company out as greedy and uncaring. Communicate with your employees and other stakeholders in a straightforward and firm way about the actual nature of the dispute.
- Be firm in any communication with the union. Like any rational organization, unions tend to expend their resources where they think there will be the most return. If they sense equivocation or weakness in a company’s response, that company is more likely to experience additional pressure.