When Do Signs About Union Fees Cross a Line?

 

Allen Smith, J.D. By Allen Smith, J.D. May 23, 2019
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​Delta Air Lines is one of the few union-free airlines left and is trying to keep it that way with two eye-catching posters that have made some ask if the company crossed a line. Management attorneys said the posters probably are lawful, but in a May 15 letter to Delta Air Lines CEO Ed Bastian, nine U.S. senators described the company's communications as demonstrating "corporate greed."

One poster read, "Union dues cost around $700 a year. A new video game system with the latest hits sounds like fun. Put your money towards that instead of paying dues to the union," The Washington Post reported.

The other said, "What does $700 mean to you? Nothing's more enjoyable than a night out watching football with your buddies. All those union dues you pay every year could buy a few rounds."

Democrats' Criticism, Union's Charge

Following an outpouring of social media criticism, nine Democratic senators, including presidential candidates Bernie Sanders, D-Vt., and Elizabeth Warren, D-Mass., called the posters "insulting and demeaning." They said Delta "has been pushing a constant barrage of literature that includes misrepresentations, mischaracterizations and falsehoods to employees in their break rooms and employee lounges." The senators asked the company to let its workers decide whether to unionize "free from fear, intimidation or retaliation." The other senators who signed the letter were Sens. Tammy Baldwin, D-Wis.; Richard Blumenthal, D-Conn.; Sherrod Brown, D-Ohio; Robert Casey Jr., D-Pa.; Edward Markey, D-Mass.; Jeff Merkley, D-Ore.; and Ron Wyden, D-Ore.

Sen. Patty Murray, D-Wash., met with a Delta representative and said in a May 15 statement that its workers "deserve an apology."

Also on May 15, the International Association of Machinists filed a charge with the National Mediation Board, claiming that Delta had broken the law through "a coordinated misinformation campaign." It also alleged that the airline had fired workers for union activity.

Senators and presidential candidates Cory Booker, D-N.J., and Kirsten Gillibrand, D-N.Y., along with Sen. Robert Menendez, D.-N.J., wrote Bastian separately on May 17, opposing Delta's anti-union efforts.

Delta's Response

Delta called the union's claims "completely baseless" in a statement. "We respect our employees' right to choose whether or not union representation is right for them."

The company added, "The direct relationship we have with our employees is at the very core of our strong culture and it has enabled continuous investments in Delta people. Our employees have the best total compensation in the industry, including the most lucrative profit-sharing program in the world. They want and deserve the facts." It noted that the company "has shared many communications, which on the whole make clear that deciding whether or not to unionize should not be taken lightly."

Posters Probably Are Lawful

Management attorneys said that the posters probably don't break the law.

"There is nothing wrong with such communications," said Allison Feldstein, an attorney with Saul Ewing Arnstein & Lehr in Pittsburgh. "Employees have a right to union financial information to ensure that they are educated before voting for representation."

Such signs must be truthful, said Jonathan Keselenko, an attorney with Foley Hoag in Boston. Pointing out what could be purchased with the amount spent on union fees "can be an effective weapon."

Jim Gray, president of Jim Gray Consultants in Charleston, S.C., said companies opposing unions typically will point out how much money employees could save in a 401(k) with the amount spent on union fees, which often equal one week of pay a year.

A company might compare the cost of union fees to season tickets or concert tickets.

It might stack diapers and kids' clothing on a table for comparison's sake or display bags of groceries equaling a year's worth of fees, he noted.

Did They Set the Right Tone?

Companies can't threaten employees who want to unionize, interrogate them, make promises about what will happen if a union is or isn't formed or spy on organizing employees.

[SHRM members-only HR Q&A: How can we prevent a union from organizing in our company?]

While Delta's signs are not threatening, they don't strike the right tone, according to Molly Lee Kaban, an attorney with Hanson Bridgett in San Francisco. "The signs minimize concerns employees may have about their compensation and working conditions, the concerns that would lead them to seek out a union, implying they would be happier if they bought a video game system or a couple of rounds for their friends. The signs come across as condescending."

Setting the right tone when communicating about union fees depends on which workers the company is trying to reach in its communications, noted Peter List, founder and CEO of Kulture in Charleston, S.C.

Signs about fees are most effective with low-wage workers.

Signs about fees are most effective with low-wage workers, Gray said.

But they might distract from the central issues in organizing campaigns, he added.

Workers might be unhappy with direct supervisors or managers of facilities and organize unions to get the C-suite's attention, Keselenko said. Executives might think some policy changes, such as new reimbursement policies, are insignificant, but they instead might rile workers.

Phillip Wilson, president and general counsel of Labor Relations Institute in Broken Arrow, Okla., said he initially thought Delta's posters weren't great. But he noted, "There's some truth that no one pays attention to a milquetoast flier."

Delta presumably knows its target audience better than anyone, he added, saying perhaps it has a young demographic it was trying to reach.

These posters got people talking, Wilson said, and if that was Delta's goal, "mission accomplished."

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