A Company's Objections To Union Promises Made During Election Campaign May Be An Uphill Battle
Union promises allegedly included "a pathway to citizenship."
Portillo’s (PTLO), an iconic, Illinois-based employer, is objecting to the outcome of a National Labor Relations Board (NLRB) election held earlier this month amongst its employees at food production center in Addison wherein employees voted 28-20 to unionize with the Ironworkers.
The company, known for its famous Chicago-style hot dogs, is alleging that the employees were swayed by union promises, including a “pathway to citizenship.”
Promising a pathway to citizenship?
“The improper activity noted in the filings includes promises by union representatives to team members that in exchange for voting yes, the union would provide them a pathway to citizenship, including by providing them with green cards,” the company reportedly stated.
Portillo’s states that its claims are “supported by the first-hand testimony and affidavits from witnesses, the filing with the NLRB describes promises made by union representatives in their effort to secure a winning majority.”
Despite the fact that, if true, the Ironworkers may have preyed on immigrant workers’ status with its promises, is an alleged promise of a “pathway to citizenship” any different than a promise of higher wages or “free” benefits?
NLRB caselaw allows union promises
Despite Portillo’s contesting the union’s election conduct, the company will likely face an uphill battle overturning the election results.
For decades, the NLRB has allowed unions to make election promises while, at the same time, employers are forbidden from making them.
As labor attorney Daniel V. Johns wrote in a paper entitled Promises, Promises: Rethinking the NLRB's Distinction Between Employer and Union Promises During Representation Campaigns for the University of Pennsylvania Journal of Business Law:
The prohibition against employer promises during representation campaigns is so well-entrenched that it has become an axiomatic principle of labor law: Employers cannot make promises to employees about the consequences of a "no" vote in a representation campaign, while unions are free to make any promises about the benefits employees purportedly can achieve through collective bargaining if the union wins the election. The rationale behind this rule is that an employer's promises are more coercive and damaging to employees' rights than a union's promises, because employees understand that an employer can fulfill its promises while a union cannot guarantee any result.
Indeed, on its Protecting Employee Rights brochure (in PDF), the NLRB states that an employer may not: “Promise or grant promoti ons, pay increases or other benefi ts to discourage union support.” However, no such prohibition exists for unions.
Union campaign promises are considered ‘campaign propaganda’
In fact, as far back as 1971—and consistent with cases both before and after—in a case called The Smith Company (192 NLRB 1098), wherein a large number of union promises were made to employees, the NLRB ruled:
With respect to the benefits which the two employees say the Union promised, it is concluded that the statements attributed to the Union did not exceed the bounds of privileged campaign propaganda. Employees are generally able to understand that a union cannot obtain benefits, automatically by winning an election but must seek to achieve-them through collective bargaining. Union promises of the type involved herein - are easily recognized by employees to be dependent on contingencies beyond the Union's control and do not carry with them the same degree of finality as if uttered by an employer who has it within his power to implement promises, or benefits. [Emphasis added.]
As a result of this case, and many others like it, the NLRB will allow unions to make promises—no matter how misleading—because employees are “generally” able to “understand that a union cannot obtain benefits, automatically by winning an election.”
Is a pathway to citizenship different?
Given Portillo’s statements in the press, it would appear that the company has at least some employees who are not citizens.
Despite the fact that, if true, the Ironworkers may have preyed on immigrant workers’ status, is an alleged promise of a “pathway to citizenship” any different than a promise of higher wages or “free” benefits?
It will be up to the NLRB to decide. And, given the pro-union nature of current NLRB, it would be surprising if the NLRB reverses its longstanding position.