Recent research shows employee satisfaction’s at an all-time low. Workers’ wages are stagnant – far from keeping pace with inflation. Then there’s the threat of the pro-union Employee Free Choice Act pending in Congress.

So there’s a very real possibility many smaller companies could be facing what would have seemed impossible just a matter of months ago – a drive to unionize their workplaces.

And the news gets worse: The smallest things can get you in trouble when the union drive’s in full swing. Here’s a look at two recent court cases that illustrate how petty mistakes can have big consequences.

Little things mean a lot – of grief

In the first case, Cintas Corp., a national distributor of workplace uniforms, was fighting efforts to organize two of its facilities.

The company got in hot water over three actions:

• disciplining workers who wore pro-union stickers on their uniforms (a violation of the company’s dress code)
• confiscating union flyers employees had placed in the company break room, and
• interrogating an employee about her signature on a union-authored letter to a Cintas customer citing safety concerns about chemicals used to treat the customer’s uniforms.

The union filed an unfair labor practice complaint with the National Labor Relations Board.

The NLRB – and later, a federal appeals court judge – came down hard. The company had singled out union supporters for the dress code violation, the board said. Employees had regularly worn holiday and decorative pins on their uniforms, and no one had ever been disciplined.

The company admitted it made a mistake when it confiscated the flyers, and said it issued an apology in staff meetings. But the court ruled that wasn’t enough – a written apology hadn’t been posted in the workplace. Plus, the flyers were never returned.

Finally, the judge said, interrogating the employee about the customer letter amounted to forcing her to declare whether or not she supported the union. Another violation. Cite: Cintas Corp. v. NLRB

Bulletin boards and buttons

The second case involved a manufacturer with a plant in Wisconsin. Like the Cintas case, it centered on seemingly trivial moves on the part of the company.

Loparex LLC had allowed employees to use workplace bulletin boards for a number of non-work purposes.

Mistake No. 1: After union organizing efforts began, management issued a rule that all bulletin board material had to be approved by management.

Mistake No. 2: When employees tried to hand out union materials in the company parking lot, they were stopped by company officials.

Mistake No. 3: A supervisor warned organizers that “I don’t want to see you passing (pro-union) buttons out” in a non-work area.

The union filed suit, and the company was found to be in violation of labor laws on all three counts. Cite: Loparex LLC v. NLRB

In both cases, along with an order to halt unlawful practices, the NLRB required the companies to post public notices acknowledging their labor violations and guaranteeing employees their rights to unionize.

The latest version of the Employee Free Choice Act has hit the table. Let the fireworks begin.

Sen. Arlen Specter — the Pennsylvania Republican-turned-Democrat who’s been the linchpin of the controversy over the pro-union proposal — has unveiled his version of the legislation. He picked a likely locale: the AFL-CIO convention in Pittsburgh.

Here are the highlights of Specter’s offering:

• “Card check” discarded. This was the bill’s sorest spot — a provision that would allow unions to be formed through a simple majority of employees signing cards indicating their approval, a substantive shift from the current requirement that unions can only be formed after secret-ballot elections. The fact that the provision’s not included in Specter’s bill comes as no surprise. He swore he’d never vote for EFCA if card check was part of the package, and he was joined in that opinion by several right-leaning Democratic colleagues.
• Strict time frames for elections. Labor groups have long complained that with no deadline, employers can extend the period before secret balloting is held to intimidate employees. Specter’s bill would set a specific time limit between the date organizers announce they have sufficient employee support and when the actual voting takes place.
• Mandatory arbitration. Labor leaders have long complained that employers unfairly dig in their heels during the “first contract” process — to the point where many newly formed unions simply fall apart because the negotiations drag on for months, sometimes years. Specter’s proposal would require the parties to enter into mandatory arbitration after a specific negotiating period. But he adds a bone for employers who are wary of giving mediators the power to dictate contract terms.
  The measure would require both union and management to submit their “last best offer” for arbitration. The mediator would then be required to pick one or the other; the arbiter would not have the power to come up with a compromise. Such a requirement would prevent unions from “asking for the moon” in the hope a mediator devises a deal that splits the difference between the two parties.
• Equal time. Union organizers would be guaranteed equal access to workers, if the employer holds anti-union meetings during regular work hours.
• Triple time. Under the Specter proposal, penalties for employers who violate labor laws during organizing efforts would be three times as harsh as they stand today.

Will this version of EFCA pass? At this point, it’s anybody’s guess. With the recent death of Sen. Ted Kennedy (D-MA), the Democrats lack the required 60 votes to block a filibuster in the Senate. Nonetheless, Specter said he expected EFCA to pass “before the year is out.”

We’ll keep you posted.

For a look at some of the political maneuvering around Specter’s move, go here.

Just 48% of participants in a recent Gallup Poll expressed approval of labor unions. That’s down from 59% in last year’s survey, and the lowest level of public support since Gallup first asked the question in 1937.

To put the numbers in perspective: In that first poll — held right after the passage of the National Labor Relations Act, which gave most private-sector workers the right to join a labor union — the approval rate was 72%. That benchmark was bested in 1957, when the number rose to 75%.

The previous low? A 55% approval rate in both 1979 and 1981.

Hopeful sign for employers?

The poll results couldn’t come at better time for employers feeling threatened by the prospect of  EFCA’s passage — whatever form that might take. Even if the pro-union legislation makes it into law, it seems there’s a dwindling number of Americans who feel the labor unions are playing a positive role in the national economy.

For a look at the full poll results, go here.

A recent federal court case involved a newspaper copy editor who served as president of her union. She was disciplined after she used a company computer to send co-workers an e-mail concerning a union meeting.

Her employer cited the firm’s e-mail policy, which prohibited personal messages and others that involved “religious or political causes.”

Can’t pick and choose

Some months later, she sent two more e-mails concerning union activities, and was disciplined again. The union filed suit, charging the employer was guilty of unfair labor practices because of its misapplication of the e-mail policy.

A federal appeals court judge agreed. The court pointed out the firm’s e-mail system was routinely used for such things as birth announcements, party invitations and even solicitations for United Way contributions — and no one had ever been disciplined.

What’s the take-away here? Employers can’t pick and choose when to enforce policies, especially ones that deal with communication among employees. Obstructing the flow of information concerning unions — either existing ones or ones in the formative stages — can land companies in serious hot water.

Cite: Guard Publishing v. NLRB, U.S. Circuit Crt. DC, No. 07-1528, 7/7/09.

President Obama recently admitted that the “card check” provision of EFCA — which would establish a union when a majority of employees simply sign cards indicating their support — doesn’t have enough Congressional support to pass.

But compromise measures are in the works.

These include a proposal from Rep. Joe Sestak (D-PA) that would, among other things:

• give equal time to union organizers following “captive audience” meetings between management and workers, and
• provide organizers with all announcements or literature distributed by the employer, so union reps can respond.

Another key issue in the legislation: arbitration. Current law requires both labor and management to engage in good-faith negotiations following union certification. But it doesn’t mandate an agreement. So talks can — and often do — go on indefinitely.

Under the current version of EFCA, if the two parties haven’t reached an agreement after 120 days, the matter would go to binding arbitration.

Clearly, that provision isn’t exactly popular with employers. Compromise proposals could include a formal timetable for negotiations, less-restrictive forms of arbitration and a mechanism for employees to vote on a company’s “last best offer.”

We’ll keep you posted.

The U.S. Chamber of Commerce has been actively campaigning against EFCA. For a look at the Chamber’s latest position, go here.