Unions exist to provide assistance to employees; this is their reason for being. Yet once a union begins a campaign to represent a group of employees, it is legally barred from extending tangible assistance to the workers. The National Labor Relations Board ("NLRB" or the "Board") and courts deem a union grant of benefits to employees during or prior to a representation campaign objectionable conduct that requires setting aside the results of the representation election and holding another election.
This article's proposal to open the door to unconditional union benefits during an organizing campaign will likely be controversial. Part of the controversy stems from the fact that the proposal would reverse a legal rule that has been in place for more than thirty years. A greater source of controversy will be that the proposal would allow unions to do something that employers are forbidden to do. Currently, both unions and employers are prohibited from granting employees unconditional benefits during an organizing campaign. Removing that prohibition just for unions would no doubt spur complaints by employers and their representatives, who would argue that the prohibitions on each side are currently equivalent, and it would therefore be unfair and unreasonable to remove the limit for just one side.
This article proposes a policy change that the Board has full authority to carry out. The Board, in fact, created the prohibition on union grants of benefits and it should now revisit this policy. The prohibition is harmful to employees and limits their ability to make a fully informed and well reasoned choice in representation elections.
Let Unions Be Unions: Allowing Grants of Benefits during Representation Campaigns, 5 U. Pa. J. Lab. & Emp. L. 259 (Winter, 2003)