Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Sunday, August 30, 2009

Modern Day Yellow Dog Contracts??

NY Times labor reporter Steven Greenhouse wrote an excellent August 29, 2009 article revealing the practice of Regis Corporation that is apparently encouraging employees, but not requiring them, to sign a document agreeing to insist on a union election. “In order to preserve my right to a secret-ballot election, and for my own protection, I knowingly and without restraint and free from coercion sign this agreement revoking and nullifying any union authorization card I may execute in the future.” Jeff Hirsch over at workplace prof blog believes that this is a violation of 8(a)(1) and the article quotes Stanford Law Prof Gould has indicating that this practice is very close to the infamous yellow dog contracts which have long been outlawed.

Though my gut tells me that Jeff is probably right, I am not so sure. Yellow dog contracts required employees agree not to join a union in advance. Here, the employees are only agreeing in advance to insist on a union election. The employees can still vote their conscience. Of course, any employer implicit threats may interfere with employee free choice. But if the employee is truly signing this card on his own, does that interfere with the laboratory conditions necessary for their to be a free and fair election?

Mitchell H. Rubinstein

Hat Tip: Workplace Prof Blog

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Mitch, can't these be viewed as coercive on their face? In other words, can't the act of "urging" employees to prospectively sign away their ability to designate a union through cards be viewed by a reasonable employee as chilling or coercing their Section 7 rights?
Of course these contracts can be viewed this way. I am just not so sure that they are per se 100% unlawful

Posted by: Jeff Hirsch | Aug 31, 2009 6:59:22 AM

Regis' attorneys at either Littler Mendelson or Jackson Lewis earned their money's worth on this maneuver. I agree that this does not trigger any threatening action against the employee, since the attorney is still free to join the union. Of course this is just another example of how the NLRA does not have a level playing field between management and the union.

Posted by: Sujan Vasavada | Sep 1, 2009 3:27:52 PM

I am a former employee of Regis corp Smart Style division. I did indeed get fired for not signing this paper Employees I spoke to were in fact coerced to sign with threats of job loss Those who did not immediately sign the form had their schedules reduced and eventually were terminated. Company stated that they did not make their commission which in my case was not true. The signing of this paper was preceded by a very scripted anti labor video

Posted by: Mimi | Oct 15, 2009 8:19:33 AM

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