In a major development in the law on workers’ rights to unionize, the National Labor Court has ruled that employers cannot interfere, directly or indirectly, with employees’ initial attempts to organize. The Histadrut (General Federation of Labor in Israel), Pelephone Communications employees, and all employees seeking to unionize, have won a major victory. The National Labor Court, under President Nili Arad, handed down on Thursday a precedent-setting, and even internationally historic, ruling that an employer does not have the right to intervene or express an opinion about unionization by employees.

The court accepted the position of the Histadrut, which was almost completely endorsed by Attorney General Yehuda Weinstein. Along with the achievement for employees, employers will likely consider the ruling a blow.

A demonstration in solidarity with Pelephone workers, last Thursday. Among the marchers in Kaplan Street in Tel-Aviv: Hadash activists (Photo: Pelephone Workers Union)

Judge Arad was joined by Vice President Yigal Plitman and Judge Amiram Rabinovich in the ruling, which states, “The employer does not have freedom of expression, in other words, the right of response to employees exercising their right to unionize. Its intervention in this process causes disproportionate harm to the internal democratic process of its employees, to which it is not a party. There is a reason why initial unionization of employees in the workplace mostly occurs in secrecy, and emerges only when the number of union members allows its recognition as a representative organization.”

Under the ruling, during unionization activity, the employer may only undertake the activity it undertook before the unionization, and then only if these activities do not harm the unionization.

The Histadrut appealed to the National Labor Court against a ruling by Tel Aviv District Labor Court Judge Orant Agassi, who ruled that the freedom of expression to unionize by Pelephone’s employees should be balanced by the employer’s freedom of expression in the matter of the unionization.

The National Labor Court explicitly overturned the lower court ruling, stating, “The decision of the district labor court, which is based on an assumption of equality between the right to unionize and the employer’s freedom of expression, should be set aside.”

According to the ruling, when considering a conflict between rights – freedom to unionize against the employer’s freedom of expression – the harm to the employer’s freedom of expression is “proportionate and essential” so long as it is intended to maintain and realize the employees’ right to unionize.

The Court ruled that:

  a.   The company will not track employees that organized, or employees who have chosen not to organize, through managing lists, or otherwise;

  b.   The company will refrain from presenting its position regarding the organizing, at explanatory conferences for employees arranged by the Histadrut on company grounds, in private or group meetings with employees, by electronic correspondence, or otherwise.

  c.    The company will refrain from presenting to employees the disadvantages that it believes exist in joining an employees’ organization and implications of the organizing on the economic or other activity of the company, including directing position papers to employees and promoting its opinions about the organizing.

  d.   The company will not track employees exercising their right to organize, including managing lists regarding the names of employees who signed the membership forms to the employees’ organization.

  e.   The company’s remarks about the extent of the damage that is liable to be caused as a result of the organizing and harm to its ability to compete with competitors, including the contents of the CEO’s letter, even if  true, constitute expressing an invalid and forbidden position.

The National Labour Court instructed that “Pelephone will refrain from initiating personal meetings with employees, with groups of employees, regarding exercising the right of association; and that the company will not use the means of communication at its disposal and its access to employees, in spreading messages against the organizing, through text messages to cellular phones or distributing letters to employees through e-mail.”

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