Avoid Costly Mistakes: Prepare Ahead for Union Activity

Part II of a two-part series on union organizing

Your organization may not seem vulnerable to union organizing activity, but current trends suggest otherwise. Union activity is on the rise—during the first half of fiscal year 2022, union petitions jumped 57% from the second half of FY2021. Experts say that if this pace continues, this could be the largest surge in petitions in well over a decade.

Now that the unionizing efforts from within Starbucks and Amazon have gained traction, unionizing may seem like far more appealing option for workers who feel marginalized or undervalued. Employers in other industries and in smaller businesses that haven’t traditionally faced the possibility of unionizing efforts should prepare to respond appropriately if and when union activity occurs.

Part I of this series outlined four proactive steps employers should take: Strengthen employee engagement and workplace culture; understand the National Labor Relations Act and the role of the National Labor Relations Board; become familiar with the union organizing process; and know your rights. This last step includes knowing ahead of what statements and actions are and are not legal during a union organizing campaign and is key to successful preparation.

Employers can:

Employers are allowed to prohibit union representatives from coming onto their property—unless the employer lets in other outside groups, such as cellphone companies or political candidates, or is open to the general public. They may also prohibit solicitation while an employee is expected to be working and in retail areas and dining areas during business hours, and patient caretaking areas at all times. The distribution of literature during working time and in working areas and during working times may also be prohibited – this applies to both on and off duty employees.

Under the law, employers also have “free speech” rights to express their views or opinions regarding the union and unionization in general. Thus, the law does not prevent them from informing their employees of the reasons why a union is not necessary. Employers or their representatives may actively campaign against the union organization by providing factual statements or opinions to employees, including reasonable forecasts of the possible outcomes of collective bargaining.

Furthermore, employers may advocate against the union, express the company’s position, and make comments regarding unions in general, provided they do not threaten or punish employees regarding any union activity or membership. Likewise, employers may not reward or promise employees benefits or improved working conditions for refusing to join or support the union. Employers should not interrogate any employee about their union activity or poll them about their union beliefs. Employers that mention the possibility of a shutdown or layoff during organizational activity, however, are almost certain to face an unfair labor practice charge.

Employers cannot:

Employers may not forbid employees to solicit other employees during breaks, off-duty time, in non-working areas, nor may they call the police unless there is a sound basis for believing that the union is breaking the law, e.g., trespassing, blocking traffic, lettering, or vandalizing. They also cannot deny off-duty employees’ access to exterior non-working areas such as entrances, perimeters, or parking lots without a valid business purpose or ban the wearing of union buttons or shirts without a valid business purpose for the restriction unless special business circumstances (e.g., retail setting and employee interacts with customers, safety, or product contamination concern) necessitate a strict uniform code. Employees also have the right to distribute materials on company property as long as they are doing so in non-working areas and during non-working time.

Whether the employer’s statement is illegal depends on the employee’s perspective – how the statement is perceived. Perceptions could vary greatly between the employer and employees due to tension in the workplace. Be very careful not to make what might appear to be either a threat or a promise that is contingent upon workers’ rejection of the union.  Some statements by employers are governed by the way in which they are made. A statement that might otherwise be permissible or seem harmless can be considered threatening or coercive because of the environment in which it was made.

Note that an employer is otherwise free to speak with an employee who is open and active about their pro-union stance, or any other employee who approaches them, provided the conversation remains free from threats, coercion, or promises of benefits.  Employers are allowed to listen to (and report to upper management) information from employees that is freely volunteered.

Remember this simple acronym regarding interaction with employees during a unionizing campaign: “TIPS.”

“T”: employers should not threaten employees regarding their union activity or membership.

“I”: employers should not interrogate employees about their union activity or membership.

“P”: employers should not punish employees regarding their union activities or membership.

“S”: employers should not spy or conduct surveillance on employees regarding their union activity or membership.

OMNI can help your organization assess readiness for a union organizing effort and assist in preparing a tailored plan for your organization. Contact us at 913.341.2119 for more information.

Nancy Miller, a Senior Consultant at OMNI Human Resource Management, has over 25 years of Human Resource Management and small business ownership experience. Her focus is on management, employee and organizational structure and development. Prior to joining OMNI, Nancy worked for 13 years at Ford Motor Company and was the Owner and President of a bed and breakfast on the Country Club Plaza. She graduated from Canisius College with a Psychology/Gerontology degree and received her master’s degree from Syracuse University in Personnel and Industrial Relations/Innovative Marketing.

Jennifer Gross-Statler, Marketing & Communications Manager, comes to OMNI with 20-plus years’ experience as a nonprofit executive and brings valuable expertise in community and media relations, marketing and branding, project management, and strategic planning.