NOTE: This article is Part I of a multi-part series on union organizing.
During a union organizing drive, the statements and actions of an employer are critical. While leadership may be compelled to do or say whatever it takes to keep out a union, doing so could backfire. Once a union organizing attempt is launched, it is imperative for an employer not to engage in any activity that could be considered interference in the employees’ right to freely choose or reject the union. Employers should perform due diligence to reduce the risk of violating labor laws, which could result in unpredictable and expensive consequences.
Legal restrictions on statements and actions apply to owners, supervisors, and agents—anyone speaking “on behalf” of the employer with sufficient authority. Their statements will be taken as the views of the company, which can be held responsible for their conduct, authorized or not. Successful businesses prepare in advance for a union organizing effort by following these four steps:
Step 1: Strengthen employee engagement and workplace culture
Unions frequently attempt to organize employees who are dissatisfied because they feel they are not being treated fairly or with respect. Employers that create a positive and just workplace are more successful at warding off unionizing attempts.
Step 2: Understand the National Labor Relations Act and the role of the National Labor Relations Board
The National Labor Relations Act (NLRA) is the primary federal law regulating union activity. It forbids employers from interfering with, restraining, or coercing employees in the exercise of rights relating to organizing, forming, joining, or assisting a labor organization for collective bargaining purposes, or from working together to improve terms and conditions of employment, or refraining from any such activity. Similarly, labor organizations may not restrain or coerce employees in the exercise of these rights.
The National Labor Relations Board (NLRB) is the federal agency that determines what actions by employees, employers and union representatives represent unfair labor practices and conducts the secret ballot elections where workers decide whether to become unionized.
Step 3: Become familiar with the union organizing process
Once employees decide they would like to be represented by a union, they sign an authorization card to indicate their desire to be represented by the union. The union representative presents completed authorization cards to an employer. An employer may choose to voluntarily recognize the union as the bargaining representative of its employees without an election, provided that the union has signed authorization cards from more than 50% of employees. There is no obligation for an employer to recognize this card check practice. Recognition of a union without a secret-ballot election could be unreliable and might increase susceptibility to coercion and intimidation by the union.
An employer may refuse to recognize the card check majority and insist on a secret-ballot election conducted by the NLRB, where employees can cast a confidential vote without pressure from the union or co-workers. If less than 50%, but at least 30% of eligible employees have signed authorization cards, a secret-ballot election supervised by the NLRB is required. If more than 50% of the vote is for unionizing, the union is certified, and the employer is required to bargain with the unit.
Step 4: Be fully informed about employer rights and restrictions
Knowing what you can and cannot do or say during a union organizing campaign puts you and your business in a better position to face a union organizing effort. Basic guidance regarding interaction with employees during a campaign can be found in a simple acronym: “T.I.P.S.”:
“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.
Note that an employer is otherwise free to speak with an employee who is open about their pro-union stance, or other employees who approaches them, as long as the conversation remains free from threats, coercion, or promises of benefits. Employers may listen to (and report to upper management) information from employees that is freely volunteered. Legal counsel and guidance from an HR professional are advisable, to be fully informed regarding the legality of specific statements and actions during a union organizing effort.
Your organization may not seem vulnerable to union organizing activity; but taking the four proactive steps listed above can help you be prepared.
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.