Some employers are caught off guard when they learn that their employees want a union. Many do not know what to do and, as we all know, being ignorant of the law does not mean that you cannot get in trouble. Many employers find themselves in legal hot water because they were not prepared and did not know what they could and could not do in a union organizing drive. Thankfully, there is no reason that you have to be one of those people.
The great news is that there are steps employers can take today to ensure that they are prepared to respond if their employees seek to unionize. By taking some action before a union organizing drive occurs, employers can prevent trouble that may occur later.
What Can Employers do Before Union Organizing Starts or Before They Are Even Aware a Union is Seeking to Organize?
There are some basic policies that every employer should have and follow at their workplace. By being prepared and preemptively ensuring you have these policies, an employer is better prepared in the event of a union organizing campaign. Once an employer becomes aware that a union is organizing at a company, it may become harder to make changes because the employees could allege that you have violated the National Labor Relations Act through some of your actions.
All employers should consider having the following policies and practices before any union organizing occurs:
- Have a no solicitation policy that prohibits employees from soliciting other employees during working time and in working areas. This means that employees cannot ask employees to buy girl scout cookies, sign union authorization cards, or buy into the latest multi-level marketing (MLM) scheme (some people call these pyramid schemes) while they are working, but are free to do so on their breaks or at lunch.
- Solicit employee complaints and grievances regularly. Every employer should seek feedback from employees on a regular basis through quarterly town halls and other meetings where employees are asked for feedback in groups.
- Communicate with employees regularly and quickly respond to any grievances that they have. Employers with unhappy employees are at the greatest risk for unionization, employee turnover, and low productivity. Around 65% of employees say that getting rid of their boss would make them happier than if they got a raise. If your workplace is like this, then it is clearly a major problem.
These simple steps won’t guarantee that a workplace will not become unionized, but they do make a big difference in how employers run their workplaces and cut down on lost productivity.
What Can Union Organizers Do During a Union Organizing Campaign?
One of the most common strategies that unions use when they try to unionize a workplace is to assign a union organizer to a company. This person may either seek to be hired by the company for a position (sometimes called a “salt”) or they may conduct organizing as a non-employee. Many companies have a visceral reaction when a union organizer appears at a company. Companies that do not know what to do will often commit actions that result in unfair labor practices against the company.
One of the most frequent issues is that the employer will seek to exclude the union from public property and will sometimes even call the police to have union organizers removed from areas that they are entitled to be in. Union organizers cannot enter company property to pass out flyers (if they are not employees). However, they can pass out flyers at areas that you do not own. Many organizers will stand in the street or public sidewalk to pass out flyers as workers leave, which is permissible.
So, what can a union organizer do?
- They can act as “salts.” Meaning they can be hired by your business with the intention of organizing the facility. If any organizer is also an employee, then they have the rights of employees below (passing out flyers in the parking lot or cafeteria, etc.).
- Organizers can contact employees at their homes or elsewhere even if the employee does not want to be bothered and has asked them to leave.
- They can ask employees to sign union authorization cards and hand out flyers at public areas near the company property.
- Organizers can create a Facebook or other social media page with pictures of employees and invite employees to attend various events.
What Can Employees Do During a Union Organizing Campaign?
Employees have a lot more rights than union organizers and nonunion employees when it comes to organizing in the workplace. In a union organizing campaign employees can:
- Talk about the union during their breaks and pass out authorization cards on non-working time (assuming the employer does have a no solicitation policy). If the employer does not have a no solicitation policy, then employers can pass out this literature and talk about the union throughout their working day.
- Organize meetings in their homes and elsewhere to discuss having a union.
- Pass out flyers and talk about the union at work while they are on a break. Employers may have rules regarding solicitation in working times and working areas, but these rules must be in place and enforced for them to be effective in a union campaign. If employers have no policies, then employees can solicit while they are working.
- Wear buttons, t-shirts, and other insignia (unless this must be prevented for business necessity reasons in certain areas such as in the production area of a food processing facility because no one wants to bite into a hard metal union pin while they are eating).
Employees that do not support a union can create their own hand outs, T-shirts, and even demonstrate against having a union at the facility. They have the ability to do everything that the employees that support the union can do, but in reverse.
Responding to a Union Organizing Campaign
There are a number of things that a company can do when it is faced with a union organizing campaign. First, companies can continue to do what they have already been planning to do or had already done in the past when a union campaign begins (such as giving planned pay raises).
Some of the things that employers can do when a union campaign occurs are:
- Correct any untrue statements or misstatements from the union. For example, employers can tell employees that a union cannot guarantee that wages will go up.
- Employers/Supervisors can discuss their own experience with unions.
- Employers can tell employees that the company is opposed to union representation.
- Compare the pay and benefits of employees of the company to union facilities.
- Tell employees that if they join a union, then they will be required to pay union dues, initiation fees, and that they can be fined for violating union rules.
What Employers Cannot Do in A Union Organizing Campaign
All supervisors, HR, and other members of management must be trained on what they cannot do during a union organizing campaign. These are one of the most frequent sources of charges in an organizing campaign. Employers cannot engage in TIPS:
- Threaten
- Interrogate
- Promise
- Spy
As I said in my earlier post on Responding to an NLRB Charge:
Employers cannot threaten employees with any adverse action (discipline, termination, reducing pay) because they support a union or engage in protected activity. Companies cannot interrogate employees on whether they support a union. Employers cannot promise employees benefits or better pay to encourage employees to stop supporting a union. Finally, employers cannot spy on employees that are engaging in union or protected activity (like having a meeting offsite about whether employees should join a union).
Conclusion
There is a lot that employers can do during a union campaign, but there is also a lot that can cause the employer to have an unfair labor practice filed against them. It is important that employers be prepared and preemptive to ensure they are not breaking rules that will result in a charge against them. Every illegal action by members of management (even low-level supervisors) can cause an unfair labor practice. Employers have to be prepared for union organizing because elections take place very quickly after employees sign enough union authorization cards. The average election occurs within 23 days of a petition being filed (these can be filed when 30% of employees sign union authorization cards).
The information provided in this blog is for educational purposes only and is not legal advice. If you need legal advice, then you should speak with a lawyer about your specific issues. Every legal issue is unique. A lawyer can help you with your situation. Reading the blog, contacting me through the site, emailing me or commenting on a post does not create an attorney-client relationship between any reader and me.
The information provided is my own and does not reflect the opinion of my firm or anyone else.