If only it were this simple for employers to respond when a union comes knocking at their door. Unfortunately, it is not and employers must be prepared to combat a union campaign with an effective communication and response strategy that does not run afoul of the National Labor Relations Act ("NLRA") or other applicable labor and employment laws. In articles one and two of this five part series, we noted the trend of increases in union organizing efforts and best practices for diagnosing and dealing with employee relations issues to help avoid union organizing efforts. This installment focuses on what to do when you are faced with a union campaign so as to increase your chances of defeating it without violating the NLRA or other laws in the process.
Formulate a Strategy
When you first receive notice of a campaign or other potential organizing efforts, you have limited time (potentially a little more than two weeks in some circumstances) to communicate with employees regarding the impact and drawback of having a union represent them. As a result, it benefits employers to be thinking about union organization before it actually happens. Once you are aware of organizing efforts, or worse a petition to organize has been filed, you will need to quickly formulate a response and communication strategy. At this point you will want to contact your legal counsel to decide the best course of action. One consideration to discuss with counsel is whether you should hire a labor relations consultant to assist with the response to the union campaign. A consultant can help with targeted, meaningful communications and may have experience with the union attempting to organize your worksite.
It is also vital that you research the union attempting to organize employees at your worksite and learn as much about the local and its officers as you can. For instance, it could be that this union was recently subject to a decertification petition because employees were not happy with the union's representation of them. Or maybe the union only negotiated a small wage increase at a competing employer where it already represents employees. Perhaps your employees have higher wages and benefits than nearby employers represented by this union. These are the type of facts about the union that you would want to know in formulating your campaign response.
You Need to Ensure That You Do Not Run Afoul of the NLRA
What you (and your supervisors/agents) say during a union campaign is very important. Your statements can influence the outcome of a vote and lead to liability under the NLRA if they amount to threats or perceived promises (among other things). Ensuring that everyone has been trained on what can and cannot be communicated to employees during a campaign is therefore very important. In particular, supervisors and management should not: (1) make any threats to discourage union activity, membership, the signing of a union card, voting for the union, or related to engaging in other protected activity; (2) interrogate employees regarding their interest in or support for the union; (3) make any promises of a benefit in return for employees not joining the union, voting against the union, not signing an election card, or for not engaging in union-related activity; or (4) spy on union activities.
While there are certain things you cannot say to employees during a campaign, there is a great deal of valuable information you can relay to employees without running afoul of the NLRA including why unionization is not necessary and the consequences of having a union.
Employers faced with a union campaign must act quickly and, if it is their goal to oppose the campaign, do everything they can to prepare an effective response strategy. Ensuring that you know as much as possible about the relevant union, the issues the campaign is centered around, and what can and cannot be said to employees is critical to ensuring your chances for success.