American labor unions suffered a net loss of 771,000 members in 2009, the U.S. Bureau of Labor Statistics reported in January 2010, a decline the agency attributed largely to the recession. Such a massive loss of dues-paying members may prompt more aggressive union organizing efforts in 2010 and 2011, and union-free employers should prepare now for the assault. In addition, while the U.S. Senate defeated union activist Craig Becker for a seat on the National Labor Relations Board in February 2010, the Obama Board is nevertheless expected to make life much easier for union organizers over the next few years. As part of a comprehensive union-avoidance strategy, union-free employers should consider the following:

  • Non-solicitation and non-distribution policies can be a significant impediment to union organizing efforts within the workplace, but such policies must comply with the National Labor Relations Act (NLRA). Under the NLRA, employers may ban employees from soliciting in the workplace, but only when either the soliciting or the solicited employee is on “working time” (i.e., when he/she is actually supposed to be working and not on a break). Employers may ban employees from distributing literature on the employer’s property, but only in working areas of the property or when the employee is on “working time.” Such bans must apply neutrally to all solicitations and distribution and not merely to union-related activity.
  • Employers may ban third parties from soliciting or distributing literature anywhere on the employer’s property but must be mindful of certain restrictions pertaining to shopping malls and remote worksites. In addition, such bans must generally apply to all third-party solicitations and not merely to union-related activity.
  • Employers may require off-duty personnel to leave the premises, thereby reducing their opportunity to engage in union organizing activity on the employers’ property. However, such a policy must be distributed in writing to all employees and must allow off-duty personnel to remain in non-working areas of the property, such as break rooms and parking lots.
  • Once a petition for a union “recognition” election has been filed (and often for some period of time before the petition is filed), employers may no longer “solicit grievances” by asking employees to identify the issues that are troubling or upsetting them. One exception to this rule exists where the employer had a well-established practice of “soliciting grievances” before the union organizing activity began. Therefore, employers should consider establishing a practice of regularly soliciting employee feedback now, before union organizers arrive on the doorstep.
  • Employers should review their compensation and benefit policies to ensure that they fit the employer’s overall union avoidance strategy and do not needlessly create dissatisfaction that union organizers might exploit.
  • Finally, employers should remember that “soft” concerns over poor supervision and poor communication are often more likely to drive employees into the arms of a union than are “hard” issues like pay and benefits. Therefore, any union avoidance strategy should begin and end with a careful look at how the supervisors manage and treat their employees from day to day and how well upper management maintains good two-way communication with rank-and-file workers.

Being union-free is never guaranteed. It takes continual effort and thoughtful planning—now more than ever.