We’ve all heard it and most of us have also seen it: reports of employees of fast food restaurants, big box stores, warehouses unionizing. Reports on the nightly news about the battles for workers to unionize, people tweeting and retweeting pro-labor and pro-management messages, workers filling parking lots with bullhorns and picket signs. Unionization is in the middle of a renaissance-but what does that mean for your business?
In 1935, Congress passed the National Labor Relations Act (NLRA) in response to ongoing violent labor riots protesting exploitative working conditions, common during that era. The NLRA was passed to establish that US public policy was to encourage collective bargaining and protect private-sector employees’ rights to seek better working conditions and designate representation. The NLRA is enforced by the National Labor Relations Board (NLRB), an independent federal agency whose members are appointed by the President. When it comes to an employer’s conduct surrounding union activity, the NLRB is ultimately responsible for deciding whether it was a “do” or a “don’t,” and knowing that the NLRB is federally appointed, it’s not always hard to see the way the wind blows when it comes to the amount of leeway an employer is going to have when the employer would like for its employees to resist efforts to organize.
There are general guidelines for employers to follow that will allow them to communicate with their employees about the negative side of organized labor and the value of working without a collaborative bargaining agreement (CBA). Although employers should always check with counsel to navigate the intricacies of recent NLRB decisions and guidance and its effect on employers before taking action, the following is a guide to activity that is generally considered safe or unsafe, in any administration:
When it comes to communication from management that should always be avoided, employers should think “TIPS.” TIPS stands for Threats, Interrogation, Promises, Surveillance. Employers cannot make threats about a reduction in force, plant closure, or reduction of benefits or pay if the union is voted in, or termination or discipline of employee for supporting the union. Employees cannot be interrogated about their support of the union, their peers’ support of the union, their attendance or their peers’ attendance at meetings, or other measures or indicators of support for either the union or the company. Management should never promise things like higher pay or better benefits if the union is voted out, or special treatment for employees who actively oppose the union campaign. Surveillance involves any attempt to discover employees’ support for the union including taking pictures, listening in on conversations, starting rumors, or attending union meetings-even if invited!
So what are the positive actions management can take to communicate with employees and respond to questions about the campaign? When thinking positively, employers should remember “FOE.” FOE stands for Facts, Opinions, Examples. Sharing facts starts with information gathering: from the NLRB, labor and employment law experts, and reputable compilers of statistics (such as established think tanks), and allows you to share any truthful information about organized labor: from its significant decline in the United State to the cost of union dues. Opinions include your take on why union representation can be a negative thing for workers, and how your company’s policies, procedures, and benefits protect and benefit workers better than a third party could. You can express your concerns about the potential damage to the relationships between management and workers. Opinions are an absolutely permissible expression-as long as the source of the opinion keeps TIPS in mind. Examples of the negative side of organized labor can be easily located, although as with facts, they should be reputably sourced and not altered or distorted in a way that obscures the truth. Corruption, broken promises, and fractured relationships between employees and their coworkers during a labor strike is very real, and can communicate the downside of unions to your employees.
Above all, foster a good relationship with your workers and always, always establish an open-door policy. Let workers know that all grievances can be resolved quickly, fairly, and internally. Engage audit tools to ensure that your workers are competitively compensated and your workplace is safe and free from discrimination and harassment. Eliminate the desire for your employees to collaborate with an outside party, remember TIPS and FOE, and show your workers how much they are valued. And, as always, check with counsel before running afoul of the NLRB. Only experienced labor and employment law attorneys can help you avoid simple missteps with big penalties.