Union organizing campaigns are high-tension events, tempting employers to say things they’ll regret later. Simply talking to union representatives can be difficult and cause tension. You may wonder what you can and can’t say, or how to speak to a representative in the first place. It remains tense once a workforce votes to join a union. Employees feel empowered believing union stewards will solve their problems. They feel they are now there as a support system over the life of the union contract.
It’s hard to imagine situations more primed for employer communication mistakes. This is why UnionProof puts an intense focus on appropriate and legal leader communication with employees and union representatives. We feel that it is our responsibility to provide the tools a workplace needs to create a respectful workplace. We believe your organization should have a strong culture where unions simply aren’t necessary. However, if you find yourself in a situation where you, as a leader or business owner, are talking to a union representative, we hope this information is helpful.
|Train supervisors and managers on labor laws|
|Train all leaders on the company’s perspective about unions|
|Stay calm and level-headed|
|Never use profane language|
|Avoid name-calling or insults|
|Have a witness present|
|Adhere to all Human Resources policies/procedures|
|Do not touch an employee|
|Don’t use a union representative as an “example”|
|Listen to all employees and choose words carefully|
Employer rights include what can be said or not said during a union organizing campaign or while a workforce is unionized. Now take a different perspective by considering the appropriate style and practices of an employer-union representative or union official communication. Due to the emotional and often tense relationship between employers and the union, they can say some costly statements in moments of anger or frustration.
Right to Remain Silent, or Not?
There are times when employers refuse to talk to union representatives. Period. In fact, there are situations in which silence may not be a good strategy – only a costly one. The National Labor Relations Board case file is full of situations in which employers refused to talk to union representatives. Often times, employers failed/refused to recognize and bargain with a union as the exclusive collective-bargaining representative of employees after an election was certified.
In the recent case of The American Bottling Company d/b/a Keurig Dr. Pepper and International Brotherhood of Teamsters Local 727 (2/5/2020, Case 13-CA-247183), the union said the employer refused to bargain and contested the Union’s certification as the bargaining representative. After the election was certified, the union sent a letter requesting the employer recognize and bargain collectively. In other words, the union was saying, “Time to talk.”
The employer did not respond. Of course, the union filed an Unfair Labor Practice (ULP) with the NLRB. The employer held its ground, saying it did bargain but does contest the election. The NLRB found for the union, and the bottling company was ordered to start bargaining. The employer was appealing the NLRB Summary Order and canceled a meeting with bargaining unit employees because (per the union) a Teamsters Local 727 was going to be present. The employer has hired a labor law firm.
Though employers have every legal right to contest a union election with a valid reason, not communicating at all will cause even more hard feelings with employees. Imagine what the bottling company employees are saying to each other and to the union representatives, especially if the union election was legitimate. The challenge is knowing when refusing to respond is a wise move or one that only makes the situation worse.
A labor relations professional becomes a critical resource because of the legal complexities involved. You have a legal right to keep your business operating. The union doesn’t have a legal right to disrupt operations. If a non-employee is on your premises to solicit for unions, you can politely escort them off the property. You don’t have to talk to or try to reason with any union representative.
As an employer, you should always stay in communication with employees, even if the workforce chooses to unionize or employees get difficult. Though union stewards represent the union in situations like grievance meetings, it’s the employee the employer is talking to. It’s easy to forget when a union steward is ranting and raving during a meeting.
Keeping lines of communication open could lead to decertification at the end of the union contract period. In fact, the current U.S. administration is making decertification easier. When talking to union representatives before, during, or after a union election, always remember that unnecessarily antagonizing employees out of frustration, including union stewards, will lead to charges of Unfair Labor Practices (ULPs) and encourage employees to vote for or retain a union.
Insubordination vs. Advocacy
So what is unnecessary antagonizing? One of the issues that employers frequently face in a union workforce is determining what the law considers insubordination as an employee versus the right of the union steward to advocate for coworkers in an aggressive and sometimes rude fashion. On the one hand, the employee must adhere to Human Resources policies and procedures. On the other hand, the shop steward should defend employee rights vigorously.
Read the union websites, and they say shop stewards can be as rude, profane, and aggressive as they please, as long as they are conducting union business. Some even say the steward should get right in the manager’s face.
Union stewards indeed have some level of extra language protections that tend to encourage them to be confrontational with a supervisor or manager. The NLRB recognizes that union representatives and employers will clash because the whole point of many interactions is for the steward to express a grievance about a workplace issue or for union representatives to protest employer actions or policies.
When Conversations Go Wrong
In one case, a U.S. Postal Service worker and union shop steward were discussing grievances with a supervisor. The meeting went very badly. The union shop steward Walton threatening with cuss words over a grievance resolution, and the supervisor Babb calling her profane names, and claiming the steward was threatening her when the steward said she wasn’t going to take the supervisor’s bullying and intimidation any longer. In the end, the supervisor issued a written warning to the union steward and an employee based on the perceived threat. The supervisor also obtained a protective order against another shop steward who was also director of City Stations.
The NLRB decision was the union shop steward didn’t lose protection under NLRA Section 8(a)(3) and (1) of the National Labor Relations Act, despite being profane, loud, obnoxious and disrespectful. The supervisor had to cease and desist with the protection order and any potential lawsuit. This is a classic example of how a conversation can go wrong between a union representative and the employer. Tempers flare, and things are usually said wrong in a fit of anger.
Are we Equal Now?
There are limitations as to what can be said, even in the heat of negotiations, while addressing grievances or when dealing with work issues. The unions take the position that union officials should not see disciplinary action because it would interfere in their ability to represent employees vigorously. Union websites talk about an “equality rule” as if it is a law, but it’s not. The equality rule the union claims says that union advocates and the manager that are attending a grievance meeting are engaged as equal parties who oppose each other. The unions are essentially saying the shop stewards are elevated to a managerial level for purposes of discussing employee issues.
“Robust debate” is a term that refers to strong language that union officials are allowed to use when talking to management. The Supreme Court ruled that robust debate is protected. It includes strong, uncivil, and uncontrolled discussion, and even insulting and abusive language. Even profanity is not considered abusive.
There are important limitations though, and they center on the fact the robust debate only takes place when an employee is acting on behalf of the union. It involves engaging in discussion with the employer about working conditions, a union contract matter, disputes over a bargaining unit decision, resolving a union-related problem and other similar issues.
Just being abusive, like an employee calling an employer a “dumb idiot” while working, is not a robust debate. Making racial slurs is not a debate. The NLRB also recognizes that there are some situations in which employers have a right to discipline union representatives.
Neither the steward nor the manager can make threats of violence or harm or make attempts to harm someone. A union employee cannot refuse to obey reasonable work orders or violate laws, steal, take part in illegal walkouts, or disrupt operations.
Basic Guidelines for Talking to Union Representatives
The guidelines for talking to union representatives are mostly common sense. Combine this with the having knowledgeable and informed leaders, and you will be comfortable talking to union representatives.
- Train supervisors and managers on labor laws, TIPS, and FOE so leaders know what they can and cannot say to union representatives and employees
- Train all leaders on the company’s perspective about unions. They will be prepared while answering any employee questions with facts
- Always stay calm and level-headed during any discussion with any employee, and don’t let it devolve into a shouting match
- Effective leaders never use profane language; even though common today in society, profanity adds a new element of intimidation to any discussion
- Never use name-calling or insults because they add nothing to the dialogue and can lead to charges of abuse
- Always have a witness during any discussion involving union-related matters. This way it doesn’t become an unprovable he said-she said defense in the event a ULP is filed with the NLRB
- Carefully adhere to Human Resources policies and procedures and the union contract (i.e., “If you drop this grievance, I’ll make sure you get the promotion over others in the running,” or “You won’t get the job transfer if you pursue this grievance.”)
- Never touch an employee during a conversation, even if the meaning is to be a friendly arm over the shoulder or a pat on the back to show camaraderie; these friendly behaviors are easy to misinterpret
- Don’t hold union stewards to a higher standard by saying things like, “You should know the rules,” because it singles the person out for discipline or to be an example (exception is when the union steward doesn’t follow the union contract)
- Listen to employees in any role, give clear, honest feedback during discussions with union representatives and don’t say anything that can be easily misinterpreted or misconstrued; choose words carefully
Leaders need to understand it is easy to make statements and answer questions with truthful answers and still violate the law. It’s frustrating for managers who are trying to be open and honest with employees, only to learn accurate statements can be misinterpreted.
In one case involving an NLRB dealership, employees were investigating unionizing. The general manager met with the employees and ended up making true but illegal statements. For example, he said that wage negotiations would start from scratch, and everybody goes to zero. The law says negotiations start from the status quo. The NLRB found the statements were unlawful because they could be interpreted as an implied threat that joining a union is a futile endeavor.
It’s so important to know what you can say and not say when talking to union representatives and employees. The good news is that unions encourage union stewards to settle workplace issues in the workplace. Going to the National Labor Relations Board for resolution is expensive and time-consuming for both the union and the employer. At least, that is what unions claim on their websites.
We feel that staying union-free is always the best route. To us, that means knowing how to communicate with employees and how to engage employees effectively. Many of the same guidelines for union official-employer discussions apply to every employee-employer discussion. Train your leaders to be good communicators and effective listeners. You will find that many of your issues resolve themselves long before they become real problems.