How Do I (Legally) Find Out if Employees are Talking to Union Representatives?

You may suspect your employees are talking to union representatives and each other about unions. There could be nothing specific to point to, but business leaders sometimes have a sixth sense that something is going on. Most discussions about unions revolve around employer and employee rights when they know union activity is taking place or an official union organizing campaign has started when a petition is filed with the National Labor Relations Board (NLRB). 

But what if it’s intuition through experience creating the suspicion? What can you do to find out if your employees are talking to union representatives or considering approaching a union? We’ll discuss your options.

Just a Feeling

The NLRB provides a list of employer legal rights and obligations concerning union organizing. You cannot interfere with, restrain, or coerce employees in the “exercise of rights relating to organizing, forming, joining, or assisting a labor organization for collective bargaining purposes” according to the NLRB. You can’t stop employees from talking about work conditions. Sometimes, there are clear signs your employees are talking to union representatives, like finding a union authorization card in the break room. 

If only it were as easy as finding union literature or a union authorization card laying around. Instead, the signs of early unionizing are often quite subtle. There’s a group of people whispering in the breakroom, setting off your intuition that something is going on. The employee speaking to someone right outside your property before coming into work has the right to do so but makes you wonder what it’s all about. 

The same three employees start challenging workplace policies, acting like they represent their coworkers. They could be very polite in their approach, but you wonder why these three people are acting like they are in charge.

Putting the Clues Together

You can’t legally walk up to employees and ask them if they’re thinking about unionizing. The law sees that as intimidation, even if all you want to do is find out the truth. Even if the employees don’t see it as intimidating, the union will. 

The T.I.P.S and F.O.E. rules offer useful guidance during a union organizing drive, but what if there is no formal organizing drive yet? You just have a suspicion your employees have been approached by a union. What are the legal ways to learn whether your employees are talking to unions? 

Think of the game of Clue. Your mission is to collect the clues, put them together, and hopefully find out “who done it.” As the detective, you want to engage employees in conversation and get them to share information.

Suggestions for Starting the Conversation:

  • Take a dark website live (if not already) to reinforce management’s perspective on unions and to share the reasons to not unionize (promote the website to motivate employees to visit it)
  • Add a Frequently Asked Questions webpage to an existing union website and let employees know all questions are anonymous and encouraged
  • Analyze the utilization statistics for the company’s union website (looking for a sudden uptick in site visits)
  • Analyze utilization statistics for the company’s online policies (looking for particular sites suddenly getting more visits, i.e., policies on safety, grievance procedures, etc.)
  • Hold meetings with employees on company time to discuss management’s position on unions and encourage questions and comments
  • Add a process for soliciting suggestions and feedback from employees on specific items that are commonly targeted by unions, i.e., work schedules, grievance procedures, benefits, supervisor abilities, etc.
  • Share how the company’s wages and benefits compare with other companies in the industry

The purpose of these suggestions is to get employees to talk because people almost always reveal themselves if they talk enough. You can also read between the lines. If employees use common union language to ask questions, they’re probably talking to a union. 

For example, an employee uses the word “grievance” when asking about the process or “rank and file” to refer to coworkers or “unfair labor practice” to complain about something or anything. 

Going Social

You can also monitor social media. Federal laws do not prohibit employers from monitoring social media in the workplace. They can track emails, instant messaging, and internet usage on computers or other equipment owned by your company. 

You can also monitor public social media sites. Any information someone makes public, rather than limiting it to their social media friends, can be read by employers. In the connected world, younger generations of workers, in particular, seem to feel free to write things they wouldn’t normally say out loud. It’s one of the communication peculiarities of social media. 

The catch is employees have the right to protected concerted activity, which means they can address work-related issues, share information, and discuss unions on social media. You can monitor the posts and perhaps learn whether employees are thinking of unionizing. 

Even if there is no mention of unions, you may still gain insights into workplace issues that need addressing and are making your company vulnerable to unionizing – safety hazards, scheduling, objectionable promotions, a supervisor in need of communication training, and much more. There is a lot of value in online complaints.

Be Careful in Taking the Next Steps

Assume your intuition is right. Some of your employees are clearly interested in unions. It’s time to work on union proofing your business. The first critical point is to NOT use the information to intimidate, harass, or threaten employees if you discover anyone is talking to union representatives. It’s easy to make a mistake. For example, you can’t legally tell employees any of the following:

  • That they can’t join a union or discuss workplace issues online or in public
  • It’s a big mistake to join a union because it could cost them their job
  • They can’t discuss joining a union during work hours or anywhere on the employer’s property
  • They can’t discuss unions during non-work hours in now-work areas, like during lunch in the break room
  • If they unionize, the plant will shut down
  • They can’t wear pro-union buttons, caps, or other symbols (unless it creates a safety problem)
  • They can’t send emails or texts discussing unions if you allow the sending of other personal messages through workplace systems while using workplace equipment
  • To convince their coworkers into not supporting unionization
  • They will get a reward if they stop talking about unions

You can educate employees about the benefits of being a member of a union-free workforce. The biggest mistake employers make is reacting rather than thoughtfully considering why their employees feel like they have issues or are talking to, or thinking of talking to, unions. 

Keep Employees Talking

One important step to take is reviewing current workplace policies. Your workplace policies need consistency and not give unions an opening. 

For example, establish a bulletin board policy for posting meetings that don’t specifically exclude union meeting notices while allowing other meeting notices. Establish a policy that prohibits the distribution of pamphlets or other types of literature in work areas and not just union literature. Develop a social media policy that explains you will monitor workplace social media and what is considered acceptable behavior. 

Be Proactive to Avoid Employees Talking to Union Representatives

Most of all, to stay union-free, strengthen employee engagement. Make sure all your leaders have good communication skills. Engaged employees know they can talk to organizational leaders about their problems and make suggestions for improvements. It’s when employees stop talking that unions get louder. 

Projections, Inc. has purposefully developed both a toolbox for staying union-free and leadership training courses. If you become an employer of choice through quality leadership, you won’t have to rely on your intuition about unions. If you need a solution for your workplace to help you remain union-free, don’t hesitate to contact us!

About the author

Walter Orechwa

Walter is Projections’ CEO and the founder of UnionProof & A Better Leader. As the creator of Union Proof Certification, Walter provides expert advice, highly effective employee communication resources and ongoing learning opportunities for Human Resources and Labor Relations professionals.

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