The expectation is that union organizing will grow in terms of the number of events over the coming years, which is an urgent warning to employers: Prepare for union organizing now to respond! Waiting until there are signs of union organizing to prepare a response is not advised, despite the changes to NLRB rules that gave employers more time to answer a union petition and present their case to employees for staying union-free. You have too much at stake, and regulations can and probably will change again.
To stay union-free, your organization’s leaders should work now to help employees understand the pros and cons of joining a union. Leaders should always be prepared to respond to employee questions about the risks and consequences of union representation. The implication is that managers’ and supervisors’ education on employee engagement and all things union is ongoing.
KEEP and CARE: The Path to Staying Union-Free
The status of unions is connected to the status of government (people in charge). As we all know, administrations change, new Congressional members are elected, and new appointments are made to groups like the National Labor Relations Board (NLRB). It keeps everything in a constant state of change, so there’s never a time for ‘breathing a sigh of relief.’ The best way to deal with this constant change is to develop a solid, steady process for regularly assessing for union vulnerability and always being in a state of preparedness to respond quickly, efficiently, legally, and effectively.
An effective response means your supervisors and managers are already educated on unions. It means your dedicated website on the company’s position on unions is always up and running; you have a process in place for quickly handling Unfair Labor Practices (ULPs), and so much more. The following are the eight most important steps, presented as K.E.E.P. and C.A.R.E, that you can take now to keep your organization union-free.
Keeping Employees Union-Free (the right way)
With continuous change being the norm, you want to develop an organization that helps employees develop the perspective that unionizing is a poor decision and will harm their interests. The process begins with leadership training, so their interactions with employees are appropriate, informative, and convincing.
The four K.E.E.P. steps are Knowledge, Educate, Engage and Prepare
Stay KNOWLEDGEABLE about current labor laws and NLRB rulings
Labor laws are always changing at the federal and state levels. Simultaneously, the NLRB is regularly issuing decisions that directly impact what employers can and can’t do. It’s very difficult to stay abreast of the changes, which is why so many businesses have access to a labor attorney or labor specialist or employ a certified labor relations professional.
The complexity due to continuous change, relevancy, and interpretation of the labor laws and NLRB rulings doesn’t excuse employers from being held responsible for staying current. It’s so easy for an employer to make one statement that creates a “chilling effect” on an employee’s NLRA Section 7 rights. Employees can file charges with the NLRB when they believe there has been illegal employer behavior. This creates an immediate opening for unions and will cost your business thousands in legal defense fees.
The only way to avoid violating employee rights is to know the labor laws and NLRB rulings. It ensures you know what can and cannot be said or done. For example, you can’t make veiled threats, like “some people will lose their jobs if we unionize.” You can’t actively discourage employees from unionizing either, like posting a sign that says, “unionizing threatens the ability of this plant to stay open.”
There are many “can and cannot” statements and behaviors (TIPS and FOE rules) employers must know to stay union-free.
EDUCATE frontline supervisors
Members of the C-suite meet with the labor relations professional, consult with Human Resources, and hold meetings with second and even third-tier managers concerning union organizing strategies and staying union-free. Unfortunately, frontline supervisors are often not included in the training, so they aren’t savvy about the union organizing strategies. Yet, they are the ones who:
- Deal with employees every day
- Are in the best position to detect early signs of unionizing
- Can keep managers informed of potential employee grievances so they can be addressed early and quickly
- Can innocently violate employee NLRA protected rights by saying or doing the wrong thing
Take note that supervisors aren’t necessarily people who have “supervisor” in their title to be considered a supervisor. The NLRA says a person is a supervisor who has the authority to” hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibility to direct them, or to adjust their grievances, or effectively to recommend such action, if, in connection with the foregoing, the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.” This is often confusing because someone called a “charge nurse” or a “delivery scheduler” could legally be considered a supervisor, even if you don’t consider the person to be a supervisor.
ENGAGE bargaining units
You should engage all employees, of course, but engaging employees in bargaining units is doubly important. When using the term “bargaining unit,” the implication is that a group of employees has already joined a unit. Not true!
At least 30 percent of employees in a bargaining unit must support the petition for a union election filed with the NLRB. A bargaining unit is a group of workers who have a “community of interest.” Identifying the bargaining unit before unions are even making organizing attempts gives you the advantage of specifically addressing the particular employees’ issues, as a group, may have.
People with the same job titles are obviously a community of interest. But you may want employees with different titles established as a bargaining unit because it makes it more challenging to get 30 percent of the votes if varied groups of employees have different perspectives on unions. If no union activity is present, you’ll be fully prepared to negotiate with the union as to what comprises the bargaining unit should organizing begin.
Be aware that micro-organizing is increasingly attempted, but this is an area where the rules are changing. In September 2019, the NLRB clarified its decision in a Boeing Company case to not allow representation election with only two job classifications from a larger workforce. The NLRB clarified the “community of interest” standard by saying a consideration for a micro-unit must meet three conditions:
- Whether employees share a community of interest with each other
- Whether employees excluded, have a distinct interest in the collective bargaining that outweighs similarities with proposed bargaining unit members
- Whether there are industry-specific rules that established the appropriate bargaining unit makeup
Of course, these conditions could change if new members are appointed to the NLRB (see the Knowledge section one!)
PREPARE campaign materials in advance
Given the short time period that employers have to respond, preparing campaign materials in advance makes sense. But there’s another reason. You want to ensure your materials are accurate, legal, thorough, understandable, and clearly state the employer’s position on unions.
The union presents itself as the organization that will take on the callous employer who doesn’t care about things like fair wages, safety, health and welfare, and fairness in HR decisions. They avoid discussions about monthly union dues, inability to earn a promotion based solely on exceptional performance, loss of pay during a strike, and other negative impacts of unionization. Preparing educational campaign materials in advance ensures the employees hear the truth about your company and the truth about unions’ impact. The union voice shouldn’t be the only voice the employee is hearing.
There is a variety of union focused campaign materials that can be prepared in advance. They include a union website or dark website, posters emphasizing employee benefits, reinforcing the established grievance procedures, and so on. A company e-newsletter and other printed material can include the company’s union position as reinforcement. Utilize social media to send clear and articulate messages. You can develop and post videos of real-world union activity that has harmed businesses and communities.
If you know the union most likely to attempt unionizing your workforce, you can develop specific union materials in advance, like the union’s strike history, dues, and impact on business locally. If a specific union is not known, then focus on the truths about being unionized in general, like information about union corruption, striking, monthly union dues, and no control over how dues are spent, loss of employee personal decision-making rights, and impact on businesses.
Ongoing CARE of Your Employees
It’s important to understand that preparing for union organizing is not just a matter of one-time materials preparation or identifying bargaining units. It’s also a matter of developing an organization that demonstrates ongoing caring and concern for its employees’ welfare.
The four organizational characteristics of C.A.R.E. are Culture, Assess, Respond, and Emotions.
Develop a Positive CULTURE
The type of culture an organization develops and nurtures determines has a direct influence on everything concerning employees – productivity, satisfaction, feelings of belonging, organizational commitment, employee-employer relationships, and the level of employee engagement. All of these factors, in turn, influence how employees respond when approached by unions.
An interesting study published in “Research Shows Unionized Workers Are Less Happy, but Why?” found that unions don’t make workers feel less satisfied. Instead, dissatisfied employees are more likely to join unions.
Unions succeed by getting employees to focus their attention on what’s wrong with their jobs or organizations. The research goes on to explain that this “puts the onus for workplace satisfaction squarely on companies….dissatisfaction can’t be blamed on the union, which means HR managers should address workers’ expectations, in particular their need to express their discontent with certain elements of their job.”
Do you have a positive culture in which employees feel free to approach management with their issues? Is the workforce collaborative? Do employees embrace organizational values? Do employees have a voice, bring their authentic selves to work, contribute to innovation, have a sense of belonging, and believe their work has meaning?
A positive culture is essential to employee engagement. Finding the answers to these kinds of questions will go a long way towards letting you know if you have a positive culture and are prepared to stay union-free, even if organizing begins.
Regularly ASSESS union vulnerability
Conducting a union vulnerability assessment shouldn’t be an annual event. In today’s volatile business environment, vulnerability can change quickly due to new laws, political turmoil, globalization connecting workers worldwide, social media-based union outreach efforts, and even a pandemic permanently changing the way people work.
You need to regularly assess union vulnerability as a course of business. It’s a way to:
- Determine if the perspectives and attitudes of the workforce towards unions are changing achieve, i.e., more grievances are being filed
- Achieve early identification of developing workforce issues that need addressing
- Strengthen leadership training by identifying knowledge gaps
- Identify employee knowledge gaps concerning the company’s union philosophy
- Identify external factors that make attempted unionization more likely
Union vulnerability is closely tied to employee engagement and company culture.
RESPOND to employee concerns and issues
There are two aspects to the need to respond to employee concerns and issues. One is the fact your managers and frontline supervisors need to know how to be an active listener and appropriately respond to employee complaints, issues and problems in a way that brings resolution before it becomes a formal grievance. If there is a grievance, management feedback is critical so that the employee knows the grievance was fairly reviewed and understands the reasoning for the decision. This is what transparency and honesty are all about.
Inevitably, formal Unfair Labor Practices charges will be filed with the NLRB at some point by a disgruntled employee. It’s important to respond quickly, which is another reason to have access to a labor relations professional’s services. The labor relations expert and management can carefully read the charge and then question employees (never the person making the charge!), which is allowed under the Johnnie’s Poultry case (146 NLRB 770, 774-775). However, what is said during the questioning must carefully adhere to the law. There can be no promise of benefit or punishment and clear instruction that the interview is voluntary.
The employer will have to respond to the NLRB by providing an official position on the ULP charge. There are many other steps in the process, and each step is a landmine of potential legal problems. It is critical to utilize an experienced, skilled labor law lawyer and not try to respond without legal assistance. Always remember the NLRB is representing the employee when it issues a formal complaint.
Once the ULP is settled, there is one more step you should make sure to take. Evaluate how the situation got to the point where a ULP was filed in the first place!
Present Facts without EMOTIONS
This step is often overlooked in leadership training. It’s learning to deliver facts without emotions but with emotional intelligence. That’s more difficult than it sounds because unions thrive on evoking negative emotions and creating workplace tension. But even if a union is not involved yet, emotional leaders can drive employees to unions. They make statements that violate employee NLRA rights. They make decisions based on feelings. They present one-sided information.
When presenting the facts about unions to employees, present all the facts. For example, employees have the right to unionize for the purposes of collective bargaining. They ALSO have the right to oppose unionization. Those are facts. Employees have a right to discuss unions, but they also have the right to tell a union they aren’t interested. Employees have a right to sign a union authorization card, but they also have a right to refuse to sign.
In the 1950s show “Dragnet,” the fictional detective Sgt. Joe Friday often said, “All we want are the facts, ma’am.” That’s the best advice to follow when preparing for the union campaign. Labor training for leaders is crucial to staying union-free.
Putting It All Together
If you get the impression that staying union-free is a complicated process, you’re right. It’s not one thing that keeps organizations union-free. It’s taking all the steps that together create the organization more likely to keep unions out. Unionizing has a profound impact on employees, employers, and communities. As interest in organizing grows, backed by probable shifts in NLRB decisions and federal and state laws, preparing your organization now for union organizing is critical to staying union-free.
UnionProof and A Better Leader, in conjunction with Projections, Inc., stand ready to help with all the necessary tools for high-quality and effective leadership and employee training, union campaign materials production, and website development.