With as little as 15 to 20 days to respond to union organizing, employers must be prepared in advance to educate employees about the risks and consequences of union representation on very short notice. Responding to employees questions about a union without being properly prepared can lead to severe consequences. Educating all employees is the key to success.
KEEP Employees Union-Free (the right way)
The basic steps to prepare for a union campaign in advance seem like common sense, but federal and state labor laws, and National Labor Board (NLRB) and court decisions, keep everything in a constant state of change. However, there are four major steps you can follow to reduce the chances of a successful union campaign. We offer the following basic steps as K.E.E.P., as in keep the workplace union free.
1. Know the current laws and NLRB rulings
The National Labor Relations Board schedule is filled with complaints to review what could all be under the heading of, “employer didn’t know or understand current labor laws.” When a union petition is filed, the short road forward to a union vote is filled with potholes, and there’s not enough time to research complex laws. One wrong employer statement that creates a “chilling effect” on the NLRA’s Section 7 rights can give a union an advantage and cause your business thousands of dollars in legal defense fees.
Knowing the law also means having a crystal clear understanding of employee rights. You can easily say something that violates employee rights. You can also act in a way without saying a word and find yourself in trouble with the NLRB. Anything you do to actively discourage employees from unionizing by making veiled or obvious threats is illegal. Posting signs in the workplace that say, “Company will Close this Unit if Employees Vote for Unionization” is illegal. You can post signs that inform employees they have the right to refrain from joining a union.
It works two ways. You may be tempted to make threats like job loss or demotion. On the flip side, you cannot promise employees they will be rewarded in some manner for voting against unionization. Knowing what an employer can do when faced with union organizing is crucial to keeping unions out.
2. Educate frontline supervisors
Knowing the law is only part of the equation. It’s important for executives and senior level managers to be fully informed, but it’s the frontline supervisors who deal with employees every day. They too must be fully trained because they’re going to be fully tested by the union. It’s important to understand that unions want employers to make mistakes because that helps their efforts. It only takes one false move (see the T.I.P.S Rule). One supervisor threatening one employee with a demotion for voting for unionization will prompt the union to file a complaint with the NLRB.
Supervisors aren’t necessarily people who have “supervisor” in their title. 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.
The proof that unions and employers often disagree on who qualifies as a supervisor is found in the fact that cases continue to be brought to the courts over the issue. As recently September 2017, the Third Court of Appeals found in Moody v. Atl. City Bd. of Educ., No. 16-4373 (3d Cir. Sept. 6, 2017) that just the ability to assign work was all it takes for someone to be considered a supervisor. So this is a two-step process. Identify those who are supervisors by law, and then educate them on appropriate behaviors.
3. Engage bargaining units
Defining bargaining units is important because at least 30 percent of employees in a bargaining unit must vote for a union election. A bargaining unit is a group of workers who have a “community of interest.” Simple, right? Not so fast!
The implications are enormous because it’s a numbers game. 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 hundreds or thousands of employees are involved or if varied groups of employees have different perspectives on unions.
However, micro-organizing is the new trend, and some see it as the path for future union growth. Micro-organizing means a small group of employees within a larger set of employees pursue unionization. The answer is to define and engage micro and macro defined bargaining units based on the unit’s particular needs. This is employee engagement in its finest form. You can prepare customized training for different bargaining units to ensure they understand the advantages you offer employees and how unionization will directly impact them.
4. Prepare campaign materials in advance
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 materials in advance that address the employer’s position and explain the reasons for the stance means the employer can respond quickly in an informative and engaging manner should a union campaign start. The union voice shouldn’t be the only voice the employee is hearing.
In fact, the employer should educate employees on the company’s Human Resources policies to help them understand the reasons a union is not necessary. Regularly training all employees on grievance procedures, employee benefits, promotions and transfers, training and development, and safety can prevent a union campaign, and that is the ultimate goal. Training and union campaign materials can include interactive eLearning programs, dedicated websites or webpages, videos, posters, e-newsletters, printed materials and any other form of publication.
The Fifth Step: Presenting Facts without Emotions
We are adding an often overlooked fifth step. It’s learning to deliver facts without emotions. That’s more difficult than it sounds because unions thrive on evoking negative emotions and creating workplace tension. People are more prone to make thoughtless statements in a fit of frustration or anger. 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. Employees have the right to unionize for the purposes of collective bargaining. They ALSO have the right to oppose unionization. Those are facts.
Facts are also things like union employees will have to go through a union representative instead of directly to the supervisor, if there is a grievance, or employees will have to pay union dues but will have no control over how those dues are spent. There is very little time to respond to a union campaign, so have the facts at hand, materials ready, leaders trained and be ready to speak up with a clear, uniform voice.