What Can I Say During Union Organizing?

Labor Law

Labor Strategy

Organizing

Union Proof

By Jennifer Orechwa

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Employers often don’t know what they can and can’t say during union organizing. They don’t realize how much trouble they can get the company into when they speak before thinking.

An Intentional Violation Of The Law During Union Organizing

An anti-union employee privately informs his supervisor, “I attended a union information meeting last night at Joe’s Steak & Ale house. I went for the free food and because my friends were going. Fifteen people showed up, but I don’t think you need to worry about anything. Just thought you should know.”

The supervisor manages to get some names from the employee. He then starts his own campaign to put a stop to the union organizing before it gets out of hand. Getting a couple of people aside, he says “I know you attended a union organizing meeting last night. You two are going to end up on that third shift schedule you hate, if you decide to unionize. You can do what you want, but thought you should know.”

An Unintentional Violation Of The Law During Union Organizing

The supervisor walks by two employees and overhears the word “union.” His panicky state gets the best of him, even though he knows the law. He says, “My boss will fire both of you, if you are even thinking about unionizing.” Then he continues walking. A few steps down the hallway, his panic subsides, and he turns around and walks back to the two employees. “I didn’t mean it. He wouldn’t really fire you. He knows you have the right to consider joining the union.”

“I DIDN’T MEAN IT!”

What do the two different scenarios have in common? That’s easy to answer: Both times, the supervisor violated employee rights by saying the wrong thing. The NLRA, generously expanded by numerous NLRB decisions, prohibits employers from using intimidation, fear, threats, coercion and any other negative statements that are designed to stop employees from considering or voting for unionization. In fact, employees, unionized or not, have broad rights that fall under the heading of “concerted activity” and unfair labor practices.

There is no leeway in the law’s definition of employee rights violations. You can end up intentionally or accidentally interfering with your employee’s right to discuss and vote for a union. If you say the wrong thing to any employee about unionizing, it could be too late to recover, depending on the circumstances. The wrong thing is any statement or act that could be construed as an unfair labor practice (ULP) because it interferes with the employee’s protected concerted activity as defined by Section 7 and Section 8(a)(1) of the NLRA. 

Notice, the law does not differentiate between “intentionally interfering” or “accidentally interfering.” It says it’s an unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7.”

Grievance vs. Unfair Labor Practice (ULP)

Now what? The employee is upset, tells a union representative that night he was threatened, even though there is no union yet, and the union rep tells the employee to file a formal complaint. The grievance can be handled and resolved internally, or it can become an Unfair Labor Practice charge filed with the NLRB. The path the employee chooses depends on the workplace culture and employee-employer relationship. 

A LABOR CONSULTANT WILL HELP YOU KNOW WHAT TO SAY DURING UNION ORGANIZING

The union usually prefers a formal ULP case because it gets more attention, is posted on the NLRB website and can be used to prove you aren’t operating in the best interests of your employees. You’re the evil employer who threatens employees. You, of course, want to keep the grievance in-house. In fact, with the help of a labor consultant, you may be able to turn a grievance into an opportunity to reaffirm the company’s commitment to its employees and to point out all the good things that far outweigh an intentional or unintentional statement made by one supervisor. 

The goal is to keep the matter as an in-house grievance, when possible. In fact, another reason to hire a professional labor consultant or employment attorney is that the NLRB can choose to put a review of an ULP charge on hold, if the matter is something the employee could have filed a grievance over. The expert can build a convincing case.

It’s important to understand that the NLRB handles charges filed by union and non-union employees alike when NLRA Section 7 rights are violated. However, unions must adhere to NLRA restrictions also and can be charged with an ULP. For example, the union cannot threaten employees who are anti-union. However, it’s employers who feel the most pressure to strictly adhere to the law. You can answer employee questions about a union, and you can present the factual reasons a union is not necessary. You cannot make direct or implied threats.