The Dos and Don’ts of union organizing drives

You are a business owner and you believe your business is running like a well-oiled machine. You have updated employment policies and an effective management to enforce those policies, including a progressive discipline policy that allows management to directly communicate with employees on various performance and disciplinary issues. Profitability is on or above target, and there is no indication that your employee morale is anywhere but high.

You may periodically read about various unions’ organization efforts in other parts of the state or country, along with the various reactions business owners are setting forth in response to those efforts, but you don’t necessarily suspect any union activity would arrive at your doorstep. Then, one day, a union unexpectedly comes knocking and, to complicate matters further, is holding discussions with your employees and not you. As frustrating as that might be, it is imperative that you and your management team be trained to navigate what inevitably comes next. To that end, there are certain actions or topics that are acceptable for you to do or discuss as a business (the “Dos”), while there are others that you should not partake in (the “Don’ts”) to remain compliant with applicable law. This article is designed to highlight some of the main Dos and Don’ts when responding to union activity, with an emphasis on union organizing drives.

As far as the Dos go, and perhaps the most important of the bunch, you should ensure that you and your management are treating and disciplining all the employees consistently and continue to do so without regard to any employee’s union activity. You may inform the employees of their right to not support the union, and also provide them with examples of issues union members have experienced in the past, e.g., strikes and picket lines. However, your employees also have the right to tell their peers how they feel about the union, good or bad, so long as those discussions are held during non-working hours.

Moreover, employees often times forget that their union membership will cost them money and that there are no guarantees of more or less pay or benefits resulting from the collective bargaining process. To that end, you may reassure the employees that they receive competitive wages and benefits without paying any union dues, which a union contract would surely require, and that there is no guarantee that those benefits would increase after collective bargaining is concluded. You may also remind the employees that union contracts generally require them to pay dues as a condition of employment and that the employees would very likely lose the right to speak for themselves in future labor disputes, which may be a significant give for some. The union may also require their members to comply with additional agreements, including the union’s bylaws and other internal documents, a fact you can convey to the employees. While it may also behoove you to inform the employees that the company would bargain in good faith with the union, you should at the same time convey that the company is not required to agree to the union’s proposals.

Leading the list of Don’ts, you should avoid threatening the staff with any adverse employment action, including pay cuts, discipline, or termination, in connection with their contemplation of joining the union or any other union activity. Along those lines, you should also avoid promising increased wages and benefits or better working conditions in exchange for the employees’ abandonment of any such union activity. Refrain from asking how the staff feels about the union, whether or not they are the ones engaging in the union activity. You may think to be proactive during union organization drives but, while the union is engaged with the employees, you should not actively solicit employee grievances or concerns. Likewise, you should not actively promise to fix any such grievances or concerns. The union may also hold meetings or events for the employees to aid in their organization efforts, but you should not participate in any such event and further avoid spying on any of the employees as well.

Additionally, do not start or encourage anti-union activity, including anti-union petitions, calling employees into management’s offices, or going to employees’ homes to discuss the union. To the extent a discussion becomes unavoidable, you should aim to have a witness present when management speaks with a union supporter. Also, refrain from making inferences concerning the union’s effect on the company’s business. For example, while you believe your customers may cancel its contracts with the company or cease using the company’s services, you cannot and should not share these concerns with any of the employees. Deviating from within the confines of the law may result in the filing of Unfair Labor Practice charges (ULPs) against the company in violation of the National Labor Relations Act. Bringing and responding to these ULPs can be a very expensive and protracted process, and can affect the ability to hold elections confirming whether the employees agree to be represented by a union.

In sum, there are significant issues that require careful navigation when dealing with organizing drives and other union activity. Encourage your management team to tread carefully and consult with legal counsel on these and other relevant Dos and Don’ts under the same circumstances. It is particularly critical for businesses to be proactive with regard to taking preventive measures concerning labor relations, including training their management early on as to what can be said and done during union organizing drives, because doing so when the possibility of union organizing is remote is preferable over addressing issues on an emergency basis. 