Legal Updates

When the Union Comes Knocking: Are You Ready?

Union organizing efforts are alive and well.  In 2005, unions organized more than 63,000 workers through National Labor Relations Board (“NLRB”) elections, and the union win rate increased to 61.5% from 58% in 2004.  In fact, in 2005, unions won 50% or more of the elections held in all industries except manufacturing, communications and retail.

These statistics suggest that, for many employers, a union organizing campaign could be just around the corner.  Employers who plan in advance for this day—and who understand how to respond legally to a union’s organizing tactics—have a decided advantage over those who do not.  Moreover, whenever possible, an employer’s union avoidance strategy should begin well before union organizers arrive on the scene.

In this regard, below we provide key pointers in preventing the unionization of your workforce, and in responding to a union organizing campaign.

Do Not Give Employees a Reason to Explore Union Representation

In an effort to improve employee morale and keep a pulse on the workplace, employers with non-unionized workforces should be asking themselves how their communications and dealings with employees can be improved.

• Do managers and supervisors have open-door policies?
• Can employees engage in an open dialogue with management about sensitive topics?
• Does the employer deal fairly and promptly with employee concerns and complaints?
• Do wages and benefits comport with or exceed those provided in the relevant labor market?

By consistently dealing fairly and reasonably with employees, employers may prevent a union organizing campaign from emerging at all.  Most employees may see no need for a bargaining representative if their direct dealings with their employer have been satisfactory.

Solicitation, Distribution and No-Access Policies

Before a union comes knocking, employers should also consider implementing employee solicitation and distribution policies that will minimize union organizing activity at the workplace.  This includes implementing a “no access” rule for non-employees.

Specifically, although employers may not prevent employees from soliciting support for a union or distributing union literature during their meal and break periods, employers may prohibit employee solicitation and distribution during working time and in working areas.  Similarly, most employers may prohibit non-employee union representatives from undertaking organizing activity on employer property.  (There is an exception to this rule for “company towns,” e.g., locations such as logging camps, mining camps, mountain resort hotels and the like where employees live and work on the employer’s property.)

Ideally, employers should implement such solicitation/distribution/no-access rules prior to the onset of a union organizing campaign.  Otherwise, such rules may be viewed as having been enacted for discriminatory purposes and deemed invalid.  In addition, employers should craft and apply such rules so that they apply evenly to all activities and groups—that is, to union and non-union activities and groups alike.

In order to afford the most protection against a union organizing campaign, the solicitation and distribution rules should preclude all such activity during working time and in working areas, regardless of whether the solicitation and distribution concerns union support, the purchase of Girl Scout cookies, signing up for a charity road race or some other purpose.  Likewise, if an employer prohibits a union from having access to its property, then it must also deny access to all other groups seeking to communicate with its employees.  Selectively applying solicitation, distribution and no-access rules to non-union activities and groups may operate to give unions and their proponents the same privileges that the employer has extended to others.

Employers should remember that despite the employer’s right to promulgate non-solicitation rules, employees generally have the right to wear union buttons or to otherwise display union insignia at work.  Employers may impose restrictions only when justified by special circumstances, such as where the buttons or insignia create a safety hazard, interfere with production and discipline, foment customer dissatisfaction or adversely affect patient care.

Permissible Communications

If and when a union organizing campaign actually gets underway in a workplace, the law limits the manner in which employers may communicate with their employees, as well as the actions that employers may take relative to the terms and conditions of employees’ employment.  In this regard, employers may express their “views, arguments, or opinion” about the union, provided that these expressions contain “no threat of reprisal or force, or promise of benefit.”

Under this framework, employers may state their opinions about the union, its policies and its leadership, even in derogatory terms.  Employers may also make true statements about the effect of unionization on individual employee rights, NLRB election procedures, the collective bargaining process and any other pertinent subject.  Employers also may refute incorrect representations made by the union.  For example, the following employer statements are permissible in the context of a union organizing campaign:

• “Personally, I think this union is just plain awful.”
• “With the union in the picture, employees may not be able to present and settle their own grievances, even if they would prefer to deal directly with the employer.”
• “The election will be decided by a majority of the employees who actually vote, not by a majority of those eligible to vote.”
• “The law does not require an employer to accept any union demands, as long as the negotiations are in good faith.  Thus, under a union contract, your benefits could increase, decrease or stay exactly where they are now.”
• “The union lied when it said we haven’t raised wages in three years.  Last year we made a 4% across-the-board wage increase.”

Employers generally make such communications as part of a comprehensive campaign designed to educate employees about the disadvantages of union membership.  To do so, employers can use various communication channels, such as letters, handouts, bulletin board postings and paycheck enclosures.

The most powerful means of communication may be the “captive audience speech,” where the employer speaks to employees during working hours and on company premises.  As long as employees are permitted to distribute union literature in non-working areas during non-working hours—thereby providing union supporters with the means to address anything said in the captive audience speech—employers may hold as many captive audience speeches as they want and need not give the union “equal time.”  (Note:  Employers may not, however, give captive audience speeches in the 24-hour period immediately preceding the NLRB election.)

Some research suggests that employer success in an NLRB election greatly increases based on the number of captive audience speeches given during a union organizing campaign.  Thus, employers should give serious thought to how best to utilize this powerful tool.

Impermissible Communications

All “threats of reprisal or force” by an employer during a union organizing campaign are prohibited, regardless of whether they are explicit or implicit.  Thus, subtle, implicit threats, such as, “Management will not permit a union here,” are just as unlawful as overt, pointed threats, such as, “If I get wind that you’re supporting the union, your job will be toast!”  Moreover, while an employer has the right to shut down its entire business for any reason, even to avoid dealing with a union, unsubstantiated threats to do so during a union organizing campaign are unlawful.

The blanket prohibition against “threats of reprisal or force” applies equally to any “promise of benefit” made by an employer to its employees during a union organizing campaign.  Accordingly, in this situation too, subtle promises—e.g., “The economic picture around here is sure to be brighter without the union”—are just as unlawful as obvious ones—e.g., “If the union loses the election, all employees will get a 10% raise in their wages.”

Employer predictions about the effect of unionization on the business can be particularly tricky.  In fact, the United States Supreme Court has determined that such predictions are permissible only if they are “carefully phrased on the basis of objective fact to convey an employer’s belief as to demonstrably probable consequences beyond his control ….  If there is any implication that the employer may or may not take action solely on his own initiative for reasons unrelated to economic necessity and known only to him, the statement is no longer a reasonable prediction based on available facts but the threat of retaliation based on misrepresentation and coercion.”  Acknowledging that this standard might be somewhat vague and difficult to apply, the Court suggested that an employer “can avoid coercive speech simply by avoiding conscious overstatements he has reason to believe will mislead his employees.”

Another restriction on employer communications during union organizing campaigns concerns the topic of employee sentiment regarding the union.  Employers should not ask employees about their (or their fellow employees’) views on or support for the union.  In this respect, meeting with individuals or small groups of employees to discuss the union is often found to be an unfair labor practice.  This restriction generally extends to employer surveillance, photographing and videotaping of employees engaged in union activity.  In fact, it may be unlawful for employers to create the impression that they are engaging in surveillance even if no such surveillance is actually taking place.

Employers may poll employees on their level of support for the union only if:  (1) the purpose of the poll is to determine the truth of a union’s claim of majority status; (2) this purpose is communicated to the employees; (3) assurances against reprisal are given; (4) the employees are polled by secret ballot; and (5) the employer has not engaged in unfair labor practices or otherwise created a coercive atmosphere.  If any of these conditions is not satisfied, then the poll is unlawful.

Changes in the Employment Relationship

Employers must continue to grant all scheduled wage increases and benefits during a union organizing campaign, just as if no such campaign were taking place.  However, employers generally may not grant additional benefits or withdraw existing benefits during the union organizing campaign, as such actions typically are construed as unlawful coercive efforts to influence the outcome of the election.

Employers also may not solicit employee grievances after a union organizing campaign has begun, in the absence of a past practice.  Such activity is generally viewed as a tacit promise to address employee concerns and to fix workplace problems in exchange for opposition to the union.

Of course, employer acts such as discharging union adherents based on their union sympathies, threatening violence against union supporters or representatives and appealing to racial prejudice are prohibited.  Such acts are viewed as clearly calculated to coerce employees into opposing the union and, as such, constitute unfair labor practices.

Authorization Cards

During the course of an organizing campaign, the union might demand recognition based on signed “authorization cards” purporting to demonstrate that a majority of the relevant employees have authorized the union as their bargaining representative. It is extremely important to emphasize that employers should not even look at these cards unless the employer wishes to voluntarily recognize the union.  Thus, the employer should decline to view any such cards and state that it will recognize the union only if the union is certified by the NLRB following a formal representation election.

If the employer views the authorization cards and the authorization cards, in fact, appear to demonstrate majority support for the union, then the employer may be deemed to have voluntarily recognized the union and to have waived its right to withhold union recognition absent a formal election.  Moreover, in this situation, the employer assumes the risks of mistaking the extent of union support, inadvertently conferring voluntary recognition on the union, and, if the authorization cards do not in fact demonstrate majority support, inadvertently committing unfair labor practices by dealing with a minority union.

Neutrality Agreements and Voluntary Recognition

Finally, many unions have avoided the issues addressed above by requesting (and obtaining) an employer’s agreement to remain neutral during an election campaign (pursuant to “neutrality agreements”) or to voluntarily recognize the union as the bargaining representative.  In this regard, the NLRB is presently considering a potentially significant case involving whether, or to what extent, an employer may agree with a union to: (1) remain neutral during an organizing campaign; (2) recognize the union based upon a showing by the union that a majority of employees have signed authorization cards indicating their desire to be represented by the union; and (3) adhere to specified mutually acceptable principles in any potential collective bargaining agreement that may be negotiated if formal union recognition is achieved.  The NLRB’s decision is expected to clarify the extent to which this kind of cooperative approach is lawful (the concern is that it may override employee freewill and establish an unlawful company-dominated union) and, if so, to establish the parameters.  We will address this issue further in an upcoming article.

Conclusion

Responding effectively and lawfully to union organizing campaigns requires application of complex laws rife with subtle distinctions between what is permissible and impermissible, as well as careful strategy.  The Firm is available to provide counsel and assistance to employers in this critical area of the law.