Fighting a unionization effort: do’s and don’ts

Union membership has fallen dramatically in recent decades, but the labor movement is far from dead.

The biggest change: In 2005, the breakaway "Change to Win" movement seized control over one-third of the powerful AFL-CIO’s unions. Change to Win lured the unions away by promising to shift the focus from political activism to organizing as many U.S. employers as possible.

Is your business next?

Some workplace conditions can make you a ripe target, such as employees’ job insecurity, lack of career opportunity, poor communication, noncompetitive compensation/benefits, perceived workplace favoritism, poorly trained supervisors or lack of standards and policies.

Employers concerned about unions should take steps to take the sting out of the organizer’s sales pitch. How? Find the root of employees’ discontent by examining the causes of past complaints, comparing your pay and benefits to competitors and providing an outlet for employee gripes and suggestions.

Don’t limit talk of pay, benefits

Both the National Labor Relations Act (NLRA) and the Labor Management Relations Act (LMRA) prohibit employers from discriminating against employees for participating in union activities. Employers can’t discipline employees solely because they support the union, nor may they offer pay raises as a quid pro quo for employees’ anti-union stance.

The NLRA also provides (in Section 7) broad free-speech protections to employees. Not only are you prohibited from disciplining workers for discussing union organization, but also you can’t discipline them for complaining about pay, benefits and working conditions.

For instance, the NLRB recently ruled a company’s policy insisting that employees not discuss compensation or disciplinary actions violated Section 7.

If you have a policy related to employee speech, review it to make sure it doesn’t violate Section 7’s free-speech rights.

Policies limiting speech should be restricted to confidential employee medical information, trade secrets and other information in which a solid business or statutory reason exists for secrecy. Remember, the NLRA applies to both unionized and nonunionized businesses.

Also, you must allow employees to talk with union organizers during breaks or during nonworking hours. Similarly, you can use those breaks and nonwork hours to make your own pitch to employees about rejecting a union bid.

Strategy to fight back

If a union targets your company, your first step is to get help. Obtain an attorney with a labor relations background to advise you through the process.

Second, don’t react to employees in anger. Present your case to your employees in an unemotional, no-nonsense manner. Don’t threaten or interrogate employees.

The NLRA requires you to allow pro-union insignias on shirts and jackets. You can’t spy on employees to determine how they’ll vote. You also typically can’t take a straw poll to determine how the vote will turn out. (Straw votes may be allowed under very limited circumstances; consult your attorney for details.)

The NLRB also frowns upon employers who:

• Campaign on company time and premises within 24 hours of an election.
• Show employees how to mark ballots.
• Discuss the union bid with employees in a supervisor’s office.
• Require employees to wear anti-union buttons or insignia.

You can best fight organizing efforts by simply presenting your case. You’re free to remind workers of their current good pay and benefits. In fact, many companies produce annual benefit reports just for that purpose.

Educate employees about the definitions of terms, such as "dues check-off" and "union shop." Remind them that unions will require dues, fines and assessments, and that they’d lose paychecks if they decided to strike.

You can also relate previous union experiences, but your stories must be accurate: no contrived horror stories to scare the would-be rank-and-file.

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