I Was Unable to Stop a Union Organizing Campaign: Now What?

You did everything within your legal rights, but you were unable to stop a union organizing campaign in your workplace. Now, the campaign is heading for an election. The union representatives were able to convince your employees that unionizing will solve all their issues. They gave them a strong voice in the workplace, and promised to put an end to management abuses, even if those claims of abuses are untrue. You may have thought you had union proofed the business, but it seems that wasn't enough. Perhaps the union was able to make a convincing argument for unionizing.

Employees sometimes choose to go through a union organizing campaign no matter what an employer does to develop strong employee-employer relations. You can do all the right things, making sure the conduct of managers and supervisors does not violate the law. You have a responsive grievance procedure, regularly review Human Resources policies, hold meetings to demonstrate the company believes in its employees and respects their rights, update the company website and videos to strengthen the company stance on unions and the impact of unionization on employees, provide leadership training and take a host of other positive steps to be an employer of choice.

The Result of Mistakes

Despite all efforts, you're unable to stop the union campaign, and an election is looming. Talk about frustrating! At this point is when employers frequently make mistakes.

The Economic Policy Institute strongly supports unions and does regular research on unions and union election campaigns. The results of a recent report demonstrate U.S. employers charged with violating federal labor laws in 41.5% of all union election campaigns. Employers can be charged with:

• Illegally firing workers for engaging in union activity – 19.9 percent
• Making threats or promising retaliation – 29.2 percent
• Engaging in surveillance activities – 29.3 percent
• Harassing workers

Of course, being charged with illegal employer actions doesn't mean the charges are true. The EPI notes they are "alleged illegal employer conduct" charges. It's important to realize that many charges brought up during union organizing are incorrect. Typically, they are made mostly to strengthen the union's effort to portray the employer in a bad light.

Yet, there is no doubt many employers can react in the wrong way, simply out of desperation. It can be difficult after it becomes clear the union organizing campaign will continue. What is the right way to respond when unable to stop an organizing campaign?

Maintain the Right Perspective

First, don't panic. Employees have the right to vote for or against unionizing. If the election has not yet been held, there is still time to help employees understand that a union is not in their best interest. If you have not done so yet, hire a labor relations professional. They will be able to quickly assess the situation and offer guidance on legal union avoidance tactics. The difficult fact to accept is that there doesn't have to be an Unfair Labor Practice (ULP) charge in order for the National Labor Relations Board to set aside an election in the union's favor (employees voted against unionizing) if your company committed acts or said things that interfered with your employees' right to choose a union freely.  

Getting expert help makes it much easier to avoid making mistakes out of frustration. Additional steps you can take include:

• Making sure company websites and videos respond to employee complaints or address grievances
• Keeping an existing grievance procedure in place (it's better not to change it to avoid charges of campaign interference)
• Strengthening the explanation of the company's views on unions and collective bargaining without making any threats
• Objectively explaining the truth of Human Resources policies. This includes things like generous benefits, leave time allowed, retirement plans, flex work schedules, etc.
• Correcting to union claims or accusations that are false
• Predicting the effects unionization will have on the organization, while keeping the prediction objective and not threatening
• Refusing to voluntarily recognize the union (the union will ask when possible!)

Know What You Can and Can't Do

The National Labor Relations Board offers many ways an employer can respond to an organizing campaign and its events. For example, the union may claim it has majority status and demand recognition. Assuming you have not engaged in any Unfair Labor Practices, you are allowed to poll employees by secret ballot to verify the union is telling the truth. This can be tricky because employees cannot view the poll as a reprisal or intimidation.

Other steps you can take as an employer include:

• Continue with any planned changes to salaries and benefits, as long as the changes were planned before the union came along
• Make a general invitation to willing employees to appear in one or more videos addressing the campaign, but be very careful that all participants are voluntary and not pressured, not getting any kind of reward for their participation and do not feel coerced in any way
• Refuse to agree to the election terms and object to the union's election petition at an NLRB regional hearing

Should the election take place despite all legal attempts to stop it, you should have an impartial observer at the election and challenge ineligible voters, if there is good cause to believe they're ineligible. There are other steps you can take when a union election is scheduled (or appears to be heading in that direction.)

Culture Matters

The union must follow the law too. That is an important fact to keep in mind. Sometimes, the reality is that those unions act as if they can do what they want because they're fighting for employee rights. For example, unions make promises they know they probably can't keep. This is not a judgment call but rather the truth. At Union Proof, we talk a lot about the importance of an organization's culture to employee engagement and the role of leaders in developing and maintaining a positive culture. This applies to all organizations, including unions.

The United Auto Workers President resigned in November 2019 over corruption allegations; a federal corruption probe is currently being conducted at the UAW-Chrysler National Training Center. This probe led to ten union and three Fiat-Chrysler executives being charged; General Motors filed a racketeering lawsuit accusing Fiat of bribing union officials with $1.5 million to land more favorable contract terms for the UAW, and on the list goes. The issue at the heart of all these actions is the culture of the UAW, especially at the top. Culture matters.

Many union organizing campaigns happen quickly today. It seems like you get wind of the fact your employees are planning to organize, and suddenly there is an employee union election. The reality is that the best way to stop a union organizing campaign is to prevent it. This is done by developing positive workplace culture and a high level of employee engagement.

Ongoing Effort

In other words, staying union-free is not a one-off effort. It is an ongoing effort, requiring leadership diligence and adherence to best practices in employee engagement. But if you are unable to stop an organizing campaign, you can work to win the election. If your employees choose to vote for the union, it's time to roll up the sleeves and address all the reasons the employees believed unionizing was in their best interest. You may need to:

• Revise HR policies
• Revamp the grievance procedure
• Upgrade employee-dedicated websites to be more positive and inclusive
• Improve the employee communication system to give employees more voice
• Develop ways to improve collaborative decision-making with employees
• Strengthen employee training systems with interactive eLearning modules
• Strengthen leadership skills at all levels

Take Steps to Improve Workplace Culture

Once a union contract is in place, it is tempting to think, "Too late. I will have to wait until the contract expires and hope the employees have tired of the union". That is the wrong approach. Unions can be decertified, and the contracts allowed to expire without renewal. You can be union-free again. In fact, the NLRB made it easier to decertify the union when you receive proof the union lost majority support. It simply needs to be within 60 to 90 days before the end of the contract. So think positively, and immediately begin improving the workplace culture and employee engagement.

This article was originally published on the UnionProof blog at https://blog.unionproof.com/i-was-unable-to-stop-a-union-organizing-campaign-now-what