Preparing for the Unexpected: Facing a Unionization Campaign

As an employer, you may find yourself unexpectedly facing a unionization campaign. But if you laid the proper groundwork long before the signs a?union organizing campaign?is in the making, responding is much easier and more likely to lead to a "no" vote should the campaign reach the election stage.?

Labor unions are always ready to pounce on any opportunity to organize employees, even if you think your employees are not interested, because your management has done everything possible to?stay union-free. It only takes one – just one – disgruntled or disengaged employee to contact a union which will spring into action. Instead of the union having to recruit someone to get a foot in the door, an employee contacting the union is a true gift to the union.?

Always Expect a Labor Union to Show Up?

?In 2020, a pandemic year when many people were not even working, the National Labor Relations Board (NLRB)?recovered $39,389,405 on behalf of employees?as backpay or reimbursement of fees, dues, and fines. In addition, 978 employees were offered reinstatement.?

There were 15,869 Unfair Labor Practice (ULP) cases and 1,764 representation cases in which employees or a union filed a petition for a union election. In the past four fiscal years, which are more typical, the NLRB collected annual amounts in back pay, fees, and dues that ranged from $53 million to $73 million.?Remember, employers paid this money.

Many employers make a common mistake assuming they are immune to unionizing because they have great benefits, flexible schedules, an?open-door management policy, and a competitive pay schedule. It's a mistake to think that way because it leads to complacency, and complacency leads to gaps in efforts to stay union-free. For example, you believe you don't have to?talk to your employees about the disadvantages of unions?because they couldn't possibly want or need to join a union.?

Proactive Strategy is Essential When Facing a Unionization Campaign

It only takes one?actively disengaged and unhappy employee?to initiate contact with a union. The union will pounce on the opportunity and begin the process of recruiting more employees. What can you do before you have any awareness a union might be targeting your business? Indeed, having great benefits, flexible schedules, an open-door management policy, and a competitive pay schedule are steps in the right direction. But we're talking about policies and practices beyond the obvious good employment practices. We're talking about a comprehensive,?proactive strategy?first?because how well you are prepared to face a unionization campaign depends on effective leadership long before a union appears.

• Solicit employee feedback?– It sounds odd to say you should seek grievances, complaints, or problems. Why stir the pot? When one or more employees have a grievance, the pot is already stirred and bubbling! Being a mushroom and staying in the dark is not a strategy.?

Stay ahead of workplace issues. You should solicit regular feedback from employees via meetings,?surveys,?FAQ website?that allows questions, or any communication channel that works best for your workforce. Encouraging them to bring their issues into the open?gives employees a voice?and gives your leaders opportunities to respond directly. Who needs a union???

• Ensure company policies don't leave openings for unions?– Your Human Resources policies should carefully adhere to employment law, of course. But beyond that, the?HR policies?should not leave openings for unions.??

For example, your?solicitation policy and policy enforcement?need consistency. You shouldn't let an employee post a flyer or send a flyer attachment via email on the company communication system that touts a personal charity event and asks for donations. If you do, an employee can post a union recruitment notice.?

Your solicitation policy should prohibit all soliciting during work time and in work areas and by using company property. The employees can talk about things like charity donations and signing union authorization cards during their lunchtime or work breaks, which leads to the next item.?

• Ensure all your?leaders are always well-trained on unions– Companies usually end up with Unfair Labor Practice (ULP) charges against them because one or more managers or supervisors were uninformed or forgot about the do's and don'ts of labor law and responding to signs of unionization.??

In addition, the labor laws frequently change.?Proactive leadership training?on unions is crucial because you don't know when a union campaign will suddenly start. When a supervisor finds a union flyer or union authorization card an employee accidentally leaves on a table, the union has already made significant progress.

Reading through the National Labor Board's cases and decisions, it seems the majority of employers lose because one or more organizational leaders didn't understand that even a small slip-up or resistance to labor law can cause big trouble. For example, it could be a wrongful termination of an employee involved in union organizing or a verbal threat delivered to employees that there will be layoffs if they vote for a union.?

• Periodically conduct union vulnerability assessments?– If you don't know your weak areas, you won't know how or where to strengthen your union-free effort. Conducting?union vulnerability assessments?informs management of the level of risk of unionization.??
• Proactively maintain positive employee relations (PER) through a holistic approach?– Proactively maintaining positive employee relations is an ongoing process. There's no doubt in the post-COVID-19 era, employees are feeling more empowered, and you can leverage that feeling by taking a?holistic approach to positive employee relations.

The Projections team calls the current period the?Proactive Era, in which you consider the?whole employee experience?within the context of work and personal lives. Quite honestly, unions try to approach employees holistically. For example, they talk about working conditions and the ability of employees to take care of their families, addressing work and personal lives. By approaching PER holistically, employees decide for themselves they don't want or need unions because you help them take care of themselves through authenticity, giving them a voice, providing adequate resources, considering family needs, and so on.?

Developing positive employee relations?is a process for?building trust, and that takes time. You can't suddenly expect your employees to trust you or believe your leaders are transparent during a unionization campaign when there was low trust and transparency before a union appeared.??

• Prepare for renewed union activity?- The unions have been extremely active over the last year, getting lots of publicity as the voice of employees concerned with health and safety due to the pandemic. The unions are also vigorously and publicly supported by the Democratic party at the federal level and a number of state governments.?

The?PRO Act?and a host of other union-supporting bills are proposed. You have to now develop and maintain PERs in a more pro-union environment, which means an even stronger focus on the leadership practices just mentioned. Nothing can be taken for granted, like the level of?employee engagement among all generations?and the quality of communication between leaders and employees. Projections discussed the PRO Act and other union-supporting legislation in detail and the?impact on positive employee relations.?

The pressure is building to pass the PRO Act, but in the meantime, the trend to grow union membership is gaining a life of its own as some businesses push for utilization of union labor. For example, an agreement on a?$2.1 billion project?between Copenhagen Infrastructure Partners and two building trades councils means only union labor will build the massive renewable energy project in Oregon. You can also expect the NLRB, now headed by a Democrat, to make decisions that support PRO Act provisions. The stage is set.???

• Educate employees on unions?– Yes,?talk about labor unions, but stick to the facts. Explain how unionizing will impact the workforce. Explain the cost of union dues and the cost to the company. Explain why employees don't need a union. Encourage employees to ask questions about unions.??

You should have a?union-focused website?available all the time where employees can read about the company philosophy on unions and ask questions anonymously. In consultation with a labor attorney, you can then answer the questions on the forum for all employees to see. Should a union approach your employees, they already have the facts about your company. It's more challenging to tell people falsehoods when they know the truth.???

• Prepare union avoidance resources in advance?– You need the ability to?rapidly deploy customized resources?when facing a unionization campaign. There isn't a lot of time. Even a large company like?Amazon?had only seven weeks of voting for 6,000 employees. If it takes a week or two to prepare handouts, put up a website, design meeting materials, and train your leaders, there is not much time left. Most union elections happen fast. A best practice is to develop the basic union campaign resources that can be customized when needed.?

Maintain statistics and data analytics?– A union campaign unfolds rapidly, so you need to always be prepared with facts. You can?track your union campaign website, of course. But other critical statistics include metrics like those that prove your pay schedules are fair and competitive or why they can't be increased and remain competitive; the generosity of benefits; the number of employees trained; employee perks that demonstrate the company is an industry leader; etc. The more facts you have, the better.?

Make the company philosophy on unions known during onboarding?– All local and remote?employees at the point of onboarding?need to be informed of organizational values and the company's reasons for having a union-free philosophy.?

Understand How a Union Campaign Works?

As mentioned, union campaigns move fast. The NLRB has gone back and forth on the "quickie election" or "ambush election" rules. During the Obama administration, the time period from?filing a petition with the NLRB?to the actual vote was shortened. The Trump administration rolled back some of the rules and lengthened the time to give employers more time to respond. Under the Biden administration, the NLRB is pursuing a return to the Obama administration rules. The time to learn how a union campaign works is now. Waiting until an election starts to learn the process will cost your organization valuable time.

The National Labor Relations Board 2020 report mentioned earlier said the initial union election in union representation cases (NLRB was petitioned) was conducted an average of 28.4 days from the filing of the petition. So you are likely to have less than a month to effectively and successfully respond to a union campaign.?

The Basic?Union Organizing?Process

1. Union convinces at least 30 percent of employees to sign union authorization cards but often waits until well over 50 percent sign since it takes that many to win an election.?
2. Petition for a union election is filed with the NLRB.?
3. NLRB approves the election and sets a date for voting.
4. Employer identifies the employees in the bargaining unit that can vote.??
5. The employer posts notices of the election.?
6. An election is held.
7. Union is certified as the representative of the bargaining unit.?
8. Union contract negotiations take place.?

This is a very simplified list. Projections Inc. has developed an in-depth description of the?journey to a union election. But do you know what you can do, as an employer, to?oppose a union organizing campaign???

Emotions Run High When Facing a Unionization Campaign?

An important point to keep in mind is that?union campaigns are emotional events. Your pro-union and anti-union employees are disagreeing with each other. Pro-union employees are striving to create resentment against your leaders. Some employees will portray your organization as uncaring and even cruel and violating employee rights.??

Your managers and supervisors are on edge because one misstep can lead to a valid ULP charge. In fact, your managers and supervisors are likely worried a ULP will get blamed on them, valid or not. In addition, the company will spend tens of thousands in legal fees for labor law attorneys and professionals to defend itself against ULPs and on resources to convince employees they don't need a union, all of which places a financial strain on the business.?

Recognizing the high emotion that accompanies a union campaign is another reason to prepare for a union before a union even enters the picture and to build strong positive employee relations and?leaders with emotional intelligence. Even if the union campaign leads to an election in which employees vote "no," there is potentially a lot of damage done to the employee relations workforce that must be repaired. It takes skilled?leadership communication.??

Do's and Don'ts When Facing a Unionization Campaign?

Despite all efforts, a campaign may still start. You simply need to know what you can do once your company faces a unionization campaign. This is when your?laborwise leadership training?and advance preparation will pay off. You can answer questions employees ask your managers. You can't interfere with the employees' right to organize. You can tell the truth about union corruption, but you can't make statements that aren't objective. As a company, you have to ask:?Do you know how to respond to union organizing legally??

Following are some don'ts and do's that you can use as guidelines. The list incorporates knowledge of the high emotions that are common to union campaigns. The don'ts are details for TIPS rules. TIPS is the acronym for Threats, Interrogation, Promises, and Surveillance. The do's are details for the FOE rule, which stands for Facts, Opinions, and Examples. The?TIPS and FOE rules?are the foundation of the effort to avoid ULPs during a union campaign.??

"Don'ts":

• Don't add to the negative emotional level?by telling employees things like they are "betraying their company" that has taken good care of them.?
• Don't overreact when employees or?union representatives make negative statements?about the company – stick to the facts. Don't make any direct promises to convince employees to vote no, like offering a raise or more benefits.?Don't make direct and indirect promises?to convince employees to vote no, like soliciting grievances about working conditions and promising corrections will be made (remember: solicit grievances as feedback as a matter of good management before a union ever appears)??
• Don't discriminate against any employee who participates in union activities.?
• Don't make threats?to convince employees to vote no, like reducing work schedules, closing a facility, ending benefits, terminating some positions, etc.?
• Don't ask your employees what they are doing in terms of union activity, including who attended union membership drive meetings.?
• Don't ask your employees how they intend to vote during the union election.?
• Don't ask who has signed a union authorization card.?
• Don't offer to reward an employee if they would share information about the union.?
• Don't spy on or?surveille employees?in or out of the workplace, which includes not asking an employee to report on union activity, not recording employees in the breakroom or parking lot, not parking outside union meetings, etc.?
• Don't prohibit employees from wearing pro-union symbols or insignia.??

"Do's"?

• Do remind your (hopefully fully trained) leaders what they can say and not say to employees and how to handle typical union-related situations.?
• Do?direct your leaders to the available information and resources?they can access as needed.?
• Do speak about the company's existing advantages, like health benefits, open-door policy, safety procedures, flexible scheduling, competitive compensation, etc.??
• Do provide as many statistics as possible that support the company's stance on unions, i.e., higher pay rates earned now compared to industry or local rates for union and non-union companies; the number of strikes initiated by the union, and the lost wages employees experienced; documented pay rates of union executives; etc.??
• Do explain the company hopes the union is voted down.?
• Do explain the company wants to stay union-free and why it believes it's important.?
• Do?explain employer rights, so there is no misunderstanding as to what employers are allowed to say and do.?
• Do explain the union?promises for improvements and benefits that already exist in the workplace.?
• Do?explain the union can't promise things like pay rates and benefits?increases because union contracts must be negotiated with the employer.?
• Do explain union representatives will become the group voice of employees whether or not the employees like what they say.?
• Do explain union promises that are either unrealistic or have no meaning.??
• Do explain the facts about union tactics, corruption, government investigations, strikes, grievances filed against the union, etc., with particular emphasis on the union involved in your organization.?
• Do listen to employees who voluntarily mention grievances.?
• Do listen to employees who offer suggestions for improving working conditions.?
• To ensure you effectively?communicate with diverse employees?who are not native English speakers.?
• Do?follow the established grievance procedure?and let employees know there are no promises made concerning the grievances.?
• To discuss the?possibility of strikes.??
• To discuss the fact that employees will have to pay?union dues?that may go to for causes and political purposes they don't support.??
• Do explain the?cost of unionization?on the company (once again, stick to facts and not threats, i.e., have to hire additional HR employees, etc.)?
• To discuss the fact employees will have no say in how union dues are spent.?
• Do regularly?remind employees they have rights, including the right to refuse to sign union authorization cards, the right to vote no in an election, and the right to tell union representatives and union supporters to?leave them alone at work and home.?
• Do give?employees who oppose unionization?opportunities to share their opinions about the workplace, i.e., video or blog post on the company website in which the employee explains the positives of employment with the company.?
• Do?let employees know they have a right to choose; even if they sign a?union authorization card, they can still vote "no."??
• Do immediately follow up when employees formally or informally complain a manager or supervisor has violated the NLRA, and don't automatically assume your leader is right or make the situation worse with thoughtless statements you shouldn't be making (a big source of ULPs are violations within the company that higher-level managers unintentionally reinforce)?

Staying Prepared is the Best Offense to Stay Union-Free?

Sometimes, it's just not possible to?stop a union organizing campaign. You need to have?leaders always in a state of readiness?and not vulnerable to making serious and illegal mistakes. Everyone should be as prepared as possible when facing a unionization campaign. Think in terms of?crisis communication?because, win or lose, a union organizing campaign is disruptive and can impact?business continuity.??

Projections?has decades of experience in helping businesses prepare for and respond to a unionization campaign. We have the tools, employee and leader training resources, and professional network you need to succeed.?

This article was originally published on the Projections blog at https://projectionsinc.com/facing-a-unionization-campaign/