Employer Actions During Unionization

Employers often dread the idea of unionization among employees, perhaps fearing that the employees will have unreasonable demands or will go on strike. Some employers even actively work to discourage unionization activities among employees—but doing so can be illegal.

Employers must be careful not to interfere with unionization, because employees have a lot of rights in this regard. For example, employees can:

• Form (or attempt to form) a union within the workplace;
• Join an existing union, even if the employer does not yet recognize the union;
• Distribute information regarding unionization, as well as read and discuss this information;
• Help an existing union organize employees and get others to join;
• Discuss pay, working conditions, safety concerns, and other terms and conditions of employment;
• Bring complaints to management for discussion; and
• Actively participate in unionization activities, including wearing buttons/T-shirts and/or signing petitions.

These types of activities are specifically protected by the National Labor Relations Act (NLRA), and interfering with such activities could land an employer in trouble.

What Should an Employer Do If There Is a Unionization Push in the Workplace?

Given the employee rights outlined above, most private sector employers have limited recourse if their employees are actively participating in a unionization push. (There are exemptions from NLRA regulations, however.*)

Employers in this situation cannot:

• Fire or otherwise threaten employees with negative employment actions in order to discourage the above activities;
• Offer preferential treatment to employees who are not involved in the unionization process;
• Harass employees about the unionization effort—which could even include simply asking employees about it (which can be seen as coercive);
• Make large-scale threats, such as threatening to close plants or divisions or even the entire company; or
• Take away existing benefits as a means of discouraging unionization behaviors.

In short, employers should not interfere in any way with the unionization process and should never attempt to coerce employees into not joining a union. The primary recourse the employer has—but only in some cases—is to treat external union officials just as other solicitors would be treated. If, and only if, other solicitors are always asked to leave the premises, then it would be permissible to treat external union organizers the same way. However, if other solicitations have been allowed (even if it was against company policy), it would not be advisable to require union organizers to leave.

Employers could also consistently implement rules that require employees to be working during working hours, thus limiting unionization discussion to designated break times and places—but this will not likely have much of an effect.

Has your organization seen a push for unionization, or do you work in an industry with established unions? What has been your experience?

*It should be noted that not all employers are covered by the NLRA. It specifically excludes government employees, agricultural laborers, those employed in domestic service for a private family, those employed by their parent or spouse, those who are working as independent contractors, and more.

About Bridget Miller:

Bridget Miller is a business consultant with a specialized MBA in International Economics and Management, which provides a unique perspective on business challenges. She’s been working in the corporate world for over 15 years, with experience across multiple diverse departments including HR, sales, marketing, IT, commercial development, and training.