HR Management & Compliance

Unions: How Far Can We Go in Discouraging a Union Drive?

We’ve gotten word that a union is going to try to organize our manufacturing arm’s workers. I’m not sure what to tell the managers and supervisors about how far they can go to encourage their workers to reject the union. Can you give some general guidelines?
— Thomas T., HR Manager in Berkeley

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Because of the very technical nature of the rules in this area and the severe consequences of violating the law, it is highly desirable for employers faced with organizing to obtain help from an attorney who is an expert in this subject. Here are some basic guidelines, however, for how an employer should and shouldn’t communicate with its employees about union organizing.

Some Things You As an Employer MAY Do

  • Tell employees that if a majority of them select the union, the company will have to deal with the union on all their daily problems involving wages, hours, and other conditions of employment. Advise them that the company would prefer to continue dealing with employees directly on such matters.
  • Tell employees some of the disadvantages of belonging to a union, such as the expense of initiation fees, monthly dues, fines, strike assessments, and membership rules restricting their personal freedom. Quote from the specific union’s constitution and bylaws granting the union power to impose punishment and discipline against its members.
  • Tell employees a union could call a strike or work stoppage even if many employees may not want to strike and even if the employer is willing to bargain or has been bargaining with the union. Inform employees that any strike can cost them money in lost wages.
  • Tell employees that in negotiating with the union the company does not have to agree to all of the union’s terms, and certainly not to any terms that are not in the economic interest of the business.
  • Tell employees about any experience you have had with unions, anything you know about unions, and especially anything you know about the union (and its officers) that is seeking to represent the employees. Be very factual. Be sure your statements are truthful and relevant to the employees’ selection or rejection of the union—be careful not to disparage the union.
  • Tell employees your opinion about union policies and union leaders, even though it may be uncomplimentary. (Be factually correct in referring to those policies and leaders.)
  • Tell employees about any untrue and misleading statements made by a union organizer, a handbill, or any other medium of union propaganda. You may always give employees the correct facts.
  • Tell employees about known racketeering or other undesirable activities in the union. Relate only established facts.
  • Distribute reprints of articles containing information about unions or facts revealed through congressional or other public hearings. Refer only to the union seeking to represent the employees, and identify the dates and sources of your information.
  • Tell employees that they are free to join or not join any organization without prejudice to their status with the company.
  • Tell employees that merely signing a union authorization card or application for membership does not mean that they must vote for the union in an election. If the situation warrants, advise employees that the union may use the signed authorization cards to obtain bargaining rights without a National Labor Relations Board (NLRB) election.
  • Tell employees about the NLRB election procedures and the importance of voting; emphasize the secrecy of the ballot.
  • Tell employees about their legal rights. However, there should not be any encouragement or financing of any employee suit or proceeding.
  • Actually campaign against a union seeking to represent your employees, stressing the advantages and the history of fair, direct dealings without outsiders’ intervention.
  • Make and/or consistently enforce rules that solicitation of membership or discussion of union affairs must occur outside working time so that it will not interfere with an employee’s own work or impede others’ work. Remember, however, an employee can solicit and discuss unionism on his own time, even on company premises, when it does not interrupt work. Also, such rules must treat solicitation for other matters, such as charitable fundraising, in the same way.
  • Make or enforce a rule restricting the distribution of all literature, whether union or otherwise, to nonworking areas of the company premises.
  • Enforce other company rules impartially and in accordance with customary action, irrespective of the employee’s membership or activity in a union.
  • Lay off, discipline, and discharge for cause as long as such action follows customary practice and is done without regard to whether an employee is or isn’t a union member.

Some Things You As an Employer MAY NOT Do

  • Promise employees a pay increase, a promotion, betterment, a benefit, or a special favor if they stay out of the union or vote against it.
  • Threaten loss of jobs, reduction of income, discontinuance of privileges or benefits presently enjoyed, or use intimidating language designed to influence an employee in the exercise of rights to belong, or refrain from belonging, to a union.
  • Threaten or actually discharge, discipline, or lay off an employee because of activities on behalf of the union.
  • Threaten to close or move a department or to reduce operations drastically if a union is selected as a representative.
  • Assign undesirable work or make unfavorable job transfers to employees actively supporting the union to cause them to quit or to discourage other employees from supporting the union.
  • Show favoritism to nonunion supporters over employees active on the union’s behalf.
  • Discipline or penalize employees actively supporting a union for an infraction that nonunion supporters are permitted to commit without being likewise disciplined.
  • Take an action that is intended to impair the status of, or adversely affect, an employee’s job or pay because of activity on behalf of the union.
  • Intentionally assign work or transfer employees so that those active on the union’s behalf are separated from those you believe are not interested in supporting a union.
  • Select employees to be laid off with the intention of curbing the union’s strength or to discourage affiliation with it.
  • Spy on union meetings. (For example, parking across the street from a union hall to watch employees entering the hall would be suspect.)
  • Conduct yourself in a way that would indicate to the employees that you are watching them to determine whether they are participating in union activities.
  • Ask employees for an expression of their thoughts about a union or its officers.
  • Ask employees how they intend to vote in a union election.
  • Ask employees at the time they’re hired or thereafter whether they belong to a union or have signed a union application or authorization card.
  • Ask employees about the internal affairs of unions such as meetings. (Some employees may, of their own accord, walk up and tell of such matters. It is not an unfair labor practice to listen, but you must not ask questions to obtain additional information.)

Scott Silverman is a partner at the Los Angeles office of law firm Morrison & Foerster.