An Employment Lawyer’s Thoughts on How Businesses Can Remain Union-Free: Part 1

by D. Michael Henthorne

I’ve been asked to address a group of nursing managers in one of South Carolina’s leading hospital systems on avoiding labor unions and recognizing union-organizing activities. Despite growing up the son of a Teamster (my father was a truck driver), for most of the last 29 years I have lived in South Carolina, where union-organizing activity is relatively infrequent and labor unions are rare.

While at home recently, I began to think about what I would say to the health care professionals and managers regarding union avoidance, and a simple analogy began to develop. I trust you will find the analogy useful, practical, and thought-provoking as you contemplate ways your company may remain union-free.

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The high price of neglect
In the carport adjacent to my house is a large utility closet. It’s an ideal storage space and, especially in the absence of a garage, serves a vital and necessary function. Once clean and neatly organized, over the last several months, my utility closet has become the catch-all for spare materials and remnants from a kitchen remodeling project (courtesy of a grease fire), my growing collection of tools and lawn maintenance equipment, and my daughters’ toys. I’m not sure I could find my beach chairs if my life depended on it. What began as ordinary clutter has given way to neglect.

This hasn’t been an intentional transformation but the result of my own inattentiveness. Over time, I have been confronted with a series of items that sought to take up more space in my utility closet than necessary or desirable and, in the process, my closet was rendered unusable.

Instead of dealing with the leftover building materials after the kitchen remodel, I stuck them in the utility closet and promised to worry about them “when I had more time.” Instead of asking my girls to help me discern which toys they wanted to keep and which ones they no longer played with, I kept them all and stored them in a location that was obviously ill-equipped to handle the additional demand for space.

Looking back, it’s clear to me that had I simply addressed the individual problems one by one as they presented themselves, perhaps they wouldn’t seem as large as they do now. As a result, I have avoided my utility closet to the extent that it is no longer useful. Instead, it’s an unwelcome reminder of my own procrastination. To make matters worse, the longer it remains in complete disarray, the more I try to avoid going near it — let alone open it to see what’s inside.

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The birth of labor unions
In 1935, Congress passed the National Labor Relations Act (NLRA), which gave labor unions the legal right to represent employees in their relationships with their employers by means of collective bargaining units. By 1946, nearly one-third of all employees belonged to labor unions.

Today, although only approximately 15 percent of U.S. workers are union members, union-organizing efforts remain active and are even increasing in some industry sectors — most notably of late, health care.

Union-free policies and the law
Where employees aren’t currently represented by unions, employers routinely — and candidly — declare their desire to remain union-free, and many employers have established written policies to that end. Generally, you have the right to do so under Section 8(c) of the NLRA so long as you don’t violate other provisions of the Act or related state laws in the process.

Usually, the underlying premise of a union-free policy is that unions have little, if anything, to offer employees because the employer already provides them with fair compensation, good benefits, and favorable working conditions. Simply stated, if an employee feels she is being treated fairly and reasonably, she will have little incentive to join a union or seek representation by an outside party.

While a number of factors determine whether an employer is likely to experience union-organizing activity, it’s human nature for employees to ask whether their compensation, benefits, and working conditions are comparable to similarly situated employees in their industry or profession. In that regard, they aren’t so different from their employers, which may in turn compare themselves to other companies to see where they stand.

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To be continued
You may ask, what do the NLRA, union-free policy statements, and the human nature of employees and employers have to do with my neglected utility closet? Please read next week’s installment to find out the connection. The relationship may not only surprise you but help you as well.