From the outset, my state’s (West Virginia) legislative decision to become a right-to-work state has faced challenges, both legal and practical. For one thing, unions have become extremely active in attempting to organize nonunion companies and facilities. The lifeblood of any union is dues, and the state’s right-to-work law has made it more difficult for unions to have unfettered access to that resource. Consequently, they’ve begun searching for new revenue streams.
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Trying to stay on the right side of the National Labor Relations Act (NLRA), more employers have been turning to lawyers for assistance in preparing union avoidance strategies to maintain a union-free environment for the benefit of both the company and its employees.
When an organizing campaign has been initiated, either through a formal petition for recognition or by informal union appearances at the employer’s site, there are several things you should, and should not, do to maintain a union-free environment.
Companies May Offer Facts, Opinions, Examples
To establish an effective union avoidance plan, the acronym “FOE”—for facts, opinions, and examples—should be front of mind.
Facts. Employers are allowed to encourage managers—including employees who can’t be unionized based on their status with the company—to share facts about the union and help set expectations about what the organizing process would look like if a union became involved.
You may let employees know what the company is allowed to do legally and what the union may do during the campaign and in bargaining, along with what to expect in contract negotiations if the other side proves successful.
You may direct employees’ inquiries to the National Labor Relations Board and discuss representation statistics (e.g., unions are representing less than 7% of the private-sector workforce). Perhaps most important, you may share that the union will ask them to pay dues, which may be the equivalent of several hours of work each month. This box of communication is considered “facts.”
Opinions. Companies may share their own personal beliefs about why the union is bad for employees, making sure the message doesn’t include threats, interrogation, promises, or surveillance (more on that later). You may advise employees that the decision to be represented by a union is their choice, but that you prefer to work directly with them to resolve concerns.
Additionally, you may note the company has always worked to rectify employee concerns directly and share an example. Managers may suggest it has been their experience that unions have the tendency to divide the employees from management rather than work together to find solutions to employee problems. This box of communication is considered “opinions.”
Examples. Further, companies may provide examples of situations involving union organizing and negotiations. The examples can include videos of union posts showing outlandish behavior at the picket line, promises made during campaigns at other companies versus what the union actually receives through the negotiation process, and information about strikes and fines to employees who cross the picket line.
In addition, stories of union corruption, when factual, can be very powerful. This box of communication is considered “examples.”
Companies May Not Use TIPS
TIPS is an acronym standing for threats, interrogation, promises, and surveillance. Companies may not engage in such conduct during a union campaign.
Threats. Company threats, such as telling employees the business location will close or that all current workers who vote for the union will be fired, are strictly prohibited. Disciplining individuals for supporting the union or making statements about reducing pay if the union is voted in are considered threats you may not make during an organizing campaign.
Interrogation. Likewise, you may not interrogate employees about their union support. Asking them to provide names of coworkers who have attended union organizing meetings or polling them to see who is a company supporter vs. a union backer are NLRA violations. Similarly, asking employees if they have signed authorization cards or how they plan to vote is prohibited.
Promises. An employer may not make promises of future benefits to interfere with the organizing efforts. Examples of promises would include agreeing to address employees’ grievances that came up during the campaign, offering pay increases or better benefits, and providing promotions to those who don’t support the union. All would be NLRA violations.
Surveillance. Finally, you may not conduct surveillance of employees during a union campaign. The prohibited activity would include taking pictures of employees at union meetings or listening to their conversations and making notes about the organizing efforts. Management should never attend a union organizing meeting, even if it’s invited.
Stay Away From TIPS, But Actively Offer FOE
Once you learn a union campaign is active at a particular facility, you must create a clear strategy to enhance the likelihood you’ll defeat the effort. By offering FOE but avoiding TIPS, you can legally implement the strategy.
Michael J. Moore—an attorney with Steptoe & Johnson PLLC, out of Bridgeport, West Virginia—may be contacted at michael.moore@steptoe-johnson.com.