Some 450 members of United Steelworkers Local 40 went on strike on October 1, 2021, when the union failed to reach a collective bargaining agreement (CBA) with management at Special Metals, a plant based in Huntington, West Virginia, which develops and produces nickel alloys. Like many employers dealing with strikes, it’s likely Special Metals is doing its utmost to maintain high standards and meet customer needs despite the union’s efforts. Successful strategies for dealing with strikes are certainly important, but employers are generally more motivated to take measures to prevent strikes before they happen because the consequences can be severe. Here are four major tips to avoid strikes before the work stoppage occurs.
Proactively Take Action to Prevent Unionization
The best way to avoid a strike is to prevent a union from organizing in the first place. You should look for warning signs to anticipate when employees may organize to form a union. Warning signs can include:
- Influx of complaints made to agencies;
- High turnover among employees;
- Workers who used to cooperate with you but no longer doing so;
- Employees socializing with coworkers with whom they didn’t regularly mingle with in the past, and
- Good employees turning down opportunities for promotion without exhibiting a good reason.
Other warning signs include employees asking for representatives when employers engage them in counseling or investigation or when words such as “due process” and “unfair labor practice” (ULP) begin to appear in conversations.
Obviously, the warning signs ought to serve as a prompt to take action, but it’s better not to wait for the signs because you may not have enough time to take correct the situation.
Over the years, it has become apparent that many, if not most, successful union organizing campaigns are based on the notion that management doesn’t listen. So, one of the most effective strategies to practice good management is by walking about. Getting to know employees and learning about some of the seemingly small things that affect them is vital. Taking action to follow up on their suggestions and concerns is even more critical.
Clean restrooms, well-stocked vending machines, comfortable and clean lunchrooms, and secure, well-lighted parking areas speak louder than dozens of meetings about why a union is unnecessary. Another common-sense approach is to publicly recognize employee achievements and be flexible with workers when a personal or employment-related crisis occurs.
Personnel policies are another tool you can use to your advantage. The law requires you to adopt and implement antidiscrimination and antiharassment policies. It makes sense to emphasize them, not only because doing so helps to reduce exposure to civil liability but also because they can be reassuring to employees who might otherwise think they need a union for protection.
For those who can afford to do so, “quality of life” policies on subjects such as paid parental leave, flexible scheduling, and work-from-home opportunities can be a deterrent to union organizing. Another way to show employees they don’t need a union is to strive for fair and consistent application of your polices, especially disciplinary policies.
If, despite a proactive approach, you learn an organizing campaign is underway, there are several ways to deal with the problem. The National Labor Relations Act (NLRA) imposes some limitations on what can be said (which are beyond the scope of this article), but generally speaking you have wide latitude to persuade employees not to support unionization.
The traditional approach has been to coach managers and supervisors about what needs to be said (or not) and then encourage them to communicate with employees in small groups. At times, larger meetings can also be effective. Recently, there’s as much or more focus on communicating remotely with employees about the pitfalls of unionization. The point to take away: With the benefit of some legal advice about the National Labor Relations Act (NLRA), you as an employer can make your case against having a union if you decide to do so.
Incorporate ‘No-Strike,’ ‘No-Lockout’ Clause
If a union does organize, you should ensure the CBA includes a “no-strike” and “no-lockout clause.” A “no-strike clause” prohibits a union from calling for, participating in, or condoning a strike or picketing activity. A “no-lockout” clause precludes an employer from engaging in a lockout. A lockout occurs when an employer withholds work from an employee to obtain more desirable outcomes for the employer in connection with collective bargaining. The inclusion of a “no-lockout” clause may be for the purposes of reaching an agreement with the bargaining unit. The union isn’t likely to agree not to strike unless the employer also agrees not to lock employees out.
The problem with “no-strike” clauses is that they expire when the contract expires, so the union can go on strike if there’s no agreement reached before then. But “no-strike” clauses are still valuable. To understand why, keep in mind that there are two types of strikes: ULP strikes and economic strikes.
ULP strikes protest ULP charges against employers. Economic strikes are intended to exert pressure on employers to offer certain economic benefits to employees.
Over the course of decades, cases have made it clear you can discipline employees, and seek damages from unions, that participate in economic strikes in violation of “no-strike” clauses. It’s somewhat less clear how far “no-strike” clauses go in protecting you against ULP strikes, but as a general proposition, only a proven and serious ULP will shield employees and unions from the consequences of striking in violation of a “no-strike” clause.
Appear ‘Ready’ For A Strike
The NLRA may prohibit you from doing and saying certain things that have a chilling effect on union supporters (such as making threats or promises, for example), but it doesn’t prevent you from preparing for and being ready to continue operating through a strike. Few things can deter a strike as well as the perception it won’t stop you from doing business successfully without striking employees.
There are many ways to do this. Advancing scheduled preventive maintenance will imply you are anticipating what needs to be done to be ready. Likewise, working extra shifts, causing inventory awaiting shipment to grow, is one time-tested method.
Less subtle is a tour of the plant and the grounds with representatives of a security company. Nothing need be said. Employees will readily conclude you are getting ready. Another logical step is to let it be known you are stocking up on food and other supplies needed to sustain nonstrikers on-site so they can work without having to cross picket lines.
Employers interested in sending an even stronger message can let it be known contacts are being made with companies that can provide replacement workers. Again, there’s no need to say anything about this. The action itself speaks volumes. This may cause the union to pause and consider that employees who participate in economic strikes can be replaced. In these circumstances, a strike can prove to be a union’s undoing.
Implement Bargaining Strategies
If you want to avoid a strike, start early, meet often, and come prepared. Typically, parties start with easier issues and gradually work their way toward the more difficult ones. That isn’t a problem, provided that when the logical opportunity to speak to a difficult issue (employee contributions toward the cost of health insurance, for example) arises, you address the issue head on and support your position with facts. You don’t want to appear as though you are avoiding the delivery of bad news, particularly when it’s related to sensitive subject matters. U.S. Bureau of Labor Statistics data, survey results, and information gleaned from other CBAs with similarly situated employers can prove to be valuable resources.
Often, the message an employer delivers at the bargaining table is lost or distorted by the time it reaches the membership. The NLRA prohibits “direct dealing,” which means you cannot try to circumvent the union and bargain with employees. It doesn’t prohibit sharing factual statements about the status of negotiations. Sometimes this can be a fine line to walk, but with counsel’s assistance, you can use communications with employees as another means to avoid strikes.
Managers and supervisors, particularly those first-tier managers and supervisors who engage often with employees, should be educated on how to communicate so they don’t threaten or promise any employee regarding any impending strike, even accidentally. Their actions may be imputed to management. Moreover, any change to employees’ working conditions in a collective bargaining relationship could be characterized as a unilateral change, so it’s important to educate managers and supervisors about how to avoid changes that add to the probability of a strike.
The best way to prevent a strike is to avoid the formation of a union. If a union does organize, however, there are several measures you can take to avoid a total work stoppage. Most importantly, you should take your obligation to bargain with the union seriously by starting early and doing it often.
Alyssa L. Lazar is an attorney with Steptoe & Johnson PLLC in Bridgeport, West Virginia. You can reach her at 304-933-8127 or email@example.com.