Federal Law > Unions > Preventing Unions

Preventing Unions

Section 7 of the National Labor Relations Act provides that it is the policy of the United States to protect the right of employees for:
". . . self organization, to form, join or assist labor organizations and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection."

In turn, the Act made it an unfair labor practice for an employer to "interfere with, restrain or coerce employees" in the exercise of those guaranteed rights. With those simple statutory provisions, the battlelines were drawn between the collective rights of employees to form and join labor organizations and the employer's desire to persuade employees not to unionize.

Reasons why employees join unions. More often than not, employees seek union representation because their needs are not being met by management. Among the most prevalent needs which can encourage employees to join unions are the following:

1. Interest in increased levels of compensation.

2. Desire for better benefits, including health, life, disability, retirement, as well as ancillary benefits such as sick pay, vacations, holidays, etc.

3. Uniform, consistent and nondiscriminatory treatment by supervisors and managers.

4. Opportunities for advancement.

5. Stability in employment and protections against reductions in force.

6. Safe and healthful working environment.

7. Opportunities for training and additional responsibility.

8. Increased bargaining leverage in addressing complaints and concerns with the employer.

9. Greater sensitivity to the concerns of the work force by management.

Preventive steps for union avoidance. Recognizing and addressing employee needs is a critical task for any company who wishes to avoid unionization. In order to successfully head off potential interest in a union, management must periodically audit its labor relationships with its employees. In doing so, a company should review the following issues to insure that the needs of its employees are being adequately addressed by management:

1. Company wages and benefits

a. Wage rates and compensation levels for employees: Insure that they remain competitive with other employers in the industry.

b. Insurance and other benefits: Again, comparability and equity with other similarly situated employers in the industry is critical.

c. Review of policies on payment for time not worked: Vacations, holidays, sick leave, and personal leave.

2. Review of company rules, including the following:

a. Restrictions on distribution of written material by employees and solicitation of employees.

b. Absenteeism and tardiness.

c. Reporting illnesses.

d. Falsification of records.

e. Work rules and company disciplinary rules.

f. Grounds for termination of employment.

3. Miscellaneous company policies and information, including the following:

a. Company history.

b. Review of management's "open door" policy advocating that unionization is not necessary in order for management and employees to communicate and work well together.

c. Personnel records.

d. Handling of complaints and grievances.

e. Work hours and overtime policies.

f. Safety issues.

g. Charitable contributions.

h. Miscellaneous policies.

No solicitation/distribution rule. In order to maintain some control over the potential distribution of materials and solicitation of employees within the work place, the employer is well advised to insure that its work rules accomplish the following:

a. Outsiders (non-employees) may be totally prohibited from distribution or solicitation on company property if other reasonable methods of communication exist.

b. Employees may be prohibited from distributing material in working areas during working or non-working time. They may not be limited from distribution on non-working time in non-working areas.

c. Solicitation of employees may also be limited to non-working time and non-working areas.

Techniques for effective employee communications. Employers should work diligently to keep open the lines of communication between management and members of the work force. In addition to promoting "open door" policies and urging supervisors to be accessible and empathetic listeners, employers should also look for opportunities to utilize the following communication techniques.

a. Employee newsletters.

b. Regular small group or company meetings.

c. Benefit meetings and financial planning session.

d. Social events.

e. Strategic planning sessions: departmental and company.

Employers should be careful to avoid structuring employee participation committees which address employee grievances. Case law has been rendered which disallows employer controlled committees which deal with employee complaints. An employer should consult with counsel if contemplating using committees which address concerns other than productivity and efficiency issues.

Managers who encourage unionization efforts. Aside from concerns over wages and benefits, the second most common reason for unionization is unsatisfactory supervision. If management is overbearing and not receptive to their needs, the employees are much more prone to search for some "muscle" to bring to bear in the relationship; that is, an organization like an outside union who will "force" management to listen to the employees' concerns.

There are a number of different personality types of managers who may tend to encourage unionization efforts on the part of employees. Some of those more recognizable types can be described as follows:

a. The "Heavy-Handed" Manager: This manager is one who abuses his/her supervisory powers and intentionally oppresses employees under his/her supervision. This style can be described as dictatorial, militaristic, arbitrary, and abusive.

b. The "Buck-Passer" Manager: This supervisor is insecure in the management role and as such, he/she may be constantly critical and unsupportive of management, undercutting the company's position in an effort to "look good" to the employees.

c. The "Forked-Tongue" Manager: This person speaks out of "both sides" of his/her mouth, playing favorites and being extremely inconsistent in decisions.

d. The "Game-Player" Manager: This person keeps his/her employees constantly guessing by making promises or offering benefits that are not kept.

e. The "Foul-Language" Manager: This manager castigates employees with profane and abusive tirades.

f. The "Lover-Boy (Person)" Manager: This manager attempts to mix business with pleasure, romancing or playing favorites with some employees and letting the other employees bear the brunt of his/her inconsistencies.

g. The "I Don't Give a Darn" Manager: Has lost his/her desire to actively supervise to promote the best interests of the company and the "who cares" attitude is apparent to everyone who comes in contact with this manager.

Each one of these types of managers helps to create the type of environment on which unions thrive. Aside from promises of elevated wages and benefits, unions are most effective when they encounter an environment plagued with supervisory problems and inconsistencies. As such, an employer truly interested in avoiding unionization must develop a supervisory staff which is empathetic, knowledgeable about employee concerns, consistent in enforcing company rules and procedures, and flexible enough to address employee complaints when they occur.

Selecting "Union-Free" employees. Critical to maintaining a union-free environment is the selection and retention of employees who strongly identify with management ideals, objectives and long-range goals. When hiring employees to ensure that a union-free environment is maintained, employers should be aware of the following three guidelines:

1. Utilize "consensus" multi-layer interviewing. Involve key individuals within the management ranks in interviewing and reviewing applicants in order to share and compare impressions and notes on the prospective employee.

2. Where possible, attempt to balance and mix the work force with a cross section of different types of employees in order to avoid the creation of groups or cliques which might be prone toward collective action.

3. Question applicants to determine the nature of their previous relationships with co-employees and managers. An applicant who has a history of difficult or antagonistic relationships with supervisors or who exhibits a general disdain for management would be a likely target for a union anxious to pit employees against the company. Following up with former employers and checking references is also a critical step for an employer who wishes to avoid hiring someone else's problem.

Employee types prone to seek union representation. Just as there are certain types of supervisors who tend to "encourage" unionization efforts, there are also certain types of employees who are most likely to be exploited by union promises. Among the most readily identifiable personalities are the following:

1. The "Marginal" Employee: The employee whose job performance is so weak that promises of union job security are attractive.

2. The "Rebellious/Defiant" Employee: This personality wants to fight and the opportunity to gain an ally (the union) in the fight against management is always attractive.

3. The "Disenchanted" Employee: Decisions by management "have never worked, they're not working now, and they never will work," prompt this employee to be very receptive to union claims of "pie in the sky".

4. The "Bleeding Heart" Employee: This employee is attracted to "causes" and the claim of the underdog. When the union pleads the "cause" of the overburdened worker, this employee is anxious to jump on board the union band wagon.

Costs of unionization. There are two very significant costs of unionization: Increased operational costs and loss of managerial control. These costs alone are two critical reasons for an employer to avoid unionization wherever possible.

Increased costs of operation. Without question, the costs of running a union shop are higher than operating non-union. Although the precise amount of the increase will differ depending upon the nature of the relationship with the union and the terms and conditions of a particular bargaining agreement, the increased wage, benefit and administration costs are not welcomed by management. In addition, a number of contingencies, such as strikes, slow downs, sympathy walkouts, and other union-related problems, can substantially harm an employer's productivity and profitability. Even putting aside the financial losses accompanying such problems, the existence of an antagonistic employer-employee relationship can destroy years of cooperation and can harm the future efficiency of the business operation.

Loss of managerial control. Any time a third party intervenes in a relationship, the relationship changes. When third-party intervention in the employment relationship is a union, the employer must deal exclusively with the union as the employee's representative.

Because of the broad nature of mandatory subjects of bargaining under the NLRA, an employer must negotiate with the union concerning a variety of topics, including work rules, shift schedules, and other topics which were previously within the exclusive domain of management. Often times, management is also required to divert managerial resources to fill staff positions to deal exclusively with the union relationship. Personnel and legal costs are augmented and management also loses the spontaneity and flexibility associated with decisionmaking in a non-union operation.

Voluntary recognition of a union. An employer may voluntarily recognize a union as the bargaining representative for its employees, thereby foregoing an NLRB conducted election. However, most employers much prefer to have the union declared as the majority representative through the verified NLRB election procedure.

To recognize or not to recognize. There are some limitations on an employer's right to voluntarily recognize a union claiming a majority and also upon the union's right to seek such recognition. An employer will violate Section 8 (a)(2) of the Labor Management Relations Act which prohibits employer support, domination, or interference with the formation or administration of any labor organization should the employer recognize or enter into a bargaining agreement with the union which does not actually represent a majority of the employees. Such a violation will exist even if the employer has done so in good faith believing the union claim that it represented a majority of the employees. In addition, the minority union so recognized also violates Section 8 (b)(1)(A) of the LMRA when it enters into a contract with an employer under such circumstances.

Polling and card checks. To avoid a finding of these violations, employers and unions use a variety of methods to ascertain the union's majority status, including petitions, polling of the employees conducted by a third party, secret ballot poll, interrogation, a handcount poll, or verification of authorization cards by a third party. An employer should carefully consider whether it wishes to check majority status by reviewing authorization cards or otherwise polling employees. Should the employer affirm majority status, the employer may not disavow the results of the verification. By utilizing this method, the employer is precluded from exercising certain rights that would have been available had an NLRB conducted election been held. (i.e., filing objections to the election, the conduct of any poll, etc.) In addition, if an employer voluntarily recognizes the union, the employer is burdened by the same obligation to bargain in good faith as if the union had been validly declared a bargaining representative through a board certified election. Even if unionization appears to be imminent, a cautious employer will consult with counsel and utilize the board's election machinery to gain assurance of the union's majority status.

Union organizational techniques. Generally, unions attempt to keep organizational activity secret as long as possible. The union needs at least 30% of the eligible employees within the targeted bargaining unit to sign authorization cards before the NLRB will process a petition for an election. Most of the time, unions seek signed cards by at least 50% of the employees in the unit. Unions often ask supporters to keep the organizational drive quiet in the hopes that as much support as possible can be gathered before the employer learns of the campaign and launches its own anti-union campaign.

Hitting the soft spots. Union organizers attempt to obtain as much information about the company as possible, particularly focusing upon soft spots in the company's organization. If the company's wages are not comparable with competitors, benefits are less than are typically offered in the industry, or supervisors are heavy handed, the union wants to learn about those issues so it can "sell" the employees. Unions will often attempt to target an outspoken employee to lead the organizational drive within the company. The employees targeted are typically those most disenchanted with the company, most receptive to the union, and, hopefully, employees who carry some credibility and visibility within the targeted bargaining unit.

Time is of the essence. Once an employer "gets wind" of the union's organizational effort, time is of the essence. The company must move quickly to identify the primary issues of concern to the employees, the extent of the union's organization, and the campaign techniques and messages which the employer will use to combat the union's campaign. Many times, valuable information about the union's efforts can be gathered by supervisors who are simply good listeners. Employees sympathetic to the company will offer information concerning the unionization efforts. As such, representatives of the employer can quickly become acclimated to the union's tactics by simply being in touch with employees.

After the union gains a few supporters, it will quickly attempt to organize employee meetings and other gatherings to pull additional supporters on board. Sometimes unions attempt to win over employees with free meals, refreshments and extravagant promises about the tremendous wages and benefits which the union will bring to the work force.

Beware of the "Bandwagon" tactic. As the union gathers additional supporters, it will frequently attempt to use peer pressure to force other employees into signing authorization cards requesting that the union represent their interests. Employees who have signed authorization cards and are leaders in the union organizational effort will use sarcasm, intimidation, and other types of pressure to force other employees on the union "bandwagon". Some employees who are not interested in the union succumb to the pressure and ultimately sign cards in the initial stages of the campaign.

Campaigning. Once an employer becomes aware of the union drive, the employer must quickly identify the most critical issues and begin disseminating information to the work force to combat the union's misrepresentations and promises. Often times, the most critical information offered by an employer during the entire campaign process is the information given in the first employee letter or workforce meeting called to address some of the union rumors. While not necessarily using the same inflammatory rhetoric used by the union, the employer must clearly and carefully convey to the employees that the company does not wish to become a union shop. The employer must not be shy about conveying its sentiments about the union or the employees may gain the misconception that the employer really doesn't care if the company does become unionized.

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