The Union Is Knocking at My Door: What Can I Say?

Any employer who has been through an initial union organizing drive is probably familiar with the mnemonic “TIPS.” During a union organizing drive an employer’s managers should avoid:

• Threats
• Interrogating employees about their pro- or anti-union leanings
• Promising benefits if employees will vote against a union
• Soliciting grievances from employees in an attempt to fix problems the union may be using in its campaign propaganda

Once an election petition has been filed with the National Labor Relations Board, so-called “laboratory” conditions go into effect. An employer that engages in unfair labor practices that ruin those “laboratory” conditions can have an election victory reversed and a re-run election ordered or - even worse in rare occasions - be ordered to bargain with a union despite its election loss.
Unions customarily file as many unfair labor practice charges as possible during a campaign - and often regardless of their merits - as a kind of insurance in the event of a loss, particularly a narrow one. The hope is that the National Labor Relations Board will be impressed with - and issue a complaint regarding - at least a few. The hope, too, is that such charges will intimidate the employer and union opponents into silence.

What can an employer legally say during the course of a union organizing drive? Actually, quite a lot - so long as is truthful and non-coercive. Among other things, an employer:

1. Can legally state that it prefers to deal with its employees directly rather than through an intermediary union - and that, under the law, it will be prohibited from doing so if a union is elected
2. Can educate employees about the risks of unionization by providing them with truthful information about the process of “good faith” collective bargaining - and the rights and responsibilities of both employers and unions under the National Labor Relations Act
3. Can educate employees about what can happen when parties cannot reach agreement - including the nature and risk of strikes and their costs to employees and their families
4. Can educate employees about union dues and the provisions of a union’s constitution
5. Can educate employees about incidents of corruption, embezzlement, and violence by union officers and agents

Naturally, an employer who becomes aware of a union organizing drive going on with its employees should consult with professionals trained in the law in the area who can help craft a legal campaign strategy, provide training for managers, and review messaging for compliance with the National Labor Relations Act. Particularly in today’s favorable regulatory environment for unions, employers cannot afford to be silent. By the same token, however, the wise employer should think before it acts or speaks out at what can often be a “make or break” managerial crossroad.