“We’re ready to take the offense for organized labor.  It’s time we have a President who didn’t choke saying the word ‘union.’  We need to strengthen our unions by letting them do what they do best: organize our workers.”  President Barrack Obama, November 13, 2007

It is beyond reasonable dispute that the current political environment is very pro-union.  In these challenging economic times, it is critical for employers to know the rules of what they can and cannot do to avoid the legal risk of being charged with an unfair labor practices.  The focus of this article will be to provide a checklist of suggestions for employers to consider in order to reduce the threat of workplace organization. 

What to Do:

·         Prohibit all in-person solicitation of any type during working hours on company premises.   However, it is unlawful to implement this sort of policy in response to a union organization’s presence on company property.  Companies should examine their current policies now to add a non-solicitation policy if one is not in place already. 

·         Enforce all non-solicitation rules consistently.  As with other laws governing the workplace, inconsistent enforcement of company policy can lead to an inference of unlawful action if a charge of an unfair labor practice is filed.  If an employer prohibits unions from coming into the workplace to solicit participation, it should also prohibit other organizations from soliciting. (Red Cross, Salvation Army, Boy Scouts, etc.).

·         Review your job descriptions to determine which of your employees are “statutory supervisors” as defined by the NLRA.  Explain to these employees that they cannot engage in union activity.

·         Instruct your management employees to report warning signs of union activity to upper management.  Warning signs can include both direct observations by supervisors, such as activity conducted in plain view, and indirect observations, such as questions from non-management employees about unions.  Caveat: Supervisors should be advised that they should not conduct surveillance of, or interrogate, the employees they supervise regarding possible union activity.      

·         Advise your employees that a union election can negatively impact their work environment.  The initial message should not be “reject the union.”  Instead, it should be “don’t make any decisions until you have more information.”  For example: “We hope you will exercise your legal right not to sign a union authorization card until you have all the information you need to make an informed decision.”

·         Frame any discussion regarding the potential impact of unions in terms of possibilities and provide concrete examples when possible.  For example, it is acceptable to advise employees regarding a union’s record relating to strikes, including how long the strikes lasted, and what results the union achieved, or failed to achieve.  Employers should use caution and speak in terms of how the union “could” impact employees and not the impact that it “would” have.

·         Inform Employees of the Risk of Loss of Their Ability to Communicate Directly with Management on an Individual Basis.  Many employers prefer a union-free workplace because they believe that, without unions, they are better able to communicate directly with employees on an as-needed basis. When a union is certified as the exclusive employee representative in a workplace, employees become members of an overall bargaining unit in which the majority rules.  Union leaders make decisions for all employees and may make decisions that individual employees believe are not in their best interest on a personal level.  Once a union is in place, individuals have little recourse if they disagree with the union’s conduct.

·         Explain the Economic Risk.  When a union calls a strike, employees: 1) receive no wages from the company; 2) must pay the full cost of their health insurance; and 3) can be replaced.  After the strike ends, employers of striking workers also have the right to continue to operate their businesses with permanent replacement employees.  If this happens, the best a striking worker can hope for is to be recalled if an employment vacancy opens up in the future for which they are qualified. Caveat: In discussing the potential risks of a strike with employees, employers must be careful not to suggest that a strike is inevitable.  This could be interpreted as unlawfully suggesting that the employer won’t bargain in good faith 

·         Remind them of the Cost of Union Dues.  Since Georgia is a right-to-work state, employees have the legal right to refrain from union membership.  However, an employee who refrains from joining the union still would be bound by any collective bargaining agreement reached by the union.

·         No Guarantee that Working Conditions Will Improve.  Although unions make many promises to potential members during the organizing process, employees should be advised that becoming a union member will not necessarily lead to increased wages, improved benefits, or better treatment.

What Not to Do :

·         Threaten employees with the loss of their jobs if they join or vote for a union;

·         Threaten to close the company if the employees select a union to represent them;

·         Question employees about their union sympathies or activities;

·         Promise benefits to employees to discourage their union support;

·         Transfer, lay off, terminate, discipline, assign employees to more difficult work tasks, or any other form of penalty to employees arising from their participation in union activities;

·         Transfer, lay off, terminate, discipline, or any other form of penalty to employees resulting from their filing unfair labor practice charges or participation in an investigation conducted by the NLRB.

If you need assistance in educating your management team regarding workplace union prevention, please feel free to contact Megan Noble at mnoble@deflaw.com or (404) 885.6142.