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Tagged with: Employee Communication
No doubt about it. When a union organizing campaign starts, employee communication during union organizing suddenly seems treacherous. There are legal restrictions on what your leaders are allowed to say, and employees are anxious throughout the process. The employees supporting unionizing are watching and listening for signs that your leaders are conducting unfair labor practices. The employees who don't support the union organizing campaign spend their time trying to avoid conflict with those who do. Complicating communication even more is the variety of workplace structures that exist today and the variety of employee communication preferences. Fortunately, many communication tools and strategies are available that give employers a legal voice before and during a union organizing campaign.
It may seem like employees have all the rights during a union organizing campaign. Just recently, an NLRB decision in the case of Sunbelt Rentals saw the Board return to a 1964 case (Johnnie's Poultry) that established a standard for employers interviewing employees in preparation to defend against an Unfair Labor Practice (ULP). The pro-union NLRB and Administrative Law Judge said they did so because employees need protection due to "the strong possibility of coercion in an employer interview about unfair labor practice issues." Before this 2022 case, some courts did not strictly rely on whether the standards established in Johnnie's Poultry were met and instead used a totality of circumstances test. The NLRB rejected the totality of circumstances test as insufficient for considering the risk of employer coercion during questioning and because the test relies on an after-the-fact analysis.
The Johnnie's Poultry standard says, "The employer must communicate to the employee the purpose of the questioning, assure him that no reprisal will take place, and obtain his participation on a voluntary basis; the questioning must occur in a context free from employer hostility to union organization and must not be itself coercive in nature; and the questions must not exceed the necessities of the legitimate purpose by prying into other union matters, eliciting information concerning an employee's subjective state of mind, or otherwise interfering with the statutory rights of employees."
The use of the word "coercion" makes the NLRB perspective clear. Every union organizing campaign will involve ULPs, and there is more than one way to commit them. The NLRB issued a complaint in October 2022 against Apple after the Communications Workers of America claimed Apple tried to prevent union organizing at Apple's World Trade Center New York store. Apple management was accused of surveilling and interrogating staff, restricting the placement of union fliers, and requiring employees to attend anti-union speeches. The prior spring, Apple "equipped store managers with talking points that emphasized that joining a union could result in fewer promotions and inflexible hours. It also said it would increase wages to $22 an hour from $20." The CWA also said that employees were required to attend captive audience meetings (mandatory meetings), which General Counsel Jennifer Abruzzo has said she wants to be ended because they are coercive. Numerous ULPs filed by employees claim their companies violated Section 7 & 8(a)(1) of the NLRA by threatening or conducting retaliation, discharge, and/or discipline.
Section 7 of the NLRA guarantees employees "the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection," as well as the right "to refrain from any or all such activities." Section 8(a)(1) makes it an unfair labor practice "to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7" and lists various things employers can't do.
Seventy-five percent of the NLRA restrictions involve leadership's communication with employees. You aren't allowed to:
A significant issue is that the NLRB is changing decades-old labor law precedents on a case-by-case basis. What is considered coercion has changed as ULPs are filed and decided, and the changes are likely to accelerate as the NLRB's GC Abruzzo pushes her pro-union agenda. There are many other Section 7 & 8(a)(1) NLRA provisions, and it may sound like employers can't say much during a union organizing campaign. The truth is they can say a lot, but it must be worded correctly and delivered in the right manner and setting.
Some companies wait to develop a plan for communication during union organizing until they suspect union activity is taking place or find a union authorization card in paper or electronic form. Then they scramble to design the employer's response, making it more likely that communication mistakes are made, or gaps are left in the communication process. The plan for communication concerning union organizing should consider points like the following.
Include messaging in the onboarding process - The first point to keep in mind is that your onboarding process should share the company's perspective on unions. You can explain exactly why you believe labor unions are unnecessary. This proactive approach applies to union and non-union companies with the wording adapted to the situation. If an organizing campaign starts, you are ahead and not behind.
Consider your corporate structure – The COVID pandemic significantly influenced the workplace structure. Gallup statistics reported 2019 pre-pandemic locations vs. anticipated locations in 2022 and beyond.
When making a plan for communication during union organizing, you also need to consider where and when employees work. The communication plan will identify the appropriate tools for reaching all employees.
As you develop your communication plan, you must determine which communication tools will ensure that all your employees receive your messages. You don't want any communication gaps, and you want consistent messaging.
Develop a Readiness Response Team – When you determine your employees are talking about labor unions, your leaders need to respond immediately. The earlier you detect signs of union organizing, the better. Your goal is to communicate the facts and risks associated with unionizing in such a convincing way that no more than 30 percent of employees sign union authorization cards. If more than 30 percent sign the cards, they can force an NLRB-managed union election.
This is a delicate time because there's a temptation to panic. Panic leads to mistakes. If you have a rapid response team, the team members can help your organization determine the risk level and the appropriate response to the assessed risk level. For this reason, the readiness response team needs formation before a labor union is active in your organization. It should include supervisors and managers from each of your operating functions, Human Resources professionals, your labor relations professionals, external media and internal communication professionals - including internal marketing. Including a media/marketing person in the early stages of potential unionization can help your organization develop the right message to send to the public should it become necessary.
Since the readiness response team members are not employees as defined by the NLRA, they can answer questions about any union activity they may have seen and why they believe some employees may be interested in forming a union. One of the reasons the rapid response teams have representatives from across the organization is that you don't know in advance which employees may decide to begin talking about the benefits of joining a union.
The SHRM points out that some of your supervisors and managers will worry that admitting they know about union activity will reflect badly on them, and senior leaders will view them as the source of dissatisfied employees. The team members need reassurance that this isn't true. Says SHRM's Jonathan Segal, "When employees feel comfortable sharing their concerns about union organizing with a supervisor, it may be a sign of trust and respect."
Train your leaders on what they can and can't say – There are two parts to training your leaders on communicating with employees about unions: TIPS-D and FLOP rules and training the readiness response team.
Starbucks Workers United has accused Starbucks in several ULPs of applying its policies to discriminate against employees involved in a union organizing drive or who voted to unionize. The company always appeals the decisions, but win or lose, ULPs cause low employee morale and low employee engagement.
You can assemble a readiness response team, train the members on labor law, and then wait for signs of union activity. However, the team members need their training regularly reinforced and on more than labor law. You will decide the role of the team, when the team will act, and the tools they will utilize. The training you provide will support the team's assignment and should be regularly reinforced based on what is happening in the industry, current and changes to labor law, and labor union activities.
However, the training should also focus on real-world scenarios. In many ways, communicating during union activism or a union organizing drive is an effort to improve employee engagement. What types of conversations are your leaders likely to engage in with employees? What communication comfort level should be reached so that your responding team members are not taken by surprise and say the wrong thing? Do your leaders know how to identify the real issues when speaking with employees?
Your organization's communication during union organizing depends on your leaders not making communication mistakes that violate the law, lead to ULP charges, or lead to employees deciding they do need to unionize. The communication plan you develop should provide the tools that support your leaders and send consistent information to all your employees. All your leaders need to be on the same page at all times. Without company messaging, employees will only hear what the union has to say.
A company website was once the main or only communication tool, but many tools are now available. You can utilize some or all of them to fit your corporate workforce structure. One of the challenges is selecting the best tools, and the second is ensuring the communication is consistent across all the tools. IRI Consultants has worked with many clients to help Human Resources, Rapid Response Teams, internal marketing professionals, supervisors, and managers develop a communication strategy for union organizing that employs various digital resources.
It's important to realize that employees can share anything you distribute to them – a social media post, a text, a website statement, etc. All it takes is a quick photo taken with a smartphone that is uploaded to social media or shared via email. All messages should be true to organizational values, protect the company's reputation, and demonstrate support for employee wellbeing.
Though digital communications are crucial in the age of technology, don't forget that face-to-face conversations with employees remain important. Your managers and supervisors who have developed strong positive employee relations with their employees are the people who can leverage those relationships to hold honest conversations and support employees who don't support unionizing. An employee who recognizes the union's messaging is not always based in reality, is appealing only to emotions, or is promising things that may not be achievable is someone who can influence other employees the most.
Town halls have also been very effective in recent years. They shouldn't be scripted because you will lose employee interest. If you don't have answers to the questions asked, follow up soon after the town hall.
Your communication during union organizing needs to adhere to some principles.
You can deliver small nuggets of education because that's how people like their information delivered today. They don't want long emails or videos. They want bits of information that are easy to digest.
The ultimate goal is to own the narrative about your company. You don't want a labor union creating a false story and gaining traction by appealing to people's emotions without facts. Work with our team of experts at IRI Consultants to develop a successful customized communication plan to address union organizing that supports your leaders and engages employees.
Walter is IRI's Director of Digital Solutions and founder of UnionProof & A Better Leader. As the creator of Union Proof Certification, Walter provides expert advice, highly effective employee communication resources and ongoing learning opportunities for Human Resources and Labor Relations professionals.