All Posts by Jennifer Orechwa

For many Human Resources and Labor Relations professionals, one of the best union-proofing strategies is developing a deep understanding of Section 7 of the National Labor Relations Act. This can come in handy during a union organizing drive, but even before you're certain there's a campaign, it's smart to know what can and can't be said or done.  Sections 7 and 8(a)(1) of the National Labor Relations Act work in tandem to define what is considered interference with employee rights and to give employees the right to choose.

Understanding the Minefield of Employee Rights

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." Section 8(a)(1) states that it's an unfair labor practice for any employer to "to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7" of the Act.

A key concept is "protected, concerted activity." The NLRB regularly posts its recent cases in which employees were fired, suspended or penalized for involvement in what the NLRB considers protected, concerted activity, which may or may not involve unions. Two or more employees who work together to improve the condition and terms of their employment are engaged in protected, concerted activity.

Under Section 8(a)(1), employers can't do anything that interferes with employee rights. The NLRB looks at employee complaints through the "chill effect" lens. Your managers don't have to outright ban union activity or discipline an employee to violate rights. It's enough to just discourage people. Workplace rules that seem to "chill employees in the exercise of their Section 7 rights" aren't legal, and these subtleties can be a minefield for companies working to maintain their direct connection with employees.

Violations in the Simplest Acts

Trying to stay on the right side of the law, a company could quickly become mired in the hundreds of NLRB board decisions covering the employee complaints surrounding unionization - from unlawful termination to violations of protected, concerted activities. On June 6, 2017, a decision and order was issued in a case between Jacmar Food Service Distribution and Teamsters Local 630 (Case 21-CA-193952). This was a refusal-to-bargain case because Jacmar contested union certification.

The company admitted it refused to bargain but said the election process wasn't fair and valid because the union used coercion, didn't give employees opportunities to exercise free choice, and held an election that wasn't neutral and didn't protect the ballots and election process. The NLRB concluded that when they refused to bargain with the union, the employer engaged in unfair labor practices, even though it presented strong evidence against the union's representation of workers.

On March 21, 2017, in the case of In-N-Out Burger, Inc. and Mid-South Organizing Committee (Cases 16-CA-156147 and 16-CA-163251), the employer was found to have violated employee rights by prohibiting employees from wearing buttons and insignias pertaining to wages, employment conditions, hours, unions or other protected activities. The employer had to amend its policies to allow the wearing of these items and advise employees of the policy changes.

Checklist of Section 7 'Dos and Don'ts'

Companies do have rights before and during a union organizing campaign, but the NLRB has bent over backwards to liberally interpret what is protected, concerted activity in order to encourage and support union organizing efforts.

Employers may never:

• Threaten or employ undesirable consequences if an employee supports unionization: i.e., threatening to demote or terminate or take away benefits
• Threaten employees with punishment for engaging in protected, concerted activity
• Make promises of rewards to employees if they vote against unionization or to decertify
• Change Human Resources practices during a union organizing campaign to punish employees involved in unionizing: i.e., withholding benefits or refusing to give a previously planned wage increase, etc.
• Coercively question a union-supporting employee or co-workers about their union activities
• Survey employees to find out if they support unionization, forcing them to respond under the threat of reprisals
• Conduct an employee survey, making it public knowledge as to who did and did not support unionization
• Spy on employees to determine what union activities they're involved in
• Make employees fearful by doing things like videoing or recording employees engaged in protected, concerted activities
• Write employee handbook policies and rules designed to discourage employees from exercising their Section 7 rights
• Prohibit employees from wearing pro-union buttons, insignias and T-shirt graphics
• Issue policies that prevent on- or off-duty employees from accessing working or non-working space as a group in order to specifically make it more difficult to meet
• Actively solicit employees to sign or approve a decertification petition

• Discipline an employee primarily for the reason the person engaged in protected, concerted activities
• Tell employees they'll be forced to strike in order to get employer concessions
• Make inaccurate statements about the union
• Visit employees in their homes to discourage a vote for unionization
• Prohibit the distribution of only union-related materials in specific areas: i.e., allowing nonprofits to post materials on bulletin boards while restricting unions
• Prohibit union solicitation during work hours, except when the employee is expected to be working and is in a working area
• Write a policy that prohibits distribution of materials of any kind on any company property because employees have the right to distribute materials during non-working time and in non-working areas

You can:

• Inform employees of the company's opposition to unionization
• Describe the benefits employees already enjoy, the employer's history of paying fair wages and the fact that union bargaining could impact current salaries and benefits in the future
• Forecast fact-supported potential impacts on the company, if the workforce unionized
• Inform employees they don't have to join a union
• Tell employees they don't have to talk to union organizers at work or at home
• Describe the disadvantages of unionization, including the cost of dues, and the fines and fees typically assessed by the union against employees
• Inform employees that union strikes can lead to loss of a job because they may be permanently replaced
• Describe fact-based union activities and union official backgrounds that demonstrate the union's frequent lawlessness: i.e., threats against employers, arrest records of union representatives, employer property damage cases, etc.
• Inform employees they aren't required to vote for unionization during the election, even if they signed a union authorization card
• Point out any misleading statements about the employer or union benefits
• Prevent non-employee union supporters from accessing private property, as long as the union has other ways to contact employees

One highly effective way to make sure your messages to employees are consistent and within the law is to communicate these things using a custom-produced video or website.

Staying on Top

The NLRB has regularly used employee complaints to support an agenda that leans toward unionization. These decisions put an additional compliance burden on employers, which is why many companies seek expert help when developing employee communication systems and training programs. Labor law has become too complex to manage without professional assistance, and we highly recommend consulting a labor attorney when questions regarding Section 7 rights arise.

The formation of a volunteer organizing committee (VOC) often signals the start of an effort to unionize a workplace. As an employer, you cannot interfere with a VOC or prevent your employees from engaging with VOC members, but you can take actions to prevent employees from feeling the need to organize in the first place, or if it's too late for prevention, you can adopt a strategy and techniques to improve relations with your workers.Volunteer Organizing Committee - DefineA VOC is made up of non-management employees, ideally, employees are drawn from all areas of the organization and representative of the demographic diversity of the workforce. VOC members are either already union members or wish to become union members. The VOC typically works in conjunction with the local union and dedicated union organizers, acting as the union's eyes and ears.

Purpose of the VOC

The specific purpose of a VOC depends in part on whether the workplace is already unionized or not. For an open shop, the VOC might mobilize to add new union members or to increase participation among the current members. In a non-union workplace, a VOC is typically formed to focus employee energy on moving toward union certification. A VOC might also be formed in preparation for contract negotiations or to mobilize around a key issue.

What the VOC Does in Non-Union Workplace

VOC members in workplaces not yet unionized primarily function as informants to the union organizer, keeping the organizer up to date on the issues fellow workers care about. VOC members gather a great deal of information needed for establishing a bargaining unit and to better tailor union efforts to the group's precise interests. Information gathered includes:

• Details about the company's structure, ownership, services, policies, and operations
• The layout of the workplace
• Information about the employees to be organized
• Positions and pay rates
• Issues employees are concerned about
• Identity of any law firm or consultant that represents the employer
• Questionable activities by supervisors that relate to the organizing campaign

The collection of union authorization cards through the VOC is the most effective method. Members start with solicitation of immediate co-workers and then spread out to more remote employees as the campaign toward unionization progresses.

Another important role of the VOC is to be a constant union advocate on the job site to fellow employees, reminding them of the promises union organizers have made.

Reasons Employers Should Care About a VOC

The formation of a VOC indicates that at least a fraction of the workforce wishes to join a union. More importantly, a VOC can indicate that employees have problems that are not being solved or issues that are not being addressed.

Remember that employees have the right to form and participate in a VOC as well as be involved in union activities. In your interactions with employees, be mindful of the prohibited actions on your part, and avoid comments or acts that discriminate against VOC members, penalize them or other employees interested in the union, or otherwise interfere with the union organizing.

Proactive Steps Employers Can Take

To keep your operations union-free, consider the following proactive steps so employees don't feel the need for union representation:

• Assess employee satisfaction levels, ideally through an objective workplace audit. Listen to employee feedback, and maintain open lines of communication.
• Implement policies that prevent third-party involvement in your workplace, including policies that address visitors at work, distribution of literature, and solicitation of fellow employees. Be sure to consult your legal counsel and see these are in place before any organizing activity.
• Train management on labor law and unions to help supervisors avoid making mistakes or violating labor laws on management conduct.

The following checklist is designed to assist employers in implementing the current changes in representation case processing. Employers should consult their labor attorney for specific details related to the proceedings.

In recent years, in order to increase membership, labor unions have turned their attention toward representing workers not typically represented by labor unions -- and they often start by targeting the most vulnerable positions in any given organization. In higher education, that means part-time, or adjunct, professors.

America's colleges and universities have begun operating like corporations, lowering the number of tenured positions and leaving less-than-desirable options for adjunct faculty. In fact, some instructors make less than minimum wage. In response, many adjunct professors have voted to join labor unions, to address issues of low pay and lack of benefits, among other things, sometimes striking for their cause. But can a labor union truly solve the problems facing adjunct professors?

The Divide Between Adjunct and Tenured Faculty

In 1975, 30 percent of college faculty were part-time. By 2011, 51 percent of college faculty were part-time adjuncts, because over the years, the number of tenured positions has declined. Adjunct professors typically earn between $20,000-$25,000 per year, which, compared to the average annual salary for a full-time professor ($84,303), or to that of a full tenured professor ($139,620), makes it clear how this trend has benefitted universities, to the detriment of their professors. In addition to low wages, adjuncts are subjected to a life in the teaching profession characterized by the following:

• Teaching multiple courses at different universities
• Experiencing uncertainty about future course offerings
• Often living in poverty
• Not having healthcare and other benefits
• Often being excluded from faculty senates
• Lacking an office and other necessities
• Being treated indifferently by tenured staff

The Push to Organize

In response to the issues facing adjunct professors, some are now looking to a union contract to protect them. One research study reports that as many as 386,000 instructors have joined a labor union, and that number continues to grow. United University Professions (UUP) is believed to be the largest organized union for higher education, while the American Federation of Teachers (AFT) has claimed the spot as the largest union specifically representing adjuncts. Even the Service Employees International Union (SEIU), what began as a janitor's union, has jumped into the fray of academic representation.

Today, adjunct faculty at many universities, including Tufts,  Boston University, Northeastern University, Duke University and more have all joined unions in hopes of achieving beneficial union contracts, but that road hasn't been easy for some.  Adjuncts at Burlington College, for example, have been waiting on a contract since 2014, and those at Washington University have been waiting since the early half of 2016 -- and according to the Washington University's administration, the union is the blame for the ongoing delays.

Union Promises & Tradeoffs

As in so many other professions, labor unions promise help, but may bring unexpected problems for academics, upon arrival -- sometimes even before they're voted in. At Georgetown University, the SEIU faced claims of coercion during the campaign process and harassment after the contract was in place. Once a union gets in, there's no guarantee that they'll be able to make good on the promises they've made adjuncts, because everything must be decided through collective bargaining between the union and the school.

But even if unions were to consistently win at the negotiation table, getting what they want might come with some painful tradeoffs. For example: if unions representing academics across the US were to demand a consolidation of courses, in order to provide a full-time courseload and benefits to a portion of adjuncts, roughly 500,000 adjunct positions would automatically be lost, and that's only the beginning. A recent study reports that if adjunct professors were awarded the salary increase unions are currently targeting, the universities' costs could increase from $4.3 billion to $24 billion for courses currently taught by adjuncts. Tuition would skyrocket in response, forcing college enrollment figures into an even deeper decline.

So, can labor unions work for adjuncts?  Between 2013 and 2016, faculty and graduate students at nearly 70 schools have voted to join a union—that's a clip of nearly one school every two weeks, so time will certainly tell.  The issues facing adjunct faculty are real, but as has happened so often in the modern era, union involvement may bring with it more harm than good for its members. There is no one good answer for addressing this problem, but in general, as in business, it likely begins with communication, a commitment to employee engagement and education and by both administrators and adjunct faculty members coming together to find workable solutions.

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With national right-to-work legislation introduced by Republican lawmakers, many people want to know how right-to-work laws could affect their lives. Currently, there are 28 states that don't allow compulsory union membership, requiring workers to pay union dues. Missouri became the most recent right to work state in February, and polling suggests that most workers approve of eliminating union membership as a condition of employment.

While people against these right-to-work laws argue it encourages "free riders" in union workplaces, there are definite advantages for workers and companies who live in right-to-work states.

Right-to-Work States Encourage Economic Growth

Right-to-work proponents believe that these laws improve economic growth and allow workplaces to remain competitive in a global economy. Both companies and workers benefit from a better economy, as wages and corporate earnings increase. Studies have found that right-to-work laws increased manufacturing employment by approximately 30 percent. Many state legislatures have passed right-to-work laws in the hope of attracting new business to their state.

Critics have stated that determining how right-to-work policies truly affect a state's economy is difficult. They point to differences in state infrastructure and policies independent of right-to-work laws that may affect employment numbers. However, many of the states with the strongest economies are also right-to-work states.

Laws Exempt Workers From Forced Union Membership

Many unions collect $500 to $1,000 in dues per year from each worker. Without right-to-work laws, a worker may have to join the union at their workplace or find a different job. In non-right-to-work states, once 51 percent of the voting workforce votes to unionize, ALL workers must join the union and pay dues as a condition of continued employment.

Right-to-work laws allow workers to choose whether or not union membership makes financial sense for their individual goals. Some unions are also tied to political causes that an individual worker may feel uncomfortable supporting. Without compulsory union membership, companies can hire workers who aren't interested in union membership.

Unions Can Flourish in Right-to-Work States

Some right-to-work supporters argue that these laws can actually lead to stronger unions over time. By forcing the union to show constant value for their union fees, unions become proactive in addressing worker concerns. These laws also allow workers to leave the union if they feel that the organization is no longer meeting their needs.

Unions can flourish in right-to-work states. In Las Vegas, the Culinary 226 union represents nearly 100 percent of the workforce, composed of hotel housekeepers, all paying union dues. However, there is also evidence that right-to-work laws weaken unions, as some workers decide not to pay dues.

Companies Consider Right-to-Work Laws When Determining Where to Locate

Proponents of right-to-work laws say that companies often consider these rules when deciding where to locate their facilities. Unions are more common in states without right-to-work laws because union organizing is more profitable. Therefore, for companies that prefer to avoid unions, locating in a right-to-work state reduces the chance that a union will organize. If more companies become established in right-to-work states, workers have more choices when looking for work and more companies competing for their skills.

As right-to-work laws become more popular, it's important for workers and management to understand how they could potentially impact their workplace. Communication during this time is key, for both managers and employees, and UnionProof can be a valuable resource for educating managers and informing your workforce of how those laws will affect them. Of course, even if a federal right-to-work law is enacted, union membership may still flourish in some areas -- but companies and their employees may find distinct advantages to remaining independent, once union membership becomes optional.

As an employer, you want to have the resources in place to take immediate action if you detect authorization card signing or other signs of union organizing. Those resources may include relevant video messages and even launching a website, but those are just vehicles. What's actually most important is the content of your communications. Although you may need to tread lightly, know that your decisions and the approach you take to connecting with employees can greatly influence the outcome of any union organizing drive.

Before you begin to express your opinion, be sure that you thoroughly understand employee rights under the National Labor Relations Act. As long as you - and in turn, your leaders - take the right steps, you can effectively express your opinion without coercion.

1. Voice Your Opinion

You have the right to tell your employees that you would prefer to maintain your direct connection with them.  This may sound like dangerous ground, but your opinion matters, and at a time like this, the worst thing you can do is be silent. Your silence can easily be interpreted as implied consent, and employees might not even know that you care. Get involved, and communicate your concerns in an organized, forward-thinking manner.

Be direct and honest, addressing the fact that you do not believe your team would benefit from union representation. Remember to focus on the key disadvantages that matter to your company, including things like dues checkoff, work rules that favor seniority over merit, and the ever-present possibility of a strike. Back up your opinions with facts. For example, cite cases where a union has stunted an employee's professional growth based on seniority. Help employees understand that you have the best interests of the company and the future of every employee in mind.

2. Correct Politically-Motivated Misstatements

Because your employees could sign a union authorization card based on a union organizer's promise of higher wages, you must make sure to address the "promises" made. Your leaders should explain that promises are just that - and that in collective bargaining, employees could get more, but it's just as possible they'll have the same or even less when the union makes its own demands at the negotiating table. If the union is presenting other misleading information, it's vital you communicate that the NLRA assumes employees know the difference between promises a union makes (because they don't have the power to keep them) and promises an employer makes.

You can legally address union promises, highlighting the fact that a union organizing drive is essentially a political campaign. The union can always "out-promise" an employer, but after the election, nothing is guaranteed.

 For those employees who have already signed a union card (which, of course, you can't ask), let them know if the campaign comes to a vote, they can still vote any way they like, regardless of the card they signed initially.

3. Welcome Feedback

If your employees want to become part of the union, focus on why they're thinking that way. Open up two-way communication - in person, or even better, online - so your employees feel as though they have a voice. Offering an element of your website that provides a means for anonymous feedback can provide you with powerful feedback.

Be sure to address the feedback you receive in a constructive way - again, silence here is not an option. It's also not productive to get upset about things that employees may say - use it to your advantage! After all, there's a reason this organizing drive took root, and if you can address the heart of that reason, you're far more likely to avoid the cost of unionization.

4. Compare The Benefits of Staying Union-Free

Sure, there are some perceived perks when joining the union, but how do you currently measure up? Remind your employees about the benefits they currently enjoy, in comparison to companies that have been unionized.

For instance, if employees currently have a fair, well-liked supervisor, one with whom they interact successfully, remind them that they might no longer have this option. After unionization, they will need to bring any issues to a union representative. In other words, like it or not, employees lose their "one-on-one" connection to management.

RELATED: TIPS FOR RESPONDING ONLINE TO UNION ORGANIZING

5. Use Personal Experiences and Transparency to Your Advantage

As an employer, you may have had experiences with a union in your work life. Both you and your managers and supervisors can legally relate your personal experiences. Be honest and transparent, telling employees about what you've learned, and highlighting negative changes that you've seen occur after unionization. Employees may believe they will receive a pay raise, even though it isn't necessarily true; if you've been involved in a situation where wages actually dropped, use that personal knowledge to your advantage.

Educate yourself and your employees if you are currently facing a union-organizing drive. Begin by contacting your labor attorney and be sure to source accurate information. Try to be as proactive as possible, reducing your reliance on reactive decisions and actions.

Union drives can be a confusing and highly stressful time, but effective communication makes all the difference. Also, don't shy away from communicating well and often, especially when you believe the union will be a disservice to your employees.

Now that you're confident in what you intend to say, be sure to address how you'll communicate. Realize that there are a variety of options available, including not just personal meetings but also video, websites, and eLearning. Be sure to speak to employees with respect and welcome their responses based on their current concerns. After all, you catch more flies with honey -- and in this case, you'll want your employees to see that staying union-free is clearly the sweeter choice.