Leadership During Union Organizing: Would Your Leaders Make These Mistakes?

Positive employee relations are the foundation of a workforce that has a voice, shared values, purpose, and satisfaction with the workplace culture. Maintaining a direct relationship with employees not only promotes positive employee relations. It is needed to avoid unfair labor practices charges (ULPs) and makes labor unions unnecessary. How does it help you avoid ULPs? One of the steps in developing positive employee relations is developing leaders knowledgeable in current labor laws and how to make a direct connection with employees.   

Leaders unintentionally make mistakes due to a lack of information about labor laws, leading to expensive ULPs and damaged employee-management relationships. In the following sections, we summarize a few real-world ULP cases to better understand some of the mistakes managers make and how positive employee relations could have avoided many of the issues.    

Connecting Positive Employee Relations and ULPs 

Most of the decisions the National Labor Relations Board has made concern unfair labor practices, which can be attributed to leadership mistakes, lack of leadership knowledge, or confusion about current labor law. They probably haven't learned the TIPS and FOE rules. A ULP is a violation of federal law. In contrast, a grievance is a complaint about something in the workplace, like a belief compensation is unfair, safety rules are not strict enough, perceived unfair treatment by a supervisor, etc. If a company is unionized, a grievance becomes a violation of some aspect of a collective bargaining agreement.   

That is why it is important to have a formal grievance procedure, so employees have a path to express their issues (one aspect of employee voice) and can expect a management response. A formal grievance process in a unionized or non-unionized organization can help to prevent attempts to unnecessarily and wrongly elevate the grievance to a ULP, OR it becomes important evidence during a formal NLRB investigation as to whether your managers handled an employee complaint equitably and fairly. This is all part of maintaining positive employee relations because employees who have a voice, express an issue, and get a management response are less likely to file a ULP.  

Leadership during union organizing can be a field of landmines. Employers are sometimes found to not have conducted a ULP that was filed with the NLRB, but there is a much greater chance of being found in violation of the National Labor Relations Act (NLRA), given the pro-union focus of the NLRB. Similarly, dealing with a union (or multiple unions) when the workforce is already unionized can be a consistently sticky situation. What may seem like a reasonable policy, decision, or supervisor directive can quickly lead to legal problems and damaged employee-employer relationships. However, some cases are clearly due to organizational leaders at some level – from the CEO to the frontline supervisors – making decisions that violate labor laws or damage the direct connection with employees, which leads to unionizing.  

Case Studies of Leadership Mistakes 

The following NLRB Strategic Technology Institute, Inc. and the International Association of Machinists and Aerospace Workers, AFL-CIO (case 15-CA-249872) case is an example of numerous leadership mistakes made during union organizing and after employees vote to unionize. Many of the mistakes are due to leadership's lack of knowledge of how to maintain a direct relationship with employees, and many are due to poor leadership skills and lack of knowledge about labor laws.  

The leadership missteps accumulated over time, leading to the initial employee charges filed in October 2019. So many elements come into play - remote work, leadership communication, employee terminations, employee training, etc. Your leaders can make mistakes at any point during the employee experience.  

The Strategic Technology Case (STI) case is not officially closed as of September 2022 because the employer has filed a petition to review the Board decision. The petition for review says the Board failed to prove STI engaged in ULPs and failed to "establish anti-union animus or knowledge of union activity by STI management."  

First, here is some background information. STI program manager Boyd was located in Texas but remotely managed a maintenance contract team in Arkansas beginning in 2017. He never visited the Arkansas site until after some employees were terminated in 2020. In Arkansas, Kiihnl became a site supervisor in 2018. Boyd and Kiihnl never met before Kihnl resigned in 2019.  

Employee Conversations Start About Unions 

The International Association of Machinists and Aerospace Workers (IAM) had organized employees at the Arkansas site, but they worked for contractor VSE. The union for VSE employees was voted in February 2019. Around the same time, STI mechanic Bartow called an IAM representative to discuss the union. On August 30, 2019, mechanic Rambo resigned. He had been carpooling with Bartow and had discussed the VSE collective bargaining agreement and how the agreement's terms compared to working conditions at STI. Bartow and another employee then discussed the Union weekly with an employee in the STI's main shop.  

When he resigned, Rambo completed an exit survey form that was very critical of STI and Kiinhl. During an exit interview with Kiinhl, Rambo complained about Kiinhl's management style and mentioned STI employees were interested in joining a union. Kiihnl said he told Boyd what Rambo said about employee unionizing, but Boyd denied Kiihnl mentioned unions. 

Rambo says he later told Boyd in a phone conversation that the employees were starting union talks due to worsening working conditions. Once again, Boyd denied he was told anything about a union. However, Boyd did read Rambo's exit survey at that time. Bartow was eventually terminated in October 2019. Rambo told the Administrative Law Judge (ALJ) that he had asked in a statement prepared to support Bartow after his termination if Boyd had reviewed the exit surveys of the five employees who quit STI before him. Boyd told Rambo he had not but would look into it.  

Leadership Strategic Mistakes 

In early September, Boyd asked Kiihnl for a list of employees who had resigned in the prior year and the reason for their resignation. The judge concluded that Boyd's newfound awareness of possible union organizing by September 16 had spurred his interest in resignations. Boyd tried to say he knew nothing about union talk before terminating Bartow, but the judge didn't believe him.  

Boyd was communicating with a supervisor named Pittman in Arkansas about what was going on. In late September, Boyd ordered Kiihnl to evaluate and rank all mechanics. Kiinhl gave a rating of 3 to everyone (out of 1-5) and ranked them 1-41, but later testified the ranking was random.  

Several employees made a mistake that jeopardized safety when they had a tool unaccounted for. Safety rules required tracking all tools, and one was left in the equipment they were working on. While Kiihnl was on vacation, Boyd terminated all three without disciplining them first. That spurred mechanic Bartow to contact the union representative who met with employees, and from October 2-4, Bartow collected signed authorization cards. 

Boyd then terminated 14 more employees for "poor performance," including Bartow, and secretly had verbal counseling forms placed in the personnel files. The poor employee performance was said to be due to safety issues created by the missing tool. The 14 people were the bottom 14 names on the ranking list (remember, the ranking had no meaning). The assertions made were that the employees had been given training and counseling several times, were insubordinate, were complacent about safety, and had refused to comply with job-related instructions. The 14 forms were identical verbal counseling forms.  

They were all lies per the ALJ. Giving it away was the fact some employees had not worked there long enough to have had time to receive the number of employee training and counseling sessions claimed by Boyd. The employees never got counseling and never saw the forms that were placed in their HR files. In addition, the forms had Kiinhl's signature, and he had never given authorization to Boyd to sign his name. Kiihnl resigned and was replaced by mechanic Pittman, who rehired two terminated employees.  

After the discharges, the IAM filed a representation petition with the NLRB, and the employees voted to join the union on November 1, 2019. The union wanted to bargain about the terminations and met once with STI representatives, using email after that to communicate. In August 2020, STI told the union it had lost the contract. 

Leadership Mistakes Lead to Unionizing 

The STI case is chock full of leadership mistakes. One leader involves other leaders in poor leadership behaviors that harm positive employee relations even as employees are getting increasingly interested in union organizing. Developing a direct connection with employees requires soft and hard leadership skills. In the case of STI, the managers and supervisors were not skilled in leading or communicating with employees. 

Based on the STI case, the following are some of the skills a leader needs to master to develop positive employee relations. Effective leaders: 

• Apply Human Resources policies uniformly, fairly, and consistently – STI employees were not disciplined for safety violations found by government inspectors and were not given an opportunity for corrective training. The Little Rock employees were treated disparately compared to employees at other STI locations, and they knew it.  
• Are transparent about decision-making - The ALJ said Boyd refused to tell Kiihnl the reason for the ranked list was not to improve safety, "but was for an objective he wished to conceal, such as putting a stop to union organizing." 
• Are honest and ethical - Boyd admitted the employees were not fired because of any belief they were responsible for corrective actions needed. It was to prevent employees from unionizing. 
• Follow through on employee actions - Boyd did not investigate when employee issues arose, like resignations, exit interviews consistently criticizing management, and getting notified of union activity. 
• Develop effective communication with others - Communication between the managers was poor and unproductive. 
• Do not lie to protect themselves – The STI managers lied to other managers and employees, in this case, to the NLRB and ALJ. They didn't care that they were harming the reputation of various employees and the reputation of the organization. 
• Ensure employees have access to the training needed to do their best work - Employees were not disciplined or given opportunities for training and counseling before being terminated. Making it worse, the forms placed in the personnel files said they had received several training and counseling sessions. 
• Properly document manager and employee conversations - There was a complete lack of documentation of conversations between managers and many of the managers' one-on-one conversations with employees concerning unions and other issues.  
• Reviews all exit interviews – Boyd refused to read employee exit interviews until forced to. Exit interviews often provide critical information about workplace issues that can be addressed now to prevent future problems and even unionization. 
• Utilize performance reviews for two-way feedback - Job performance reviews did not include employees when Boyd wanted to terminate them. 
• Develop employee engagement skills - At STI, employees were not listened to and not given constructive feedback, nor were they working in a positive workplace environment.  
• Are labor law wise – Staying current on labor law and developing labor-wise leadership skills are crucial to successfully navigating a union organizing campaign or preventing the need for a union.
  

The STI employer was ordered to: 

• Stop discriminating against employees due to knowledge or suspicion of union activities 
• Interfering with or restraining, or coercing its employees in the exercise of their rights under Section 7 of the Act 
• Pay the employees for lost earnings and benefits 
• Pay for the terminated employees' search-for-work and interim employment expenses and tax consequences 
• Remove from the personnel files any reference to unlawful discharges 
• Post a notice to employees that Federal labor law was violated.  

Following are a few more examples of leadership mistakes that became unfair labor practices. 

St. Mary's Medical Center, Inc., and Service Employees International Union (SEIU), District 1199, WV/KY/OH, The Health Care and Social Services Union. Case 09–CA–269032 August 24, 2021 - St. Mary's rescinded an offer of employment made to M. McGuire. The NLRB decided it was because she formed, joined, and assisted a union and engaged in concerted activities. The hospital had to hire McGuire, make her whole for loss of earnings and benefits as backpay, compensate her for search-for-work and interim employment expenses, and pay for any adverse tax consequences. All mention of the employment recission was ordered removed from her personnel file.  

Ed's Beans Inc. d/b/a Crazy Mocha Coffee and Sharyn Marie Sefton and Emily Raden-Shore. Cases 06– CA–265396 and 06–CA–265574 June 22, 2021 - On May 18, 2020, the Respondent's employees Sefton, Raden-Shore, Ciccocioppo, and Rideout engaged in concerted activities with each other and other employees for the purposes of collective bargaining and other mutual aid and protection, by making demands regarding communication, wages, recall rights, and worker safety. 

In May 2020, Ed's Beans manager Wethli, by telephone, demanded that employees remove a petition concerning complaints about safety and communications from social media. In June 2020, during a Zoom meeting, he told employees they would be discharged because they complained about their working conditions. In July 2020, Wethli, by telephone, told employees that they would not be recalled from layoff because they complained about their working conditions. In August 2020, manager Garrett, by electronic mail, informed employees that they would not be rehired because they complained about their working conditions.  

The NLRB found the employer acted as it did because the employees complained and discouraged them from engaging in protected concerted activities. The managers didn't know labor law or understand what protected concerted activity is and the NLRA rights of employees.  

Unions Impede Positive Employee-Employer Relationships 

Unionization brings many changes to an organization. The limitations and impacts reach throughout the organization and even into communities. First, there are impacts on your managers and supervisors. A union contract limits the ability of your supervisors to promote the best employees on merit because seniority is more important than productivity, experience, and education. It's difficult to lay off or terminate union employees with an almost guaranteed union objection. Remember, one of the tenants in the union platform designed to win over employees is more job security.  

Unionization impedes the employee-employer relationship because unions gain and keep support by making employers appear like adversaries during the union organizing campaign. Though they tout the union-management partnership, the reality is that unions are cooperative only when their demands are met. Once a union contract is in place, they need to consistently find ways to criticize supervisor decisions to demonstrate their need and convince employees to vote for the union again when the current contract expires. The manager or supervisor, along with an attorney, will spend time dealing with grievances and arbitrations, costing the company in terms of productivity. This reinforces the union's "we-they" perspective. Grievance procedures in a union shop, especially those that land at the NLRB as ULPs, create resentful employees who share that resentment with coworkers. The damage to workforce morale and company culture is swift.  

Focusing on Positive Employee Relations Instead of Unions 

It is tempting to either focus heavily on unions or turn a blind eye to unions even where there are signs of union activity. Instead, your leaders need to develop skills in positive employee relations, which is most likely to prevent the need to address union organizing. By developing effective leadership skills, like those mentioned earlier via the STI case, labor unions won't get a foothold. 

Does it mean the labor unions won't try to organize your employees? No! They may find one or two employees who are actively disengaged or an employee with a grievance and try to leverage their unhappiness with the workplace. If you have developed a direct relationship with the other employees, the union will either be completely unsuccessful in getting the workforce interested in a union organizing campaign, or the union organizing campaign will not lead to a positive vote during a union election. 

There is so much turmoil and change in the labor force today that your leaders are challenged to maintain positive employee relations. However, some skills are essential to quality leadership. The following are major categories. 

• Communication – Communication is a broad area that includes active listening, feedback, emotional intelligence, demonstrating true caring for employee needs and success, utilizing digital communications to ensure full workforce inclusion and to give employees a voice, collaborative decision-making, coaching, and specificity in directives are some key communication areas. The manager's communication skills have the most direct impact on employee engagement. 

• Trust building – If your employees don't trust you, employee engagement will be low. They also won't believe what you say or do. One of the common grievances of employees who turn to unions is that they can't trust management, so they believe they need an intermediary. 

• Developing shared purpose – Developing a shared purpose in the workforce delivers many positive results. Employees believe their work matters and are important to business success, so they are less likely to want union interference. Employees are motivated, engaged, and forming productive relationships. Should union organizing develop, strengthening shared purpose becomes a leadership strategy for reminding employees of their importance. 

• Maintaining strong ethics and integrity – As the STI case demonstrated, a lack of leadership integrity and ethics drove employees to start a union organizing campaign. Even while the union organizing was in progress, managers lied about employees. This was a major factor in the employees voting for a union.  

• Labor-wise skills – Your leaders must be labor-wise and understand current labor laws. This goes beyond just being familiar with the NLRA because the NLRB is frequently making changes to labor laws through interpretation of the NLRA. Maintaining labor-smart leadership is essential to maintaining positive employee relations. 

Any unfair labor practice charge filed with the NLRB will take a long and expensive time to settle. Avoiding leadership mistakes and developing positive employee relations are not only good for your organization's culture. They can save your company tens of thousands of dollars in legal fees, employee compensation for back pay, and fines. 

During union organizing, you can avoid leadership mistakes by ensuring management is trained on what constitutes protective concerted activity and employee and employer rights. Each year conduct a review of your organization's Human Resources policies to ensure they are in alignment with the NLRB decisions and update leadership knowledge of labor laws. Always maintain a respectful workplace, even during union organizing. Finally, continue to give employees a voice, even during union organizing, because you may be able to settle some issues without a union election.   

Employee Engagement is the Link 

Ultimately, it is all about employee engagement and knowing what the right and wrong things are to say and do. Employees who believe in your company's values, integrity, honesty, and fairness are not going to turn to unions. They know they can talk to their supervisors about work issues and get honest feedback, fair and thoughtful decisions, and equal opportunities to succeed. Communicating effectively, legally, and regularly with all employees is at the heart of all strategies for helping employees realize they don't need to pay a union to get fair treatment.