Three Union Avoidance Strategies And Their Effects

For most things in life, there is a right way and a wrong way to pursue goals. This holds true in the workplace also, and especially when it comes to issues involving unionization. Staying union-free is challenging because unions are relentless, using a variety of tactics that funnel down to achieving two primary goals - convincing employees they really need union representation, if they want fairness in the workplace, and blocking employer efforts to keep the union out of the workplace.

In 2004, Mark Carter at the University of Rhode Island published the research paper, Union Avoidance Practices: Differential Effects of Three Strategies. In it, he reviewed three main strategies that employers utilize to remain union-free. The three strategies are called "influencing an NLRB election," "strategic hiring" and "quality of work-life and alternative work practices." The strategies are still applicable today in principle, but many things concerning unionization have changed too due to new laws, NLRB decisions, and social media.

The Importance of Positivity To Stay Union-Free

One of the first things to keep in mind is that "avoiding unionization" is really not the same principle as "staying union-free." To say your business is avoiding a union implies the union is already interacting with employees in some manner (or is expected to), whether it is meeting secretly outside the workplace with employees or openly working to gain new, dues-paying members. Avoidance is a negative principle, implying repudiation and manipulation. It is much better to follow a positive strategy of staying union-free by focusing on developing an engaged and committed workforce that sees no need to unionize. You don't repudiate union actions. You engage employees.

The difference between "union avoidance" and "staying union-free" might seem like mere semantics, but the mindset goes far deeper. Developing a UnionProof culture, in which employees have no interest in unionizing means the employer has invested resources in developing employees who are more knowledgeable, connected, and socially aware. UnionProof employees feel more empowered than employees working for companies that "avoid unionization." When workers turned to unions decades ago, they wanted things like higher pay, better benefits, seniority rights, job security, and fair grievance procedures. Today's employees may want some of these same things, but they consider things like the value of their work, engagement, corporate social responsibility, and collaboration as equally, if not more, important.

In fact, today's younger employees don't need unions for many of the issues that their parents and grandparents organized for over the decades. Laws address the basic issues, like minimum wage and security of pension accounts, with more regularity. For example, in 2019 laws in 20 states take effect that raises the minimum wage. Unions have staged protests, lobbied for and of course, take credit for these increases, but even they recognize that better laws make them even less relevant, so they are now putting time and energy (and dues money) into new issues, of interest to younger employees, like corporate transparency and CEO pay.

To UnionProof your business today, it's important to develop a positive relationship with employees. You can go negative, but at what cost to employee relationships and employee productivity, and for how long? Negative strategies lead to a vicious cycle of negative employee-employer relationships that will lead employees to pursue unionization again. As an employer, you don't win if a union loses a representation election but your employees become disengaged and resentful and remain ready to pursue unionization in the future.

Strategy One:
"Stop An NLRB Election from Ever Taking Place"

The first experiment Carter tested involved the employer acting in ways that would hopefully prevent a National Labor Relations Board (NLRB) election from ever taking place. An NLRB election requires a minimum of 30 percent of employees to sign a petition asking for an election. The goal of this approach is to convince enough employees they don't need a union, so the 30 percent figure is never reached.

This is a negative strategy because it usually involves the employer saying drastic things to scare employees away from signing a petition. It's a very difficult strategy to implement today because employers are not legally allowed to do or say anything that can be construed as interfering with an employee's right to pursue unionization. Over the years, the NLRB and courts have applied liberal interpretations of what is "protected, concerted activity" by employees and what can be considered as interfering actions by the employer. The employer cannot try to stop union organizing by threatening employees with job loss, business closure, benefits reductions, or a moratorium on promotions or other negative events. These kinds of threats are considered unfair labor practices.

Even if the employer succeeds in stopping the NLRB election by using this strategy, a lot of damage is often done to the employee-employer relationship. You cannot overtly or obscurely threaten people and expect them to remain committed to the organization. A culture of intimidation is created, and that type of culture will lower productivity, create workplace stress, and increase turnover. Today, a culture of intimidation will also lead to employees posting critical social media comments, under the auspice of protected concerted activity, for all to read, publicly damaging the company's reputation.

However, on the positive side of the scale, there are many things you CAN do and say to educate employees on the impact of signing a union card to authorize a union election. One of the things you can count on is that union organizers will often tell employees that signing the card is "no big deal" because it's not a vote for unionization. They likely won't tell employees that, if they get more than 50 percent of eligible employees signing the card, the union card does become their vote for the union! Unions will also offer online and offline signing options, in most cases, to make it as easy as possible for your employees to sign authorization cards. Employers have the legal right, verified by the NLRB, to explain their position on card signing and to inform employees about the laws protecting their rights to sign or not sign the card and the potential consequences. So, trying to stop an NLRB representation election from ever taking place would have, in the past, been considered a considered negative strategy, but with the right employee communication, it can be turned into a positive and legal strategy.

Strategy Two:
"Hire Non-Traditional Employees"

The second experiment Carter called "strategic hiring," but a lot has changed since he concluded his research. In this strategy, employers intentionally hire part-time and temporary employees, or use a staffing agency or contracted workers, in order to avoid labor law requirements concerning pay, benefits, and work schedules. The plan under this strategy was that people weren't eligible to petition the NLRB for an election because they weren't regular employees, or were employees of another company.

In recent years, the NLRB changed the definition of an employer from one with “indirect” control to one with “direct” control, which means that companies could be viewed as a joint employer with regard to another company’s workers if they directly control the vital employment terms and conditions.

So today, more part-time and contracted workers are seeking union representation because they believe employers are taking advantage of them. These "non-traditional" employees are increasingly unwilling to sit back and accept what they consider unfavorable work status and conditions. Millennials in these positions, in particular, object to low job security, having little or no voice in the business, and being ineligible for benefits. Large groups of atypical union employees, like contracted tech workers and part-time food service workers, and adjunct faculty, have been pursuing traditional unionization or are forming union-like organizations on their own. Employees recently began using technology as an organizing tool too. You may not even know your part-time or contracted technical workers are conspiring online to organize.

Unions are getting more aggressive about disputing people classified as independent contractors when they're really employees. The unions say the rampant use of misclassification is intended to reduce labor costs and has the consequence of preventing employees from having NLRA rights, including the right to unionize. This is their attempt to force employers to classify people as employees. Once an employee, a person can sign an NLRB election petition.

Over the last decade, the "strategic hiring" strategy is much less effective than it was in the past, as younger workers consider alternate forms of organizing. Also, more and more companies are offering benefits to part-time and temporary workers in response to the ongoing labor shortage, so they aren't saving as much money as they once did. It's also likely that employers with large groups of people who aren't employees are having difficulty developing an engaged workforce, so the entire organization is harmed.

Employers are much more likely to engage employees by taking positive steps rather than steps focused on avoiding labor laws. Steps include hiring people for the long term who have the right skills and competencies, providing high-quality training and development opportunities, and meeting employee needs in terms of things like fair pay, good benefits packages, job security, flexible work schedules, effective leadership, and open lines of communication between employees and management. Positive strategies always trump negative strategies.

Strategy Three:
"Develop A Quality Workplace with Engaged Employees"

At UnionProof, we believe employers should employ a positive strategy to stay union-free because it brings a number of advantages. Strategy three is a long-term strategy for remaining union-free because it focuses on developing a positive culture in which employees are engaged and have good and direct relationships with management. The positive relationships mean employees are comfortable bringing up issues of concern with management, and there is an effective grievance procedure in place. Employees have a voice in the workforce, which is empowering.

In other words, there is no reason for employees to unionize and pay dues to an organization when they're satisfied with the employer and the workplace. The Nissan plant in Canton, Mississippi is a good example. A union vote was held, and 63 percent of the auto workers voted against the United Auto Workers Union. One of the main reasons for the election outcome is that employees believe they can work directly with management and don't need an intermediary. Of course, in typical union fashion, the UAW claimed the employer committed seven unfair labor practices and asked the NLRB to invalidate the election. The cost of unionization is high and continuing, even when the union doesn't succeed.

Ideally, an election should have never been held. Even when unions lose elections, the workplace suffers, including increased resentment among union-supporting staff members. There is also no assurance the union will give up. Though Nissan employees made it clear through their vote that they don't want a union, there was at least 30 percent of the employees were interested enough to petition for an election. These are dissatisfied employees, and they are the reason unions keep trying. In 2014, Alabama workers at the Mercedes-Benz auto plant asked the UAW to stop campaigning because they were tired of the union's unsuccessful campaign efforts.

This third strategy of developing a quality workplace includes being transparent about the employer's beliefs about unionization and the potential consequences of unionizing. Consequences include things like jeopardizing one or more positive employee programs and forced payment of employee union dues that are the equivalent of a pay cut. Refusing to talk about unions only makes employees believe their employer has something to hide.

Developing a quality workplace and an engaged workforce requires a collaborative and positive management style, which the research author calls "commitment management." Employees have autonomy and the ability to make decisions about their work. They internalize company goals, meaning they mesh with personal goals. People are hired with the intent of helping them develop a long career at the company, giving them a sense of security. Management includes employees in the decision-making process and offers a grievance procedure that works well in terms of fairly settling employee issues. Ideally, there are few formal grievances filed because there is good communication between employees and their supervisors. These are just a few of the many things that companies do differently to stay union-free.

Numerous studies have shown that an engaged workforce are more productive. Gallup research also found that companies with a high-engagement culture experience more than four times earnings-per-share growth compared to organizations with a lower level of engagement, and achieve 21 percent higher profitability.

Accentuate the Positive: Implementing Strategy Three

How do you implement strategy three? There are some basic steps you can take. One is to communicate your company's union-free philosophy to employees with an orientation video on the first day of employment or during the onboarding process, which may start before the first day of work in some companies. Another step is to develop managers and supervisors who understand how to engage employees through good communication, leadership, feedback processes, and listening skills. They also need to get comfortable sharing the organization's views on staying union-free and learn to recognize signs that employees are in contact with unions.

Developing a website for your leaders to regularly reference is a best practice. The website can address labor concerns; creating a UnionProof culture; the T.I.P.S. Rule and F.O.E. Rule; communicating with employees; educating employees on the company positives, like competitive pay and benefits and career development opportunities; and creating a quality of work-life for employees. Concepts like work/life balance, diversity and inclusion, social responsibility, and collaboration are especially important to younger generations of workers. Supervisors can also develop the skills to respond to organizing efforts via eLearning courses.

Communication with employees should be frequent and high quality. There are a variety of ways to meet this goal today by using technology. Posting regular videos that employees can access at work or home and via mobile technology, some with messages from top executives is a good strategy for sharing information and reinforcing the company's philosophies, values, and policies. Videos can address a variety of topics like the NLRA, the cost of unionization, and current generous benefit plans.

It is also wise to have pre-prepared an employee-facing dark website, ready to publish, should your Company receive a petition for an NLRB election. This type of proactive, factual online information source is vital whenever there are clear indications a union organizing attempt is underway. Your "dark" website can be designed to educate employees on the facts about unions in general as well as about the specific union approaching employees. A dark website isn't made available to employees until union activity makes it necessary.

Scientific Proof On Staying Union-Free

The research clearly demonstrates that working toward creating your UnionProof culture and becoming an employer of choice is really the only proven strategy to keep employees union-free. Negative, outdated strategies are too risky. They may achieve the expected outcome - preventing an NLRB election - but your company's reputation, relationships, and culture will surely be negatively impacted. The potential cost is too high. Developing a supportive, collaborative culture and an educated and engaged workforce is the best way to UnionProof your organization.