TIPS-D and FLOP: What Employers Can Say During Union Organizing

TIPS, TIPS-D, FOE, FLOP… Rules, rules, and more rules are part of the journey for any organization that wants to maintain positive employee relations and create an environment where unions aren't necessary. The acronyms represent keywords to help employers remember what they can and can't say when communicating with unions during union organizing campaigns. The fact that TIPS and FOE have morphed into TIPS-D (added is "no discrimination") and FLOP (added is "legal") is indicative of the fact that avoiding unionization is getting more challenging due to a pro-union federal administration and a strong union-supporting National Labor Relations Board (NLRB).   

Most discussions on employer communication during union organizing focus on what employers can't say because violating the TIPS rule (no threats, interrogations, promises, surveillance) can lead to Unfair Labor Practice charges for labor law violations and a failed attempt to win over employees considering joining a union. But there are plenty of things managers can say during union organizing to be proactively positive.   

Let's visit the FLOP rule to encourage you that it's possible to maintain an organization where unions simply aren't necessary, despite the pro-union environment. You can strengthen positive employee relations during a union organizing campaign.  

A Review of FLOP 

Originally, there was FOE for Facts, Opinions, and Personal Experiences or Examples.

Facts

The "F" in what is commonly referred to as FOE, which we feel is more accurately described as FLOP, refers to the fact you can legally share facts about unions as long as they are verifiable through public resources. The resources include but are not limited to: 

• Labor law firm websites 
• Substantiated news reports 
• Federal and state government websites 
• Federal agencies like the National Labor Relations Board, Department of Labor, and EEOC 
• NLRB court cases 
• The Center for Union Facts (CUF) 

Legal

We felt the "L" in FLOP is a necessary addition because employers have the right to obtain legal services and communicate employer rights to employees. It's important to access legal services because the laws and regulations are in a state of continuous change. It's easy for employers to unknowingly restrict employee rights.  

On the other hand, employers do have rights. For example, a union representative who interferes with an employee's work can be ordered to leave. But did you know that, per Supreme Court rulings, allowing non-union outside organizations like the United Way on your business property means you can't deny access to union representatives so they can recruit employees? It's referred to as the "non-discrimination rule." Say the wrong thing, and you face an Unfair Labor Practice (ULP). Say the right thing, and you avoid the ULP. 

Employer rights are under attack too by the NLRB General Counsel Jennifer Abruzzo, who has made it clear she is pro-union and will do everything she to can promote unionization through various means, including restricting employer rights. In an April 11 brief in an NLRB Cemex Construction case, the GC urged the NLRB to find that employers are violating the National Labor Relations Act when they discuss the limitations of employees being able to directly resolve workplace issues with their employer. 

What is the positive of this discussion on labor law? You can hire legal services to help you protect your employer's rights, as those rights continuously change right now through NLRB and court rulings.   

Opinions

As people like to say, "you're entitled to your opinion," which in this case is about unions. Thus the "O" in FOE and FLOP. Your perspective this time refers to the organization's opinion. It's legal for your leaders to communicate to employees why unions are unnecessary.  

You should have a company position statement which is often on the employee-facing union website. If you don't have such a website, then it's time to establish one because it is an important resource for guiding employees in their decision-making and ensuring they understand the "other side." It's helpful for your managers and supervisors too, when they need reminders as to the positive points of creating an environments where unions are unnecessary, that they can legally share with employees. 

When a union organizing campaign starts, your employees hear pro-union information in "stereo." On one side are labor union representatives telling them their workplace is unsafe, their manager is taking advantage of them via poor work schedules, senior management is supporting a compensation schedule that underpays employees for their work, and so on.  

The first step in organizing is the creation of a Volunteer Organizing Committee with members who become internal sources for labor unions for information, employee recruitment, and marketing the labor union. 

On the other side are employees who are opposed to union organizing. Your managers and supervisors can express solid legal opinions on the benefits of avoiding a union, which helps employee advocates for doing so by giving them talking points. 

Personal Experiences and Examples

Your organizational leaders have the right to share personal experiences involving unions. Some of your leaders have likely worked their way up to become supervisors and managers and were union members at one time in prior jobs. They can legally share negative personal experiences with unions. 

They can also talk about specific examples of problems involving unions, including corruption. Once again, be sure to only share provable information. For example, a union officer pled guilty on July 1, 2022, in the US District Court for the District of Columbia to embezzling more than half a million from the SEIU and using the money for parties, travel, furniture, and other personal expenses. In 2020, two union leaders of the United Auto Workers were sentenced to prison for stealing millions in union funds to pay for alcohol, trips, golfing, and other luxuries. These are documented examples of union leaders misappropriating money that is union dues.  

It doesn't seem like this could be called "positive communication." However, a leader who was once a union member could discuss how leaving the union enabled faster career advancement. Perhaps the supervisor could discuss the peace of mind that comes with knowing he/she is not paying union dues that support corruption or a particular political agenda or knowing that he/she doesn't have to worry about loss of income due to a strike.  

It's important to be careful not to threaten employees through careless wording. It's also legal to share the reasons why a union may not be a good decision. These reasons should be stated on the employee website with more in-depth explanations.  

We're here to help you solve your unique needs. Our team of experts can help you implement the strategy that works best for your organization.

FOE and FLOP: Employer Rights During Union Organizing

You can rely on FOE or FLOP to remember what you can do during union organizing. Though a top goal is to utilize all your NLRA employer rights to address unionizing, this can also be an opportunity to engage employees. This may sound counterintuitive, but some employees: 

• Already know they aren't going to vote for a union 
• Are undecided as to how to vote should a union election be held 
• Will sign union authorization cards and eventually revoke their signatures 
• Will refuse to sign authorization cards despite being pressured 
• Are undecided about unionization 

Each of these groups of employees offers opportunities for employee engagement. Understanding the FOE or FLOP rule and TIPS or TIPS-D gives your leaders the foundation for employee communication concerning unions. How can the FOE rule become a positive employment engagement source?  

• You can share facts about unions in a way that demonstrates that your leadership has carefully considered the truth. Transparency and honesty support the development of positive employee relations. Employees appreciate being told the truth about unions and their employers.  

The current wave of unionizing is largely based on emotions. People have gone through a pandemic, are hearing a recession is possible, are dealing with the impact of inflation, and are regularly hearing pro-union messages on the news. It's all negative information bombarding them. Along comes a surge of Starbucks stores voting to unionize with employees, talking about getting a voice and the right to decide how to serve customers, and your employees are inspired.   

Sharing the truth about the impact of unionizing with employees is a positive way to help them consider unionizing in a thoughtful rather than emotional manner. Walter Orechwa, Director, Digital Workplace Solutions with IRI Consultants, gives several examples of how to separate a fact from a threat and how the psychology of fear plays in leadership responses. Responses emanating from fear will likely alienate employees. Leadership training on FOE is crucial to overcoming the fear and being prepared to communicate with employees legally and thoughtfully.  

• A union organizing campaign brings employee concerns and needs to management's attention. Some may be known, but some may not. It is an opportunity to address each of the concerns and needs, giving honest, fact-based reasons as to why each is possible or not.   

Though there is a wave of unionizing taking place, it doesn't mean it's a foregone conclusion that your employees will follow suit. Amazon employees in Bessemer and New York City rejected unionizing, and Starbucks employees at two out of three Chicago stores voted no to unionizing. The media may focus on the wins, but it's important not to lose sight of the fact that your organization has an opportunity to connect with employees.  

This is an opportunity to discuss what your organization does offer employees, like competitive wages, benefits that support employees holistically with physical and mental health support, opportunities for career development, flexible schedules, and a communication system that enables employee and leadership feedback on any issue. Labor unions often present facts but out of context in order to inspire employees. For example, they may talk about employees being underpaid but don't talk about whether the wages paid are competitive compared to industry or local standards. You have an opportunity to present information in a positive and complete way.  

• Helping your employees who don't support unions push back against unions is legal and shows employer support for the voice of this particular group of employees. A union organizing campaign can lead to many of your anti-union employees feeling overwhelmed. Helping employees stand up for their NLRA rights is a positive action. 
• Use the union organizing campaign website to present the positive aspects of employment with your organization and the negatives of unionizing. If the website only attacks unions, it won't be convincing and will be merely seen as a cover for management. Keeping FOE and FLOP in mind, use the website to cultivate positive employee relations by pointing to the many ways your company cares about its employees. 
• There are right and wrong ways to answer employee questions about unions. The right way is to answer questions in a way that reminds employees management already strives to give employees a voice, pay competitive wages and develop positive employee relations.  

The unions will answer questions in a way that makes employers look bad.  

For example, in the article on virtual union organizing, we have listed several common questions about unions that we've shared in blog posts. One is, "Will an employee joining a labor union affect the ability to get raises or be promoted?" The union answer is, "You get a voice in how the union negotiates." Notice the vagueness of this answer because the union often promises raises and a different promotion process when there are no assurances the bargaining agreement negotiations will produce these results.  

If your leaders are asked this question, do they know how to answer in a positive way so that employees understand the fairness of your organization's promotion policy, how the compensation schedule reflects the level of work skills and the opportunities for expressing employee voice, i.e., worker committees, meetings, digital communication channels, etc.? You can give specific answers to questions about unions, and that is positive communication.   

Prepare for Union Organizing with TIPS, TIPS-D, FOE, and FLOP 

The basic purpose of TIPS and FOE is to help your leaders be prepared for union organizing and avoid making communication errors during the union organizing campaign. Learning the principles these acronyms stand for is crucial to being able to adhere to labor law. However, the knowledge also helps your leaders respond in positive ways to employee questions and concerns because they know what they can communicate. Union organizing campaigns can get emotional and difficult, so any positive communication is good communication and makes for better leaders.