What Are Employers Rights During Union Organizing?

What are employer rights during union organizing? Can an employer refuse a union? It may seem like employers can’t do much during a union campaign except explain to employees why they don’t need a union. If you listen to unions, the impression is that the labor laws favor employers. If that were true, employers wouldn’t be paying millions in legal fees and incurring heavy administrative expenses to protect their employer rights conveyed by the National Labor Relations Act (NLRA) and decades of National Labor Relations Board (NLRB) decisions. Today, a pro-union NLRB is trying to make significant changes to years of decision precedents, and all the changes favor unions. For example, the captive audience meetings ensure an employer has opportunities to share the company’s perspective on unions. Now, the General Counsel of the National Labors Relations Board (NLRB) is trying to end the practice. 

You must know exactly what you can and can’t do when a union campaign starts to avoid claims of unfair labor practices and expensive fines and to engage employees rather than alienate them. If you are facing a union that is working to organize employees at your company, your first instinct may be to want to panic, and panic leads to mistakes. It’s important, however, to know there are actions you can do to prevent unionization as well as actions to avoid. All your leaders must fully understand their legal rights when communicating with employees. This is an area where many employers get themselves into trouble due to inadequate leadership training in labor relations.  

There is a lot of information available about what employers CAN’T do during union organizing, but here is some even more helpful information on what an employer can legally do to prevent unionization - Hint: the focus is on positivity.  

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Employers Can Communicate Their Philosophy on Unions 

Employers need transparency all the time, and that doesn’t change during union organizing. The NLRA gives employers the right to share their philosophy about unions and employees unionizing. Your leaders can communicate in many ways, including mailed notices, workplace posters, group meetings, and digital tools like apps, emails, instant messaging, videos, video conferencing, podcasts, and an employee-facing website.   

Communicating your philosophy on unions is extremely important. You can share the philosophy statement, facts about the business, and the risks associated with unionizing to support the company’s perspective.   

  • Employers can tell you their thoughts about unions. They do this by sending papers, putting up signs, talking to groups of people and using technology like websites, emails, videos and podcasts. It is important that they share the company's philosophy on unions so that everyone knows what it is. Even though everyone has a right to vote yes or no to unionization, the company wants to stay union-free.
  • Let your employees know the company’s desire to maintain a direct connection with them without making them feel threatened during union organizing. 
  • Educate your employees as early as possible by sharing your company’s union-free philosophy during the new hire orientation process
  • Explain that joining a union does have consequences. Union members must follow the rules and regulations of the union, even if they do not agree with them. They might also have to pay fees or dues to be part of the union. It is important for employers to make sure their employees know that they don't have to join a union and that there are other ways for them to communicate with the company without joining one.
  • Help employees understand the disadvantages of becoming a union member, including strikes and the requirement to serve on a picket line. 


Employers Can Create a Great Working Relationship 

There may be a union organizing campaign in progress, but focusing on positive employee relations is even more important. A key element of positive employee relations is employee engagement which is an emotional and intellectual commitment to your organization. Gallup found that at the end of 2021, 34 percent of employees were engaged, and 16 percent were actively disengaged. There is a strong likelihood that most of the employees starting the union organizing campaign are among the 16 percent. A cup-half-full perspective is that you have an opportunity to re-engage at least half of your workforce. 

It may sound odd at first, but you have great opportunities to strengthen employee-employer relationships during union organizing. Why? The event gives your leaders many opportunities to address employee concerns, prove leadership transparency and honesty are embedded in the organization’s culture, promote the policies that support employees and their families, and point to the disruptive influence of unions. Employers can utilize the relationship-building behaviors proven to work, like giving employees a voice about their concerns and giving leadership feedback, easing mental stress by reinforcing a commitment to employee well-being, and demonstrating the truth about the impact of unions on a workforce to make it easier for employees to decide to vote no during a union election.  

Following are five ways to create a great working relationship by exercising employer rights during union organizing:

  • Educate yourself about unions and learn how to build a union-free workplace by reading the insightful book “Proof Positive. “ 
  • Express to your workforce that with or without a union, the company is committed to making it a great place to work
  • Be open and transparent about current company policies on solicitation and distribution by making these policies readily available on-site or online. 
  • Remind employees about the costs of belonging to a union through union dues and potential fines for not obeying union rules. 
  • Create a safe and clear process for employees to report threatening or coercive behavior. 

employer rights during union organizing

Employers Can Accentuate the Positive 

Keeping in mind that engaged employees usually don’t have an interest in unions, ask yourself what engaged employees seem to understand about the organization versus those who are disengaged. It usually comes down to engaged employees recognizing the positive aspects of working for your organization far outweigh any negative ones. Focusing on the positive can overcome union negativity. Your leaders are the people who can accentuate the positive every day, including during union organizing.  

In the Harvard Business Review, researchers investigating the power of positive leadership found that the greatest predictor of leadership success is positive relational energy. Positive energizers uplift others through authentic, values-based leadership. They cultivate positive actions in themselves and others which is precisely what is needed during union organizing. These leaders give employees encouragement, support, and recognition.   

Your employer rights during union organizing are a source of positive relational energy. 

  • Provide full details of all current employee benefits offered by the company to avoid any risk of miscommunication. A UnionFree.com website with an interactive benefits calculator can be very useful for this purpose. 
  • Provide salary information for similar companies in your area for employees to compare their pay, showcasing local and/or industry competitiveness. 
  • Provide valuable union-specific resources, such as statistics, studies, and union history, to ensure that your workforce sees the company as a reliable source of information. 
  • Answer employee benefits questions as quickly, accurately, and effectively as possible. 
  • What can employers say during a union campaign? It’s not always about what you say but about being willing to listen to employees’ concerns and show them that the company is willing to work with them, with or without a union. 


Employers Can Follow the TIPS-D and FLOP rules 

We live in a world of acronyms, and two of the most important ones to know for managing during a union organizing event are TIPS-D and FLOP, an update to a commonly known phrase, TIPS and FOE. These are basic dos and don’ts of communication with employees during union organizing and are grounded in labor laws. TIPS-D: You can’t make threats, interrogate, make promises, or conduct surveillance of/spy on, or discriminate against employees. FLOP: You can share verifiable facts, obtain legal services, state personal opinions that include personal experiences, and give examples of union issues like corruption and strikes. 

Following are six behaviors that follow the TIPS-D and FLOP rules:

  1. Provide your employees with the real facts about union organizing, collective bargaining, job security, and strikes.
  2. Teach your management team the TIPS-D and FLOP Rules to enable them to educate your workforce while still staying within the NLRB regulations. 
  3. Correct inaccurate information provided by union organizers to your employees as quickly as possible. Use a custom employee website or dedicated social media channels for this purpose. 
  4. Discipline any employee or representative that tries to threaten or coerce other employees, whether they are pro-union or anti-union. 
  5. Feel free to share any negative personal experiences about unions with your workforce. 
  6. Seek legal advice from the appropriate parties.


Employers Can Educate and Inform Employees 

Relying on the TIPS-D and FLOP rules, employers can explain the many aspects of unionizing to employees they may not know or understand. Keeping it factual is critical, and educating employees quickly is important. As mentioned, the NRLB General Counsel wants to change decades of precedents set by NLRB decisions. For example, GC Jennifer Abruzzo wants employers to require card check recognition. Card check recognition means the employer is presented with authorization cards, and if they have the signatures of a majority of workers, the employer will have to recognize the union without an election. 

In this scenario, employees who don’t understand authorization cards could end up in a union by signing the cards with the belief they would get more time to think about it before a union election or would have a chance to change their minds and vote no.   

Explain to your employees what authorization cards are, what signing means, and the importance of fully understanding their options before signing. 

employer rights union organizing

 Employers Can Train their Leaders 

One of the main causes of unfair labor practices (ULPs) is due to leaders saying or doing something that violates labor law. They aren’t laborwise leaders. It’s so easy to do too. It’s important to train leaders on the various ways they can help the organization stay union-free. What can your leaders do within the law? How can they communicate with employees? What steps can they take to engage employees during an emotionally tumultuous time?  

One of the mistakes companies make is only training mid-level to executive-level managers, though it’s the supervisors who interact with employees every day. The SHRM points out that, in the ULP category of “interference, restraint, or coercion,” “Most violations of this section include supervisors who (a) make threatening statements, (b) question employees who assert their labor rights, or (c) make false statements to workers seeking unionization. Leadership training applies to all leaders and covers employer rights during union organizing and employee engagement.   

Leadership training doesn’t only concern union-related issues. Training also helps leaders master the principles and strategies for developing high employee engagement. Employer rights during union organizing include making a union unnecessary through good management.   

  • Enforce lawful distribution and access rules in accordance with the National Labor Relations Act for both pro-union and anti-union representatives. 
  • Take proactive measures by training your labor team to understand how union and non-union organizations work. 
  • Provide professional training for all supervisors to ensure everyone understands how management can respond during union organizing in a way that presents the facts, avoids NLRA violations, and promotes employee engagement. 
  • Educate your management team on what employers can say during a union campaign and appropriate ways to communicate with employees regarding unions to avoid charges from the NLRB. 
  • Create better leaders within the workplace to make the need for a union unnecessary.

Union Organizing Isn’t Automatically Unionization  

Exercising employer rights during union organizing is a critical strategy for staying union-free. Suppose union organizing is not taking place in your organization at the moment. In that case, you are in the perfect position to get ahead of the possibility through leadership training and employee education. If union organizing is in process, leadership training and employee education must happen quickly. A labor relations consultant can help your organization efficiently and effectively stay union-free. Never forget that you can stay union-free, even when the union comes knocking. 

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About the Author Walter Orechwa

Walter is IRI's Director of Digital Solutions and the 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.

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