08/ 10/ 2007
by Beth Gaudio, NFIB Legal Foundation
A union-organizing campaign can mean a lot of stress and headaches for small-business owners. Owners, managers and supervisors are all under special obligations not to unduly interfere with an organizing effort. Failure to follow these rules could mean legal trouble with the National Labor Relations Board. Faced with these restrictions, it might seem like there's little you can do to fight a campaign. Not so.
Employers can communicate to their employees the disadvantages of union membership, including the financial costs and potential for work-related loss from strikes or picket lines. Ray Isaac, an NFIB member and president of Isaac Heating and Air Conditioning in Rochester, N.Y., stresses the importance of informing employees: "Employers are scared to say anything against a union," he says. "But they should tell employees what they need to know."
What you can do to maintain your workplace
A unionizing effort begins with a drive to sign up new members among your workforce. This can be accomplished from within, meaning that your own employees organize and attempt to win over other employees. Or it can be achieved from the outside, meaning that representatives of a union visit your workplace to entice employees to join. Remember that union representatives are legally entitled to visit the workplace to solicit signatures for petitions and union cards and distribute pro-union material. But union advocates and representatives cannot interfere with the workplace. Consider the following dos and don'ts when facing down a union organizing drive at your workplace:
An employer may:
- bar non-employee union representatives from the property, if the general public is also excluded
- prevent employees from distributing pro-union material during working hours
- prohibit the distribution of pro-union materials by non-employees, provided the union is able to reasonably communicate with employees some other way
An employer may not:
- forbid employees to solicit other employees during breaks, off-duty time and in non-working areas
- ban the wearing of union buttons or shirts without a valid business reason
- refuse to supply a list of the names and last known addresses of employees to union officials prior to a unionizing election
What you can say to your employees
As a citizen with free-speech rights, you have the right to discuss the unionizing issue with your employees, and you may attempt to persuade employees against unionizing—but be careful. You cannot threaten or coerce. This means that you can offer your opinions, alert employees of facts about unions that they may not be aware of and discuss effects that unionization may have on the business. You may not use these opinions, facts and projections to imply a negative consequence for employees if they choose to support the union drive. An employer should not seek to find out how employees are leaning on the union question. A useful general rule is that an employer can be a dispenser of information, but not a collector. In expressing your opinion about unionization, consider the following rules:
An employer may:
- explain why unionization is unnecessary
- offer personal opinions about union policies
- predict the negative effects that unionizing could have on the firm, as long as it is based on facts outside of the employer's control
- advise employees that they are not required to sign union cards and petitions, vote for unionization, or speak to union representatives
An employer may not:
- enlist an employee to help the employer lobby other employees against unionization
- ask an employee his opinion of unionization or ask an employee about another employees' opinions
- spy on employees, suggest that the employer has already spied on employees or enlist employees as spies
- issue threats or promises, implied or explicit, that appear contingent upon a worker's vote against unionization
Some of these rules may seem overly restrictive, but an employer would be prudent to follow them in order to avoid costly litigation and possible fines. Common sense is a good starting point for employers who want to stay out of hot water. And as always, if you have any doubt about the best course of action during a unionization campaign, there is no substitute for the advice of a good labor attorney. Your state bar organization will help you find one.
For more guidance from the NFIB Small Business Legal Center on union organizing, download A Small-Business Owners Rights During a Union Organizing Campaign. The guide is free for NFIB members and can be purchased by non-members for $10 by calling 800-NFIB-NOW (800-634-2669).
