Labor Unions: What Business Owners Can and Can't Say to Employees
Note: These talking points were developed by the NFIB Small Business Legal Center in conjunction with the law firm of Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
Guide to Handling a Unionization Attempt:
When it comes to labor unions, communicating with your employees can be like walking a tight-rope. The National Labor Relations Act (NLRA) has specific provisions that govern what an employer can and cannot say, and significant penalties may be imposed on employers who say the wrong thing. Understanding what you can and cannot say during an organizing campaign will give you the confidence to communicate lawfully and effectively with your employees.
With the introduction of the Employee Free Choice Act (EFCA) in Congress, communicating with your employees has become more important than ever before. EFCA would essentially eliminate the employee’s right to a secret-ballot election regarding union representation. Under the legislation, a business would become unionized if at least 50 percent plus one employees sign union authorization cards. Moreover, cards signed before EFCA is even signed into law might be able to be used in the final count to vote a union in. Employers, therefore, are encouraged to communicate your views on unions to employees, including the effect of signing an authorization card. (NFIB’s materials on EFCA can be accessed at www.workforcefairness.com.)
We're providing sample statements of what you can and cannot legally say to your employees:
- before a union representative even approaches employees in your business;
- when an employee asks you questions about unions; and
- when a union election is happening.
In addition, we provide a sample written policy, entitled "A Word About Unions" that you can adapt to your workplace and include in your employment manual.
This information is not intended to address every conceivable situation that may arise. Even though the information presented below reflects fairly basic and consistent interpretations of labor law, it does not constitute and should not be regarded as legal advice. If you have questions about labor unions or are undergoing an organizing campaign, you should talk to an attorney about your rights.
What Employers Can Say To Employees BEFORE A Union Comes To Their Business
Even if there is no evidence of an organizing campaign, communicating with your employees about labor unions is important. If a labor union starts an organizing campaign, you may not even know about it until a union representative comes to you, claims that a majority of employees have signed authorization cards, and asks that you recognize the union.
Employers involved in organizing campaigns are often amazed at how little their employees know about the benefits they already have at your business without a union. One of the most important things you can do is highlight these benefits for employees before a labor union attempts to organize your employees. In a nutshell, this type of information is good "preventative maintenance."
Employers should consider the following types of "preventative maintenance" communications:
- Union-Free Policy: Publishing the company policy on remaining union-free (see the attached sample policy statement)
- Wages and Benefits: "We have compared our wage and benefit structures to other companies in our industry, and ours are competitive."
- Fairness: "We strive to provide a fair, safe workplace. We have an absolute ‘open door’ policy, so please come see a member of management any time if you are having issues or want to talk."
- Employees are Important: "Even in this down economy, our company is surviving, and it is largely because of our employees. Keep up the good work!"
Hints That A Union May Be Targeting Your Business
Labor unions typically begin an organizing campaign by providing information and then asking employees to sign authorization cards. Because employers are generally not told when union representatives are talking with their employees, here are some signs that should alert you that a union may be trying to organize your business:
- Employees who usually communicate with you or supervisors no longer do.
- Employees who typically did not spend time together start doing so.
- Employees immediately stop talking when you or a supervisor comes by.
- Employees start taking excessive breaks or loitering in the breakroom.
- Employees start complaining more frequently and about things they never did before.
- Employees start asking a lot of questions about company policies and benefits and/or talk about benefits and policies more frequently.
- Employees start complaining to you or supervisors in groups rather than individually.
- Employees start to form two different groups that, at times, are hostile to each other.
- Employees start using union terms in their discussions with you or supervisors, like: "seniority," "grievance," "bumping," "security," and "job posting."
- You notice a new "leader" among your employees.
What Employers Can Say To Employees Who Ask About Unions
Often, employers learn of a campaign when employees start asking supervisors questions about unions. Your responses to these questions are critical. If you say the wrong thing, you may commit an "unfair labor practice." An "unfair labor practice" is defined under the NLRA, and the National Labor Relations Board (NLRB) determines if an employer has committed an "unfair labor practice." An "unfair labor practice" includes an act that interferes with an employee’s right to establish, join or help a union. Employers who commit "unfair labor practices" are subject to significant fines and penalties. As a result, your communications to employees at this stage may be the difference between employees choosing a union or not.
Common Questions and Answers
Q: Do I have to sign a union authorization card?
A: No. You have the legal right not to sign a card. In fact, if you are happy with your working conditions, the best way to keep the union out is to refuse to sign a card.
Q: What does the union need to ask for an election?
A: The union needs signed cards from at least 30% of the people eligible to vote to have the NLRB to hold an election.
Q: One of the pro-union people told me that the union will get an election and win, and that if I don’t get on the bandwagon and sign a union card now, the union will have my job or see that I get nothing but lousy jobs when it gets in power. What can I do about this?
A: You are not required to sign a union card or even speak with a union representative. Even if a union is voted in the Company – not the union – makes hiring and firing decisions.
What Employers Can Say During A Union Election
If the union convinces at least 30 percent of employees to sign authorization cards and submits them to the NLRB, then an election will be scheduled. During the pre-election period, both the union and the employer are communicating with employees regarding the pros and cons of union representation.
Common Questions and Answers
Q: I signed a union authorization card, but I have changed my mind. I guess I have to vote for the union in the election now, correct?
A: No, you do not. You are free to vote as you see fit whether you have signed a card or not. In fact, you have the legal right to ask for your card back.
Q: Can the union people ever find out how I voted?
A: Nobody will ever know. The vote is by secret ballot, and you only mark an "X" in one of two squares.
Q: What would our Company’s position be if the union was voted in and we had to bargain with them?
A: Our Company would bargain hard for the things it believes in. We do not have to sign any contract that we do not believe to be in the Company’s best interest, and we certainly would not agree to any union proposal that we felt would cause harm to our employees or damage the future of the Company.
Q: What would happen to my present benefits if the union won and collective bargaining began?
A: If the union is voted in, there is no guarantee that wages or benefits will go up. They could go up, go down or stay the same. Collective bargaining is a two-way street.
Q: Is anything in the collective bargaining automatic?
A: No. By law, neither the Company nor the union is forced to agree to a particular proposal made by the other side. Both sides must bargain in good faith but the law does not compel either party to agree to a proposal or require the making of a concession.
Q: What if the parties couldn’t agree and the union called a strike?
A: When employees are pulled out on an economic strike, the strikers must face several hard facts. First, they may be permanently replaced so that their jobs are not available when the economic strike ends. Second, they will not receive a pay check or be eligible to collect unemployment compensation. Finally, no payments would be made toward health insurance or pensions.
Q: Why wouldn’t the union be good for the employees?
A: The Company believes that teamwork -- through close communication with the owner or supervisors -- is the key to success, and putting a third party – the union – between us is not good for teamwork. In addition, you would have to pay dues if you became a union member, and you would be subject to many union rules. If you did not adhere to these union rules, you could be subject to union fines and other discipline. Also, if the union went on strike, it would expect you to strike whether you needed your paycheck or not. These are a few of the disadvantages of unions as the Company sees them.
Q: Why wouldn’t a union be good for the Company?
A: Dealing with a union would tie up the owner and management in negotiations and handling grievances when they should be improving production and profits. The unions may try to get restrictive work rules that cut down on company flexibility, which would inevitably result in inefficient operations and reduce our ability to compete for customers. Mainly, though, we just want to continue to deal with you directly, instead of each of us hiring outsiders and letting them handle our affairs.
Q: The union says employees should "give it a chance" and that, if we do not like it, we can always vote the union out of office. If that is true, what have we got to lose?
A: That is not true. If you vote the union in, you cannot vote it out for at least 12 months, even if every single employee wants to. That is because of the NLRB’s "certification year" rule. During that 12 months, if the union and the company have signed a contract, you cannot vote the union out for the full duration of the contract up to three years. So, you could be stuck with the union for nearly four years with no chance to change your mind.
What Employers CANNOT Say To Employees About The Union --
Use the "TIPS" and Avoid the "PITS"
In talking to your employees about unions, the important acronym to remember is TIPS:
- No Threats
- No Interrogation
- No Promises
- No Spying
(You can also remember this by: "Avoid the PITS!"). Here are some examples of prohibited statements and actions:
- "If the union comes in, the company will close offices and lay off employees."
Threat. Employers cannot threaten closures or lay-offs to dissuade employees from voting for the union.
- "The company forbids you to support the union, sign authorization cards or speak to union representatives."
Threat. The NLRA protects employees’ rights to support and join unions.
- "The company will do everything it can to prevent a union."
Threat. Employers are prohibited from interfering with union organization. Saying the company will do everything it can implies that the company is willing to take illegal and coercive action.
- "If a union is voted in, there will be strikes."
Threat, and not necessarily true – there may be strikes, but there may not be.
- "If a union comes in, the bargaining process over wages and benefits starts from scratch or begins at zero."
Threat. You cannot imply that you will reduce wages or benefits if the union comes in.
- "If you do not vote the union in, I will address all your grievances (or increase your salaries or your benefits)"
Promise. Employers may not promise an employee any benefit that appears to attempt to prevent the employee from voting in favor of the union.
- Ask employees about their view on employees.
Interrogation. Employers are not permitted to poll or ask employees about whether they support the union. You can listen to employees who approach you and volunteer information.
- Require or ask one employee to determine the views of other employees on the union and report back.
Spying. Employers are not allowed to spy on employees, which may include monitoring phone conversations and e-mails about union activity.
- Forbidding employees from soliciting other employees during breaks or other off-duty times or in non-working areas, or banning union buttons or shirts without a valid business reason.
Although this conduct does not fall neatly into the "TIPS" acronym, the NLRA forbids this type of conduct. The employer can, however, ban union postings on employee bulletin boards if all other non-company sponsored postings are banned. Also, solicitation may be prohibited in retail areas and, for restaurants, dining areas during business hours. Healthcare facilities can generally prohibit solicitation in patient care areas at all times. Additionally, if the general public is excluded from the business property, the employer may also exclude non-employee union representatives.
What happens if a union tries to show that it has obtained signed cards from a majority of the employees?
Before an election is scheduled, a union organizer may claim that a majority of employees have signed authorization cards and ask the employer to recognize the union’s status voluntarily. The employer should not agree to look at the cards or ask to see the cards, and should not poll employees or take any other action to see if the union does, in fact, have majority status. If the employer looks at the cards or otherwise verifies that the union has majority status, then voluntary recognition may be established, which means the employees will not be able to vote in an election and the employer will be required to bargain. Instead, you should tell the union representative that you doubt the majority status and contact legal counsel.
Sample Union-Free Policy Statement
A WORD ABOUT UNIONS
Maintaining our non-union status is an important issue for our Company, especially in this economy. While we respect the rights of employees to select or reject union representation, we also believe that it is in everyone’s best interest to continue operating on a union-free basis.
Open communications and a direct relationship with our employees, characteristics of a non-union environment, are essential to our continued success. To preserve this, free of outside union interference, the Company is committed to providing a work environment that values open communications, fair treatment, cooperation and mutual respect.
We believe that by working together, all of us can build a stronger Company and provide greater job security for ourselves and our families, rather than having union organizers come between the Company and its employees. Together we can solve any problems that may arise, building a better Company for all of us, without the need for a union.
This site, and any of the information appearing on it, should not be considered legal advice. For more information on how these laws may affect your business, please contact an attorney.