With the labor landscape heightened with employee activism with all we’ve seen trending in the news, it’s vital that managers are educated and informed on the legal rights employees have when it comes to forming, joining, or assisting a union in organizing their workplace.
Anytime an employer interferes with these employee rights, the employer may violate the National Labor Relations Act (NLRA). Most recently, there have been allegations that Target Corporation has engaged in behavior to dissuade employees from exercising their rights under the NLRA, resulting in charges against the company.
Generally, most private employers prefer to work with employees directly. When a union is recognized, they will negotiate a contract concerning wages, benefits, and employment working conditions for represented workers. This process can become cumbersome for companies, with the potential to cause business interruption or delay.
One of the best ways to stay out of trouble with the National Labor Relations Board (the governing authority of the NLRA) is to educate your management on what they should and should not say when it comes to responding to labor relations activity.
Anyone defined as a “statutory supervisor” under the NLRA (regardless of internal job title) would be subjected to NLRA requirements when talking with employees about unions. A “statutory supervisor” is a person with direct influence or decision-making authority on other employment conditions for employees. In other words, if a person has the power to hire, fire, discipline, promote, demote, etc., they would like to be considered a “supervisor” per the NLRA. Pay, job title, and status level-exempt versus non-exempt are not the sole determining factors.
Here are four key reminders to review with managers on behavior to refrain from when engaging with bargaining eligible employees:
Threatening or Intimidating Behavior: It is illegal to take away anything or take adverse action toward employees who supports a union. It is also unlawful to fire employees who support a union. Telling employees, "If you get a union, everyone can be fired," (or similar statements) even if you don't plan to carry out the act violates the NLRA.
Promises or Guarantees in Exchange for Company Support: Management should not offer anything favorable for employees who support the company over the union. Statements such as, "If you don't get the union in here, we will give everyone a raise," is illegal. Making any promise to employees to fix or change conditions if they give leadership another chance is also unlawful and violates the NLRA.
Asking Questions About Unions: Do not ask employees anything about unions. Questions like, "How do you feel about unions; do you think we need a union here; why would anyone want a union; what is the union offering that can do for you; or would you consider giving us another chance…" all are illegal questions to ask. The NLRA considers this behavior to be "interrogating" for employees. Management should refrain from asking employees their sentiments on unionization.
Conducting Research or Spying on Activity: Despite how curious management may become, it is illegal to surveil or spy on employees who may talk or meet about unions. It is also inappropriate to determine which employees support or don't support the union. Even if a manager receives an invitation to attend a union meeting, they should refuse.
Remember that you are always free to share an opinion, fact, or experience personally held with unions. Suppose an employee approaches with questions about the union. In that case, it is appropriate to respond with an opinion about what you believe unions will or will not do for the business. Ensure that nothing stated would constitute a promise or threat. Lastly, here are two examples of how management can respond to union activity if an employee approaches you with concern:
Scenario 1
Employee: I overheard in the break room that some employees are going to a union meeting tomorrow after work. I don't know why they are going to this, but I thought you'd like to know.
Manager: Thanks for letting me know. It's certainly their right to attend a union meeting. I do not think a union is suitable for our facility because it would put a 3rd-party stranger between colleagues and management and prevent us from working on issues and concerns directly with each other.
Scenario 2
Employee: I saw a group outside passing out flyers that read, "Tell [company name] to Pay a Living Wage," and I think I agree and want to join the group.
Manager: Thanks for letting me know. You have a legal right to join that group if you want and participate during non-work time; however, I firmly believe that we have several benefits that are unique to our organization, and our pay is comparable with industry standards. I want to share with you why..."
Unions have been dormant for years, and it seems they’ve sprouted and now are spreading like wildfire. It is important to maintain engagement with your employees to understand how they may be feeling in the workplace. Continue to offer Open Door channels so that they have avenues to voice their concerns and be willing to openly listen.
Although every need may not be met, maintaining transparency and open communication with your team can mitigate labor risks for your organization.
Interested in more on this topic? On our Let’s Get Plugged podcast, we aired an episode on unions, and the true problem the workplace is facing that unions won’t even be able to resolve.
Check out that episode here.
If you would like to schedule some training for your management team on this topic, please contact us to discuss your need. We are happy to help.