If you’re in an HR leadership position, you are not required to be neutral when it comes to union activity. To the contrary, your employer generally has the right to require that you engage in lawful efforts to help the employer resist unionization. This reality is not always understood by HR professionals.
Creating a rapid response team to address union activity can go a long way toward encouraging employees to consider all the facts before deciding whether to sign a union card. But how does a company know when it’s time for a rapid response team to meet, when the team should be assembled, who should be part of the team and what its message should be?
Here are some tips for responding quickly when unionization clearly is underway.
Goal of Rapid Response
Suppose two supervisors tell a manager that they have heard a few employees talking in the break room or on social media about the benefits of forming a union. It would appear that the company’s union awareness training for supervisors has produced the desired result: The supervisors have reported direct signs of union activity. Now what?
With this early detection, the employer can launch a rapid response. The goal is to provide employees with facts so that an insufficient number of them will sign authorization cards to force an election sponsored by the National Labor Relations Board (NLRB). Once employees understand the reality of having a union—including the potential risks—they will be less likely to sign a card.
Ordinarily, the employer will want to gauge the level of the threat. While it doesn’t want to underreact, it doesn’t want to overreact, either.
That is why it’s time to convene the rapid response team. Formation of the team should occur prior to, and independent of, any suspected union activity, and its members should include a cross section of supervisors and managers across the workplace. HR professionals who are not employees as defined by the National Labor Relations Act (NLRA) should also be on the team.
The employer is forbidden by the NLRA, as interpreted by the NLRB, from interrogating employees. But by ensuring that its supervisors and managers on the team are not employees as defined by and subject to the protections of the NLRA, the employer may ask the team members what they know about plans to unionize. For example, the employer can ask questions like “Have you heard anyone talk about forming a union?” or “Have you seen any authorization cards?”
Supervisors and managers may worry that acknowledging union-
organizing activity will reflect negatively on them. More specifically, supervisors may worry that their knowledge of union-organizing activity, perhaps by employees who report to them, may suggest to senior leadership that they are the reason for the employee discontent.
In fact, the opposite may be true: When employees feel comfortable sharing their concerns about union organizing with a supervisor, it may be a sign of trust and respect.
Nonetheless, knowing that supervisors may be hesitant to share information, consider asking them to respond in anonymity as to whether they think pockets of union support exist and where those pockets are. It is amazing how many supervisors will point to the same one or two areas.
If doubt remains, supervisors may be able to learn more from employees. The employer must make it clear to supervisors that they cannot interrogate employees. However, even without asking any unlawful questions, supervisors can lawfully position themselves to be aware of issues of concern to employees because employees will often open up when they see an opportunity to do so, especially if the supervisor has strong people skills.
In some cases, the employer will know enough to respond to union activity without going beyond a quick meeting of its rapid response team. In other cases, the employer will reach that conclusion only after it has completed some lawful exploratory work.
How Unions Organize
There are two ways a union can be formed to represent employees. The first is through voluntary recognition, where an employer opts to recognize a union without the holding of an election. Employers are well-advised to make it clear that no supervisor or manager has the authority to recognize a union voluntarily. The other way a union can be formed is through a National Labor Relations Board (NLRB) election; if 30 percent of the employees in an appropriate bargaining unit sign authorization cards, the NLRB can be petitioned to conduct an election.
The definition of “employees” excludes supervisors, managers and confidential employees as defined by the National Labor Relations Act and cases interpreting it. Confidential employees include most HR professionals, but not necessarily all of them. —J.A.S.
In either case, the employer needs to have communications ready to go. Time is of the essence, and if the company waits to draft communications in response to the problem, it increases the likelihood that the union will get enough authorization cards signed to force an election. Once a union election is scheduled, an employer victory would require more money and time than if it had acted earlier.
The employer needs to craft two rapid response templates—a memo for employees and talking points for leaders—that can be customized and deployed quickly. The company should also translate these messages into languages other than English as much as it reasonably can to reach as many employees as is reasonably possible.
It is important to note that this initial message should not discourage employees from unionizing. Asking employees to reject unionization based on one communication is asking too much too quickly. Instead, the employer should convey the message that it hopes employees will exercise their right to refrain from signing a union card until they have all the facts. Some of the areas the employer will want to address include:
- The potential emptiness of union promises.
- The reality of give-and-take in collective bargaining.
- The risks and costs of potential strikes.
- The cost of union dues (in states where employees can be mandated to pay union dues).
- The absence of a voice in right-to-work states, where employees cannot be mandated to pay union dues.
- The potential impact of a union on business operations.
- The change in the relationship employees will have with their supervisors if a union election succeeds.
Make sure the union-organizing process is explained so employees understand the potential risks of signing an authorization card, which is a legal document. Also, raise the following point with employees: If the union or its agent presses you to sign a card immediately, ask yourself, “What doesn’t it want me to know?”
No matter how well an employer treats its employees, union activity can happen. Complacency is a union organizer’s best friend. Prepare—hopefully for naught—but do prepare.
Jonathan A. Segal is a partner at Duane -Morris in Philadelphia and a SHRM columnist. Follow him on Twitter @Jonathan_HR_Law.
Illustration by Adam Niklewicz.
Indirect Warning Signs
Supervisor training should include guidance for recognizing indirect warning signs that may indicate union activity, particularly if there is a pattern of them. With more and more union activity happening, focusing on indirect warning signs in supervisory training may be necessary to ensure that the employer has the opportunity to reach employees before enough authorization cards have been signed to compel a union election. By the time there are direct warning signs, it is often too late, at least to avoid an election. Note these three examples of potential indirect warning signs: out-of-the-way/offsite meetings, conversations that end when a manager approaches and an increase in employee questions that are adversarial in tone. —J.A.S.