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Most employers are reluctant to talk about unions and haven’t done it.
They should switch gears, however, and start encouraging supervisors to discuss unions to prevent their workforces from becoming unionized, as long as supervisors are trained on what they should and should not say, said Robert Brody, an attorney with Brody and Associates in New York and Westport, Conn., in a Nov. 8, 2012, firm webcast.
All facts, opinions and examples (FOE) are fair game for managers to discuss, he explained, but threats, interrogations, promises and surveillance (TIPS) are prohibited.
In training supervisors, focus on what’s legal rather than what’s not, Brody added. Encourage your management team, and say, “we have a right to talk about FOE, and we should,” he recommended.
Supervisors should have a few facts about unions in their pockets and be ready to share them with employees.
For example, if anyone says anything about unions, the manager could say “unions charge dues. Dues are equal to two hours of pay.” Do the math at your organization so managers can say how much the cost is. If dues would cost $500 a year, then have supervisors give specific examples that will resonate with workers, such as saying, “For $400, you can go to a Giants game. Or a ticket to a professional soccer game. Or buy kids this or that thing they want,” Brody said. Unionized employees, he said, have to spend money on the union, while nonunionized employees can spend their whole paycheck on themselves, their family and friends, he noted.
“Unions stink.” Supervisors can say that, because it’s an opinion, but that’s not very effective unless it’s said by a credible person to employees who explains why he or she thinks unions are a bad idea.
Supervisors need to be ready to explain why they think unions are no good and why, and they need to express themselves assertively.
“Everyone on the management team needs to know that. They can’t act scared, and can’t act like they don’t care,” he said.
Supervisors also can give examples of what unions do.
“I’m upset about the game the Green Bay Packers lost because of replacement refs. Strikes led to that,” is an example supervisors could use.
“Up and down the East Coast, nursing homes have been on strike for months. Imagine if your parents or you were there,” is another pertinent example.
Supervisors cannot, however, make threats like, “I’ll fire you if you support the union,” “We’ll close the plant” or “I’ll never reach an agreement with the union.”
Usually, threats involve something financial, Brody noted.
Some financial statements are fine, because they aren’t things the employer is threatening to do, but are facts. Brody says supervisors may say, “Unions can cost dues and go on strike” or “If you go on strike, you will not get paid.”
Many reasonable-sounding questions about unions are off limits, so train managers not to ask questions about unions, Brody recommended.
All of the following questions by supervisors about unions are prohibited: “Why do you want a union?” “What’s the union going to do?” “What’s the union promising?” “Who went to a union meeting?”
“All are reasonable, understandable questions, and all are unlawful,” Brody cautioned. He said employers have to train supervisors “because they have no idea about this.”
Also, supervisors may not talk about union activities in management offices or employees’ homes. Period.
They should not raise the topic of unions there, but “anywhere else in the world they can.”
Although some questions are legal, the simplest thing is to train managers not to ask any questions, Brody said. “Make it easy. Don’t ask questions, just make statements.”
“How do you get a conversation going without questions?” Brody asked. “Just give opinions and say them loud and long, and I’ll bet you get a response.”
Conversation-starting opinions might include “I think a union is the worst thing that could be done to a company,” “I think a union will destroy the great things we’ve done” and “I think it would be horrible if we get a union.”
The supervisor may get someone saying, “What the hell are you talking about?” or “Why are you talking about unions?” The reactions get the conversation going, which, Brody said, is “all you really want.”
The flip side of threats is supervisors can’t try to bribe employees to not have unions. The supervisor should not say, “If you oppose a union, I promise not to do things I threatened to do,” or “I promise I’ll give you a raise, preferred hours, a better shift, an easier machine or better customer to work with if you oppose the union.”
Employers also may not secretively watch people supporting a union. If supervisors never walk in the lunch room, and the union shows up and suddenly supervisors are in the lunch room, “you’ll probably get hit with a charge of surveillance,” he cautioned.
Employers should “make sure there’s no place in your business your managers don’t go. Make sure that’s true. Don’t make any place off limits,” Brody recommended.
Also, supervisors should not give the impression there is surveillance. They shouldn’t, for example, say, “Hey, I heard there was a union meeting last night” or “I heard you were at a union meeting last night.” How does the supervisor know that? These statements create the impression of surveillance.
Instead, a supervisor could say, “A bunch of employees told me you were at a union meeting last night.” By specifying that the supervisor heard it from employees, the employer does not leave the impression that it had obtained the information through surveillance.
Don’t Stick Head in the Sand
The one way to be sure you never break the law is to never talk about unions and stick your head in the sand, Brody noted. “You’re not going to break the law” that way, but you will get unionized, so that’s an approach “that does not make any sense,” he remarked.
“Remind supervisors they have the right to talk about unions and employers want them to talk about unions,” Brody said. Otherwise, union organizers will have a one-sided conversation with employees about unions.
With the possibility of quickie union elections resurfacing
after a court order against them and the Obama administration ratcheting up enforcement, Brody believes supervisors “should be talking about unions today.”
Allen Smith, J.D., is manager, workplace law content, for SHRM.
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