From the Labor & Employment Practice.

How To Be And Remain Union-Free

April, 2000  | By Donald F. Burke

(Labor & Employment Newsletter – 2000)

Unions are a mere possibility. They are not inevitable. Since their heyday in the 1950s, the organized workforce has shrunk from around 35 percent to approximately 10 percent of the total private-sector workforce. This trend is continuing and instructs us that employers who take the threat of unionization seriously and have a true commitment to reducing this threat by lawful means are likely to be, and remain, union-free. The key to remaining union-free is “doing what is right and fair” to employees. “Doing what is right and fair” results in a clear advantage to the employer faced by union organizing activities. As a consequence of “doing what is right and fair,” employees will ask the organizer, “who needs the union anyway,” and “why should I pay for what I already have?”

Collective experience has shown us that a union is a creature of worker discontent. The union depends upon an unhappy workforce to get its foot in the door and, once there, to fan the flames of discontent through organizing activities. Sound and effective personnel administration is the best medicine against any union, and the employee relations program should be implemented long before the union arrives at the door. Thereafter, it must be maintained and carried out with consistency. Of course, remaining union-free is just one of many by-products of an effective employee relations program. A workforce with high morale tends to be a more productive workforce, and that contributes directly to the employer’s bottom line.

A sound employee relations program depends upon effective communication, and effective communication is always a two-way street. Workers who feel they have an individual voice – – and a voice that will be heard — are unlikely to want outsiders to speak for them. And, when faced with a demand for union recognition, the voice of the employer who is trusted by his workforce will not fall upon deaf ears. Sound personnel administration is a two-way street. Employees must be given fair ground rules that they can follow, and that they believe the employer also will follow and follow consistently.

Personnel policies should be reduced to writing, preferably in a centralized source such as an employee handbook or manual. Standards for employee discipline and conduct should be clearly articulated. Because effective personnel administration is a two-way street, standards for management also should be included. Productive employees are valuable and they should be told so. Remember, workers who are treated fairly and consistently are unlikely to pay dues to a union that promises to obtain what they already have. To that end, some sort of employee complaint procedure also should be included in the manual or handbook. This need not be a formal arbitration procedure, such as that imposed by the standard collective bargaining agreement. Depending upon the size of the firm, the procedure may take any variety of forms from an informal grievance policy to a more formal multi-step resolution procedure.

Finally, and specific to union organizing, the employee manual or handbook must also contain a well-defined “no solicitation” policy. An employer has the right to prohibit solicitation of its employees on company property during an organizing campaign. Distribution of outside literature of all sorts should be expressly prohibited, as should solicitations by all outsiders on the employer’s premises. The “no solicitation” rule must be firmly in place prior to any union activity, and the rule should not single out union organizers. This will prevent the union from claiming an unfair labor practice when their agents are identified and removed as trespassers during an organizing campaign.

Supervisors also should be trained on how to respond to potential organizing activity. The training should include information and instructions on what supervisors can and cannot say during organizing campaigns. For example, supervisors may actively campaign against the union and specifically ask employees to vote no at the election. However, they cannot threaten discipline or discharge for a pro-union vote. It is crucial that employers insure proper supervisory conduct during organizing efforts, since an unfair labor practice committed during such efforts can lead to an NLRB “order to bargain” even where the union does not enjoy majority support among the workers. That is, where an employer unfairly influences an election, the NLRB can set the results (in favor of the employer) aside and order the employer to recognize the union.

In summary, prudent employers who take the threat of unionization seriously must have a well thought out plan for combating organizing attempts; have relevant personnel policies in place long before any organizing activities take place; and stand ready to articulate the employer’s position in a lawful manner when faced with an election campaign.