The Legal Background
The legal landscape for employer-employee relationships in the context of organized labor is defined primarily by the National Labor Relations Act (NLRA). Congress passed the NLRA to protect employees’ rights to engage in activities organized by and on behalf of a labor union. The NLRA has two primary functions that affect the workplace. First, the law protects employees’ right to organize and collectively bargain through a designated representative and prohibits employers from interfering with that process. The second function is to prohibit employers from engaging in coercive activities designed specifically to disrupt or interfere with the formation and development of labor organizations.
The NLRA applies to almost all non-supervisory private sector employees regardless of unionization status. The law leaves certain public and private sector employees outside its terms but it specifically encompasses employees in all 50 states, who engage in its covered activities or interactions unless otherwise specifically excluded . Thus, certain public school teachers, federal government employees, agricultural laborers, certain independent contractors, rail and airline employees, and certain domestic service employees are outside the terms of the NLRA’s coverage. Conversely, workers at Indian casinos, employees of clergy and religious orders, agricultural employees on small farms and small non-profit hospitals are generally covered by the NLRA.
As already noted the NLRA protects employees’ rights to organize and almost all employees are subject to this protection. Thus, private sector employers and employees in Iowa, Georgia, Michigan and China are within the NLRA’s terms. There are other notable international considerations for employers with international employees, such as whether the receiving Country recognizes and authorizes union organizing by employees, whether the host country for the employer’s out of country work-site is a country that treats unions and union organizing favorably or unfavorably, etc. Canadian employers must comply with Canadian law on matters of union organizing and union relationships.
Communications Policies That Work
An overarching theme of this article is that in order to reduce the chances of a union entering a workplace, employers must be proactive in addressing employee concerns. An important step in a successful response to the emergence of a union is the implementation of a regular communication policy with employees. Not only does such policy show employees that the employer is listening to them and engaging them, it increases management’s awareness of employee concerns, reducing the chances of a grievance, employee action, or even the solicitation of employees by a union.
The policy should balance the need for information to be conveyed to the employees while respecting their right to respond. The best way to ensure balance is to create a schedule. For instance, we recommend quarterly meetings and quarterly surveys. While control of the message is an issue during meetings, if the purpose is explained to the employees, they can be encouraged to speak their minds at the meeting, increasing trust between the employer and employees, while allowing the employer to see what concerns the employees have.
The quarterly survey is arguably the most effective tool for getting employees to communicate their concerns because it gives the employee the opportunity to answer questions confidentially. The survey may help the employer become aware of employee concerns that are unknown to the employer. You will most likely be surprised by the problems you were not aware of, or did not understand, that the survey can bring to the surface.
While meetings and surveys are taking place, you can expect to see a boost in employee morale, as well. The more communication there is between you and your employees, the more they will appreciate your taking time out to pay attention to them. This leads to an increased sense of being heard and an overall better workplace environment.
New laws and new regulations are constantly being passed on both the state and federal levels. The legal landscape for employers is always shifting, and it can sometimes be difficult to keep up. Nevertheless, there are ways to effectively address employee concerns, reduce litigation risks, lessen the chances of unionization, and protect both the company and the employees.
Competitive Compensation Is Crucial
Competitive wages and benefits have long been used as a tool to head off unionization. After all, the prospect of a better deal may be difficult for a union organizer to effectively tout when an employer is already paying competitive wages, providing quality benefits, and offering a generally favorable work environment.
For this reason, employers should continue to ensure that their facilities, departments, and individual employees are receiving wages and benefits that are on par with their industry peers and what employees would otherwise expect through union representation. Right now, it is no secret that wages in the labor market have risen to heights unseen since before the recession—an increasing number of employers are raising wages to meet the market demand, while raising benefits and allowing more flexibility for employees (e.g., better access to time off, flexible schedules, ability to occasionally work remotely, etc.). Employers should take note of their compensation competitors to ensure that they are providing compensation similar to their January 2015 competitors.
If raising hourly wages and/or investing in new benefits is a foregone conclusion, the key is to avoid taking a "one-size-fits-all" approach to compensation. The goal should be to provide compensation consistent with employee expectations. Pay increases, for example, should get to know the expectations of its workforce. Similarly, if an employer improves its vacation and sick policies, it should do so with employees’ needs in mind, allowing employees to take off time as needed rather than restricting such time off to only certain categories.
For example, a manufacturing plant that employs a significant percentage of females should fully assess its PTO policy. Does the PTO policy provide enough days for females to undergo routine medical examinations (e.g., annual exams and related procedures)? If it does, would it not be prudent to add a few more for those procedures with the understanding that union represented facilities often have PTO banks that provide more time? An additional day may not be a lot to offer, but when union is a real threat an employer cannot affording ignore even the smallest details.
Employers who want to stay ahead of the game should continue to raise compensions. Just as the last three years have proven that your competitors are likely to raise compensation, the next three years will likely yield the same result.
Establishing a Workplace Culture
Beyond the legal strategies and union avoidance tactics, employers can also create a positive workplace culture that proactively deters unionization. Union organizers are typically looking for grievances and concerns to elevate during an organizing campaign, such as pay, hours and other working conditions. The better employers are at proactively managing their workplace culture and addressing any issues before they become problems, the less likely employees will be receptive to union solicitations.
Recognition programs are one example of a tangible tool to ensure employees feel valued and appreciated. Providing recognition programs to acknowledge the good deeds and accomplishments of employees can drive employee motivation. Such programs can enhance company loyalty and help dissuade employees’ interest in seeking third-party assistance via unionization.
Additionally, career development and training provide employees with the ability to climb the corporate ladder. Many organizations seek to hire from within, and for those organizations, it is important to equip employees with the necessary training and knowledge to compete for advancements. This helps foster the continued growth of the employee and the employee’s commitment to the organization.
Finally, employer engagement is critical. Employers should show employees that they care about the employees, their needs, and their overall happiness in the workplace. Providing diverse social and networking opportunities also helps employees connect and build relationships with one another, creating a sense of belonging.
Providing Employees With A Voice
Employers are not only required to provide employees with information about collective bargaining. They also must allow employees the opportunity to speak or complain about working conditions and respond appropriately to those complaints. Additionally, employers may, and should consider, implementing opportunities for employees to provide feedback and input regarding the terms and terms of employment. There are many ways employers can satisfy this obligation and implement programs that will result in more positive employee relations. While many employers utilize suggestion boxes, invite input and suggestions at employee meetings, and provide other channels to collect feedback and suggestions for employee improvement, these efforts are not a collective bargaining "short cut." Rather, they are effective programs that benefit both the employer and its employees.
While often used as a suggestion box, a comment box provides employees an anonymous opportunity to complain, or suggest changes, to terms and conditions of employment. While the employer may believe that such boxes are an effective means to "stay ahead of" employee concerns, and intervene before grievances arise, the comment box can be used for other, non-work related issues that cause a loss of production. For example, the employer may receive comments regarding co-workers, personal grievances, or concerns about the time and process for breaks. Such a comment may not have any bearing on a terms and condition of employment, but it does consume significant amounts of the employer’s time to address because the employee believes the employer should address it.
Typical issues raised by employees provide positive feedback to the employer, or perhaps reasonably identify that a change in the workplace would be helpful, or enhance productivity. An employee might suggest that the break period be extended by five minutes, or that the lunch period be extended by ten. The employee might suggest that dress code be relaxed on Fridays. Or the employee might simply suggest that the company do more for special occasions or events. Each of these comments, coupled with the employee’s name, can provide valuable information – particularly if they build on similar thoughts from other employees.
But , the employer must be cautious. If the employee identifies a problem then, as employer, you must be prepared to act. An employee’s gossip or rumor that the product line is being discontinued should be confronted immediately. The union will not respect the employer or be deterred by the rumor, even if it is refuted immediately, and may claim the employer’s immediate response, in fact, is evidence the rumor was accurate.
Employee committees can be created for a variety of reasons – including to allow employees a forum to air their concerns and identify opportunities to improve operations. Employers often provide incentives for employee participation on these committees, including gift cards to local restaurants, or gift cards for stores the employee frequently shops. The employer may also offer time off from work or flex time in order to participate on the committee. Employers should be aware, however, that such participation may not be free.
If the employee committee is simply a complaint board, or a way for the employee to hand-off problems to a committee and then moves the employee away from the management/owning group, the employer might find the committee does more harm than good. A committee must not only address issues during the normal course of business, the committee must be utilized in a proactive manner, and the team should be willing to recognize when a decision is in the best interest of the employer, and not just on the basis of its effect on the employee. A food services committee may seek simply to change from pizza to tacos once per month, but if the employer’s business is growing rapidly, it can hardly dictate the pace of growth to accommodate a committee decision. If the movement of employees within the company and to other assignments, as needed, is not in the best interest of the employer, simply changing those positions for the employee’s convenience is not a business decision, and should not impact the employer’s decision whether to implement the change.
If the employer determines that an employee committee is desirable, there are many opportunities for such committees to improve employee relations, and promote a positive workplace.
Training Management In Labor Relations
It is crucial that management officials who interact with employees on a day-to-day basis are trained on the dos and don’ts of labor relations. Well-trained supervisors require less ongoing oversight, which will reduce costs of unionization in the long-run. Conversely, supervisory mistakes and missteps on labor relations issues can have long lasting consequences, both in the workplace and at the bargaining table. It is impossible to quantify all of the legal risks to which poorly trained supervisors expose their employer.
One strategy to manage these risks is to take a proactive approach to the union avoidance process by including regular labor relations training in management meetings, especially for entry level supervisors. (However, be alert to the dangers of "cannon fodder" training, which is training in which the participants have no reason to think the material is especially important and are therefore more likely to make mistakes). Since these are typically the individuals who have the most contact with your front line employees, a short, regular refresher course on the basics of labor relations and the legal limits on their interactions with employees can be a very useful tool.
When communicating with non-supervisory workers, managers and supervisors should encourage feedback from employees and let them know that management is willing to listen to their concerns. Effective communication with employees will allow management to stay on top of any employee dissatisfaction that may prompt union solicitation activities. Listening to worker criticism or complaints does not mean managers or supervisors should agree with or take action on every criticism voiced by employees. However, it is vital that managers and supervisors know the appropriate response when employees are discontented with actions taken by management or conditions at the workplace.
Management should also be familiar with the legal limitations on their ability to respond to employee questions about a union organizing campaign. Violating these limitations can lead to significant legal liability, as well as jeopardizing the efforts of any management communication campaign already in place. For example, an employer is not prohibited by federal labor law from expressing anti-union sentiment in a non-coercive manner. However, if a supervisor makes a statement about the company’s position on unionization in response to an employee’s inquiry, the statement made by the supervisor may be construed as an illegal threat of adverse action against the employee. Because of the unpredictable nature of these generally non-verbal communications, there must be sufficient training on labor relations issues to prepare managers to field worker questions in an appropriate and legally sound manner.
Establishing A Response Plan
Employers facing the possibility of an organizing campaign should consider whether it makes sense to develop a strategic response plan. The absence of any strategic plan, including a long term approach to employee communication and engagement, is likely to result in a strategy developed by a union. Legal requirements for responding to information requests from employees, timing, and what can be said during informal or formal solicitation efforts are all aspects of union representation campaigns that the employer must understand and have an organized response for when the need arises. Early consultation with counsel on a response plan should be part of the strategy. This response team should include HR professionals and others in the organization who consult frequently with employees or will likely get questions about the union campaign. In addition , the employer should prepare messaging materials such as fact sheets and bulletins that can be used both on an informal basis and during formal solicitation. In this regard, frequent reviews of these materials during union election campaigns is important. The use of trained spokespersons, such as an executive or trusted manager, to communicate with employees about the campaign is recommended, along with regular messaging as part of the employee communications strategy. Finally, employers should consider the need to identify an attorney or law firm to advise on the legal issues that may arise during an organizing campaign.