Unionization: What Employers should know & do to be pro-active against increased efforts.
With unionization efforts on the rise, employers are increasingly finding themselves in the difficult situation of having to navigate these uncertain and often contentious situations with their staff. Of course, the best defense against such a possibility is an even better offense, and all employers can best prepare themselves against these efforts by putting their business in the situation where staff does not feel the need to unionize to begin with. Nonetheless, even in situations where the best attempts are made to do the right things, there is no guarantee that such activity won’t present itself in your workplace. When this happens, how you respond is critical to the overall outcome, but also in determining whether you inadvertently get yourself into more trouble.
To help prepare you for a situation like this, we’ve assembled an introduction to all-things unionization, including an overview of employee and employer rights, and best practice tips for preventing and responding to a campaign inside your business.
An Overview of Laws, Rights, and Employee Protections
Employees’ rights to unionize are defined and protected by the National Labor Relations Act (NLRA) and the board assembled to protect these rights (the NLRB). Under this federal law, employees are given the legally protected right to engage in “protected concerted activity” which seeks to address work-related issues, including things like wages, benefits, or working conditions. This “protected activity” includes actions that employees must be allowed to participate in, and without fear of retaliation or negative employment action (for example, being disciplined, fired, demoted, etc.). Examples of this activity include behaviors and actions tied to unionization efforts, but does not have to be. This includes things like employees discussing their wages, making complaints about unsafe working conditions, starting an online group to express unhappiness with management treatment, or even sending an internal email chain to complain. It is important that employers understand that whether tied to unionization efforts, or just as a part of everyday employee behavior, actions such as these may be considered protected, and therefore disciplining employees for them could result in claims or violations with the NLRB, called “unfair labor practice charges” (ULPs). Often this is where employers dig a deeper hole for themselves when responding to initial unionization efforts in hopes of squelching them early. The result is ULP charges to defend, an unfavorable PR scenario, all on top of the already existing challenge (see the Spot Coffee and Starbucks).
As a counter point to the above there is certain employee activity that is not considered protected under the NLRA. For example, employees are not protected when they say or do something that is obviously exaggerated, incorrect, or offensive, including if something is said or done when the reasoning or justification is knowingly false or intentionally malicious. Also, if an employee makes complaints or public statements that are disparaging to the business, including any products or services, and they are not related to any potential work-related issues, this activity would also not be protected.
The takeaway? Employers need to understand that there are protected employee rights tied to making complaints, which are tied to the employees’ rights to unionize. This makes controlling this often-disruptive behavior tricky, especially when dealing with unionization efforts directly. Employers should proceed with caution before taking negative action for such behavior, but employees do not have unlimited rights in this realm. Making sure everyone in a position of leadership knows the difference between what they can and cannot take action against is extremely important in these times, so taking some pro-active measures to educate your teams is highly encouraged.
Preventative and Preparatory Measures
As we said before, the best defense is often an even better offense, and in the case of keeping a union out of your business, that is most certainly true. The simplest way to increase the odds of keeping this activity out of your workplace is to create a workplace where employees are satisfied with conditions. This includes doing things like paying fair wages, providing satisfactory benefits, providing consistent and reliable working hours, and ensuring a safe environment. Second to this, and perhaps even more important, is ensuring that when employees do have concerns, they do not feel there is a need to bring in outside representation to be heard. This involves creating both the mechanisms and the environment that encourages and facilitates communication.
Like any relationship, communication is an essential and critical element to the employer-employee dynamic, but often one that is overlooked and underappreciated. The health of communication activities in an organization is very much dependent on elements like trusting relationships with Managers, and also the opportunities that are provided for feedback and communication to occur. Making sure positive relationships are built and maintained, and that processes and standards are established for feedback, will help create an infrastructure and environment where employees feel encouraged and safe to bring issues to light. Some examples of tactics to do this include open door policies with leadership, suggestion boxes, or town hall meetings.
In addition to the above ideas, a less formal, but probably even more effective method is encouraging, or even requiring, regular check-ins by Managers with their teams. As we mentioned above, the relationships between employees and their leaders likely impacts communication health more than anything. Standards which encourage your leaders to have regular one-on-ones with their staff will help make these stronger. Studies endlessly show that the quality of the relationship an employee has with their Manager directly correlates with how they feel about their employer overall. This includes an employee’s feelings of trust, resentment, etc.- all things that affect communication. Making sure you have well-qualified and well-trained Managers in place communicating and engaging with employees will help make it far more likely that when there are issues, employees will bring them forward instead of feeling they need to seek outside representation.
What to do if organizing efforts come to your organization.
Whether justified or not, even with the above efforts, you could still find yourself with a budding union inside of your business. If this happens, the best possible advice is to avoid reacting, and call a professional. As is somewhat illustrated above, the legal landscape of protected activity is complicated, and between the potential pitfalls in this area, as well a publicity standpoint, having a professional guide you through decision making will be far worth any costs involved. Such professionals include expert HR Firms (hi!), or a labor attorney. Unionization efforts are usually highly emotional journeys, so having an unbiased, steady hand on the wheel is an extremely wise decision to keep you on the right path and give you the best odds of a positive outcome.
