The "u" word - union avoidance programs - Legal Trends

One of the most common misconceptions is that a union-avoidance program consists of nothing more than good employee relations. While positive employee policies and progressive supervisors are necessary if a company is to remain union free, these are not sufficient. No matter how stellar a company's policies and supervisors may be, there always will be malcontents who may try to organize the company. Though not every company is organizable, no company is immune to an organizing campaign.

Union-avoidance basics

A comprehensive union-avoidance program does more than prevent unions from being elected. It prevents elections from initially taking place, a situation in which the victories are pyrrhic in light of the financial and emotional toll that the organizing drive exacts. At a minimum, a comprehensive union-avoidance program should include the following elements.

Solicitation and distribution policy. Generally, it is lawful for an employer to restrict solicitation by employees to nonworking time. Also, distribution of literature generally can be restricted to nonworking areas during nonworking time. Moreover, nonemployees generally can be prohibited from soliciting or distributing literature on the employer's premises at any time.

A no-solicitation policy that incorporates these general prohibitions will limit a union's ability to reach your employees. Such a policy, however, almost always will be unlawful if it is promulgated in response to a union-organizing drive. Moreover, even if the policy is lawful in its inception, it can be unlawful in its application. For example, if the company allows the Girl Scouts, Tupperware or the United Way to solicit or distribute in violation of the policy, to deny the same to the Teamsters or United Auto Worker's would be unlawfully discriminatory.

Consequently, it is important that a company implement its no-solicitation and distribution rule before it knows of any union activity. Moreover, the policy must be enforced consistently

No-access rule. Since unions are more successful in organizing companies from the inside--particularly where an effective no-solicitation and distribution rule is in place--increasingly, the union organizer is not an outside union agent but an employee. In companies that have multiple shifts, and employees are permitted to be on the premises before or after their shift, the union organizer has a window of opportunity in which to campaign.

To deprive the union of this opportunity, it is generally recommended that employees be prohibited from being on company Premises, except during their working time. But, again, for this prohibition to be an effective tool against union organizing, it must be applied consistently and not adopted solely to counteract union organizing.

Communication. Most companies are afraid to inform their employees of the organization's Position on unionization. Employers believe that, by raising the issue, they may bring about the problem they are trying to avoid. This is no more true than the argument that sex education in high school creates impulses in teenagers that they never would have had before the education.

Virtually every employee, at a weak moment, cogitates about the possible benefits of unionization. For this reason, every employer should inform its employees about why it is in their self-interest to remain union free.

Of course, the manner in which an employer communicates its union-free position is fraught with legal implications. For instance, employers must be careful not to make any explicit or implicit threats of adverse employment consequences if the employees exercise their right to unionize.

In this context, explaining to employees the legal significance of authorization cards is critical. By signing an authorization card, the employee ordinarily is joining the union. And, with enough cards in hand, the union can force the employer to an election. Consequently, employees should be encouraged not to sign any cards until they have had an opportunity to hear all of the facts.

Appropriate bargaining units. Under the National Labor Relations Act, a bargaining unit need not be the most appropriate unit; it need be only an appropriate unit. Consequently, a unit smaller than company-wide is often appropriate.

Unions are finding it much easier to organize smaller bargaining units. For instance, in 1991, unions were successful in only 20 percent of their campaigns involving bargaining units of 500 employees or more, but they won 51.9 percent of their campaigns in which the bargaining unit had fewer than 50 employees. Consequently, unions are continuing to go after smaller pockets of dissatisfaction.

Employers can minimize the likelihood that anything other than the entire plant, store or division will be found to be an appropriate unit by ensuring that all aspects of the organization are integrated in terms of personnel policies and labor relations. Cross-training of employees, transfers between departments and cross-supervision are only some of the things that employers should do to increase the likelihood that they will prevail on any bargaining unit question.

Supervisory education. Perhaps the most important element in a union-prevention program is supervisory training. It includes six key elements. * First, supervisors need to be educated that it is their responsibility to keep the company union free. Consequently, if an individual is a supervisor within the meaning of the law, he or she can be fired for engaging in union activity * Supervisors also need to be educated as to why it is in their self-interest to keep the company union free. If a union is elected, all the discretion that employees take for granted will be gone. Everything that they do will be regulated by a collective-bargaining agreement and can be challenged by the union through the grievance procedure. And the supervisor's worst employee, invariably, will be the shop steward. There are a number of participatory exercises that demonstrate this point. * Though supervisors need to understand why it is in their self-interest for the employer to remain union free, the company cannot create zealots who crush protected activity. Supervisors must be educated as to the limits of permissible persuasion. By way of illustration only, supervisors cannot interrogate employees about union activity, threaten employees with adverse employment consequences if they engage in union activity, conduct surveillance of possible union activity, or promise employees benefits if they refrain from union activity * To be effective communicators in the event a union drive emerges, supervisors also need to receive information about why having a union is not in the best interests of the rank-and-file employees. For example, unions frequently promise employees that, if they are elected, they will increase wages by a certain amount. The reality is that these promises are entirely meaningless, because the company has no obligation to fulfill any promises that the union may make.

But in this, as in every area, conveying the truth is fraught with legal minefields. For example, although a company lawfully can tell employees that it has no obligation to fulfill any of the union's demands, it cannot convey a sense of futility The principle is easy to articulate but often difficult to apply.

Because the lines drawn by the law are fine ones, written materials should be prepared. Otherwise, supervisors may engage in objectionable behavior that subsequently will be used against the employer. * Supervisors also need guidance as to what they should do if confronted by a union organizer. For instance, what if a union organizer wishes to establish majority status by showing supervisors authorization cards signed by their employees? The answer is that, under no circumstances, should supervisors look at the cards. If they do, any action taken against an employee who signed a card is automatically suspect. Worse yet, under some circumstances, by looking at the cards, if the union has majority status, the employer may be compelled to recognize the union without an election. * Finally, supervisors need to be trained to recognize the signs of possible union organizing. Because if the company can nip the campaign in its bud, it can defeat the union without the risk and expense of an election.

Conclusion

Notwithstanding the decline of unionization in the past three decades, unions continue to snare unsuspecting employers. Indeed, complacency is organized labor's surest friend. If employers are to hold on to their cherished union-free status, they must develop and implement a union-prevention program that will protect them from assault. Waiting until after the petition has been filed is often too late.

Author's Note: This article is not intended to provide legal advice or to pertain to specific factual situations.

COPYRIGHT 1992 Society for Human Resource Management
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