Staying Union-Free in 2011

January 5, 2011 By James K. L. Lawrence

President Obama promised to reinvigorate Organized Labor. We escaped the Employee Free Choice Act. Unfortunately, during 2010 the President succeeded in placing his majority on the National Labor Relations Board (NLRB). Will the new NLRB undermine your ability to keep your workforce free from unions?

The answer depends upon your strategy for remaining union-free. Recent NLRB actions will support union organizing efforts in 2011 by:

Nevertheless, workers will continue to reject unions if they understand why union representation will not benefit them. The NLRB's new initiatives reawaken the prudence of a "back to the basics" approach to union avoidance that begins before a union targets your workforce.  Here is why.

Notice Requirement. On December 22, 2010, the NLRB proposed a new rule requiring employers to notify their workers of their right to:

Implementation of the new NLRB rule awaits a period for public comment, but it is almost certain to become binding on employers during 2011.

How the notice must be communicated to employees matters. Bulletin board notices rarely attract employees' attention. The proposed NLRB rule, however, calls for electronic notification if the employer customarily communicates with its employees electronically. Notice of a right to organize a union sent to an employee's email address or posted on the company website looks more like an invitation to unionize than a routine legal notice.

An understanding of how unions actually operate teaches employees why a union creates more problems than it solves. Naïve employees fall easily for union promises to change whatever they do not like about their jobs. Equipping your management team to lawfully communicate the truth about unions remains among the most important tools for keeping the union out. The NLRB's proposed notice requirement does nothing to dull this tool. It only increases the need for it. 

Protection for Disgruntled Employees.  Every workforce contains some disgruntled employees who injure morale with their negative talk. Recent NLRB actions embolden and equip these disgruntled employees to broadcast their discontent widely among their coworkers.  

On October 27, 2010, the NLRB's Regional Office in Hartford, Connecticut issued a complaint challenging an employer's social networking policy. The firm had terminated an employee for criticizing her supervisor on her Facebook page. As explained in our November 16, 2010 Legal Update on this matter (click here to read Legal Update), the NLRB has long protected employees who criticize their managers, wages, or other working conditions. In the past, however, unhappy employees could expose only their immediate co-workers to their frequent complaints. Now, Facebook, Twitter, MySpace, etc. empower each disgruntled worker with a broadcast network.

How far can a disgruntled worker go in "trashing" the boss or the company? Previously, the NLRB found some conduct too egregious to be protected. On August 10, 2010, however, the new NLRB ordered reinstatement with backpay for an employee who angrily shouted at his boss during an argument over pay, "that he was an 'F'ing mother F'cker,' an 'F'ing crook,' and 'an a—hole." Plaza Auto Center, Inc., 355 NLRB No. 85.  If this speech is not too egregious, what is?

Chilling Employer Response to Union Organizing.  On December 20, 2010, the NLRB's acting General Counsel announced the NLRB will "systematically seek" injunctions against employers in response to unproven allegations of unfair labor practices during union organizing. All a union need produce is enough evidence to create a factual dispute. Employers may be ordered to (i) reinstate workers alleged to be terminated because they supported the union; (ii) give the union access to company bulletin boards; (iii) require top company officials to read to employees an NLRB prepared notice; (iv) give the union early access to employees' names and addresses; and (v) admit outside union organizers onto company property to campaign for the union. Such "temporary" injunctions may last for many months before the employer can get a hearing to prove it did not break the law.

Unfair labor practices undermine efforts to stay union-free. Unjust terminations, threats, promises made after a union shows up, interrogation, spying on employees, all tell workers they need a union! Managers must be educated to avoid such trust-destroying conduct. The NLRB's "guilty until proven innocent" approach during a union organizing campaign, however, promotes an unfortunate result. It shuts managers' mouths from telling the true story about unions out of fear they will be accused of saying the wrong thing.

Action Needed. Employers who wait until a union targets their workers will be caught between a desperate need to communicate the facts and the high stakes in doing so after union organizing begins. The prudent approach is to educate and empower your managers now how to lawfully discuss unions whenever the opportunity arises. Adjust your union-avoidance strategy to this new legal environment so lawful policies and practices will give you maximum freedom to respond when a union arrives.  Most important, maintain the trust and confidence of the "silent majority" of your employees so they will believe you when you speak out against unions.  Call on us whenever we may help.