Steps for Employers to Preserve a Union Free Workplace

Labor unions were established to represent the interests of a company’s non-supervisory employees. Historically, unions played a vital role in employee-employer relations. Yet, there has been a steady decline in the necessity of union representation as working conditions have improved, federal and state laws protecting workers and ensuring fair work practices have been implemented and enforced, and the structure of the modern workplace has evolved. Despite the overall decline in union representation over the last several decades, the United States Bureau of Labor Statistics reported in its 2021 Union Membership News Release that the union membership rate was up slightly in 2020 over 2019. But there was a large decline in total employment of wage and salary workers among mostly nonunion workers. The Bureau’s data indicates that this decline in employment among nonunion workers led to the increase in the union membership rate.

While there are positive changes in employment laws, union organization attempts remain a valid concern for employers. Unions can be costly for the employer because resources are diverted to address union grievances. Unions often limit managerial flexibility. Management is precluded from addressing employee grievances independently when conflict resolution requires union involvement. To address these concerns and many others, employers have implemented union avoidance strategies to improve and maintain employee satisfaction. Union avoidance strategies seek to minimize the need for labor unions. There are three steps an employer should take to implement a union free business philosophy and preserve a union free workplace:

1. Document. All employers should abide by the golden rule of employment: treat all employees uniformly and fairly. When issues arise, and decisions are made to resolve those issues, the employer should document its interaction with employees. This documentation should specifically identify why certain employment decisions, such as changes in policies, discipline, and termination, are made. Documentation cultivates transparency between employees and employers. Fair treatment by employers of employees cultivates trust in leadership. Ultimately, when there is a uniform system in place that employees trust, they are more likely to voice their concerns about employment issues.
2. Communicate. Once a union is elected, the employer must defer to the union steward to take action affecting employment conditions. This causes delay and expenditure of valuable resources. Employers should communicate openly and honestly with its employees about all aspects of the employee experience. Organization attempts generally occur in response to specific issues over which the employer has control, such as wages and benefits, job security, poor supervision, and/or the employee’s sense of value.

   Communication of the employer’s “union free business philosophy” begins during the pre-hiring process to instill the employer’s values with prospective new hires before they become employees.

   The employer should develop a conflict resolution (or grievance) procedure for employees to express concerns. The employer should invest in understanding what employees think of the company and what dissatisfies employees about the company. To do this, employers should consider leveraging its supervisors. Supervisors are the gatekeepers to understanding the employer’s vulnerabilities. To start, supervisors should be personable and encourage employees to express their concerns. The employees must believe their supervisors listen to and understand the concerns presented. Supervisors should be trained to identify conflicts and bring them to the attention of top management when appropriate. Supervisors should be able to articulate policies, answer questions accurately, and encourage candor and constructive criticism of the company and its practices. This is important in the context of union organization because, if a union organizer solicits the employees, the supervisors are often the best line of defense to correct misleading statements made by the organizer and inform employees of their rights.

3. Reassess the Work Force. As mentioned above, supervisors are the best line of defense in identifying where the employer may be vulnerable to union representation. The employer should keep its “ear to the ground” and learn the general behaviors of the work force. This will allow the employer to identify shifts in behaviors of the work force population that could be warning signs of union activity. The following are a few examples of potential warning signs of union activity
   • Increase in policy inquiries, particularly on pay, benefits, and discipline.
   • Non-employees appearing and lingering on company premises.
   • Union authorization cards or leaflets appearing on company premises.
   • Employees communicating with other employees with whom they do not normally communicate.
   • Unusual interest from vendors and/or subcontractors in communicating with employees.
   • Any other activity which appears to separate management from the workforce.
   • Increase in volume of employee complaints, particularly on pay, benefits, and discipline.

The nature of employer-employee relations is that dissatisfaction is inevitable. Coupled with a rapidly changing labor market, the presence of union representation may have a significant impact on the employer’s operating costs, reducing the availability of funds for new programs, equipment, facilities, and wages. Employers should ensure they are staying informed on changes in the law, identifying areas of vulnerability, staying aware of the current political landscape, and seeking legal counsel for guidance when issues arise. These factors require the employer to regularly assess its work force and analyze its weaknesses. In response to those weaknesses, the employer should seek to develop a response system and prepare to address employees’ concerns in a meaningful way. Should union activity arise, the employer should develop and distribute appropriate counter-communications.

This post is only a general overview of potential strategies that employers can adopt. If you have specific questions concerns related to your company, please contact a member of Barrett McNagny’s employment law section. 

About the Author: Carta H. Robison works with employers in all facets of their labor matters. She assists human resource professionals with claims involving the Family Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA) and the Fair Labor Standards Act (FLSA). She can be reached at 260.423.8910 or at chr@barrettlaw.com.