For many employers, the first sign of a union organizing campaign comes unexpectedly. A manager hears employees discussing a union. Human Resources learns that employees are signing authorization cards. Union representatives begin distributing literature outside the workplace. Or, in some cases, the company receives a petition from the National Labor Relations Board (NLRB).

Whatever the first sign, an employer’s response matters. The period following the discovery of organizing activity can move quickly, and decisions made in the first few days can have significant legal and practical consequences.

Employers do not have to remain silent during a union campaign. But federal labor law places important limits on what employers and their supervisors may say and do. A thoughtful response should therefore accomplish two objectives at the same time: (1) Comply with the National Labor Relations Act (“NLRA”) and (2) communicate effectively with employees about the realities of union representation.

Here are some of the most important steps employers should consider when confronted with a union organizing campaign.

1. Employers Should Contact Legal Counsel Immediately

One of the biggest mistakes an employer can make is waiting until an election petition has been filed before developing a response strategy.

Once a union representation petition is filed, the process moves quickly. The NLRB’s current representation-case procedures generally accelerate several pre-election deadlines compared with prior rules, including the scheduling of pre-election hearings and the deadline for an employer’s response to the petition.

That makes early coordination among management, Human Resources, and experienced legal counsel particularly important. Before reacting to organizing activity, employers should:

• Understand the legal landscape
• Identify the potential bargaining unit
• Preserve relevant information
• Develop a consistent communication strategy

2. Train Supervisors Immediately

Front-line supervisors are often where union campaigns are won or lost. Employees naturally ask supervisors questions about unionization. An untrained supervisor may respond instinctively and unintentionally create an unfair labor practice issue.

What is the TIPS Rule?

A useful shorthand is the acronym “TIPS.” Generally, supervisors should not:

• Threaten employees because of union activity;
• Interrogate employees about their union views or activities;
• Promise employees benefits in exchange for opposing unionization; or
• Surveil, or create the impression of surveillance of, employees’ protected union activity.

What Should Training Cover Beyond the "Don'ts"?

Training should not simply give managers a list of prohibited conduct. Managers should know:

• What they can say
• Whom they should contact when they receive a difficult question
• How to respond without improvising.

3. Maintain Status Quo

The discovery of a union campaign can create an understandable temptation to “fix” workplace concerns immediately. This is sailing into dangerous waters for employers.

For example, suddenly announcing a new raise, bonus, benefit, promotion, or workplace improvement during an organizing campaign can create an argument that the employer is attempting to influence employees’ choice regarding union representation. The NLRB likewise identifies granting previously unplanned promotions, pay increases, or other benefits to influence an election as conduct that can interfere with employee free choice.

On the flipside, employers cannot take away benefits that were previously planned or are in process. If a cost-of-living adjustment is made every January 1, for example, suddenly stopping that practice affects the status quo.

4. Be Prepared for the NLRB Election Process

Generally, a petition seeking a representation election must be supported by at least 30 percent of employees in the proposed bargaining unit.

If the parties cannot agree on issues such as the appropriate bargaining unit or voter eligibility, the NLRB Regional Office may conduct a pre-election hearing. If an election proceeds, it is decided by a majority of the votes actually cast.

Because issues involving supervisory status, bargaining-unit scope, voter eligibility, election communications, and other procedural requirements can materially affect a representation case, employers should address those questions immediately upon receiving a petition.

The Bottom Line: Prepare Before a Petition Arrives

The best time to develop a union-response strategy is before organizing activity begins.

Employers should periodically train supervisors about employees’ rights under the NLRA, establish clear escalation procedures for reports of organizing activity, review employee-relations practices, and understand which employees are considered supervisors under the law.

Once organizing activity begins, employers should resist the urge to react impulsively. Respond quickly, but deliberately. Assemble the right team, train managers, understand the applicable NLRB process, communicate lawfully with employees, and carefully review significant employment decisions made during the campaign.

How Ice Miller Can Help

Ice Miller's Workplace Solutions team helps employers handle labor organizing campaigns, from supervisor training and communication strategy through the NLRB election process. For guidance, contact Sara Sams or any member of Ice Miller's Workplace Solutions team.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.