During a union organizing drive, the employer will likely try to convince employees that joining a union is not in their or the company's best interests. Union organizations, of course, will have a different message.

These messages, however, must be communicated within the confines of permissible speech under the NLRA. Employers may express to their employees their views on unionization, but the law prohibits any employer interference with an employee's right to organize and engage in "concerted activity" and employer discrimination designed to either encourage or discourage membership in a labor organization.

The line between lawful and unlawful employer expression and conduct during a union organizing campaign is not always clear. Union communications usually do not involve employee restraint or coercion because the union cannot control the job or the economics of an employer's business, facts which also prevent it from using job security or job benefits as a either a threat or promise. However, the union violates the NLRA if it threatens workers verbally or physically assaults them.

Union Organizing Techniques

Most labor organizations assign an organizer or team of organizers to the target company. Their mission is to "sell" the union to the company's employees. Typically, they will try to recruit a cadre of sympathizers on the inside of the company to secure enough support for an NLRB employee secret ballot election.

Occasionally, unions use "plants"—individuals on the union's payroll who seek and obtain employment at a target company for the express purpose of organizing the company's employees. This practice of using plants is known as "salting" and has recently been upheld by the U. S. Supreme Court.70

The organizers next distribute "authorization cards" which designate the union as representative for purposes of collective bargaining and usually also include a flyer containing promises of higher wages, better benefits, and job security. If 30 percent or more of the employees sign these cards, the union will submit them to the NLRB as a petition for a union certification election.

Employees are often misled about the purpose of these authorization cards, and many may sign them for reasons unrelated to interest in unionization, such as peer pressure, getting the organizer off their backs, and so forth. Employees should therefore read the authorization card carefully before signing it.

Often, these cards serve a dual purpose as both a union membership application and as authorization for the union to petition the NLRB for a secret ballot election. The employer has the legal right to recognize the union as the employees' exclusive representative if more than 50 percent of employees sign these cards. Employees who neither want to join nor be represented by the union attempting to organize them have the legal right to refuse to sign authorization cards.

Unions may also use the personal information provided by signers of the authorization cards to phone or visit these employees at their homes. These employees need not respond to the organizers' inquiries, but they are free to do so if they choose.

An alternative way that some unions use to try to organize employees of a particular business is to picket the business, demanding to be recognized as the employees' representative. Generally speaking, such picketing is legal and cannot be enjoined for at least 30 days.71

Gathering Information on the Union

An employee's decision to join or form a labor union is an important one with significant financial and legal consequences. It should never be made lightly or without all the appropriate information necessary to ensure that an employee has made the right choice for himself and his family.

Prior to signing any union literature, employees should therefore research the particular labor organization that is seeking to organize them. For example, labor unions are required to file financial reports with the U. S. Department of Labor. These reports provide data from individual unions regarding dues and initiation fees, officer salaries, and other expenditures.

Unions must also file copies of their constitutions and by-laws with the Department of Labor. These and other documents, such as LM-1, LM-2, and LM-3, can provide a wealth of information about the privileges and obligations held by members of a particular union. Employees should seek to get this public information—directly from the union, if possible—before authorizing the union to act on their behalf in their workplace.

Understanding All Aspects of Unionization

Unions rarely, if ever, tell employees about the possible disadvantages that come with being a union member or bargaining collectively. Nevertheless, there is a wide range of issues that each employee must consider before making the important career decision of supporting a union. Among these issues are the following:

Strikes. The only leverage a union has over an employer that does not meet its demands is the strike. The employer, however, cannot say that a strike is "inevitable" in the event of a disagreement during negotiations. During a strike

  • Wages and benefits are not paid to striking employees.

  • Later wage increases rarely make up for the resulting monetary losses.

  • Unemployment insurance is unavailable in many states until after a lengthy waiting period. Under Michigan's Employment Security Act, an employee who is unemployed due to a strike is not entitled to unemployment benefits.72 However, a striking employee who is permanently replaced may receive unemployment compensation until a subsequent event renders the labor dispute a substantial contributing cause of the unemployment.73

  • Limited strike benefits paid by the union are available only to those employees who actively participate in picketing the employer.

Replacement Workers. Employees who strike to obtain better wages, hours, and working conditions, which are neither caused nor prolonged by an employer's unfair labor practices, are referred to as "economic strikers."74 Workers may, however, be hired to replace them, and these replacements need not be let go when the strike is ended.75 As a practical matter, the economic striker may lose his job, but it is unlawful for an employer to express it in those terms.76

Violence. This factor is particularly important where there is accurate information linking the union to previous violent strikes and picket lines. For obvious reasons, employees may not wish to commit themselves to a union that routinely resorts to violence to resolve labor disputes.

Bargaining As a "Two-Way Street." Most employees believe that they can only gain from the collective bargaining process, but this is not the case. The give and take of bargaining can just as easily result in losses as well as gains. Nonetheless, employers must be careful in how they communicate this fact to their employees, lest they be perceived as threatening employees and charged with an unfair labor practice.

Union Membership Requirements. In a unionized workplace, employees are still free to decline union membership, but they may nevertheless be required to pay periodic dues and initiation fees to the union. A union may, if the employer agreed to these terms in the contract, demand the discharge of any employee who fails to pay these fees. Employees can never be forced into becoming actual union members; however, many labor contracts are worded as if full union membership is a requirement for employment. The legality of this misleading contract language has been upheld in a recent U. S. Supreme Court case.77

Dues and Initiation Fees. Membership costs vary widely among unions, but regardless of their amount, dues represent an added expense to employees that they would not otherwise have to pay. Employees must determine for themselves if third party representation is worth the additional personal expense of supporting a union bureaucracy.

Loss of Individuality. When a union is certified, employees become members of a bargaining unit in which the majority rules. The employer is under a legal obligation to deal exclusively with the union, which means that any individual deals with individual employees are not allowed. The union makes decisions for all employees, which some may not deem to be in their best personal interests.

Unfair Representation. Unions are granted tremendous discretion in fulfilling their responsibilities as bargaining representatives. The prospect for abuse is ever present and difficult to remedy if it occurs because employees must be able to show that their union's conduct was arbitrary, discriminatory, or in bad faith—a difficult standard to meet for employees.

Management Rights. Although a union may try to create the impression that it will become a partner in the day-to-day operations of the employer's business, this is a false impression. Under no circumstances will management ever cede its control over business operations to a union.

Decertification. Decertification is the process by which the employees in a bargaining unit change the union designated as their exclusive agent or change to a nonunion status. A union may be voted out, or "decertified," if employees are dissatisfied with its performance. However, this may be difficult to accomplish in practice because the NLRB or the appropriate state government agency usually limits decertification to a period of between 60 and 90 days prior to the expiration of the current labor contract. The NLRB will conduct a secret-ballot decertification election if 30 percent of the employees in the bargaining unit sign a petition indicating dissatisfaction with their representation. If this election shows that the majority of those voting wish to end union representation, the union is decertified. Once the NLRB conducts such an election, there can be no additional labor union elections within that same bargaining unit for one year.

Union Solicitation and Distribution of Material

The earliest decisions of the NLRB recognized that solicitation of union membership and distribution of union literature were among the core legal rights guaranteed to employees by the NLRA. Inevitably, these rights conflicted with the desire of employers to regulate the conduct of their employees during work. In an effort to facilitate review of cases involving these competing interests, the NLRB developed a general guideline.

In the 1943 decision Peyton Packing Co., Inc.,78 the NLRB announced that employers could prohibit employee union solicitation during working times and that such a prohibition would be presumptively valid unless there were evidence that it was promulgated for a "discriminatory purpose."

Conversely, the NLRB stated that a prohibition against union solicitation by employees outside working hours would be presumed invalid, unless there were special circumstances to show that the prohibition was necessary to maintain order and production. These presumptions were promptly upheld by the Supreme Court79 and continue to serve as the cornerstone for the NLRB's evaluation of individual employers' work rules regarding union literature distribution and membership solicitation among their employees.

In 1962, the NLRB clarified the distinction between union solicitation and union literature distribution in the Stoddard-Quirk Mfg. Co. decision.80 Solicitation, explained the NLRB, is oral and can therefore impinge on employers' interests during working time. But the distribution of literature carries with it the potential for littering, regardless of the time of distribution. Therefore, the NLRB held that employer prohibitions against union literature distribution at all times in work areas are presumptively lawful. However, employer prohibitions against distribution of union literature in non-work areas are presumptively unlawful. As with solicitation, there may be special circumstances that will yield exceptions to these general principles. Also, it should be noted that a union's procurement of authorization cards from employees is considered a form of solicitation, not distribution.81

The NLRB has, at times, applied these principles inconsistently. In particular, the wording of employer work rules has been scrutinized with conflicting results. For example, the NLRB stated in the 1947 decision Essex International, Inc.,82 that prohibitions against solicitation during working hours would be presumed to be unlawful. In 1981, the NLRB changed its mind and stated that rules prohibiting solicitation during working time should be treated like prohibitions covering distribution of union literature during work hours and presumed unlawful.83 The NLRB then reversed itself again in 1983 and returned to the standard of Essex International, Inc.84 Thus, while the general presumptions have remained constant, the interpretation of the wording of specific rules has been subject to change.

Union Organizers' Access to Employer Premises

Employer restrictions that prohibit union organizers from gaining access to the employment premises may conflict with certain legal rights of employees granted by the NLRA. According to the U. S. Supreme Court, employers may lawfully prohibit union organizers who are not employees from union solicitation and literature distribution on their premises only if

  • the union's message can be communicated by reasonable efforts through other channels; and

  • the prohibition does not discriminate against union activity by allowing access for literature distribution or solicitation for nonunion causes.85

Under this doctrine, employers retain a general right to bar nonemployee union organizers from their premises and unions bear the burden of establishing that no other reasonable means of communication exists.86

Unfair Labor Practices during an Organizing Drive

Although it is important for management and the union to speak openly to employees concerning their positions, it is equally important that supervisors and managers be well acquainted with the restrictions that the NLRA places on them. The following is intended as a guide to management in meeting its lawful obligations and ensuring the observance of employees' legal rights. However, it is by no means an exhaustive listing of the types of conduct that the NLRB has found lawful or unlawful.

Section 8(c) of the NLRA, known as the "free speech" provision, states as follows:

The expressing of any views, arguments, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of the Act, if such expression contains no threat of reprisal or force or promise of benefit.87

Prohibited employer conduct during a union organizing campaign can best be remembered by the acronym TIPS, which stands for threats, interrogation, promises, and spying. Each of these prohibited categories of employer conduct is explained below.

Threats are statements by the employer to employees that have two characteristics. The first characteristic is that the statement conveys some form of detriment to an employee, such as talk of a discharge, layoff, loss of pay, loss of benefits, loss of promotional opportunities, and the like. The second characteristic of an unlawful threat is that the detriment to the employee is conditioned upon an employee's exercising of a legal right established by the NLRA. Examples of employee legal rights that employers might seek to compromise with unlawful threats include employees signing union authorization cards, attending union organizational meetings, wearing union insignia, speaking in favor of unionization, and voting for a union.

Unlawful interrogation may be as innocent an event as a supervisor casually asking an employee over a cup of coffee how many people attended a publicly announced union meeting the previous evening. The NLRB's position on what constitutes employee "interrogation" has changed over the years: Current NLRB policy is to apply a test to determine if "under all the circumstances the interrogation reasonably tends to restrain, coerce or interfere with rights guaranteed by the" NLRA. In applying this test, the NLRB considers the surrounding circumstances of the questioning, the relationship between the employee and the supervisor questioning him, the nature or character of the information sought, and the time and place of the questioning.

Promises are the reverse of threats. An employer is prohibited from offering beneficial treatment (such as promotions or higher wages) to an employee in exchange for the employee's forbearance of his legally protected union activities.

Employer spying includes supervisors stationing themselves near union meetings and observing and identifying employees attending the meeting, following union supporters to determine where they go after work, or requesting or directing employees to report on the union activities of co-workers. The NLRB also prohibits employers from creating the impression of surveillance of employees' union activities.

In addition to threats, interrogation, promises, and spying, the NLRB also prohibits employers from taking actions such as discharging or demoting employees when such actions are based on the employees' union activities or sympathies rather than legitimate business considerations. Other examples of objectionable conduct by employers include managers or supervisors visiting employees' homes or campaigning near the polls or in the polling area during a union election.

The NLRB also holds unions to similar standards of conduct as employers under the law. Union communications with employees generally do not involve restraint or coercion since an organizing union does not control an employee's job and cannot use job security or job benefits as either a threat or promise. However, a union violates the NLRA if it threatens workers with violence or injury. The NLRB has held that verbal threats as well as actual physical contact interfere with employees' legal rights under Section 7 of the NLRA.88