Rights Union Organizing Campaign - Small Business

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www.NFIB.com/unionizationguideNFIB guide to ManagingWhat’s InsideUnionization Efforts1. What to Do WhenFacing an OrganizingCampaign» Know your rights» Understand the National LaborRelations Act» Be familiar with the National LaborRelations Board2. Allowing UnionsAccess to Your Employees » Rules regarding the solicitation ofyour employees» Distribution of pro-union materials3. What You Can Say toYour Employees» Communicating the disadvantagesof union membership» Talking about strikes4. What You Cannot Sayto Your Employees» Consider their perspective» Six guidelines to remember5. What to Do Whenthe Union Arrives» Avoid costly misstepsRightsUnionOrganizingCampaignYourDuring adeveloped bySMALL BUSINESS LEGAL CENTER

www.NFIB.com/unionizationguideA Messagefrom the President About NFIB Guide to ManagingUnionization EffortsOur third installation in a series of guides for smallbusinesses, the NFIB Guide to Managing UnionizationEfforts features information on what to do when facingunionization.about nfibThe National Federation of Independent Business is thenation’s leading small-business advocacy association, withoffices in Washington, D.C., and all 50 state capitals. NFIB’spowerful network of grassroots activists send their viewsdirectly to state and federal lawmakers through ourunique member-only ballot, thus playing a critical role insupporting America’s free enterprise system.about NFIB Small Business LegalCenterThe NFIB Small Business Legal Center is the voice for smallbusiness in the nation’s courts and the legal resource forsmall-business owners nationwide. A 501(c)(3), tax-exempt public-interest law firm, the foundation litigates andeducates for small business. Founded in 2000, the LegalCenter has become a critical component of NFIB’sinfluence.2 NFIB Gu ide to Ma n aging Uni oni zat i o n Eff orts www.NFIB.comDear NFIB Member:With membership on the decline for decades, unions are scramblingto boost their numbers any way they can. More than ever before,unions are targeting small and independent businesses. Expeditedelection regulations, mandatory paid time off and expansion of theFamily Medical Leave Act are big ticket items with which they hopeto turn the tide back in their favor. We are the leading voice fightingthese initiatives.We believe that you should be free to offer the policies and benefitplans that best suit your business and your employees. We believethat one-size-fits-all employment policies don’t work for smallbusinesses. You need flexible workplace policies to juggle your employees’ needs, as well as your own.To help you, the NFIB Small Business Legal Center has developedthe NFIB Guide to Labor Relations: Your Rights During a UnionOrganizing Campaign, where you’ll discover information on whatto do when facing unionization, including when and where unionscan access your employees, what you can and cannot say to employees, and more.The NFIB Small Business Legal Center is the voice for small businessin our courts. Through education and litigation, the Legal Centerhelps small-business owners across the country better understandthe issues and the cases that have an impact on them. A great example is this guide, which will help you better protect your enterprise.Shining the light on your rights during union organizing campaigns— another way we are committed to helping you own, operate andgrow your business.Sincerely,Dan DannerNFIB President and CEO

www.NFIB.com/unionizationguideonewhAt to dowhen FAcing AnorgAniZing cAmpAignAS A SMALL-BUSINESS oWNER,facing a union organizing campaigncan create enormous anxiety and caneven bring your business to a standstill.Considering the costs, the risk of strikes,and the excessive demands that unionsmay make, many business owners worrythat a union presence could place theirsmall business in financial jeopardy. But,there are ways to avoid facing a unionacross a bargaining table.You might be compelled to do or saywhatever it takes to keep the union out ofyour business; but in doing so, you couldviolate many of the nation’s labor laws,resulting in unpredictable and expensiveconsequences. As an employer, what youdo and say during a union organizingdrive is critical. Restrictions on what youcan do or say applies to owners, supervisors, and agents. So, as used in this Guide,“you” include individuals in these threecategories. An agent may include anyone speaking “on behalf” of the employerwith sufficient authority.The National labor Relations Act (NlRA)is the primary federal law regulating unionactivity. It applies to all private employerswith two or more employees and prohibits them from interfering with employeeswho wish to exercise the right to formand join unions, or to engage in collective activities intended to improve theirwages and conditions of employment.This means that even non-union workershave rights that you cannot violate. Theyinclude “the right to self-organization, toform, join or assist labor organization, tobargain collectively through representatives of their own choosing and to engagein other concerted activities for the purpose of collective bargaining or othermutual aid or protection.”The National labor Relations board(NlRb) is the federal agency charged withdetermining what actions by employees,employers and union representativesrepresent unfair labor practices. Formore than 75 years, the NLRB has beeninterpreting the law’s general provisionsagainst employers engaging in intimidating activities that are intended todiscourage union support among theirworkers. The NLRB also conducts thesecret ballot elections in which workers decide whether they wish to becomeunionized.Becoming familiar with the unionorganizing process and knowing yourrights during a union organizing campaign is an important part of runninga successful business. Knowing whatyou can and cannot say during a unionorganizing campaign puts you and yourbusiness in a far better position to facedown a union.It is important to remember that you have rightswhen a union or your employees begin anorganizing effort.www.NFIB.com NFIB GuIde to MaNaGING uNIoNIzatIoN eFForts3

essto sentatives are allowed by law etc. Otherwise the NLRB may accuse youto visit your workplace and solicit of selectively preventing the union’s mesemployees to support the union sage from reaching your workers.by signing petitions or union cards. They may also distrib- Solicitation of Employeesute pro-union materials. Employers should be careful when Access to Employees — The NLRB hasrestricting this activity as some restrictions are considered the authority to require employers whoseunfair labor practices. The following guidelines will help you employees are about to vote in a secretballot election regarding unionizationproperly handle this situation.to supply a list of names and last knownIn GeneralWorkplace Disruption —When non-employee union supporters appear at theworkplace and disrupt the work environment, employers have a right to maintainorder. They do not have to allow outsiders onto their private property, or givethe union “equal time” to address theiremployees.Policies — Policies that prohibit soliciting or distributing materials in specificareas and at specific times should apply toALL organizations, not just unions. Forinstance, if you have a policy restrictingthe posting of non-work related materialon bulletin boards, that should apply toall non-company-sponsored postings,such as yard sales, Tupperware parties,addresses of employees to union officials.This means that employees could facephone calls and home visits from unionofficials prior to a vote. Employers are allowed to inform their employees that theydo not have to allow union representatives into their homes.Employees on Company Property —Employees on Duty — Employers canprohibit solicitation while an em-If a union representative tries to interfere with employees performing work, theemployer has the right to order them to leave and even to call the police andreport the activity as trespassing.4 NFIB Gu ide to Ma n aging Uni oni zat i o n Eff orts www.NFIB.com

www.NFIB.com/unionizationguidetwoCommon, non-work areas such as cafeterias, parking lots, and lobbies may bepermissible areas for solicitation and distribution of materials.ployee is expected to be working.However, an employer may notprohibit union solicitation during“business hours” or “working hours”in general terms. This is becauseemployees have the right to solicitother employees while they are onbreaks or off duty in non-workingareas, even if the business is operating.Employees Off Duty — In some cases,employers may prohibit off duty employees from soliciting other employeesor distributing literature in workingareas. In order to legally do this, theemployer must explain the policy toall employees and prohibit solicitationfor any reason, not just unionization.Employers may not deny off-duty employees access to exterior non-workingareas such as entrances, perimeters orparking lots without a valid businesspurpose.Non-Employees on Company Property —Employers can prevent non-employeesfrom soliciting on company propertyprovided that the union can reasonablycontact employees through other means(for example, via phone, mail or at offsitelocations).Retailers / Restaurants — Employersmay prohibit solicitation by any person in public sales or dining areasduring business hours. If a unionrepresentative tries to interfere withemployees performing work, the employer has the right to order them toleave and even to call the police andreport the activity as trespassing.Health-Care Industry — Companies inthe health-care industry can prohibitsolicitation at all times in patientcaretaking areas, such as patient andtreatment rooms.Solicitation vs. Talking About the Union —Employers may prohibit employees fromtalking about the union during workingtime only if they are also prohibited fromtalking about other subjects. This rule isvirtually impossible to enforce fairly, andis widely discouraged.Union Propaganda and Insignia — Employerscannot prevent the wearing of unionbuttons or shirts unless there is a validbusiness purpose for the restriction. If,for instance, your business has specialbusiness circumstances (e.g., retail settingand employee interacts with customers,safety or product contamination concern) that necessitate a strict uniformcode, you may lawfully prevent displaysof union messages on clothing or on buttons and jewelry.Distribution of Pro-UnionMaterialsEmployees on Company Property —Like solicitation, the employer can prohibit distribution during working time.Employers may also prevent distributionin working areas, even during non-working time. This applies to both on and offduty employees. A rule which prohibitsdistribution on “any company property” is not allowed because employeeshave the right to distribute materials oncompany property as long as they are doing so in non-working areas and duringnon-working time. Common, non-workareas such as cafeterias, parking lots, andlobbies may be permissible areas for solicitation and distribution of materials.Non-Employees on Company Property —Employers may prevent non-employeesfrom distributing literature on companyproperty if the union can reasonably contact the employees through other means(for example, via phone, mail or at offsitelocations). If the public is allowed ontothe property, however, it may be difficult to prevent union representativesfrom having the same level of access tothe property without being accused ofdiscriminating in order to discouragethe right of the union to communicatewith employees.Health-Care Industry — Companies inthe health-care industry can prohibitdistribution of literature at all times inareas where patient caretaking occurs.At A GlanceDuring a union drive, representativesmay be subject to the requirementsbelow, to visit the workplace to solicitsignatures and distribute pro-unionmaterial, but they may not disrupt thework environment.During a union organizing campaign,an employer may: bar non-employee union representatives from the property if the generalpublic is also excluded, prohibit solicitation during worktimeas long as this policy is explained to employees, and prohibit solicitation in retail areasand dining areas during businesshours, and patient caretaking areas atall times.An employer may not: forbid employees to solicit other employees during breaks, off-duty time, innon-working areas, or ban the wearing of union buttons orshirts without a valid business reason. call the police unless there is asound basis for believing that the unionis breaking the law, e.g., trespassing,blocking traffic, lettering or vandalizing.www.NFIB.com NFIB Gu i de to Ma na ging Uni oni zat io n Eff orts5

threewww.NFIB.com/unionizationguideWhat You Can Say To your EmployeesOnce a union organizing drive has begun, employers are not expected to sit idle as union representatives try to convince employeesto support the union and eventually vote for representation in a secret election. Employers are given broad “free speech” rightsunder the law to express their views or opinions regarding the union and unionization in general. Thus, the law does not preventemployers from informing their employees of the reasons why a union is not necessary. Employers or their representatives mayactively campaign against the union organization by providing factual statements or opinions to employees, including reasonableforecasts of the possible outcomes of collective bargaining. When an employer mentions the possibility of a shutdown or layoffduring organizational activity, the union is almost sure to file an unfair labor practice charge. For this reason, you should obtainqualified legal advice prior to making such a statement. Examples of permissible statements include: Correcting Inaccurate Statements Madeby Union OrganizersAn employer can tell employees thatthey are not required to support theunion effort, sign a union authorization card, vote in favor of a union, oreven speak to union representatives.The employer can warn employees about “trick authorizationcards.” While most cards simply say the employee supports avote for unionization, some cardsare contractual agreements tobecome members of the unionand pay union dues should itbe voted in. In fact, in some instances the NLRB can order anemployer to recognize and bargainwith a union based solely on signedauthorization cards, without anelection. Signing a union card is a veryimportant decision that employeesshould not make lightly. Communicating Personal OpinionsEmployers can say that the company isopposed to the union and that a unionis not needed or wanted at the company.The employer can offer factual information regarding the union andunion officials, such as the high priceof union salaries, union dues, fees,fines, and assessments.Employers can provide personalopinions about the union policies, processes, officials or individual unions,provided that the statement cannot beconstrued as threatening or coercive.Employers can point out that unionswork under bylaws that allow membersto be fined if they violate one of dozensof union rules, including trivial thingssuch as “slandering a union official oranother union member.”6 NFIB Gu ide to Ma n aging Uni oni zat i o n Eff orts www.NFIB.comEmployers can remind workers thatwhere there are unions, there can bestrikes. In all but a handful of states,strikers are not entitled to unemployment compensation benefits while onstrike. And in all 50 states, a striker’sapplication for food stamps will berejected. Informing Employees of the Effectsof Unionization on the CompanyEmployers can forecast what effect unionization would have on thecompany’s stability if the forecast isbased on factually probable conditionsthat would be beyond the employer’scontrol, like a union demand whichforces the company to become noncompetitive.Employers can make factual comparisons between the company andother companies that have beenunionized, including pointing tostrikes in other businesses.

www.NFIB.com/unionizationguidethreeEmployers or their representatives may actively campaign against the unionorganization by providing factual statements or opinions to employees.Employers may explain to employeesthat, if a union is voted in, there is noguarantee an agreement will be reached.The employer is only under an obligation to negotiate in good faith with theunion, but the law does not require anemployer to agree to a single demandor to make a single concession.Whatever agreement is made withthe union will affect both union andnon-union employees, so long as theyare covered by the union contract. Inright-to-work states, a small numberof union members can end up with agreat deal of power in the workplace,and they have the discretion to decidewhich grievances have merit. In short,unions and their supporters may playfavorites, helping their friends andhurting those who don’t choose tosupport them 100 percent. The Disadvantages of Union MembershipEmployers can explain the disadvantages of union membership, includingthose which are financial (dues, fees andassessments) and job-related (loss ofwork from strikes or picket lines).Employers may describe commontactics used by unions (once votedin) which could be detrimental toemployees, including:Strikes — Employees collectively refuseto attend work.Picket Lines — Employees protest infront of the workplace. Employees whocross picket lines and attend work areoften harshly criticized or harassedby picketing employees and unionsupporters. And if they try towork during a strike, union members can be fined by their unionfor doing so. Often the finesequal the money they made duringthe strike, so they are, in fact, forced toeither stay home or work for free.Union Shops — Employees musteither join the union or pay equivalentunion dues in order to remain employed at that location (unless the statehas enacted right-to-work statutes).Check Offs — Where union dues aretaken out of a paycheck before theemployee ever receives it.The employer can remind employeesthat unions are usually large, bureaucratic organizations that can onlysurvive on employee money collectedthrough dues, initiation fees and fines/assessments. The employer can state itsopinion that the union is only after theemployees’ money and that unions sueemployees to collect the money owedto them, or even get them fired if theyrefuse to pay dues in states withoutright-to-work laws.An employer can say that once a unionis voted in that they are under a legalobligation to negotiate with – and onlywith – the union, and cannot makedecisions regarding compensation orworking conditions with the represented employees on an individual basis.This is true even if the employees feelthat the union is not adequately representing their needs. The Risk of StrikesThe employer can say that inthe event of a strike, it can lawfullyand permanently replace the strikers,so long as the strike is over wages,hours, or other working conditions(this is known as an “economicstrike”). When a strike ends, strikers who have been replaced are onlyentitled to be placed on a preferential hiring list in the event that theirjob becomes vacant. In most states,strikers are ineligible for unemployment benefits and food stamps.Unions may or may not pay strikersa small strike benefit, but it is usuallymuch less than their salary, and itmay or may not include maintaining their health insurance or otherfringe benefits. Reviewing Working Conditions, Salariesor BenefitsEmployers can explain that the bargaining process could result in nochanges, increases, or even decreasesof current salaries and benefits. Inshort, collective bargaining is a twoway street; it can go up, stay the same,and it can go down.Employers can discuss the company’sprior history of paying good wages,offering generous benefits, and providing excellent and safe workingconditions to employees without needing a union to tell it to do so.Employers can explain to employeesthat the union cannot guarantee thatthey will have higher salaries, morebenefits, or other improvements inworking conditions. Unions mightmake this and other promises, but theycan’t keep them.Employers can tell employees thatduring a union drive the company isnot permitted to alter any wages orbenefits for any represented employee. All wage or benefit increases arefrozen unless they were arranged prior to the union’sappearance.www.NFIB.com NFIB Gu i de to Ma na ging Uni oni zat io n Eff orts7

fourwww.NFIB.com/unionizationguideWhat YouCannot SayTo yourEmployeesWhile employers have the right to advocateagainst the union, they cannot make threats,promise benefits or improved workingconditions, or make coercive statementsin an effort to discourage workers fromsupporting or voting for a union. Whetherthe employer’s statement is illegal dependson the employee’s perspective – how thestatement is perceived. Perceptions couldvary greatly between the employer andemployees due to tension in the workplace.For this reason, be very careful not tomake what might appear to be either a threator a promise that is contingent upon theworkers’ rejection of the union.ThreatsEmployers cannot discipline (or threaten to discipline) an employee based onhis or her union sentiments. This doesnot mean that an employee cannotbe terminated during an organizationdrive, but the basis for the terminationcannot be because of the employer’santi-union sentiment. During a unionorganizing drive you should scrutinizeevery disciplinary action carefully before implementing it. Ask yourself, ineach instance, “Would this employeehave been disciplined without his orher union activity or union support?” Ifthe answer is “no,” then don’t take disciplinary action.Employers cannot threaten to, orimply that it will, reduce wages orbenefits if a union comes in. Thisincludes statements that the bargaining process begins from scratch, startsat zero, etc. Likewise, an employercannot take away any current benefitsbased on an employee’s position onunionization.Promises of BenefitAn employer cannot promise anemployee any benefit (such as anincrease in pay or a promotion, moreholidays, or better working conditions)in hopes of influencing the employee’sdecision on the union or otherwiserejecting the union in an election.An employer cannot solicit employeegrievances and promise to remedythem if the union is not voted in.Unless an employer already has an active grievance resolution system inplace, it is illegal to implement onesimply because of a union drive.8 NFIB Gu ide to Ma n aging Uni oni zat i o n Eff orts www.NFIB.comCoercive StatementsEmployers cannot ask an employeeto act on behalf of the employer todissuade other workers against the union,such as pressuring employees to wear“Vote No” buttons or to spy on their fellow workers.Employers cannot spy on employeeunion activity, imply that the employerhas spied on them, or ask an employeeto spy on other workers.Employers and/or supervisors shouldnever bring an employee into their private offices to discuss the union, even ifthe discussion is entirely non-threatening. The NLRB considers a supervisor’soffice to be a “coercive environment” inwhich any discussions about the unionwill be construed as inherently intimidating and unlawful.StatementsRegarding UnionsEmployers cannot say that it would befutile to elect a union because the employer’s position on working conditions,benefits or wages will not change.

www.NFIB.com/unionizationguidefourEmployers or their representatives may actively campaign against the unionorganization by providing factual statements or opinions to employees.Employers cannot say or suggest that if a union is voted in that strikes willabsolutely occur.Statements About EmployeesThe employer cannot disparage employees or make negative remarks about employeesbecause of their pro-union sentiments.Guidelines to RememberSome statements by employers are governed by the way in which they are made. Astatement that might otherwise be permissible or seem harmless can be consideredthreatening or coercive because of the environment in which it was made. In orderto avoid a negative perception, employers should follow these six guidelines featured below.6guidelines to remember1. Employers should not ask employees about their position on the union.2. Employers cannot ask employees about another worker’s views concerning the union.3. Employers cannot ask employees about the status of the union effort.4. Employers should not pull employees aside or call employees into their office todiscuss the union.5. Employers cannot visit an employee’s home to discuss the union.At A GlanceA business owner may attempt to persuade employees against unionizing,but you must be extremely careful notto threaten or coerce.The employer may: explain why unionization is unnecessary, offer personal opinions about unionpolicies, as long as they are not threatening or coercive, and predict the negative effects thatunionizing could have on the firm, aslong as it is based on facts outside ofthe employer’s control.An employer may not: enlist an employee to help the employer lobby other employees againstunionization, ask an employee his opinion ofunionization, or ask an employee aboutanother employees’ opinions, or spy on employees, suggest that theemployer has already spied on employees, or enlist employees as spies.6. Employers cannot make “captive audience” speeches to employees during the24 hours preceding a union election. A “captive audience” speech is one held bythe employer during work hours that requires mandatory attendance of all (or some)employees, if the purpose is to discourage union support.Employers should not interrogate their employees. While the NLRA does not outright ban employee interrogations, there are very few permissible situations in whichan employer or his representatives may interrogate an employee. According to theNLRB, any interrogation which is considered coercive (and most are), threatening,or an interference with the employee’s right to unionize is illegal.An employer is otherwise free to speak with an employee who is open and activeabout their pro-union stance, or any other employee who approaches them, provided thatthe conversation remains free from threats, coercion, or promises of benefits. In short,employers are allowed to listen to (and report to upper management) information fromworkers that is freely volunteered.www.NFIB.com NFIB Gu i de to Ma na ging Uni oni zat io n Eff orts9

www.NFIB.com/unionizationguide

The NFIB Small Business Legal Center is the voice for small business in our courts. Through education and litigation, the Legal Center helps small-business owners across the country better understand the issues and the cases that have an impact on them. A great exam-ple is this g

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