Legal

A Lesson on Union Avoidance

By Jon Hyman

Jan. 29, 2014

Last week, the Department of Labor’s Bureau of Labor Statistics published its annual report of union membership. Private-sector union membership remains steady, at approximately 6.7 percent, which, as Cleveland.com points out, is a marginal increase from the prior year. Nevertheless, and perhaps emboldened by a favorable ear at the National Labor Relations Board, labor unions have become more active in trying to organize workers. Even the players on Northwestern University’s football team are trying to organize.

Do you know what to do if a labor union comes knocking at your door? Do you know what you can say to your employees if you hear the whispers of unionization floating through your workplace?

More importantly, do you know what you cannot say to your employees about labor unions and their organizing efforts? Take, for example, Phillips 66 (1/15/14) [pdf], in which the NLRB recently concluded that the employer unlawfully interrogated an employee when a supervisor asked him, “What’s your opinion of this union thing?”

Interrogation is one of the four cardinal sins of employer opposition of labor unions. The other three? Threats, promises, and spying. The four are easy to remember. They spell the well-used acronym TIPS (Threats, Interrogation, Promises, Spying).

PolicyMic recently published an internal Wal-Mart slide deck, which discusses the TIPS strategy in detail. Wal-Mart uses these slides to train its managers and supervisors on the right way, and the wrong way, to respond to union organizing.

PolicyMic took Wal-Mart to task for “encouraging managers into repeating anti-union talking points.” To the contrary, I applaud Wal-Mart for being proactive in ensuring that its managers know what they can, and cannot, say about unions, and for implementing a tactical, measured, and lawful response to union organizing.

Your managers and supervisors are your front-line defense against unions. They will hear the scuttlebutt among the employees. They will know whether your employees are happy and content, or dissatisfied and eager for change. They will be the ones to whom your employees communicate via your Open Door Policy (you have an Open Door Policy, right?) when they have a gripe or concern? And, they will be your mouthpiece to communicate to your employees your lawful corporate stance on labor unions, and the impact a union will have on your workplace.

The Wal-Mart slide deck is a great starting point for you to formulate and communicate your corporate philosophy and message on labor unions. Your friendly neighborhood labor and employment lawyer (nudge, nudge) is another. The point, however, is to have your strategy in place before a union comes knocking. Once the union starts talking to employees, your anti-union torpedo better be in the tube and ready to fire. Otherwise, you might just find yourself at the bargaining table discussing that first collective bargaining agreement.

For more on my ideas on strategic union avoidance, head over to a post I wrote all the way back in 2009, Adopt the TEAM approach to fight unions, or check out Chapter 8 in my book on workplace laws, The Employer Bill of Rights, which covers this topic in much greater detail.

Jon Hyman is a partner in the Labor & Employment group of Kohrman Jackson & Krantz. Comment below or email editors@workforce.com.  For more information, contact Hyman at (216) 736-7226 or jth@kjk.com. Follow Hyman on Twitter at @jonhyman.

Jon Hyman is a partner in the Employment & Labor practice at Wickens Herzer Panza. Contact Hyman at JHyman@Wickenslaw.com.

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