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A Message from the President

Dear NFIB Member: ✔ With membership on the decline for decades, unions are scrambling to boost their numbers any way they can. More than ever before, unions are targeting small and independent businesses. Expedited election regulations, mandatory paid time off and expansion of the Family Medical Leave Act are big ticket items with which they hope to turn the tide back in their favor. We are the leading voice fighting these initiatives.

We believe that you should be free to offer the policies and benefit plans that best suit your business and your employees. We believe that one-size-fits-all employment policies don’t work for small businesses. You need flexible workplace policies to juggle your em- About NFIB Guide to Managing ployees’ needs, as well as your own. Unionization Efforts To help you, the NFIB Small Business Legal Center has developed Our third installation in a series of guides for small the NFIB Guide to Labor Relations: Your Rights During a Union businesses, the NFIB Guide to Managing Unionization Organizing Campaign, where you’ll discover information on what Efforts features information on what to do when facing to do when facing unionization, including when and where unions unionization. can access your employees, what you can and cannot say to em- ployees, and more.

about nfib The NFIB Small Business Legal Center is the voice for small business The National Federation of Independent Business is the in our courts. Through education and litigation, the Legal Center nation’s leading small-business advocacy association, with helps small-business owners across the country better understand offices in Washington, D.C., and all 50 state capitals. NFIB’s the issues and the cases that have an impact on them. A great exam- powerful network of grassroots activists send their views ple is this guide, which will help you better protect your enterprise. directly to state and federal lawmakers through our Shining the light on your rights during union organizing campaigns unique member-only ballot, thus playing a critical role in — another way we are committed to helping you own, operate and supporting America’s free enterprise system. grow your business. Sincerely, about NFIB Small Business Legal Center The NFIB Small Business Legal Center is the voice for small business in the nation’s courts and the legal resource for Dan Danner NFIB President and CEO small-business owners nationwide. A 501(c)(3), tax-ex- empt public-interest law firm, the foundation litigates and educates for small business. Founded in 2000, the Legal Center has become a critical component of NFIB’s influence.

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whAt to do when FAcing An orgAniZing cAmpAign AS A SMALL-BUSINESS oWNER, categories. An agent may include any- The National labor Relations board facing a union organizing campaign one speaking “on behalf” of the employer (NlRb) is the federal agency charged with can create enormous anxiety and can with sufficient authority. determining what actions by employees, even bring your business to a standstill. employers and union representatives The National labor Relations Act (NlRA) Considering the costs, the risk of strikes, represent unfair labor practices. For is the primary federal law regulating union and the excessive demands that unions more than 75 years, the NLRB has been activity. It applies to all private employers may make, many business owners worry interpreting the law’s general provisions with two or more employees and prohib- that a union presence could place their against employers engaging in intimi- its them from interfering with employees small business in financial jeopardy. But, dating activities that are intended to who wish to exercise the right to form there are ways to avoid facing a union discourage union support among their and join unions, or to engage in collec- across a bargaining table. workers. The NLRB also conducts the tive activities intended to improve their You might be compelled to do or say secret ballot elections in which work- wages and conditions of employment. whatever it takes to keep the union out of ers decide whether they wish to become This means that even non-union workers your business; but in doing so, you could unionized. have rights that you cannot violate. They violate many of the nation’s labor laws, Becoming familiar with the union include “the right to self-organization, to resulting in unpredictable and expensive organizing process and knowing your form, join or assist labor organization, to consequences. As an employer, what you rights during a union organizing cam- bargain collectively through representa- do and say during a union organizing paign is an important part of running tives of their own choosing and to engage drive is critical. Restrictions on what you a successful business. Knowing what in other concerted activities for the pur- can do or say applies to owners, supervi- you can and cannot say during a union pose of collective bargaining or other sors, and agents. So, as used in this Guide, organizing campaign puts you and your mutual aid or protection.” “you” include individuals in these three business in a far better position to face down a union. It is important to remember that you have rights when a union or your employees begin an organizing effort.

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Allowing Unions Access to your Employees Solicitation and Distribution

representatives are allowed by law etc. Otherwise the NLRB may accuse you to visit your workplace and solicit of selectively preventing the union’s mes- Union employees to support the union sage from reaching your workers. by signing petitions or union cards. They may also distrib- Solicitation of Employees ute pro-union materials. Employers should be careful when Access to Employees — The NLRB has restricting this activity as some restrictions are considered the authority to require employers whose unfair labor practices. The following guidelines will help you employees are about to vote in a secret ballot election regarding unionization properly handle this situation. to supply a list of names and last known In General Policies — Policies that prohibit solicit- addresses of employees to union officials. ing or distributing materials in specific This means that employees could face Workplace Disruption —When non-em- areas and at specific times should apply to phone calls and home visits from union ployee union supporters appear at the ALL organizations, not just unions. For officials prior to a vote. Employers are al- workplace and disrupt the work environ- instance, if you have a policy restricting lowed to inform their employees that they ment, employers have a right to maintain the posting of non-work related material do not have to allow union representa- order. They do not have to allow outsid- on bulletin boards, that should apply to tives into their homes. ers onto their private property, or give all non-company-sponsored postings, Employees on Company Property — the union “equal time” to address their such as yard sales, Tupperware parties, Employees on Duty — Employers can employees. prohibit solicitation while an em-

If a union representative tries to interfere with employees performing work, the employer has the right to order them to leave and even to call the police and report the activity as trespassing.

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Common, non-work areas such as cafeterias, parking lots, and lobbies may be permissible areas for solicitation and distribution of materials.

ployee is expected to be working. Union Propaganda and Insignia — Employers However, an employer may not cannot prevent the wearing of union prohibit union solicitation during buttons or shirts unless there is a valid At A Glance During a union drive, representatives “business hours” or “working hours” business purpose for the restriction. If, may be subject to the requirements in general terms. This is because for instance, your business has special below, to visit the workplace to solicit employees have the right to solicit business circumstances (e.g., retail setting signatures and distribute pro-union other employees while they are on and employee interacts with customers, material, but they may not disrupt the breaks or off duty in non-working safety or product contamination con- work environment. areas, even if the business is operating. cern) that necessitate a strict uniform Employees Off Duty — In some cases, code, you may lawfully prevent displays During a union organizing campaign, employers may prohibit off duty em- of union messages on clothing or on but- an employer may: ployees from soliciting other employees tons and jewelry. • bar non-employee union represen- or distributing literature in working tatives from the property if the general public is also excluded, areas. In order to legally do this, the Distribution of Pro-Union • prohibit solicitation during worktime employer must explain the policy to Materials as long as this policy is explained to em- all employees and prohibit solicitation ployees, and for any reason, not just unionization. Employees on Company Property — • prohibit solicitation in retail areas Employers may not deny off-duty em- Like solicitation, the employer can pro- and dining areas during business ployees access to exterior non-working hibit distribution during working time. hours, and patient caretaking areas at areas such as entrances, perimeters or Employers may also prevent distribution all times. parking lots without a valid business in working areas, even during non-work- purpose. An employer may not: ing time. This applies to both on and off • forbid employees to solicit other em- Non-Employees on Company Property — duty employees. A rule which prohibits ployees during breaks, off-duty time, in Employers can prevent non-employees distribution on “any company prop- non-working areas, or from soliciting on company property erty” is not allowed because employees • ban the wearing of union buttons or provided that the union can reasonably have the right to distribute materials on shirts without a valid business reason. contact employees through other means company property as long as they are do- • call the police unless there is a (for example, via phone, mail or at offsite ing so in non-working areas and during sound basis for believing that the union locations). non-working time. Common, non-work is breaking the law, e.g., trespassing, Retailers / Restaurants — Employers areas such as cafeterias, parking lots, and blocking traffic, lettering or vandalizing. may prohibit solicitation by any per- lobbies may be permissible areas for so- son in public sales or dining areas licitation and distribution of materials. during business hours. If a union Non-Employees on Company Property — representative tries to interfere with Employers may prevent non-employees employees performing work, the em- from distributing literature on company ployer has the right to order them to property if the union can reasonably con- leave and even to call the police and tact the employees through other means report the activity as trespassing. (for example, via phone, mail or at offsite Health-Care Industry — Companies in locations). If the public is allowed onto the health-care industry can prohibit the property, however, it may be dif- solicitation at all times in patient ficult to prevent union representatives caretaking areas, such as patient and from having the same level of access to treatment rooms. the property without being accused of Solicitation vs. Talking About the Union — discriminating in order to discourage Employers may prohibit employees from the right of the union to communicate talking about the union during working with employees. time only if they are also prohibited from Health-Care Industry — Companies in talking about other subjects. This rule is the health-care industry can prohibit virtually impossible to enforce fairly, and distribution of literature at all times in is widely discouraged. areas where patient caretaking occurs.

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What You Can Say To your Employees Once a union organizing drive has begun, employers are not expected to sit idle as union representatives try to convince employees to support the union and eventually vote for representation in a secret election. Employers are given broad “free speech” rights under the law to express their views or opinions regarding the union and unionization in general. Thus, the law does not prevent employers from informing their employees of the reasons why a union is not necessary. Employers or their representatives may actively campaign against the union organization by providing factual statements or opinions to employees, including reasonable forecasts of the possible outcomes of collective bargaining. When an employer mentions the possibility of a shutdown or layoff during organizational activity, the union is almost sure to file an unfair labor practice charge. For this reason, you should obtain qualified legal advice prior to making such a statement. Examples of permissible statements include:

>> Correcting Inaccurate Statements Made >> Communicating Personal Opinions Employers can remind workers that by Union Organizers Employers can say that the company is where there are unions, there can be An employer can tell employees that opposed to the union and that a union strikes. In all but a handful of states, they are not required to support the is not needed or wanted at the company. strikers are not entitled to unemploy- union effort, sign a union authoriza- ment compensation benefits while on tion card, vote in favor of a union, or The employer can offer factual in- strike. And in all 50 states, a striker’s even speak to union representatives. formation regarding the union and application for food stamps will be union officials, such as the high price rejected. The employer can warn employ- of union salaries, union dues, fees, ees about “trick authorization fines, and assessments. >> Informing Employees of the Effects cards.” While most cards sim- of Unionization on the Company ply say the employee supports a Employers can provide personal Employers can forecast what ef- vote for unionization, some cards opinions about the union policies, pro- fect unionization would have on the are contractual agreements to cesses, officials or individual unions, company’s stability if the forecast is become members of the union provided that the statement cannot be based on factually probable conditions and pay union dues should it construed as threatening or coercive. that would be beyond the employer’s be voted in. In fact, in some in- control, like a union demand which stances the NLRB can order an Employers can point out that unions forces the company to become non- employer to recognize and bargain work under bylaws that allow members competitive. with a union based solely on signed to be fined if they violate one of dozens authorization cards, without an of union rules, including trivial things Employers can make factual com- election. Signing a union card is a very such as “slandering a union official or parisons between the company and important decision that employees another union member.” other companies that have been should not make lightly. unionized, including pointing to strikes in other businesses. 6 NFIB Guide to Managing Unionization Efforts | www.NFIB.com www.NFIB.com/unionizationguide three

Employers or their representatives may actively campaign against the union organization by providing factual statements or opinions to employees.

Employers may explain to employees Union Shops — Employees must much less than their salary, and it that, if a union is voted in, there is no either join the union or pay equivalent may or may not include maintain- guarantee an agreement will be reached. union dues in order to remain em- ing their health insurance or other The employer is only under an obliga- ployed at that location (unless the state fringe benefits. tion to negotiate in good faith with the has enacted right-to-work statutes). union, but the law does not require an >> Reviewing Working Conditions, Salaries employer to agree to a single demand Check Offs — Where union dues are or Benefits or to make a single concession. taken out of a paycheck before the Employers can explain that the bar- employee ever receives it. gaining process could result in no Whatever agreement is made with changes, increases, or even decreases the union will affect both union and The employer can remind employees of current salaries and benefits. In non-union employees, so long as they that unions are usually large, bureau- short, collective bargaining is a two- are covered by the union contract. In cratic organizations that can only way street; it can go up, stay the same, right-to-work states, a small number survive on employee money collected and it can go down. of union members can end up with a through dues, initiation fees and fines/ great deal of power in the workplace, assessments. The employer can state its Employers can discuss the company’s and they have the discretion to decide opinion that the union is only after the prior history of paying good wages, which grievances have merit. In short, employees’ money and that unions sue offering generous benefits, and pro- unions and their supporters may play employees to collect the money owed viding excellent and safe working favorites, helping their friends and to them, or even get them fired if they conditions to employees without need- hurting those who don’t choose to refuse to pay dues in states without ing a union to tell it to do so. support them 100 percent. right-to-work laws. Employers can explain to employees >> The Disadvantages of Union Membership An employer can say that once a union that the union cannot guarantee that Employers can explain the disadvan- is voted in that they are under a legal they will have higher salaries, more tages of union membership, including obligation to negotiate with – and only benefits, or other improvements in those which are financial (dues, fees and with – the union, and cannot make working conditions. Unions might assessments) and job-related (loss of decisions regarding compensation or make this and other promises, but they work from strikes or picket lines). working conditions with the represent- can’t keep them. ed employees on an individual basis. Employers may describe common This is true even if the employees feel Employers can tell employees that tactics used by unions (once voted that the union is not adequately repre- during a union drive the company is in) which could be detrimental to senting their needs. not permitted to alter any wages or employees, including: benefits for any represented employ- >> The Risk of Strikes ee. All wage or benefit increases are Strikes — Employees collectively refuse The employer can say that in frozen unless they were arranged pri- to attend work. the event of a strike, it can lawfully or to the union’s and permanently replace the strikers, appearance. Picket Lines — Employees protest in so long as the strike is over wages, front of the workplace. Employees who hours, or other working conditions cross picket lines and attend work are (this is known as an “economic often harshly criticized or harassed strike”). When a strike ends, strik- by picketing employees and union ers who have been replaced are only supporters. And if they try to entitled to be placed on a preferen- work during a strike, union mem- tial hiring list in the event that their bers can be fined by their union job becomes vacant. In most states, for doing so. Often the fines strikers are ineligible for unem- equal the money they made during ployment benefits and food stamps. the strike, so they are, in fact, forced to Unions may or may not pay strikers either stay home or work for free. a small strike benefit, but it is usually

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What You Cannot Say To your Employees

While employers have the right to advocate against the union, they cannot make threats, promise benefits or improved working conditions, or make coercive statements in an effort to discourage workers from supporting or voting for a union. Whether the employer’s statement is illegal depends Employers cannot threaten to, or Coercive Statements on the employee’s perspective – how the imply that it will, reduce wages or Employers cannot ask an employee benefits if a union comes in. This statement is perceived. Perceptions could to act on behalf of the employer to includes statements that the bargain- vary greatly between the employer and dissuade other workers against the union, ing process begins from scratch, starts such as pressuring employees to wear employees due to tension in the workplace. at zero, etc. Likewise, an employer “Vote No” buttons or to spy on their fel- cannot take away any current benefits For this reason, be very careful not to low workers. based on an employee’s position on make what might appear to be either a threat unionization. Employers cannot spy on employee or a promise that is contingent upon the union activity, imply that the employer workers’ rejection of the union. has spied on them, or ask an employee Promises of Benefit to spy on other workers. An employer cannot promise an Employers and/or supervisors should employee any benefit (such as an never bring an employee into their pri- increase in pay or a promotion, more Threats vate offices to discuss the union, even if holidays, or better working conditions) Employers cannot discipline (or threat- the discussion is entirely non-threaten- in hopes of influencing the employee’s en to discipline) an employee based on ing. The NLRB considers a supervisor’s decision on the union or otherwise his or her union sentiments. This does office to be a “coercive environment” in rejecting the union in an election. not mean that an employee cannot which any discussions about the union be terminated during an organization An employer cannot solicit employee will be construed as inherently intimidat- drive, but the basis for the termination grievances and promise to remedy ing and unlawful. cannot be because of the employer’s them if the union is not voted in. anti-union sentiment. During a union Unless an employer already has an ac- Statements organizing drive you should scrutinize tive grievance resolution system in every disciplinary action carefully be- place, it is illegal to implement one Regarding Unions fore implementing it. Ask yourself, in simply because of a union drive. Employers cannot say that it would be each instance, “Would this employee futile to elect a union because the em- have been disciplined without his or ployer’s position on working conditions, her union activity or union support?” If benefits or wages will not change. the answer is “no,” then don’t take disci- plinary action.

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Employers or their representatives may actively campaign against the union organization by providing factual statements or opinions to employees.

Employers cannot say or suggest that if a union is voted in that strikes will absolutely occur. At A Glance A business owner may attempt to per- Statements About Employees suade employees against unionizing, The employer cannot disparage employees or make negative remarks about employees but you must be extremely careful not because of their pro-union sentiments. to threaten or coerce.

Guidelines to Remember The employer may: Some statements by employers are governed by the way in which they are made. A • explain why unionization is unnec- statement that might otherwise be permissible or seem harmless can be considered essary, threatening or coercive because of the environment in which it was made. In order • offer personal opinions about union to avoid a negative perception, employers should follow these six guidelines fea- policies, as long as they are not threat- tured below. ening or coercive, and • predict the negative effects that unionizing could have on the firm, as long as it is based on facts outside of the employer’s control. 6 guidelines to remember An employer may not: • enlist an employee to help the em- 1. employers should not ask employees about their position on the union. ployer lobby other employees against 2. employers cannot ask employees about another worker’s views concerning the union. unionization, • ask an employee his opinion of 3. employers cannot ask employees about the status of the union effort. unionization, or ask an employee about another employees’ opinions, or 4. employers should not pull employees aside or call employees into their office to • spy on employees, suggest that the discuss the union. employer has already spied on employ- 5. employers cannot visit an employee’s home to discuss the union. ees, or enlist employees as spies.

6. employers cannot make “captive audience” speeches to employees during the 24 hours preceding a union election. A “captive audience” speech is one held by the 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 out- right ban employee interrogations, there are very few permissible situations in which an employer or his representatives may interrogate an employee. According to the NLRB, 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 active about their pro-union stance, or any other employee who approaches them, provided that the conversation remains free from threats, coercion, or promises of benefits. In short, employers are allowed to listen to (and report to upper management) information from workers that is freely volunteered.

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