www.NFIB.com/unionizationguide nFIB guIde to ManagIng unIonIzatIon eFForts 1. What to Do When Facing an Organizing de I Campaign » Know your rights » Understand the National Labor Relations Act » Be familiar with the National Labor Relations Board What’s Ins 2. Allowing Unions Access to Your Employees ✔ » Rules regarding the solicitation of your employees » Distribution of pro-union materials 3. What You Can Say to Your Employees » Communicating the disadvantages of union membership » Talking about strikes 4. What You Cannot Say to Your Employees » Consider their perspective » Six guidelines to remember 5. What to Do When Your Rights the Union Arrives » Avoid costly missteps During a Union Organizing Campaign DEVELOPED BY SMALL BUSINESS LEGAL CENTER www.NFIB.com/unionizationguide 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. 2 NFIB GUIDE TO MANAGING UNIONIZATION EFFORTS | www.NFIB.com www.NFIB.com/unionizationguide one 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. www.NFIB.com | NFIB GUIDE TO MANAGING UNIONIZATION EFFORTS 3 two www.NFIB.com/unionizationguide 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. 4 NFIB GUIDE TO MANAGING UNIONIZATION EFFORTS | www.NFIB.com www.NFIB.com/unionizationguide two 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.