Non-Union Employers Face Triple Threat: Unfair Labor Practice Charges, Unionization, and Bargaining Orders

The National Labor Relations Board has released more statistics that further confirm what labor lawyers suspected:

• Employers are subject to more unfair labor practice charges,
• Employees and labor organizations are filing more petitions for elections, and
• The Board's recent decision in Cemex is already having an impact on union organizing.[1]

Other statistics show that strike activity is up sharply in 2023, with more than 300 strikes reported so far. Of those labor actions, 188 – roughly 59% – have taken place in Washington, Oregon, and California.[2]

It should now be clear that employees across the country and across every industry group are looking to labor unions and confidently taking collective action to improve their wages, hours, and working conditions. And unions are eager to help.

Non-union employers need to be well-informed and prepared to weather an organizing campaign, particularly now – under the NLRB's recent decision in Cemex – that employers could be forced to recognize and bargain with a union. More important, employers should have an overall employee relations strategy geared toward making unionization unnecessary.

The Law

The National Labor Relations Act (the Act) guarantees employees have the right to unionize, to join together to advance their interests as employees, and to refrain from such activity. Employers may not interfere with, restrain, or coerce employees in the exercise of their rights. For example, employers may not respond to a union organizing drive by

• Interrogating employees about who might be leading the organizing,
• Prohibiting employees' discussion of unionization at the workplace,
• Threatening, explicitly or implicitly, that employees will suffer adverse consequences for unionizing, or
• Promising employees benefits if they abandon their unionizing campaign.

The prohibitions might seem straightforward, particularly to many who have experience with unions and unionized workplaces, and those who understand the nuances that could mean the difference between lawful engagement and unlawful "interference, restraint, or coercion." But for leaders facing the prospect of unionization for the first time, figuring out the rules of the game can be difficult and confusing.

The Problem(s)

Organizing campaigns move quickly, and because employees and labor organizations have mastered social media, those efforts are often carried out surreptitiously. As a result, non-union employers are often caught off-guard, leaving them with little time or opportunity to mitigate organizing efforts. Worse, employers must navigate complex and often counterintuitive labor laws, learning only some of the "Dos and Don'ts" on the fly.

Well-meaning employers will want to quickly engage with their employees to understand the motivation for organizing and what changes their employees want. But many those efforts are misunderstood and mischaracterized as crossing the line from lawful conversation to unlawful interrogation or solicitation of grievances. And employers who would separate pro-union employees with serious, well-documented performance or behavioral issues could find themselves charged with discriminating or retaliating against those employees based on their support for the union.

And employers surprised by a union's demand for voluntary recognition could inadvertently create a collective bargaining relationship by saying or doing something that allegedly violates the NLRA. At that point, the employer would be faced with entering an indefinite relationship with the union, or engaging in a long, expensive legal battle to defend the company against allegations of unlawful conduct in order to give employees the chance to vote on unionization in a secret ballot election.

The Solution

It's often said that the best way to win a union election is to not have one.

Unions and employees are emboldened by recent NLRB decisions, like Cemex, that ease the path to organize workers, and the growing body of case law that reduces employers' options for engaging directly with their employees about unionization, and expands penalties for employer missteps. That confidence is shown, in part, by the increasing prevalence and relative efficacy of using job actions to gain leverage in bargaining.

Employers can stave off unionization efforts by utilizing best practices when managing the workforce, regularly gauging employee morale, and staying on top of workplace issues rather than turning a blind eye. But sometimes that might not be enough to keep union organizers away. And employers need to be prepared to respond if they reach out to their employees.

Employers, now more than ever, must know the rules of the road for positively and effectively engaging with their employees in the face of collective action. Employers need to know:

• What questions and statements are lawful?
• What changes to employees' terms and conditions of employment are permissible?
• How can managers share their opinions and provide examples of how unionization isn't a panacea?

As an employer, knowing what to do and what to avoid when engaging with employees is essential. Employers are wise to contact experienced labor law attorneys to discuss their risks and strategies in detail.

[1] In Cemex Construction Materials Pacific, LLC, 372 NLRB No. 130 (August 25, 2023), the NLRB held that, if a union demands that an employer recognize and bargain with that union, and the demand is supported by what the union claims is proof that a majority of employees want to have the union as their representative, that employer has two choices: recognize the union, or file an petition with the NLRB asking for an election among the employees to determine whether the employees truly want to be unionized. If the employer fails to file the petition, or files a petition but commits any unfair labor practice prior to the election, the NLRB may do away with an election altogether and order the employer to recognize and bargain with the union.

[2] According to Cornell University School of Industrial and Labor Relations, there have been 311 labor actions in 514 locations across the country as of October 11, 2023. See https://striketracker.ilr.cornell.edu/