As unemployment rises and companies face new COVID-19 health and safety challenges, many unions are exploring new ways to encourage employees to organize.

In this climate of union organizing, it can be important to keep open communications with your workforce. Often, the best way to avoid a union organizing campaign is to listen to employee concerns as they arise and keep a watchful eye on signs that employees might be considering organizing, providing you an opportunity to get out in front of the issues at hand. Proactively addressing COVID-19 safety concerns—for example, by circulating a COVID-19 health and safety plan—can emphasize to employees that the company prioritizes safety. Employees who feel heard and valued are less likely to think that they need a union as an advocate, regardless of whether they get everything they ask for. That said, should employees organize, it’s important for employers to keep certain rules of the road in mind.

  1. The National Labor Relations Act (NLRA) controls company and union conduct during an organizing campaign. For example, it’s unlawful to poll employees on how they plan to vote during an election, to make promises to change employment terms to induce employee support, or to use new methods to solicit employee grievances about wages. It is, however, lawful to make truthful statements about the company’s opposition to a union and to communicate perceived drawbacks of joining a union. Before disseminating a communication to employees that can land them in hot water, companies should familiarize themselves with the dos and don’ts of communicating with employees during an organizing campaign.  In extreme cases, making the wrong move could guarantee that a union will be recognized.

  2. Never discriminate against an employee because the employee expresses union support. The NLRA imposes harsh penalties for any company that disciplines or otherwise acts adversely against an employee due to their union sympathies.  Before disciplining an employee in the midst of an organizing campaign, it’s important to ensure that evidence demonstrates that the true reason for the discipline is independent of the employee’s union support or affiliation.

  3. Make sure to communicate rules and expectations to supervisors and managers during a campaign. Actions of supervisors can be imputed to the company, so it’s important to clearly identify how supervisors are expected to respond and behave to organizing activities. Training supervisors on how to respond can save time and resources down the road.

  4. Think carefully before agreeing with a union proposal to voluntarily recognize a union or to adopt a union collective bargaining agreement immediately. Voluntary recognition is a mechanism whereby a company can recognize a union as the employees’ bargaining representative without needing to go through an election. In some circumstances, a company may want to explore this option, but it’s important to understand the voluntary recognition obligations in place before doing so.

  5. Government contractors often face unique considerations when it comes to an organizing campaign or negotiating with a unionized workforce. Contracts and industries where wages are sometimes stagnant; for example in prevailing wage situations, are particularly vulnerable to organizing campaigns. While the campaign itself may be similar to commercial industries, handling union activity on a government site, understanding when a government client must be notified, and determining whether an adjustment to your contract price can be passed through to the government, are amongst a few considerations government contractors face. Should employees organize or show support in an election, we recommend contacting counsel to discuss best practices before proceeding to ensure a good understanding of the implications.

In the “new normal” created by COVID-19, many companies have been preoccupied with the impact of the crisis and how to keep doors open and keep employees working. While the possibility of a union-organizing campaign may seem like a remote possibility, the increase in union organizing activity should be a reminder not to let an organizing campaign catch you by surprise. Nichole Atallah and Sarah Nash, the authors of this blog, and members of the Labor & Employment Group at PilieroMazza are well positioned to assist you in navigating these situations should your company face organizing activity or if you need assistance with a unionized workforce.