What Can an Employer Not Do During a Union Organizing Drive

Companies facing a union organizing drive need to decide how to combat the drive in a legal manner. Let me clear there are many strict rules as to what companies can and cannot do to defend themselves and campaign against a union during an organizing drive. These rules favor unions and are largely illogical.

The most talked about things that employers cannot do during a union organizing drive is the acronym TIPS, which means threaten, interrogate, promise, or survey. In a nutshell, employers (including management level employees) cannot threaten employees that something bad will happen if those employees vote in favor of a union. For example, threatening to close the business, relocate the business, reduce wages, terminate the workforce and hire new employees are threats that are prohibited during a union organizing drive.

Employers cannot interrogate employees as to whether they support the union, either. Oftentimes supervisors walk up to proposed bargaining unit workers and start to talk about a union organizing drive. During these conversations, the supervisor will ask how the employee feels about the union, how the employee will vote in the upcoming election, and whether the employee signed an authorization card. These types of conversations are not permitted.

Just as threats to employees who favor unions are not permitted, neither are promises to employees for opposing a union. The filing of an RC Petition is sometimes the first time business owners learn that their employees are dissatisfied with their current working situation. Many employers want to quickly fix this dissatisfaction, so they promise to change the way things currently run in an effort to give the employees more of what they want. Unfortunately, once a union is involved – even if an election has not been held – making changes to the status quo is largely prohibited and promising to make changes if employees “just get rid of this union thing” is likewise not allowed.

Lastly, the “S” in TIPS stands for surveillance. Employees in favor of unionization usually talk about it at work – and talk about it a lot. One part of talking about unions is to let their co-workers know when and where the next union organizing meeting will be held. Management usually learns of these meetings before they occur and are tempted to watch and see which employees actually go to the meetings. You can picture the boss slid down low in his drivers seat in a parking spot tucked far away in a corner of a dark parking lot keeping tabs on who supports the union by attending the meeting – this behavior is prohibited.

The penalties for violating these laws are swift and severe. Companies that violate these laws run the risk of having an election result set aside if the employer wins and another election scheduled. When this happens unions use the set aside as a campaign bargaining position of power. Secondly, the NLRB may order the employer to recognize and bargain with the union, even though the union never won an election. This is called a Gissel bargaining order, and although rarely seen, still remains a legitimate threat to employers who violate these laws.

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