The overwhelming majority of American employers have never had to deal with a union. For most, all they know of unions is what they read about or hear in the news, usually about some high-profile strikes. Unions are at their lowest ebb in almost 50 years. They currently represent only 6% of the private workforce. This is down from almost 25% as late as the early 1980’s. In fact, they have declined from 6.4% at the outset of the Biden administration despite his declarations that his would be the most pro-union administration in history.

The steady decline of unions has resulted in several generations of managers and supervisors who have an almost total lack of knowledge in how to legally respond should a union issue arise. This lack of knowledge can be detrimental for employers. Notwithstanding their dramatic decline, some union organizing does occasionally occur. Recently, unions have enjoyed some successes in certain sectors. For example, during the past two years hundreds of Starbucks have been successfully unionized. Unions have also been able to organize several Apple retail stores, as well as some video game manufacturers. A primary reason for the unions’ focus on such employers is the nature of their workforces. Studies have shown that younger workers tend to have more positive views of unions. They are animated by the idea of collective action.

Training on ‘TIPS’

Despite union organizing greatly diminishing, the potential remains that a union could target an employer for organizing. Often, disgruntled employees contact a union in response to some perceived or actual failure or mistreatment on the part of management. The National Labor Relations Act (NLRA) protects employees’ right to engage in concerted activity regarding their working conditions. “Concerted” is simply another term for “acting together” to protect those rights.

Employers are prohibited from interfering with employees’ concerted activity. The term “TIPS” encapsulates the prohibited conduct. An employer may not “threaten,” “interrogate,” “promise,” or “surveil” (spy) on employees’ union or concerted activities. While conduct that constitutes a threat, promise, or spying is relatively easy to recognize, what constitutes “interrogation” is more problematic. It is the most common allegation of unlawful conduct by employers in response to union activity. Often it involves conduct that in a non-union context would be casual conversation between management and employees. An innocuous remark such as “Did you hear about that union meeting last night?” or “I wonder what those people that support the union really want?” can readily be found to be unlawful interrogation by today’s pro-union National Labor Relations Board (NLRB). If there is more than an isolated instance, it could be sufficient to overturn a subsequent employer union election victory. When more serious violations also occur, such as unlawful terminations, it can even result in an employer being ordered to recognize and bargain with the union without a secret ballot election ever being held.

It has become common for employers to provide managers and supervisors with training on unlawful workplace conduct such as discrimination and harassment. Unfortunately, similar training seldom, if ever, addresses the do’s and don’ts for management in responding to union activity. While such training may never be put to the test, waiting for a union to appear before providing critical guidance is courting disaster. Well-meaning managers and supervisors often react to try to quell union talk or activity. Lacking a foundation in what can legally be done invariably risks losing the fight before it has really begun. While there is no union on the horizon is the time to give your team the defensive tools they hopefully never have to use.