Working With Unions: Legal and HR Considerations

After decades of decline, the push to unionize workplaces has begun to pick up steam. Sentiment in favor of unions is on the rise, as are work stoppages. This means that in many organizations it’s been decades since anyone in management has worked in an environment that included unionized workers.

Since many workplaces lack institutional knowledge about working with unions it’s important for business owners, HR professionals, and recruiters understand the laws that govern unions and how to work with unionized employees.

The answers to the following questions can help employers develop processes to work effectively in a unionized environment.

What Is a Labor Union?

Labor unions (or organizations) come in a variety of categories, but are generally defined as a group of workers who come together to negotiate on behalf of their fellow workers. The profile of unionized workers has changed over the years. Today’s union workers often have associate’s degrees and nearly half have a bachelor’s degree. The majority work in:

• Healthcare
• Education
• Manufacturing
• Transportation and utilities

What Legal Rights Do Workers Have to Organize?

Forming a union is a federally protected activity, so you are prohibited from sanctioning your employees in any way for their efforts to organize. In accordance with the National Labor Relations Act (NLRA), most private sector employees are guaranteed the right to:

• Organize to establish a union
• Engage in collective bargaining with their employer
• Work together to improve the terms and conditions of their employment
• Engage in collective action, including work stoppages or strikes
• Vote to decide whether they want to establish a union or reject unionization

The NLRA prohibits employers from firing, disciplining, or demoting employees who attempt to establish unions. The law is enforced by the federal National Labor Relations Board (NLRB), which has jurisdiction over most private employers that engage in interstate commerce.

State regulations guiding unionization and permitted employment practices can vary from federal law, so it’s essential to educate yourself on what is and isn’t permitted in your state.

How Do Workers Unionize and Can You Try to Stop Them?

In most cases, employees who want to establish a bargaining unit will reach out to a union in their sector for guidance. Occasionally, a union will reach out to workers. From there, union organizers work to collect signatures until 30 percent of workers have signed a petition in favor of unionization that is then sent to the NLRB.

At that point the NLRB takes over voting to ensure that the process is fair. An employer can avert NLRB involvement entirely by voluntarily recognizing the union at any stage prior to petition.

Once the NLRB is called in, employer interactions with employees who are working with unions to organize legally are constrained in several ways. Employers may not:

• Threaten layoffs or other punitive measures such as salary or benefits reductions
• Threaten to penalize or fire employees who are leading the move to organize
• Offer individual employees raises or promotions in exchange for a vote against unionizing
• Threaten to close their business if employees vote to unionize
• Ask employees any questions about the unionization process, including how they plan to vote

Are There Any Effective Ways to Block Unionization?

Though you are legally prohibited from retaliating against employees who are working to establish a union in your workplace, there are valid arguments to be made against union membership that you can discuss with your employees:

• Union contracts tend to accrue the majority of salary, benefits, and job security provisions to employees with the longest tenure at the company, so your newer employees have less to gain.
• Because a union rep typically needs to be involved in all communications that can affect an employee’s working conditions, workers often have less of a chance to develop close mentoring relationships with supervisors.
• Employees may find it difficult to have necessary one-on-one conversations with managers or HR, even when it involves extremely private matters.

It’s best to avoid aggressive anti-organizing tactics. Not only do they often fail to tamp down support for unionization, but they can also hurt your brand and prompt backlash from consumers. The best way to prevent your workers from unionizing is to adopt employer best practices, such as:

• Provide fair compensation, including benefits that encourage work-life balance.
• Draft fair HR practices and procedures, make them accessible to your workforce, and implement them in a fair and transparent manner.
• Commit to policies that reflect your employees’ values, especially in areas like worker safety, environmental impact, workplace safety, and diversity, equity, and inclusion (DEI).

Regardless of unionization status, a growing number of job seekers want to work for employers that take corporate accountability and social and environmental responsibility seriously.

What Is a Closed Shop, Open Shop, and Right-to-Work State?

A workplace where all non-management employees must become dues-paying union members is referred to as a “closed shop.” In an “open shop,” employees have the option to join the union or not.

If your company is located in a “right to work” state, then you will automatically have an open shop. In many right-to-work states, unions have to expend their resources to protect and promote the interests of non-union workers even if they do not pay dues.

What Is the Role of HR When Working With Unions?

Once a union is in place, it is essential that HR maintain a healthy working relationship with union personnel and employee representatives. It is also the responsibility of HR to train managers on best practices for working with unions and leading teams effectively in a union environment:

• Make sure all HR employees and managers read the current contract in its entirety.
• Provide workshops to go over any elements of the contract that may be hard to understand.
• Discuss ways managers can implement company priorities while adhering to the contract.

Your department heads will need guidance when transitioning from non-union to union management practices. For example, it’s essential that all supervisors know when they need to have a union rep present for an interaction with an employee to avoid costly grievances.

How Should I Handle Grievances?

When a provision of the contract has been violated, union members have the right to file a grievance. At that point a union representative will become involved in any communication between management and the employee who believes their rights have been violated.

Grievances are time-consuming, undermine management, and can even lead to strikes or demands to renegotiate the current contract. To avoid grievances:

• Make sure all managers are familiar with the provisions of the current contract.
• Create a committee made up of key managers, HR, and union reps that meets on a regular basis to go over concerns before formal grievances arise.

What Is the Best Way to Negotiate a Contract?

You are legally required to negotiate with the bargaining unit, but you are not required to make concessions. If you believe negotiations have broken down, you can declare an impasse and ask that the NLRB come in to moderate negotiations.

However, it’s best to wait until union representatives agree to declare an impasse. Otherwise, the union can charge you with failing to negotiate in good faith, and if the NLRB finds in their favor, it can force you back to the bargaining table, under federal court order if necessary.

Rather than adopting an adversarial approach to working with unions on contract talks, consider employing interest-based negotiating, which entails trying to understand what the other side wants and why they want it. They then try to find solutions that can accomplish both sides’ goals.

Working With Unions Can Be Complicated. Get All Your Management and Hiring Questions Answered

There’s a lot to consider when transitioning from a non-union to union workplace. For expert answers to all your management and recruitment questions, Monster has you covered with articles on the latest HR best practices and hiring strategies.

Legal Disclaimer:  This article is not intended as a substitute for professional legal advice. Always seek the advice of an attorney regarding any legal questions you may have.