Organizing a union is a crucial step in your journey towards workplace empowerment. But any shift in workplace power is likely to be met with resistance from management who have a vested stake in maintaining the status quo. This resistance can take drastically different forms - from legal anti-union policies to illegal attempts to intimidate and retaliate. A 2019 study by the Economic Policy Institute found that over 40% of union election campaigns between 2016 and 2017 resulted in charges of Unfair Labor Practices (ULP), including firings, changes of work terms, coercion, and threats.
We know what’s at stake - that’s why we’ve broken it down so you can understand your rights and what actions to take to protect them.
Your Rights for Union Organizing and Advocacy
The National Labor Relations Act (NLRA) was enacted in 1935 to protect private-sector workers’ rights to bargain collectively and forms the primary body of law regarding union organization. It protects specific acts to encourage unionization. While sometimes it may be worth exceeding these protections, it’s important to understand exactly where the line is so you can make an informed decision that’s best for you and your fellow workers.
The following is a highlight of actions you’ll likely want to consider when organizing a union and their respective limits.
- Discuss union activities. In non-work areas, during non-work time you can freely speak about union activities, including social media.
BUT, you are still subject to policies that govern your activities in work areas and general policies such as those regarding confidential or proprietary information. For example, it’s common for companies to have “non-solicitation” policies that lawfully prohibit the use of company equipment, including email, for the purpose of promoting union activities.
- Take action to organize. You can hand out pamphlets, collect signatures, and hold your own meetings.
BUT, just as above, you’re limited to performing these activities in non-work areas and during non-work times. In general, avoid using anything that could be construed as a company resource, as “harm to the business” is a convenient argument used to justify cracking down on attempts to unionize.
- Wear pro-union apparel and accessories. You can wear apparel and accessories to promote your activities related to union organizing while at work.
BUT, your employer may lawfully limit the size and other characteristics of worn items in an area that’s publicly accessible (such as a sales floor) - though these policies generally cannot be blanket prohibitions and can’t apply to areas that are employee-only.
Know Management’s Limits
Each year companies spend hundreds of millions of dollars on “union avoidance” efforts - with that kind of firepower you’ll need to understand what management can and can’t do to try to curtail your lawful right to bargain collectively.
We’ll start with what companies are legally permitted to do (and some examples of how they might try to twist these rules unfairly).
- Facts. During negotiations with unions (or talks about organizing), employers are allowed to cite specific facts to support their case against unionization.
BUT, they’re also allowed to frame these facts any way they see fit. For example, a company may aggressively highlight the fact that union dues come from all workers’ paychecks, not just union members, and argue this as a negative - even if this fact can just as easily be seen as a positive, as it prevents non-union workers from benefiting from the union’s efforts without substantially supporting it.
- Opinions. Employers are allowed to freely voice their opinions, such as the belief that allowing workers to legally strike will bring harm to the company as a whole.
BUT, they’re also allowed to voice any opinion even if they don’t particularly believe it. For example, an employer can lawfully express the opinion that “we may have to shut down the company if you unionize” while having no intention of doing so.
- Examples. Employers are allowed to provide examples from past circumstances.
BUT, they can use whatever examples they see fit. For example, a company could provide an example of a business failing after unionizing, but omit the fact that the business failed because of executive mismanagement.
Now, let’s look at what actions companies are strictly prohibited from performing and how you can spot them.
- Threats (and Retaliation). No employer can threaten or retaliate against workers for supporting unionizing, or any related activity. Examples of this include firing, lowering wages, changing job responsibilities, or even changing schedules for breaks.
- Interrogations. No manager or supervisor (or any non-union-qualifying employee) can question workers (either alone or in groups) about their membership, opinions, feelings, or any union-related activity. Even a single, simple question such as asking if you have signed a union authorization card is unlawful.
BUT, be careful of volunteering such information in response to vague or open-ended questions such as “What did you get up to this weekend?” that would fail to meet the standard of an “interrogation.”
- Promises. Companies are not allowed to attempt to circumvent the bargaining power of a union by making promises contingent on union activities. For example, a company may try to sway an upcoming union campaign by promising extra vacation days if the campaign fails, or they may promise individual workers preferential scheduling if they vote against unionization.
- Surveillance. Employers and management are forbidden from eavesdropping, recording, or attending union-related activities. In fact, they’re even barred from appearing to do any of these things, even if they demonstrably aren’t.
Beyond the NLRA
Unfortunately, the current legal reality surrounding the NLRA is that while it does provide the above protections, it also falls short in many ways:
- Its generally weak remedies discourage ULP reporting and sometimes place a burden on the worker to mitigate the harm done by the company.
- A complete lack of civil or punitive damages for companies found in violation.
- Loopholes that allow companies like Uber and Instacart to classify “gig economy” workers as unprotected “independent contractors.”
- It heavily favors the employer in many situations. For example, employers can hold mandatory meetings to spread anti-union propaganda, while workers can’t discuss unionizing during work-time.
While there is hope that the recently re-introduced PRO Act can fill many of these gaps; until it becomes law we’ll have to rely on our own vigilance and the support of our fellow workers to pick up the slack.