March 2014
By: Richard H. Wessels, Esq.

One of my employees is telling other employees that things would be “better” with “a union.” What should I do? Our Company is non-union and has been that way for 25 years.

This is a really good question! We see situations like this regularly. There is no cookie cutter approach. Dealing with an in-house union agitator requires well thought out handling. What works in one case, may be ill advised in another. But, there are some basics that the client needs to understand.

1. You can enforce normal no solicitation/no distribution rules.

2. You must guard against the commission of unfair labor practices in handling this. This is an exceedingly complicated area. It is probably best understood by looking at the classic things that an employer cannot do in the face of a union organizing campaign – promises, threats and interrogation.

3. You, the employer, have free speech rights. These rights are written into the National Labor Relations Act. An employer is free to talk about the disadvantages of having a union. That free speech, of course, is limited by the NLRA’s prohibition against promises, threats and interrogation.

4. There are several levels of response that we typically look at in guiding employers who are faced with a union organizing campaign. The objective is to see that it does not escalate to union card signing. Simply stated, this is the spectrum of possible responses:

• Watch and wait. Operate on the theory that your HR policies are good and employees will have no interest at all and “nature will take its course”.
• Train the supervisors. This is an excellent strategy and one that we use regularly. Front line supervisors are your best line of defense.
• Take a position with a letter to employees, paycheck stuffers, etc.
• Hold employee meetings where the Company’s views are put forth persuasively and in a manner that does not violate the NLRA. Often a short video is used. There are several of them out there in the marketplace.

I would first try to get a handle on why this guy is pushing for a union. Once we have a better understanding, we can then develop a response along the guidelines that I have suggested.

Questions? Call Attorney Dick Wessels of Wessels Sherman’s St. Charles, Illinois office: 630-377-1554 or email him at riwessels@wesselssherman.com.

Readers are invited to submit their labor law questions for possible use in this column. Just email your questions to Dick Wessels at riwessels@wesselssherman.com. Your identity (and your company’s identity) will not be revealed if your question is selected by Dick Wessels for this column.

“Ask Your Labor Lawyer” is our very popular monthly column written by Dick Wessels who is Founder and Senior Shareholder of Wessels Sherman. He is a nationally recognized labor attorney and has been honored as an Illinois Super Lawyer. Dick handles a wide variety of labor and employment law cases. His primary focus is dealing with labor unions, either on behalf of union-free companies or where unions already have representation rights. Dick has handled cases involving nearly all international unions for companies throughout the United States.