This document provides an overview of union organizing and strategies for employers to avoid or counter unionization efforts. It discusses drawbacks of unionized environments for both management and employees. Common reasons for employee interest in organizing are also outlined. The document then covers warning signs of organizing activity, trends in union organizing such as new targeting industries and aggressive campaign tactics, and policies and communications strategies employers can implement to discourage unions. It also addresses the union election process, campaign dos and don'ts, and post-election procedures and challenges. The overall aim is to help employers navigate the process of a union organizing drive and maintain a non-unionized workforce.

1. Business Law Training | We Are Not in
Kansas Anymore: What to Do When a
Union Tries to Organize Your Company
and You Land in Oz
Judith Williams-Killackey
Judi.Williams@quarles.com
(414) 277-5439
Fred Gants
Fred.Gants@quarles.com
(608) 283-2618

2. Learning Objectives
We are here to help you maneuver through the often unchartered territory
of a union trying to organize your workplace.
Goals:
1. We want to help you avoid having to deal with a union in the first place.
2. We want to keep you non-unionized if a union begins to organize.
3. We want to help you if you do become or are unionized with achieving
your objectives during bargaining.
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3. Drawbacks With Unionized Environments
Management May Lose:
• The right to assign work based on ability
• Flexibility in schedules
• Opportunity to work out individual problems
• Person-to-person relationships
• Merit pay determinations and promotions
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4. Drawbacks With Unionized Environments
Employees May Lose:
• Freedom to advance and increase their pay based on merit
• Money, through dues and fees
• Personal relationships with supervisors
• Opportunities to cross train and learn new skills
• Personal considerations in the enforcement of policies
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5. The Seeds of Organizing
• Lack of communication (a two-way street)
• Favoritism/discrimination
• Lack of job security
• Noncompetitive wages, benefits or working conditions
• The boss (personalities)
• Employee ignorance of unions
• Personal frustrations
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6. Typical Organizing Issues
• Economics (lack of competitive wages, benefits, etc.)
• Poor communications
• Job security
• Staffing issues/staffing ratios
• Seniority
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7. Warning Signs Of Organizing Activity
• Increase in employee complaints
• Employees who do not normally associate with each other forming into
groups
• Employees avoiding supervisors and "clamming up"
• Employees distributing materials or cards
• Blogs, postings or other statements directing hostility toward the
employer
• Argumentative questions and challenges during employee meetings
• An unusual number of inquiries on policies particularly, pay benefits,
and discipline
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8. Union Organizing Trends: Unions Are Energized
• Unions continue to pour millions of dollars into organizing non-
unionized employers, regardless of geographic location and industry.
• Unions have also become far more aggressive in their methods of
reaching employees, through such means as cold calling employees at
home, handbilling next to an employer’s business, and/or engaging in a
campaign to damage the employer’s reputation by attacking its products
or services and accusing the employer of discrimination.
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9. Union Organizing Trends: Follow-Up
The Solution:
• Conduct a comprehensive employment relations audit (and consider
policies, supervisors and where you can improve).
• Have a survey done of your property so that you are fully prepared to
contact the police if a union organizer is trespassing on your property
with handbills.
• Be prepared to conduct pro-active and effective advertising and/or
public relations to protect and develop the company’s image to
counteract a negative union campaign.
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10. Union Organizing Trends: New Areas
• Unions are focusing their organizing efforts on new areas, such as health
care, services, finance/insurance/real estate, graduate students.
• Another successful tool for unions has been to focus organizing efforts
on women and minorities.
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11. Union Organizing Trends: Listening and Communications
The Solution:
• Look at various areas of your work force and consider where you may be
vulnerable to union activity.
• Conduct training on a periodic basis for supervisors and managers
regarding union avoidance, do’s and don’ts, and recognizing the warning
signs of union activity.
• Explore and, where possible, implement improved employee
communication mechanisms to maximize employee input and
participation.
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12. Maintain Open Communications
• Department or shift meetings
• Company-wide "state of the organization" meetings
• Management walk around
• Newsletters
• Suggestion systems
• Other employee committees or employee involvement mechanisms
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13. Employee Committees
• Employee committees may be useful in deterring union organizing but
must be careful.
• Any employee committee or representation plan that “deals with”
management on an ongoing basis concerning mandatory subjects of
bargaining (wages and benefits, hours, and working conditions) may
constitute a labor organization, which the employer has unlawfully
sponsored or dominated under Sec. 8(a)(2) of the Act.
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14. Employee Committees
• The Solution: Avoid forming employee committees that are
“representational” in nature (e.g. representatives from each department
or shift are elected to serve on the committee), if the subjects
addressed by the committee include wages, benefits and working
conditions, and if there is bilateral decision-making in the committee
setting.
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15. Committees That Are Okay
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• Regular gatherings of employees to address concerns such as ad hoc
committees, department meetings, plant meetings, etc. are not
“representational plans” which run afoul of the law.
• Quality circles and work teams dealing with production processes do not
deal with mandatory subjects of bargaining and are probably
acceptable.
• Employee involvement mechanisms such as suggestion programs are
also not representational programs and do not run afoul of the law.

16. Union Organizing Trends: The Handbook
• When Obama was President the National Labor Relations Board (NRLB
or Board) took aggressive view of handbook violations.
• No longer the case. Now taking much more balanced approach. In
determining whether a facially neutral workplace policy, rule, or
handbook provision potentially interferes with the exercise of NLRA
rights the Board will consider: (i) the nature and extent of the potential
impact on NLRA rights; and (ii) legitimate justifications associated with
the rule
• General Counsel Memo contains new guidance for NRLB Regional
Offices as they are considering unfair labor practice charges involving
work rules.
16

17. Union Organizing Trends
• Employee Handbook is an important vehicle to:
a. Inform employees of their benefits and work conditions
b. Provide employers with opportunities to make clear their
expectations, including work rules and discipline
• Good Employee Handbook is strong argument against labor agreement
with union
17

18. Employee Handbook
Generally lawful rules that employers may want to consider:
• Civility rules
• No-photography and no-recording rules
• Rules against insubordination, non-cooperation, or on-the-job conduct that
adversely affect operations
• Disruptive behavior rules
• Rules protecting confidential, proprietary, and customer information or documents
• Rules against defamation or misrepresentation
• Rules against using employer logos or intellectual property
• Rules requiring authorization to speak for the company
• Rules banning disloyalty, nepotism or self-enrichment
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19. Potential Issues with Handbooks
• Non-Solicitation Rules
• Wage Discussions
• Dress Code
19

20. Non-Solicitation Rules
• Maintain non-solicitation rules that are overly broad and, as a result, are
illegal.
• Alternatively, many non-union employers have perfectly drafted non-
solicitation rules that are regularly ignored on a day to day basis,
rendering them of no value if and when union solicitation occurs.
20

21. Non-Solicitation Rules
The Solution: Ensure that your non-solicitation/non-distribution rule is
properly drafted and is consistently enforced on a day to day basis. It should
meet the following requirements:
• Solicitation - an employer can ban all solicitation during “working time”: a ban
during “working hours” is too broad because it extends the prohibition to
breaks and lunch times, which is impermissible.
• Distribution - an employer can ban literature distribution during working time,
and at any time in work areas.
• Off duty employees - can be banned from re-entering the work areas of
company premises, but cannot be prohibited from coming back onto the
property on their off time.
21

22. Discussing Wage Rates With Other Employees
• Threatening an employee with discipline for discussing his or her wage
rate with others, restrained and coerced employees in the exercise of
their right to engage in protected concerted activity under the National
Labor Relations Act.
• Solution: Employers should ensure that work rules do not contain such
a prohibition. While employees can be required to maintain the
confidentiality of other employees’ wages if, for example, their job
requires them to have access to such information, employees cannot be
prohibited from discussing their own wage rates with fellow employees.
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23. Union Apparel
• Union apparel can typically be worn by employees who are not
managers or supervisors
• One Company solution is required Company Uniform (but does not
prevent other types of union insignia)
23

24. If Only It Were So Easy
Knock Knock.
Who's There?
A union.
No thanks.
24

25. Follow The Four Commandments
• Keep employees informed as to what is expected of them in terms of job
performance
• Advise employees as to whether they are performing satisfactorily
• Treat all employees fairly, impartially, and consistently
• Measure employee performance on the basis of facts (documented
wherever possible) rather than opinions or assumptions
25

26. The Process of Unionization
• Authorization cards and "showing of interest" (don't look at cards)
• Direction of election
• Pre-election campaigning
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27. Quickie Election Rules
• Pre-Election Hearing within 7 days
• Email notice same day file petition
• Must submit preliminary voter list and written position statement
• Pre-election hearing topics limited
• Hearing officers may significantly limit pre-election hearing evidence and
close the hearing, even if the eligibility of up to 20 percent of bargaining
unit members is still in doubt
• Limited appeal rights
27

28. Quickie Election Rules
• NLRB Regional Director should pick an election date that is “as soon as
practicable.”
• Have seen dramatically decreased time period between filing of petition
and election.
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29. Supervisors
• Supervisors are not allowed to vote in an election. Further, company
may be held liable for conduct by supervisors.
• Failure to address supervisor issues pre-hearing creates potential issues.
• ULP charge or nullification of election if Employer involves “supervisors” in
campaign who are later determined not to be supervisors.
• If Employer allows individuals who may be supervisors to vote, based on a Union
objection as to their supervisory status, it loses the supervisors’ help during
campaign.
• If Employer includes individuals on voting list despite union objection that they
are supervisors, and Employer is wrong, Company win could be nullified.
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30. Supervisors
• Analyze now the supervisory status of the individuals working with and
directing your rank and file hourly employees.
• “Lead workers” and “working foremen:” if such individuals are
responsible for directing lower level employees, and they use discretion
and independent judgment based upon their skill, training and
experience in the course of such direction, they may in fact be statutory
supervisors.
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31. What Not To Say During An Election Campaign
• What you (and your supervisors/agents) say during a union
campaign is very important
• Among other things, management should not: (1) make any
threats to discourage union activity; (2) interrogate employees
regarding their support for the union; (3) make any promises of
a benefit in return for employees not joining the union; or (4)
spy on union activities
• Supervisors/Managers should be trained on "TIPS"
• No Discrimination against employees because of Union activity
31

32. "TIPS" Training
T: THREATS
• Don’t make any threats to discourage union activity, union
membership, signing a union card, or voting for the union,
such as:
• Cut benefits
• Cut overtime
• Remove privileges
• Undesirable transfer
• Lay off employees
• Discharge employees
32

33. "TIPS" Training
I: INTERROGATION
• Don’t question any employee about his/her or any other
employee’s:
• Union activity
• Feeling toward the union or its officers
• Opinion of the union or its officers
• Voting intentions
• Membership in the union
• Signing of a union card
• Solely listening is okay
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34. "TIPS" Training
P: PROMISES
• Don’t make any promises of a benefit in return for the
employee’s not joining the union, voting against the union,
not signing a card or not engaging in union activity, such as:
• Higher pay
• More overtime
• Better benefits
• Extra privilege
• Better treatment
• Promotion
34

35. "TIPS" Training
S: SPYING
• Don’t spy on union activities.
• Don’t ask any employee to spy on union activities.
• Don’t go to a union meeting or near where a union meeting is being held.
• Don’t act so that employees may believe that you are watching them to
determine whether or not they are participating in union activities.
• Don’t tell any employee that the company knows which employees are
members of the union, signed a union card, engaged in union activity, or
attend a union meeting.
35

36. Campaign Themes
• Determine the issues
• Positive versus negative campaigning
• Knowing the union
• The importance of personal contacts
36

37. Election Campaign Strategies
Written communications and speeches
• Topics might include:
• Authorization cards
• Union constitution and by-laws
• Union promises
• Comparison of wages and benefits
• Strikes and replacements
• Specific details of the election
37

38. What You Can Say During An Election
• Inform the employees that the Company is opposed to a union because it
is unnecessary.
• Inform the employees that the company prefers to deal directly with them
rather than with the union or any other outsider.
• Remind the employees about the company’s record for fairness and
willingness to cooperate (open door policy, job opportunities, discipline).
• Inform the employees that they do not have to join a union to keep their
job with the company.
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39. What You Can Say During An Election
• Inform the employees of the benefits they presently enjoy without paying
union dues (wages, specific benefits).
• Inform the employees that no union can obtain more wages and benefits
than the company is willing to pay.
• Inform the employees that unions cost money (i.e. dues, fines, fees,
initiation fees and assessments).
• Inform the employees that no union can obtain more than you as an
employer are able to give.
• Inform the employees that the company is not required to automatically
sign a union contract or agree to any benefits.
39

40. The Election is Done: What are the next steps?
• Certification (and decertification) elections are decided by a majority of
the votes cast
• Post-Election Certification
• An election is not final until it is certified by a representative of the NLRB
• After the votes are counted, the losing party may file objections with the Board to
set aside the election (seven days from notice of the vote count)
• If timely objections are filed, the Board withholds certification until the dispute is
resolved
• The Board will also withhold certification if a party challenged the eligibility of voters and those
challenged ballots would affect the elections results
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41. The Election is Done: What are the next steps?
When the Employer Prevails
• Keep employees happy -- thank them and continue to look at ways to improve
terms and conditions of employment;
• If employer won by a small margin, efforts to improve the workplace should be even
more concentrated as the union may file a new certification petition as soon as one year
after the election results are certified
• Continue to be proactive in deterring the union from trying to organize
employees; and
• Assume Union will file objections -- must be prepared to defend election
victory by demonstrating that all pre-election and election conduct was
permissible and preserved the voting employees' freedom of choice.
41

42. The Election is Done: What are the next steps?
Considerations in Challenging the Election
• Objections must be filed within seven days after receiving notice of the vote count;
• (1) a written statement with the reasons for challenging the election; and (2) an "offer of proof" in
support, including the names of witnesses and a short description of their testimony
• Given tight deadline, important for employers to begin fact finding early (and even before votes
are counted)
• Election will only be set aside if conduct by the employer or the union tainted the
election's "laboratory conditions" by creating an atmosphere of fear of reprisals and
thus interfered with the employees' freedom of choice
• The Board's regional director will review objections and determine whether a
hearing is necessary (objections must raise substantial and material factual issues)
42

43. The Election is Done: What are the next steps?
What to expect at an objections hearing
• Both parties have subpoena power and will have an opportunity to present
evidence to a hearing officer;
• Hearing officer will look at the totality of the circumstances, including the
number of voting employees, margin of defeat, and effect of the misconduct
on employees' free will;
• Hearing officer will certify election if objections overruled (and employer will
have obligation to bargain with the union); or
• If objections have merit and affected the election results, the hearing officer
will set aside the election and order a re-run.
43

44. The Election is Done: What are the next steps?
Conduct which the Board has found sufficient to invalidate an election:
• Depriving eligible voters of an opportunity to case ballots (e.g., departing from the scheduled
election time or preventing voters from reaching the polls);
• Improper behavior during the election process committed by a union representative, election
observer, voter, or Board agent overseeing the election;
• Actions which undermine the integrity of the ballot box (e.g., leaving the ballot box unattended
during the election or reviewing ballots outside the presence of election observers);
• Electioneering inappropriately close to the polling place, including prolonged conversations with
employees waiting to vote or a captive audience speech within 24 hours of the election;
• Threats, interrogation, surveillance, discrimination, or discipline that is intended to affect voting
behavior;
• Inflammatory and irrelevant appeals to racial or ethnic prejudice; and
• Promises or grants of benefits or untruthful campaign statements.
44

45. Union is Certified
A. Exclusive bargaining representative.
B. Employer must bargain in good faith to reach a contract.
C. Employer does not have to agree to any particular proposal.
D. Everything can be put on the table -- wages and benefits may go up or down.
E. Can’t decertify for one year (and up to three more if a contract is reached).
F. Employer may implement last offer upon impasse.
G. Upon expiration of contract, employer must negotiate for a new agreement and
(absent impasse) may not unilaterally change wages, hours or working conditions.
45

46. Union is Certified: Bargaining Objectives
A. Financial Objectives
1. Benchmarking Data
B. Language Objectives
1. Review handbook
2. Other contracts
C. Employee Feedback
46

47. Analyzing Relative Leverage
A. Ability to Operate During a Work Stoppage
1. Replacement Workers
2. Alternative Production Facilities
3. Non-Bargaining Unit Staff
B. Union Strength in Key Areas
47

48. Other Considerations
• Managing Expectations
• Who is on the bargaining committee
• Gather information
48

49. Questions?
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© 2019 Quarles & Brady LLP - This document provides information of a general nature. None of the information contained
herein is intended as legal advice or opinion relative to specific matters, facts, situations or issues. Additional facts and
information or future developments may affect the subjects addressed in this document. You should consult with a lawyer about
your particular circumstances before acting on any of this information because it may not be applicable to you or your situation.
Judith Williams-Killackey
Judi.Williams@quarles.com
(414) 277-5439
Fred Gants
Fred.Gants@quarles.com
(608) 283-2618