Reader Question: What Can an Employer Do to Promote Unionization?

A rare but interesting situation.

Aaron Seyedian of Well-Paid Maids asks what can an non-unionized employer do if it wants to become unionized?

I have always wanted the end-state of the company to be a unionized firm, but I'm not sure how to make that happen.  I have tried to initiate with various locals that seem to work in our industry, but my emails get ignored.  I think they are suspicious of being contacted by a business owner.  I also think that since my company is small (~30 people) they don't see us passing the effort-to-outcome test.

I do have a statement of labor peace on our website, and I've mentioned to staff that I support unionization, but no one really cares.  If I got more serious about this, at what point would my actions run afoul of "Interfering with or dominating a union (Section 8(a)(2))."  I have mixed, non-legalistic feelings about whether the push should come from the boss regardless, but I would like to know where someone like me is situated regarding the law.

The short answer to this question is that an employer like Well-Paid Maids should attempt to enter into a card check agreement with a relevant union local, make it easy for that union to talk to the relevant workers by, e.g., providing contact information or premises access to the union, and verbally express its pro-unionization views to its workforce.

In a card check agreement, an employer and a union agree that, as soon as the union is able to show that it has majority support among the relevant employees, the employer will voluntarily recognize the union without going through the NLRB election process. Majority support is typically established by having the majority of the workers sign cards saying that they authorize the union to be their bargaining representative, but it can be established in other ways as well.

Seyedian says that he has tried to contact local unions and not gotten any responses. Perhaps if he were to specifically offer a card check agreement, that would pique their interest more. It’s hard to say.

Limitations on Promoting a Union

There are limitations on what an employer can do to promote unionization.

Section 7 of the NLRA provides workers the right “to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” But it also provides workers the right “to refrain from any or all of such activities.”

Thus, just as employer actions that “interfere with, restrain, or coerce employees” in the exercise of their right to unionize violate Section 8(a)(1) of the NLRA, so too do employer actions that “interfere with, restrain, or coerce employees” in their right to not unionize.

An employer cannot take adverse employment actions against an employee, e.g. firing them, because they do not support unionization or because they are actively campaigning against unionization. An employer also cannot interrogate an anti-union employee about their anti-union sentiments or activities.

As far as what an employer can say, Section 8(c) would govern that question for pro-union statements just as it governs the question for anti-union statements:

The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this Act, if such expression contains no threat of reprisal or force or promise of benefit.

So, again, just as an employer is permitted to run an anti-union campaign where they say that they think unions are bad, put up posters urging their workers to oppose a union, and so on, an employer is permitted to run a pro-union campaign using the same kinds of tactics. The limit in both cases is that there be no threat of reprisal or force or promise of benefit based on what decisions the employees make with respect to unionization.

Under current law, an employer could even hold a captive-audience meeting where its on-the-clock employees are required to sit through a meeting where the employer explains why unions are so great and why their employees should support one. Of course, the current general counsel of the NLRB is trying to make these kinds of meetings illegal.

In his question, Seyedian points to concerns he has about Section 8(a)(2) of the NLRA, which forbids employers “to dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it.” This section forbids an employer from recognizing a union without majority support (hence the need for a card check), from starting its own company union, and from providing money to a union, among some other things. But it is not going to prevent an employer from being vocally supportive and even solicitous of unionization provided that they steer within the limits discussed above.