As the federal government continues to pursue certain initiatives relating to DEI and certain political perspectives, private-sector employers have frequently found themselves on the defensive. Wary of crossing the government's initiatives, many employers have pared back their DEI efforts, for example. Union-free employers must take care, however, to consider how those efforts might impair their union-prevention strategies.
When it comes to union representation, a tried-and-true campaign tactic has been to educate employees on the criminal histories of those who are asking for their votes. Stories of fraud, self-dealing, and ties to organized crime can be readily found through a few internet searches. Such information can be a compelling message for soon-to-be voters who are likely to ask themselves, “Do I want to be associated with, and rely on, criminals when it comes to my own future?” The answer—and subsequent ballot choice—is, frequently, “No.”
One goal of union-prevention strategies should be to avoid a demand for recognition or filing of an election petition. Without either of those two events, you are assured of maintaining union-free status. In fact, many employees who have well-defined and consistent union-avoidance strategies never see an election petition or explicit organizing activity. The strategy is a success and the evidence is the absence of union activity.
Whenever we discuss unions, we are invariably talking about employees. Unions represent employees, advocate for them, and find that their membership is composed largely of workers. Indeed, under the National Labor Relations Act, a “labor organization” is defined as “any organization of any kind, or any agency or employee representation committee or plan, in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work.” One cannot discuss unions without also discussing employees.
In a unionized workplace, employees act collectively and through their union representatives to address concerns regarding terms and conditions of employment. In a union-free setting, there are obviously no such representatives; however, employees can still act in a concerted manner to complain about working conditions. Importantly, they have the same legal protections to do so regardless of whether they are unionized. A recent decision of the NLRB in Hiran Management, 371 NLRB No. 130 (2024), highlights the point and the risks to union-free strategies that improper management action can generate.
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