ASE reviews dozens of employee handbooks each year along with hundreds of individual policies being written or updated by our members. One policy that does not get a lot of attention nor is found in many employee handbooks these days is a statement on union-free status.
Recognizing that the Detroit area is a “Labor” town, having such a policy statement could be considered waiving a red flag in front of the bull. Many employers may choose to just leave a union-free policy out of their handbook and let their positive employer-employee relations policy and practices speak for themselves. Others may incorrectly believe a union-free statement is per se proof of anti-union animus. The bottom line is that employers have a right to express their opinion about remaining union-free, and the employee handbook is one place to make that position clear.
That said there are legal concerns about how that union-free statement is communicated. Stated too strongly and in conjunction with other actions, could result in it being seen as a violation of Section 8 (a) (1) of the National Labor Relations Act (NLRA). This section states that employers may violate the protections of the NLRA with union-free statement if those statements go so far as to interfere with, restrain, or coerce employees in their exercise of their right to organize.
When determining if a union-free statement goes too far, the NLRB looks not only to the words of the union-free statement but also to whether it may be coupled with a formal employee acknowledgement that the employee agrees to not violate it. The NLRB will also determine if the statement was present along with any actual unlawful conduct that was otherwise committed by the employers.
Union-free policies that state the employer will “do everything possible to maintain our company's union-free status for the benefit of both our employees and [the Company]" along with an employer who was also found to engage in other unlawful activity during an organizing campaign will lead the NLRB to find the union-free policy unlawful. The NLRB noted that the employer’s policy could have been “sanitized” if it included the words “lawful” and “proper.” “The employer will do everything lawful and proper to maintain our…”
Samples of appropriate union-free statements from the CCH HRAnswersNow online library are:
Example 1
We prefer to deal with people directly rather than through a third party. The majority of the total American workforce prefers to work without being represented by any outside organization. This is a non-union organization, and it is our desire that we stay that way. We are proud of our relationship with our employees. The company has always had a policy of dealing with our employees fairly and honestly and of considering and treating each employee as an individual.
Example 2
As with every organization, we have problems from time to time. However, we have always been able to work those problems out among ourselves without the intervention of outsiders. Only by working together can we make this a prosperous and successful organization. We encourage you to bring your problems to your supervisor or to anyone else you feel can help you. We, in turn, promise to listen and to give the best possible response that we can.
As we approach Labor Day this year watch for the union’s proclamation on the benefits of being a union member in the media. Remember that Labor Day is not necessarily “union” day. It celebrates all workers, which today, are mostly union-free. If direct communications and management of one’s workforce is important to your organization, ask yourself if your employees know what your organization’s position is on union organizing.
Additional ASE Resources
Handbook Development - ASE can assist with employee handbook review and development. For more information contact Michael Burns at (248) 223-8039 or [email protected].
CCH HRAnswersNow – For sample handbook policies, ASE members have access to the CCH HRAnswersNow online library accessible through the ASE member dashboard.
Source: CCH HR AnswersNow, Legal Analysis: Union-free statements