Union Organizing Campaigns: Employer Rights and Restrictions During NLRB Elections
Employers have the right to communicate with employees during a union organizing campaign, but federal labor law limits what they can say and do. You generally may express opinions about unionization and provide factual information. However, you cannot threaten employees, coercively question them about union activity, promise benefits to discourage union support, or spy on protected organizing activity.
A union campaign can put employers in a difficult position. You may want to respond to employee concerns and explain the company's position, but comments or management decisions made during this period can raise legal issues. Even routine actions may receive additional scrutiny when employees are organizing.
At the Law Offices of Steven E. Springer, Attorney Springer has experience advising California businesses on employment and labor law matters. With offices in San Jose, Fremont, and Morgan Hill, California, he is dedicated to helping employers understand their responsibilities during organizing campaigns and address concerns as they arise. Contact the firm for a free 20-minute consultation.
What Rights Do Employers Have During a Union Campaign?
The National Labor Relations Act (NLRA) protects employees' rights to organize, support a union, bargain collectively, act together regarding working conditions, or refrain from these activities. The law generally prohibits employers from interfering with, restraining, or coercing employees as they exercise those rights.
These protections do not mean you must remain silent during an organizing campaign. The NLRA protects an employer's ability to express views, arguments, or opinions as long as the communication contains no threat of reprisal or force and no promise of a benefit.
For example, you may generally explain the company's position on unionization, provide accurate information about the collective bargaining process, and correct factual claims. However, the content and context of communication are important. A statement that appears informational in isolation may create a problem if employees could reasonably understand it as a threat or promise.
What Employers Cannot Do During a Union Campaign
Managers and supervisors must understand the boundaries of the NLRA before discussing union activity with employees. The National Labor Relations Board (NLRB) identifies several types of employer conduct that may violate federal labor law. Common restrictions include:
Threatening employees: You cannot threaten job loss, reduced benefits, plant closure, or other retaliation because employees support or vote for a union.
Coercively questioning employees: Asking employees about their union sympathies, meetings, votes, or coworkers' activities can be unlawful if the questioning is coercive.
Promising benefits: You cannot offer raises, promotions, improved conditions, or other benefits to persuade employees to reject union representation.
Surveilling union activity: You cannot spy on protected organizing activity or create the impression that employees' union activities are being monitored.
Retaliating against union supporters: You cannot discipline, discharge, reduce hours, or otherwise discriminate against employees because of protected union activity.
Can Employers Hold Meetings About Unionization?
The rules for employer meetings have changed in recent years. In its 2024 decision, the NLRB ruled that employers violate the NLRA when they require employees, under threat of discipline or discharge, to attend meetings where the employer expresses its views about unionization. These are commonly called "captive-audience meetings."
Under the NLRB's stated rule, an employer may still hold a meeting to discuss unionization if employees receive reasonable advance notice of the subject, attendance is voluntary without adverse consequences for declining, and the employer does not keep attendance records.
Because NLRB standards can change through Board decisions and court review, employers should confirm the current rule before planning campaign-related meetings.
California Employers Face an Additional Legal Issue
California has additional rules that address employer communications about union-related matters, including meetings employees may be asked to attend. However, a federal court has temporarily blocked California officials from enforcing these requirements while a legal challenge continues. This means the law remains on the books, but the court's order currently prevents enforcement.
Because the legal challenge is ongoing, the rules could change. California employers should confirm the current state and federal requirements before holding union-related meetings or taking action based on an employee's decision not to participate.
The Law Offices of Steven E. Springer can help you understand how current federal and California requirements may apply to your workplace. The firm's employment law attorney can review your planned communications and meetings and advise you on responding to union organizing activity while complying with applicable labor laws.
Be Careful With Workplace Changes During an Organizing Campaign
A union campaign does not prevent you from operating your business. You may still enforce legitimate workplace policies and address performance or misconduct. However, timing, motive, and consistency are important. Disciplining employees because of protected union activity or applying workplace rules differently to discourage union support may lead to an unfair labor practice charge.
Before making a significant employment decision during an active organizing campaign, consider whether you have a legitimate, documented business reason for the decision and whether you are applying your policies consistently.
What Changes Once an NLRB Election Is Scheduled?
Once an election is underway, employers must also follow NLRB election procedures. For example, an employer generally must provide the required voter list, including available employee contact information, within two business days after the regional director approves an election agreement or directs an election.
Special restrictions also apply immediately before voting. Under the NLRB's rule, employers and unions generally may not give election speeches on company time to assembled employees during the 24 hours before the scheduled election. The rule is intended to protect employees' ability to make their choice immediately before voting. Failure to follow election rules can result in objections and, depending on the circumstances, may affect the validity of the election.
Contact an Employment Lawyer for Guidance in Union Organizing Campaigns
Employers may communicate their position during a union campaign, but the NLRA places limits on threats, coercive questioning, promises, surveillance, and retaliation. Rules involving employee meetings and NLRB elections also require particular care, especially as federal and California law continue to develop.
At the Law Offices of Steven E. Springer, Attorney Springer can review campaign communications, advise management on lawful responses, and help you address labor and employment issues before and during an NLRB election.
With offices in San Jose, Fremont, and Morgan Hill, California, the firm serves businesses throughout Rucker, Madrone, Mountain Home, Gilroy, Santa Clara, Campbell, Alum Rock, Newark, Dresser, Sundale, Cherry-Guardino, Ardenwood, and Union City. Reach out to schedule a free, 20-minute consultation.