Employee Relations Versus Labor Relations: Insights into Union Organizing Attempts, Strikes and Lockouts, and Union Decertification Efforts

Union negotiations can be contentious and emotional: "Your" employees vs. "the union's" members.

Excerpt from my book, "The First-Time Manager: HR."

Union organizing is on the rise. Friends and associates have asked me for tips on transitioning their HR practices to incorporate union considerations, and this chapter from my newest book was the result. If you suspect that your organization might be targeted for union organizing activities, you'll need to move quickly:

1. Invite an employment attorney who specializes in labor relations and union-management practices to conduct management training for your leadership team.

2. Conduct a Preventative Audit and Union Vulnerability Analysis under your attorney's guidance.

3. Consider applying for "Best Places to Work" designations, since unions tend to avoid organizing companies whose employees are clearly happy.

For more insights into (non-union) Employee Relations versus (union) Labor Relations, please read below!

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Employee relations refers to any organization’s efforts to create and maintain a positive relationship with its employees. As a sub-discipline within the HR field, it focuses on ongoing support for both employees and management, analyzing job performance patterns and trends, addressing substandard performance or conduct, conducting internal workplace investigations, and resolving ongoing conflict. Labor relations addresses many of those same issues, only within the context of a unionized workforce via its collective bargaining agreement. Likewise, managerial ethics in employee relations is a significant area for the HR business partner to focus on, especially when it comes to codes of conduct and adherence to business conduct statements. (See my book, Workplace Ethics: Mastering Ethical Leadership and Sustaining a Moral Workplace for more information.)

In short, both employee and labor relations are huge areas that often can take years to master. Assuming your role is responsible for employee and/or labor relations and you don’t have much experience under your belt, this is an opportunity to provide some deep-dive insights that will help you to shortcut some of the landmines that may await the unsuspecting practitioner out there. Let’s start first with employee relations and then move on to the labor piece.

Employee Relations

First and foremost, your primary responsibility to your company in the employee relations space is to insulate the organization from unwanted legal liability to the extent possible. True, employee relations specialists and HR business partners are responsible for balancing the needs of management with those of employees. However, you’re not really supposed to be a perfect 50-50 balance. In my opinion, you’re weighted towards the management side of the equation, if only slightly (say, 51% - 49%).  Why? Because at the end of the day, your job is to shield your company from employment-related liability, either by avoiding liability altogether or at least significantly mitigating it.

Yes, you must be there for the employees as well. And if you come across as too biased towards management’s interests, the employees may not trust you. On the other hand, you’re not the union: your job is not to represent employees’ interests to a greater degree than your company’s interests. To think such a thing would likely be considered naïve. Remember, unions are, by design, one hundred percent behind workers. Human resources, in general, and employee relations, in particular, are there to find a balance—whatever is in the best interests of both. But if you come across as too employee-friendly, you will likewise alienate the management team at your firm. So, it’s not one or the other—it’s both. But it leans more towards protecting the organization since insulation from legal liability is one of the main reasons your role exists.

Most people, unfortunately, associate employee relations strictly with progressive discipline, workplace investigations, and terminations and layoffs. Those are parts of the employee relations manager’s role and responsibilities to be sure. But effective employee relations relies on building trust in and with those you serve—management and staffers alike. There’s a bit of a calling in the world of employee relations: you’re there to support people when they’re vulnerable, whether it be from a potential layoff, termination, or disciplinary matters. You’re there to help people when they’re being stalked outside of work, when they’re facing personal credit problems, when their children get into trouble at school, or when an alcohol problem affects someone at home that’s negatively impacting everyone in the family. You’re likewise there to measure trends in employee engagement and turnover and elicit suggestions on how to improve the culture, build an internal coaching or mentoring program, or engage in activities that will “turn employees back on” to perform at the highest levels.

That being the case, here are some quick snapshots of traditional employee relations responsibilities that will fall to you as an ER professional:

1.      Employee onboarding success.

2.      Employee engagement and satisfaction, internal coaching, career pathing initiatives, performance appraisal, goal setting, and talent management. 

3.      Workplace investigations (including employee privacy right matters). 

4.      Progressive disciplinary interventions, including facilitating much-needed difficult conversations, issuing documented disciplinary action, and structuring terminations and reductions in force (i.e., layoffs). 

5.      Ensuring that wage and hour as well as timekeeping records are maintained accurately and that meal and rest period rules are enforced uniformly. 

6.      Conflict resolution actions, including bringing “warring factions” to the peace table. 

7.      Policy wonk: You are the go-to person for your organization’s rules and guidelines as outlined in employee handbooks, policy and procedure manuals, and codes of conduct. (Some basic knowledge of employment law will surely help here.) 

8.      Insulating the organization from various types of employment-related liability that may stem from discrimination; harassment, or retaliation complaints; wrongful or constructive discharge claims; wage and hour violations; drug testing and fitness-for-duty or performance-based testing; access to personnel files, leave of absence management, grooming and attire, and workplace romances.

How’s that sound as a list of interesting, complex, and eclectic topics?  Do you think it will keep you busy enough?  If you guessed yes, you are correct: Books have been written about the legal aspects of human resource management, leadership development, employee coaching, talent management, and other areas, including a number of my own books:

• 101 Tough Conversations to Have with Employees: A Manager’s Guide to Performance, Conduct, and Discipline Challenges

• 101 Sample Write-Ups for Documenting Employee Performance Problems: A Guide to Progressive Discipline and Termination

• 75 Ways for Managers to Hire, Develop, and Keep Great Employees

• Leadership Offense: Mastering Appraisal, Performance, and Professional Development

• Leadership Defense: Mastering Progressive Discipline and Structuring Terminations

• New Managers: Mastering the “Big 3” Principles of Leadership, Communication, and Teambuilding

Labor Relations

Union organizing in the private sector is on the rise. That’s particularly true at small to mid-size companies that may never have seen themselves as a union organizer’s likely target. But here’s the thing—it’s not the big players at the large unions who are targeting employers right now. Instead, young Gen Z workers are taking matters into their own hands and forming micro-unions consisting of just a few employees at coffee shops, fast-food restaurants, retail stores, and other workplaces.

Regardless of whether you agree with unionization in spirit or philosophy, rest assured that your company will not want to become unionized. And if it’s already unionized, it will attempt to retain as much discretion in its operational decision-making as possible. Therefore, regardless of your personal feelings or beliefs about the union movement relative to workers’ rights, understand that you firmly stand on the “management” side of the equation (i.e., representing the company’s best interests) when it comes to labor relations activities. If that doesn’t square with you philosophically for whatever reason, you might want to avoid injecting yourself into the labor relations space altogether. Following are some of the highlights of the labor relations field that you’ll want to be aware of and focus on as a human resources manager. 

Union Organizing Attempts

FOE Rights for Managers

There are certain things managers and supervisors can communicate during a union organizing campaign. Follow the "FOE" rules – Facts, Opinions and Examples, such as the following:

• Facts

It is legal to share publicly available facts about your company or from the National Labor Relations Act, the website unionfacts.com, and other reputable sources.

• Opinions

It is legal to share why you feel a union is not needed for employees at your worksite.

• Examples

It is legal to share real examples and stories of others to highlight why a union is not necessarily in the employees’ best interests.

TIPS Limitations for Managers

What managers may not do can be conveniently summed up in the acronym TIPS.  Managers may not:

• Threaten

• Interrogate

• Promise (benefits for voting against the union)

• Surveil or Spy

TIPS are fairly self-explanatory. Logically, you can’t threaten to retaliate against anyone who expresses interest in joining a union. You can’t grill your employees to find out “who’s behind all this, who’s driving it, and who’s the main voice to the union.” While you have the right to speak with your employees about what’s ailing them and even attempt to remedy what’s broken as part of your normal employee relations program, you can’t promise that you’ll fix something “if the employees don’t go union.”

And you can’t surveil or spy by looking to see what’s going on or where and when employee gatherings are occurring to discuss unionization. In short, you can’t take any adverse action simply because an employee supports a union, votes to join a union, or participates in any activity deemed “concerted and protected” under the National Labor Relations Act without expecting to be charged with “unlawful discrimination.” Further questions should be directed to your labor lawyer for more specific information.

Strikes and Lockouts

Contract negotiations happen at specific windows that are predetermined by the language in the collective bargaining agreement. It’s not uncommon, for example, for contracts to stipulate that they will remain in place for three years.  Then, six months before the three-year expiration date, contract negotiations typically begin. Note that we’re usually talking about basic preparations when we say “begin.” It’s actually in the union’s best interests to delay the start of negotiations so that the contract actually expires at some point during those negotiations. Why? Because once the contract has formally expired, the union then has the right to invoke a strike—that is, an economic weapon used during bargaining to incentivize the company to give into the union’s demands.

Companies, likewise, have the right to “lock out” union workers in this post- contract expiration period, which means the workers are banned from the company’s place of business without pay or benefits for the duration of the lockout period. Sounds pretty intense, doesn’t it? Well, it’s designed that way.

Expect your organization to provide you with talking points to explain what the company is doing to take countermeasures to a strike or address a lockout. Communications will typically include logistics challenges like:

• Formal responses to picket lines and protests. 

• Transportation and access for non-striking workers to be able to move easily and safely to, in, and between facilities.

• Human resources planning may include the hiring of temporary workers as strike replacements, protection of non-striking workers, and redeployment of management into production roles.

• Regulatory compliance is an essential element of a strike response plan, including reporting and documentation. The company will be dealing with many regulatory and government agencies. Police presence or contracted security is not uncommon on the worksite during a strike or lockout to ensure things don’t get out of hand.

• Supply chain issues are a major ongoing concern in any work stoppage, as the purpose of a strike is to stop production and deliverables. Contingency plans typically address the processes of taking orders, obtaining raw materials, running production, and shipping. New suppliers may be introduced during an extended strike.

Finally, be sure to ask specific questions of your labor counsel about what, if anything, may be said to non-striking employees about the strike or picket line, jeers or threats from coworkers on the other side of the line, and messaging to employees not involved in the strike. True, this is meant to get ugly, but there are few greater opportunities for you to demonstrate exemplary leadership than when under the cloud of a strike or lockout.

Union Decertification Efforts

Workers can remove a union through decertification: the process by which the National Labor Relations Board (NLRB) allows workers to call for a special election to remove the union as their exclusive bargaining representative. What’s important for you to remember as a first-time HR manager, though, is that companies or individual managers are not allowed to encourage or assist with decertifying a union. Read that as: Stay away and let it play itself out. The effort to decertify must be led entirely by employees. But employees may reach out to other organizations to help, including the National Right to Work Foundation. Likewise, employers may provide “ministerial assistance” (only) to employees for help, meaning they may point out resources where workers can get help. Again, follow the directives of your senior leadership team and labor counsel before attempting to do any of this on your own.

Sample statements that managers, management, and companies may not make under any circumstances during the union decertification process include:

• "If you don't like paying unions, consider starting a union decertification campaign."

• “HR will be distributing a union decertification signup sheet.” 

• “If you don’t decertify, I’m guessing there will be no merit increases this year.”

• “If you decertify, they’ll be reinstating the tuition reimbursement program that was negotiated away during bargaining.”

• “I’ve heard that without a decertification vote, they’ll be closing this facility.” 

Warning: Such statements may actually invalidate the decertification process.

The objective of decertification is to determine whether a union continues to enjoy “majority status in a bargaining unit.” If not, the union's right to represent those workers is terminated. A decertification election is held to test the union's majority status. Once a union is decertified, it no longer has a right to represent workers or to negotiate on their behalf.

Once the petition is properly filed, the NLRB then sets up a secret-ballot election in response to the petition document. The NLRB determines the appropriate group of people to vote in the election. If fifty percent or more of the employees vote against union representation, the union will no longer have representation rights, and the employees will once again be able to deal directly with the company on issues related to pay, benefits, and working conditions.

Remember as well that unions cannot prohibit employees from exercising their rights to decertify. If the union tries to pressure employees to stop a decertification effort, it should be reported to the NLRB, because such interference is illegal. Note that unions often try to stall a decertification election by filing unfair labor practice charges against the employer. The NLRB will often not hold the election until the charges are resolved. This makes it especially important that the employer follows the law so employees do not lose their opportunity to decertify.

There are numerous technical dos and don’ts that are better answered by senior management, inhouse counsel, or your external labor attorney, including filing period windows, “showing of interest” petitions, secret ballot election rules, and National Labor Relations Board filings, among other things.  What you need to remember is that workers can undertake decertification efforts only during nonwork times and in nonwork areas. They cannot use company equipment or resources. And most important—management cannot be involved in any way in this effort. 

Special Note: Union Workers are Not Employed “At Will”

Union workers’ terms and conditions of employment are governed by a collective bargaining agreement that requires “cause” for discipline or discharge.  By definition, therefore, they are not employed “at will.”  In other words, unlike with at-will employees, a company may not terminate union workers “for any reason or for no reason at all.” Instead, the employer must follow the terms of the union contract—in particular, the disciplinary action section of the collective bargaining agreement—before terminating any union members. The union’s focus when it comes to disciplinary action and termination will always lie in ensuring that due processed was accorded the worker/member, meaning that the individual understood in writing what the problem was, knew what he or she had to do to fix the problem, was given a reasonable amount of time and opportunity to demonstrate improvement, and understood the consequences of inaction. 

For similar coverage of HR-related actions and responsibilities, including workplace investigations, wage & hour compliance, leave of absence administration, international HR, M&A HR, strategic HR, AI in HR, and more, see my book "The First-Time Manager: HR," published by HarperCollins Leadership and the American Management Association (2024) available at: https://www.harpercollinsleadership.com/books/the-first-time-manager-hr/.

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