Is an employer permitted to have a union avoidance policy?

Author: Jed L. Marcus, Bressler, Amery & Ross, P.C.

An employer is permitted to have a union avoidance policy so long as that policy does not include conduct that violates the National Labor Relations Act (NLRA). Under Section 9(c) of the NLRA, an employer has every right to express his or her opinion about unions and unionization. However, in the absence of an organizing drive, an employer generally should not express its opinions about unions to its employees for fear that these comments may be used against it as evidence of anti-union bias where an employee claims he or she was terminated for supporting a union. On the other hand, an employer who does wish to express its view may do so in its employee handbook and in small group meetings with employees, which is often the most effective method of communication. Of course, in an organizing drive, where a union is trying to organize employees, an employer may express its views on unions in small group meetings with employees, postings on bulletin boards, mailings to the home and envelope stuffers with paychecks.

However, an employer should be aware that certain conduct will violate the NLRA, including: threatening employees with loss of jobs or benefits if they join or vote for a union or engage in protected concerted activity; threatening to close the plant if employees select a union to represent them; questioning employees about their union sympathies or activities in circumstances that tend to interfere with, restrain or coerce employees in the exercise of their rights under the Act; or promising benefits to employees to discourage their union support.