Although it is not the normal response by management, there are some circumstances when employers are not opposed to the unionization of their workers. This has certainly not been our experience, but some executives feel the union apparatus could decrease their burdens in handling personnel matters. Others may survey the situation and, seeing union certification as inevitable, opt to try forming a working relationship with the union as early as possible rather than fighting an uphill campaign against it. This leads some employers to actually enter into agreements with unions to facilitate the election and certification process. However, employers who choose to take this route should be wary.
It may seem counterintuitive, but being overly accommodating to a union seeking certification can, in itself, be an unfair labor practice. This can include:
- Contributing financial support or other things of value to a union
- Discriminating against employees who oppose the union
This created a grey area in some circuits as to whether simply making concessions to a union during the campaign phase constituted providing things of value in contravention of the Labor Management Relations Act. The Supreme Court had agreed to hear such a case involving an employer who had agreed to make certain concessions during a union campaign in exchange for the union's promise not to picket. Those concessions included allowing union representatives access to its property and providing the union with contact information for its employees. While this case could have been useful in clarifying the degree to which unions and employers are permitted to coordinate during campaigns, the Supreme Court dismissed it on non-substantive grounds in December 2013.
Union election campaigns continue to be a minefield for employers, even if they choose not to oppose unionization. That is why it is always important to have the guidance of an experienced labor law attorney during any union campaign, even if you are not actually opposed to unionization.