The following article is a summary of a webinar discussion:
Whether your organization faces a union organizing effort or not, understanding the legal, operational, and cultural implications of unionization is crucial to being prepared and responding effectively.
In Part One of our Understanding Unionization webinar series, Jay Kuhns and Daniel Dorson discussed the core elements of the unionization process, the potential drivers of union organization, and the proactive steps employers can take to navigate these complex challenges with confidence and clarity.
What Is Labor Relations and Labor Law?
Labor relations typically refer to the ongoing relationship between an employer and a union representing a group of employees who are seeking union representation. Labor law governs this relationship, ensuring employees have the right to organize, bargain collectively, and engage in protected concerted activity.
The National Labor Relations Act (NLRA) is the cornerstone of U.S. labor law, and the National Labor Relations Board (NLRB) is the federal agency responsible for enforcing it.
Why Labor Law Matters Even If You're Not Facing Unionization
Many organizations mistakenly assume that labor relations and labor law are relevant only when employees are actively organizing. In reality, education and preparedness are crucial long before any signs of organizing surface.
By the time a petition is filed or a union begins organizing employees, employers have a short window to prepare and respond. Managers and HR teams who are already familiar with the legal framework, employee motivations, and common pitfalls are far better equipped to respond effectively and meaningfully.
Understanding the Decline and Resurgence of Unionization
While overall, private-sector unionization has declined steadily since the 1950s, there has been a recent uptick in the prevalence of organized labor across the country. Nontraditional sectors such as cultural institutions, nonprofit organizations, higher education, and tech startups have all seen increased union activity in recent years—often driven by ideology, workplace dissatisfaction, or both.
Younger workers, in particular, may view unions more favorably and are often inspired to organize to promote fairness, equity, and worker voice. Employers must be prepared to engage in informed, respectful dialogue about unionization that reflects the shifting workforce mindset.
The Unionization Process: From Support to Certification
At a high level, the unionization process unfolds in three overarching stages:
- Showing of Support: A union or group of employees seeking to unionize must demonstrate a threshold of interest. This often involves collecting signed authorization cards. There must be a showing of interest of at least 30% of the group to file an election petition. If more than 50% of the group expresses interest, the employees may request that the employer voluntarily recognize the union.
- Majority Confirmation: After a showing of interest, there must be a formalized process to confirm that a majority of employees wish to be represented by the union. If a petition is filed, the NLRB will conduct a secret ballot election to determine majority status. If the employer voluntarily recognizes the union, the parties will typically ask an arbitrator to conduct an authorization card check to confirm majority status.
- Certification: If majority status is established, the union is formally certified as the employees’ elected bargaining representative.
It is important to remember that employers are not automatically unionized just because a majority of employees sign authorization cards. There must still be confirmation of majority status and certification before the employees officially become unionized.
Voluntary Recognition vs. Employer Response
When a union requests voluntary recognition based on a showing of more than 50% support, the employer has two weeks to either voluntarily recognize the union or file its own petition for an election with the NLRB. Failing to act within that time can result in an unfair labor practice charge. In some cases, that unfair labor practice charge may be remedied with a bargaining order, requiring the employer to recognize and negotiate with the union—even without an election.
Timeline and Petitions: What to Expect
Once a petition is filed, NLRB policy dictates that elections must be scheduled as quickly as practicable—often within about three weeks. Employers must respond swiftly and accurately to the law’s strict procedural requirements, including:
- Posting notices
- Submitting a Statement of Position
- Sharing detailed employee lists and voter lists
Failure to comply can result in the loss of key legal defenses and an increased likelihood that the election will be set aside.
Bargaining Units and the Community of Interest Test
The "bargaining unit" is the group of employees that the union would represent if the union is certified. The NLRB determines the appropriateness of the unit based on whether employees share a "community of interest." A bargaining unit need not be the most appropriate; it need only be appropriate. Whichever party files the petition for election gets the first chance to define the bargaining unit.
Nine factors are considered, with common supervision and employee interchange typically carrying the most weight. For employers with multiple sites or departments, the risk of widespread unionization can increase if these factors are common to all sites, departments, or locations.
Pre-Election Communications: TIPS vs. FOE
Employers must be cautious in how they communicate during a union campaign. The law prohibits coercive communications that could influence employees' voting. We use the acronym “TIPS” as a broad reminder of what types of communications are not permitted:
- Threats
- Interrogation
- Promises
- Spying
Instead, we recommend employers follow the acronym “FOE” when communicating with employees:
- Facts
- Opinions
- Experiences
These communication guidelines apply to all managers and supervisors and must be followed to avoid unfair labor practice charges. Unlawful and coercive communications can be grounds for setting aside the results of an election.
Unlike employers, unions face far fewer communication restrictions. They are allowed to make promises and promote their agenda with minimal oversight, increasing the burden on employers to provide balanced, factual information.
Common Misconceptions Employers Should Address
- Signing a union authorization card = a yes vote? No. Cards are used to trigger the process, but employees do not have to vote “yes” in a secret-ballot election merely because they signed an authorization card.
- Not voting is the same as voting “no”? No. The election outcome is determined by a simple majority of those employees who vote. That means that if only 50 of 100 people in a 100-person bargaining unit vote, the simple majority to win the election is 26 votes.
- Knowing how employees voted? No. Voting is anonymous, and ballots with any identifying marks are voided.
The Status Quo Period and Long-Term Planning
Once a union is certified, employers must maintain the status quo until a first collective bargaining agreement is negotiated. Before making any changes to wages, benefits, or other working conditions, the union must first be given notice and the opportunity to bargain.
This drastically slows down operational agility and can complicate internal planning. Proactive evaluation of current practices, clear job documentation, and robust manager training can reduce disruption.
The time to prepare for unionization is before it begins. Early education, thoughtful planning, and a proactive communication strategy are essential to maintaining your organizational flexibility and minimizing risk.
Rather than waiting to react, employers should build institutional knowledge now, establish internal protocols, and ensure that managers are empowered to respond meaningfully and effectively if an organizing effort arises.
The stakes are too high for guesswork. Readiness isn’t just a defensive strategy—it’s a vital part of workforce leadership in today’s environment.
-The information presented in this article is a summary of a webinar discussion held by Daniel Dorson, Attorney at Proskauer Rose, and Jay Kuhns, Vice President, People Results
