While management-side lawyers agree that being proactive is now a must for businesses looking to counter union organizing efforts, employers that go about it in the wrong way risk pushing workers toward the union camp, said Epstein Becker & Green PC's Steven Swirsky.
If a company is too blunt about getting its message out “then [it's] planting the bug in people's minds who may not be thinking about it,” Swirsky said. …
The new rule may inspire certain companies to treat workers better to mitigate any perceived need for a union, according to Swirsky. Keeping a finger of the pulse of the rank-and-file workforce and having front-line supervisors trained to spot problems — and to avoid causing them — are smart moves, he said, as is having a system under which workers can bring grievances to the employer's attention.
“Inconsistency, and perception of an inconsistent application of policies, are often the spark to organizing,” Swirsky said. …
But the new rule raises risk levels for even the most diligent and well-intentioned employers, because it heightens incentives for running surreptitious organizing campaigns or making less-than-truthful claims, said Swirsky.
“The problem I see with the short time frame from the amended rules is you're going to see more and more underground campaigns that employers don't know about,” Swirsky said.