With the COVID-19 pandemic continuing to dominate headlines and potential surges expected this fall and winter, safety issues are at the forefront of many employees’ minds. These issues encompass an array of subjects, including social distancing, hand-washing protocols, time off to care for ill family members or school-age children who are distance learning, layoffs/job security, continuation of health care benefits for furloughed employees, etc. Each of these issues presents a potential wedge that a union can attempt to drive between a nonunion employer and its employees. This danger is further exacerbated by the fact that most regional offices of the National Labor Relations Board are continuing to conduct elections by mail ballot, which generally tends to favor the union side.

So, what can a nonunion employer do to mitigate this risk? First and foremost, employers should understand that media coverage shapes the perception of employees concerning the state of the pandemic and the protocols that are effective in combating it. Accordingly, monitoring of media coverage is critical in understanding employee expectations and their views on what practices should be implemented to promote a safe workplace. Of course, that does not necessarily mean that an employer must adopt every safety measure or protocol that receives favorable media attention. But it does mean that an employer should educate employees on how it is closely following guidance from the CDC as well as any guidance from state or local health departments.

Second, employers should get ahead of union activity by becoming familiar with the collective bargaining terms that relevant unions have in their contracts, particularly with the employer’s competitors. Such terms certainly include health and safety, but also encompass dignity and respect, healthcare coverage, paid leave, layoff provisions, severance, and various additional issues. The employer furthermore should be cognizant of how its own policies compare to such terms. Moreover, where a union is pushing measures that are excessive or unrealistic, the employer should be prepared to address why it is not implementing such measures and explain why they are not recommended and/or effective.

Finally, managers should be briefed and trained on the means that unions use to get employees to join. Because prompt and effective employee messaging is a key element of any defensive plan, a “15-minute rule” protocol must be implemented so that managers provide the employer with real-time knowledge of the issues on which its employees are focused. A checklist of appropriate steps needs to be prepared, updated and reassessed as this situation continues to affect employers and the economy at large.

Remember that the rules of the National Labor Relations Act apply to both union and nonunion employers. So, don’t be baited into committing an unfair labor practice as you defend against these union-organizing tactics!