Checklist · Labor and Employment

Responding to a Union Organizing Campaign: A Practical Checklist

29 U.S.C. § 152(11)

Type: Checklist
Jurisdiction: National
Date: 2024-08-15
Topic: Labor and Employment

A step-by-step operational checklist for an employer facing a union organizing campaign, from lawful advance preparation through certification and the first bargaining obligation. Eleven phases cover the work that must be done before any campaign begins, recognizing early signs and the first response, training supervisors on the TIPS restrictions that generate most unfair labor practice charges, lawful employer communication under Section 8(c), solicitation and distribution and access rules, the demand for recognition and the employer's obligation under Cemex to recognize or promptly petition, the petition and the compressed pre-election period, bargaining unit and voter eligibility questions, the election itself, objections and challenges, and the duty to bargain that follows certification. Each phase carries commentary on why the step matters and the specific conduct that produces charges, set-aside elections, and bargaining orders. A worked example follows a manufacturer through a campaign from first card to first contract session.

Responding to a Union Organizing Campaign: A Practical Checklist

Labor and Employment > Labor Relations | Published 15 August 2024 - Updated 2 August 2026 | UpLaw - uplaw.us

In brief. An employer may lawfully oppose unionization and may say so forcefully. What it may not do is threaten, interrogate, promise, or surveil — and under the Board's current framework, an employer that commits a serious unfair labor practice after a demand for recognition can find itself ordered to bargain without ever having lost an election. The margin for improvisation is gone.

Keywords: § 7, § 8(a)(1), TIPS, § 8(c), authorization cards, Cemex, Stericycle, captive audience, solicitation rules, supervisors, unit determination, voter list, objections, bargaining order

How to use this. Phase 1 is the work that should already be done. Phases 2–5 are the campaign. Phases 6–10 are recognition, petition, and election. Phase 11 is what follows. The doctrine is in Labor Relations Under the NLRA: A Comprehensive Guide to Organizing, Bargaining, and Unfair Labor Practices. The non-union employer's parallel exposure is in Section 7 Rights in a Non-Union Workplace.

A standing caution. Board law in this area changes with the Board's composition, and several of the decisions below reversed prior precedent within the last few years. Confirm the current state of Cemex, Stericycle, and the captive-audience rule before advising, and check whether any is under review.

Phase 1 — Before Any Campaign Exists

[ ] Audit the handbook against the Stericycle standard — a rule is presumptively unlawful if a reasonable employee economically dependent on the employer could interpret it to restrict § 7 activity, even if a contrary reading is also reasonable; the employer must then prove a legitimate interest that cannot be advanced by a narrower rule.
[ ] Review and narrow rules on confidentiality, social media, civility and professionalism, media contact, recording, non-disparagement, and discussion of wages.
[ ] Confirm no rule prohibits discussing pay or working conditions — that is per se unlawful, and it appears in more handbooks than employers believe.
[ ] Adopt a lawful, consistently enforced solicitation and distribution policy (Phase 5) — one adopted mid-campaign is evidence of unlawful motive.
[ ] Identify who is a statutory supervisor under 29 U.S.C. § 152(11) — authority to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, discipline, responsibly direct, adjust grievances, or effectively recommend, using independent judgment. Job titles do not decide it.
[ ] Confirm supervisors are excluded from any bargaining unit and understand their conduct binds the employer.
[ ] Maintain documented, consistent discipline — the single best defense to a § 8(a)(3) charge is a record predating the campaign.
[ ] Fix the conditions that drive organizing: pay compression, scheduling, safety, favoritism, and unanswered complaints. Do it now, because doing it later is an unlawful promise or grant of benefit.
[ ] Establish a legitimate complaint channel and actually respond to it.
[ ] Identify labor counsel in advance, with a same-day escalation path.

Why it matters, and the traps. Everything in this phase becomes unavailable the moment a campaign starts. An employer that has never addressed a chronic scheduling complaint cannot fix it during a campaign without committing an unfair labor practice — the grant of a benefit to discourage organizing violates § 8(a)(1), and the Board does not accept "we were going to do it anyway" without contemporaneous documentation. The handbook audit is equally time-sensitive: under Stericycle, maintaining an overbroad rule is itself a violation, and it becomes an election objection when a campaign begins.

Phase 2 — Early Signs and First Response

[ ] Train managers to recognize and report signs: unusual small-group meetings, new employee questions about grievance procedures, outside visitors at entrances, sudden solidarity in complaints, or authorization card activity.
[ ] On first report, contact labor counsel the same day.
[ ] Do nothing precipitous. No interrogation, no meetings to "find out what's going on," no discipline of suspected organizers, no schedule changes.
[ ] Preserve status quo on pay, benefits, scheduling, and discipline — but continue previously planned and documented changes, and document the pre-existing plan.
[ ] Verify whether any planned increase or benefit change was decided and documented before the campaign; if so, implement it on schedule and say why.
[ ] Assemble the factual record: who is organizing, which union, the likely unit, and the employee population with job titles, shifts, locations, and supervisory status.
[ ] Confirm which employees are statutory supervisors and which are not — errors here cause both unfair labor practices and unit disputes.
[ ] Do not create lists of union supporters, and do not ask managers to compile them.
[ ] Confirm no surveillance — no monitoring of union meetings, no watching who signs cards, no reviewing employees' social media for union activity, and no photographing handbilling.

Why it matters, and the traps. The instinct to gather information is the source of most early violations. Asking an employee what they know about the union is interrogation; standing where organizers are handbilling is surveillance; even creating the impression of surveillance ("we know who's been talking") violates § 8(a)(1). The second trap is the frozen-benefit error in the other direction: an employer that withholds a scheduled increase because of the campaign has also violated the Act. The rule is to proceed as if the campaign did not exist, and to be able to prove the plan predated it.

Phase 3 — Supervisor Training

[ ] Train every supervisor, in person, before they speak to anyone — their statements are the employer's statements.
[ ] Teach TIPS — supervisors may not:
- Threaten — no statements that unionization will cause job loss, plant closure, reduced benefits, or futility of bargaining.
- Interrogate — no questions about union sympathies, meetings, card signing, or how an employee will vote, including apparently casual ones.
- Promise — no promises or grants of benefits to discourage support, and no solicitation of grievances with an implied promise to fix them.
- Surveil — no watching, photographing, recording, or creating the impression of surveillance.
[ ] Teach what supervisors may do — share Facts, express Opinions, describe the employer's Experience, and explain Examples: the mechanics of card signing, dues, strikes, and bargaining; the employer's view; and factual, non-threatening predictions demonstrably probable and based on objective fact.
[ ] Teach that predictions of consequences must rest on objective fact and matters beyond the employer's control — a prediction of closure that reflects the employer's own intended retaliation is a threat.
[ ] Instruct supervisors to answer questions with facts and to escalate anything they are unsure of rather than improvise.
[ ] Instruct supervisors never to make a promise, even a small one, and never to say "if the union comes in, we'll have to…".
[ ] Document the training with an attendance record and the materials used.
[ ] Provide a written one-page reference and a hotline to counsel.
[ ] Re-brief before each employer meeting or communication.

Why it matters, and the traps. The overwhelming majority of unfair labor practice charges in an organizing campaign arise from a single supervisor's remark, made informally, without counsel present, out of a sincere desire to help. Under Cemex, that remark carries far more weight than it once did — a violation serious enough to warrant setting aside an election can now produce a bargaining order instead of a rerun. The trap is training only senior managers: liability attaches at the level of the frontline supervisor, who has the most conversations and the least preparation.

Phase 4 — Lawful Employer Communication

[ ] Rely on 29 U.S.C. § 158(c) — expressing views, argument, or opinion is not evidence of an unfair labor practice if it contains no threat of reprisal or force or promise of benefit.
[ ] Have counsel review every written communication — letters, emails, posters, intranet posts, videos, and text messages — before distribution.
[ ] Communicate facts: what authorization cards legally do, that dues are owed, how bargaining actually works, that bargaining starts from a blank page and there is no guarantee of gains, and the union's public financial and strike record.
[ ] Avoid the phrases that produce charges: "you'll lose," "we'd have to," "it would be futile," "things will change around here," and anything conditioning a benefit on the outcome.
[ ] Do not solicit grievances during a campaign unless there is an established practice of doing so — and never with an express or implied promise to remedy them.
[ ] Confirm the current rule on mandatory "captive audience" meetings. The Board has held that requiring employees to attend meetings on pain of discipline to hear the employer's views is unlawful; voluntary meetings with an advance assurance of no reprisal for declining are the safer course. Confirm the current state of this law before scheduling.
[ ] If holding any meeting, give the assurance in advance, in writing, that attendance is voluntary and that non-attendance carries no consequence.
[ ] Observe the 24-hour rule — no mass captive-audience speeches within 24 hours of the election.
[ ] Give the union equal access only if required by the circumstances; there is generally no obligation to grant reply time, but confirm no discriminatory access practice exists.
[ ] Retain copies of every communication with distribution dates.

Why it matters, and the traps. Section 8(c) gives employers real latitude, and employers routinely underuse it out of fear while simultaneously stumbling into the specific prohibited categories. The captive-audience question is the live one: a practice that was lawful for decades has been reversed, and an employer scheduling mandatory meetings on the basis of old advice is creating an objection and a potential bargaining-order predicate. Verify before scheduling, not after.

Phase 5 — Solicitation, Distribution, and Access

[ ] Maintain a written policy that is lawful on its face: employees may be prohibited from solicitation during working time and from distribution of literature in working areas, but not during non-working time or in non-working areas.
[ ] Use "working time," not "working hours" — the latter is presumptively unlawful because it sweeps in breaks and meals.
[ ] Confirm the policy has been consistently enforced against all solicitation — charitable drives, birthday cards, product sales. Selective enforcement against union solicitation is discriminatory.
[ ] Do not adopt or tighten a policy in response to a campaign.
[ ] For off-duty employees, apply the Tri-County Medical Center standard — a rule barring off-duty access is valid only if it limits access solely to the interior of the facility and other working areas, is clearly disseminated, and applies to all off-duty access for all purposes.
[ ] For non-employee organizers, confirm the property is not open to the public in a manner creating access rights, and apply access rules consistently to all outside solicitors.
[ ] Confirm the treatment of email and employer IT systems under current Board law and apply it consistently.
[ ] Address union insignia — employees generally have the right to wear union buttons and apparel, and restrictions require special circumstances the employer must prove.
[ ] Confirm bulletin boards and common spaces are handled without discrimination.
[ ] Instruct security and reception on lawful handling of organizers at entrances.

Why it matters, and the traps. The word "hours" instead of "time" invalidates a policy, and it is in a startling proportion of handbooks. The larger trap is selective enforcement: an employer whose break room has hosted Girl Scout cookie sales, fundraising raffles, and Tupperware catalogues for a decade cannot enforce a no-solicitation rule against union cards. Audit actual practice, not the written rule — and if practice has been permissive, the rule is effectively gone for this campaign.

Phase 6 — The Demand for Recognition

[ ] On receipt of any demand for recognition based on a claimed card majority, contact counsel immediately — the clock is short.
[ ] Understand the Cemex framework: an employer presented with a demand for recognition by a union claiming majority support must either recognize and bargain or promptly file an RM petition to test majority status. Doing neither is itself a violation and can produce a bargaining order.
[ ] Do not examine, count, or accept the cards. Reviewing them can constitute recognition of the showing and eliminates the good-faith basis for a petition.
[ ] Decide, with counsel and within days, whether to recognize or to petition — and calendar the deadline the moment the demand arrives.
[ ] If petitioning, prepare and file the RM petition within the required period, with the requisite basis.
[ ] Understand the consequence: under Cemex, if the employer commits an unfair labor practice during the critical period that requires setting aside the election, the Board may dismiss the petition and issue a bargaining order rather than direct a rerun.
[ ] Consider the traditional Gissel bargaining order analysis as well, for pervasive misconduct making a fair election unlikely.
[ ] Do not respond to the demand with discipline, benefit changes, or communications that have not been reviewed.
[ ] Evaluate whether any neutrality or card-check agreement binds the employer — and if one is proposed, analyze 29 U.S.C. § 186 restrictions on things of value to a labor organization.

Why it matters, and the traps. Cemex changed the economics of the entire campaign. Before it, an employer could commit violations, lose an election, and get a rerun — the misconduct bought delay. Now serious misconduct after a demand can result in an order to bargain with a union that never won an election. The practical consequence is that the cost of a supervisor's improvised threat is no longer a second election, and that fact should be at the front of every training session in Phase 3.

Phase 7 — The Petition and the Pre-Election Period

[ ] On service of a petition, calendar every deadline immediately — the current election rules compress the pre-election period substantially.
[ ] File the Statement of Position on time and completely; positions not raised are generally waived, including unit scope, supervisory status, and eligibility contentions.
[ ] Produce the voter list on schedule with all required contents — full names, home addresses, available personal email addresses and phone numbers, work locations, shifts, and classifications. Deficient or late lists are objectionable conduct.
[ ] Prepare for the pre-election hearing and understand which issues will be litigated before the election and which are deferred.
[ ] Negotiate a stipulated election agreement where the unit and eligibility are acceptable — it trades litigation for certainty and speed.
[ ] Confirm the election details: date, times, location, method (manual or mail), eligibility cut-off, and observers.
[ ] Post the Board's notice of election as directed and on time.
[ ] Continue lawful communication under Phase 4, with counsel review of everything.
[ ] Observe the 24-hour rule before the polls open.
[ ] Select and train election observers — they must be non-supervisory, and their role is limited to identifying voters and challenging eligibility.

Why it matters, and the traps. The compressed timetable is the point of the current rules, and employers lose arguments by default. The Statement of Position is the highest-stakes filing: contentions about who is a supervisor, whether the unit is appropriate, and which classifications are included must be raised there or are waived — and an employer that discovers three weeks later that its lead technicians should have been excluded has no remedy. Assign it to counsel on day one.

Phase 8 — Bargaining Unit and Eligibility

[ ] Analyze whether the petitioned-for unit is appropriate — the Board need only find an appropriate unit, not the most appropriate.
[ ] Apply the community of interest factors: skills and training, job functions, interchange and contact, functional integration, supervision, terms and conditions of employment, and bargaining history.
[ ] For a smaller unit within a larger workforce, apply the framework restored in American Steel Construction, Inc., 372 NLRB No. 23 (2022) — the employer seeking a larger unit must show the excluded employees share an overwhelming community of interest with the petitioned-for group.
[ ] Identify statutory supervisors for exclusion, applying § 2(11) and confirming independent judgment rather than routine direction.
[ ] Identify other exclusions: managerial and confidential employees, guards, and agricultural laborers.
[ ] Address temporary, seasonal, and part-time eligibility under the applicable formula.
[ ] Address joint employment where staffing agency workers are in the mix, and confirm the current standard.
[ ] Confirm the eligibility cut-off date and build the voter list from it.
[ ] Preserve challenges for the election where eligibility is genuinely disputed.
[ ] Do not reclassify or reassign employees to affect the unit — that is a textbook § 8(a)(1) and (3) violation.

Why it matters, and the traps. Unit composition frequently decides the election, which is why it is litigated. The supervisory analysis is the most consequential and the most misunderstood: an employer that treats working leads as supervisors and excludes them may lose them from the unit and be charged for their campaign statements, while an employer that treats genuine supervisors as employees has let voters into the unit who should not be there. Analyze function, not title, and do it before the Statement of Position.

Phase 9 — The Election

[ ] Confirm logistics: polling place, times, ballot, and that the area is free of electioneering.
[ ] Brief observers on their limited role and on the mechanics of challenges.
[ ] Confirm no supervisor is near the polls, escorting voters, or in the voting area.
[ ] Confirm no list of voters is maintained by the employer at the polls beyond the official process.
[ ] Make no communications on election day beyond ordinary business.
[ ] Note any objectionable conduct by either party contemporaneously, with names, times, and witnesses.
[ ] Handle challenged ballots through the Board agent; do not argue at the polls.
[ ] After the count, take the tally of ballots.
[ ] Calendar the objections deadline — it is short and strictly enforced.
[ ] Debrief with counsel the same day while recollections are fresh.

Why it matters, and the traps. Election-day conduct is examined minutely, and supervisory presence near the polls — even benign, even accidental — is a standard objection. The other trap is failing to document the other side's conduct in real time: an employer that loses narrowly and then tries to reconstruct union misconduct a week later has nothing usable.

Phase 10 — Objections, Challenges, and Certification

[ ] File objections within the deadline, with specificity, supported by offers of proof.
[ ] Understand the standard — conduct occurring in the critical period between petition and election that reasonably tended to interfere with employee free choice.
[ ] Litigate determinative challenged ballots if they could change the outcome.
[ ] Participate in any hearing on objections and challenges.
[ ] Evaluate the risk that employer misconduct produces a bargaining order under Cemex rather than a rerun election.
[ ] Consider exceptions to the regional determination and Board review.
[ ] If the union loses and no objections succeed, understand the election bar — generally no new election in the same unit for twelve months.
[ ] If the union wins, the certification year begins and carries an irrebuttable presumption of majority status for twelve months.
[ ] Prepare for the duty to bargain immediately; delay is itself a violation.
[ ] Communicate the result to the workforce factually and without recrimination.

Why it matters, and the traps. The most expensive mistake in this phase is a technical refusal to bargain — historically the accepted route to obtain court review of a certification decision, by refusing to bargain and litigating the resulting § 8(a)(5) charge. It still exists, but the remedial landscape has shifted, and the make-whole and bargaining-order consequences of losing that gambit are materially larger than they were. Do not treat it as a free appeal.

Phase 11 — After Certification

[ ] Recognize the union and begin bargaining promptly on request; unreasonable delay violates § 8(a)(5).
[ ] Bargain in good faith over mandatory subjects — wages, hours, and other terms and conditions of employment — under 29 U.S.C. § 158(d). Good faith requires the intent to reach agreement, not agreement itself.
[ ] Do not make unilateral changes to mandatory subjects without bargaining to agreement or impasse.
[ ] Respond to information requests — presumptively relevant unit information must be provided; non-unit information requires a showing of relevance, and confidentiality concerns require an accommodation rather than a refusal.
[ ] Train supervisors on Weingarten rights — an employee's right to union representation at an investigatory interview the employee reasonably believes may result in discipline.
[ ] Train supervisors that discipline and discharge decisions will now be tested against the contract and the Wright Line framework.
[ ] Preserve the ability to make lawful operational decisions, distinguishing mandatory subjects from core entrepreneurial decisions requiring only effects bargaining.
[ ] Prepare bargaining proposals, an economic model, and a documented authority structure for the negotiating team.
[ ] Understand the certification year protection and the rules on later withdrawal of recognition.
[ ] Document every session with contemporaneous notes.

Why it matters, and the traps. The unilateral change violation is the most common post-certification error and the least intentional: an employer changes a shift pattern, a health plan, or an attendance policy the way it always has, and commits a § 8(a)(5) violation with a make-whole remedy. Once a union is certified, every change to a mandatory subject runs through bargaining. Build a review step into operations before the first contract, not after the first charge.

Worked Example

Northbridge Logistics (fictional) operates a 240-employee distribution center. In March, a supervisor reports unusual small-group meetings in the break room.

Phase 1, in hindsight. Northbridge had audited its handbook the prior year and narrowed its confidentiality, recording, and social media rules to satisfy Stericycle. It had also, eight months earlier, approved and documented a scheduled July wage adjustment. Both decisions become decisive.

Phase 2. Counsel is engaged the same day. Managers are told to report and do nothing else. The July wage adjustment proceeds on schedule, supported by the documented August board approval — withholding it would have been a violation, and granting it as a response would have been a different one.

Phase 3. Every one of the twenty-two supervisors is trained in person over two days. One shift lead asks whether he can tell his crew "the plant could close." He is told no — that is a threat unless it rests on objective fact beyond the employer's control, and it does not.

Phase 5. The solicitation audit reveals the break room has hosted school fundraisers and a jewelry catalogue for years. Counsel advises that the no-solicitation rule is effectively unenforceable for this campaign, and Northbridge does not attempt to enforce it — avoiding a discriminatory-enforcement charge that would have been the union's best objection.

Phase 6. In May the union demands recognition claiming 61% card support. Northbridge does not look at the cards. Within the Cemex window it files an RM petition. Counsel briefs the leadership team on the stakes: a serious violation now risks a bargaining order rather than a rerun.

Phase 7. The Statement of Position raises the exclusion of eleven working leads and contests the inclusion of the maintenance classification. The lead analysis is done on function — they assign work and effectively recommend discipline, using independent judgment — and eight of the eleven are excluded by stipulation.

Phase 8. The parties stipulate to a unit of 218 employees with a defined eligibility date.

Phase 9. The election is held. Northbridge's plant manager, who has been trained not to be near the polls, watches from his office. The tally: 121 to 97 for the union.

Phase 10. Northbridge reviews the record for objections and finds none worth filing. It does not attempt a technical refusal to bargain.

Phase 11. Bargaining begins within three weeks. In month two, operations changes the break schedule as it has every summer for a decade — and counsel catches it before implementation. It is proposed to the union instead. That single intercepted decision is worth more than the rest of the compliance budget.

What made it work: auditing the handbook a year early, documenting the wage decision before the campaign, training every frontline supervisor rather than only managers, declining to enforce a rule that practice had abandoned, and filing the RM petition instead of ignoring the demand.

Responding to a Union Organizing Campaign: A Practical Checklist

Phase 1 — Before Any Campaign Exists

Phase 2 — Early Signs and First Response

Phase 3 — Supervisor Training

Phase 4 — Lawful Employer Communication

Phase 5 — Solicitation, Distribution, and Access

Phase 6 — The Demand for Recognition

Phase 7 — The Petition and the Pre-Election Period

Phase 8 — Bargaining Unit and Eligibility

Phase 9 — The Election

Phase 10 — Objections, Challenges, and Certification

Phase 11 — After Certification

Worked Example

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