How a Small Employer Prepares for Union Bargaining Without Setting Up a Strike

The best tool against a work stoppage is lawful, well-prepared bargaining. Know your duty to bargain in good faith, calendar the notice dates if a contract is in effect, avoid unfair labor practices that can turn an economic strike into one you cannot replace, plan operations in advance and bring in a labor attorney early.

I am Mac Malbrough. I hold a J.D. and an MS-HRM, I am not an attorney, and labor relations is an area where an attorney should lead. This piece gives a small employer a map of the terms and a preparation list. It does not take a side for or against a union, and I describe the federal rules without advising any one situation.

What does the law require of you at the table?

Good faith. Under section 8(d) of the National Labor Relations Act, bargaining means meeting at reasonable times and conferring in good faith about wages, hours and other terms and conditions of employment. The duty to meet does not require you to agree to a proposal or make a concession.

The National Labor Relations Board’s page on bargaining in good faith lists what the law forbids and permits.

• You may not engage in surface bargaining, which means going through the motions without a real intent to reach agreement.
• You may not bypass the union and deal directly with the employees it represents.
• You may communicate accurate information about your proposals, and you may bargain hard.
• You may not make unilateral changes to mandatory subjects before an impasse, with limited exceptions.

The Board also says an employer may not refuse to provide relevant information the union requests. Treat a union information request as a deadline, and ask counsel to review the answer.

Which notice dates start the clock?

Only if a contract is already in effect. Section 8(d) requires a party that wants to change or end an existing contract to give written notice 60 days before it expires, and to notify the Federal Mediation and Conciliation Service within 30 days after that notice if no agreement has been reached. Neither party may strike or lock out during the 60 days. Those requirements apply where a contract exists. They do not cover a first contract, outside of health care, where different notice periods apply.

Mark the expiration date, the 60-day line and the 30-day mediation notice on your calendar the day you sign any agreement. The FMCS takes the notice on its F-7 form, which is filed online. The agency does not forward it to state agencies, so check whether your state or industry has its own notice rule. I found no California notice duty in the sources I read.

What lowers the risk of a stoppage?

Five habits, in this order. None of them guarantees labor peace, and each lowers the odds that a dispute turns into a walkout.

• Bargain in good faith and document that you did, because unfair labor practices change what a strike means.
• Know your numbers: what you can afford in wages, benefits and scheduling, and what each proposal costs per year.
• Meet early and often enough that the union is not surprised by your first proposal.
• Offer information voluntarily where it helps, such as the financial facts behind your position.
• Use mediation. FMCS mediation is voluntary and free, and it can keep talks moving when they stall.

I would not promise any employer a mediator on a given date. The agency’s staffing and policies have changed in recent years, and I could verify only secondary reporting on the details. Ask for mediation early and have a private mediator in mind as a backup.

Why do unfair labor practices matter so much?

They change who can be replaced. The Board’s strikes page explains that economic strikers can be permanently replaced under certain circumstances, while workers who strike over an employer’s unfair labor practices cannot be discharged or permanently replaced. A bargaining mistake can therefore turn a manageable dispute into one with much higher stakes.

A strike that violates a no-strike clause is unprotected, which gives a contract with a clear clause real value. Have counsel draft it carefully and read what the clause covers before you rely on it. The Board’s page on the right to strike sets out the basics.

How do you plan operations without crossing a line?

Plan for service continuity, and keep the plan lawful. Continuity planning is smart management, and some tactics are restricted. California Labor Code 1134 bars knowingly using professional strikebreakers, so a plan that depends on hiring a temp crew to replace strikers needs counsel’s review first.

These steps are lawful on their face and still deserve a lawyer’s read.

• Cross-train managers and non-represented staff on critical tasks.
• Map the work that cannot stop, such as safety, payroll, customer commitments and regulatory filings.
• Build a communications plan for customers and vendors, with accurate language about service.
• Check insurance, contracts and deadlines that a slowdown would trigger.
• Keep a record of every decision and why you made it.

Do not threaten employees or promise benefits to influence a vote or a position. Those lines are easy to cross in a small workplace where everyone talks daily. Train your managers on what they may and may not say before bargaining begins.

What should you ask your labor attorney first?

Bring five questions to the first meeting. Is this a first contract or a renewal, and which notice rules apply? Which subjects are mandatory and which are optional? What information has the union requested, and when is it due? What may our managers say to employees? What would a lawful continuity plan look like for our business? The answers shape the calendar, the budget and the tone of every conversation that follows.

Ask about cost as well. A small employer can budget for a few attorney hours up front much more easily than for an unfair labor practice charge later.

What happens to unemployment benefits during a dispute?

It depends, and the rules are specific. California’s Unemployment Insurance Code 1262 addresses disqualification for a trade dispute, and the EDD benefit guide covers the details. I could not confirm how those rules apply to locked-out workers or how recent legislation changes them, so treat benefits as an open question for counsel.

What should you do this week?

Find your calendar and your lawyer. List every collective bargaining date you have, from contract expiration to notice windows. If you have no labor attorney, interview two before bargaining starts. Then brief your managers in writing on what to say and avoid.

If you want help with the people side, my fractional HR service covers communications, records and manager training. For the layoff and closing rules that sit nearby, read my guide to California layoff notices.

Sources

• 29 USC 158 (NLRA section 8), read October 29, 2026
• NLRB, bargaining in good faith, read October 29, 2026
• NLRB, strikes, read October 29, 2026
• FMCS, notice of bargaining (F-7), read October 29, 2026

McKinley holds a J.D. but is not a licensed attorney. Articles here are general information, not legal advice. For your specific situation, talk with an employment attorney.