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Six Steps to Staying Union-Free
Special Report
Understanding what unions are doing to reverse their fortunes will help companies lawfully resist the well-financed and finely tuned efforts of unions dedicated to organizing the workforce.

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Six Steps to Staying Union-Free is published by Thompson Publishing Group, Inc., 1725 K St. NW, 7th Floor, Washington, DC 20006.

Author: Larry W. Bridgesmith Desktop Publisher: Brock G. McClung

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Six Steps to Staying Union-Free
By Larry W. Bridgesmith News accounts of the AFL-CIO schism of the summer of 2005 caught the attention of employers across the country. Some have taken solace in the departure of the Service Employees International Union (SEIU) and the International Brotherhood of Teamsters (Teamsters) from the fold of their union brothers and sisters. Other unions that have since joined the “Change to Win Coalition” include UNITE HERE, the Laborers and Carpenters unions as well as the United Food and Commercial Workers (UFCW). For service and health care employers such as hotels, restaurants, hospitals, medical care facilities and nursing homes, no comfort can be taken in these developments. To the contrary, signs of aggressive organizational activities are already being seen by these unions who have demonstrated their interest in and ability to organize the service industries. The departure by SEIU and Teamster unions from the AFL-CIO was driven in large part by an ideological divide between these two unions and many others over the degree to which organizing employees is a better solution than political activity to the unions’ well-publicized decline. UNITE HERE, SEIU and the Teamsters have shown greater capacity to win the campaign for the hearts and minds of employees than most other unions. Nowhere is that more apparent than in the white-collar and pink-collar jobs. Not surprisingly, the two unions that have grown their membership rosters more than others are the SEIU and Teamsters. In particular, the SEIU has shown significant sophistication in organizing the health care industry. In one recent year, the SEIU grew by almost 200,000 members — largely through its health care organizing initiative. Virtually all major metropolitan areas have SEIU and Teamster organizers working full time to develop relationships and in-house organizer candidates to help bring the unorganized workforce into union membership. Now with the expense of AFL-CIO financial support and jurisdictional limitations lifted, these unions are visibly on the move with unorganized companies in their sights. With the recent addition of UNITE HERE focused on hotel and restaurant workers, the estimated increase in revenues retained by these disaffiliated unions totals at least $30 million. The newly formed Coalition for Change is well funded and focused on the commitment to organize the unorganized. Rather than reducing the amount of union organizing, the disaffiliation movement will serve to increase competition for employee sympathies by unions admittedly desperate for increased membership.
Larry W. Bridgesmith, a member of Nashville-based Waller Lansden Dortch & Davis, PLLC, focuses his practice on union relations, labor agreement negotiation, alternative dispute resolution and strategic approaches to employee relations. He may be reached at lb@wallerlaw.com.

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Union Tactics The stage is set for massive efforts by these and other unions to compete for the membership interests of this nation’s unorganized employees. In this climate, employers can expect many of the following efforts to accompany this renewed and heavily financed drive for new union members. ‘Corporate Campaigns’ Unions have demonstrated a propensity to use the media and government agencies, as well as civic and religious institutions, to put public pressure on employers to drop resistance to union organizational efforts. Charges filed with regulatory agencies, media reports concerning poor employee relations and rallies accompanied by local religious leaders are common in the typical corporate campaign. Publicly traded companies also are subject to shareholder initiatives that challenge management direction and undercut the ability to resist the union public relations blitz. Telephone Surveys Unions have successfully used polling techniques to gain information on local employers and gauge employee support for union organizing. Posing as political pollsters, union organizers will call employees at home and pose a series of sophisticated human interest questions with the purpose of ferreting out employers ripe for organizing and employees willing to assist. This target assessment device will objectively provide unions with a numerical score to indicate the likelihood of organizing success with a particular employer before the union is even identified or goes public with its intentions. Among the issues explored in the survey is the degree to which a specific employer is on record as being opposed to unionization and regularly articulates its reasons for that position. Change to Win Holds Founding Convention Employers who regularly express their reasons for reChange to Win held its founding convention on Sept. 27, maining union free are far less likely to be organized 2005. At that convention, delegates ratified a constitution and unions choose their targets accordingly. and structure, and passed resolutions on organizing,
diversity and politics. Anna Burger was officially designated as federation chair, the first time a woman has headed a labor federation. The federation estimates that collective bargaining expenditures of its affiliates and Change to Win at all levels will approach $750 million per year. To learn more, go to www.changetowin.org.

Grassroots Organizing

Before employee organizing takes place, many unions work for long periods of time developing relationships with local civic leaders and politicians to build credibility and a power base from which to operate in the event a union membership campaign is resisted by a local employer. When an employer caught unawares attempts to oppose the union’s organizing efforts, the local civic leaders can be counted on to exert subtle and not-so-subtle pressure. Those employers best situated to remain union free are those that have become vital community citizens and who have made their contributions to the community’s well being long before the union attempts to taint their reputation among local leaders. Isolation in local communities leaves employers susceptible to public relations campaigns by unions with opinion shapers who can raise the public profile of a recalcitrant employer accused of insensitivity to the needs of the citizens who work there.

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Six Steps to Staying Union-Free

Neutrality Agreements If enough public pressure can be exerted, unions will seek to extract from employers formal agreements by which the unions are permitted to organize employees without resistance. Far less than “neutral,” these agreements seek to hinder the employer’s ability to get its story out. They typically require the employer to provide employee contact information to the union organizers and open company premises to union organizer activity. They will require recognition on the basis of card checks and eliminate NLRB supervision of the process. The legality of these agreements is being litigated before the NLRB currently, but hundreds of employers have signed such agreements to avoid the public pressure of Corporate Campaigns. Many unions like UNITE HERE disavow NLRB election proceedings in favor of the more political approach of Corporate Campaigns with the purpose of achieving neutrality agreements with employers rather than be subjected to NLRB election oversight. Under-the-radar Organizing Unions organize best when they can work without detection. Blitz-style organizing is often utilized by successful unions through which a large number of union and employee organizers skilled in these techniques blanket a workforce at home over a weekend or a few days’ time and authorization cards are signed (often for no reason other than for “getting them off my back”) by a majority of the employees. Without forewarning, the employer has no opportunity to inform employees about the truth of authorization cards and the consequences of signing them. With as few as 30 percent of employees signing such cards, a union can demand recognition and initiate the NLRB election procedures. However, most unions will only do so after 60 or more percent of the employees have signed up. From the date a petition is filed with the NLRB, an election will typically be held within 45 days. Alternatively, under the neutrality agreement approach, recognition is automatic once a majority of employees have signed authorization cards. Six Steps To Maintain Union-free Status Obviously, time is of the essence once a union targets an employer for organizing. There is often insufficient time to turn an engineered defeat into victory. Whether by card check or NLRB election, employers caught off guard are ill prepared to persuade employees of the alternatives to union organization. The organizing techniques outlined above are remarkably successful in achieving representational status by aggressive unions. Almost 60 percent of NLRB supervised elections are now won by unions. The SEIU in particular enjoys better than 70 percent success in its election efforts. Employers and employees must be forewarned in order to be forearmed and able to make informed decisions about unionization. Waiting until the union makes its presence known to formulate a response is often too late for unwary employers. Among the steps proactive employers take in preparing for the potential of a union organizing effort, most are put in place long before the union seeks to target the employer for a campaign. Essential employer protection initiatives include the following.

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Step 1: Identify Critical Supervisory Personnel It should seem self evident, but without knowing who the supervisors and managers are, employers are at risk of a union’s successful organizational effort. Not all who wear the title supervisor are in fact supervisory. Likewise, many employees exercise supervisory authority without the title. The labor laws prohibit union organization by and among supervisors and impose very specific rules on supervisory conduct. Many elections are lost or unfair labor practices are committed by supervisors who follow their instincts and violate any of the countless counter-intuitive NLRB election rules. Knowing who is “on the team” enables the employer to train these essential people in the technicalities of union organization and how to prevent it legally. Equally importantly, trained supervisors and managers communicate a consistent and trustworthy message of the reasons for union-free status in a fashion that makes the likelihood of ever undergoing union organizational efforts far less likely. Step 2: Proper Training The supervisory and management team periodically must be reminded of the rules of the game. At least annually, proactive employers educate managers and supervisors on the latest trends in union organizing and how employers can lawfully maintain their union-free status. Union prevention is simply good management in action. Employees and employers alike benefit from a trained supervisory workforce. Mock union campaigns are the best way to immerse supervisors and managers in the intricacies and nuances of campaign strategies and conduct. The intricacies and techniques of lawful supervisory conduct can be learned in the pressure cooker of a simulated union campaign conduct over a few days training program in ways that are never forgotten and often only learned “on the job” when a union organization effort begins. Equally important, employers should regularly educate their non-supervisory employees on the value of remaining union free and the reasons the employer promotes that status. Step 3: Review and Revise Policy How employers control access to working areas is a matter of medical, business, as well as union organizational importance. Without clearly defined and consistently applied rules on solicitation and distribution, employers can unwittingly open themselves up to unrestricted union access to their workplaces. Knowing when and where non-work related verbal solicitation and literature distribution restrictions can be enforced is critical to productivity, safety and customer relations. Policies controlling such conduct cannot be devised after union activity begins without legal complications. Similarly, promotion, transfer and overtime policies can be causes of employee unrest and suspicion of favoritism if viewed as inconsistent or unfair in operation. Prepared employers make sure that policies exist to meet business needs as well as reasonable employee expectations and are actually complied with and applied consistently. 

Six Steps to Staying Union-Free

Step 4: Survey Employees No less frequently than every two years, an employer intent on maintaining its union-free status should have confidential interviews conducted with its supervisors to help identify employee irritants that give rise to union sympathies. Unaddressed employee grievances are the most frequent cause of union organization. Unions will promote their value on the basis of giving employees a voice in the matters that affect them in the workplace. Employers who recognize and address employee concerns on a regular basis remove the union’s strongest organizing tool. Employees who trust the value of their voice in the conduct of their employer’s workplace practices are far less likely to look outside for assistance in being heard. Step 5: Seek Compensation and Benefits Parity Very few companies are organized on the basis of pay inequity alone. Most employers understand the need to pay competitive wages and benefits. Appropriate levels of pay and benefits are unique to a particular industry and geographic locale. However, the employer’s failure to understand and be able to explain the reasons for employee wage and benefit levels may lead to perceptions of disinterest on the part of disenchanted employees. Non-competitive wages and benefits are the key to costly retention issues as well as potential union organizing efforts. Proactive employers will conduct periodic wage and benefit surveys, conform their pay practices to their industry and explain to employees the market forces that compel the compensation practices of that workplace. Employees who are well informed about the relevant factors that comprise competitive wage and benefit packages are unlikely to believe union campaign promises of significant wage increases. Step 6: Maintain an Aggressive Dispute Resolution System Most successful union campaigns are driven by unresolved employee concerns. Proactive employers understand the value of flushing out employee grievances effectively and promptly. The standard “open door policy” rarely works well because most employees distrust the “pay back” potential of back channel reprisal to employees who have circumvented the chain of command. Employers who maintain a high level commitment to conflict management will impose formal dispute resolution systems ranging from peer review to ombudsmen or HR hotlines intended to solicit employee grievances and address them promptly. Training of supervision in conflict management principles will assist in the maintenance of a workplace that is more productive and less susceptible to the costs of unresolved conflict such as litigation and unionization. It will be too late to alter the status or effectiveness of dispute resolution procedures after the union shows up. The law prohibits the employer from soliciting employee grievances and resolving them once a union organizing campaign begins.

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Conclusion Employers intent on maintaining maximum protection from potential union organizing efforts will not adopt an “ostrich posture” in hopes that they will never have to deal with the unpleasantness of a union campaign. Proactive employers intent on maintaining union-free status will create an internal union-free task force to educate the management team about today’s organizing climate. Understanding the steps unions are taking to reverse their fortunes will help companies lawfully resist the well financed and finely tuned efforts of the Coalition for Change and other unions dedicated to organizing the workforce.

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Six Steps to Staying Union-Free

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