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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 atten-
tion 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, medi-
cal 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 orga-
nizer 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.

Six Steps to Staying Union-Free 

 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, em-
ployers 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 com-
panies 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 poll-
sters, 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 orga-
nizing 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
Change to Win Holds Founding Convention and regularly articulates its reasons for that position.
Employers who regularly express their reasons for re-
Change to Win held its founding convention on Sept. 27,
2005. At that convention, delegates ratified a constitution maining union free are far less likely to be organized
and structure, and passed resolutions on organizing, and unions choose their targets accordingly.
diversity and politics. Anna Burger was officially designated
as federation chair, the first time a woman has headed a Grassroots Organizing
labor federation. The federation estimates that collective
bargaining expenditures of its affiliates and Change to Win Before employee organizing takes place, many
at all levels will approach $750 million per year. To learn unions work for long periods of time developing rela-
more, go to www.changetowin.org. tionships 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 lo-
cal 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 com-
munity 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 employ-
er accused of insensitivity to the needs of the citizens who work there.

 Six Steps to Staying Union-Free

Neutrality Agreements
If enough public pressure can be exerted, unions will seek to extract from employ-
ers formal agreements by which the unions are permitted to organize employees with-
out 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 be-
ing 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 ap-
proach 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 organiz-
ing 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 neu-
trality 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 per-
suade employees of the alternatives to union organization. The organizing techniques
outlined above are remarkably successful in achieving representational status by ag-
gressive 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 tar-
get the employer for a campaign. Essential employer protection initiatives include the
following.

Six Steps to Staying Union-Free 

 Step 1: Identify Critical Supervisory Personnel
It should seem self evident, but without knowing who the supervisors and manag-
ers 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 organi-
zation by and among supervisors and impose very specific rules on supervisory con-
duct. 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 es-
sential 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 su-
pervisors 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-su-
pervisory employees on the value of remaining union free and the reasons the em-
ployer 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 consis-
tently 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 em-
ployers 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 be-
cause 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 litiga-
tion 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.

Six Steps to Staying Union-Free 

 Conclusion
Employers intent on maintaining maximum protection from potential union orga-
nizing 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 dedi-
cated to organizing the workforce.

 Six Steps to Staying Union-Free

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