Volume 2, Issue 2 – January 31, 2014
Now is the time for you to re-examine your strategy for remaining union-free. Rulings from National Labor Relations Board have reinforced the old truism that if you wait to forge a strategy until an organizing campaign has begun, you are too late.
The NLRB has stacked the deck in favor of union organizers by shortening the time for campaigns, and favoring unions over employers in every other way it can.
But James R. Redeker of the law firm of Duane Morris LLP also stresses that imminent federal “persuader rules” – requiring that you make public the identity of anyone who helps you with a campaign – mean you should develop your strategy before they go into effect this year.
“If employers act before the new persuader rules are promulgated in March, they may keep their strategic planning confidential,” Redeker points out.
One thing you should do right now is neutralize the desire for third-party representation by making wages and benefits competitive with unionized companies in the area, he recommends. “The value of being union-free lies elsewhere and if you are significantly under market, you will likely fail.”
Make safety and equal/fair treatment important. Besides keeping you on the right side of the law, it communicates to employees that you care, he notes.
An effective communication program also creates a sense of security for employees because they know how you and they are doing, and why things that are happening may change their lives, Redeker says.
“Communicate what you are doing to make unions unnecessary,” he says. “If those connections are not made for them, employees may not appreciate it.” But avoid reasons that can be twisted to appear exploitive: “We don’t need a union because we need flexibility” can be heard as “we don’t want a union because we want to jerk you around.”
Another vital tool is a credible, legal problem-solving system for workers. “Employees with unresolved problems beg for help,” Redeker notes.
“If you provide protections from unfair treatment, employees do not need to find it elsewhere.”
NLRB rules also now allow unions to separate workers in a single facility into smaller groups, called micro-units, for organizing unless the employer can show “an overwhelming-community-of-interest” exists for all of the facility’s employees.
Find out what you need to do to show this, then adjust your operation to create evidence that micro-units are inappropriate, Redeker urges.
Collect and have easily retrievable documentary evidence to make sure you will be able to present within seven calendar days all that is necessary to meet your burden of “overwhelming” evidence.
Train supervisors in managing employees and employee performance, Redeker stresses. Supervisory failings in performance management cause employees to look outside for help.
Educate your supervisors about why employees join unions and how unions organize employees. This includes what unions are, and can and can’t do, and what supervisors can and can’t do in regard to protected activity. “Make sure they know how to recognize, report and respond to suspected union organizing without violating the law,” he says.
You also need to ensure your supervisory positions meet the board’s new definition of a supervisor. Redeker advises you to prepare job descriptions meeting that standard, along with wage, evaluation and other policies and systems that establish your supervisors are, under the law, supervisors.
Be prepared to respond effectively and quickly (within 24 hours) to credible union organizing, he adds. That includes being prepared to provide the necessary evidence at a post-petition hearing.
“Keeping your workplace union-free in 2014 will require more urgency and very specialized efforts” Redeker says. “Employers who don’t change and retool their union-free strategies dramatically will find organized labor has been dealt all of the winning cards.”
