Maintain Your "Union Free" Status

By Patrick Scully *

With the passage of the Employee Free Choice Act (EFCA) a strong possibility no matter what the outcome of the election in November, the need for employers to maintain or develop and implement a "Union Free" strategy is critical. Employers who have been free of organizing drives for years will be defending them again, as it likely will be much easier for a union to become the representative of employees. Unions are already planning and activating their strategies in anticipation of the next Congress passing the legislation.

EFCA would drastically alter the National Labor Relations Act (NLRA). The key elements of the EFCA are: (1) eliminating the secret ballot election process and allowing certification of a union through a card check process (signed union authorization cards by a majority of employees), (2) requiring binding arbitration if the employer and the recognized union are unable to reach an agreement within 90 days, (3) mandatory injunctions against employer violations, (4) civil penalties against employers - $20,000 for each offense for violations during organizing and first contract negotiations, and (5) treble back pay (formerly employees could only obtain "make whole" relief).

The problem employers face is that a union may obtain a majority of signed authorization cards before an employer has time to effectively react to the union organization of its employees. It may be too late to educate employees as to why a union is unnecessary and is not in the best interest of the employees and the employer.

Now is the time to prepare for the coming change in the law, even if you have not defended union organizing for a number of years.

A Union Free Strategy

What must be in place for an organization to remain union free? Employees turn to unions when they feel that they have deep concerns that are not understood or shared by management. A union is seen as a mechanism for giving voice to employees' concerns and a means for gaining management's attention. Issues often expressed by employees are: (1) a lack of confidence in management, (2) a lack of direct communication with the organization, (3) a general feeling of insecurity and an unfriendly work environment, (4) a lack of respect toward employees, and (5) the failure of management to respond to complaints. Competitive compensation and benefit programs, while obviously important, are not always voiced as major reasons by employees.

Union free organizations develop union free strategies and weave them into their business and strategic planning process. The philosophy to be and remain union free is a major objective. In effect, they plan to be a "prepared organization." A prepared organization's union free strategy should include the following:

It develops, implements, and communicates a philosophy that employees are its most valuable resource. Human resource policies and practices are developed around reinforcing this philosophy. Underlying this is the firm belief that employees are to be treated with dignity and respect.
Its communications to employees are frequent and direct with the purpose of establishing trust and confidence in the management of the organization.
It regularly surveys employee attitudes to determine, among other things, whether issues are developing that may cause employees to seek union representation. Survey results are reported back to employees in feedback sessions. Suggestions offered in feedback sessions are summarized and reported to management for consideration. These sessions are characterized as "informational" and not as "dealing with" employees.
Managers and supervisors are trained in leadership skills and effective face-to-face communications.
Managers and supervisors are regularly updated in effective union awareness training which includes a briefing of key sections of the NLRA, the mechanics of a union organizing campaign, an explanation of the collective bargaining process and the role of a supervisor during a union campaign.
Compensation and benefit programs are regularly compared to comparable industry standards and adjusted as appropriate.
A Union Avoidance Assessment is conducted to determine the extent the organization may be vulnerable to union organization and to union corporate campaigns.

What is at stake if a company is organized? Negotiations leading to a labor agreement may result in: (1) limiting management's right to manage the business, (2) higher operating costs through restrictive work rules, and (3) interference in the direct relationship with employees. Clearly, companies need to carefully think through the appropriate course of action that best fits their organization and determine and implement strategies they need to take to remain union free. If EFCA is enacted in 2009, unions will not waste time in implementing their own strategies to organize the unorganized.

*Mr. Scully gratefully acknowledges the contributions of Howard Rohan on this piece.

Sherman & Howard has prepared this advisory to provide general information on recent legal development that may be of interest. This advisory does not provide legal advice for any specific situation. This does not create an attorney-client relationship between any reader and the Firm. If you want legal advice on a specific situation, you must speak with one of our lawyers and reach an express agreement for legal representation.

© 2008 Sherman & Howard L.L.C. October 24, 2008

	Contact Us Services Attorneys News and Events Publications About the Firm Diversity Careers Events and Registration Speaking Engagements Press Releases Articles Client Advisories Subscriptions History Offices Pro Bono Interlaw Contact Us Culture Legal Opportunities Summer Associates Support Staff Publications Client Advisories Home > Publications > Client Advisories > View Maintain Your "Union Free" Status By Patrick Scully * With the passage of the Employee Free Choice Act (EFCA) a strong possibility no matter what the outcome of the election in November, the need for employers to maintain or develop and implement a "Union Free" strategy is critical. Employers who have been free of organizing drives for years will be defending them again, as it likely will be much easier for a union to become the representative of employees. Unions are already planning and activating their strategies in anticipation of the next Congress passing the legislation. EFCA would drastically alter the National Labor Relations Act (NLRA). The key elements of the EFCA are: (1) eliminating the secret ballot election process and allowing certification of a union through a card check process (signed union authorization cards by a majority of employees), (2) requiring binding arbitration if the employer and the recognized union are unable to reach an agreement within 90 days, (3) mandatory injunctions against employer violations, (4) civil penalties against employers - $20,000 for each offense for violations during organizing and first contract negotiations, and (5) treble back pay (formerly employees could only obtain "make whole" relief). The problem employers face is that a union may obtain a majority of signed authorization cards before an employer has time to effectively react to the union organization of its employees. It may be too late to educate employees as to why a union is unnecessary and is not in the best interest of the employees and the employer. Now is the time to prepare for the coming change in the law, even if you have not defended union organizing for a number of years. A Union Free Strategy What must be in place for an organization to remain union free? Employees turn to unions when they feel that they have deep concerns that are not understood or shared by management. A union is seen as a mechanism for giving voice to employees' concerns and a means for gaining management's attention. Issues often expressed by employees are: (1) a lack of confidence in management, (2) a lack of direct communication with the organization, (3) a general feeling of insecurity and an unfriendly work environment, (4) a lack of respect toward employees, and (5) the failure of management to respond to complaints. Competitive compensation and benefit programs, while obviously important, are not always voiced as major reasons by employees. Union free organizations develop union free strategies and weave them into their business and strategic planning process. The philosophy to be and remain union free is a major objective. In effect, they plan to be a "prepared organization." A prepared organization's union free strategy should include the following: It develops, implements, and communicates a philosophy that employees are its most valuable resource. Human resource policies and practices are developed around reinforcing this philosophy. Underlying this is the firm belief that employees are to be treated with dignity and respect. Its communications to employees are frequent and direct with the purpose of establishing trust and confidence in the management of the organization. It regularly surveys employee attitudes to determine, among other things, whether issues are developing that may cause employees to seek union representation. Survey results are reported back to employees in feedback sessions. Suggestions offered in feedback sessions are summarized and reported to management for consideration. These sessions are characterized as "informational" and not as "dealing with" employees. Managers and supervisors are trained in leadership skills and effective face-to-face communications. Managers and supervisors are regularly updated in effective union awareness training which includes a briefing of key sections of the NLRA, the mechanics of a union organizing campaign, an explanation of the collective bargaining process and the role of a supervisor during a union campaign. Compensation and benefit programs are regularly compared to comparable industry standards and adjusted as appropriate. A Union Avoidance Assessment is conducted to determine the extent the organization may be vulnerable to union organization and to union corporate campaigns. What is at stake if a company is organized? Negotiations leading to a labor agreement may result in: (1) limiting management's right to manage the business, (2) higher operating costs through restrictive work rules, and (3) interference in the direct relationship with employees. Clearly, companies need to carefully think through the appropriate course of action that best fits their organization and determine and implement strategies they need to take to remain union free. If EFCA is enacted in 2009, unions will not waste time in implementing their own strategies to organize the unorganized. *Mr. Scully gratefully acknowledges the contributions of Howard Rohan on this piece. Sherman & Howard has prepared this advisory to provide general information on recent legal development that may be of interest. This advisory does not provide legal advice for any specific situation. This does not create an attorney-client relationship between any reader and the Firm. If you want legal advice on a specific situation, you must speak with one of our lawyers and reach an express agreement for legal representation. © 2008 Sherman & Howard L.L.C. October 24, 2008 Copyright 2000-2009 Sherman & Howard L.L.C. All rights reserved. Privacy Policy \| Terms of Use