Keeping Your Workforce Union Free

Are unions dead? Don’t bet on it.

Though the percentage of full-time and part-time workers in the private sector who are covered by unions has declined steadily for many years, unions remain a potent economic and political force. The growing labor shortage has emboldened unions to intensify their organizing efforts in a wide variety of industries. Workers have also shown a greater willingness to strike, confident that the tight job market will constrain employers from readily recruiting permanent or even temporary replacements. And most unions are investing heavily in the presidential and Congressional campaigns in a bid for more power in Washington.

Any company that has been forced to bargain with a union knows that it is an expensive and often combative process that inherently tends to erode relationships between an employer and its staff. As a result, companies that maintain a union-free workforce generally place a high priority on keeping it that way. With that goal in mind, businesses need to understand how to effectively manage a union-free workplace and how to respond properly when union activity arises.

Unions thrive on uncertainty.

Most union organizing campaigns arise when a company is implementing significant changes, or when communications have broken down between managers and workers. Both situations breed uncertainty and mistrust – emotions that unions often use to gain leverage. When workers begin to believe that the company is no longer looking out for their interests, they are more receptive to the idea of third-party protection.

There are two lessons here. First, proper communication is your best defense against unions. Second, periods of change (layoffs, mergers, cost-cutting measures, and long work hours driven by increased business or worker shortages) are the time of greatest risk for union activity. Businesses need to make those lessons an ongoing part of their employment strategy. This means focusing both on proactive policies that support a union-free culture and preventive policies that deter unions from gaining a foothold.

State your case. Maintain a well-publicized policy that explains to your workers your position on unions and why you want to keep the company union-free. Be sure to share this information with new employees, who may be unfamiliar with the realities of union representation. Also find opportunities to reinforce this message with your staff on a regular basis.

Maintain two-way communications. Provide regular updates from management, both via newsletters and e-mails and by personal communication directly to workers. Train your supervisors and managers in effective communication and listening techniques, so they know how to deliver your message and recognize problems in the early stages.

You should also have a means for workers to provide direct feedback to the company, including ways of communicating that skip a level of management (in case there’s a problem with a particular supervisor or manager). Survey your workers regularly, and tell them the results – as well as how you plan to respond. When worker suggestions lead to changes in policy, let them know.

Finally, don’t lie. If you can’t provide a full answer, say so. Workers will forgive confidentiality, but not deception.

Explain changes. Recognize that even small changes can be disruptive, and make sure you have a thoughtful communications strategy to explain new events in the workplace. Rising health care costs are a particular source of frustration and a key inroad for unions. A company that wishes to institute a co-pay for the first time, for example, must carefully explain the economic factors driving the decision. A memo is rarely enough to properly communicate any significant change. Use personal communication and/or Internet and video, including graphics, to back up your case.

Address concerns. Don’t ignore complaints of safety problems or poor working conditions. A thorough investigation reinforces your commitment to the best interests of your workers, even if you ultimately conclude that the situation does not warrant changes in policy. (If you reach that conclusion, explain why.) Remember, too, that even inexpensive investments, such as minor equipment modifications, can send a powerful message about the priority you place on worker satisfaction.

Provide competitive wages and benefits. Survey the marketplace to assure that your compensation packages are competitive with comparable unionized workplaces – and share the results of such surveys with workers. Don’t let them assume that their unionized colleagues are getting a better deal. Also focus on "modern" benefit packages that maximize flexibility for workers. More and more, flexibility is reaching a par with compensation in terms of perceived value. And be wary of sustained periods of overtime, which has become a key factor in recent organizing campaigns.

Provide positive reinforcement. Remind workers how much you value them. Sponsor company gatherings and other ways to build a "community" culture among your workforce. Develop career tracks that give workers opportunities to advance within the company.

Limit solicitation. Your policies may lawfully prohibit non-employees from soliciting or distributing on company property. Your policies may also lawfully prohibit employees from soliciting during company time and from distributing literature in working areas. If you choose to establish such policies, make sure your policies are uniformly enforced: you can’t single out union communications. Also be sure to review your e-mail policies to ensure they comply with federal labor law.

Keep control over bulletin boards and mail boxes. Limit access to company bulletin boards, and keep them locked. You may want to maintain a separate employee bulletin board, and develop policies regarding permission to post, length of postings, and limits on the number of postings at any one time. You should also prohibit non-company mailings from being distributed in employee mail boxes.

Restrict access to employee information. Think twice about employee directories that provide home addresses or phone numbers, and list such information as private and confidential anywhere it appears.

Maintain appropriate security. Provide supervisory coverage during all shifts, and use security personnel to restrict access in areas owned or controlled by the company. Make sure security staff is trained in appropriate procedures under the National Labor Relations Act, and enforce your policies uniformly.

Many companies conduct periodic audits of their labor policies to assess their compliance and their vulnerability to organizational activity. The goals of such an audit are generally to assess quality of communications regarding employment issues, identify weaknesses in labor-related policies, measure compliance with labor laws, and identify priority concerns of workers.

Unions generally try to keep their organizing activities secret for as long as they can. Employers can be highly effective in defeating organizing campaigns if they respond promptly and strategically, and as a result, unions do their best to keep companies in the dark about their efforts.

But the signs are usually there to spot, assuming your supervisors and managers have been properly trained. Common tip-offs may include:

• Groups of workers huddling, then quieting when managers appear
• Unexpected arguments among workers
• New groups of workers going out together after work
• Antagonistic questions about unpopular company policies

It’s also not uncommon to find union authorization cards lying around, or leaflets left behind in the lunchroom or break area. Hopefully, loyal workers may also alert supervisors about organizing activities. Others may ask older supervisors whether they have ever been in a union. But given the secrecy of these efforts, supervisors and managers must remain alert, particularly during periods of change or unrest.

What should a company do when union activity begins?

First, respond immediately. Union organizing is a highly time-critical process. Your delay will give the union a communications advantage (possibly even leading your workers to believe you are tacitly supporting the organizing effort), and early impressions will be difficult to change. Remember, however, that the law strictly regulates what you can and can’t do once organizing activity begins. You can’t threaten, you can’t spy, you can’t interrogate employees about their union activity (or anyone else’s), and you can’t dole out promises of benefits to workers for voting down the union.

You should also immediately bring in outside counsel. The fact is, you don’t want to handle this on your own. It’s too easy to get caught on the wrong side of the law and to allow ignorance or overzealousness on your part to give the union a legal edge. In addition, an employer may be too close to the situation (professionally and emotionally) to understand the motives that led to the campaign and make objective business decisions. Outside counsel can help the company:

• Identify the issues that prompted union activity and how to defuse them
• Formulate a strategy to respond to the union campaign
• Educate supervisors and managers about what they can and can’t do – and what they should do – in response to the campaign
• Help supervisors and managers communicate with workers and answer specific questions
• Develop a communications campaign and communications tools (print, video, Internet) tailored to the specific needs of the company
• Deal with the National Labor Relations Board on issues like voter eligibility (who can vote in the union election)
• Deal with unfair labor practice charges (if it looks like the company will win, unions may file charges in an attempt to block the election and gain more time) and election objections (if the union loses the election and wants the NLRB to set the results aside)

Keep in mind that you don’t have to lose union elections. If a company maintains the right policies in advance, and responds effectively, it can reduce the union’s chances dramatically. The clients we’ve counseled on resisting union campaigns have succeeded more than 95 percent of the time. The reason? They’ve developed strategies for staying union-free, and they’ve moved quickly when faced with union activity.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.