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Corporate Counsel Connect collection

September 2014 edition

State of the unions: Is your company vulnerable to a union campaign?

Jennifer Ballard, Hinshaw & Culbertson

Jennifer BallardThe percentage of unionized workers in the private sector is down, but employers should not count the unions out. Recent National Labor Relations Board (NLRB) decisions promoting unionization have revitalized recruitment tactics resulting in more strategic and sophisticated organizing campaigns. While unions do target certain geographic locations and industries, most campaigns are initiated internally by dissatisfied employees. The good news is that employers can proactively take steps to identify and correct vulnerabilities. Anticipating issues that a union will likely raise is the best preventative measure employers can take to maintain control of their workplace.

The bottom line in an organizing campaign often comes down to wages and benefits. To the extent that employees feel they are earning less than employees at competing businesses, they will be more likely to believe that the union can get them more. Unions capitalize on unexplained inequities in compensation by arguing that representation leads to higher wages, better health care, and a secure retirement. Companies offering fair and transparent wages and opportunities for promotion and growth are less susceptible to this argument. Employers should regularly survey the marketplace to ensure that their compensation packages are competitive. If a direct comparison reveals wage differentials, employers should be prepared to explain why, including highlighting the non-monetary advantages of working for the company, which employees may not always initially focus on.

In addition to competitive wages, employees also expect to work in a safe environment. Workplace safety has historically been a focal point for unions. The failure to meet employees basic expectations with respect to safety training, safety guidelines, protective equipment and procedures for responding to accidents in the workplace, leave the employer susceptible to union organizing campaigns, and also citations by the Occupational Safety and Health Administration (OSHA). Employers who address safety issues early on are better suited to counter the inevitable union promise to create a safer workplace.

Union organizing campaigns often arise during periods of significant change within a company such as downsizing, mergers, cost-cutting measures, work shortages and overtime/scheduling changes. It is important for employers to recognize that even small changes in work policies can be quite disruptive to employees. During times of perceived uncertainty, companies should be sure to have a thoughtful communications strategy to explain new events in the workplace. Two-way communication between employees and management is key. Employees should be informed of new workplace policies as soon as practicable and be given the opportunity to pose questions, voice concerns and provide direct feedback to management. Employers should look for common ground with dissatisfied employees, even when the company determines that immediate policy change is not warranted. When employee suggestions lead to changes in policy, let them know their voices were heard.

It is important to recognize that despite the best efforts of employers, a union may nevertheless be lurking at your door. When a company becomes aware of organizing activity, it should immediately develop a strategic response plan. Remember that the tone between management and the union (if elected) is set when unionizing efforts begin. While employers are encouraged to offer facts about union policies that employees may not be aware of, employers may not issue threats or promises which are contingent upon an employee's vote against unionization. These impermissible tactics not only encumber the future working relationship with the union, they can result in costly litigation and fines against the employer. Employers should promptly consult outside counsel to assist with formulating a lawful campaign response and to educate supervisors and managers on what they can and cannot do within the guidelines of the National Labor Relations Act (NLRA).

About the author

Jennifer Ballard, attorney at Hinshaw & Culbertson's Chicago office, counsels clients on wide range of labor and employment matters. She represents employers on labor issues involving union organizing efforts, collective bargaining negotiations, grievance and arbitration proceedings, strikes and administrative hearings.