UNION AVOIDANCE -- Labor Organizations Have Raised The Stakes

by Peter K. Newman, Esq.*

     Although the percentage of U.S. workers who are union members has steadily dropped since 1950, the AFL-CIO has adopted an aggressive organizing strategy to reverse this trend. AFL-CIO president John Sweeney recently announced that under his leadership the AFL-CIO will make the right to organize "the civil rights issue of the 1990s." According to Sweeney, the only way to prevent employers from violating workers' rights is to build a "bigger, stronger labor movement that is able to restore the right to organize and bargain."

     For every nonunion Ohio employer the message is clear: union organizers are actively looking for potential targets and you must be equally aggressive in taking steps to avoid being targeted. Employers should adopt a union free philosophy based upon a simple principle -- remaining union free is a by-product of good employer relations. However, to effectively implement this philosophy, employers need to be aware of the four keys to remaining union free:

1. Understand the National Labor Relations Board's ("the Board") prolabor election rules and procedures;
   

2. Recognize the "new" labor movement's improved organizing tactics;
   

3. Take preventive measures before you become a union target; and
   

4. If you become a target, respond to the union's campaign in a prompt and measured fashion that convinces your employees that they are better off entrusting their future with the employer rather than union outsiders.
   

The "New" Labor Movement's Organizing Techniques

     John Sweeney's plan to rebuild the AFL-CIO has several elements: increased organizing using new techniques and a new breed of organizer; taking on corporate "criminals"; enhancing political activity on both the national and local levels; and improving organized labor's poor public image through new advertising campaigns.

     To support his plan, Sweeney has boldly stated that the AFL-CIO is "going to pour resources into organizing at a pace and scale that is unprecedented." The AFL-CIO has already taken several concrete steps in this direction. For example, the federation of unions is planning to increase its $2.5 million annual budget for organizing to $20 million for each of the next five years. In addition, during the next two years the AFL-CIO plans to use its organizing institute to train 1,000 new organizers.

New Tactics

     Unions now run their campaigns like marketing campaigns -- information gathering and targeting. To get the biggest bang out of their organizing buck, unions are now using sophisticated techniques to identify their targets.

     The AFL-CIO has instituted a "Union Cities" program to target certain metropolitan areas for broad scale organizing. This program draws the central labor counsels together in an effort to rebuild the labor movement community by community.

     Further, AFL-CIO leaders recently identified working women as "the future of the labor movement." As a result, Sweeney has pledged to step up efforts to organize industries that employ a significant number of women.

     Use of mass media. Ever since the AFL-CIO launched its $13 million "union yes" advertising campaign in 1985, the use of mass media by unions has become a common element in organizing campaigns. In August of this year, the AFL-CIO test marketed a new advertising campaign in five major cities around the country.

     Specific tactics.

1. Corporate Campaigns. A corporate campaign is the equivalent of full scale warfare. The campaign can consist of several elements including litigation, relentless union organizing pressures, smearing the company's public image, attacking the company's financial base, boycotting the company's products, instituting criminal investigations and involving religious and social organizations to push the union's cause.
   

2. Salting. The object of salting is to place a union employee with a nonunion employer for the purpose of organizing. If the employer rejects the job applicant sent to salt the workplace, he or she can file an unfair labor practice charge with the Board.
   

3. The Blitz. The goal of blitzing is to catch management off guard, do a quick sales job on the employees, and get the Board to schedule an election before the employer can mount a responsive campaign. The blitz is particularly effective in light of the Board's new "42 days from petition to election" time target.
   

4. Rapid Response Team. In case any union runs into trouble during the course of an organizing campaign, the AFL-CIO has formed a new "solidarity and rapid response team" that is designed to "go to bat for workers involved in organizing and first contract fights."
   

5. Street Heat. The AFL-CIO is designing a new national mobilization network, called "Street Heat," that will allow the labor movement to respond to any union struggle, be it an organizing campaign, a contract dispute or a picket line.
   

Preventive Measures

Conduct A Union Vulnerability Audit

     Before targeting an employer for an organizing campaign, a union organizer will typically conduct an audit to determine if the work force will be vulnerable to the union's message. Therefore, employers should consider conducting their own self audit to determine if they are a potential target.

     Although the contents of the union's audit may vary, the following is a list of the types of questions that a union organizer would include in an audit.

• Does line management have more authority with respect to personnel matters than the personnel department?
  

• Is supervision unpredictable, inconsistent or autocratic?
  

• Have management meetings with employees or the company newsletter been free of anti-union propaganda?
  

• Is the work of a routine nature where employees receive little recognition from supervisors or little personal job satisfaction?
  

• Are employees stuck in "dead end" jobs with little chance for promotion?
  

• Have there been major accidents in the plant or are there serious threats to the health and safety of workers?
  

• Are there severe pressures (such as mandatory overtime) placed on employees to maintain or increase production?
  

• Is there any evidence of discrimination or favoritism?
  

• Do employees feel the company has little personal concern for them?
  

• Are there significant deficiencies in the wages?
  

• Is there substantial employee dissatisfaction with their wages or salary?
  

• Are there significant deficiencies in the fringe benefits?
  

• Is there substantial employee dissatisfaction with fringe benefits?
  

• Is there some union identification with employees -- either through friends, spouses or previous organizing drives?
  

• Is there easy access to employees, either on or off the job?
  

• Are labor unions generally well accepted within the community?
  

• Has the community been free from shut-downs of large plants or facilities?
  

     In conducting a self audit, employers should ask supervisors to answer these questions from both their perspective and the perspective of their employees. If either set of answers indicates that the majority of these questions have been answered in the affirmative, then you will know that your work force is vulnerable to a union organizing campaign and that immediate preventive measures need to be adopted.

Develop And Follow A Union Free Business Philosophy

     As mentioned previously, remaining union free is a by-product of good employer relations. Therefore, every Ohio employer needs to adopt the following union free standards:

     Your supervisors need to become the "right" kind of managers As the above list of audit questions indicate, unions frequently will use a "bad" supervisor as the key to the start of an organizing campaign. Supervisors must understand what their workers want, recognize their own strengths and weaknesses, and take steps to eliminate their shortcomings.

     Participatory management improves employee morale by making employees feel a part of the team. To prevent the union from using an "us versus them" theme during an election campaign, employers should eliminate the trappings of management that separate their supervisors from their employees. They should also develop and use effective communication programs to assist supervisors in getting to know their employees and giving them the support and recognition that they deserve.

     Resolve employee complaints internally. Employers need to take steps to convince supervisors to resolve employee complaints quickly. Otherwise, workers will take their unresolved complaints to an outside union organizer.

     Encourage and reward good employee performance. Employers often spend too much time dealing with bad employees and often forget the contributions made by their good workers.

     Get rid of problem employees. Internal union organizing usually begins with employees who have performance problems and need the protection of an outside union.

     Convince employees that their rights will be protected through effective communication and consistent enforcement of personnel policies. Most companies already have in place personnel policies designed to protect employees' jobs. Employers should make sure that these policies are not only communicated, but consistently followed by all supervisors.

     Be sensitive to employee concerns about wages and benefits. In a large number of cases, union organizing campaigns are triggered by an employer's disregard for employee concerns about wages and/or benefits.

After Organizing Begins

Learn To Recognize The Signs

Subtle signs.

• The frequency and number of employee questions or complaints concerning personnel policies, practices and benefits increase.
  

• Rumors or the "grapevine" become more active.
  

• Employees come to work abnormally early or late.
  

• Small group meetings or discussions among employees appear to occur more frequently.
  

• Employees attempt to irritate a supervisor by defying him or her (generally by refusing to perform an assigned job).
  

• Employees are noticed talking with strangers before or after work.
  

• Complaints are expressed by a group of employees, rather than a single worker.
  

Obvious signs.

• Union authorization cards, handbills or leaflets appear on the premises or in the parking lot.
  

• Reports of individuals visiting employees' homes or telephoning employees at home regarding the signing of union authorization cards are received.
  

• A personal visit, telephone call or registered letter is received from a union representative.
  

• Employees are invited to attend a free party given by the union.
  

• Employees begin actively talking about the advantages and disadvantages of union affiliation.
  

• Absenteeism increases considerably, and an "I don't care" attitude becomes more obvious.
  

• Work performance decreases in both quality and quantity.
  

Train Your Supervisors

     Supervisors' "do's and don'ts" during an organizing campaign. Although the National Labor Relations Act allows an employer to use its supervisors to tell its side of the story, your supervisors may not make any statements that contain any threat of reprisal or promise of benefit. In other words, your supervisors may not directly or indirectly threaten any employee or promise him or her anything to persuade him or her to vote against the union.

     Specifically, supervisors may not:

1. Encourage workers to spy on the union;
   

2. Go to a union meeting or be in the area where a union meeting is being held;
   

3. State to anyone that the company knows which employees are supporting the union drive;
   

4. State to any employee that the company knows of another worker's union membership or union activity;
   

5. Make any threats to employees (e.g., blacklisting employees for union activity, cutting out or reducing wages or benefits, removing privileges or transferring employees to more undesirable work);
   

6. Make any promises of benefits to discourage or encourage any employee in his or her union activity; and
   

7. Question the employees about their union activity or the activity of any other employee.
   

     However, supervisors may:

• Express their views regarding labor unions generally;
  

• Explain wage and benefit policies or other practices;
  

• Truthfully answer union arguments or charges;
  

• Tell employees that signing a membership card does not bind them to vote for the union;
  

• Discuss union dues;
  

• Discuss union tactics in elections and other activities;
  

• Tell workers that they do not need a union to guarantee good working conditions, job security and good pay; and
  

• Answer any questions asked by workers.
  

Convincing workers not to sign a union authorization card. If an employee asks one of your supervisors about signing a union card, the supervisor should try to convince the employee not to sign a card by sharing with the employee the following facts about union cards.

     Under Section 7 of the National Labor Relations Act, the employee has the legal right to refrain from signing a union card if he or she so desires. Union authorization/membership cards are the first step toward potential union dues, assessments and the possibility of union caused strikes. Further, union cards used for membership and/or representational purposes might require the employee signing the card to honor the union's constitution and subject the employee to its rules and regulations.

      Finally, the employee should not misinterpret the purpose of the union authorization/membership card. For example, an employee might form an impression from the organizer's sales pitch that the union authorization card would be used only for the purpose of presentation to the Board to substantiate the 30% showing of interest requirement for an election. However, the real purpose may be to support a request that the employer recognize the union without affording employees the right to vote on whether they desire the union.

     Developing a winning campaign. To defeat a union organizing drive, you will have to develop a campaign tailored to the issues that prompted your employees to contact the union in the first place. However, to be successful, your campaign must include the following elements:

1. Activate the campaign quickly in light of the Board's new fast track for elections (42 days);
   

2. Diffuse problem area issues;
   

3. Force the union to respond to the company's issues;
   

4. Resist the urge to respond to every piece of union propaganda -- respond only when necessary;
   

5. Use facts to establish the company's credibility and destroy the union's credibility; and
   

6. Attack the union where it is most vulnerable -- its union constitution and bylaws, dues, strikes, job losses and collective bargaining failures.
   

     In developing your campaign, be careful not to insult your employees' intelligence. Instead, give them the facts and let them decide.

Conclusion

     The best way to avoid and defeat union organizing campaigns is to make them unnecessary in the first place by convincing your employees that they are better off entrusting their future with you rather than a union. Although the AFL-CIO's new organizing tactics will present a challenge, Ohio employers can remain union free by adopting preventive measures to respond to the union's tactics in a timely and measured fashion.

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