Union Organizing and Awareness Update
SHRM Labor Relations Special Expertise Panel 2008
Agenda
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Legal Lay of the Land
The Labor Movement is Energized
Organizing Trends and Tactics
Reasons Employees Resort to Unionization
Union Organizing Early Warning Signs
The Anatomy of a Union Campaign
Prohibited Conduct During Organizing Campaign
What Management Can Say About Unions
Creating a Positive Operating Climate To Avoid Unionization
Threats
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The Legal Lay of the Land
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The National Labor Relations Act Protects
Non-Union Employees as well as Union
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“Employees shall have the RIGHT to self-organization, to
form, or assist labor organizations, to bargain collectively
through representatives of their choosing and to engage in
other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, and shall also
have the RIGHT TO REFRAIN from any or all
activities…”Section 7 of the NLRA
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§ 7 Rights Protected
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To unionize or not to unionize
To bargain collectively through representatives of employee’s
own choosing
To engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection
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Other Mutual Aid or Protection
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Covers activities that do not involve unions
Examples:
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Objections to harassment
Refusal to work in the face of dangerous working conditions
Refusing to cross picket line
Three employees filing for unemployment
Employees petitioning their employer resolve work related issues
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Supervisors Are Not Covered
Supervisors are “any individual having authority, in the interest of
the employer:
• To hire, transfer, suspend, lay-off, recall promote, discharge, assign,
reward, or discipline other employees
• Responsibility to direct them, or
• To adjust their grievances, or
• Effectively recommend such action
• If in connection with foregoing the exercise of such authority is not
merely routine or clerical nature, but requires the use of independent
judgment” NLRA, § 2(11)
• Section 2(11) of the Act, Oakwood Healthcare, Inc., 348 NLRB No. 37
(2006)
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Concerted Activity
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Two or more employees
By one employee on behalf of others
By one employee about concerns that are the “logical outgrowth”
of group activity or concern of others
By one employee to enforce the collective bargaining agreement
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Examples of Protected Concerted Activity
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Work stoppages
Refusal to work voluntary on-call
Honoring picket lines
Filing or processing grievances in concert
Protests of discrimination
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Activity that Is NOT Protected, Even if Concerted
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Disparaging employer’s product
Disloyalty
Release of employer’s confidential information
Disrupting work
Sit-down strikes
Partial or intermittent strikes
Advocating for employee stock ownership plan
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What Is a Union ?
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“…any organization of any kind, or any agency or employee
representation committee or plan, in which employees
participate and which exists for the purpose, in whole or in part,
of dealing with employers concerning grievances, labor
disputes, wages, rates of pay, hours of employment, or
conditions of work.” NLRA, § 2(5)
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What Do Unions Do ?
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Capitalize on Management’s Failure To Be a Good Employer
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Management’s unfulfilled promises
Management’s lack of engagement activities
Management’s lack of fairness and consistency in policies and practices
Management’s lack of fairness and competitiveness in pay and benefits
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The Labor Movement Is Energized
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The Labor Movement Is Energized
The New Union Competitors
2005 Number of Unions split from AFL-CIO and form “Change to
Win Coalition”
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SEIU
Teamsters
UNITE
HERE
UFCW
Laborers
Carpenters
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The Labor Movement Is Energized
New Strength Unity Plan
• Targeted States: Florida, Pennsylvania, Connecticut,
Maryland and the District of Columbia
• Consolidation of Locals
• Leveraging Unionized Industries
• Strategic Planning and Executing Business Plans
• 75% of their budget used for organizing in the field
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The Labor Movement Is Energized
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Union’s Organizing Model
• Corporate campaigns
• Sign neutrality agreements
• Avoid NLRB supervised elections
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The Labor Movement Is Energized
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Corporate Campaigns
• Instills pressure on the targeted company beyond the
traditional organizing campaigns, strikes, and general protest
• Usually conducted in partnership with “non-aligned” issue
oriented activist groups funded by or supported by unions
• Carefully orchestrated tactics such as continuous complaints to
government agencies, consumer boycotts, shareholder
resolutions and general harassment of company “stakeholders”
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The Labor Movement Is Energized
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Corporate Campaigns: Overall Strategy
• To exert media, legal, political, social, economic and
psychological leverage to put pressure on the targeted
company
• Often initiated by the union in response to:
• Unwillingness to voluntarily recognize a union
• Refusal of a neutrality agreement/card check
• Being stalemated over critical issues in negotiations
• Growing its union-free facilities
• Challenging a political/legislative position taken by
organized labor
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The Labor Movement Is Energized
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Sign Neutrality Agreements
• An agreement between the employer and the union
• Employer agrees not to resist the union’s organizing attempts
• Agreements may include the following:
– Facility access for the union
– Card checks for recognition
– Employer prohibited from making negative comments
about the union
– Employer provides employees the addresses and phone
numbers of the union organizer
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The Labor Movement Is Energized
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Avoid NLRB Supervised Elections
• Unions are supporting the “Employees Free Choice Act” in the
U.S. Congress
• Under EFCA, if a union gets enough cards signed, it will then
be declared the bargaining unit representative WITHOUT a
secret ballot election
• If the EFCA passes, a majority of signed cards would eliminate
the opportunity for a secret ballot election
• Cards signed TODAY and given to the union MAY be used by
the union at anytime in the future
• Under EFCA, decertification process would require a secret
ballot election
©SHRM 2008
The Labor Movement Is Energized
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Organizing Results
• 80 percent success rate with neutrality agreements
• 75 percent success rate in NLRB elections
• SEIU only major union to have substantial growth since 2000,
membership now totals over 1.8 million
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Organizing Trends and Tactics
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Additional Union Organizing Strategies
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Energizing clergy and community activists toward “pro-union” issues
Salting
Appealing web sites
Card check
Political action committees: Pushing employee free choice legislation
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The New Concerns for Employees
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Security, security, security–boomers
Offshoring/outsourcing
Temporary employees
Social justice issues
Growth in corporate power, i.e., “Wal-Marting” of jobs
Reduction in benefits and increased cost sharing of health insurance
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New Organizing Fields
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Underrepresented and growing minority communities
Gen-X workers, those born between 1961 and 1980
Techno-savvy workers such as Gen-X and Gen-Y
College campuses
Southern and Southwestern areas of country
Women, particularly in health care, technical and administrative
positions
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Union Wish List: Companies They Want NOW*
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Wal-Mart
FedEx
Verizon Wireless
Toyota, Honda or Nissan
Comcast
IBM
*Source: CNN Money
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Reasons Employees Resort To Unionization
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Reasons Employees Resort To Unionization
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Claims of unfair or inconsistent treatment
Employee abuse
Lack of written rules and policies
Rules are inconsistently enforced
Lack of documentation
Failure to provide competent leadership
Lack of recognition and appreciation
Lack of communication
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Reasons Employees Resort To Unionization
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Lack of employee participation
Employees not feeling part of the team
Perceived inequity in pay and benefits
Lack of positive perception of employer
Failure to recognize seniority
Neglect of safety or hygiene matters
Fear regarding job security
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Union Organizing Early Warning Signs
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Union Organizing Early Warning Signs
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Employee complaints change and frequency increases, decreases or
employees stop talking to you
Employees form groups that include individuals who do not normally
associate with each other
Managers and supervisors receive an unusually large number of policy
inquiries, particularly on pay, benefits and discipline
Employees are found in work areas they do not normally visit
Avoidance of supervision- employees “clam-up”
Argumentative questions are asked in departmental meetings
Exit interviews information indicates that employees are attempting to
escape an unpleasant environment
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Union Organizing Early Warning Signs
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News items are placed on bulletin boards about union settlements in
same industries
Cartoons or graffiti appear, directing humorous hostility toward the
organization, management or supervision
A significant change in the rate of turnover, either upward or
downward
A number of people apply for jobs who do not have relevant
experience and appear to be willing to work at a lower status and
less pay than their records indicate
An unusual interest on the part of vendors and subcontractors in
communicating with employees
Non-union represented employees begin meeting and talking with
known union members
Complaints begin to be made by a delegation, not single employees
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Union Organizing Early Warning Signs
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Employees adopt a new, technical vocabulary which includes such
phrases as protected activity, unfair labor practices, demands for
recognition
Union authorization cards, handbills, or leaflets appear on the
premises or in the parking areas or trash bins
Union representatives visit or write employees at their homes
Requests are made for names and address list
Union flyers on windshield
Any other factors which appear to be out of the ordinary and seem to
be separating management from the workplace
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Prohibited Conduct During Organizing Campaign
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Prohibited Conduct During Organizing Campaign: TIPS
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T-I-P-S
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Threats
Interrogation
Promise
Surveillance (Spying)
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Prohibited Conduct During Organizing Campaign: TIPS
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Threats: §8(a)(1) prohibits THREATS of reprisal or coercion
Examples of violations:
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To close a plant
To discharge union supporters
To discontinue benefits
Futility of voting for union
Changes in practice or rules in response to union activity
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Prohibited Conduct During Organizing Campaign: TIPS
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Interrogation: §8(a)(1) prohibits INTERROGATION
Facts and circumstances review
Examples of violations:
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Requiring applicants to disclose union membership or affiliation
Asking how the employee feels about the union
Asking if the employee attended a union meeting
Polling employees
Soliciting grievances
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Prohibited Conduct During Organizing Campaign: TIPS
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Promises: “Interference is no less interference because it
accomplished through allurements rather than coercion”
• NLBR v. Crown Co., 138 F.2nd 263,267 (8th Cir. 1943), cert. denied,
321 US 769 (1944)
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Examples of Violations
• Accelerating positive change in wages or benefits
• Soliciting or remedying grievances
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Prohibited Conduct During Organizing Campaign: TIPS
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Surveillance: Impression of SURVEILLANCE is a violation of
§8(a)(1) because it may inhibit support for union
Examples of violations:
• Employee told it’s “an open secret” that you have joined the union
• Photography or videotaping union activity
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What Management Can Say About Unions
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What Management Can Say About Unions
F-O-E
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Facts
Opinions
Examples
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What Management Can Say About Unions
1. Facts
You are able to give facts regarding the union and
expectations for union members
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What Management Can Say About Unions
2. Opinions
You can share your own personal
opinions about unions
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What Management Can Say About Unions
3. Examples
You are able to give examples of situations regarding union
organizing and contract negotiations
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Creating a Positive Operating Climate To Avoid
Unionization Threats
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Creating a Positive Operating Climate
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Strive to create an “issue-free work place”
Encourage employees to ask questions
Avoid policies and procedures that program people to think union
Employ the most effective applicant assessment techniques
Establish communication programs that make employees feel a
part of your company
Ensure equitable pay and benefits practices
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Creating a Positive Operating Climate
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Assess and influence employee values and attitudes in an open and
lawful manner
Regularly talk with your employees about your employee relations
philosophy
Ensure that your management practices reflect your stated
philosophy
Train your first-line supervisors in positive employee relations
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HR Professionals Must…
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Understand labor’s organizing tactics and the implications
Educate supervisors on positive employee relations, including
lawful ways to respond to union tactics
Stay attuned to the level of employee satisfaction and
engagement within their organization
Be able to clearly articulate the organization’s “No Solicitation/No
Distribution” policy
Be able and willing to balance the best interests of employees
and the success of the business
©SHRM 2008