Union Avoidance and Personnel Policies:Which Will Help You Remain Union Free

Steve GoodwinBaker Donelson Bearman, Caldwell & Berkowitz, PC165 Madison AvenueSuite 2000Memphis, Tennessee 38103901.577.2141sgoodwin@bakerdonelson.com

I. The National Labor Relations Act (NLRA)

• Applies to almost all private employers, both unionized and non-union

• Protects employee right to:− Self-organization− To form, join or assist unions− To “bargain collectively through representatives of their

own choosing− To engage in “other concerted activities”− To refrain from these activities

• These are known as “Section 7 rights”

II. The National Labor Relations Board

• Enforce the NLRA• Five member board appointed by the President• Maintains regional offices• Hears and determines charges of “unfair labor practices”• Examples of unfair labor practices

− Discriminating against employees who are pro-union− Interfering with or “chilling” employees exercising Section 7 rights− Making threats or promises to undermine

union support− Making changes in wages or other terms

and conditions of employment toundermine union support

− Failing to bargain in good faith with union

III. Union/Elections

• Usually initiated by a petition or the collection of authorization cards

• Upon an adequate showing of interest (30% of employees), the board will conduct an election

• Pre-election campaigning by the employee and the union

• Vote count and certification of the results by the board

• If union wins, bargaining for a labor contract

IV. What Went Wrong?

• Wages and benefits below market

• Inconsistent or incompetent front-line supervisors

• Outdated or inconsistently applied personnel policies

• Lack of communications and feedback by managers

• Perceptions of race or gender discrimination

• Lack of access to management

V. Prevention

• Fair and realistic expectations for employees

• Consistent management

• Written policies (handbooks) that are compliant with the NLRA

• Effective communication

• Supervisor training

VI. Fair and Realistic Expectations

• Employees should know what is expected from them− Job descriptions− Constant mentoring− Frequent verbal feedback

• Employees should clearly understand the means for promotion or pay increases

• Superior performance should be recognized and rewarded

VII. Consistent Management

• Perceptions of “favoritism” is a leading cause of employee angst

• Inconsistent/or unfair discipline is a leading campaign item for unions

• Visibility of management to the workforce

VIII. Written Policies (Handbooks)

• Company’s stance: “Acme Rocket Company does not believe that union representation is in the best interest of the company or its employees”

• Section 8(c) of the NLRA: “The expressing of any views, argument or opinion…shall not constitute or be evidence of an unfair labor practice…if such expression contains no threat of reprisal or force or promise of benefit.”

• Can be used against you

VIII. Written Policies (Handbooks) (continued)

• Solicitation policies− “No employee shall engage in the solicitation of another

employee for any purpose (including fund-raising), or the distribution of any literature to another employee, during the work time of either employee. Work time does not include breaks and meal periods.”

− “No employee shall engage in the distribution of any literature in any work area at any time.”

− “No employee shall engage in the solicitation of another employee for any purpose (including fund-raising), or the distribution of any literature to another employee, in areas of the premises where customers are likely to be present at the time of the solicitation or distribution.”

VIII. Written Policies (Handbooks) (continued)

− “No non-employee may engage in the solicitation of any employee on company premises at any time for any purpose (including fund-raising), nor shall any non-employee distribute literature to any employee.”

− “Employees may display fundraiser information in the break area”

− Must be consistently applied with only limited exceptions (e.g. United Way)

− Can lead to problems for non-union companies

VIII. Written Policies (Handbooks) (continued)

• Grievance policies in handbooks− Anonymous “hot lines” (Sarbanes – Oxley)

− Multi-step grievance procedures

− Don’t have them if you’re not going to use them

− “Suggestion” procedures

− Arbitration

VIII. Written Policies (Handbooks) (continued)

• Bulletin Boards− “Bulletin boards are for business-related purposes only.

Placement of items on bulletin boards requires prior approval of HR.”

VIII. Written Policies (Handbooks) (continued)

• Disciplinary steps− If you use progressive discipline, spell it out

− Leave yourself discretion to skip steps

− Any “point” system or attendance should be spelled out and consistently applied

− Appeal process?

VIII. Written Policies (Handbooks) (continued)

• Explanation of benefits− Often covered by SPD’s

− Vacation scheduling

− Overtime selection

− Promotion eligibility

POLICIES

VIII. Written Policies (Handbooks) (continued)

• Prohibited or dangerous policies− An overly-broad solicitation policy

− Prohibited “protected concerted activity,” such as discussion of pay

− Discriminating against union activity – i.e., you can’t adopt or begin to enforce a policy because of union activity

IX. Effective Communication

• Notice to employees of changes and explanation of the reason for changes

• Relatively easy today because of intranets and e-mails

• Don’t by cynical about employee interest in company matters

• Use of management/employee committees

• “Open door” policy in practice.

X. Supervisor Training

• Renewed interest in this topic because of proposal of posting of Section 7 rights

• Many elections are lost before they are scheduled

• Front-line supervisors are your eyes and ears− They are usually the first to learn of organizing activities,

such as union cards or petitions− Union organizers may “bait” an untrained supervisor into

an unfair labor practice− Employees are far more likely to share their

concerns with front-line supervisors than higher management

X. Supervisor Training (continued)

• Supervisor training is helpful before a union campaign is in progress

• Supervisor training is essential after a union campaign is in progress