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How to play defense

Employers have options in the face of a union organization drive, but must tread carefully

When new owners took over a New Jersey-based manufacturer with fewer than 100 employees, rumors started to fly. Peter L. Frattarelli, a partner at the Archer law firm, recalls that the workers got nervous and a union organizing effort was launched.

“Often, something like a layoff or firing, or a change of control can act as a trigger event that can spark interest in a union,” added Frattarelli, chair of Archer’s Labor & Employment department. “That’s why it’s very important for management and owners to maintain communication with the employees.”

In this case, he went in and explained what union representation would mean — from management’s point of view — “and the new owners explained the cost and expenses to employees. The new managers also spoke with the employees and defused the paranoia. Management also became more open about their plans, and about some of the changes and why they were occurring. In the end, the union lost the vote.”

Keep talking

Open communications may prevent the threat of a union drive from even occurring, he noted, although it’s no guarantee. “If you have to make one or more negative decisions explain why you’re doing them,” Frattarelli advised. “Rolling them out with no explanation raises fears and anger that festers. But when employees are kept in the loop, there’s less reason for them to reach out to a union. Another obvious tactic is to remain competitive when it comes to wages and benefits. Finally, if you pick up any information about a union drive, react quickly. Don’t wait too long.”

Frattarelli

During a union drive, managers should be communicating with workers, he added, “but stay aware of some legal restrictions. You can, for example, advise your workers that unions are focused more on seniority and less on performance, so high-performing employees may not advance under a union,” according to Frattarelli. “Also, if you have had a good working relationship with employees, you can mention that to them.”

But he warned against running afoul of legal organizing protections. “You can’t offer a pay increase in return for rejecting a union, and you can’t threaten, surveil or interrogate employees about their union activity,” he noted. “But if an employee voluntarily approaches you to say how he or she plans to vote, or offers up other information, you are allowed to listen to them.”

Early warnings

It pays to be prepared, “so you can pick up on early organizing signs,” said John C. Romeo, director of Employment & Labor Law at Gibbons PC law firm. “Make sure you’ve trained your supervisors and managers to look for signs of a union campaign,” he counseled. “Some signals include employees gathering in unusual groups during breaks; or individuals using new words or terms like grievance, protected activity, or just cause, which are all phrases that union organizers typically use. Of course a dead giveaway is people wearing union buttons, shirts or hats, or union materials in a break room.”

Romeo

If a union does mount an organizing campaign, Romeo cautioned employers against reviewing any documents that a union organizer tries to show them. “In some cases, if more than 50 percent of employees sign union cards and the employer reviews them, it may automatically trigger the formation of a union,” he warned. “Your best bet is to decline to accept or to look at anything the union hands you.”

Business owners can take some steps to curb union elections, but they have to be careful, he added. “You can tell employees that they have a right to sign a union card, but they can’t be forced to do so,” Romeo noted. Generally, if 30 percent or more employees sign cards, union organizers can petition the federal National Labor Relations Board for an election. “You can also tell employees why you think it’s better to speak with them directly, instead of through a third-party intermediary like a union. Also, advise them that a union can’t guarantee results, although it’ll make plenty of promises about more money and benefits. In the end, however, the union dues are coming out of the workers’ pockets.”

A manager who started in labor but came up through the ranks may be able to present a compelling anti-union story, he added. Managers can also talk to workers about other companies that had bad experiences after unions were recognized.

In one case, noted Romeo, the 100 or so employees of a New Jersey company voted in a union. “Soon, it became difficult to change processes and to adopt new technology, and this affected efficiencies in a negative way. There were threats of strikes and delays, and this all added up to a lot of additional cost, with questionable benefits to the employees. In fact many of them now say it’s not as pleasant to work there anymore.”

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