Union Organizing and Awareness Update

1. Union Organizing and Awareness Update SHRM Labor Relations Special Expertise Panel 2008

2. Agenda • 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

3. The Legal Lay of the Land

4. The National Labor Relations Act Protects Non-Union Employees as well as Union • “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

5. § 7 Rights Protected • 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

6. Other Mutual Aid or Protection • Covers activities that do not involve unions • Examples: • 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

7. 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)

8. Concerted Activity • 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

9. Examples of Protected Concerted Activity • Work stoppages • Refusal to work voluntary on-call • Honoring picket lines • Filing or processing grievances in concert • Protests of discrimination

10. Activity that Is NOT Protected, Even if Concerted • 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

11. What Is a Union ? • “…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)

12. What Do Unions Do ? • Capitalize on Management’s Failure To Be a Good Employer • 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

13. The Labor Movement Is Energized

14. The Labor Movement Is Energized The New Union Competitors 2005 Number of Unions split from AFL-CIO and form “Change to Win Coalition” • SEIU • Teamsters • UNITE • HERE • UFCW • Laborers • Carpenters

15. 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

17. The Labor Movement Is Energized • Union’s Organizing Model • Corporate campaigns • Sign neutrality agreements • Avoid NLRB supervised elections

18. The Labor Movement Is Energized • 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”

19. The Labor Movement Is Energized • 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

21. The Labor Movement Is Energized • 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

22. The Labor Movement Is Energized • 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

23. The Labor Movement Is Energized • 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

24. Organizing Trends and Tactics

25. Additional Union Organizing Strategies • Energizing clergy and community activists toward “pro-union” issues • Salting • Appealing web sites • Card check • Political action committees: Pushing employee free choice legislation

26. The New Concerns for Employees • 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

27. New Organizing Fields • 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

28. Union Wish List: Companies They Want NOW* • Wal-Mart • FedEx • Verizon Wireless • Toyota, Honda or Nissan • Comcast • IBM *Source: CNN Money

29. Reasons Employees Resort To Unionization

30. Reasons Employees Resort ToUnionization • 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

31. Reasons Employees Resort ToUnionization • 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

32. Union Organizing Early Warning Signs

33. Union Organizing Early Warning Signs • 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

34. Union Organizing Early Warning Signs • 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

35. Union Organizing Early Warning Signs • 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

36. Prohibited Conduct During Organizing Campaign

37. Prohibited Conduct During Organizing Campaign: TIPS • T-I-P-S • Threats • Interrogation • Promise • Surveillance (Spying)

38. Prohibited Conduct During Organizing Campaign: TIPS • Threats: §8(a)(1) prohibits THREATS of reprisal or coercion • Examples of violations: • 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

39. Prohibited Conduct During Organizing Campaign: TIPS • Interrogation: §8(a)(1) prohibits INTERROGATION • Facts and circumstances review • Examples of violations: • 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

40. Prohibited Conduct During Organizing Campaign: TIPS • 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) • Examples of Violations • Accelerating positive change in wages or benefits • Soliciting or remedying grievances

41. Prohibited Conduct During Organizing Campaign: TIPS • 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

42. What Management Can Say About Unions

43. What Management Can Say About UnionsF-O-E • Facts • Opinions • Examples

44. What Management Can Say About Unions 1.Facts You are able to give facts regarding the union and expectations for union members

45. What Management Can Say About Unions • Opinions You can share your own personal opinions about unions

46. What Management Can Say About Unions 3. Examples You are able to give examples of situations regarding union organizing and contract negotiations

47. Creating a Positive Operating Climate To Avoid Unionization Threats

48. Creating a Positive Operating Climate • 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

49. Creating a Positive Operating Climate • 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

50. HR Professionals Must… • 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