Union Avoidance Plans: Resisting a Corporate Campaign

1. Union Avoidance Plans:Resisting a Corporate Campaign Thomas A. Smock, Esq. Ogletree, Deakins, Nash, Smoak & Stewart, P.C. Four Gateway Center, Suite 400 444 Liberty Avenue Pittsburgh, Pennsylvania 15222 412-394-3333 thomas.smock@ogletreedeakins.com

2. Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 2 The Decline of Unionization In 2008, 12.4 percent of wage and salary workers were union members, down from 13.4 percent in 2000 Union membership has steadily declined from a high of 20.1 percent in 1983, the first year for which comparable union data are available U.S. Department of Labor, Bureau of Labor Statistics Why has Union Membership Declined? Structural Changes in the U.S. Economy Total employment has shifted away from manufacturing and towards services. From 1960 to 1998, employment in the service sector grew by 182%, while employment in the goods sector grew only 19%. Historically unionized industries, such as manufacturing and mining, now constitute a smaller share of total employment. -- Fact & Fallacy: Updating the Reasons for Union Decline, Employment Policy Foundation (May, 1998) b. Global competition has also increased, making it harder for unions to maintain a wage premium. -- Fact & Fallacy: Updating the Reasons for Union Decline, Employment Policy Foundation (May, 1998) c. The shift from manufacturing-based to a service-based economy has decreased the average size of employers, making organizing activities more difficult. In fact, although union success rates in NLRB elections have remained constant at around 50%, the average size of bargaining units with election successes was significantly smaller. -- Fact & Fallacy: Updating the Reasons for Union Decline, Employment Policy Foundation (May, 1998) Demographic Changes in the Workforce Some suggest that the introduction of women into the workplace has caused union decline as women are less likely to join a union. -- Fact & Fallacy: Updating the Reasons for Union Decline, Employment Policy Foundation (May, 1998) Private Rights Substituting for Unions Employment legislation (such as ADA, ADEA, FMLA, OSHA) has made it easier for workers, without the assistance of a union, to challenge unsafe working conditions, job discrimination, workplace harassment and unjust dismissals. -- Fact & Fallacy: Updating the Reasons for Union Decline, Employment Policy Foundation (May, 1998) Managerial Opposition Businesses have done a better job of campaigning against the unions. WHILE THE STATISTICS ARE ENCOURAGING FOR EMPLOYERS FACING ORGANIZING CAMPAIGNS, AN EMPLOYER MUST RECOGNIZE THAT MUCH OF THIS TREND CAN BE ATTRIBUTED TO HARD WORK AND A GREAT DEAL OF FORESIGHT ON THE PART OF EMPLOYERS IN ESTABLISHING PREVENTIVE LABOR RELATIONS PROGRAMS. THEREFORE, ALTHOUGH THE POPULARITY OF UNIONS HAS DIMINISHED IN AN OVERALL SENSE, EMPLOYERS STILL SHOULD PREPARE VIGOROUSLY FOR ORGANIZATIONAL CAMPAIGNS, SINCE UNIONS UNDOUBTEDLY RECOGNIZE THAT THEIR REPUTATION AND SUCCESS ARE AT STAKE AND WILL BE TRYING INNOVATIVE TECHNIQUES AND OTHERWISE INTENSIFYING THEIR EFFORTS TO BREAK THE TREND OF THE LAST TWO DECADES. Why has Union Membership Declined? Structural Changes in the U.S. Economy Total employment has shifted away from manufacturing and towards services. From 1960 to 1998, employment in the service sector grew by 182%, while employment in the goods sector grew only 19%. Historically unionized industries, such as manufacturing and mining, now constitute a smaller share of total employment. -- Fact & Fallacy: Updating the Reasons for Union Decline, Employment Policy Foundation (May, 1998) b. Global competition has also increased, making it harder for unions to maintain a wage premium. -- Fact & Fallacy: Updating the Reasons for Union Decline, Employment Policy Foundation (May, 1998) c. The shift from manufacturing-based to a service-based economy has decreased the average size of employers, making organizing activities more difficult. In fact, although union success rates in NLRB elections have remained constant at around 50%, the average size of bargaining units with election successes was significantly smaller. -- Fact & Fallacy: Updating the Reasons for Union Decline, Employment Policy Foundation (May, 1998) Demographic Changes in the Workforce Some suggest that the introduction of women into the workplace has caused union decline as women are less likely to join a union. -- Fact & Fallacy: Updating the Reasons for Union Decline, Employment Policy Foundation (May, 1998) Private Rights Substituting for Unions Employment legislation (such as ADA, ADEA, FMLA, OSHA) has made it easier for workers, without the assistance of a union, to challenge unsafe working conditions, job discrimination, workplace harassment and unjust dismissals. -- Fact & Fallacy: Updating the Reasons for Union Decline, Employment Policy Foundation (May, 1998) Managerial Opposition Businesses have done a better job of campaigning against the unions. WHILE THE STATISTICS ARE ENCOURAGING FOR EMPLOYERS FACING ORGANIZING CAMPAIGNS, AN EMPLOYER MUST RECOGNIZE THAT MUCH OF THIS TREND CAN BE ATTRIBUTED TO HARD WORK AND A GREAT DEAL OF FORESIGHT ON THE PART OF EMPLOYERS IN ESTABLISHING PREVENTIVE LABOR RELATIONS PROGRAMS. THEREFORE, ALTHOUGH THE POPULARITY OF UNIONS HAS DIMINISHED IN AN OVERALL SENSE, EMPLOYERS STILL SHOULD PREPARE VIGOROUSLY FOR ORGANIZATIONAL CAMPAIGNS, SINCE UNIONS UNDOUBTEDLY RECOGNIZE THAT THEIR REPUTATION AND SUCCESS ARE AT STAKE AND WILL BE TRYING INNOVATIVE TECHNIQUES AND OTHERWISE INTENSIFYING THEIR EFFORTS TO BREAK THE TREND OF THE LAST TWO DECADES.

3. How have Unions Responded? Legislative response - Employees� Free Choice Act (EFCA) Strategic response - Corporate Campaigns Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 3

4. Common Goals Deprive employers of free speech rights to inform employees of negative aspects of union representation. Deprive employees of the right to a secret ballot. Avoid the restrictions of supervised elections under the regulation of the NLRB Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 4

5. Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 5 Where are Union Members Working? Public Sector vs. Private Sector Private Sector Industries Transportation and utilities Construction Information industries Manufacturing In 2008, workers in the public sector had a union membership rate almost five times that of private-sector employees, 36.8 percent compared with 7.6 percent. The unionization rate for government workers has held steady since 1983. The rate for private industry workers has fallen by about half over the same time period. Private Sector Industries: Transportation and utilities had the highest union membership rate, at 26.2 percent. Construction 16.0 percent Information industries 13.6 percent Manufacturing 13.5 percent All higher-than-average rates Agriculture and related industries had the lowest unionization rate in 2003, at 1.6 percent. All information from the U.S. Dept. of Labor, Bureau of Labor StatisticsIn 2008, workers in the public sector had a union membership rate almost five times that of private-sector employees, 36.8 percent compared with 7.6 percent. The unionization rate for government workers has held steady since 1983. The rate for private industry workers has fallen by about half over the same time period. Private Sector Industries: Transportation and utilities had the highest union membership rate, at 26.2 percent. Construction 16.0 percent Information industries 13.6 percent Manufacturing 13.5 percent All higher-than-average rates Agriculture and related industries had the lowest unionization rate in 2003, at 1.6 percent. All information from the U.S. Dept. of Labor, Bureau of Labor Statistics

6. Who are the Next Union Targets? Food and Beverage Companies Restaurant, Hotel, and Hospitality Industry Hospitals and Medical Service Suppliers Agricultural Workers Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 6 Although any private industry is vulnerable, recent corporate campaigns have focused largely on employers involved in service industries. This reflects both the growth of the service industry in the modern economy, and the temperament of the leadership of several of the large unions who represent workers in these industries. For example, many of the more notorious corporate campaigns involve Unite Here, a union formed by the merger of the Industrial Ladies Garment Workers� Union, the Amalgamated Clothing ang Textile Workers� Union and the Hotel Employees & Restaurant Employees International Union . Known for its pugnacious organizing campaigns, we will be discussing some of their more notorious techniques later. Unite Here is experiencing competitive pressure from the Service Employees International Union (SEIU) which has also adopted aggressive corporate campaign tactics.Although any private industry is vulnerable, recent corporate campaigns have focused largely on employers involved in service industries. This reflects both the growth of the service industry in the modern economy, and the temperament of the leadership of several of the large unions who represent workers in these industries. For example, many of the more notorious corporate campaigns involve Unite Here, a union formed by the merger of the Industrial Ladies Garment Workers� Union, the Amalgamated Clothing ang Textile Workers� Union and the Hotel Employees & Restaurant Employees International Union . Known for its pugnacious organizing campaigns, we will be discussing some of their more notorious techniques later. Unite Here is experiencing competitive pressure from the Service Employees International Union (SEIU) which has also adopted aggressive corporate campaign tactics.

7. What is a Corporate Campaign? A corporate campaign is a systematic assault on the reputation of a corporation designed to undermine its relationship with such key stakeholders as its customers, shareholders, regulators, bankers and the general public. Jarol B. Manheim, Trends in Union Corporate Campaigns Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 7 Unions engaging in a Corporate Campaign will seek to disrupt any and all aspects of a business enterprise to pressure Management to give in to Union demands . Unions engaging in a Corporate Campaign will seek to disrupt any and all aspects of a business enterprise to pressure Management to give in to Union demands .

8. What are the Goals of a Corporate Campaign? A corporate campaign is a broad based, long lasting, multi-faceted, simultaneously implemented attack on an employer with the following objectives: Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 8 Special emphasis should be given to the terms �broad based,� and �long lasting�. Corporate campaigns can last for years, and the areas of attack can seem quite tangential to the actual goals the Union seeks to achieve.Special emphasis should be given to the terms �broad based,� and �long lasting�. Corporate campaigns can last for years, and the areas of attack can seem quite tangential to the actual goals the Union seeks to achieve.

9. How do Unions Pick a Target? Survey the Target � Determine Critical Stakeholder Relationships Research Vulnerabilities Make Financial/Resource Commitment Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 9 Unions use in-house staff, activist volunteers and paid consultants to conduct sophisticated research on targets. Use of the internet has greatly expanded the nature and scope of information about an enterprise�s activities available to union organizers. This has expanded the potential avenues of attack. Unions use in-house staff, activist volunteers and paid consultants to conduct sophisticated research on targets. Use of the internet has greatly expanded the nature and scope of information about an enterprise�s activities available to union organizers. This has expanded the potential avenues of attack.

10. Relationship Vulnerabilities Jarol B. Manheim, �Trends in Corporate Campaigns� Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 10 This diagram shows the many stakeholders unions seek to pressure as part of a Corporate Campaign. Vulnerabilities either in the relationship, or in the stakeholder itself can be exploited by the union.This diagram shows the many stakeholders unions seek to pressure as part of a Corporate Campaign. Vulnerabilities either in the relationship, or in the stakeholder itself can be exploited by the union.

11. Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 11 Factors Unions Assess in Targeting Employers Size of the Employer Location Type of Business �Domino� Effect �Neutral� Employer �Noncompetitive� Employer Type of Management Team Type of Employee Complement Size of the Employer The larger the employee complement, the higher a union organizer will rate the employer as a potential candidate for its next organizational effort. More employees = more union dues. This does not mean that unions are neglecting smaller companies, even very small companies. Actually, according to NLRB data, the contrary is true. One reason for this trend away from seeking to organize large companies is that a majority of large companies have either already been organized or attempts have been made to organize them and failed. Consequently, unions are left with the small to medium size employers who they have ignored for many years. ***EXAMPLE: The Teamsters recently organized the 6 person maintenance unit of the Pittsburgh YWCA. Location Higher rating by the union if the business is in an area that is highly unionized. The states and territory with heavier union activity include: Middle Atlantic: New York, New Jersey, Pennsylvania East North Central: Ohio, Indiana, Illinois, Michigan, Wisconsin Pacific: Washington, Oregon, California, Alaska, Hawaii, Guam Type of Business Is this type of business generally organized? If an employer is a manufacturing company, it is statistically more likely to experience an organizing campaign than if its operation is not manufacturing. �Domino� Effect Once one facility or department is unionized, it is easier for the union to spread. �Neutral� Employer An employer that is perceived by the union as one that will not aggressively oppose unionization �Noncompetitive� Employer Employers that are known to be substandard in their wages, fringe benefits, policies, etc. Type of Management Team Unresponsive, Inaccessible and have Negative Management Styles Type of Employee Complement If a substantial percentage of the employees is inclined toward union sympathy and is characteristically responsive toward union propaganda, union officials will prioritize that employer as a most viable target.Size of the Employer The larger the employee complement, the higher a union organizer will rate the employer as a potential candidate for its next organizational effort. More employees = more union dues. This does not mean that unions are neglecting smaller companies, even very small companies. Actually, according to NLRB data, the contrary is true. One reason for this trend away from seeking to organize large companies is that a majority of large companies have either already been organized or attempts have been made to organize them and failed. Consequently, unions are left with the small to medium size employers who they have ignored for many years. ***EXAMPLE: The Teamsters recently organized the 6 person maintenance unit of the Pittsburgh YWCA. Location Higher rating by the union if the business is in an area that is highly unionized. The states and territory with heavier union activity include: Middle Atlantic: New York, New Jersey, Pennsylvania East North Central: Ohio, Indiana, Illinois, Michigan, Wisconsin Pacific: Washington, Oregon, California, Alaska, Hawaii, Guam Type of Business Is this type of business generally organized? If an employer is a manufacturing company, it is statistically more likely to experience an organizing campaign than if its operation is not manufacturing. �Domino� Effect Once one facility or department is unionized, it is easier for the union to spread. �Neutral� Employer An employer that is perceived by the union as one that will not aggressively oppose unionization �Noncompetitive� Employer Employers that are known to be substandard in their wages, fringe benefits, policies, etc. Type of Management Team Unresponsive, Inaccessible and have Negative Management Styles Type of Employee Complement If a substantial percentage of the employees is inclined toward union sympathy and is characteristically responsive toward union propaganda, union officials will prioritize that employer as a most viable target.

12. Attacking Vulnerabilities Drive a wedge between the employer and its employees Drive a wedge between the employer and its customers, Drive a wedge between the employer and its shareholders, directors and lenders. Form coalitions with local community leaders, religious groups, and politicians. Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 12 The first tactic is classic traditional labor organizing. Any employee dissatisfaction with working conditions will be used to foment discontent. The next tactics are typical of a corporate campaign. Unions might begin by calling into question the quality of a product or service. For example, in an organizing campaign against CVS Caremark, Change to Win, a coalition of unions formed an alliance with consumer groups to bring and publicize consumer protection claims of overcharging at the register by CVS. This campaign of disparagement began when CVS refused to waive its employees� rights to secret ballot elections. In a campaign to organize a hospital�s laundry supplier, UNITE HERE mailed 11,000 cards to women of child-bearing age falsely claiming that the hospital did not ensure that its bed linens were free of �bood, feces, and harmful pathogens.�, Unions have targeted board meetings not only of the target company but of its lenders and directors, raising issues both related to the target and otherwise. For example, a Director holding an executive position with another company might be challenged on his/her compensation. Recently, an affiliate of Change to Win accused Smithfield Foods general counsel of not being licensed to practice law in the corporatio�ns home state of Virginia. The union coalition intends to att�nd the shareholders� meeting to raise the issue as a reflection on the diligence and competence of management. Coalitions with local �community activists � are used to create distracting side issues concerning matters ranging from zoning permits to tax asssessments. The first tactic is classic traditional labor organizing. Any employee dissatisfaction with working conditions will be used to foment discontent. The next tactics are typical of a corporate campaign. Unions might begin by calling into question the quality of a product or service. For example, in an organizing campaign against CVS Caremark, Change to Win, a coalition of unions formed an alliance with consumer groups to bring and publicize consumer protection claims of overcharging at the register by CVS. This campaign of disparagement began when CVS refused to waive its employees� rights to secret ballot elections. In a campaign to organize a hospital�s laundry supplier, UNITE HERE mailed 11,000 cards to women of child-bearing age falsely claiming that the hospital did not ensure that its bed linens were free of �bood, feces, and harmful pathogens.�, Unions have targeted board meetings not only of the target company but of its lenders and directors, raising issues both related to the target and otherwise. For example, a Director holding an executive position with another company might be challenged on his/her compensation. Recently, an affiliate of Change to Win accused Smithfield Foods general counsel of not being licensed to practice law in the corporatio�ns home state of Virginia. The union coalition intends to att�nd the shareholders� meeting to raise the issue as a reflection on the diligence and competence of management. Coalitions with local �community activists � are used to create distracting side issues concerning matters ranging from zoning permits to tax asssessments.

13. Common PR Themes Corporate greed Consumer rights/product quality and safety Worker dignity Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 13 Unions employ sophisticated public relations techniques to create community disdain for the target employer. Themes are carefully selected to maximize sympathy for the union and its allies, while creating a narrative of exploitation/victimization for the corporation vs. the employees and community. Unions employ sophisticated public relations techniques to create community disdain for the target employer. Themes are carefully selected to maximize sympathy for the union and its allies, while creating a narrative of exploitation/victimization for the corporation vs. the employees and community.

14. Campaign Tactics �White papers� Boycotts Pressure on Customers Harassment of Executives Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 14 Unions will prepare �White Papers� on a variety of these themes. These documents appear to be well-researched objective studies, but generally consist of half-truths, outdated and irrelevant �facts� and inflammatory statements. Although consumer boycotts have lost much of their appeal (as the employees found that loss of business meant loss of jobs) many unions still maintain boycott lists on their websites. Executive harassment can involve protest marches and prayer vigils in front of their residences, interruptions of private social gatherings, and disruptions of shareholder meetings. Unions will prepare �White Papers� on a variety of these themes. These documents appear to be well-researched objective studies, but generally consist of half-truths, outdated and irrelevant �facts� and inflammatory statements. Although consumer boycotts have lost much of their appeal (as the employees found that loss of business meant loss of jobs) many unions still maintain boycott lists on their websites. Executive harassment can involve protest marches and prayer vigils in front of their residences, interruptions of private social gatherings, and disruptions of shareholder meetings.

15. Campaign Tactics, cont. Media and journalists Bureaucratic Process Lawsuits and Administrative Charges International coalitions Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 15 Unions have long experience is using the media to carry their message. Press conferences, white papers, advertisements, and friendly relationships with local writers and editors to �grease the wheels� of the union media campaign. As noted above, utilizing state and local regulatory agencies by bringing harassing complaints is another technique utilized in corporate campaigns. Complaints on topics as diverse as employment discrimination, product safety, zoning ordinances, SEC compliance, overtime pay, FTC complaints and anti-trust actions have been brought by union organizers and their allies as part of a corporate campaign. Targets with an international presence and/or management will frequently see coordinated responses by unions in other countries. Unions have long experience is using the media to carry their message. Press conferences, white papers, advertisements, and friendly relationships with local writers and editors to �grease the wheels� of the union media campaign. As noted above, utilizing state and local regulatory agencies by bringing harassing complaints is another technique utilized in corporate campaigns. Complaints on topics as diverse as employment discrimination, product safety, zoning ordinances, SEC compliance, overtime pay, FTC complaints and anti-trust actions have been brought by union organizers and their allies as part of a corporate campaign. Targets with an international presence and/or management will frequently see coordinated responses by unions in other countries.

16. Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 16 Implementing a Union Avoidance Program Create a �task force� Monitor union susceptibility Ensure high levels of employee morale Build strong relationships with stakeholders Draft & implement a plan that sets forth what should be done in the event of a union campaign In order to avoid becoming a target of a corporate campaign, or to resist one if it is brought, an employer should create a Corporate Campaign Task Force or Crisis Committee. The following three individuals should be included on the �task force�: Employer�s attorney � use them before trouble strikes, not just afterward. Human Resources Director Main Administrator of the Facility. -- Jackson, Gordon E., When Labor Trouble Strikes: An Action Handbook, Prentice-Hall, Inc. (1981). EMPLOYEE MORALE Many employers have sought to enhance employees� jobs through enhancement programs. WORKER INVOLVEMENT PROGRAMS. Employees offer suggestions on the structure of their work, specifically, and how the company can operate more efficiently, in general. These programs include, for instance, suggestion systems or quality control circles. JOB ENRICHMENT PROGRAMS. These types of programs seek to improve the daily tasks of a job itself by making the job more interesting. FLEX-TIME HOURS. Employers have incorporated a number of different types of these programs to accommodate their employees, including part-time employment, four-day work weeks, and core hours of employment. RECOGNITION OF ACHIEVEMENT. Reward an employee for either seniority or performance. Such recognition need not be only of a monetary nature. A pin or plaque is a common method of rewarding these types of achievements. Regardless of the type of recognition provided the particular employee, it is important that this recognition be communicated to other employees. In order to avoid becoming a target of a corporate campaign, or to resist one if it is brought, an employer should create a Corporate Campaign Task Force or Crisis Committee. The following three individuals should be included on the �task force�: Employer�s attorney � use them before trouble strikes, not just afterward. Human Resources Director Main Administrator of the Facility. -- Jackson, Gordon E., When Labor Trouble Strikes: An Action Handbook, Prentice-Hall, Inc. (1981). EMPLOYEE MORALE Many employers have sought to enhance employees� jobs through enhancement programs. WORKER INVOLVEMENT PROGRAMS. Employees offer suggestions on the structure of their work, specifically, and how the company can operate more efficiently, in general. These programs include, for instance, suggestion systems or quality control circles. JOB ENRICHMENT PROGRAMS. These types of programs seek to improve the daily tasks of a job itself by making the job more interesting. FLEX-TIME HOURS. Employers have incorporated a number of different types of these programs to accommodate their employees, including part-time employment, four-day work weeks, and core hours of employment. RECOGNITION OF ACHIEVEMENT. Reward an employee for either seniority or performance. Such recognition need not be only of a monetary nature. A pin or plaque is a common method of rewarding these types of achievements. Regardless of the type of recognition provided the particular employee, it is important that this recognition be communicated to other employees.

17. Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 17 Monitor Union Susceptibility Employee Opinion/Attitude Surveys Exit Interviews Union Vulnerability Audits May also want to look at attendance records, disciplinary actions, production efficiency records and safety records.May also want to look at attendance records, disciplinary actions, production efficiency records and safety records.

18. Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 18 Implement Union-Free Objectives and Policies Union-free objective should be manifested in the form of a policy The policy should be communicated to all levels of employees within the organization Information about the advantages of a union-free workplace should be presented in a low-profile manner. One occasion that is good to discuss this information is at the initial hire of the employee. -- Jackson, Gordon E., When Labor Trouble Strikes: An Action Handbook, Prentice-Hall, Inc. (1981). Information about the advantages of a union-free workplace should be presented in a low-profile manner. One occasion that is good to discuss this information is at the initial hire of the employee. -- Jackson, Gordon E., When Labor Trouble Strikes: An Action Handbook, Prentice-Hall, Inc. (1981).

19. Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 19 Introduce Communication Programs Establish as many channels of communication between management and employees as possible. Examples Staff Meetings (large or small groups) Newsletters/Bulletin boards Complaint Box Employee Opinion Surveys Exit Interviews Suggestion box with a monetary award established for the best suggestion of the month Employees want to be informed. Employees want to be involved. Employees want to participate. Employees want to be appreciated. Employees want to be recognized. Employees want to �belong.� -- Jackson, Gordon E., When Labor Trouble Strikes: An Action Handbook, Prentice-Hall, Inc. (1981). All communication begins with front-line supervisors. To employees, they are the company. Consequently, an employer should make sure that these supervisors are listening to employee complaints and transmitting the employer�s position in a timely and representative fashion. Employers should use its communications network to make certain that its employees are aware of the cost of its benefits package and of how they can get the most value from their benefits. Employers should also utilize this forum to clarify and explain current personnel procedures and future changes in those procedures. In addition, though, the employer can use its communication programs to enhance the employees� loyalty to the company by making them feel as though they are part of an extended company �family.� This goal can best be achieved by discussing topics such as: Company news and future business prospects; Personal news; Employee awards for special achievements on the job; Changes in other company rules; Promotional and training opportunities.Employees want to be informed. Employees want to be involved. Employees want to participate. Employees want to be appreciated. Employees want to be recognized. Employees want to �belong.� -- Jackson, Gordon E., When Labor Trouble Strikes: An Action Handbook, Prentice-Hall, Inc. (1981). All communication begins with front-line supervisors. To employees, they are the company. Consequently, an employer should make sure that these supervisors are listening to employee complaints and transmitting the employer�s position in a timely and representative fashion. Employers should use its communications network to make certain that its employees are aware of the cost of its benefits package and of how they can get the most value from their benefits. Employers should also utilize this forum to clarify and explain current personnel procedures and future changes in those procedures. In addition, though, the employer can use its communication programs to enhance the employees� loyalty to the company by making them feel as though they are part of an extended company �family.� This goal can best be achieved by discussing topics such as: Company news and future business prospects; Personal news; Employee awards for special achievements on the job; Changes in other company rules; Promotional and training opportunities.

20. Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 20 Address Employee Concerns Overtime Safety �Unfair� Standards Seniority Job Security Fringe Benefits Unions frequently capitalize upon �pet peeves� which an employer may feel are worthy of little, if any attention. Employers should recognize that these are common employee concerns. -- Jackson, Gordon E., When Labor Trouble Strikes: An Action Handbook, Prentice-Hall, Inc. (1981). Some of these concerns may be addressed through a written employee manual. Such a manual would set out the basic employer-employee relationship including a progressive disciplinary procedure, hours of work, grievance procedure, wage rates, employee benefits, and other company rules. The positive impact of a manual will be diminished, however, unless it is implemented fairly and impartially. This means that management cannot be satisfied with merely writing the manual. All supervisory personnel must be trained and must understand how the manual�s rules will be applied in the plant. CREATIVE FRINGE BENEFITS Food Services, such as vending machines or cafeterias; Recreational and social activities, including company-sponsored sports teams and annual family gatherings; Child care services; Pre-paid legal services. Unions frequently capitalize upon �pet peeves� which an employer may feel are worthy of little, if any attention. Employers should recognize that these are common employee concerns. -- Jackson, Gordon E., When Labor Trouble Strikes: An Action Handbook, Prentice-Hall, Inc. (1981). Some of these concerns may be addressed through a written employee manual. Such a manual would set out the basic employer-employee relationship including a progressive disciplinary procedure, hours of work, grievance procedure, wage rates, employee benefits, and other company rules. The positive impact of a manual will be diminished, however, unless it is implemented fairly and impartially. This means that management cannot be satisfied with merely writing the manual. All supervisory personnel must be trained and must understand how the manual�s rules will be applied in the plant. CREATIVE FRINGE BENEFITS Food Services, such as vending machines or cafeterias; Recreational and social activities, including company-sponsored sports teams and annual family gatherings; Child care services; Pre-paid legal services.

21. Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 21 Opinion/Attitude Surveys Tailored to individual employees (consider the nature of the work, location involved and the employee �mix�) Conducted in a way to preserve the anonymity of the individual employee Employer should respond directly to employees as to the results of the survey. Correct the problems or explain why corrections cannot be feasibly accomplished Surveys should be given on a periodic basis so that comparisons of employee morale (and union susceptibility) can be measured Surveys that reflect more than a 25% negative response suggest the employer is in a most precarious position in relation to potential union intrusion. Conversely, when positive responses are above the 90th percentile, the union-free employer can breathe more easily. Surveys should be customized to the individual employer. DON�T ASK QUESTIONS TO WHICH YOU DON�T WANT ANSWERS. If you do, you may create expectations of change. When the change does not come about, employees will tend to discredit the entire survey process. HANDOUT: SAMPLE ATTITUDE SURVEYSurveys that reflect more than a 25% negative response suggest the employer is in a most precarious position in relation to potential union intrusion. Conversely, when positive responses are above the 90th percentile, the union-free employer can breathe more easily. Surveys should be customized to the individual employer. DON�T ASK QUESTIONS TO WHICH YOU DON�T WANT ANSWERS. If you do, you may create expectations of change. When the change does not come about, employees will tend to discredit the entire survey process. HANDOUT: SAMPLE ATTITUDE SURVEY

22. Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 22 Exit Interviews Have the departing employee complete a written form and meet with a company official The personal inquiry should be conducted by someone other than the departing employee�s immediate supervisor The management member conducting the interview should handle the information given in a most confidential manner and assure the departing employee that it will be so treated

23. Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 23 Create a Union-Free Management �Unions are a substitute for poor management� Most employees who cast their votes for union representation do not vote �for� the union, they vote �against� management Most employees who support and campaign for unions do so out of resentment toward Some person (or persons) in management Some thing in management -- Jackson, Gordon E., When Labor Trouble Strikes: An Action Handbook, Prentice-Hall, Inc. (1981). -- Jackson, Gordon E., When Labor Trouble Strikes: An Action Handbook, Prentice-Hall, Inc. (1981).

24. Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 24 Create Union-Free Management (continued) Selection Leadership qualities vs. skill Education and training Eliminate problems internally so that employees have no reason to take their problems outside Termination Management styles What to do: Eliminate �poor� and deficient supervisors and managers who create a strong resentment from employees under their direction. Three ways to eliminate poor management: 1. Selection 2. Education and training 3. Termination Selection of Management: Leadership qualities vs. Skill Promotion of individuals into supervisory positions based solely upon such factors as skill, technical or clinical abilities (and seniority), as contrasted to leadership qualities, is rarely in the employer�s best interest. If you are going to hire management from within your company, you should: 1. Monitor and assess the leadership qualities of rank and file employees on a continuing basis. 2. Draw from the source of rank and file leadership in filling supervisory vacancies, whenever possible. 3. Monitor and control the residual rank and file leadership so such employees will strongly identify with management�s ideals and objectives. Educate management on how to deal with employee problems Eliminate problems internally 3 ways to eliminate problems internally: 1. The entire management team (from the top administrative official to the line supervisor) must be accessible and visible to rank and file employees. This creates an environment in which employees will bring their complaints and frustrations to the attention of management. 2. The management employee must attempt to correct the problem or complaint to the employee�s satisfaction. 3. If the complaint/problem cannot be resolved to the employee�s satisfaction, explain the reason why. Termination If the �problem� supervisor or manager is unable or unwilling to change his management style, then termination of employment is the only permanent solution. HANDOUT: SEVEN TYPES OF MANAGEMENT STYLES THAT GENERALLY CAUSE UNIONIZATION What to do: Eliminate �poor� and deficient supervisors and managers who create a strong resentment from employees under their direction. Three ways to eliminate poor management: 1. Selection 2. Education and training 3. Termination Selection of Management: Leadership qualities vs. Skill Promotion of individuals into supervisory positions based solely upon such factors as skill, technical or clinical abilities (and seniority), as contrasted to leadership qualities, is rarely in the employer�s best interest. If you are going to hire management from within your company, you should: 1. Monitor and assess the leadership qualities of rank and file employees on a continuing basis. 2. Draw from the source of rank and file leadership in filling supervisory vacancies, whenever possible. 3. Monitor and control the residual rank and file leadership so such employees will strongly identify with management�s ideals and objectives. Educate management on how to deal with employee problems Eliminate problems internally 3 ways to eliminate problems internally: 1. The entire management team (from the top administrative official to the line supervisor) must be accessible and visible to rank and file employees. This creates an environment in which employees will bring their complaints and frustrations to the attention of management. 2. The management employee must attempt to correct the problem or complaint to the employee�s satisfaction. 3. If the complaint/problem cannot be resolved to the employee�s satisfaction, explain the reason why. Termination If the �problem� supervisor or manager is unable or unwilling to change his management style, then termination of employment is the only permanent solution. HANDOUT: SEVEN TYPES OF MANAGEMENT STYLES THAT GENERALLY CAUSE UNIONIZATION

25. Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 25 Select Union-Free Employees Consensus interviewing Diversity Cannot refuse to hire because of an applicant�s union or anti-union sentiments Consensus interviewing Have several key individuals within management interview and review pre-screened applicants and compare notes as to their collective impressions and recommendations. -- Jackson, Gordon E., When Labor Trouble Strikes: An Action Handbook, Prentice-Hall, Inc. (1981). Diversity Aim to mix and balance the work force with a cross-section of employees so that employee cliques and groups are dissuaded. Unions attempt to capitalize on blocks of support such as employees in �age groups,� �community groups,� �family/relative groups,� �minority groups,� etc. When the employees from a variety of backgrounds that do not align themselves into special groups or cliques, the odds are in the employer�s favor that a union will not be able to induce blocks of support. -- Jackson, Gordon E., When Labor Trouble Strikes: An Action Handbook, Prentice-Hall, Inc. (1981). Union sentiments The NLRB prohibits an employer to refuse to hire an applicant because of his union or anti-union sentiment. The law, however, does not preclude an employer from selecting the most positive, dedicated and self-esteemed applicant available in the job market. Likewise, it does not require an employer to hire the defiant, obtrusive, disenchanted or similarly negative type of applicant. -- Jackson, Gordon E., When Labor Trouble Strikes: An Action Handbook, Prentice-Hall, Inc. (1981). There are certain types of employees that unions are able to exploit and attract into their cause. These types of employees become easy prey for outside union organizers not as a result of previously expressed union sentiment, but, rather, as a result of latent behavioral characteristics. The following types of employees are the ones most typically exploited by union representatives/organizers: The �Marginal� Employee. He will be exploited by a union because of the union�s so-called �job security.� The �Rebellious, Defiant� Employee. He will normally be entrapped into the union�s cause as a result of intense anti-management sentiments. The �Permanently Disenchanted� Employee. He is inclined to become infatuated with a union�s ideals in response to the organizer�s claim/inference that it will bid the employee�s calling and correct the perceived failings of management to the employee�s satisfaction. The �Bleeding-Heart� Employee. He is receptive to a union invitation because of the union�s traditional appeal to employees who respond to some type of �cause.� The �World-Owes-Me-A-Living� Employee. He is quite at home in the union�s camp. He simply absorbs every ounce of the union�s sales pitch and genuinely believes that the union will protect him from �cradle to grave.� The �Arrogantly Independent� Employee. He doesn�t need or appreciate his job. As a result, he is easily attracted to the union�s side because he does not fear the instability of a potential strike or other work interruption. The �Status-Conscious� Employee. He leans toward the union to massage his ego and to ventilate his frustration of having been placed in a position below his perceived standing in life. Within the framework of the law, employers should screen out these types of employees and keep their numbers to a minimum within their employee complements. -- Jackson, Gordon E., When Labor Trouble Strikes: An Action Handbook, Prentice-Hall, Inc. (1981). Consensus interviewing Have several key individuals within management interview and review pre-screened applicants and compare notes as to their collective impressions and recommendations. -- Jackson, Gordon E., When Labor Trouble Strikes: An Action Handbook, Prentice-Hall, Inc. (1981). Diversity Aim to mix and balance the work force with a cross-section of employees so that employee cliques and groups are dissuaded. Unions attempt to capitalize on blocks of support such as employees in �age groups,� �community groups,� �family/relative groups,� �minority groups,� etc. When the employees from a variety of backgrounds that do not align themselves into special groups or cliques, the odds are in the employer�s favor that a union will not be able to induce blocks of support. -- Jackson, Gordon E., When Labor Trouble Strikes: An Action Handbook, Prentice-Hall, Inc. (1981). Union sentiments The NLRB prohibits an employer to refuse to hire an applicant because of his union or anti-union sentiment. The law, however, does not preclude an employer from selecting the most positive, dedicated and self-esteemed applicant available in the job market. Likewise, it does not require an employer to hire the defiant, obtrusive, disenchanted or similarly negative type of applicant. -- Jackson, Gordon E., When Labor Trouble Strikes: An Action Handbook, Prentice-Hall, Inc. (1981). There are certain types of employees that unions are able to exploit and attract into their cause. These types of employees become easy prey for outside union organizers not as a result of previously expressed union sentiment, but, rather, as a result of latent behavioral characteristics. The following types of employees are the ones most typically exploited by union representatives/organizers: The �Marginal� Employee. He will be exploited by a union because of the union�s so-called �job security.� The �Rebellious, Defiant� Employee. He will normally be entrapped into the union�s cause as a result of intense anti-management sentiments. The �Permanently Disenchanted� Employee. He is inclined to become infatuated with a union�s ideals in response to the organizer�s claim/inference that it will bid the employee�s calling and correct the perceived failings of management to the employee�s satisfaction. The �Bleeding-Heart� Employee. He is receptive to a union invitation because of the union�s traditional appeal to employees who respond to some type of �cause.� The �World-Owes-Me-A-Living� Employee. He is quite at home in the union�s camp. He simply absorbs every ounce of the union�s sales pitch and genuinely believes that the union will protect him from �cradle to grave.� The �Arrogantly Independent� Employee. He doesn�t need or appreciate his job. As a result, he is easily attracted to the union�s side because he does not fear the instability of a potential strike or other work interruption. The �Status-Conscious� Employee. He leans toward the union to massage his ego and to ventilate his frustration of having been placed in a position below his perceived standing in life. Within the framework of the law, employers should screen out these types of employees and keep their numbers to a minimum within their employee complements. -- Jackson, Gordon E., When Labor Trouble Strikes: An Action Handbook, Prentice-Hall, Inc. (1981).

26. Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 26 Policies to Thwart Union Intrusion No Solicitation/No Distribution Rule No Access Policy for Non-Employees No Access Policy for Off-Shift Employees Limitations on Bulletin Board Postings Restrictions on the Utilization of Employer Telephone and Email Systems BE CAUTIOUS WITH THE TIMING OF ANY NEW POLICY!!! -- Jackson, Gordon E., When Labor Trouble Strikes: An Action Handbook, Prentice-Hall, Inc. (1981). BE CAUTIOUS WITH THE TIMING OF ANY NEW POLICY!!! -- Jackson, Gordon E., When Labor Trouble Strikes: An Action Handbook, Prentice-Hall, Inc. (1981).

27. Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 27 Preclude Abuse of the Employer�s Telephone/Email Systems An employer that freely permits its employees to use its own telephone and email systems for personal calls/emails will be prevented from halting such practice during a union organizing drive Implement and enforce a policy forbidding personal telephone calls and emails If an employer allows employees to use its communications equipment for non-work related purposes, it may not validly prohibit employee use of communications equipment for Section 7 purposes. Fleming Companies, Inc., 336 NLRB No. 15 (2001); The Guard Publishing Co., 2002 NLRB LEXIS 70 (2002)If an employer allows employees to use its communications equipment for non-work related purposes, it may not validly prohibit employee use of communications equipment for Section 7 purposes. Fleming Companies, Inc., 336 NLRB No. 15 (2001); The Guard Publishing Co., 2002 NLRB LEXIS 70 (2002)

28. Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 28 Should the Employer Respond to a Union Drive? Decide when to respond to union propaganda The employer runs the risk of provoking the situation further by responding to a union�s �covert� campaign that has failed to create any substantial employee support Respond when the union begins to gain any noticeable momentum Typical signs that an anticard campaign should be undertaken are meetings called by the union at local establishments, distribution of handbills and leaflets, the presence of pro-union talk among employees, etc. How Management Wins Union Organizing Campaigns, Alfred T. DeMaria, Executive Enterprises Publications Co., Inc., NY, NY, 1980.Typical signs that an anticard campaign should be undertaken are meetings called by the union at local establishments, distribution of handbills and leaflets, the presence of pro-union talk among employees, etc. How Management Wins Union Organizing Campaigns, Alfred T. DeMaria, Executive Enterprises Publications Co., Inc., NY, NY, 1980.

29. Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 29 Ways to Undermine the Union�s Game Plan Speeches Letters Pamphlets Posters Speeches A speech to all employees stressing various negative factors during the early stages of the card-signing phase might be helpful and effective. Letters A letter to employees� homes advancing specific questions for the employee�s consideration prior to signing a union card. Pamphlets A pamphlet or some similar publication that stresses negative consequences of union cards. Posters A poster might emphasize the limitations of a union by setting forth these facts: A union does not pay employee wages and fringe benefits A union does not provide the employee with a job A union does not sell the employer�s products or services, A union does not pay for insurance or pensions A union is not going to run the facility. HANDOUTS: SAMPLE BULLETIN: QUESTIONS AND ANSWERS ABOUT THE UNION QUESTIONS FOR EMPLOYEES TO ASK THE UNION WRITTEN GUARANTEE Speeches A speech to all employees stressing various negative factors during the early stages of the card-signing phase might be helpful and effective. Letters A letter to employees� homes advancing specific questions for the employee�s consideration prior to signing a union card. Pamphlets A pamphlet or some similar publication that stresses negative consequences of union cards. Posters A poster might emphasize the limitations of a union by setting forth these facts: A union does not pay employee wages and fringe benefits A union does not provide the employee with a job A union does not sell the employer�s products or services, A union does not pay for insurance or pensions A union is not going to run the facility. HANDOUTS: SAMPLE BULLETIN: QUESTIONS AND ANSWERS ABOUT THE UNION QUESTIONS FOR EMPLOYEES TO ASK THE UNION WRITTEN GUARANTEE

30. Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 30 Knowledge of the Enemy What is the official name of the organizing union? Subdivisions? Parents? District Councils? Check the officers� backgrounds, including the possibility of convictions, arrests, and indictments for crimes and violations of the federal labor laws Financial Status Bylaws and Constitution History of Organizing Activities What is the official name of the organizing union? Subdivisions? Parents? District Councils? While negative attacks on a union running a corporate campaign should be used sparingly,, careful use of truthful information in the public relations arena can put a union on the defensive. Check the officers� backgrounds, including the possibility of convictions, arrests, and indictments for crimes and violations of the federal labor laws. Financial Status. Assets, organizational expenses, officer�s salaries, strike funds, amounts collected in fines and assessments, the amount of dues charged, initiation fees, etc. Bylaws and Constitution. Provide helpful information about union policies that can be used by the employer during the initial stages of the campaign. Reveals union methods of increasing dues, special assessments, procedures by which charges are filed against union members, and the mechanics of union trials, including whether or not the right to counsel is afforded to the employee. Copies of the relevant sections of the constitution and bylaws can be enlarged and displayed on bulletin boards or used as attachments to letters and other campaign material. Examples of information: One international constitution authorizes the doubling of doubling of dues during the four months preceding negotiations for a renewal contract. Provisions on union philosophy regarding overtime and merit or incentive systems. History of Strikes. Do not limit yourself to strikes conducted by the particular union, but refer to strikes conducted by the parent in any part of the country. What is the official name of the organizing union? Subdivisions? Parents? District Councils? While negative attacks on a union running a corporate campaign should be used sparingly,, careful use of truthful information in the public relations arena can put a union on the defensive. Check the officers� backgrounds, including the possibility of convictions, arrests, and indictments for crimes and violations of the federal labor laws. Financial Status. Assets, organizational expenses, officer�s salaries, strike funds, amounts collected in fines and assessments, the amount of dues charged, initiation fees, etc. Bylaws and Constitution. Provide helpful information about union policies that can be used by the employer during the initial stages of the campaign. Reveals union methods of increasing dues, special assessments, procedures by which charges are filed against union members, and the mechanics of union trials, including whether or not the right to counsel is afforded to the employee. Copies of the relevant sections of the constitution and bylaws can be enlarged and displayed on bulletin boards or used as attachments to letters and other campaign material. Examples of information: One international constitution authorizes the doubling of doubling of dues during the four months preceding negotiations for a renewal contract. Provisions on union philosophy regarding overtime and merit or incentive systems. History of Strikes. Do not limit yourself to strikes conducted by the particular union, but refer to strikes conducted by the parent in any part of the country.

31. Educate the Stakeholders Activate the Corporate Campaign Task Force and engage necessary consultants. Alert the Board and Shareholders. Inform management and supervisory personnel about rights, responsibilities, and anticipated union tactics. Begin communication with employees about potential negative consequences of campaign. Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 31 Now is the time for the Crisis Team to implement its plans. Appropriate media, legal, and public relations consultants should be engaged. The Board members should be given a realistic assessment of the campaign to solicit their support and prepare them for the possibility of personal attacks by the union. Supervisors and managers should be brought on board as active members of the team. Care must be taken to fully inform them of their rights and limitations under the NLRA, and to elicit their support both at work and in the community. Employees should be alerted to the union�s �modus operandi� from prior campaigns as well as the potential consequences of such union tactics as boycotts and assaults on product quality (i.e. loss of business means loss of jobs. Now is the time for the Crisis Team to implement its plans. Appropriate media, legal, and public relations consultants should be engaged. The Board members should be given a realistic assessment of the campaign to solicit their support and prepare them for the possibility of personal attacks by the union. Supervisors and managers should be brought on board as active members of the team. Care must be taken to fully inform them of their rights and limitations under the NLRA, and to elicit their support both at work and in the community. Employees should be alerted to the union�s �modus operandi� from prior campaigns as well as the potential consequences of such union tactics as boycotts and assaults on product quality (i.e. loss of business means loss of jobs.

32. Other Legal Options Libel/Slander Trespass Anti-Trust Unfair Competition Harassment/Stalking RICO Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 32 As the campaign develops, public relations and corporate �good citizenship� might not be sufficient to battle the union�s activities. Depending upon the nature of the campaign, it might be apropriate to consider other legal actions. Traditional union organizing activities are generally covered by the NLRA, under the exclusive jurisdiction of the NLRB. However, Corporate Campaigns are intended to circumvent the traditional organizational procedure of a secret election under NLRB jurisdiction, and can exceed the bounds of activities generally considered protected under the statute. At times it is possible to bring a state or federal court action on other grounds, arising out of the activities of a union corporate campaign. These lawsuits are not easy to win, and care must be taken in assessing the facts before bringing such legal action. Since part of the union�s tactics might involve targeting a corporation�s stakeholders, third party lawsuits might be appropriate and have a greater chance of success. For example, Sutter Health System won a &17 million verdict in a libel, slander and unfair business practices lawsuit brought against UNITE HERE for the mailings asserting that its linens contained blood, feces and pathogens.. The Federal Court for the Eastern District of Pennsylvania has awarded compensatory damages of $2,500 each to plaintiff employees who claimed their privacy rights were violated when UNITE HERE illegally obtained their addresses from Pennsylvania Department of Motor Vehicles. St. Mary�s Hospital in Madison Wisconsin recently filed suit against UNITE HERE and its organizers. The lawsuit alleges that a union organizer contacted former patients and urged them not to pay their hospital bills. As in the Sutter Health case, the ultimate �target� of these tactics was the hospital�s non-union laundry service provider. Corporate campaigns involving union threats, extortion, trespass or other continuing criminal conduct can also give rise to RICO (Racketeer Influenced and Corrupt Organizations Act) claims. However, courts have shown a marked hostility to RICO lawsuits by employers in labor disputes. Courts have dismissed employer�s RICO claims against unions and union officials based on preemption by the NLRA, insufficiency of the pleadings, or �res judicata� when prior state court legal relief had been sought. The high threshold for pleading and proving a RICO case by civil plaintiffs involved in a labor dispute requires a sophisticated fact review by counsel. As the campaign develops, public relations and corporate �good citizenship� might not be sufficient to battle the union�s activities. Depending upon the nature of the campaign, it might be apropriate to consider other legal actions. Traditional union organizing activities are generally covered by the NLRA, under the exclusive jurisdiction of the NLRB. However, Corporate Campaigns are intended to circumvent the traditional organizational procedure of a secret election under NLRB jurisdiction, and can exceed the bounds of activities generally considered protected under the statute. At times it is possible to bring a state or federal court action on other grounds, arising out of the activities of a union corporate campaign. These lawsuits are not easy to win, and care must be taken in assessing the facts before bringing such legal action. Since part of the union�s tactics might involve targeting a corporation�s stakeholders, third party lawsuits might be appropriate and have a greater chance of success. For example, Sutter Health System won a &17 million verdict in a libel, slander and unfair business practices lawsuit brought against UNITE HERE for the mailings asserting that its linens contained blood, feces and pathogens.. The Federal Court for the Eastern District of Pennsylvania has awarded compensatory damages of $2,500 each to plaintiff employees who claimed their privacy rights were violated when UNITE HERE illegally obtained their addresses from Pennsylvania Department of Motor Vehicles. St. Mary�s Hospital in Madison Wisconsin recently filed suit against UNITE HERE and its organizers. The lawsuit alleges that a union organizer contacted former patients and urged them not to pay their hospital bills. As in the Sutter Health case, the ultimate �target� of these tactics was the hospital�s non-union laundry service provider. Corporate campaigns involving union threats, extortion, trespass or other continuing criminal conduct can also give rise to RICO (Racketeer Influenced and Corrupt Organizations Act) claims. However, courts have shown a marked hostility to RICO lawsuits by employers in labor disputes. Courts have dismissed employer�s RICO claims against unions and union officials based on preemption by the NLRA, insufficiency of the pleadings, or �res judicata� when prior state court legal relief had been sought. The high threshold for pleading and proving a RICO case by civil plaintiffs involved in a labor dispute requires a sophisticated fact review by counsel.

33. Legal Cautions BE & K Construction Company � Employers can bring arguably meritorious lawsuits without fearing �win, or else� liability for unfair labor practice. Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 33 Generally, a union will respond to an employer�s state or federal court lawsuit by filing an Unfair Labor Practice (�ULP�) charge with NLRB. This charge will claim that the employer�s lawsuit was an illegal attempt to retaliate against the union in violation of the NLRA, and can result in the award of costs and attorneys fees to the union. In the BE & K Construction Company case, the Supreme Court ruled that there must be a specific finding that the employer�s lawsuit was �objectively baseless� in order to assess liability under the NLRA. This ruling, subsequently adopted by the NLRB, has decreased an employer�s risk in bringing a state or federal lawsuit against a union for illegal corporate campaign activities.Generally, a union will respond to an employer�s state or federal court lawsuit by filing an Unfair Labor Practice (�ULP�) charge with NLRB. This charge will claim that the employer�s lawsuit was an illegal attempt to retaliate against the union in violation of the NLRA, and can result in the award of costs and attorneys fees to the union. In the BE & K Construction Company case, the Supreme Court ruled that there must be a specific finding that the employer�s lawsuit was �objectively baseless� in order to assess liability under the NLRA. This ruling, subsequently adopted by the NLRB, has decreased an employer�s risk in bringing a state or federal lawsuit against a union for illegal corporate campaign activities.

34. Case History SEIU v. Yale-New Haven Hospital Corporate Campaign or Siege Warfare? Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 34 See NarrativeSee Narrative

35. Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 35 Words of Wisdom The best way to defeat a union corporate campaign is to prevent one from occurring