Preparing for Increases in Union Activity and Sophisticated Organizing Tactics

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Preparing for Increases in Union Activity and
Sophisticated Organizing Tactics
E. Donald Ladov, Esq.John E. Lyncheski,
Esq.Joseph M. McDermott, Esq.
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THE UNION ORGANIZING PROCESSTHE LAW - WHERE IT
IS AND WHERE ITS GOING
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UNION ORGANIZING -- PROCEDURES AT THE NATIONAL
LABOR RELATIONS BOARD AND LEGAL UPDATE
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THE NLRB -- AN OVERVIEW
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Structure

• Five-Member Board in Washington
• Regional Offices
• Region Six -- Pittsburgh
• Central and Western Pennsylvania
• Northern West Virginia
• Western Maryland

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Function

• Unfair Labor Practices
• Investigation
• Prosecution
• Representation Cases
• Determine Eligibility to Vote
• Conduct Elections

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REPRESENTATION CASE PROCESSING
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Petition Form
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Contents

• Employer Information
• Description of Bargaining Unit
• Number of Employees in the Unit
• Union Information
• Showing of Interest

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Service of Documents

• Faxed Copies and Certified Mail

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• Notice of Hearing

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• Timeliness Issues
• Hearings within 7-14 days
• Elections without hearings 35-45 days

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Hearings

• Scope of Unit Issues
• Job Classifications
• Community of Interest

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• Eligibility Issues
• Supervisors
• Managers
• Professional Employees

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• Decision and Direction of Election
• 45 Days from Date of Petition
• Election 25-30 Days Later

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Stipulated Election Agreements

• Absence of Issues
• Elections within 35-45 Days of Petition
• Date, Time and Place
• Time Disadvantages

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Excelsior List

• Names and Addresses of Voters
• Submitted to NLRB
• Turned Over to Union at Least 7 Days Before
  Election

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Election

• Conducted by NLRB Agent
• At the Workplace
• Location
• Times
• Participants
• Party Principles
• Party Representatives -- Observers

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• Process
• Paper Ballots and Voting Booth
• Checking of Names
• Prohibited Electioneering
• Challenged Ballots

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• Tally of Ballots
• Resolution of Challenges
• Physical Count

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Post-Election Procedures

• Objections Process
• Filing Requirements
• Hearing and Report

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• Certification of Representative

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• Certification of Results

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RECENT CASE LAW UPDATE
Five Significant Cases
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1. M.B. Sturgis, Inc., 331 NLRB No. 1298 (2000)

• Per Diem or Temporary Employees Obtained from an
  Agency
• Inclusion within a Petitioned-For Bargaining Unit
• Concept of Joint Employer Status

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• No Further Need for Consent by Both Employers
• Employees Must Still Meet Community of Interest
  Standards
• Trumbell Memorial Hospital, 338 NLRB No. 72
  (April 3, 2003)

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2. Cardinal Home Products, Inc., 338 NLRB No.
154 (April 28, 2003)

• Promulgating and maintaining an overly-broad
  solicitation/ distribution rule -- even if not
  enforced
• Chilling effect on exercise of organizing rights

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• Promotion of five employees from temporary to
  permanent employee status
• Effort to convince them to vote against union
• Demonstrating who has the power
• From bargaining order to second election

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3. Trane, an Operating Unit of American Standard
Cos., 339 NLRB No. 106 (July 29, 2003)

• Union petitions for single unit of HVAC
  technicians
• Company argues technicians from second facility
  should be included
• Second facility 108 miles away
• Absence of interchange and geographic separation

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• Overcome by
• Central control of labor relations
• Centralized daily operations
• Lack of local autonomy
• Common supervision
• Identical skills, duties and other terms and
  conditions of employment
• Ongoing contact between technicians at both plant
  locations

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4. Mediaone of Greater Florida, Inc., 340 NLRB
No. 39 (September 19, 2003)

• No solicitation policy did not violate Act
• Nondisclosure of proprietary information,
  included employee information
• Included ban on dissemination of such information
  for personal purposes

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• Prohibited disclosure of non-public information
  outside the company
• Board found such did not prohibit discussion of
  wages, hours or other terms and conditions of
  employment
• Board agreed with ALJ that overall prohibition
  against employees entering company property
  after hours without authorization was unlawful

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5. Federated Logistics and Operations, 340 NLRB
No. 36 (September 19, 2003)

• Extraordinary remedies decision by Board
  Democratic Members Liebman and Walsh
• Numerous violations during organizing campaign,
  lost by UNITE 81-60
• Overly-broad no solicitation / no distribution
  rule
• Interrogating employees about their union views

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• Soliciting employees to engage in surveillance
• Soliciting grievances
• Promising benefits if employees vote no
• Threatening loss of wages and benefits
• Threatening relocation of operations

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• Extraordinary remedies permitted if ULPs are so
  numerous, pervasive and outrageous
• Remedies here included
• Second election be conducted
• Updated lists of employees be forwarded to union
  every 6 months

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• Notice to employees not only be posted, but read
  to employees --
• By a responsible manager
• Or by a Board Agent in presence of a responsible
  manager
• In English, Spanish and Haitian Creole

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• Board rejected following remedies
• Union special access to plant to have equal
  time to address employees
• Second election conducted away from the facility

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UNION STRATEGIES AND ORGANIZING TACTICS
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• We need to learn how to organize without the
  protection of the labor laws We need to be
  doing something different. The movement wont
  succeed in reversing its membership decline if
  the NLRB election process is the primary means of
  organizing.

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• Union success in organizing new members
  ultimately rests in extending beyond time worn
  organizing tactics and into political action and
  community relations Labor needs to increase
  political action to change the rules of the
  game.
• - John Sweeney, President of AFL-CIO

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• The components of a comprehensive union
  organizing strategy

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1. Adequate and appropriate staff and financial
resources
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• One organizer for every 100 eligible voters in
  the unit
• One woman organizer for units with 25 or more
  women
• One organizer of color for units with 25 or more
  workers of color

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2. Strategic Targeting
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• Researching the Company before the start of the
  campaign
• Organizing a company that was part of a union
  targeting plan
• The union represents other workers of the same
  employer or in the same industry

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3. Active and representative rank and file
organizing committees
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• At least 10 of the unit represented on the
  committee
• One woman if unit is 10 or more women
• One person of color if unit is 10 or more
  workers of color

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• Committee members meet with workers one-on-one in
  the workplace

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• Committee members meet with workers in two or
  more
• House meetings
• Captive audience meetings
• Community Forums

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• Committee members conduct assessments of campaign
• Assist with preparing NLRB or other legal actions
• Help organize job actions

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• LEADERS!!!

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4. Active participation of member volunteer
organizers
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• SALTS

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• Member volunteers from other organized units
  participating in
• Meetings outside the workplace
• 1 on 1 conversations in the workplace
• Leafleting outside the workplace
• Speaking at community forums

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5. Person to Person contact inside and outside
the workplace
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• Home visits
• Survey workers one on one about what they want in
  the contract
• Conduct numerous small group meetings or house
  meetings

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• E-mail and use of Web
• VCRs CDs Web movies of union
• Radio and TV Ads
• Mailings and employee newsletters, progress
  reports, etc.

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6. Benchmarks and assessments to monitor union
support and set thresholds for moving ahead with
the campaign
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• Written assessments to evaluate employee support
  for the union
• Not filing the Petition with NLRB until at least
  60 of unit signs cards or Petitions

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7. Issues which resonate in the workplace and in
the communityTHE THEME OF THE CAMPAIGN
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Justice for Janitors Campaign

• Employee Dignity

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• Fairness
• Wages
• Healthcare Insurance

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• Quality of Service
• Staffing
• Patient safety
• Mandatory overtime

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• Employee Empowerment
• Voice
• Collective Representation

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• Ability to relate to the Government as the Payor
  in certain industries

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8. Creative and escalating internal pressure
tactics on the Employer involving members of the
workplace
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• Solidarity Days
• Job Actions
• Rallies
• Marches on the Boss for recognition
• Petitions rather than cards
• Union supporters joining the employee involvement
  committees

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• Filing actions Federal, State or Local Agencies
  to test Employer compliance with laws

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9. Creative and escalating external pressure
tactics on the Employer involving members outside
the workplace, locally, nationally and/or
internationally
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• Involving one or more community groups during the
  campaign
• Corporate campaign
• Neutrality Agreements
• Local, state, federal politicians
• Local, state, federal agencies to test legal
  compliance

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• Leveraging financial backers, banks, pension
  funds, governmental funding agencies
• Leveraging customer and/or referral sources
  vulnerable to unions
• Cross border solidarity
• Involving other unions
• Using either paid or free media

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10. Building for the first contract during the
organizing campaign
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• PROMISES PROMISES
• Choosing the bargaining committee
• Involving workers to develop bargaining proposals
• Surveying at least 70 of the unit about what
  they want in the contract

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ARE YOU READY TO RESPOND TO THESE STRATEGIES
AND TACTICS???
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RECOMMENDED STRATEGIES FOR REMAINING UNION FREE
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ALL IS NOT LOST
BUT YOU MUST ACT NOW BEFORE IT IS TOO LATE
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An ounce (actually a ton) of prevention is worth
a pound of cure
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SURVEY EMPLOYEE ATTITUDES
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AUDIT VULNERABILITY
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COMMUNICATE EFFECTIVELY AND AGGRESSIVELY
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IN TIMES OF CHANGE KEEP FOCUS ON EMPLOYEESTHEY
ARE THE KEY
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SELL AND RE-SELL YOUR WORKPLACE
PROMOTE WHAT YOU HAVE AND WHAT YOU HAVE DONE
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TAKE PRECAUTIONS AGAINST HIRING BAD APPLE
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What Should You Look For in the Application
Process?

• Honesty
• Blanks
• Gaps
• Negativity
• Reasons For Leaving Job
• Qualifications
• Experience
• Issues

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Incomplete or Unsatisfactory Application
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• HIRING SHOULD BE ALL ABOUT ATTITUDE AND FIT

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YOUR PRESENT EMPLOYEES HOLD THE KEY
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To Target, Focus on Your Best! Or Worst!!!

• Name your Best
• __________________
• Why are they good?
• __________________
• __________________
• __________________
• __________________

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• DONT TAKE RISKS

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IF THERES ANY DOUBT, THERES NO DOUBT!
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PRE AND POST OFFER SCREENING
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• ORIENTATION

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• ORIENTATION

You Only Get One Chance To Make A First
Impression
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• INCULCATE BUSINESS CULTURE, MISSION AND VISION

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• COMMUNICATE STANDARDS EXPECTATIONS

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INVOLVE TOP MANAGEMENT
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EMPLOYEE HANDBOOK
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INTRODUCTORY PERIOD
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• EVALUATE
• EARLY AND OFTEN

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• DONT TAKE RISKS

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IF THERES ANY DOUBT, THERES NO DOUBT!
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Dont Tolerate Negative Behavior

• One Rotten Apple Will Spoil The Barrel

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Negativity Impacts All Staff

• Cold Shoulders
• Hostility
• Unwillingness to help
• Attitude

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Negative Attitudes Will Not Improve If Not
Addressed

• Will Eventually Lead To Misconduct, Turnover and
  Morale Issues

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Make Negativity aPerformance Issue
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• DONT BLINK AT MISCONDUCT

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• FOREWARN EARLY AND OFTEN

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WEED OUT NON-PERFORMERS
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IDENTIFY EMPLOYEE LEADERS
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HAVE VEHICLES IN PLACE FOR EMPLOYEE INPUT AND
COLLABORATION
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EMPOWER EMPLOYEES
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PASS OUT NON-PAY PAYCHECKS
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MAKE WORKING FOR YOU FUN
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ITS ALL ABOUT PERCEPTION
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IDENTIFY SUPERVISORS
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Competent Supervision

• 39 of bottom line productivity is tied to
  employee job satisfaction
• 69 of job satisfaction is based on relations
  with Supervisor
• Wilson Learning 1994

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• TRAIN YOUR SUPERVISORS

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• WARNING SIGNS OF
• UNION ACTIVITY

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IMPACT OF UNIONIZATION ON MANAGER
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UNION ORGANIZING CAMPAIGNS
UNIONS
YES
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SUPERVISORY ROLE IN CAMPAIGN
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NLRB
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DOS AND DO NOTS
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EMPLOYER FREEDOM OF SPEECH
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• EFFECTIVE COMMUNICATION

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THE IMPORTANCE OF LISTENING
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PEOPLE SKILLS
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EFFECTUATING DISCIPLINE WITH FAIRNESS, DIGNITY
AND CLASS
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• EXIT INTERVIEWS

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MANAGE TECHNOLOGY
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• E-MAIL CONTROL

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Protect Information
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• REVIEW AND UPDATE EMAIL POLICIES

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• REVIEW AND UPDATE SOLICITATION POLICIES

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LIMIT ACCESS BY OFF DUTY EMPLOYEES
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• UTILIZE OUTSIDE PROFESSIONALS

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CORPORATE CAMPAIGNS
Unions Dont Play By the Rules Any Longer
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TAKE ADVANTAGE OF CYBERSPACE
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SURVEY COMPETITOR UNION FACILITIES
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ENSURE COMPETITIVE SALARY AND BENEFITS
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GET TO KNOW YOUR POLITICIANS
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DONT BE AFRAID TO SUE UNIONS

• Overstep Bounds
• Trespass
• Patient Privacy
• Defamation
• Trust Funds

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TREAT EMPLOYEES WITHFAIRNESSDIGNITYAND CLASS
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GROUP EXERCISE
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• 1. Youre in the early stages of a Teamster
  organizing drive. Youre actively hiring for
  your organization. Two potential applicants show
  up in your human resources office wearing
  Teamster T-shirts. What do you do?

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• 2. An NLRB election has been scheduled for your
  hourly employees. A local elected politician
  asks to meet with your president and, at the
  meeting, asks for you to not speak out against
  the union and implies that governmental
  incentives/financing you have applied for may be
  at risk. How do you respond?

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• 3. A union represents some but not all of your
  hourly employees. In the negotiations for a
  renewal contract, the union insists upon a
  neutrality provision and agreement of recognition
  upon a card check if it seeks to organize other
  employees. How do you reply?

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• 4. Your local union chief steward sends an e-mail
  on your system to all employees encouraging them
  to support the union in its efforts to organize
  your remaining non-union employees. What can you
  do? He also has created a screen saver on his
  office computer screen with a pro-union message.
  Can you require him to delete it?

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• 5. Your president is holding a meeting with
  employees. During the course of the meeting, one
  of the employees disrupts the meeting and speaks
  out to complain about a recent change in working
  conditions. Can you discipline the employee?

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• 6. An NLRB election has been scheduled for
  January 15. You normally grant wage increases on
  January 1. Can you, should you, proceed with the
  increases?

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• 7. You learn that an outside union organizer has
  been meeting with your employees in your company
  lunch room during their lunch hour. How do you
  respond?

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• 8. You learn that employees are soliciting other
  employees to sign a union card on working time in
  working areas in violation of your solicitation
  policy. Are you on safe ground in disciplining
  them?

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• 9. A group of your employees is disenchanted with
  their union and approaches you for assistance in
  starting a decertification proceeding. What
  assistance can you provide?

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• 10. You are in the middle of a union organizing
  drive. You learn that one of your new employees
  is actually on the union payroll and is
  organizing from within. Can you stop him?

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QUESTIONS AND ANSWERS