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Get Organized

Get your shop in order now, or new federal rules might let a union organize it against your will.

By  Scott Sinder and Steve Wheeless

We’d like to complicate your life. We’ll do that with a little thing from Congress called the Employee Free Choice Act.

Employers currently have the luxury of some notice and an opportunity to campaign with employees before their employees make any binding choices about union representation. Those days may soon be over.

With the “card check” certification envisioned by the act, or even “quickie elections” that may be offered as a compromise, employers will have little or no notice before a union representation question is decided.

You and your firm should consider implementing proactive education and training programs for executives, supervisors and employees—now. Programs should build awareness about the dramatic labor law changes on the horizon and teach proven skills that promote open communication and harmony. The bottom line: These steps might reduce or eliminate employee interest in third party representation.

Considerimplementing workplace policies and programs that affect union-organizingefforts. But beware: They must be in place before any outside organizing begins. Employers generally are prohibited from changing the workplace status quo after a formal organizing effort has begun. Such efforts can be viewed as a form of unlawful bribery under federal law.

Competitive wages and benefits. People work because they need to eat. The primary focus of most employee-organizing efforts is the assertion that employees’ wages and benefits are not competitive. A firm that conducts regular wage and benefit surveys, budgets for competitive compensation and benefits, and adopts a competitive incentive and rewards program to recognize performance will be inoculated from any such assertion.

Third party representation philosophy statement. This is an executive team statement indicating that your firm values its relationship with its employees, believes strongly that employees can speak directly to management for themselves about themselves, and does not believe that employees need to pay their hard-earned money to third party strangers to speak for them. The policy statement should be discussed during orientation, published in the employee handbook, and posted in every break room.

Grievance solicitation/resolution policies. Another major focus of employee organizing efforts is the promise to address and favorably resolve employee grievances. Firms that already have effective policies in place both to identify potential grievances and to formally resolve them if necessary obviously are a step ahead. These should include management “rounding” policies under which members of the management team regularly solicit greivance feedback.

Open-door policy. Include a statement in your employee handbook and in every break room that encourages employees to address issues, ideas, suggestions or complaints first with their direct supervisor (or, if the direct supervisor is the problem, the next level of supervision) and then any level in the chain of command.

Employee communication committees. These types of committees can be powerful tools to create employee loyalty and provide a “voice” for employees at all levels within your firm. They can be used for a variety of purposes, including morale building, employee recognition, safety, process improvement, and issue identification.

Workplace policies on solicitation, literature distribution, email, bulletin boards, camera/video/audio recording and dress code. As the employer, your firm has the right to control its workplace and has fairly broad—though not unlimited—latitude to dictate who can be on company premises; what materials can be distributed; how the firm’s electronic communication facilities can be utilized; recording policies; appropriate attire in the workplace, etc. The failure to maintain and properly publicize these policies—assuming they are legally defensible—can expose your firm to a wide variety of activities (including organizing tactics) that could disrupt your day-to-day work.

New-employee orientation program. All new hires should get specific training that includes a discussion of the firm’s philosophy statement and policies. The program should include a Q&A session and interactive discussion along with proper follow-up by members of the firm’s management team.

Policy governing how managers communicate change. If you find it necessary to change or implement new workplace policies, be sure you have a sound, multi-step communications plan to prepare employees for the changes.

Three caveats: These suggestions are not exhaustive but a core list of some of the things you can do to create a sound working environment and to control that environment if external forces manifest themselves. You will likely be prohibited from making many of these policy changes after an organizing effort commences. Legal rules and limitations apply to many of these policies.

Work closely with your legal advisors. The times may be changing; there is no time like the present to be prepared.

Sinder, a partner at Steptoe & Johnson, is CIAB General Counsel.
Wheeless is a partner in Steptoe’s labor and employment practice.


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