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March 28, 1999

8 Min Read
When the union comes knocking:  Part II

There are few companies that welcome a union with open arms when one comes knocking on the door. Many molding company owners feel unions are out of touch with the real business world, that union leaders completely ignore the economics of what it takes to be profitable and use mob rule to get what they think their members deserve.

So what can a company do to ward off unionization? The best protection a company has is to perform what David Miller, a labor relations attorney with the law firm of Baker & Daniels in Indianapolis, calls “preventive labor relations” to convince employees that a union is not necessary. It involves educating employees on a daily basis that yours is a top-notch company to work for and there is nothing anyone outside the company can do to make it better.

Miller, who worked for the National Labor Relations Board (NLRB) for five years prior to going into private labor law practice in 1976, notes that 90 percent of union campaigns begin with employees going to the union and asking for help. Usually this stems from employee dissatisfaction with the employer or an immediate supervisor.

“They are unhappy about the way their management treats them or doesn’t listen to their issues,” says Miller. “Rarely does it have to do with wages and benefits.”

Management, on an ongoing basis, needs to train supervisors to treat people fairly, equally, and with respect. Miller has a program he calls “Management Listens,” which teaches management how to really listen and respond to employees’ problems and issues. If these programs are implemented, a company will never have a union, Miller promises.

The Wolf at the Door

What if the union is already knocking? There are still legal options even at this stage, says Miller.

The union will want your employees to sign cards asking for representation. When the union has signed cards from 50 to 55 percent of employees, it will call for a vote in five to six weeks. During that time, the law allows you to wage a vigorous campaign to educate your employees about why a union wouldn’t be good for them.

“As long as you don’t make any promises or threats, you can say almost anything you want,” explains Miller.

That includes telling them about other companies that have closed their doors or moved plants to other locations because of an inability to be competitive as a result of union activity. You can point out what is good about the wages and benefits they currently have and explain that wages and benefits can be reduced during contract negotiations. You can tell them that if they decide to strike you can hire other workers, orthat medical benefits can be canceled during the strike.

When employees understand the risk of lost wages and benefits weighed against what you are offering them, it is more likely they will favor management. Miller notes, “If you catch union activity early enough you can even prevent employees from signing cards at all.”

Miller advises to keep employees focused on those issues of self-interest. “If you can get through the emotion that drove them to ask for union representation in the first place, focus on the employees’ self-interest—not on the company and not on the union—and get them to understand that a union is not in their best self-interest, they will understand those issues and most likely vote the union down.”

In the manufacturing sector, unions are winning about 51 percent of their elections, which is up from about 45 percent a year ago, Miller points out. Statistics show the number of petitions (to unionize) is up about 10 percent over 1997 and 1996, which means unions are doing a better job of organizing than they used to. “They’re trying to turn around the dinosaur,” says Miller.

What if a vote is called, and the union wins? “If the union wins, the law doesn’t require a contract to be signed, only that you must bargain in good faith,” explains Miller.

The phrase “bargain in good faith” may mean signing a contract if the union is willing to agree with the company. Miller notes that roughly 50 percent of first contract negotiations result in no signed contract. In situations where the union has been in a company for a number of years, 95 percent of contract negotiations result in new contracts signed.

Avoiding “Plants”

One way unions get into a targeted company is through a “plant,” a person sent by the union in response to an advertised job opening. There are ways to legally avoid hiring an individual sent in for the sole purpose of promoting the union.

Sometimes a union plant will readily admit he or she is a “union business agent.” One company told an agent in this circumstance they would not hire him because he was already employed as a union business agent. The 6th Circuit Court in Cincinnati upheld the employer’s defense saying it is legal to refuse to hire a person for a full time job when they already have one.

In another case, the 4th Circuit Court in Richmond, VA said it is a valid rule that a company will only accept job applications filled out on an original company form. This was in response to a company’s complaint that a union representative had taken an original application and photocopied it so dozens of union people could apply for job positions with the company.


“Unions are dying,” says Miller. They’ve lost membership among workers and are down to 14 percent from 34 percent at the height of union activity. “We’ll get to a point when all that’s left is big steel, big automotive, and big utilities with union representation.”

What can a private employer do if union activity threatens to disrupt the company? “You’ve got to figure out what you need to do to keep employees focused on their self-interest,” says Miller. “Listen and respond favorably to their issues, and treat people fairly. If they understand that they’ve got something to lose, a union won’t have a chance in your company.”

Contact information
Baker & Daniels
Indianapolis, IN
David Miller
Phone: (317) 237-1316
Fax: (317) 237-1000

Vaccinating your company against unions

Here are some tips from Douglas Darch, a labor relations attorney with the law firm of Seyfarth, Shaw, Fairweather, & Geraldson of Chicago, on how to vaccinate your company against union organization.

  • Employee handbook. Darch says this is crucial to preventing union activity because unions know a good handbook is effective against them. However, unions will attack employee handbooks and try to make them less effective as an anti-union device. Darch recommends writing a very detailed, company-specific handbook rather than buying an off-the-shelf, generic employee handbook. “There’s some concern that those won’t stand up to scrutiny by the NLRB,” says Darch.

    Policies should include a no-solicitation rule, rules on who can post notices on bulletin boards, parking lots and who can be in them, rules on e-mail for personal use, rules about giving out employees’ personal addresses and phone numbers, off-shift employees and whether or not they can remain on the premises, and time off from work policies.

    “If you don’t have a good handbook and aren’t enforcing it right, then you end up with a situation with unions you could have avoided,” says Darch. “You must have the handbook in place and enforce it uniformly. This is the biggest vaccination of all.”

    Formal communications program. Implement a two-way communications procedure where employees have an internal grievance or complaint resolution procedure.Informal communications program. Use a company newsletter or notices to employees about significant events in the business, such as landing a big order, so people feel informed about what is going on in the business. “Make them feel a part of the company,” advises Darch. “Make it something more than a place to put their lunchbox from nine to five.”Employee committees. These are extremely effective in preventing union activity. However, like the handbook, these committees must be done right and the rules followed. The NLRB can strike down certain committees. Committees required by OSHA such as a safety committee pass muster. Other committees, such as those for quality, will also be recognized. Some others won’t be, so it is best to check with a labor relations attorney.Competitive wages and benefits. “You don’t have to pay the best in town, but don’t be the worst,” says Darch.Reward system. Have in place a system for rewarding employees for doing a good job and a system for removing from the workforce people who don’t perform. “They’re bad for morale,” notes Darch. “Good performers need to feel they get recognized for their hard work.”Supervisor training program. Train how to be a good supervisor, how to give instructions, how to interview, and how to talk to people. “Provide a means so they feel a part of the business and they will be effective in taking the company’s message that a union isn’t needed, should you move into a campaign situation,” he says.

There is no magic formula to preventing unwanted union activity at your plant. It is primarily hard work in advance.

“You know what they say in the military,” notes Darch. “Eternal vigilance is the price of freedom. It’s the same thing with staying union-free. You have to work at it every day.”

Darch concedes the best thing is to never have the unions knock on your door. “But, if they do, it’s best to have the employees tell them to leave.”

Contact information
Seyfarth, Shaw, Fairweather & Geraldson
Chicago, IL
Douglas Darch
Phone: (312) 269-8858
Fax: (312) 269-8869

Click here to read When the union comes knocking: Part I

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