By Michael P. Devlin and Kenneth R. Plumb
Berchem, Moses & Devlin, P.C.

This article is intended to provide general information only. It is not intended as legal advice or as a solution to an individual problem. You are encouraged to consult with appropriate legal counsel prior to relying on this document in whole or in part.

Non-union employers invariably want to remain that way, and with good reason. The hidden costs associated with unionization, in terms of rigid job classifications and loss of flexibility, can seriously harm a business, as can strikes and other labor disruptions. Unions have been down of late, but have regrouped and are staging a comeback.

Recent Labor Board appointees have been increasingly more pro-labor, and the new head of the AFL-CIO has committed millions to new organizing. Union organizing is up, and petitions to the Labor Board for representational elections are increasing.

Unions recognize that their base in the largest industries has eroded, and have rightfully targeted small and medium size companies. The influx of women into the workforce has aided organizing, and statistics prove that unions have had a large measure of recent success in elections dominated by female voters.

While many employees conduct prevention training of their workforce in areas of sexual harassment, diversity, OSHA and other employment related areas, prevention and training regarding union avoidance issues is often not considered.

Enlightened employers are, however, learning that simply being anti-union is not an effective long-term union avoidance strategy, particularly with the new, more independent employee. Instead, the company must make a union unnecessary, by eliminating employee desire or need for outside third-party representation.

In over twenty years of practicing union avoidance on a nationwide basis, working with companies ranging in size from ten to tens of thousands of employees, we have invariably found that the key to successful union avoidance lies with the lowest level of supervision.

The frontline supervisor is the employee’s direct link with the company, and the person who will have the most immediate impact on his day-to-day working life.

Accordingly, supervisors have to be trained in the positive employee relations techniques that make a union unnecessary. Also, supervisors should be trained to know what they can and can not legally say about unions.

In the absence of training, supervisors will tend to say nothing, and miss an opportunity to take a truly pro-active approach to this issue.

Many lawyers who conduct such training, furthermore, actually do a disservice by dwelling on the "don’ts" to the extent that the supervisors say nothing for fear of saying something wrong. In actuality, the "do’s," what supervisors can legally say, far outweigh the "don’ts."

It is far more important that the supervisors feel confident in expressing the company view than it is to become obsessed with a minute risk of running afoul of some obscure Labor Board ruling.

Union avoidance training must include impressing upon supervisors that "management" includes them, and that part of their responsibility is the maintenance of union-free status. We have found it relatively easy to convince supervisors of this.

Any depiction of life in a unionized company makes it clear that unionization primarily alters the everyday life of the first line supervisor, who, because of his proximity to the rank-and-file employees, now encounters the shop stewards head on.

Equipping the supervisor with the tools to make a union unnecessary means frank and open discussion by upper management of its position regarding unions.

We used to be, but are no longer amazed to find that supervisors and employees often have no idea whether or not upper management opposes unionization, and why, and what their role in the process is.

Obviously, successful union avoidance means advance preventive maintenance training of supervisors about unions, the proper way to deal with employees, and how to avoid employee relations errors that lead to unionization.

Enlightened employers now realize that "bringing up the subject" is not risky; not bringing up the subject is risky.

Preventive maintenance is always better than firefighting, and a rush training job once an organizing drive starts often suffers from a lack of credibility, as supervisors and employees note upper management’s sudden interest in them.

In addition, legally current union solicitation and literature distribution rules often have to be in place before a campaign starts, or the company is out of luck.

Therefore, a review of a company’s employees manuals and personnel policies is a critical element of prevention. Also, unions employ different organizing techniques nowadays, including extensive use of the internet, and most card signing now occurs at homes, bars, bowling alleys, on computer, etc.

The general reasons why employees join a union are not a mystery. Typical reasons include: insecurity in the job and uncertainty about job performance; favoritism; poor communications, including insufficient opportunity for personal input or resolution of individual complaints; revenge of employees who feel they have been mistreated; and, unfair, or at least perceived unfair, wages and/or benefits.

These are issues that generally can be adequately addressed before an employer receives signed union cards or a petition but they can only be addressed when management is aware of their existence. Again, this is where the training and interaction of front line supervisors is critical.

As part of any effective preventive training supervisors must also be aware of the "early warning signs" of union activity. After all, once management is approached with a batch of signed union cards or a completed petition, employers are already facing an uphill battle.

Therefore, it is critical that supervisors are sensitized to recognizing subtle signs that can indicate an incipient union drive before the word "union" is ever uttered.

Some of the early warning signs of union activity include: frequency of employee complaints or related inquiries on pay, benefits and disciplinary matters; employees forming in groups and/or visiting work areas they might not normally visit; argumentative questions being asked in meetings; exit interview information revealing that people are leaving to escape an unpleasant environment; complaints being made by a group or "delegation" of employees as opposed to just by individuals; cartoon or graffiti of a humorous or hostile nature toward the organization, management or supervision; and, strangers appearing and lingering upon or near company premises.

These are just some of the common behaviors and conduct that may indicate the beginnings of union organizing activity. The key is to have management and supervisory personnel recognize these and other related factors before any organizing drive is already underway.

Skillful union avoidance normally has other benefits besides making a union unnecessary. If training is successful, the company will have learned to truly listen to its supervisors and employees, resulting in a more satisfied workforce and the upward flow of a wealth of productive ideas.

Thus, as employers utilize counsel to provide sexual harassment or other employment related preventive training, do not forget to address issues involving union avoidance.

Such efforts will not only help to avoid a lengthy and expensive union organizing drive down the road but also may result in more immediate benefits to your organization.