United States: A Better Way To Do The Basics

I've been practicing labor law for over forty years and I don't think there is much about the NLRA that I have not handled, multiple times. I had thought I had seen it all, until the Obama Board came along. Within a few years thirty to fifty years of precedent and stability have gone out the window, destroying both certainty and predictability and, in some cases, defying reason. Things on which our economic system depends.

Even if an Administration that is not so aggressively pro-union occupies the White House in 2017, it will be many years before the decisions of the Obama Board will be modified and we return to a balanced interpretation of the law. But get over it. Employers need to stop whining and just deal with it.

Some employers have dealt with it by implementing Rapid Response Plans as a counter balance to the Obama Board's ambush election rules, many with our help. That's smart. With micro-units a reality, stealth organizing has become more than a possibility. It is our new normal. The importance of an effective Rapid Response Plan to combat today's union organizing cannot be over-stated.

One key component of an effective Rapid Response Plan is educating employees about what unions can and cannot do and the meaning of union authorization cards. This needs to be done before active organizing begins, if organizing by mistake is to be avoided. Employees need to know what union authorization cards are and what they can be used for before being approached by someone and told something that is not true to get their signature. While educating employees about unions is essential, it is also very difficult because employers must find ways to do the education without waking the virus that is already in the workplace, but slumbering.

Here is where two important aspects of a complete union-free program converge: the "Basics" that neutralize employee interest in third party representation and a Rapid Response Plan that equips a company to respond quickly and effectively to union organizing. Both are necessary. But, while your attention may be focused on creating and implementing a Rapid Response Plan, you cannot let the Basics languish with systems that were developed thirty to fifty years ago and no longer are up to the task.

There is a better way to do the Basics. That better way recognizes matches and neutralizes the best arguments union agents are making today by using programs calculated to produce a knee-jerk response from employees of "we don't need that; we have something better." Because these revitalized and improved programs depend heavily on supervisor and employee education and involvement, they provide multiple opportunities to educate employees with regard to unions without ever uttering the "u" word. Improving your Basics is worth doing only for the value they bring in employee productivity, cooperation and loyalty. Neutralizing the appeal of a union is a welcome and an intended by-product, but it is not the primary reason why you do it.

Better Basics integrates four programs into the fabric of the workplace to inoculate employees against the best arguments a union can make. While implementing these programs, numerous opportunities present themselves to deal naturally with the subject of unions and union authorization cards.

Here are the Better Basics:

  1. Positive Code of Conduct: rather than a litany of negative "thou shall nots," employers should have a Code of Conduct that not only complies with the Labor Board's counter-intuitive decisions, but also has embedded the employer's ideals in a way that employees can understand what is expected of them without feeling that they work in a gulag. With the promulgation of Positive Code should be training of supervisors and managers so that they know how support the positive expectations of the employer. Because it is positive, introducing the new Code is easy and employees will respond favorably while being educated about the elements and importance of meeting the employer's expectations.
  2. Non-Punitive Discipline: Many employers have adopted discipline systems developed sixty or seventy years ago in unionized facilities. The premise of these systems is simple. When an employee violates a rule, he/she is "written up" until, finally, in "a last step required before I fire you – which can't be soon enough" the employee is docked pay to teach a lesson they won't forget. Even though some employers gussy this system up by calling it something musical, like "corrective counseling," the elements are always the same because the premise is the same – if I treat you worse and worse you will get better and better. Supervisors hate the process, so they avoid using it until things are really bad, when going through the process has become a game of "discipline baseball" – touching the bases until the supervisor can score with a discharge. In the traditional system, employees overcome problems by accident, not design. Most of all, they become resentful and angry, looking for ways to get a payback. Non-Punitive Discipline is not merely the elimination of the punitive aspects of traditional discipline systems. It is a method of responding to employee failures with the goal to meet expectations and a means to develop high performers. Once more, supervisors use it and employees do not resent it. But, supervisors need to be trained to adopt and employ its principles correctly for it to work. Once they do, the results are amazing.
  3. Peer Representation: Unions sell representation to employees who do not feel comfortable talking for themselves or are caught in difficult situations, such as an investigation which may lead to discipline/discharge. While, in theory, the "Open Door" policy is good, in practice it has deficiencies. Employees often hesitate to walk through the "open door" and, sometimes, when they finally get the courage to do so, find the room empty or the person inside too busy or distracted to pay attention. As much as employers think that they and their supervisors are approachable, employees often do not feel that way. Most of all, they feel alone, especially when involved in the grievance process or an investigation that may result in their termination from employment. A Peer Representation system provides employees with the means of obtaining a trained peer who will be with them and counsel them through difficult situations that may threaten their employment. The training of the peer representatives, as a pre-condition to serving, focuses not only on what they can and cannot do as peer representatives, but also on why the employer is not afraid to give them a role in ensuring that employees receive due process. Because a Peer Representation system, if poorly drafted or structured, can violate the National Labor Relations Act, it must be created or reviewed by counsel. The training of supervisors who wish to be peer representatives and the education of employees about the system are more opportunities to educate employees about issues that are relevant to union representation.
  4. Peer Dispute Resolution: employers with the courage to give a panel consisting of a majority of employees the final and binding say on whether an employee should be terminated from workforce are rewarded with employees who feel secure and will not fall prey to a union's promise of arbitration before an outsider who may not understand the realities of your business. When a union says they will give them arbitration, employees who have access to a Peer Dispute Resolution system will likely respond "Why? Do you think we would be unfair to ourselves?" I have reviewed numerous variations of these systems and almost always find fatal flaws that keep these systems either from reaching their potential or spinning hopeless out of control. Some of the most popular versions clearly violate the law according to the Obama Board. A well designed and implemented program, however, is a terrific neutralizer of one of the strongest union arguments. Moreover, the implementation process provides an additional opportunity to educate employees on issues typically involved in union organizing.

I would be happy to talk to anyone about the pros/cons/benefits/pit-falls of each of these programs if any or all interest you. They will work...when well designed and implemented. They are a better way to do the Basics so that high performance and loyalty are stimulated rather than destroyed and, as a by-product, keep you union free. By the way, Positive Codes of Conduct and Non-Punitive Discipline work well for unionized employees too.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.

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