All Posts by Walter Orechwa

How culturally competent is your company? If upper management loses sight of what matters to employees, especially in situations where management and employee groups include different genders, generations, backgrounds, languages, and religions, that disconnect can lead to union organizing. Your company's cultural competency plays a significant role in whether unions are able to gain a foothold with employees, using the promise of closing that cultural gap.

The Role of a Company's Cultural Competence in Union Organization

The key principles of cultural competence, as established by Ritu Bhasin, "Foundations of Inclusion and Cultural Competence" include:

1. Acknowledging and understanding cultural differences
2. Adapting behavior to connect with others in the organization
3. Awareness of your cultural biases and "blind spots"

When your organization is culturally competent, you are in tune with your employees. They have fewer complaints - and fewer reasons to believe a union organizer's promises

How Unions Use Cultural Differences

Unions understand the power of a cultural disconnect and know how to exploit those that divide the worker and management into an "us versus them" situation. Unions see that a cultural divide can easily be made into an issue that leads to new, dues-paying members.

RELATED: Creating a UnionProof Culture Requires Courageous Leadership

Effective Communication Across Employee Differences

Employees may differ with regard to age, education, profession, function, tenure, religion, sexual orientation, values, socio-economic status, hobbies/recreational interest, political affiliations, geographical origin, race, gender, language, and family status.

As an employer, you need to understand how to effectively communicate across these differences. Consider the situations that occur due to different cultural norms within the workforce.

Misunderstandings may occur due to phrases that get lost in translation. Common slang terms and the way people communicate can be quite different between generations. Innocent wording from one generation may have a completely different meaning to others.

Well-meaning management can run into common missteps in these situations, which adds to the communication challenges. Don't assume that you've raised your cultural competence by putting someone in place to "take care of it" for you. For example, if you put a new supervisor in place who speaks Farsi, that's a start for connecting with your Middle Eastern employees, but it doesn't represent a full understanding of the situation. You need a complete solution.

How Can You Overcome A Cultural Disconnect?

You have many ways to improve communication, connect with workers, better your leadership, and prevent the kind of disconnect that leads to union organizing efforts.

1. Leverage demographic information: You collect basic information on your employees during the application and onboarding process. Use this data to start getting a better understanding of your workforce.
2. Make knowing team members part of leader evaluations: Supervisors and managers should be challenged to know whether their employees have families, celebrate different religions, and have other cultural differences.
3. Conduct employee surveys: Anecdotal knowledge from managers and supervisors isn't enough. Your company needs to survey employees on a consistent basis.
4. Use consultants to support your leadership team: During a union organizing campaign, it's helpful to gain another perspective on how to connect with employees and understand the workforce. You can bring in consultants who can help you with diversity & inclusion and your cultural blind spots, and bring up issues that you may not have considered previously.
5. Identify and involve community leaders: Look for social, spiritual, and cultural leaders who can help you gain a better understanding of your workforce's needs and values. Invite them for a tour of your business and engage them in conversations about the employees' culture.
6. Customize your communications: Identify the informal cultural leaders within your workforce. Spend the time to learn what's needed to educate and inform your workforce. Make sure your presentations are in your employees' native language and are relatable and understandable. Identify the gaps in their knowledge and address them. For example, employees may not understand what collective bargaining is, the realities of job security, or what happens during a strike. Take advantage of the ability to create video, web, and interactive eLearning that's relatable, understandable, and respectful of cultural needs.

People no longer need to conform in order to achieve success in the business world. Diversification of the workforce will continue and as a leader, your company needs to know how to increase cultural competency to avoid union organization. Solid and consistent communication, using videos and websites to reach the secondary audience at home, and training leaders with interactive eLearning go a long way to creating your UnionProof culture.

Anyone who wonders how long union contract negotiations can last when the National Labor Relations Board and courts get involved only has to look at the Mikesell's Potato Chip Co. versus General Truck Drivers, Warehousemen, Helpers, Sales and Service v, and Casino Employees, Teamsters Local Union No. 957, Case 09-CA-094143. Ironically, the employer tried to rush the collective bargaining process by declaring an impasse and instead ended up in court for years, battling unfavorable decisions and undoubtedly spending tens of thousands to defend its actions.

Rush to Judgement

The Mikesell's case began in 2012 and is still ongoing in 2019, with oral arguments for an appeal scheduled for February 2019. Mikesell's Potato Chip Company was negotiating a new labor agreement with the Teamsters Local 957 for warehouse workers, and route and over-the-road drivers. Negotiations began in September 2012 for the warehouse employees' contract expiring October 26, 2012 and the drivers' contract expiring November 17, 2012. There were three major issues to negotiate - healthcare, pensions, and commissions for route sales drivers. The Teamsters were the exclusive collective-bargaining representative for the employees.

Mikesell's had lost $5.5 million in the prior four years. The company was still experiencing financial difficulty when union contract negotiations began. The employer's goal during negotiations was to reduce operating expenses, while the union believed its members had already conceded too much over the past years to help the company survive and wanted lost wages and benefits restored.

Following is a brief summary of the critical 2012 dates leading to NLRB involvement:

• The two sides still couldn't come to an agreement in collective bargaining on any proposals after numerous meetings held up to November 14, close to the contract expiration date. The employer tried to set up a meeting with the union before the contract expired, but schedules conflicted. The employer told the union it wouldn't extend the current contract past the expiration date. The unions said they would be in touch to propose the next meeting dates its representative would be available.
• Two days later, on November 16, the employer notified the union that its most recent contract proposals made to date would become the full and final contract offer. This, in effect, gave notice to the union the employer believed there was an impasse. The union disagreed and wanted to meet again.
• On November 18, the employer declared an impasse.
• On November 19, the employer implemented its contract proposals. The employer and union did resume collective bargaining on December 5, 2012 for route sales drivers but still could not come to an agreement for over-the-road drivers.

Naturally, the union went to the NLRB, saying Mikesell's was not utilizing collective bargaining in good faith. In 2013, an Administrative Law Judge issued a ruling supporting the NLRB's decision that said Mikesell's Potato Chip Co. had violated NLRA Section 8(a)(5) (refusal to bargain in good faith with a union representative) and (1)(interfering with employee rights) by deciding to implement the content of the last collective bargaining agreement offered to the union without first bargaining to a good-faith impasse.

When Negotiating Seems Futile

What is collective bargaining to a good-faith impasse? The NLRB defines a bargaining impasse as the point in time of negotiations when the parties can honestly say that further bargaining would be futile because both parties believe there will never be an agreement. The NLRB and courts will consider the following factors to determine whether a real impasse exists:

• Collective Bargaining history
• Good faith of the negotiating parties
• Length of the negotiations
• Importance of the issues where there is disagreement
• Understanding of the parties as to the state of the negotiations

Since the employer declared the impasse, it was up to the employer to prove it.

The Judge decided there was not an impasse, and the NLRB agreed with the decision. A lot of factors drove the decision. One was the fact the union and employer had worked out tentative agreements for some employee groups, proving the two sides could come to an agreement.

The Judge also considered this fact: On November 14 there was not an agreement yet for over-the-road drivers, BUT significant progress had been made with both sides making concessions. Also, the union had agreed to meet after the contract expired, meaning the union was ready to negotiate more. The Judge also noted the union had counteroffered some of the employer's proposals, indicating the possibility of compromise still existed.

Bad Idea: Collective Bargaining and Hurrying to Declare an Impasse

The Judge came to the conclusion the employer suddenly declared an impasse and wanted to implement its proposals simply because the company didn't want to continue operating under the expired contract's conditions. You cannot declare an impasse just because you want to implement expense cuts as soon as a contract expires. You also can't declare an impasse because the union won't capitulate immediately. Mikesell's Potato Chip Company was found guilty of unfair labor practices.

The case continued for years as the employer filed exceptions and appeals to decisions that went against Mikesell's. After losing the final appeal, a battle over back-pay began, taking the employer and union back to court. Then on March 7, 2018, a federal judge ordered Mikesell's Potato Chip Co to pay almost $240,000 in back pay to union warehouse workers and drivers. This case is still ongoing.

A labor judge will always look at the totality of circumstances when deciding labor disputes. It's a series of events and actions over time that considered, and the history of the collective bargaining relationship of the union and employer. In this case, the judge didn't just consider the fact there was no agreement in place before the contract expired. He considered how cooperative the union and employer had been during the negotiation process, whether there had been any agreement in some areas, the bargaining schedule plans on either party's side up until the time an impasse was declared, and just the general reasonableness of the union and employer behaviors.

RELATED: How to Build Your Union-Proof Culture From Day One

Let's Talk! Really…Let's Talk!

Declaring an impasse is not something to be taken lightly. For Mikesell's Potato Chip Company, declaring an impasse was costly in more ways than one. The cost of unionization is well documented, and NLRB cases like this only increase expenses in the form of attorney fees, court fees, lost employee productivity, management time spent dealing with employee issues, and in this case, significant back pay.

Employee engagement is damaged too because the employer looks like it only cares about money and not employee welfare. While an impasse is not avoidable in certain situations, it's a costly route to be avoided. A better path is to strengthen employee engagement and hope that quality leadership and improved communication leads to union decertification. In the meantime, negotiate with unions in good faith.

Many employers will resist a union organizing effort, using a variety of approaches. It's important to understand that unions are, and always will be, aggressive in their efforts to find new, dues-paying members. As your labor counsel will tell you, your response should always be legal and protective of employee rights - while exercising your own.

Typical Employer Responses To Organizing

Opposing any union is a difficult process because of intimidation practices and willingness to take legal measures. Typical employer responses often include one of these four strategies:

• General or specific resistance - Employers resist union organizing by spending most of their effort on explaining the negative aspects of unions. They try to convince employees that union representatives are violent, liars and self-serving and only want access to union dues. The problem is that focusing only on negativity can easily lead to the opposite of the desired reaction. For example, employees may believe the employer is so negative about unions because the company only cares about keeping wages and benefits as low as possible.
• Legal stand - In this approach, the employer doesn't show outright resistance to unions. Instead, the employer lets employees know they have every right to vote as they see fit, but quietly encourages them to vote against the union. It's difficult for an employer to remain non-union when pitting politeness against aggressiveness.
• Promoting the company - Ideally, the employer response has a positive tone. Instead of being anti-union, the employer is pro-employee. This involves developing a message that focuses on the positive aspects of working for the company, like competitive wages and benefits, supportive culture, responsive grievance procedures and various perks. Employers can communicate with employees via customized videos, eLearning, websites and in person.
• Weak response - Sometimes, the employer has been taken by surprise and is not prepared to respond. As a result, most of the union campaign time is spent trying to develop a response, and in the meantime, the union forges ahead with their efforts to get over 50 percent of employees voting "yes" to unionization. Lack of employer preparation can lead to a tepid response, and that can amount to virtually no response against an aggressive union campaign.

Addressing Specific Issues During the Campaign

Unions focus on a variety of issues because different issues will resonate with different employees. They include:

• Working conditions, especially as they concern safety
• Work schedule or hours
• Seniority or promotion policies
• Wage rates
• Benefits
• Management
• Unreasonable job expectations
• Employee replaced due to increased usage of contracted labor
• Employees replaced due to technology
• Job security
• Working hours/schedules
• Grievance policies and procedures
• Worker participation in decision-making, especially when it involves wages, hours, and working conditions

This is not a complete list of possible issues, but only a list of the major issues.

Employers also have issues concerning union organizing, such as:

• Inflated salaries and benefits
• Increased number of time-consuming grievances that must go through a union representative
• Inability to manage employees in the most productive manner, even when it benefits them as well as the company
• Inability to promote employees based on merit rather than seniority
• Protection of incompetent or non-productive employees, creating hardships for coworkers
• Strikes and work slowdowns
• Union corruption
• Union verbal and physical acts of violence
• Union dues employees must pay (equates to a pay cut)

It's important to focus on a few critical issues because employees will be overwhelmed when presented with too many. The union is likely to present a laundry list of complaints about the employer. The employer's response should choose the issues of most importance to employees. These issues are combined with the materials prepared in advance to create a customized response.

The employer response during the campaign must be framed with a pro-employee focus. Promoting the benefits of working for the company is much more effective than criticizing the union, especially when millennials and Gen Z make up a large percent of the workforce. Younger generations are focused on issues like flex scheduling, job security in the 'gig economy and advancement opportunities.

Notice that younger workers may see unions as champions of advancement opportunities, while the employer knows clauses in a union contract could limit the employer's ability to promote employees based on merit. It's the same issue from two different perspectives. This is typical opposing forces characteristic of a union campaign.

Another point to keep in mind is that younger generations of employees are concerned with employer behaviors in communities and their markets of operation. Corporate social responsibility is integrated with management decision-making and ethics. A modern union issue is supervisors who ask employees to do something the employees consider socially or environmentally wrong, but the employees have no working control.

Ideally, there is a positive UnionProof culture that has been cultivated before any union approached employees. The response during a union organizing campaign wouldn't be much different than what employees hear on a daily basis. Hand-in-hand with the UnionProof culture is being an employer of choice. The union is not likely to be successful if employees believe they're working for a transparent company that treats its employees very well.

Managing the Union Campaign

A major decision that employers must make is who to include in the response to the union campaign. It's often a mix of internal and external people. The external people could be an attorney and/or a specialist who can guide the company's response to the union campaign. The internal people who will direct the response can include employees from the CEO and down. The CEO should send a message that reinforces the company's perspective on unionization and the reasons unions are not needed.

Employers can expect some things to happen during the campaign. One is an increase in grievances filed with the NLRB. Another is that unions will push the boundaries of the law, often crossing the line. All supervisors and managers need to be fully informed on company policies and the laws concerning a union campaign.

Post Union Organizing Campaign

Now what? If your employees vote to unionize, you need to make a good-faith effort to negotiate a union contract. It's just as important to analyze the specific reasons the employees chose to vote for a union, and begin the process of making the changes that increase employee engagement and transparency. Lack of employee engagement and transparency are frequently the root causes of a union campaign. When a union wins an election, it is time to begin a new process that leads to union decertification. Always remember that nothing in life is permanent, and that includes unionization.

Birth of a Union Campaign

A union campaign doesn't suddenly burst to life. They begin slowly, in one of two ways. It could be a few employees with a common issue who are not satisfied with their employer's response and contact a union representative. The second path is when a union representative encourages discontent by convincing one or more employees that their employer is mistreating them and that the union can help.

There are five basic steps that unions implement in order to organize employees. The basic steps are just that: broadly applied to most campaigns. However, within each of these fundamental steps, there are a number of sub-steps and activities intended to solidify the support of as many employees as possible.

Of course, when faced with an organizing drive, the natural reaction of an employer is often to go into defensive mode. However, savvy employers have prepared well in advance to respond rapidly and legally should a union campaign take place. You can respond in this manner by learning and understanding how unions think and behave in the modern world of technology, staying current on federal and state laws, and making sure your leaders possess critical knowledge about the things employers can and cannot say and do during a union campaign.

So these two beginnings - employees contacting a union or a union targeting a company - have been the two primary initiations of a union campaign for many decades. Today, though, technology makes it easier than ever before for your employees to conduct what the National Labor Relations Act calls "protected concerted activity." Until social media was available, it took phone calls, personal meetings, and private "social gatherings" at local venues for union organizers to discuss unionization with potential members. Today Facebook, Twitter, and a host of other social media sites and union websites provide a place where employees and organizers can connect privately, even using their personal smartphones at work. Employees are easily able to sign up for e-newsletters and updates, enabling the union to stay in regular contact.

One of the mistakes that many employers make is overreacting to organizing activities. Employers may decide to break up whispering groups of employees who are on break, put spies in the lunchroom, secretly monitor social media, and then admonish employees when they don't like what they read, telling them the company will shut down if they unionize. These types of actions can lead to employees (or the union, on employees' behalf) filing formal grievances with the National Labor Relations Board (NLRB), claiming protected, concerted activity rights have been violated.

The Developing Union Campaign

The union effort is a flowing, flexible one because the union representative must customize the process through the various stages, including how and when they contact employees and the types of grievances the union will file (we assume there will be some). The first step is to learn the usual, predictable steps unions use during an organizing campaign.

1. Employees begin to contact each other about joining the union, personally or through social media, eventually connecting with the union, or the union contacts employees and tell them how much better their lives would be if they allow the union to negotiate with the employer as their representative.
2. After the union gets involved, they assign a representative to meet with a small group of interested or curious employees. The purpose is to answer employee questions, and of course, promote unionization.
3. The union collaborates with the initial group to develop an organizing plan.
4. The union forms an in-house organizing committee when it seems like there are enough people interested across the company. The organizing committee will ideally consist of employees from each unit, division, department, and shift, and will reflect the demographics of your workforce.
5. The union trains the members of the organizing committee. The training is to teach employees about the law from their perspective, employee rights, the process, methods for contacting co-workers and getting them onboard, and the particular union's policies and procedures. In turn, the organizing committee members share information about workplace operations, policies, and procedures with the union.

Note that the union's interpretation of the law is likely not the same interpretation an employer would apply. This is a step in the process of creating a union-proof organization and employers need to be knowledgeable of the labor laws and have good legal counsel in place well in advance of a union-organizing campaign.

The Journey to A Union Election

Union representatives then present signed union authorization cards to the NLRB. The NLRB determines who is eligible to vote (bargaining unit) and will also schedule an election. Legally, the union only needs to be 30 percent of the bargaining unit to sign an authorization card to petition the NLRB for an election.

If more than 50 percent of a potential bargaining unit signs union authorization cards, the union will first demand the company accept the union as the representative of employees without holding an election (card check). Naturally, most employers won't agree to this. Unions prefer to have a substantial majority of bargaining unit signatures (over 50 percent) before filing a request with the NLRB or the FMCS.

During the campaign, you are legally required to provide additional information about your employees. The union wants specifics for each employee - name, address, phone number, online sites of contact, shift worked, department/division/unit, and job title. The organizing committee members begin to solicit employees to sign union authorization cards, either online or in hard copies, getting the information the union needs to advance the campaign process. Committee members also partner with the union to identify employee issues, with an eye to finding many things you are doing that the union can claim is unfair (trodding on the little guy).

The union will also collect information about the company's locations of operations, products and services, vendors and contractors customers, and prior union activity.

The NLRB sets the election date. Currently, the "expedited" or "quickie" election rule is in effect. This rule shortens the time between the filing of the petition and the actual vote. Previously, employers had approximately 38 days, but today, you'll have as little as 10-13 days and certainly no longer than three weeks. The "quickie election" rule gave the unions an advantage - no longer did they have to sustain employee interest for a month or longer! Now, union organizers only have to keep the momentum going for 2 to 3 weeks, and employers are limited in their ability to respond and educate workers.

The "quickie election" rule is just one reason why it's critical to be prepared to respond to a union campaign long before a union even discovers your business. Work to build your UnionProof culture. Have your materials assembled and ready for rapid customization. Be prepared to respond to specific issues and educate employees on unions. Waiting until you see a petition for election means you'll have used half of the campaign just getting your materials assembled!

The law also limits the objections that you can raise before an election and restricts your right to challenge election results with the NLRB. The union and your managers will spend the time between the petition and election educating employees on the benefits already provided and the facts about becoming a union member (i.e., must pay union dues). The goal is to convince employees that they are much better off maintaining their direct connection with management. Ideally, you can address the issues that led to some employees engaging with the union. Be sure to pay attention to your tone and approach - although the union will try to call your efforts to educate employees an "anti-union campaign," it really should be a "pro-employee campaign."

An employee who signed a union authorization card (electronically or hard copy), does not have to vote for the union during the election process. Understanding this point is a significant reason the quality of your pro-employee response is so important. It's an opportunity to sway votes.

During the campaign, employees and employers must adhere to company policies on the distribution of materials in the workplace. If you allow the distribution of any non-union materials, then employees have the right to distribute union materials. It's also critical to know what an employer should not say during a campaign, (i.e., 25 employees will lose their jobs if you support the union).

The NLRB then holds a secret ballot election. If your efforts were successful, the union ends their campaign - but can return a year later. If a majority of your employees vote for the union, the union wins and is certified by the NRLB as your employees' legal bargaining representative.

Collective Bargaining: More, Same, Less

Collective bargaining begins as the union has usually promised employees they will have "everything in writing." There are two teams of people at the table during negotiations, one group for the employer and one for the union. Each side is likely to have an attorney as a member in this day and age.
Employers are required to negotiate with the union, but the negotiation process is usually contentious. The employer is unhappy the union won and now has to negotiate wages, benefits, safety, employee work locations, Human Resources policies, grievance procedures, management decision-making concerning employees, and more. There are also items like whether the bargaining unit will be a "union shop" in which all employees in the bargaining unit are required to join the union. You can submit the initial items you want in the contract to the union. The union uses the list to get the negotiation process started.

The union will begin mobilizing employee support for the union's stand on various items. There's a good reason for this. The union wants employees to pressure their employer to accept the union's terms. If the contract negotiations fail, the union must either accept the employer's terms or go on strike. In some cases, the union gives up, and employees work without a union contract. In other instances, employees go on strike. The union or the employer can protest the negotiation process when one party believes the other party is not negotiating in good faith.

Cost of a Union Campaign

The cost of unionization for employers is high. There is a cost to union members, companies, and communities. Some costs are tangible and easily measured, like attorney fees. Others, like low morale, exact an intangible cost. In the age of technology and social protest, unions can negatively impact a company's relationship with employees and community members.

Employer Costs

The average cost of a union campaign is difficult to pinpoint because a lot depends on how smoothly the campaign goes and the size of the company. For example, if the union files complaints with the NLRB claiming company representatives violated employees' concerted, protected activity rights, you will spend more on attorney fees, and the process will take longer. If a company has multiple locations, the campaign is more expensive.

Preparation of training materials, employee meetings, management time spent dealing with various issues, lowered employee productivity, and travel expenses are examples of the direct and indirect costs of a union campaign.

Labor consultant Jim Gray researched the cost of one unionization campaign. He found a business will spend $400,000 to $2,000,000 on a single campaign. The campaign is just the beginning of the costs an employer incurs.

Once a workplace is unionized, you will end up paying approximately 20 percent more in labor wages, per the U.S. Bureau of Labor Statistics. Also per the BLS, from 2006 to 2016, employer benefits costs increased by 31 percent for union employees and 22 percent for non-union employees. Additional ongoing costs concern things like more time-consuming grievance procedures, management time spent addressing union-related issues, inability to promote based on merit versus seniority which can lower productivity, dealing with lawsuits or arbitration cases, meeting additional accounting requirements, and hiring more Human Resources and legal staff. The initial associated intangible cost is the fact that union organizing campaigns harm employer-employee relationships, sometimes irreparably.

Even if the union loses an election, they are legally entitled to re-petition for a new election a year later. This rule means the union can and will stay in contact with employees to find new issues and continue promoting union membership. This constant fuel for discontent causes divisiveness in the workforce.

Union Costs

Union membership numbers have trended downward since 1983, from 20.1 percent in 1983 to 10.7 percent in 2017. This has reduced the number of union dues collected, a primary source of their revenues. Unions were also dealt a financial blow when the Supreme Court decided that forced union dues paid by public employees were not legal in the case of Janus v. American Federation of State, County, and Municipal Employees, Council 31. In just one example, more than 10,000 New York City employees opted out of paying union dues as a result of the Supreme Court's position on the Janus case. Unions lost approximately $250,000 in two weeks. Over half the states also have right-to-work laws that prohibit making the payment of dues a condition of employment.

These legislative hurdles have led unions to use any means possible to continue their aggressive recruitment of new members more cost-effectively. Technology has enabled unions to economically communicate with a large number of people with less staff. The labor unions now use social media, websites, Twitter, online newsletters, videos, and other tech-based communication tools.

Unions are also turning to strategies like corporate campaigns and card checks to avoid the cost of an organizing campaign. A corporate campaign attacks a company in a way that damages the company's reputation over time, and costs that company so much time and money that the employer agrees to the union's demands. The union can use economically strategic actions like helping employees file multiple unfair labor practice charges or "salting" the workforce with union representatives for the sole purpose of inciting the employer to fire them. Corporate campaigns facilitate union organizing by damaging the business to the point where unions can successfully demand a "neutrality agreement," meaning the employer agrees NOT to fight unionization. Card-check, discussed here previously, means employers voluntarily recognize the union and agree to bargain without holding a secret-ballot election once a 50%+1 employee signs a union authorization card.

It's important for employers to understand that labor unions are relentless in their efforts to recruit employees. Despite court cases and NLRB decisions in favor of employers, the unions will find workarounds.

Resisting a union campaign can be expensive in terms of lost productivity and attorney fees. The best path is to develop a positive work culture, supported by trained leaders across the organization, and a trained and engaged workforce, reducing the chances the union will get a foot in the door. Sometimes the union still comes knocking. Understanding the elements of a union campaign is key to detecting and managing the process in a way that keeps the union out of the workplace, and your company out of the NLRB claims system.

What Is A Lockout & How Does It Work

The lockout is an employer action that is designed to stop unions from economically harming a business when there are union contract negotiation disputes, and the current contract expires as a result. A lockout is a temporary, employer-initiated work stoppage in which employees are prohibited from returning to work when a contract expires and there's no replacement contract. Union Proof discussed the court decisions that initially made lockouts legal, and gave an overview of how they work, in a prior article titled, Learning From a Lockout.

Projections has had decades of experience helping workplaces remain union-free and implement positive employee relations strategies in their organization. We believe in the importance of building a strong culture that results in higher employee engagement and retention, where unions simply aren't necessary. We'll cover what employer lockouts are, and dive deeper into the mechanics of the defensive and offensive lockouts, along with providing additional examples of real-world events.

Employer Lockouts

Employer lockouts return power to businesses struggling to deal with difficult union representatives by enabling employers to put pressure on the union to accept reasonable contract terms. The court decisions legalizing lockouts created two types: defensive and offensive. Understanding the difference is the first step in assuring adherence to the laws.

Before 1965, only the defensive version existed, where employers can only lock out employees in defense of their organization's economic stability. This can be done by employers in response to union actions like sabotage, strike threats, strikes, or work slowdowns. Since then, three types of lockouts have emerged from various NLRB and court decisions, though only two categories - defensive and offensive - exist.

The economic or defensive lockout is employer instituted to prevent economic losses due to a threatened union strike. The second type of lockout is due to a Supreme Court decision in NLRB vs. Brown Food Store (380 U.S. 278, 1965). The decision lets employers replace union workers with temporary employees when there is a multi-employer bargaining unit, and the union strikes one employer bargaining unit in order to put pressure on the whole unit. It's called a whipsaw strike.

Since then the NLRB made decisions like the 1986 Harter Equipment, Inc vs. George M. Zatrinski with the Local 825, International Union of Operating Engineers (Case 22-RD-754). In a 3-to-1 decision, the NLRB said employers can hire temporary workers when there is a union contract impasse. In this case, the union had offered to extend the old contract for six months. The company made a "final offer" that the union rejected and a lockout ensued. This is an offensive lockout.

In the offensive lockout (bargaining lockout) an employer locks out employees to pressure the union during a collective bargaining negotiation process for a new contract. In this situation, employers do not have to wait for a strike or strike threat to initiate. Employers can act whenever there is no union contract in effect, instead of timing it to minimize damage to the employer which was a prior requirement. As an employer, you can make a final offer when contract negotiations seem to be deadlocked and further negotiations are futile.

Employer "Can Do's"

You can only declare a lockout when a union contract expires, or you have proof the union is running an "inside campaign," or the union offers to have employees end a strike and return to work. During a lockout, the employer can only hire temporary employees and must allow union workers to return to their jobs when everything is over. If the union goes on strike but eventually offers to let employees return to work under the terms of a contract that has expired, you can declare a lockout to force an agreement to a final contract offer. The catch is the lockout must include all union employees and all permanent striker replacements. The employer can then only hire temporary employees.

It's important to understand that lockouts aren't a license for unfair labor practices. They're intended to serve one purpose: force the union to agree to a reasonable, legitimate bargaining position. Unfair labor practices are illegal at any time, including during and after the lockout. Unfair labor practices include activities like intentionally withholding information the union has a right to access, hiring replacement employees on a permanent basis, negotiating with individual employees, and anything else that intentionally targets union jobs. You must also agree to bargain in good faith per the NLRA Section 8(d) & 8(a)(5). It's in the union's interest to fairly negotiate during the lockout because all union employees can return to their jobs when everything ends. When a union strikes, the employer can hire permanent replacements.

Unions will make a lot of accusations, of course. Unions may accuse the employer of purposely making contract negotiations difficult so the contract expires. Unions will claim that employers are forcing a lockout because they want to shut down a plant or shift production. The union may simply call the employer a bully who doesn't care about working people. The primary union strategy to gain support is to work on emotions.

Timing is Everything

There have been many lockouts. The L.I.U.-Brooklyn lockout demonstrated the non-union community support lockouts can garner. The solution was that the university administration allowed the faculty to return when both parties agreed to extend the expired contract. In 2014, the Kellogg Company locked out hundreds of employees at its Memphis, TN factory over failed wage negotiations with the Bakery, Confectionery, Tobacco Workers, and Grain Millers (BCTGM) International Union. The lockout lasted 9 months before a court ordered its end, saying Kellogg used "creative semantics" to reclassify new or rehired employees in violation of the agreement. In 2016, a federal appeals court then ruled the 2013 lockout was legal, overturning the NLRB order that sided with employees. One takeaway from this example is that lockouts can last months and take years to finally settle. A pro-employer decision means the locked-out employees are not likely to collect lost wages and benefits during the period of action.

The suggestion of a lockout gives employers an edge over unions. American Crystal Sugar locked out employees from July 2011 to May 2013 when it was unable to reach an agreement with the BCTGM International Union. A 22-month lockout is a long time period, during which unemployment benefits run out. In May 2017, the same union agreed to a 5-year contract as the company's "best and final" offer.

Not all lockouts end in the employer's favor. In 2016, a 7-month lockout at Allegheny Technologies involved the United Steelworkers Union, 2,200 employees, and 12 plants. In this case, the union considered itself the winner after employees agreed to a new 4-year contract. The NLRB had stated the company did not bargain for a new contract in good faith, making the lockout illegal. The employer had to agree to the contract because there would be an NLRB judicial hearing, and the NLRB had already made its position clear. If Allegheny had been found guilty at a hearing, the company would have had to pay out millions in lost wages.

Longterm Lockouts & Employer-Employee Relations

The long-term issue with lockouts is similar to the issue with strikes. Severe damage is done to employer-employee relations. Union workers that do return to work will probably resent the employer and the temporary replacement workers they hired. In 2017, only 7 major work stoppages took place. However, unions know that you have the right to call a lockout at any time if your company's union contract expires. That's a powerful motivation for negotiating a new contract.

After a lockout, you must begin the process of restoring employee relations. Though a new contract will eventually be signed, a lockout falls within the crisis category. A good strategy is to take advantage of a crisis to engage employees with the end goal of employees deciding they are interested in decertifying the union.

Ideally, employers maintain union-free workplaces through positive employee relations. Nothing in life or business is permanent, and that includes unions.

Employees may find themselves at some point wondering, "where do my union dues go?". Inquiring as to where one's own money is being spent is an understandable question. Many are unaware of the true cost of unionization. Unfortunately, as with any bureaucracy, finances are a sticky talking point. So let's dive into the history of labor union spending as we venture to answer the question, "Where do my union dues go?"

In 2018, the Supreme Court decided that public employees don't have to pay "agency fees", which are mandatory partial union dues for non-union employees. This decision was made ostensibly to defray collective bargaining expenses. The unions, of course, cried foul because this decision will cost them millions of dollars, decrease union spending, and eventually they'll lose millions of union members. So the question remains, why pay dues if you still get collective bargaining representation?

Of course, the unions are anxious to replace the lost dues, claiming the money is needed for union salaries, working on grievances, collective bargaining negotiations, and other expenses. The reality is much different. Unions spend tens of millions of dollars in union dues and agency fees for things many of your employees don't support or approve of; like a particular party or candidate, gun control, and other political and ideological activities.

Understanding Where Union Dues Go - Beck Rights

Rewind to 1985, Pattern Makers v. NLRB, 473 U.S. 95, the Supreme Court decided that no employee can legally be forced to join the union in any state, a fact often overlooked in many discussions and one that unions won't tell your employees. The NLRA law also allows people, called objectors, to refuse to join a union but to be forced to pay the agency fees or be fired. This is called the "Beck right" as a result of a Supreme Court decision in Communication Workers of America v. Beck, 487 U.S. 735 (1988). This is the backbone of the union-related laws in the Non-Right-to-Work states where union security agreements (collective bargaining agreements) are allowed. Employees can refuse to join a union but be required to pay agency fees.

Union fees aren't the same as union membership dues, by definition. The agency fees are supposed to equal only the amount unions spend on collective bargaining, grievances, and contract administration. That's it. The agency fees are to cover the union organization's overhead only, and unions are prohibited from spending these funds on political activities. The reality is that union spending is not compliant and is usually illegally spent on political activities, and all types of union money are frequently used to support causes and organizations their members don't support.

The unions use a labyrinth of money transfers that include union dues and agency fees to various left-leaning organizations to hide the fact they're paying for political campaigns, political party support, and lobbying. These expenditures aren't only illegal when they include agency fees; they are frequently spent with disregard for the opinions and preferences of the employees footing the bills.

RELATED: HOW TO BUILD YOUR UNION PROOF CULTURE FROM DAY ONE

Labor Union Political Spending

The truth about union spending is coming out as various court cases and researchers dig into the numbers. The Competitive Enterprise Institute (CEI) had submitted a brief in the Supreme Court case of Janus v AFSCME, Council 31. This is the case that recently ended the requirement that public employees pay agency fees against their will. CEI research revealed staggering information about labor union political spending. According to their findings, AFSCME was spending agency fees to advocate for a variety of political and religious issues including overturning Right-to-Work statutes, gun control, Hillary Clinton's presidential campaign, voter registration, D.C. state-hood, trade deals, and subsidizing of union organizing campaigns.

The Center for Union Facts reviewed the annual financial disclosure reports for the period 2010 to 2017 that unions filed with the Labor Department. The results are a bit shocking. Labor union political spending amounted to $1.3 billion of union dues that were allocated to political activities, activist groups, media organizations, and nonprofits. And if you're wondering exactly how much money do unions give to Democrats? The answer is over $400 million went to Democratic organizations that include America Votes, the Democratic Governors Association, Catalist, the Economic Policy Institute and the list goes on. Yet, approximately 40 percent of all union members and their household members vote Republican. Funding for Planned Parenthood is even on the list, thus impacting employees' religious rights. The unions have publicly admitted they spend money in a way that doesn't consider the viewpoints of its members.

Wasteful Spending of Union Dues

Wasteful union spending is par for the course. The NFL Players Association (NFLPA) spent more than $3.5 million to defend quarterback Tom Brady against a 4-game suspension. This was the arbitration case called "Deflategate" in which footballs were found to be deflated. The union spokesman says the legal fees weren't funded by employee dues, but rather by royalties paid to the union for NFL items sold. However, how would some of your employees, union members or not, feel knowing the unions are willing to spend such extravagant amounts for such a situation. It reflects a very poor judgment on the part of the union leaders.

In 2017, the SEIU revealed how it spent union dues in 2016. Even labor union political spending proved to be extravagant and wasteful. Expenditures included:

• $19 million for Workers Organizing Committees which organize protests, often disrupting businesses like yours;
• $1.7 million to the Democratic consulting firm BerlinRosen Public Affairs;
• $400,000 on staff meetings and training at Washington D.C.'s prestigious St. Regis hotel;
• $285,000 to the Las Vegas' Stratosphere Hotel for political activities;
• $33,000 for a single night of catering;
• $10,000 at a Capitol Hill bar; and
• $150,000 to the liberal Economic Policy Institute, to name a few expenses.

Approximately 64 percent of SEIU members are conservative, per SEIU President Mary Kay Henry who, by the way, earned $262,000 in 2016.

RELATED: THE EMPLOYEE EXPERIENCE YOUR PATH TO HIGH ENGAGEMENT

Educating Employees Spending of Union Dues

The union voice is often out of sync with the voice of members. In fact, the way the union spends money serves as an effective silencer. There are union members from coast to coast fighting their own unions to stop the extravagant spending and the spending of union dues and agency fees on political activities and other issues not related to collective bargaining processes. Their voices are often like cries in the night because no one is listening, and the unions are quite blatant about their public bent. If you remain doubtful, consider what Alma Hernandez, Executive Director of the SEIU, said before the Janus case was decided. "The threat to organized labor is a threat to all of us, in particular to the Democratic Party." Your Republican employees don't see it that way.

Tell your employees, when sharing the company perspective on unions, that voting for a union could very well equate to voting to have their hard-earned money spent to support causes and events they don't agree with and will never be informed about. The numbers prove it's a fact. It's just another reason to equip yourself with all the tools necessary to keep your organization union-free, and to train your leaders to engage employees through transparency and frank discussions about unions. Don't wait to educate your supervisors and team members on the realities of unions, while you remain transparent and authentic in creating an environment where unions simply aren't necessary.

Alt-labor are worker advocacy groups that aren't formal unions, though they have many of the same characteristics and goals as unions. They're non-union unions, or people organizing around a common cause, like improving working conditions or raising wages. For various reasons, they're unwilling to join a union. In some cases, the independent groups of people are essentially fronts for unions that are trying to gain information for the purpose of organizing in industries with large groups of non-unionized workforces, like retail and services. They're easy to spot because the traditional unions fund the alt-labor groups.

Not a Bargaining Unit

Alt-labor groups are formed with different operating models but have similar goals. The groups are worker centers, associations of non-union employees, or associations of non-NLRA workers. Worker centers can be arms of unions, like the SEIU or AFL-CIO, or independent groups. They push the boundaries of fairness with activities like wildcat strikes or marching outside businesses with signs making unfair accusations. Associations of non-union employees, like the AFL-CIO's Working America, which has 3 million members, are the union's attempt to engage workers in the face of falling membership. The third category of alt-labor groups unofficially organizes non-NLRA workers, like railway workers, independent contractors, and farm workers.

Historically, alt-labor has used community and political pressure to promote their causes, but in the last few years, they've also acted much like a union proxy and have explored their power to initiate change, even so far as to work internationally. In July 2016, OUR Walmart, an alt-labor group that shares a website with Fight for $15, and the Walmart Chinese Workers Association, discussed a collaboration to address work schedule changes, among other issues. The alt-labor groups operate in a very similar way to unions but use a loophole in the National Labor Relations Act to avoid being called a bargaining unit.

The Worker Center movement is gaining steam, per the U.S. Chamber of Commerce. The Centers are organized as nonprofit organizations with the stated purpose of providing employee education and training. The issue you face as an employer is that their nonprofit status allows them to behave in a way the NLRA and NLRB would not allow union members to behave. As members of a nonprofit, they can picket and boycott your business and present themselves as a charitable organization. They can also initiate ugly internal and external campaigns and lawsuits with the intent of putting pressure on your business to take action like increasing wages and adjusting work schedules. The Worker Center can also work through sympathetic government agency professionals by convincing them you have violated the NLRA or are discriminating.

Rallying Sympathy

The actions of some alt-labor groups are effective. OUR Walmart has initiated walkouts and works in partnership with worker advocacy groups, like A Better Balance, to issue reports that are really nothing more than documented grievances made public to force employers into a defensive position. The Fight for $15 organization says it's the "modern-day poor people's campaign." This group is an example of an alt-labor group targeting multiple corporations, like Walmart and McDonald's, and using websites and social media to rally all workers and community members.

It is likely that alt-labor groups will increase in number and in membership as traditional union membership declines and the number of part-time and independent workers increases. There are two factors holding back alt-labor associations from thriving. One is lack of money. Membership fees are usually voluntary and/or very low. They need a big union or foundation to fund their efforts. The second factor is their limitations on their authority to collectively bargain and strike.

The Power to Mobilize Communities

Alt-labor groups can initiate activities like voluntary walkouts, but their real power lies in emotionally mobilizing the community at large to protest your business policies and procedures, harming your company's brand. They can also mobilize state government representatives to pass laws concerning independent and part-time worker participation in things like portable health insurance. Their power also lies in the ability to appeal to all types of workers. For example, there's the Guestworkers Alliance, the Restaurant Opportunities Centers United, and the Coalition of Immokalee Workers for migrant farmworkers. The alt-labor groups are marketing smart, making their battle cries about issues like ending sexual harassment and discrimination, raising the wages of working mothers, justice for all workers, and empowering women.

The Time's Up movement, a companion to the hashtag #MeToo group, is a technology-driven effort to mobilize women as a group. It is an alt-labor group, in a new form, because it is focused on creating concrete workplace change for working women and getting legislation passed that addresses issues like gender parity and equal pay. The alt-labor groups are a channel for specific people to get attention focused on their issues rather than issues of the workforce at large. Women are joining the Time's Up movement because it is focused on women's issues only. Becoming a union member tends to make people just one of many, and special interests get lost in the representation process.

Engage Your Employees Before They Engage Themselves

Alt-labor groups offer employers insights into employee engagement. One is that engaging employees has never been more important. Your leaders must learn to connect with their employees to understand specific issues and not treat everyone the same in the age of networking. Another lesson is that people have always wanted to be heard, but now they have alternatives to forming a collective voice through technology.

If you don't have an effective communication system that enables employee feedback, it shouldn't be surprising to discover an online group of employees making claims that your policies are unjust or the pay is inequitable and forces people to struggle financially. You have just as much power to utilize technology, including video, web and eLearning, to inform and listen to your employees. The key takeaway is this: Make your people a priority to union-proof and alt-proof your organization.

Unions can have a serious negative impact on the companies whose employees they organize. There are some obvious ones, like union contracts making it difficult to terminate employees, but there are also more subtle ones, like management's difficulty in enforcing reasonable sick leave policies. Issues of union work rules, seniority and employee termination often tie the hands of employers who need to discipline employees for poor performance, frequent violations of employer policies or behaviors that threaten the safety of consumers and co-workers. A disengaged culture develops, leading to lower productivity and the pitting of management and employees against each other.

Constantly Challenging Management

The real-world stories of unions challenging management are unending. In a recent example, the Washington, D.C. Metro system adopted a policy in March 2017, requiring workers to give 72 hours' advance notice for pre-approved sick leave. Workers can still call in on the same day, as long as it's not less than an hour before their shift starts. The policy was enacted after a review revealed that more than 100 employees had used more leave than allowed, threatening the functioning and safety of the transportation system. Amalgamated Transit Union Local 689 objected, saying the policy change should have been negotiated and was unfair. They then encouraged workers to hand out flyers to passengers claiming their supervisors wanted to make them sick.

Employers can even have problems designating supervisors. In Veolia Transportation Services, Inc. and Amalgamated Transit Union, Local 1637, AFL-CIO, Petitioner, Case 28-RC-071479, road supervisors who had disciplined employees were determined not to be supervisors and therefore with no authority to discipline, reward or recommend discipline, though the employer said they did. The NLRB said that giving employee warnings without recommendations for further discipline is not supervisory action, and coaching and counseling don't constitute discipline, thus such discipline isn't progressive or consistently applied.

Complicating the Management Process

In September 2013, a Detroit Medical Center supervisor observed a Telemetry Associate sleeping on the job and took a photograph. The employer suspended the employee for three days, issued a final written warning, and put the employee on a one-year disciplinary probation. The union objected. It went to arbitration, and the Arbitrator found that no one could prove how long the person slept and the picture didn't offer a clear view of the employee's eyes, but the fact the employee was slumped in the chair had a negative impact on the safety and welfare of patients. The employer had to significantly reduce the disciplinary requirements to a two-day suspension and nothing else.

The NLRB has spent eight years liberalizing interpretations of employee-protected rights. The ability to be an effective leader is greatly impaired as a result. Employees fear talking to each other because someone can misinterpret comments and report them to the union. Frustration leads to managers taking the safe path, avoiding: disciplinary actions, publishing new Human Resources policies, asking employees to assume new job responsibilities and doing terminations for cause.

Even the hiring process is more complicated because an interview question might violate employee rights. In the NLRB versus Bighorn Beverage, Case No. 78-2995, it was determined that asking a job applicant about union membership did not violate the NLRA, but the interview question combined with a job application asking the same thing was inherently coercive. In the current environment, a question that even seems like an attempt to discover employee sentiments about unions can lead to complaints.

Unions also continue to use a practice called "salting." In the case of NLRB v Beacon Electric Co., No. 07-2554, the courts upheld the NLRB decision that an electrical contractor violated the NLRA by refusing to hire union salts and hired non-union employees instead. Salts are people who apply for positions for the primary purpose of getting access to the workplace in order to unionize employees.

Impact on Workplace Culture

In the unionized workplace, employers often cannot promote and reward people based on high productivity and skills development rather than seniority, because the union will inevitably claim the employer did not follow contract seniority clauses. When an employee (union or non-union) sees a less qualified co-worker get a promotion, it's disheartening and discourages striving to be a high performer. Union work rules, seniority and job protection for poor-performing workers negatively impact a company long-term. Some companies, like Hostess, have even gone bankrupt because of unions.

Unions tend to create a workplace culture that is more negative than positive, and they certainly tie the hands of employers in the effective management of Human Resources. Case after case has proved this to be true. Keeping unions out of the workplace is important to developing a positive culture where employees are engaged, employer-employee communication is honest and open, and leadership can truly manage the workforce in a way that recognizes productivity and promotes business sustainability.

An employee walks up to you and says he and some of his co-workers want to leave the union but they don't know how to. Not hiding your joy, you enthusiastically reach out to shake his hand, and tell him that you will do everything possible to help get the decertification process started.

As an employer, you just made two mistakes: one, you encouraged decertification and two, you offered to help with the process. If the union discovers you held this conversation, it will file a complaint with the National Labor Relations Board (NLRB). The NLRB will then proceed to invoke sanctions against your business for unfair labor practices. The decertification process will never take place, and the sanctions will prevent another decertification attempt for years.

It's clear to see that it is crucial to understand the union certification process from both an employer's perspective, and an employee's perspective. Just a few enthusiastic words can derail the entire process. 

The Six Statements You Can't Make During Union Decertification

There are certain things you cannot do or say about during the initiation, petition or decertification election stages. Employers do have rights, but there are rigid rules that, paradoxically, have fluid interpretations from the NLRB.

Following are 6 types of the statements an employer cannot make. All the statements are considered violations of employee rights, or simply as limiting the employees' freedom of choice. Each statement is supported by a decision from the National Labor Relations Board (NLRB) or court case reference.

Here they are:

"I will help you get rid of the union."

Employers cannot offer to help employees initiate the process of decertification. (Weisser Optical, 274 NLRB 143).

"Forget your raise if the union stays." 

Employers cannot use intimidation or fear of reprisal to "encourage" employees to pursue decertification. (Dow Chemical, 250 NLRB 586).

"If you don't like paying unions, consider starting a union decertification campaign." 

The law says an employer cannot initiate, instigate, solicit or encourage decertification because it interferes with an employee's free choice. (Quality Transport, 211 NLRB 198).

"I'll get Human Resources to distribute the petition to all our employees."

Providing employer resources to support the process is encouraging the decertification election, and that is not allowed. (Placke Toyota,    215 NLRB 395; Quality Transport, 211 NLRB 198; Weather Shield, 292 NLRB 1).

"You will be much better off without the union."

This statement is also interpreted to be interfering with employee rights (Allou Distributors, 201 NLRB 47; Weisser Optical, 274 NLRB 143).

"Don't talk to union representatives. Just sign the decertification petition - or we may end up going out of business."

Employers cannot tell employees who they should not talk to,  instruct anyone to support decertification or be involved in the petition process. (Renaissance Hotel Operating Company, NLRB 28-CA-128643).

In the Renaissance Hotel Operating Company case, the employer was told to cease and desist from soliciting the decertification of the union through activities like alerting all employees to the fact a decertification petition is circulating; directing employees to sign a decertification petition; promising employees that, if they sign a decertification petition, they would get a pay increase; promising the reinstitution of a tuition reimbursement program; and promising assistance with job advancement. Saying these kinds of things can actually thwart the efforts of employees, and get the decertification process stopped or invalidated.

Decertification Rules: Employer Rights

Employers have rights, but they are the same rights as during the certification process. You can answer questions about the legalities of the process of decertification or refer employees to the NLRB for information concerning the process and the law. However, employers walk a minefield when it comes to a decertification election, because the National Labor Relations Board can determine what constitutes interference with employee rights to free choice. An employer can only provide "ministerial assistance" to employees. The test is whether the business leader's actions had the "tendency … to interfere with the free exercise of the rights guaranteed to employees under the [National Labor Relations] Act.”

The key is for employers to provide high-quality training to managers. Those who represent your company directly to employees need to know what they can and cannot say. Sometimes a few words can make the difference between keeping or not keeping the union.

Learn More: The TIPS and FOE rules for communicating with employees.