Author: Amy Lee

With card-check legislation on the horizon, employers need to open up communication with their workers now more than ever, says Bill Adams, CEO of labor management consultancy Adams Nash Haskell & Sheridan in Fort Wright, Kentucky.

    Letting problems and grievances fester, he says, is a good way to drive workers to unionize.

    “The bottom line is, if the issues are common and fixable and they’re not addressed, they’ll soon be sitting down with a union. It’s that simple,” Adams says.

    Some employers assume they’ll never have to deal with a union. Others panic at the first sign that workers are organizing. Both reactions can lead to painful and costly mistakes, Adams says.

Ignoring the possibility
   Many business owners adopt an “ostrich” mentality and assume their workers will not seek union representation, says Stephen Cabot, chairman of the Cabot Institute for Labor Relations Inc. in Pennsylvania.

    “They think, ‘It won’t happen. I’m a good employer. Everybody loves me.’ But waiting is a death knell,” Cabot says. “If you don’t step back and find out how your employees feel and get addressing those concerns now, you’re dead in the water.”

    Employees are particularly tuned in to issues of fairness, especially regarding pay, and discrepancies over time do not go unnoticed, he warns. Wise employers seek feedback and try to resolve problems.

Tolerating lax, inept or corrupt behavior from supervisors or managers
   Employers that overlook bad seeds among management ranks leave themselves vulnerable. Accepting or ignoring malevolent behavior from supervisors kills morale and breeds resentment, Adams says.

    “If you have allowed a supervisor to behave in that way, you must fire him or get him out of there,” he says.

    Look for clues in body language.

    “Pay attention to your employees. Do they look you in the eye, or are their eyes downcast? You can tell when something’s wrong,” he advises. “Get to the root of the issue.”

Assuming executives can freely discuss union matters with employees
   There are rules about what employers can and cannot say to employees, especially to those who are attempting to organize or are in the process of reaching their first collectively bargained contract. In particular, asking questions about a worker’s interest in union representation is off limits.

    Become familiar with acceptable discourse.

    “A useful general rule is that an employer can be a dispenser of information, but not a collector,” according to the nonprofit National Federation of Independent Business, which has published a guide for small-business owners facing organizing efforts on its Web site: www.nfib.com.

The election of President Barack Obama has turned the spotlight on a proposed law to reshape how unions are formed.

    Obama backs the Employee Free Choice Act, which would make it easier for workers to form a union. EFCA also imposes stiffer cash penalties on employers that interfere with organizing efforts or illegally stall initial contract negotiations. Crain’s Chicago Business asked two Washington, D.C., labor law experts with opposing views on EFCA to discuss how life might change if it becomes law.

    Josh Goldstein is a spokesman for American Rights at Work, a nonprofit, union-funded lobbying group that supports EFCA.

    Crain’s Chicago Business: Is there anything wrong with the current process?
    Josh Goldstein: The law today too heavily favors the employer. Management can force workers who have already indicated their desire to form a union to take an extra step and hold an election, which gives them time to harass, intimidate and even fire individuals seeking union representation. And the penalties for interfering with the union formation or contract negotiations are so insignificant they are laughable.

    Crain’s: Does this bill take away the right of workers to hold an election to determine whether to form a union?
    Goldstein: No, not at all. That’s one of the myths opponents of this law would love for you to believe, but it’s not true. Workers will still have the right to request an election by signing a card indicating a desire to hold an election. The difference is that neither the National Labor Relations Board nor the employer can force an election on them. If workers sign a petition indicating their desire to have an election, then the NLRB can call an election; but if a majority want union representation and indicate that on a card, they will not be forced to go through that additional step of holding an election. EFCA gives workers the right to call an election, not management.

    Crain’s: Even if EFCA doesn’t pass, do you think the Obama administration is likely to foster a more union-friendly environment?
    Goldstein: We’re under new leadership in Congress and the White House, and both are committed to workers’ rights. People voted for leadership who can help to elevate a struggling middle class.

    J. Justin Wilson is managing director of the Center for Union Facts, a lobbying group funded primarily by corporations. The group opposes EFCA.

    Crain’s: Why is this bill garnering so much attention right now?
    J. Justin Wilson: Labor unions are looking to swell their ranks and their war chest. They spent $450 million in this election, and there was really only one string attached: the Employee Free Choice Act. The stars are aligned for them right now with a Democratic House and Senate and Democratic president, and they know they are in reach of it.

    Crain’s: Is there anything wrong with the current process?
    Wilson: The process used today… ensures American workers have the right to vote their conscience in a secret ballot, and that ensures the process is democratic. Unions know that it’s much easier to get people to sign a card than to get them to vote in an election, so it’s clear that this bill was introduced because they have no intention of using the NLRB process ever again. The bottom line is, every worker should have the right to vote.

    Crain’s: Does this bill take away the right of workers to hold an election to determine whether to form a union?
    Wilson: Is there a loophole that would allow an election? Yes. Would that loophole ever be used? It’s very, very unlikely. The bill explicitly says that if they turn in 51 percent of cards [saying yes to unionizing], the NLRB is explicitly prohibited from having an election.

    Crain’s: Even if EFCA doesn’t pass, do you think the Obama administration is likely to foster a more union-friendly environment?
    Wilson: What we see happening … is more and more tweaks around the edges that favor labor unions. … It’s a litany of things small-business owners will have to hire lawyers to help them comply with and that expose them to a greater degree of liability.

R etailers, restaurants and health care facilities will be in unions’ cross hairs if the Employee Free Choice Act becomes law.

    “Any kind of service industry will clearly be first on the hit list,” says bill critic Richard Epstein, a law professor at the University of Chicago who has consulted employer groups on the legislation.

    The common denominator for these industries, he notes, is that they can’t relocate to cheaper labor markets. So if the EFCA becomes law, “hotels, restaurants, any kind of industry where mobility is not an option will be forced to deal with wage rigidity and job rigidity.”

    Until now, unions have had only mixed success in organizing these sectors. But the “card check” legislation has some workers looking forward to a change.

    “Give us a choice and a voice,” says Shirley Brown, a housekeeper at Resurrection Health Care’s Westlake Hospital in Melrose Park, Illinois, who has been pushing for six years to organize Resurrection’s 8,000 employees for AFSCME Council 31.

    Current law requires employees to gather pro-union signatures from a majority of workers. An employer can then either negotiate with the union or call an election. EFCA would give employees the right to determine whether an election is held. It also would stiffen penalties on employers who interfere with organizing efforts.

    “You should not be subjected to fear, harassment and intimidation because we want a voice,” says Brown, 50, who has worked at Westlake for 13 years.

    But restaurateur Glen Keefer worries the law would strain small-business owners already struggling in a weak economy. Keefer is part-owner of Keefer’s Restaurant, a Chicago-area steakhouse with 99 employees. He also runs Tavern at the Park, a restaurant near Millennium Park in Chicago with 80 employees.

    Keefer says he and his partners put on hold plans to open a third restaurant in 2009—partly because they were concerned about taking on more debt and partly because of the uncertainty over costs if the EFCA becomes law.

    “We don’t need a third party in between us and our employees who is extracting money from our employees for services that, frankly, they don’t need,” says Keefer, who says his workers get health care benefits and paid vacation time. “A third party could disrupt our working relationship and would raise costs for our employees and for us.”