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Surname 1 KEEPING NORMA RAE AT BAY Full Text Section: LEGAL TRENDS

Surname 1

KEEPING NORMA RAE AT BAY 

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LEGAL TRENDS

HR professionals have a responsibility to educate both senior management and front-line managers on how they may inadvertently create a union-friendly environment.

When asked why employees find unionization attractive, most supervisors focus on wages and benefits. But human resource professionals know that wages and benefits are rarely “union issues.” Most union-organizing drives are caused by what senior managers and supervisors refer to as “soft issues.” These soft issues, however, can result in hard collective-bargaining agreements.

Most human resource professionals can see relatively clearly why employees would want a union and assume those reasons are equally clear to others in management. They are not. HR professionals have a responsibility to educate both senior management and front-line managers on how they may inadvertently create a union-friendly environment.

There are many reasons employees may find unions attractive. Fortunately, there are antidotes to all of them.

RECOGNITION

As a general rule, employees feel overworked and underappreciated. Studies show that recognition is both important to employees and an excellent motivator. Although unions are not always effective at increasing wages or benefits, they can and do validate employees’ worth.

Supervisors who focus all of their attention on employees with performance problems risk creating a pool of employees who may find unionization appealing. Employees who do well deserve to be told so, and supervisors must be trained to give praise when it is due. Employee recognition programs can also go a long way in creating a more positive employee relations climate, in general, and in helping employers remain union-free, in particular.

PROTECTION FROM HUMILIATION

Some supervisors with unfettered authority instruct by example in the presence of an employee’s peers. Humiliation by an unfair supervisor is one of the most common sparks for precipitating interest in a union. The humiliated employee becomes the cause celebre and, eventually, the union organizer.

One form of humiliation is harassment. Whether by supervisors, co-workers, clients or customers, sexual harassment is one of the fastest-growing areas of law; it can also provide employees with an incentive to organize. Sexual harassment aimed at one employee is the exception, not the rule. In most workplaces where harassment exists, it is pervasive. If 30 percent of the workforce is uncomfortable, a union election may follow.

Supervisors should be trained to avoid any form of harassment. But it is not enough that supervisors refrain from objectionable behaviors; they must intervene aggressively when they learn that any form of harassment is taking place, even if they have not received a specific complaint. Supervisors also must be trained to discipline employees without deprecating them. Even employees who perform poorly are entitled to dignity and respect.

HOPELESSNESS

Despite the seeming mediocrity of some managers, most employees know they will never rise that high. This perception is particularly strong among members of Generation X. But it is more than just a perception; it is a reality. The pie of career-fulfilling positions is shrinking. Employees who do not see room for growth within the organization may try to create competing fiefdoms. A union creates that opportunity.

Employers need to provide employees with ways to grow within the organization. Employee education and skill enhancement programs are two ways to invest not only in employees but also in the company. The same is true of expanding employees’ responsibilities horizontally, if not vertically. Giving employees more responsibility makes them more valuable to the organization while increasing their skills, stimulation and loyalty.

DOUBLE STANDARDS

Most union-organizing drives rely on class warfare that would have impressed Marx himself. But it doesn’t take a Marxist to see unfairness in the firing of a construction employee who works outside and violates company policy by having a beer at lunch in August if the person firing him works in an air-conditioned office and drinks martinis at lunch. Executive bathrooms, country club memberships and reserved parking spaces are among some of the more visible manifestations of a double standard.

It is not necessary to treat the CFO and the receptionist precisely the same way, but double standards that are particularly repugnant and unnecessary should be eliminated. A union-prevention human resource audit can uncover dangerous double standards and other systemic flaws that may result in unionization or litigation.

LACK OF CONTROL

Although most employees do not expect to make managerial decisions, they do want to play some role in the process. In the union context, collective bargaining satisfies employees’ need to be a part of the process. In the nonunion environment, employers must find other ways to satisfy that need.

Employee attitude surveys can help, but they are not without some risks. One risk is raising expectations. Employers that have no intention of at least attempting to remedy some of the perceived wrongs uncovered in a survey are probably better off not conducting one.

Another potential problem involves federal labor law. Under the National Labor Relations Act (NLRA), employers cannot solicit grievances in the midst of a union campaign, unless they have clearly established such a practice prior to the campaign. In other words, an employer cannot suddenly show an interest once the Teamsters come knocking.

Finally, employee involvement teams can be formed to give employees a feeling of empowerment. However, these teams may run afoul of the NLRA’s Electromation ruling. Although there are some risks inherent in any meaningful employee involvement program, these programs should not be avoided altogether. The risks can be minimized with the help of experienced counsel.

JOB INSECURITY

After completing a probationary period, union employees can be terminated only if the employer has just cause-a legitimate and compelling reason that an arbitrator will sustain. In contrast, most nonunion employees are “at-will.” Employee handbooks say how much the company values employees on one page, then remind employees that they can be terminated at any time, for any reason or no reason at all, on the next page.

Although nonunion employers can and should preserve their at-will rights on paper, in practice, they should have just cause to terminate an employee. Employees should be told what is expected of them and when they are not meeting expectations. Discipline should be progressive, providing employees with an opportunity to improve, and the company’s rules should be administered fairly and consistently. Finally, employees must have an opportunity to defend themselves and to appeal adverse actions that they perceive as unfair.

To achieve those goals, formal and informal communications with employees are necessary. So is supervisory training in the purpose, nature and content of progressive discipline. And there must be a credible appeals procedure.

Peer review is one appeals process that has much to offer. The process leaves the decision about whether an employee’s discharge will stand to a panel composed principally or exclusively of the employee’s peers. Initially, managers may fear the loss of power inherent in peer review, but absolute power is often less absolute than it seems.

Moreover, peer review gives away less power than managers might believe. In a properly constructed peer review program with adequately trained employees, peers will bend over backward to side with management-provided, of course, that management has done its job properly.

JOB ANXIETY

Many organizations discriminate on a systemic level against women, minorities and immigrants, however unintentionally. To the extent barriers for these groups exist in the workplace, these employees will be anxious and have an incentive to attempt to achieve parity by way of collective action.

Sensitizing supervisors to multi-cultural diversity is critical to avoiding legal liability and to maintaining a union-free workplace. Employers will be most effective in achieving these goals if supervisory staff resemble the subordinates they supervise.

Older workers are another group likely to be anxious about job security. Age bias manifests itself in a number of ways, including the assumption that older employees are more resistant to change. Often this assumption translates into fewer opportunities for these workers. Then, when organizations do change, these employees are left behind, or at least fear being forgotten.

Older employees who are uncomfortable with new technology may find unionization an attractive form of insurance. While most union contracts preserve management’s right to lay off employees at-will, seniority usually plays some role in determining who gets the ax first. Although seniority does not necessarily translate into age, older employees are more likely to have substantial seniority and to find unionization attractive.

To allay older employees’ anxiety, give them an equal chance to change with emerging technologies. Extra training should be offered to long-term employees who may not have the technical skills that new entrants to the workforce have. Even though nonunion employers do not have to honor seniority, failure to do so carries with it an employee relations risk. This is true not only with regard to layoffs, but also with regard to work assignments, schedules, shifts and the like.

Finally, there is one more group of employees deservedly anxious about job security-the chronically mediocre. These employees know that it is more difficult to discharge them in a union shop. Therefore, they have an incentive to organize.

Many employers inadvertently create pockets of mediocrity that may have pro-union sympathies. These employers are so fearful of EEO and other wrongful discharge claims that they are reluctant to fire anybody. Organizations with plenty of pretermination notice, but few actual terminations, are likely to have a large pool of anxious mediocre employees. One of them could become the shop steward.

Supervisors must be cautious to avoid EEO claims. But the caution cannot be so great that mediocre employees who should be discharged are not. Otherwise, the employer will have an unproductive organization that may become even more unproductive if unionized.

REPRESENTATION

Unions represent employees against management. Part of the appetite for unionization can be slaked if supervisors represent the employees they supervise. Human resource professionals also play a key role here.

Employees seek help from an outside source-whether a union or a lawyer-only when help from within is unavailable. Thus supervisors must be given enough time to perform all of their responsibilities, including problem solving. Supervisors who are so overworked that they do not have time to supervise will find problems with their subordinates piling up, creating an opening for a union to resolve them.

Similarly, organizations must value the human resource function enough to make human resource professionals feel comfortable in standing behind employees who appear to have suffered grievous wrongs. Although this goal often requires a delicate balancing of competing interests, human resource professionals can better accomplish it if they are officers of the organization, at the same level as financial, operational and other executives.

PROTECTION FROM CHANGE

As information becomes the most valuable commodity in society, organizations are changing faster and more frequently than the employees who work for them. Indeed, there often is a perception that employers change for the sole purpose of changing.

In many organizations, employees believe that change takes place without regard to its effect on professional goals or personal lives. Compounding the problem, the change may be part of a program of total quality management that has lofty goals but, in effect, conveys the message that employees can never do enough.

Unions can’t stop employers from changing, but they can create obstacles that retard change. For employees who just want to catch their breath, the fact that short-term inertia may hurt long-term viability is not important. Although employers cannot afford to remain static, they must be sensitive to how change is perceived by employees and how it affects employees.

A number of things can be done to minimize the adverse effects of change. Involving employees in the change process can be helpful. Also helpful is giving employees advance notice of changes so they have time to adjust, explaining the reasons for changes, and timing changes so that employees are not disproportionately affected.

BROKEN PROMISES

One final reason employees find unions attractive is the sense that the employer cannot be relied on to keep promises. Broken promises not only fuel the desire for unionization; they also make the union’s election campaign easier.

Once it is dear that union organizing is taking place, employers generally cannot make any promises to influence the election. Handcuffed by the labor laws, the most employers generally can do is to ask employees to “give them a chance,” without making any specific promises that things will get better. If an employer has not kept promises in the past, the plea for more time sounds hollow.

An employer that cannot keep a promise should explain why. One way to ensure that broken promises do not fester is through formal employee attitude surveys. Another way is for each supervisor to conduct periodic informal audits of subordinates.

CONCLUSION

Even today, there are many reasons employees may find unionization attractive. Employers that fail to understand these reasons are particularly vulnerable to union organizing.

The best way to avoid a union is to understand the benefits it can provide. By understanding and addressing those issues, employers can remain union-free.

Author’s note: This article should not be construed as legal advice or as per-mining to specific factual situations.

For more information on employee participation committees in the wake of the NLRB’s Electromation decision, see “Safe Methods of Employee Participation” in the April 1993 issue of HRMagazine. For information on peer review programs, see “Could Peer Review Have Saved Marie Antoinette’s Head?” in the June 1989 issue.

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By JONATHAN A. SEGAL

The post Surname 1 KEEPING NORMA RAE AT BAY Full Text Section: LEGAL TRENDS appeared first on PapersSpot.

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