Client Bulletin #412


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Whether the Employee Free Choice Act is enacted into law in its present form (unlikely) or a modified form, we will have a legislatively created method to make organizing easier. Unions are doing everything they can to keep the heat on. Recently the United Food and Commercial Workers union distributed a leaflet containing a union authorization card at the bottom with a picture of President Obama at the top and quoting him as follows:

I don't mind standing up for workers and letting Walmart know they need to pay a decent wage and let folks organize.

It would appear that the UFCW is continuing its efforts to make Walmart the symbol for employer interference in the efforts of unions to organize. The UFCW has also sent pro-union Walmart workers to Washington to lobby members in Congress for the passage of the EFCA, which is organized labor's top legislative priority. All of this in an effort to gain sympathy and votes for favorable legislation.

Because of the continuing campaign by unions to pass the EFCA, it really is time for you to ask whether your company’s current approach to union activity is effective or in need of change. It is also time to reflect on the organizational characteristics that support a non-union environment. Today's employees, especially those under age 35, know so little about labor unions and how they operate. They have learned little or nothing about unions in school, and very few have had any experience with unions in the workplace. This is not surprising, given that only 7.2 percent of the private sector is unionized. Yet in the last two to three years unions have received more publicity, primarily due to the EFCA, than they have in the past 20 years. Like it or not, unions are in the forefront of today's news.

This leads to the obvious question: where and from whom will your employees learn about unions? Will it be from the new breed of union organizers who will put their favorable spin on the subject? Or will it be from the company, whose responsibility it is to educate and inform employees about an organization that can have a tremendous impact on the continued viability of business? You need to make that determination.

At a minimum, serious consideration should be given to including information about unions in a new-employee orientation program. In addition, companies should evaluate the pros and cons of including a union education piece to be incorporated into departmental meetings, quarterly status meetings, lunch box or other face-to-face communications meetings. Both the orientation program and the current employee meetings should include basic information such as what a labor union is, how it is organized, how it gets income, how organizers go about organizing, the significance of signing a union card, the risks of unionization, and the potential impact of unions on the long-term success of the company. Now is the time to act. If some form of legislation is enacted making organizing easier, it may well be too late.

Moreover, this is the time to reflect on organizational characteristics supporting a non-union environment and assess where your company stands. In 2008, Kenexa Research Institute published a report of a study made of 10,000 U.S. workers. After excluding employees of unionized employers and determining whether the remaining participants  favored unions, each participant was asked to agree or disagree with a list of statements about their employers. A significant percentage of those favoring unions responded negatively. Although there were also negative responses from the employees who were not in favor of unions, the number of negative responses was substantially lower. The following are statements for which the “pro-union” employees had a significantly more negative view as compared with employees who did not favor unions:

  1. My organization shows a commitment to ethical business decisions and conduct.  
  2. I have confidence in my company's senior leaders.  
  3. When my company's senior management says something, you can believe it is true.  
  4. Where I work, ethical issues and concerns can be discussed without negative consequences.  
  5. My manager treats me fairly.  
  6. Senior management is committed to providing high quality products and services to external customers.  
  7. My company enables people from diverse backgrounds to excel.  
  8. My manager treats me with respect and dignity.  
  9. Management shows concern for the well-being and morale of team members.  
  10. Senior management demonstrates that employees are important to the success of the company.  
  11. I feel free to try new things on my job, even though my efforts may not succeed.  
  12. My company supports employees' efforts to balance work and family/personal responsibilities.  

Clearly, now is the time to decide whether as a company you will act, or whether you will wait until legislation is enacted, making organizing easier. In the latter case, you may be too late.

Constangy, Brooks & Smith, LLP has counseled employers on labor and employment law matters, exclusively, since 1946. A “Go To” Law Firm in Corporate Counsel and Fortune Magazine, it represents Fortune 500 corporations and small companies across the country. Its attorneys are consistently rated as top lawyers in their practice areas by publications such as Chambers USA, Super Lawyers, and Top One Hundred Labor Attorneys in the United States. More than 100 lawyers partner with clients to provide cost-effective legal services and sound preventive advice to enhance the employer-employee relationship. Offices are located in Georgia, Florida, South Carolina, North Carolina, Tennessee, Alabama, Virginia, Missouri, Illinois, Wisconsin, Texas and California. For more information, visit


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