Union Organizing, Negotiations And Contract Administration: Perspectives Of A Former Union-Lawyer Now Laboring For Management

Monday, November 1, 2004 - 01:00

In my prior life, I worked as General Counsel to a large Teamsters local union in New York City for eight years. Now that I have "switched sides" and currently represent management, I am frequently asked by clients how a union perceives typical scenarios within the labor arena. Non-union companies want to know how today's union organizer successfully attacks a non-union company. Unionized companies want to know the best way to facilitate successful negotiations and contract administration with a union. By understanding the perspectives from the "other side," employers rightfully believe that they will be better prepared in dealing with a union.

Union Organizing

As with many of the issues in labor relations, union organizing is one where the perspective is completely different depending upon which side of the table you sit. Many companies believe that joining a union is contrary to the best interests of employees, their families and the operation. As is often argued by management during organizing drives, unions typically drive up labor costs, compromise the profitability of the business, and thus jeopardize the security of the company and its employees. Employees are forced to pay union dues merely so that a third party has the right to "meet and discuss" workplace concerns. Despite the presence of the union, employees are not guaranteed any additional monies, benefits or other terms and conditions of employment. Further, according to management, the existence of a union eliminates the employees' right to address their problems directly with the employer, as the union will be the only "voice" through which the employee may communicate.

Understanding the union's perspective on organizing is essential to defending against an organizing campaign. Many union officials sincerely believe that they provide an invaluable service to their membership. They often cite the historically higher wages that union members receive. They emphasize that, without a union, employees do not have representation in the workplace and, unlike most unionized workers, they may be terminated at will.

Based upon my experience, the union's primary motivation in organizing employees is not always the revenue realized from union dues. Even in successful organizing drives, the union usually does not recoup the money it has spent for several years. Many union officials are, in fact, motivated by their belief in a paternalistic obligation to working men and woman who, in their opinion, would be better off if organized.

Today's unions also are very aware of the environment in which they are organizing new members. The labor movement is, after all, in steep decline. Currently, approximately 8% of private sector employees belong to a union, down from about 30% in the 1950s. Unions recognize that big manufacturing companies have responded to the fierce pressures of the global economy by downsizing facilities, outsourcing jobs, and squeezing maximum productivity out of their remaining workers. These trends have weakened the bargaining power of the unions, making them less attractive to workers.

In response to these realities, unions are reinventing the manner in which they approach union organizing. As union membership has declined, unions increasingly lack the resources to wage major campaigns against big business. Many union organizers concentrate only on small to mid-size businesses. Small workforces tend to be more cohesive and less susceptible to anti-union campaigns from management. Unions also realize that smaller companies are often unprepared for the highly technical challenge of fending off a union campaign.

Perhaps what is most critical to management is an understanding of the primary workplace issues upon which today's organizers are focused, issues that employers may not realize are the key causes of unionization. Many company officials assume that employees choose a union simply to secure higher wages or better benefits, which is still often the case.

When I worked for the Teamsters, most of the union's victories in elections focused on less obvious employee concerns. "Harassment," favoritism, lack of respect and fair treatment - these are some of the emotional issues that organizers are more often using to "sell" the union. Unions know that when workers feel neglected in response to management's failure to listen to their concerns, employees will look toward someone who will - the union organizer. Union organizers are trained to be good listeners and are ready to hear any grievance, whether real or imagined. They solicit employee opinions about how things should be changed. They talk about the importance of respect in the workplace. They capitalize on every failure of the company and explain how the union would have helped.

Fortunately, once it acquires an understanding of how a union appeals to workers, a company can take steps to minimize the chances of unionization. One thing that I have realized since switching to management is that unions don't organize employees - companies do. Poor communication, not treating employees with dignity and respect, failing to understand employee concerns - all of these are things that the employer controls and can change. When supervisors are trained to properly communicate with and treat employees, companies minimize the opportunities of a union organizer. This is not to say that a company should sacrifice efficient management of its operations. It simply means that supervisors need to be properly trained in administering policies fairly and forthrightly so as to properly motivate employees, create positive morale, improve performance, and leave unions with no appeal. Of course, even where a company does its best to be fair and responsible, it is not necessarily immune to union organizing attempts.

Negotiations And Contract Administration

Prior to negotiating a collective bargaining agreement, many employers (and management lawyers) spend countless hours preparing for the negotiations. They construct a financial model so that the negotiators can accurately compute the costs associated with the company's objectives. They anticipate bargaining issues regarding the non-economic terms of the contract and evaluate whether any contractual provisions should be modified. They also engage in strike contingency planning in case the parties' differences are not resolved at the bargaining table. All of these steps are essential to any successful bargaining strategy.

What is equally important to an employer's success at the bargaining table, however, is something that many times goes overlooked: establishing and maintaining personal relationships with the union leaders and representatives. When I negotiated collective bargaining agreements for the Teamsters, so often I came across company representatives who made no effort to develop, and sometimes resisted, any relationship, even on a professional level, with the union leader or business agent that represented his/her employees. Perhaps they resented the union's presence or personally disliked the union representatives. No matter the reason, what they failed to realize was that the union was not going away and that the company would only benefit from a professional relationship between the parties.

Where there was a sour (or no) relationship between the parties, the result often was bad for the union, but also for the company. Grievances, arbitration hearings and unfair labor practice charges that could have been resolved easily proceeded forward. Tension increased between management and the workforce. Negotiations where the parties would have otherwise reached an agreement resulted in long, drawn-out, costly strikes.

Conversely, in cases where the employer, or its representative, had established personal (albeit adversarial at times) relationships with the union representatives and leadership, the outcome was usually different. Grievances and arbitration hearings were resolved by phone calls. Unfair labor practices were less frequently filed and routinely settled. Employee morale, which to a large extent is controlled by the union, was usually high. Negotiations were settled in off-the-record meetings where the parties got down to the crux of what was important away from the showmanship at the table.

Needless to say, these relationships, which some union officials may resist, do not form overnight. Often it takes a long time to establish the credibility that is necessary at the bargaining table. If ultimately successful, however, the relationship will be invaluable to the employer's operation. Thus, it is in the best interest of companies to partner with a management-side attorney who has the existing relationship with the union or the personality fit to facilitate accomplishing the stated goal in bargaining.

In addition, just as the union takes steps to learn about the company and its representatives, employers should also learn as much as possible about the union and its officers. For instance, are the officers up for re-election, and if so, what are their chances of success? What are the sentiments of the company's employees toward the union and its officers? Is the union under investigation by any outside agencies or the international union? Are there any pending lawsuits or unfair labor practice charges against the union and its officers? Are there ongoing negotiations with a competitor or is there a strike at another company? Knowledge about the environment in which the union leaders are operating may help the company identify internal or external pressures that may impact its relationship with the union.

Conclusion

Gaining an understanding of a union's perspective on organizing, collective bargaining, and contract administration is essential to successful labor relations. For the non-union company, failing to understand how the union organizer successfully appeals to the workers may facilitate unionization. Unionized companies that fail to recognize the importance of personal relationships with union officials will often be faced with needless grievances, arbitration hearings, unfair labor practice charges, and work stoppages.

It is true that I am fortunate to have experience from the vantage points of both labor and management. Although the Teamsters may question my career change, I look forward to working with my former colleagues and furthering our professional and personal relationships. In the end, it is my management clients that will benefit from my unique experiences.

Peter B. Ajalat is Of Counsel to the law firm of Grotta, Glassman & Hoffman, P.C. Mr. Ajalat's practice focuses on all aspects of traditional labor law, which includes all manner of counseling and advice, administrative proceedings and litigation arising within that context. Mr. Ajalat may be reached at (973) 994-7518 or at ajalatp@gghlawcom.