Florida - Law Firms Unions' Organizing Strategies 2005

Tuesday, November 1, 2005 - 00:00

Editor: The Miami Daily Business Review recently noted that you are widely regarded as among the top labor and employment attorneys in South Florida. Please tell our readers about your background.

Casey: I have practiced labor and employment law for about 33 years. I have represented employers in Florida and nationwide during that time. My practice generally has comprised providing advice and guidance to employers about avoiding unions, assisting employers in election campaigns involving unions, and defending employers in lawsuits or arbitrations where employees have alleged that their respective employer discriminated against them on account of race, sex, age, disability and for other illegal reasons, such as where the employee contends that his or her employer retaliated against him or her for engaging in whistleblower activities or for having complained about discrimination. I also provide advice and guidance to employers about wage and hour matters, and defend employers who are sued for violating the Fair Labor Standards Act or similar state laws.

Editor: What were a few of the things that attracted you to EBG?

Casey: The primary reason I joined EBG is that I felt that EBG has the best labor and employment group of any firm in the U.S. We have almost 200 labor and employment lawyers in our 11 offices around the country. I joined EBG also because I liked the culture and the people at the firm. The people - lawyers and administrative staff - are wonderful to work with. I was also very much impressed by the firm's strong commitment to diversity. We have a large number of women partners. One half of our offices nationwide are managed by women. We are proud of those accomplishments.

Editor: Please give some examples of types of industries served by your Miami office.

Casey: We represent employers in a wide range of businesses - manufacturing, service, pharmaceuticals, hospitality, transportation, and healthcare. We represent many clients in the financial services business.

Editor: How has your Miami office grown?

Casey: I started the office a year and a half ago with one associate. We now have 11 lawyers, all of whom practice labor and employment law. Our plan is to add other practice groups starting next year and to grow the office to at least 50 lawyers next year.

Editor: Unions seem to be on the decline - what are unions doing to reverse that trend?

Casey: Unions have been on the decline for years. In 1955, unions represented 35% of U.S. workers. Unions represent now less than 8% of the private sector workforce. The unions' main strength and growth now are in the public sector involving employees of government (federal, state, local, school employees, teacher unions). Interestingly, two areas where unions are strongest happen to be in Hollywood (more like guilds) and in professional sports.

Unions are down, but they are not out. They still are a threat. Last year, unions filed 5,000 petitions for elections with the National Labor Relations Board. We expect that union organizational activity is going to substantially increase this year and in the near future.

A new generation of union leaders has risen to control the major unions. These new leaders are aggressive, confrontational, and have pledged to commit literally hundreds of millions of dollars to organizing employees throughout the country.

The major unions are the SEIU, the Teamsters, the Laborers, the Carpenters, UNITE/HERE, the United Food and Commercial Workers, and the United Farm Workers. Those unions recently withdrew from the AFL-CIO to form a federation called "Change to Win." Their combined membership comprises six million members, while the AFL-CIO membership is just under nine million members. These new union leaders are going to be investing a lot of money to train professional union organizers to go out in the field and try to interest employees in joining the union movement. They are also going to aggressively initiate corporate campaigns, such as the one currently in progress against Wal-Mart and Cintas.

Editor: Have unions targeted any specific employees or groups of employees?

Casey: Healthcare, waste management, security, and hospitality-service. There will be a major effort made to organize healthcare workers. Unions also will be going after so-called "white collar" personnel such as those engaged in the insurance field and the financial services industry.

Editor: What are the main reasons employees might want to vote for a union?

Casey: I have represented employers around the country in more than 100 union organizing campaigns. In my opinion, the main reason employees become interested in a union is because of management mistakes, not because of pay or benefit issues. The single biggest motivating factor that compels an employee to become interested in a union is a bad supervisor - a supervisor who is unpleasant, who treats employees unfairly, who doesn't listen to the employee's concerns, and who fails to enforce rules consistently and fairly.

In my presentations to executives about what causes employee interest in unions, I always ask the executives themselves if they were ever unhappy at work and what was the cause of their unhappiness. They all say that, regardless of how much money they were making, they were unhappy at work if their boss was a jerk. I have heard that from people making seven figure incomes. If the boss or supervisor is a jerk, and if management puts the supervisor there and leaves the supervisor there knowing that the supervisor is a jerk, that is going to result in employees going to a union, which in most cases is nothing more than a cry for help.

The other major cause of employee interest in unions is a cliché - a failure to communicate. Usually, that involves the employer making a change of some type in schedules or procedures or compensation, without adequately explaining the rationale for the change, or without explaining the change at all. I have seen this happen time and again. As an example, management of a major hospital changed schedules for night shift personnel. The changes actually were to the benefit of the night shift personnel. Senior management at the hospital explained the change to middle managers, and instructed them to convey the changes and the rationale to the employees, but the first-line supervisors failed to do so in a positive manner. Many of the supervisors were themselves opposed to the change for personal reasons. What they conveyed to the employees was that "management" or "they" or "the suits" had decided upon this change, and that was that and there was no use complaining about it. The supervisors neglected to explain the details of the new plan, which, as I said, would actually have benefited the staff. The staff signed enough union cards to have a union file a petition with the National Labor Relations Board. When we got involved, we advised hospital management to meet the employees in small groups and explain the changes and the reasons for the changes. The employees' reaction was "Now we understand. We wish you had taken the trouble to explain this all to us before." The hospital won the election, but that was an unnecessary exercise.

Editor: What steps should an employer take to avoid unionization?

Casey: A company that wants to avoid unions must maintain competitive pay and benefits. More importantly, management must place a great deal of emphasis on hiring or appointing the right persons to be supervisors. The best widget maker does not make the best supervisor of widget makers. Management must also put a great deal of time and effort into training supervisors concerning the so-called "soft skills" aspect of their jobs - treating people fairly, communicating (listening), and generally abiding by the golden rule of treating people as you would like them to treat you.

Managers and supervisors also should devote time to getting out of their offices, getting away from their computers, and "manage by walking around" - talk to employees, ask them about how they are doing on the job, how their families are doing, and whether the manager or supervisor can do anything to help the employee do his or her job better.

Supervisors should also take the time to express their appreciation and that of the company to employees who do a good job. Formal recognition programs also are effective, but an occasional kind word or comment from the first-line supervisor usually is more effective in avoiding unions than giving a pay increase. I should also mention that opinion surveys can be helpful in detecting unrest and dissatisfaction in the workforce, particularly in larger organizations.

Devoting a lot of attention to having good, first-line supervisors is a win-win situation for an employer. Having good supervisors not only will help an employer avoid unionization, but also will result in having an environment where employees are positive about their company and about their work. Positive, enthusiastic employees are more productive than dissatisfied employees.

Editor: How does EBG work with employers who are confronted by a union organizing drive?

Casey: With our long-term clients, we provide regular advice and guidance on how those employers can best maintain their union-free status in that particular environment. With employers who are confronted with a union organizing drive, the key is to get there fast, help the employer determine the issues, and then work with the employer in devising strategy and countermeasures. The National Labor Relations Board generally will conduct an election within 42 days after the union has filed a petition. It is therefore very important for employers to get competent advice as soon as the employer detects the first signs of union organizational activity. We have the capability with the size of our labor-employment group to be anywhere in the country on a moment's notice, with as many attorneys as are needed

Please email the interviewee at mcasey@ebglaw.com with questions about this interview.