Avoiding Unionization Under the "Card Check" Law

June 17, 2009
The proposed Employee Free Choice Act has many metalcasters worried about what such a law might mean to an already struggling sector. However, there are measures available to avoid unionizing, according to a non-profit research organization.

p>By: Dr. Matthew Goodfellow

In January of this year, the University Research Center conducted a survey of 812 companies about the proposed Employee Free Choice Act and what affect it could have on the ability to remain union-free. Of those surveyed — including individuals at 15 ferrous and 17 nonferrous foundries — only 19% were aware of how serious the proposed law affected how their business could be unionized.

There are major provisions in the pending “card check” legislation. If a union “signs up” a majority of a company’s workers, the union will be immediately certified by the National Labor Relations Board without a secret ballot election. This eliminates management’s chance to present its case to employees in an election campaign. If subsequent bargaining for a first contract is not successfully concluded quickly, a government arbitrator will dictate the terms of a collective bargaining agreement, to be binding on both parties for two years. The rules governing the arbitrator will be set at a later date. Another provision mandates fines and penalties for a company if it commits unfair labor practices during the course of a union’s card signing efforts. However, there are no fines for a union if it commits similar unfair labor practices.

As it stands now, many states either allow card-check unionization, or severely restrict state or local government from campaigning against a union. As a result, 36.8% of governmental workers are members of a union. In Canada, where card checks apply to private employers, a union can be certified when it presents cards signed by a bare majority of a companies workers to a labour board. (About 33% of the Canadian private sector is unionized, compared to just 7.6% in the U.S.)

The University Research Center’s mission is to research issues bearing on productivity, the causes of industrial dysfunctions, and the reasons for unionization in non-union organizations and strikes in organized ones. Supported by over 5,000 industry members, the private, non-profit research organization engages in industrial economic research and publishes it in the interest of “American economic well-being.” Such research conducted in January resulted in the following information and how it will affect foundries.

What should I do to protect my foundry from this threat?
Employers must uncover the actual feelings and sentiments of their workers about their company and correct any problems that rile them. After all, they are the ones who will be signing the union cards. The most effective way to ascertain employees’ true feelings is by using an outside, experienced third party brought in temporarily to make an impartial survey of employee concerns and beliefs. There are relatively few such consultants who are effective.

Who will the unions target first? What companies are most at risk?
Check the facts. In recent years, nearly 70% of all union elections occur in plants with fewer than 50 employees, says the NLRB. Smaller, family run foundries and national ones with outlying branch plants having high numbers of Hispanic employees are at the most risk, especially if the Hispanic workers are concentrated in their final cleaning areas.

Why Hispanic workers?
Because most company executives are oblivious to Hispanic cultural cues and often inadvertently abuse them. Anti-company feelings generated by perceived abuse produce more union sentiment than the erroneous belief that a union will automatically bring higher wages and benefits. Also, many Hispanics are unfamiliar with U.S. labor law. Their knowledge of unions comes from their native countries, where the laws are far different.

What does this have to do with unions and signing union cards?
Many union organizers are aware of these cultural resentments and exploit them. Seeking easy targets, unions are increasingly targeting foundries with high percentages of ethnic minorities, particularly Hispanics. Most foundries have few executives who speak Spanish or who are aware of Hispanic cultural traditions and unknowingly offend them.

Many of my foremen are Hispanic - do I still face a problem?
Hispanic supervisors tend to be authoritarian, play favorites among workers, and culturally are less aware of the Anglo traditions of treating employees impartially on the foundry floor. Abuse of authority tends to be a problem because Hispanics are traditionally more accepting of authority, and are more sensitive of the abuse. Anything that could be perceived as favoritism could could encourage the workers to sign the cards. Employees may feel that signing a union contract will eliminate the unfairness they perceive.

How do I handle this aspect of unfairness?
It is difficult because language and cultural barriers often create opportunities for misinterpretations of actions or decisions. Traditionally, Hispanic workers are less likely to complain to the owner — they tend to go outside for a remedy because they may believe that their only protection against favoritism is to seek an outside source, such as a union.

Why are smaller companies so vulnerable?
Some small foundries believe that their size promotes a family feeling, but that isn’t always the case. Many times these companies lack impartial absenteeism policies, shop-floor work rules that apply to all, or an effective problem solving (grievance) procedure. Grievances may remain bottled up even if there is an open door policy.

How does the proposed law differ from the current labor laws?
Presently, managers can insist on a secretballot election, usually held within 42 days of a union petition filed with the NLRB. A union can petition the NLRB when it obtains signed union cards from 30% of the workers. However, unions rarely file unless they have at least 60% because they know a traditional election campaign conducted by management causes many workers to change their minds.

What happens during those 42 days?
Employers and unions use free speech rights to campaign for employee votes. At the conclusion of the campaign, workers vote in secret ballot elections supervised by the NLRB. The rules of the campaign are complex, but fair, and have been developed over the years by the NLRB to balance the rights of all parties involved.

When, where , and how do unions get cards signed? Can a worker vote no after he has signed?
Unions commonly depend on peer pressure from “pushers” who solicit co-workers in a variety of situations: in the breakroom and after hours in social settings. The pushers only present the perceived positives of unionization, but fail to mention the downside — just like any other campaign. Just because a worker has signed a card does not mean they still have to vote for the union — the election is done by secret ballot.

How have elections gone so far under the current system? As seen in the accompanying charts, in the first half of FY 2008, unions won nearly 65% of all elections held.

What does this mean for the metalcasting industry?
According to the Bureau of Labor Statistics, Hispanic workers are the fastest growing employee segment in the industry. By next year, the BLS estimates that Hispanics will account for nearly 18% of all foundry workers.

How much of an affect will new legislation have on the current pace of adding unions? With a drop in 2007, the rise in 2008 may have been what it had been on pace to do over the last ten years.

How do I know how my employees feel about unionization?
Employees will talk about what’s bothering them in safe surroundings, and will speak up more openly to an outsider than to any other member of management. Most employees fear complaining to busy bosses over arbitrary supervisors or personnel policies that are ignored. Moreover, it takes an outsider with industrial experience to listen with a “third ear,” to understand workers. Also, employees may say one thing, but mean another in what they say.

What about an attitude survey, as my lawyer recommends?
These can’t uncover sentiments, especially if buried by cultural traditions. The best way to uncover a worker’s motivation is through an experienced third party investigator, who is trained to uncover workers’ real concerns and beliefs, and can recommend immediate remedies. These third parties may be skilled consultants.

Any executive seeking recommendations for a skilled consultant who is knowledgeable about the metalcasting industry may contact University Research Center, [email protected]

Dr. Matthew Goodfellow is the executive director of the University Research Center, Evanston, IL, a non-profit industrial economic research organization studying productivity, industrial dysfunctions, and the reasons for unionization in non-union organizations and strikes in organized ones.