The SCORE 2015 Issue 3 | Page 21

19 SCORE | 2015 Issue 3 THE supervisors to ensure that the workplace is While some employers may worker organization activity around a respectful and stable. higher minimum wage for food service hope that this will pass without workers and actions by the NLRB to Second, even if you are doing everything right, a union could start trying to facilitate unionization of the workforce, impacting them, others recogorganize your restaurant (or even a small has increased the likelihood that FBS nize that there is now an sub-group of employees). Union orgamembers will become targets of unions. nizers will go to great lengths to keep their increased risk to their business As such, it is important to identify and activities secret from you and will coach begin developing relationships with the model and are looking for inexany of your employees who are actively professionals you will need to turn to in pensive, yet effective steps to working on behalf of the union on how to the event of an election petition. In additake to reduce that risk. avoid management attention. While the tion, just like you do for operational situpresence of union literature left in work or ations, you may want to develop a written break areas is certainly clear notice, such action plan for what actions need to be an obvious indicator is no longer likely. taken upon receipt of a petition and who Nonetheless, there are several warning signs that could indicate will complete those actions. activity. Examples include an increase in internal complaints While the full impact of the NLRB’s new election rule has regarding managers, wages, or other working conditions or a yet to be seen, there is no doubt that it has increased the risk negative change in the overall mood of employees. On occasion, of union organizing, particularly in light of the activity over several employees might present a signed petition or approach a the last year directed at foodservice workers. Following these senior manager as a group. You might even learn of an increase three simple and low-cost recommendations will certainly in group gatherings or notice employees forming unusual help reduce the likelihood that your workplace will become groups/friendships for discussion. Finally, an employee who unionized. S has never done so previously, might suddenly promote a“raffle” for a school event or other organization and ask employees to DOUGLAS H. DUERR is a partner at Elarbee Thompson provide cellphone numbers and emails“in case they win.” While Wilson & Sapp LLP, a national labor and employment law any of these, by themselves does not mean that your workplace firm with an industry practice area focused on restaurants is being organized, they are warning signs that should not be and franchises. Learn more at www.elarbeethompson.com. ignored. Recommendation: Train managers and supervisors on signs of organizing activity or changes in employee behavior so that at the first sign of activity, you can address any issues before an election petition is filed. Third, if you get notice that a petition for an election has been filed, you cannot afford to lose even a minute of time. Seriously. An election could be held in as soon as two weeks (maybe sooner) even though the union organizers may have spent months signing up your employees. You should immediately confer with your labor counsel to obtain guidance both as to the legal process before the NLRB, but also as to how to conduct the election campaign (e.g., the communications with employees regarding unionization). This is vitally important as you only have a few days to consider whether the union has requested an“appropriate unit”and, if not, what would be an appropriate unit from your vantage point, how the election should be handled (e.g., date and method), whether to reach an agreement regarding the election or proceed to a hearing, who should be witnesses at a pre-election hearing and what their testimony will be, and to prepare the various, required lists of employees with the mandatory information regarding shifts, work locations, job titles and so forth. Almost equally important is training supervisors regarding what they can, and cannot do, during a union election as well as on the information they need COACH JON GRUDEN to be able to respond to employees’ questions regarding the upcoming election and the implications of their choice. Recommendation: While you are not likely to receive an election petition next week or next month, the recent