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