By: Richard H. Wessels, Esq.

Congress is not going to pass EFCA, that appears certain. However, our firm is seeing a bit of an up-tick in traditional union organizing. This usually appears in the form of attempts by union organizers to get union cards signed. Here at Wessels Sherman, we have our own general rules on responding, perhaps more properly described as a "hierarchy of response levels."

First, if it appears that a union solicitation and card signing effort is merely routine - solicitation by a union business agent outside the plant gates for example - we will typically adopt a "watch and wait" policy. It is, in our judgment, unwise to respond aggressively to every such organizing effort. Employers are frequently able to rely upon solid loyalty toward the company. They find that without any response whatsoever, employees simply have no interest in a union.

Second, if it appears that there is some level of interest, we frequently advise a "train the supervisors" strategy. This typically involves an hour or so meeting with the management group so that they understand all aspects of union organizing and are comfortable with dealing with questions from employees about unions. This would, naturally, cover the legal "do's and don'ts" that apply under the National Labor Relations Act. Also, we typically role play to develop supervisors' confidence level in answering questions. Wessels Sherman strongly believes that an employer's best defense against union organizing is a well-trained group of front-line supervisors.

Third, if it appears that there is more than a minimal level of interest, we frequently advise either a letter to the homes or a paycheck stuffer. Such a communication generally takes the following form:

Fourth, if the level of activity either continues for a substantial period of time, or if it appears that the organizers are finding fertile ground, we advise employee meetings. Typically, we would go to this level of response only if we are getting clear indication of union cards being circulated by an in-house committee, meetings at employee homes, meetings at the union hall or a local saloon, etc. A typical employee meeting would be about a half an hour in length and would bring out the points that the company is aware that union organizers are out there trying to get cards signed; that the company feels that this is a bad idea both for the company and the employees for a number of reasons that are discussed in the meeting; that a union card is an important legal document; and, finally, a showing of an appropriate video about union cards. There are several outstanding 12-15 minute videos out there in the market place covering unions in general and the dangers of signing a union card. Wessels Sherman has an excellent video ready for immediate use.

Finally, in more extreme cases, we might escalate to the level of a mini-campaign. We try to avoid advancing to this response level for the obvious reason that we want to save our ammunition, so to speak, for the campaign. However, we would consider the mini-campaign with a relatively large unit and if we had a realistic belief that the union would be unable to get the necessary union cards. In order to file a NLRB election petition, a union must have a showing of interest of 30% of an appropriate unit. However, unions typically will not file with the NLRB unless they can get 60-70% of the unit to sign cards.

In summary, our experience here at Wessels Sherman has been that it is definitely time well spent to engage in strong efforts to stop the card signing. Routinely, this can be done and it saves the time and expense of a full-blown NLRB election.

For questions regarding this subject, contact WS Attorney Richard Wessels at (630) 377-1554 or riwessels@wesselssherman.com.