Tying Federal Contractor Hands: DOL to Require Public Identification of Employer Lawyers During Union Organizing
The Federal Department of Labor (“DOL”) has issued a proposed form revision that would require Federal contractors to publicly identify whether they use attorneys to inform their workforce about the realities of union organizing. Making no effort to hide the pro-union and anti-employer impact of this proposed revision, the DOL goes so far as to label an employer’s counsel as “persuaders” and called it an “unethical employer activity.” Such public identification can have a chilling effect on Federal contractors’ use of attorneys because it can reduce the Federal funding provided to the contractor; can be used by unions to spread division between employers and employees; and can increase the likelihood of union organizing efforts in Federal contracting industries where unions are already widespread.
Despite the DOL’s mischaracterization, an employer’s counsel before and during union organizing efforts is absolutely necessary and can be extremely beneficial for the employees as well as the employer by developing effective employee-relation programs that make union organizing efforts unnecessary for employees. With counsel as a guide, the employer can implement policies and practices that work in the best interest of employees and provide the best legal defense plan in the event of union organizing efforts.
Vulnerability to Union Organizing
Even before union organizing begins, legal counsel for a Federal contractor is crucial. The most important aspect to ensure that your employees do not want a union is consistent, positive employee relations. Companies vulnerable to organizing efforts are those with high turnover due to poor work conditions or compensation issues and higher numbers of complaints from employees regarding treatment by supervisors. Company management should regularly communicate with supervisors and managers who work directly with first-level employees to determine what complaints employees have and how the company can address them. Employers should also periodically conduct compensation reviews to determine whether their compensation and benefits are competitive in the industry and internally consistent and defensible.
Implementing Policies and Practices
Employees often turn to a union for representation when they feel as though the employer provides no avenue to be heard, and no procedure for how to address employee complaints. To ensure that employees are heard and complaints resolved, employers need to implement written policies and procedures in a company handbook that spells out the expectations of employment, the company’s open-door philosophy, and provides practical steps that employees can take to have workplace complaints resolved. Employers should then provide training to its supervisors and managers, as well as the employees, explaining the company’s handbook, how employees can relay complaints to management, and how management will resolve those complaints promptly and thoroughly. After these foundational policies and practices are implemented, the company then needs to periodically review its employee relations to determine that the policies and practices are properly executed by its supervisors and managers and resolve any issues that arise.
Developing a Legal Defense Plan
Just as employers have contingencies in the event of a catastrophic storm, plans need to be made to deal with the advent of union organizing. There are specific issues that need to be explored before a union drive including which employees might be part of any bargaining unit, what will be done to protect its confidential information, and how the supervisors will be trained to communicate and act in a legal fashion. The plan should be developed as much as possible with attorney-client privilege.
As union organizing efforts continue to spread across the country and the Federal government continues in its pro-union activity, every employer (especially Federal contractors) should pay attention and ask whether employees are being heard and are satisfied with their work conditions—because unions are continuing to receive encouragement to increase organizing efforts and employers must be prepared.