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Thought Leadership

The Labor Law Insider: New Year's Resolutions for Maintaining a Union Free Workplace, Part I



Host Tom Godar welcomes Labor Law Insider alumnus Rufino Gaytán to kick off 2023. In a time when union activism is on the rise and employers are increasingly being targeted for union organization campaigns, the Labor Law Insider proposes resolutions which every employer can adopt to continue a positive pro-employee relationship and thereby making union organization irrelevant. Rufino is an experienced labor lawyer, often engaged in counseling unionized employers, and importantly, assisting those in maintaining union-free status in order to have a direct relationship with the employees. In part one of this podcast Tom and Rufino posit the resolution of offering excellent training to first- and second-line supervisory staff. This training is not only to acquaint them with legal pitfalls related to the National Labor Relations Act, but more importantly, to encourage the positive engagement, respectful treatment, and the opportunity to build relational capital with the employees for whom they have supervisory authority. Rufino suggests that unions often organize against the backdrop of a supervisor who has not had the training and seasoning to interact positively with his or her employees, creating dissatisfaction and opportunities to establish a reason for the union to be relevant and invited into the workplace.

The second resolution up for discussion was the pledge to provide or openly offer financial, management, and market information affecting the employer to the hourly employees. When employees are invited into the discussion, they better understand their role in the organization and, importantly, the organization’s success and marketplace challenges. Armed with that knowledge in a respectful atmosphere through direct communications with the employer, employees are much more likely to react to negative news with a certain level of understanding, rather than inviting a third party to represent their interests. Tom suggested this might be a simple resolution: “Treat your employees like adults.” They can handle the bad news and the good news and just want to be given their due as important participants in the employment experience.

In part two of this Labor Law Insider podcast, employers are challenged to offer the resolution of listening carefully to their employees and responding with respect, and reviewing policies and handbooks not only for compliance, but for hidden pitfalls.

Enjoy this podcast and please be sure to listen to Labor Law Insider part two which will come out before the end of January.

Read the Transcript

This transcript has been auto-generated using Adobe Premier Pro.

00;00;03;15 - 00;00;26;02
Tom Godar
Hello and welcome to Husch Blackwell's Labor Law Insider podcast. I'm your host, Tom Godar and together with my Husch Blackwell colleagues and thought leaders from around the country, we will discuss and explore the ever changing issues in the world of labor law. President Biden promised to be the most pro-union president ever, and he is fulfilling that promise.

00;00;26;17 - 00;00;35;06
Tom Godar
The next four years promises to be a wild ride. So buckle up and join us on the Labor Law Insider podcast.

00;00;37;19 - 00;00;55;13
Tom Godar
Hello and welcome to 2023. I'm really excited to kick off our 2023 labor law insider podcast with my friend, my colleague and labor law insider extraordinaire, Rufino Gaytán. Rufino, you graduated from the UW Madison, right?

00;00;56;01 - 00;00;56;29
Rufino Gaytán
I did, yes.

00;00;57;14 - 00;01;29;08
Tom Godar
That's great to have things to look forward to in 2023. Like favorite football team advancing, but there's also lots to look at in 2023 from the employment and the labor setting because we continue to have a really interesting administration. I gosh, a number of us were on the phone today in a meeting talking about the potential federalization of restrictions on noncompete agreements, which seems frankly too far away to worry about right now.

00;01;29;08 - 00;02;06;28
Tom Godar
But certainly the federal hold on labor law through the NLRB, through the current NLRB with its pro-union pro employee positions, has made the urgency towards employer reaction even greater than it has been in the past. We were thinking about this as Rufino and I and some of our colleagues talked about what would we do, what would we advise our clients to do to be prepared for 2023 and beyond as the rules of engagement with employees become, frankly, a little bit more treacherous?

00;02;07;13 - 00;02;37;20
Tom Godar
And in the spirit of New Year's resolutions, we decided that we would talk about resolutions that employers could take as they marched into 2023 to help maintain a pro employee and facility and relationship without necessarily creating opportunities for unions to say this is an employer that needs organizing because they're not paying enough attention to what they're doing to their policies and most importantly, to their people.

00;02;38;13 - 00;02;44;20
Tom Godar
So, Rufino, are you ready to talk about some New Year's resolutions that our clients ought to consider?

00;02;45;18 - 00;02;47;16
Rufino Gaytán
Absolutely. Absolutely.

00;02;48;26 - 00;03;22;22
Tom Godar
I resolve to carefully train my first and second line supervisory staff, not only to make them aware of legal considerations and standards, but more importantly, how to interact with their employees with respect, with dignity, and with keeping employee engagement in mind throughout the interactions. Can that be a resolution that one might consider if you're steering the employee relationships at a particular workplace?

00;03;22;22 - 00;03;59;00
Rufino Gaytán
It is definitely a resolution that I can get behind and that I advise all of my clients to to try to to meet those standards and have that as a goal every single year. You know, I think a lot of employers who have not had to deal with unionized workplaces a lot of times believe that maintaining solid benefits in a competitive wage package is all that they need to try to keep a union away from the workplace.

00;03;59;00 - 00;04;26;28
Rufino Gaytán
And while that certainly goes a long way, one of the one of the things that employees often complain about during organizing drives is lack of respect or feeling like they are not really part of the employer's overall strategy, or at least they have no input and they don't feel like they are treated with dignity in their workplace. So that is definitely something I can get behind.

00;04;26;28 - 00;04;51;10
Rufino Gaytán
It's something that I advise on a regular basis and it is a worthwhile effort to try to find ways to to make employees feel like they are part of the decision making process and that they have a say in what their working conditions will be like, what first and second level supervisors do, and how they interact with their subordinate employees.

00;04;51;10 - 00;05;08;02
Rufino Gaytán
That is typically where we see the biggest problems in terms of, you know, those complaints of lack of respect and not being treated with dignity. It's those two levels of supervisory personnel that really make make a difference. And along these lines.

00;05;08;27 - 00;05;37;06
Tom Godar
But I really agree with you and in particular, that last comment is telling it's not unusual for our clients and for management in general to promote an employee who has terrific attendance that's mastered the skills of his or her job, and that's demonstrated a sort of fidelity to the company. But that doesn't translate in many cases to understanding how to interact with subordinates.

00;05;37;06 - 00;06;02;19
Tom Godar
And frankly, it sometimes is even more difficult because on Friday they were up here and then on Monday they're the boss. And to help those employees navigate that change to put some training dollars, some thoughtfulness, maybe some mentoring, some other sort of steps into that engagement for those first and second line supervisors. I found can make a real difference.

00;06;02;19 - 00;06;28;01
Tom Godar
And to build that, that is low attrition. High employee satisfaction scores, a willingness for the whole team to work together, not just to be a good, quote, boss, creating a schedule and all that sort of thing seems sometimes to be lost in the early parts of someone's career, and it only takes a couple of months to muster that up so that you lost the respect and the engagement of the employees that you're called upon to work with.

00;06;29;05 - 00;07;09;12
Rufino Gaytán
That's true. And, you know, for employers, especially those who may not have massive resources to throw at these sorts of promotions and training, you know, components, it doesn't have to be a an additional cost. It can be, you know, has, you know, their supervisor talked to them about how they deal with employees and concerns brought to them, you know, emphasizing things like, you know, listen to your employees, emphasizing things like here's our our policy on, you know, prohibiting harassment and retaliation live by those three.

00;07;09;12 - 00;07;40;02
Rufino Gaytán
Right. Live by those requirements that we set for ourselves as management representatives and inform them and teach them about why those things are important. Now that you are a supervisor or as a supervisor, you not only represent yourself, but you are also acting to some degree as an agent of the company and when you engage in behavior that might be unlawful as a supervisor, that has different ramifications for us as an employer than it did when you were not a supervisor.

00;07;40;02 - 00;08;08;01
Rufino Gaytán
And so explaining to them why those things are important goes a long way as well. But again, it doesn't have to be a you know, a an additional line item in your budget. It's really more about just taking time, talking to those supervisors and saying these are the expectations that we have for you as a leader and here is how we expect you to conduct yourself and how we expect you to address employee issues when they are brought to your attention.

00;08;08;01 - 00;08;29;13
Tom Godar
I like that a lot. That's more than saying I resolved to lose £10. You're starting to talk about what kind of diet you're actually going to go on. I remember a client that every year had a meeting where all of the staff supervisors were there. I would conduct it sometimes all the times they conducted it internally, and the only subject was attendance.

00;08;29;27 - 00;09;02;27
Tom Godar
They had very exquisitely written attendance policies, but to how to actually act as human beings. When people call in how to respond, and most importantly, how to be consistent across departments, across employees that you don't like as much as other employees and all that. So they reinforce that every year because that was one of those things that can be such a, oh, an edgy thing for employees who think that they had a vacation day coming but found out that was taken off of the table or that they say Joe always comes in late and doesn't get in trouble.

00;09;02;27 - 00;09;19;09
Tom Godar
But Jill does. And now it's not just an employee dissatisfaction could even be discrimination. So let's talk about making sure you feel comfortable. That's your first and second line Supervisory staff know how to engage with the employees under their charge. Hey, can I try a new one on?

00;09;20;15 - 00;09;21;02
Rufino Gaytán
Of course.

00;09;21;12 - 00;09;43;09
Tom Godar
Let's try this one. I resolve to share financial manage Schmidt and competitive marketplace information with my employees on a regular basis to help my employees understand how we as an employer have to make changes to become and stay relevant in our marketplace. Any employers out there need to make that resolution.

00;09;44;26 - 00;10;08;17
Rufino Gaytán
I think there are a lot of employers who might cringe at the idea of sharing financial information with their employees and to those employers out there, I would say, you know, think about the issues carefully. And I'm not talking about, you know, sharing your secret sauce from a financial standpoint and, you know, giving away all your confidential financial information.

00;10;08;29 - 00;10;57;05
Rufino Gaytán
But talk about it in a way that employees appreciate, you know, receiving the information and then help them understand why their compensation is set, where it is or why their benefits package looks. The way it looks, if you can, especially when it comes to market data, If you can talk about your benefits, your total compensation package in terms of here's where we stand in our industry and compare it to, you know, what a competitor might be doing for their employees, employees generally appreciate that information and it helps them understand maybe why they didn't get a 5% raise, but did get 3% or 4%, or it helps them understand why their bonus was what it was

00;10;57;05 - 00;11;35;23
Rufino Gaytán
as opposed to what they were, you know, used to getting in in years past. All of that information, even when when it's not, you know, what an employee might want to hear, it helps them understand why you, as the employer, are making the decisions that you make. And again, it goes to that issue of feeling included as the employee, feeling included in the decision making, helping providing them additional information that helps them understand why their current status is what it is and why it's not better or why, you know, it's not worse off.

00;11;35;23 - 00;11;54;19
Rufino Gaytán
And they may be anticipated because sometimes employees do think that things are going to take a turn for the worse. And when you can reassure them because you're providing them a financial outlook that goes six months or a year out that might be rosier than what they were expecting, that also can be helpful, right? It might help with retention.

00;11;55;00 - 00;12;34;09
Rufino Gaytán
Somebody who is a good performer that was considering going to a competitor might think twice before doing that. If they know that the company is on solid financial footing and or, you know, they understand why maybe they didn't get as much of a raise as they did. And if you've got market data to go along with that, then that employee has to consider, you know, if if our industry is struggling as a whole, do I really want this time frame to be when I make a move to a brand new employer and lose all the goodwill that I've built up, you know, over the last years or however long I've been at my current employer.

00;12;34;09 - 00;12;53;03
Rufino Gaytán
So all of that I can get behind as well. I think these are good objective things that an employer can provide to employees, and it's information that is verifiable from other sources sometimes. So it also provides an opportunity to create some trust and build trust with your with your workforce.

00;12;54;08 - 00;13;24;25
Tom Godar
You know, a number of things come to mind. I think I could shorten this resolution to I resolve to treat my employees as adults. And this would be true, by the way, in both the union and nonunion setting. I often find it a problem when I'm helping an employer negotiate a contract to come in and shower them with all the financial reasons that they're going to be disappointed in bargaining rather than having had that as a dialog throughout the three years of the contractor so that there's no surprises when you show up on day one.

00;13;25;10 - 00;13;46;29
Tom Godar
But for nonunion employee employers, I remember well, I enjoy this. I'm sure you do, too, as do many of our colleagues on our nickel, not the clients just going out and saying, Tell me what's going on. What are your plans for the next year? Whereas the heavy lifting where you see a lot of success, just give us an idea of where you're going and we can help you get there a little bit better.

00;13;47;15 - 00;14;09;05
Tom Godar
And I was doing that and the client took me through the board presentation as the CEO that he was about to make, and it was a fascinating presentation in a troubled industry where the prospects for growth that year were not good. And I said, So what are you going to share this with the employees? And he looked at me like I had three eyes.

00;14;09;05 - 00;14;34;07
Tom Godar
I said, Really? Which of the confidential slides can you take out and share this with your employees so that they feel like they're part of the truck that's moving down the road because that helps them feel like they have some control or at least information about what's taking place. But if you know, you just say, well, we're going to have layoffs in March because things are tough and there was nothing that gave them a context for it.

00;14;34;07 - 00;14;46;07
Tom Godar
It makes it even more difficult. The client came around slowly to the idea that they could be sharing a lot more information to keep their employees engaged and to let them know that they're being treated as an adult.

00;14;47;18 - 00;15;22;20
Rufino Gaytán
I, I, yeah, I agree. It's it's all about, you know, empowering employees to one. I think they feel like they can actually come to you with questions, concerns, feedback, even ideas. But then also creating that opening for you as a management team, as a supervisor, a CEO, CFO, you know, whatever your title is, to respond directly to employees and you know, there's no better way to understand what makes your employees tick than to actually listen to what they're telling.

00;15;22;24 - 00;15;38;11
Rufino Gaytán
Right. And so creating all of those opportunities for that feedback loop is is, you know, that goes a long way towards keeping a happy workforce and keeping unions. If that's concern, keeping unions, you know, out of your workplace entirely.

00;15;38;27 - 00;15;58;07
Tom Godar
Rufino those are great insights. I mean, the idea of listening to employees is hardly new or novel, but that's terrific. And I thank you so much for spending time with us on this podcast. Are you willing I'm sure you are, to come back and we'll do a couple of more resolutions in the next week or so for our clients and our friends.

00;15;58;27 - 00;16;14;17
Tom Godar
In the meantime, Thanks again, Rufino, and thank you for listening. If you enjoyed the podcast, please share it with your colleagues and friends and we'll be back at you with two more resolutions before the end of January. Thanks so much and take care.


Thomas P. Godar

Of Counsel

Rufino Gaytán III

Senior Counsel