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Thought Leadership

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



In part two of our Labor Law Insider podcast regarding New Year’s resolutions for maintaining a union-free workplace, Tom Godar once again welcomes Rufino Gaytán. In part one, Rufino supported the resolutions that employers offer training to first- and second-line supervisors and provide financial, management, and market information to hourly employees. Adopting these resolutions are important steps for employees to be treated well and given an opportunity to experience the workplace as a respected member of a team, rather than merely a necessary functionary to complete a service or product. Unions do not compete well with employers who work to engage employees in a meaningful workplace experience.

In part two of this podcast, Rufino and Tom explore the importance of actively listening to employees and giving them an opportunity to constructively share their insights regarding the workplace. The other side of that coin is the employer responding to the ideas, criticisms, and suggestions that hourly workers and others might offer. This allows employers to engage and to respond to employees without the need for a third-party union to speak on behalf of the employees.

Finally, Tom and Rufino offered the time-tested resolution of reviewing employee policies and standards, both to ensure that they accurately tell the story of what the employer and the employees can expect in the workplace, but also for compliance with ever-changing enforcement interpretations and regulations offered by the National Labor Relations Board. Handbooks that are clearly written and up to date can reinforce shared expectations and opportunities that reward employee effort and leave little incentive for employees to seek unions. Policies that are compliant with changing standards leave little room for unions to exploit small deviations that can be a springboard of claiming unfair labor practices and building a unionizing campaign from those noncompliant polices.

Getting the basics right means listening to and respecting employees, having well trained supervisors, offering information that shows respect for the participation of employees in their workplace, and crafting policies that are not only compliant but display the employer’s eagerness to engage with employees. These resolutions will pay dividends in maintaining a direct relationship with the employees.

Read the Transcript

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

00;00;00;21 - 00;00;26;21
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. The next four years promises to be a wild ride.

00;00;27;00 - 00;00;32;15
Tom Godar
So buckle up and join us on the Labor Law Insider podcast.

00;00;35;00 - 00;01;11;04
Tom Godar
Welcome back to the Labor Law Insider Podcast. I'm really excited to be joined by Rufino Gaytán, my colleague and friend who practices out of our Houston Husch Blackwell office. Recently, Rufino and I talked about resolutions to maintain a union free status, and it's been a few times on a couple of resolutions, partly training our supervisors and also reminding employers and our friends that listening is a really important art in the area of maintaining a pro employee shop.

00;01;11;20 - 00;01;54;27
Tom Godar
Today, we're going to explore a couple of more resolutions with Rufino. And so let's get started right away. Well, there's an old saw that you're given two years in one mouth and have to listen. So let me try on one with your wonderful last statement, this segway to another potential resolution. I resolve to spend the next six months listening to my employees, offering them opportunities for critical input, offering them opportunities to suggest changes and improvements to their workplace, to their compensation, to the flexibility they enjoy, to the overall employee engagement, and to respond to that input.

00;01;55;23 - 00;02;00;29
Tom Godar
Is that realistic? Is that a resolution that somebody can make or is that like saying I resolve to bring world peace?

00;02;02;27 - 00;02;37;28
Rufino Gaytán
Well, no, I think it's a very realistic resolution. And not only is it realistic, but I think it's also necessary. You know, I when I advise clients during union organizing drives, one of the talking points that is very common in all of these drives is this idea that if you bring in a union, you're bringing in an outside party and we no longer have this direct relationship with you as our employees.

00;02;38;20 - 00;02;56;09
Rufino Gaytán
If I want to if you come to me with, you know, seeking an exception to any sort of a policy, it's not something that I can automatically give you because I know it's what you want and it works for us. I have to make sure that your union is on board with that exception as well. And it doesn't create problems for us.

00;02;56;10 - 00;03;27;11
Rufino Gaytán
On the on the union front, when you as an employer has already created a culture where employees are free to come to their supervisors, to discuss problems, concerns, provide feedback on how to improve, you know, safety or employee morale, all of those things you have, that culture, that talking point really hits home and it's a talking point that it's not even really a talking point, right?

00;03;27;11 - 00;04;07;09
Rufino Gaytán
You're just pointing out to employees, here's what you stand to lose. If you do introduce a third party into this discussion that from my perspective, is one of the most effective ways to push back on union organizers. It's one of the most effective ways of keeping them from coming into your workplace to begin with, because most employees who feel like they are valued and feel like they have true opportunities to improve their own life in their workplace are much less likely to want to rattle that dynamic, right?

00;04;07;09 - 00;04;42;04
Rufino Gaytán
So they want to keep the status quo. The status quo is going to be good for them. They don't know what a union might actually do necessarily and how it might change that dynamic for for better or for worse. So, you know, keeping that uncertainty in that employee's, you know, top of mind, essentially, I think, goes a long way to keeping union organizers out of out of your workplace because, you know, happy employees don't necessarily need and usually don't want a third party to interfere with their relationship with their supervisors.

00;04;43;17 - 00;05;07;19
Tom Godar
I had a client that was a union unionized and the CEO determined there were probably 200 employees that on a random basis she would go and have lunch with three employees or something like that every two weeks and just lunch. There wasn't an agenda and it was just allowing the employees to have access to the CEO to talk.

00;05;08;02 - 00;05;30;18
Tom Godar
And guess what? 18 months later, there was no yet the ability for employees to say that senior level management disengaged on this thing was a huge part. I think of the message that that luncheon share. Let me let me round this out with just one more resolution. There could be others. But much of what we're talking about the same.

00;05;30;18 - 00;05;56;02
Tom Godar
But this one sort of a blocking and tackling resolution, which I think especially with the changes that we're seeing through the changes at the NLRB, is probably essential for all of our clients. So let me try it on and see if you agree. I resolved to review my employee policies and handbooks and to make sure they do not run afoul regarding the new employee confidentiality.

00;05;56;02 - 00;06;03;25
Tom Godar
Communicate science and discipline standards now being enforced by the National Labor Relations Board.

00;06;04;09 - 00;06;32;08
Rufino Gaytán
Employee handbooks are one of the most, if not the most important document that an employer can have it. It actually is a form of communicating with your employees. And the most important thing is, you know, it may not even require that you make any changes, but I always recommend annual reviews of employee handbooks and workplace policies. For one, you want to make sure that they're still accurate, right?

00;06;32;08 - 00;06;57;19
Rufino Gaytán
So there's nothing worse, really, than putting out a policy that doesn't actually get followed in practice. So if you've got one of those that comes up over the course of a year, now is as good a time as any to go back and look at it and say, Hey, this isn't actually what we're doing. Let's revise the language so that it reflects the reality and and it keeps employees informed and well informed about what your policies actually are.

00;06;58;04 - 00;07;25;25
Rufino Gaytán
The other point, which is that I think the premise of the question is, you know, is everything in there still lawful? And as we've learned, you know, whether it's, you know, equal employment issues or harassment type issues, you know, the NLRB standards are changing constantly from one administration to another in recent years. Do you have any concerns about the legality of many of your policies?

00;07;26;05 - 00;07;46;09
Rufino Gaytán
And if you do, whether this is, you know, the time to make those revisions as well? Sometimes. And a lot of clients fall into this category as well, you realize that you have a potential issue, but you're willing to take that risk. And as long as you're taking those risks informed of the potential consequences, then that's okay, too.

00;07;46;09 - 00;07;55;10
Rufino Gaytán
And, you know, but at least you're doing that with all of the information that you need at your disposal to maintain that policy as is.

00;07;56;22 - 00;08;26;19
Tom Godar
You know, we've talked about this, obviously, and some of our other in Labor Law Insider podcast is that an employee policy, employer policy, as simple as you may not share wage information with your coworkers, not only is probably unenforceable under the NLRB, but might be seen as just merely being included as a ULP feeding all sorts of resources to a a union that's working on organizational efforts.

00;08;26;19 - 00;08;52;28
Tom Godar
Even though it's never been enforced. No one's ever really cared. So yeah, that that kind of cleanup can be important, even if it doesn't seem terribly relevant at a given moment or down the line, it can be terribly important. Well, this has been a lot of fun. I know that you'll be joining me as long as well as other thought leaders from around the country, both inside and outside of Husch Blackwell for Labor Law

00;08;52;28 - 00;09;26;23
Tom Godar
Insider podcasts down the line where we talk about some things that are meatier, perhaps, or perhaps more topical. But I don't know that anything can be more important than some of the basic listening sharing, treating people with respect, making sure that your handbooks and policies are up to snuff legally. I think this is good stuff, and I bet you that a number of our listeners will go back and say, I think that we could probably stretch a little bit and do a little bit better on these resolutions.

00;09;26;23 - 00;09;30;06
Tom Godar
in 2023. Rufino, final thoughts?

00;09;31;06 - 00;09;59;29
Rufino Gaytán
Yeah, I couldn't have said it better, Tom. It's really all about getting the basics right, creating that solid foundation for your workplace standards, and making sure that your managers and supervisors understand what your goals are as an organization when it comes to dealing with employees and how to treat them. And then everything else, you know, all the sort of minutia and the details, the day to day stuff, it will all fall into place if you have that solid foundation.

00;09;59;29 - 00;10;02;02
Rufino Gaytán
And that's what I think this is all about.

00;10;03;08 - 00;10;19;07
Tom Godar
Terrific. I'd love it for any of the listeners to drop a line to Rufino or me or the Husch Blackwell lawyer that you might work with saying, Hey, this is how I use some of the information from the podcast, and of course share this with others as you go along. And that's how we can share the good news in 2023.

00;10;19;23 - 00;10;34;09
Tom Godar
Rufino, thank you so much for laying aside an hour or so for this and preparation for the time that we spent live online and we'll talk to our listeners again soon. Take care.


Thomas P. Godar

Of Counsel

Rufino Gaytán III

Senior Counsel