Union Election Defeat? All is Not Lost – You Can Still Win!
You lost a union election. Now the union is demanding you begin the collective bargaining process. You just want to throw up your hands and say, “Enough!”
All is not lost! You have a second bite at the apple.
There is no other way to say it – losing a union election sucks. Companies spend tens of thousands or perhaps even hundreds of thousands of dollars and a great deal of energy and effort trying to win their union election campaigns. Losing the election after such a tremendous expenditure of capital and effort leaves leadership feeling utterly defeated.
You don’t know it yet – but winning at collective bargaining is awesome! This article details 5 critical steps to winning at collective bargaining.
1. Don’t Be Bullied
“Bully employers into doing whatever you want” is one of the most used plays in the union’s playbook. The union is feeling emboldened coming off their election win. They are going to try to flex their newly won muscle.
The union will likely show up with a contract proposal and tell you to sign. If you are in the trades or service industry, the document is likely to be a Master Agreement. If you are not in those industries it will be a union-friendly agreement they have with another facility similar to yours. They will say these are terms negotiated by your peers and that they are reasonable. Finally, they will say the infamous, “everyone signs this agreement.”
DO NOT SIGN ANY AGREEMENT! I know, all caps, poor taste, like I am yelling at you. Well, if you were in front of me and telling me you were thinking about signing, I would speak these same words adamantly.
Do not sign anything the union presents you. The same union official that is trying to convince you they are looking out for you and get you to sign, is the same official who smeared the company for months leading up to the election.
Engage a professional, one who has extensive experience dealing with unions. You need someone focused on the company’s best interests and knows how to secure the terms necessary to protect those interests.
In case the point of the foregoing is unclear – do not sign anything the union asks, demands, or tries to coerce you into signing. This is the first crucial step to your collective bargaining victory.
2. Write a Full Proposal
What’s worse than an employer being bullied into union-drafted language that it had no say in creating? That same employer failing to take the opportunity to draft language asking for the terms it wants in an agreement.
Many companies do not realize they have the absolute right to make proposals for every term and condition of employment. This is understandable, the company already has terms and conditions in place. However, those conditions were created before a union became involved.
Studies have shown that costs for a company rise as much as 35% when a union is voted in before wages and benefits. The courts have held that a company has the right to offer less beneficial terms when engaged in collective bargaining. (see Pittsburgh Plate Glass Co., Chem. Div. v. N. L. R. B., 427 F.2d 936, 947 (6th Cir. 1970) Whether it is less, the same, or more that a company offers, the company must make an offer. Without its own proposal the company is accepting the union’s starting point for everything.
Hire an expert to draft a complete proposal that addresses all terms and conditions and protects the company’s interests fully. This is the next step in securing the collective bargaining victory.
3. Prepare a Strike Contingency Plan
The word strike puts fear into every business owner. The prospect that employees would refuse to come to work one day and cripple the business is more horrifying to a business leader than the worst nightmare imaginable. Want to make sure you get plenty of solid rest? Prepare a strike contingency plan.
The main goal of a strike contingency plan is keep the business open. Make a plan to do just that. Look to all sources. Pull supervisors, hire temporary workers, subcontract, talk to clients about delaying orders, whatever it takes. Most strikes last an average of three (3) days. Nearly every strike will have some “crossers”, employees who refuse to walk out on their job. You can survive a walkout.
Every employer can mitigate or virtually eliminate the adverse impact of a strike with pre-planning . This is the next step on the road to your collective bargaining win.
4. Don’t Roll Over
No matter how much it feels like it, you do not have a gun to your head. All the union won in the election is the right to sit down and bargain with the company in good faith. You have zero obligation to agree to terms that are not in the company’s best interests. The good faith standard is too much to unpack in this article, but see our blog on the topic here.
The takeaway is that you do not have to accept bad terms for any reason. You do not have to accept them to show you are willing to compromise. you do not have to accept them to appease the union. You do not have to accept bad terms for any reason. The Supreme Court of the United States set the precedent in 1952. In its opinion in National Labor Relations Board v. American Nat. Ins. Co. the Court cited the Congressional Record on the issue:
“It must be stressed that the duty to bargain collectively does not carry with it the duty to reach an agreement, because the essence of collective bargaining is that either party shall be free to decide whether proposals made to it are satisfactory.”
N.L.R.B. v. Am. Nat. Ins. Co., 343 U.S. 395, 403, 72 S. Ct. 824, 829, 96 L. Ed. 1027 (1952)
Do not give in and accept bad terms and do not give in on good terms the business needs to remain successful. This is the next step in securing a collective bargaining win.
5. Be Patient
The most important of the five steps – patience. If you execute the four steps above, you will win, guaranteed. That is unless you give up before reaching that goal. Don’t be bullied into actions that are detrimental to the business. Be sure to write a full proposal of what the company desires for the terms and conditions of employment. Be prepared to avoid a strike. Do not agree to bad terms and do not give up on terms vital to maintain the success of your business. All of the good effort on those items will be for nothing if you lack the stamina to see this through.
A Collective Bargaining Win – Guaranteed
“In this world nothing can be said to be certain, except death and taxes.”
Benjamin Franklin
Ben penned that famous quote in a letter circa. 1789. Follow the guidelines above under the skilled direction of a bargaining expert and you can add “winning at collective bargaining” to that famous quote. Of course winning is subjective. If your goal remains as it was during the election, namely to keep the union and their egregious terms and conditions of employment at bay, following the guidelines above will guarantee a collective bargaining win.
NLRA’s advocates are available to discuss the particulars of your business’ situation. Click here: Bargaining Consultation, to schedule a no-obligation chat. Remember, when saddled with a bargaining obligation after a union election defeat – all is not lost!
