Attorney: Prepare for union inroads
Union offers costly lessons on employee relations, keeping labor records
By MATTHEW WEAVER
When a union came to organize his dairy's workforce, Patrick Johnston was caught off guard.
Johnston, co-owner of the Rocking S Dairy in Modesto, Calif., said unions had not historically been active on dairy farms when the United Food and Commercial Workers union informed him it would be campaigning on his operation in 2007.
"They perfectly blindsided us, hit us a day before I was planning to go on vacation for 10 days with my in-laws. That obviously got canceled," he said. "We found out later they'd been working on it for six months to a year."
Johnston called his attorney and a labor-consulting company to develop a strategy.
Fresno, Calif., labor attorney Anthony Raimondo, who worked with Johnston, said every labor dispute is unique and every situation is fluid. His general approach is to be aggressive whenever possible and put pressure on the union.
A dairy owner's response depends on the state. Generally speaking, labor relations, including employer-union issues, are governed by the National Labor Relations Act, with exceptions including public employers and agriculture, including dairies, he said.
Most states do not have laws governing union organizing in agriculture.
"It's a little bit of the Wild West in a state where there is no law," Raimondo said.
In those situations, the union's only option is to put pressure on the employer to recognize it voluntarily.
"They would rather try to bring the employer to its knees to compel the employer to recognize the union as the bargaining representative of the workers," Raimondo said.
During the time leading up to a union election, the laws are laid out so the union can essentially say anything and the dairy owner cannot say much, Johnston said. If the owner makes a mistake, the penalties can be huge, he said.
"If the union ... breaks laws, the only recourse is 'We'll do the election again,'" he said. "They don't really have much at stake like the employer does."
Johnston decided to diligently work toward an agreement that would make him more profitable as a business if the union remained.
"I did not expect things to go so much according to the plan we laid out," he said. "We basically got everything we ever wanted when we wanted it."
The union ultimately received enough signatures to hold an election. The operation was under a union for about a year and a half, then employees voted the union out in 2009. By that time, Johnston said, most of the dairy workers who had initially voted for the union had left.
Some were terminated under the contract and interim agreements the dairy made with the union, which outlined rules and disciplinary procedures. Many employees simply left because it became easier to find another job at a different dairy than fight with the union, Johnston said.
Johnston said he never took on the responsibility for making his employees feel comfortable with the union.
"Their relationship with their union was like their relationships with their wives, it was their business," he said. "I didn't deal with the employees. Legally, I couldn't."
Johnston said the agreement might have made the dairy look more attractive to some other workers, but offered fewer benefits for existing workers. He paid his employees less after the union came in, he said, and went from spending $25,000 in employee benefits per month to about $5,000 a month.
The pay went down while the union was in place at Johnston's business, but has increased since the union left, he said, specifically in terms of bonuses and incentives.
Before the union ever shows up, Raimondo advises every employer to have a labor relations plan in place.
"One of the biggest challenges we have in agriculture is communication," he said. Agriculture has a predominately Spanish-speaking workforce with English-speaking management and ownership.
Usually a union-organizing campaign begins because of a communication breakdown with workers, he said.
Raimondo said the belief is that most union-organizing campaigns are about wages and benefits, but in his experience the triggers are worker concerns about treatment, unpopular supervisors and the perception the company does not care about them. Unions will try to feed on any element of worker discontent, Raimondo said.
Companies that have effective communication between workers and management are usually successful at remaining union-free, he said.
To protect a farm from pressure tactics, Raimondo advises owners to make sure they comply with wage, safety and immigration law requirements.
When the union shows up, Raimondo suggests employers get advice from someone experienced in dealing with labor disputes and relations. Public relations, legal and strategic issues all need to be addressed.
Raimondo said he is cautious about having his clients speak out publicly.
"The media battle often becomes one you can't win," he said.
When the union makes an "inflammatory" allegation and the employer tries to respond, it keeps the news cycle going and serves the union's purpose, Raimondo said.
"Usually what we're trying to do is have those stories die out and the news cycle move on to something else," he said.
Johnston notes that keeping employees happy is the first step to protecting against a union.
But ultimately, he doesn't know that an owner can prevent unions from coming. He recommends reducing any potential leverage a union might have.
Keep good records, he emphasized, noting the unions often send in attorneys for any sort of violation. His dairy records employees' time cards to the minute on a computer and paper, he said.
"If you're not using an electronic, computer-based time-clock management system and you have more than 10 employees, you are 100 percent playing with fire," he said. "I did before because it was easier, but I didn't realize the degree to which it would cover my butt."
Once the union arrives, it depends on the owner's stomach for conflict, Johnston said. There are many options, he said.
Politically, unionization has to be a concern for every employer, he said. He suspects his dairy is less of a target now because some employees had the experience of trying to vote the union out.
Johnston said he doesn't know of a single dairy that would have been better prepared for a union, but it was still a financial burden and a lot of work.
"I'm here to tell you no matter what you do, it's going to cost you a huge amount of money," he said.