Full disclosure: I have never been on the losing side of an election where I was the responsible HR professional.  As a result, I have never had the pleasure of being caricatured in union literature, publicly called a management stooge, and later had to work closely with the folks that launched such criticisms.  That said, you need to look at a lost election objectively and move forward whether you are an HR or a business professional.

The key to implementing an effective labor relations program after losing a tough election campaign is to move forward.  Further, the effectiveness of any professional in labor relations is to avoid the unproductive vortex of union bashing and to refocus on the need to think strategically.

I - The Aftermath of Losing an Election:

Step #1: Admit you have a problem:

Don’t blame it on the NLRB, the terrible judges, the lying union leadership, one rogue manager, or even pure luck.  Even if the arguments are all true, there is no crying in labor relations.  Unfortunately, the availability of legal appeal after legal appeal makes it very easy to keep convincing yourself that you didn’t actually lose.  Keep in mind, just about everyone has a vested interest in holding to that belief:

1. Local Operations Management and the local Human Resources Manager will not want to admit that the employees really wanted a union;

2. Senior level Human Resources leadership will view the lost election as either local managements fault or their own failure to intervene early enough in a tough situation;

3. Senior Management will blame the local management team, the union acting improperly or other outside forces;

4. In-house counsel will want to continue the fight and appeal in an effort to win;

5. Outside counsel and consultants will fight to the end because they don’t want a loss on their record and they are getting paid the entire time.

The only way to assess your chances of “winning” an appeal is to get an honest second opinion.  Go to outside counsel that you have never done business with before for labor relations and probably will never do business with again.  Put together a synopsis of the situation highlighting your best arguments.   Then ask two questions: realistically, what is the likelihood that we will win in the end (meaning have no union) and how much will it cost us to take that chance.  Calculate the true cost per employee in the bargaining unit: Cost of fighting x chance of winning/number of employees.  I humbly suggest that if the formula yields anything greater than $1500, it is an easy decision.

Assuming that you have decided that you are ready to deal with the union and move on . . . .

Step #2: Use the Leverage You Have

Companies tend to “go for broke” after an election.  The failure to recognize a losing position means that many outcomes are a complete loss for the Company.  Now is the time to propose:

1. dropping all challenges to the election in exchange for tweaking of the bargaining unit.  Face it - there are often groups the Company has pushed into a unit in order to win the election.  When the union wins, those employees don’t want to be in the union and the union may give them up to avoid a headache.

2. dropping all challenges in exchange for an understanding that the Company is going to hold to a position of keeping all the represented employees in the standard benefits plans.  (Some might argue that this type of understanding will not be binding on the union.  True, but the Union is unlikely to hold together support to go on strike on an issue where the membership was already prepared to accept the deal.)

3. dropping all challenges and agreeing to negotiate immediately in exchange for a side agreement that the union can not strike for any reason until after a critical time for the business even if impasse is reached or ULPs are found.

Step #3: Use The Recent Experience to Drive Negotiations Strategy

I have seen the regret over a lost election cause management employees to lose focus in negotiations.  There is a great temptation to “screw” the employees.  “They made a choice to go with the union, so let them suffer.”  Ultimately, though, management still has a responsibility for keeping the workforce productive.

Don’t just accept outside counsel’s (or the union’s) standard template.  There will be a tremendous amount of language that is pro forma, but don’t forget that this is the best opportunity you will ever have to get with your supervisors and tailor the language to your liking.  You just went through several months of identifying the reasons you didn’t want a union - use that knowledge to your advantage.

I recommend asking your leadership to fill in the following blanks:

The reason we didn’t want a union was because ________________________;

A union might be helpful because ___________________________________;

Use the lists as your basis for starting to develop a negotiations strategy.

We didn’t want a union because:

1. Wages would go up . . . . keep to a 3% budget increase in the contract;

2. We would lose flexibility . . . . do not agree to restrictive classification work rules;

3. We will have to go through the union to communicate with our employees . . . . do not agree to call in union representatives except where discipline is being issued or at the employee’s request;

4. We will need “just cause” to fire someone . . . . . do not agree to “just cause” language and propose an alternative.

A union can be helpful because:

1. All pay rates are negotiated . . . . use this as a cover to consolidate the pay rates and stop giving extra money to several long term employees in the “grandfathered” classifications;

2. Everyone in the same job does the same job . . . . stop allowing the most senior clerks from not going on the floor - the job requires it, and now they have to do it.

II - Ongoing Negotiations:

It is critical that you continue to ask management to fill in the following blank:

“I hate having a union because it prevents me from __________________.”

I suggest that most of the inappropriate and unnecessary whining comes in the information gathered in this way.  There are very few ideas that can’t be addressed in negotiations.  It is important that you encourage first line supervisors to raise any concerns that they have.  Make these your negotiating priorities and hold management accountable for taking advantage of the new flexibility.  

Finally, make it clear that there will be no blaming of the union privately without proposing something for the next negotiations.  This is not in an effort to accomplish some sort of union-management harmony, but to focus everyone on the fact that both parties must agree to the contract.  Every few years, management has the opportunity to correct past practices and  the contract’s failures.  Sadly, management tends rely on standard “no past practice” language to avoid conflict.  Be articulate with letters of understanding and demand agreement.

“This memo is simply to recognize that the Company has put the Union on notice that it will no longer simply pay employees who are accidently missed on the overtime list as long as it was an honest mistake by the supervisor.”

“This memo is to memorialize discussions about the reinstatement of John Smith that was ordered by an arbitrator claiming that our employees were not “on sufficient notice that theft from cafeteria services of candy or other sundry items” could result in termination.  The Company has made clear and the Union has reluctantly agreed that all employees are aware that even the smallest of theft anywhere on Company property will result in immediate termination.”

Conclusion:

Don’t get caught up crying about a situation where you have a union - take some action and make it better.