Unions work to entice high-tech workers

Recent layoffs at Amazon.com Inc. and other dot-coms have some people wondering: Would the affected employees have fared better had they been organized under a union contract?

A collective-bargaining agreement might, after all, have entitled them to choose wage cuts or a shorter work week as an alternative to layoffs, or they might have received a longer notice period and a fatter severance package before they had to clear out their desks.

As it turned out for some Amazon customer service center employees in Seattle, the company’s layoff announcement came just as their efforts to organize gained momentum. Meetings that began in October at a Seattle pizza parlor got as far as a vote in favor of affiliating with the Washington Alliance of Technology Workers (WashTech) before Amazon announced plans to close the center and lay off all the employees.

Now, the employees are asking management to have a meeting to clarify issues that the workers feel were left unanswered, said WashTech organizer Gretchen Wilson. In addition, Wilson said the union planned to “pursue a federal investigation to find out what was at play during these layoffs” given that an organizing effort was under way. Such an investigation would involve the National Labor Relations Board (NLRB), which would look into whether the employees were properly notified and whether appropriate discussions were held, Wilson said.

Despite the blow to the organizing efforts, recent statements by top labor officials make it clear that unions intend to continue to push into the technology workforce and make a strong case for unionization, and they pledge to tailor the pitch to the concerns of high-tech workers.

Unions have to find a way to address new workforce issues, said John Sweeney, president of the AFL-CIO, in a luncheon speech Monday at the National Press Club. The loss of industrial jobs in the U.S. has hurt union membership, but Sweeney predicted new techniques to organize workers in the new economy ultimately will be successful in building a stronger labor movement.

“There are good indications that (attracting high-tech workers) has to be a different strategy from the way we did organizing in the past, and we are trying some new techniques in terms of how you organize and how you reach out to workers,” Sweeney said, citing the efforts of Communications Workers of America President Morton Bahr in Silicon Valley and the Pacific Northwest.

“It’s at the very early stages, but we are certainly reaching out to those workers and meeting with groups of them to develop the techniques that they think will be the answer to the grievances and complaints that workers in that industry have,” Sweeney said.

In addition, Sweeney, accompanied at the luncheon by Senator Edward Kennedy, a Democrat from Massachusetts and a long-time friend of labor, said the union would attempt to focus Congress on public-policy employment issues, including the use of permanent temporary workers, independent contractors and home work.

Whether or not efforts to unionize technology workers pick up speed, there are things every company should know about U.S. labor laws, including the “new techniques” Sweeney referred to, in order to steer clear of conflict with their employees and with the NLRB, say lawyers who advise companies on labor issues.

The first is to listen to workers and keep an open-door policy in which employees are asked to bring grievances to the attention of management so they can be dealt with, said Frank Connolly, a lawyer in the Reston, Virginia, office of Piper Marbury Rudnick & Wolfe LLP.

“There are risks of unions moving into (the high tech) sector if employers are not vigorous about maintaining communications and paying attention to their workers’ needs,” Connolly said.

Companies that want to continue as nonunion operations should train managers to recognize where vulnerabilities lie, he said. In the early days of the labor movement, an employer knew about efforts to organize if there was a guy in the parking lot handing out leaflets, Connolly said. These days the organizers might be using company computers and e-mail accounts in their organizing efforts, and a company is limited in what rules it can impose after an effort to organize employees has begun.

For example, if a company’s policy allows employees to use their e-mail accounts for personal messages, they can’t limit the content of the e-mail by saying personal e-mail is permitted as long as no union activity is discussed, Connolly said. Along the same lines, a company that monitors e-mail content would be well advised to make sure the policy is clear to employees so they have no expectation of privacy, he said.

Labor attorney Fred Braid of Holland & Knight LLP also said companies should prepare themselves for any organizing effort by understanding some of the basic NLRB definitions, such as “solicitation,” which generally refers to verbal communication about a union organizing effort designed to elicit a response, and “distribution,” which refers to written information, such as a pamphlet or poster. Companies will have to wait, however, for an understanding of how the NLRB views union communications posted at Web sites, he said.

“This is really a new medium of communication that’s being looked at, and the question is how are the old rules going to apply to this new medium,” Braid said.

For example, is information posted at a Web site and information sent in an e-mail like a traditional bulletin board posting or a solicitation? While the NLRB has protected the rights of employees to talk about a union with other employees (solicitation) on their own time while at work, it has said other rules apply when it comes to union communications posted at traditional bulletin boards and the distribution of information on paper, Braid said.

In the case of traditional bulletin boards the NLRB has said that if an employer restricts their use to company business only — if no notices about Girl Scout cookies for sale are allowed, for example — and enforces the policy, then in a union organizing campaign the company could legally prohibit union employees from using bulletin boards for union organizing literature.

So far, no case has reached the NLRB on whether Web sites are more like traditional bulletin boards and therefore are subject to more restrictions than solicitation, but Braid said he wouldn’t be surprised if the issue ultimately had to be resolved by the U.S. Supreme Court.

“Until it’s clearly decided where the board and the courts are going to come out on this, I would encourage employers to acknowledge the Internet,” Braid said. Because it’s too difficult to police a complete ban on the use of company computers for personal communications, he recommends companies create a policy that says:

– The company’s computer and network system is the property of the company;

– It can be used occasionally for personal use on the employee’s own time according to company rules;

– Personal use of the system must not interfere with an employee’s job responsibilities; and

– Personal use of the system must not impede the performance of the system.

Though some companies might feel overwhelmed by the latest recommendations on how they should address a possible unionizing effort, Connolly said they needn’t be terribly alarmed because high-tech workers have been difficult to organize. They typically balk at the notion of “rewarding mediocrity,” he said, preferring instead to seek opportunities to be recognized and promoted for their individual achievements.

“You’ve got people who are automatically going to be skeptical about unions for a number of reasons,” Connolly said of high-tech workers. “They come to these companies knowing they are startups, but they like the flexibility and the creativity … and the fact that they are not in a lock-step position.”