The president announced the appointment of three Democrats to the NLRB, which formulates rules on workplace union recruiting and elections. The three are:

• Sharon Block, the Deputy Assistant Secretary for Congressional Affairs at the U.S. Department of Labor. She has served as as staffer for the late Senator Edward Kennedy and as senior attorney to the NLRB.
• Richard Griffin, the General Counsel for International Union of Operating Engineers (IUOE). He also is on the board of directors for the AFL-CIO Lawyers Coordinating Committee.
• Terence Flynn, Chief Counsel to NLRB Board Member Brian Hayes. Flynn previously was an attorney with the Labor and Employment Group of Crowell & Moring.

The three were named as recess appointments and without confirmation, which the law allows when the Senate isn’t in session. However, since December 17, the Senate has been holding pro forma sessions every four days. Senate Republicans are arguing that the sessions preclude recess appointments, since the Senate isn’t officially in recess.

The Obama administration parried that with a 23-page memo from the U.S. Justice Dept., stating that the president has the constitutional power to make recess appointments during pro forma sessions when lawmakers hold pro forma sessions in which no business is conducted. Senate Republicans are pondering their next legal move.

Meanwhile, the National Right to Work Foundation has filed a motion in federal court challenging the legality of the recess appointments.

Starting April 30, employers will have fewer options when it comes to stopping an election to unionize employees.

As expected, the National Labor Relations Board approved a set of rules designed to speed up the union-election process and hinder employer efforts to fight that process.

The new rules take effect April 30. They amend existing procedures by:

• giving a hearing officer authority to limit the pre-election hearing to matters relevant to “question[s] concerning representation.” The practical consequence of this change is that employers may not know which employees are eligible to vote until after the election takes place.
• authorizing the hearing officer to decide whether to permit briefing after the pre-election hearing, including the subjects to be addressed and the timing for filing
• eliminating the possibility of employer appeals of pre-election matters, thus cutting the time between the filing of an NLRB election petition and an election; estimates set that time at 28 to 35 days between the filing of the election petition and the election
• narrowing the circumstances in which a request for special permission to appeal to the Board would be granted; such permission would be granted only in extraordinary circumstances when it appears that the issue addressed in the appeal would otherwise evade review, and
• giving the NLRB discretion to hear and decide any appeals to the election process, whether they concern pre-election or post-election issues.

The NLRB’s rationale for changing the rules: The action will reduce “unnecessary” delays and litigation; in 10% of the cases, employers file formal challenges to unionization votes, a move that often delays such votes by a month or more.

The full text of the final rule can be accessed at the NLRB website.

Fact: The policies and practices many companies use every day in the sales and credit process could actually be triggering antitrust violations.

That was the topic of a jam-packed session at the recent National Association of Credit Management Western Region Conference in Las Vegas.

It’s not just an issue for large companies. In fact, it’s easier than you may think to fall into the traps.

Whether it’s your sales force, a customer service rep or a finance staffer, any one of these little moves could inadvertently run you afoul of antitrust laws, which carry penalties up to $1M for individuals and $100M for companies.

Here’s what you need to know to make sure their moves don’t grow some civil (and even criminal) penalties for you and your company.

Changing terms

They’re critical to your company’s cash flow: customers’ payment terms. But there are issues your company need to beware of:

• Shortening terms. True, getting customers to pay you sooner will give your cash flow a boost. But if you tighten up on terms for some customers but not others without a legit business reason and a policy saying you can (like for delinquent customers), you could be in trouble.
• Offering special terms. Especially now, finance staffers have been forced to get a little more creative with customers to keep them paying you. But if you offer to extend payment terms to some customers but not others who compete in the same market, buy the same product or compete in the same level in the market (buy the same quantity from you), antitrust laws may be violated.

Adjusting pricing

Even if you’re confident your terms are fair, you also need to watch another key part of the process: pricing. Particularly watch Sales. In an effort to seal the deal, they may make promises that violate antitrust laws:

• Incentives to buy more. Who doesn’t want customers to buy more (and more often)? But you must be careful about how equally all the following are doled out: credits, rebates and return programs.
• Volume discounts. Buy more, save more – makes sense, right? Could land you in hot water if smaller customers who can’t buy as much as the big guys balk. Tiered pricing is a better (and safer) option.

Talking outside of school

Sometimes it’s not even what your company does but what it says that could trip antitrust laws. Simply oversharing about a specific customer is enough to cause problems. Where that’s especially easy to do:

• E-mail. The “informal” medium continues to get companies in trouble when employees offer up too many details about an account. Remind staffers to be as objective as possible when emailing about the credit risks of a certain customer. And urge them against over cc’ing – not everybody needs this info.
• Trade groups. This can be an invaluable resource for your credit staffers. Let staffers know they can discuss payment histories, as they’ve actually happened with a customer. But urge them never to talk about pricing, competition or do any speculating about what will happen to a given customer.

Based on Richard Macias’ presentation “Antitrust: The Mine Field Every Trade Supplier Must Cross” at NACM’s Western Region Credit Conference.

In the case, Ardis Health, LLC v. Nankivell, not until after the employee left the company did someone realize that the departed worker was the only one with knowledge of passwords needed to access various types of electronic information, including company websites and social-media pages used for marketing.

The company quickly demanded that the ex-employee surrender the passwords. The ex-employee — who apparently left the company under less-than-ideal circumstances — refused. The two sides marched into court to settle the issue.

A judge ruled in favor of the employer; the ex-employed was ordered by the court to hand over the passwords.

That’s a relief to all types of companies, since nearly all have some sort of confidential electronic info that’s often protected by passwords. Still, it points out another problem that managers should be aware of: Make sure the passwords are in the possession of at least one backup employee, in case the primary holder leaves or is unavailable.

Doing so would have saved this company from having to fight an expensive court battle — and experiencing denied access to information while waging the legal fight.

In just a few months, we should know whether the Patient Protection and Affordable Care Act will become law or become extinct.

The U.S. Supreme Court has announced the 2012 dates and agenda for oral arguments in the lawsuits challenging the validity of the act:

• On March 26, the court will hear arguments on whether there are grounds for abolishing the Act’s individual mandate provision before the mandate actually goes into effect in 2014. Attorneys for the Obama administration are arguing that opponents would have to wait until the provision takes effect before petitioning the court. The court has allocated one hour for this argument.
• On March 27, the court will hear arguments on whether Congress had the constitutional power to pass the individual mandate provision. The Court has allocated two hours for this argument.
• On March 28, the Court will hear arguments on whether, if the individual mandate provision is unconstitutional, the entire act must be invalidated. The Court has allocated 90 minutes for this argument.
• On March 28, the Court will also hear arguments on whether Congress exceeded its powers by requiring states to expand Medicaid coverage or lose federal funding for Medicaid programs. The Court has allocated one hour for this argument.

For a summary of the cases and challenges leading up to the Supreme Court case, go to the website of the legal firm of Ford & Harrison.

According to the documents in a federal court case, Makowski v. SmithAmundsen, right after the economic downturn of 2008, SmithAmundsen LLC decided to cut staff. Among those let go was Laura Makowski, an employee who a year before had taken maternity leave under the Family and Medical Leave Act.

As Makowski was packing up her things and saying her goodbyes, a manager with the company engaged the terminated employee with chit-chat about being let go. And that’s when the process went down the wrong road.

The manager mentioned that other employees who had taken FMLA leave had also been let go, and that maybe it would be wise to contact an attorney to see if the company had violated the law.

Quicker than you can say “Family and Medical Leave Act,” the terminated employee did just that, citing the conversation with the manager as proof that the company engaged in retaliation against employees who took family and medical leave. When the case got to court, a federal judge agreed with the employee that the conversation was suspicious, and sent the case to a jury trial, meaning the company likely will be on the hook for expensive legal fees and a cash settlement. (Court documents don’t mention whether the manager still has a position with the company.)

The details of the case underscore the need to train managers in procedures, even in those where “everyone knows what to do.”

The Equal Employment Opportunity Commission has made an odd call on this one: Under certain circumstances, requiring applicants to have a high school diploma will violate the Americans with Disabilities Act.

The ruling comes in the form of an “informal discussion letter” from the EEOC in response to an employer that uses a high school diploma as a hiring criterion. (Discussion letters themselves don’t carry the weight of law, but do indicate which way the agency might rule on an issue.)

How is it possible that an education requirement might violate the disability act?

The answer comes straight from the discussion letter:

… if an employer adopts a high school diploma requirement for a job, and that requirement “screens out” an individual who is unable to graduate because of a learning disability that meets the ADA’s definition of “disability,” the employer may not apply the standard unless it can demonstrate that the diploma requirement is job related and consistent with business necessity. The employer will not be able to make this showing, for example, if the functions in question can easily be performed by someone who does not have a diploma.

In other words, to list a high school diploma as a requirement, you must show that the requirement is job related, especially if an applicant has a learning disability. How might you show that?

The agency doesn’t specifically address that question. All the letter mentions is that the diploma must be a prerequisite for performing “essential functions of the job.” Neither does the letter mention how you might determine whether the applicant has a disability, unless the applicant tells you.

In the case of AT&T Connecticut, technicians who conducted service calls at customers’ homes wore shirts resembling prison uniforms as a statement about a bargaining dispute between the union and the company. The text “INMATE #” appeared on the front of the shirts. On the back were bars and vertical stripes with the text “PRISONER OF AT&T.”

The employer brought disciplinary proceedings against the employees, arguing that the shirts frightened customers who thought they were dealing with actual prisoners.

An administrative law judge determined the employer violated the National Labor Relations Act by disciplining employees for wearing the shirts. The judge’s reasoning:

Employees have a protected right to make known their concerns and grievances pertaining to the employment relationship, which includes the wearing of union insignia while at work.

The judge further ruled there were no “special circumstances” to justify the employer’s refusal to allow the shirts, such as jeopardizing employee safety, damaging machinery or product, exacerbating employee tension, unreasonably interfering with an employer’s public image, or failing to maintain employee discipline and decorum.

By a 2-1 vote, the NLRB affirmed the judge’s decision while rejecting the company’s argument that allowing the shirts would cause fear among customers.

The NLRB’s dissenting member, Brian Hayes, argued in vain that the employer demonstrated a legitimate concern — customer fear — especially because of publicity regarding a 2007 home invasion and murder by paroled felons.

Note: Section 8(a)(1) of the National Labor Relations Act — which was cited in the case — covers and protects a broad range of employee protests, and applies to nonunion and union workplaces equally.

This time, it was in the federal appeals court for the District of Columbia hearing the case Susan Seven-Sky v. Eric Holder, Jr. The court heard arguments from opponents of the act who said the federal government had no right to mandate that individuals purchase health insurance.

The ruling: Senior Judge Laurence Silberman — a Republican appointee — said, in fact, the federal government does have such a right under the Commerce Clause of the Constitution. In Silberman’s words, Congress is empowered to pass such laws because “The right to be free from federal regulation is not absolute, and yields to the imperative that Congress be free to forge national solutions to national problems, no matter how local – or seemingly passive – their individual origins.”

That makes the judicial score 3-1 in favor of the individual mandate of the Affordable Care Act.

Previously, the 6th Circuit ruled that the individual mandate was valid, while the 11th Circuit came to the opposite conclusion, finding that Congress exceeded its authority in enacting that provision. The 4th Circuit dismissed two lawsuits challenging the Affordable Care Act’s constitutionality on technical grounds.

Next stop: the U.S. Supreme Court.

This is the story of an employer that tried to follow the rules, and got run over.

The case revolves around the use of E-Verify, the federal program that matches new hires with government records, such as Social Security Numbers – and whose use is required in states like Alabama, Arizona, Mississippi, South Carolina and Tennessee.

Attempting to follow the law, a flower wholesaler in North Carolina used E-Verify to ensure all new hires were legally permitted to work in the United States. Note: Verification can be done only after the applicant is hired.

The result: After hiring and training employees in a highly seasonal business, the company had to fire 60 of them who couldn’t meet the E-Verify standard. The Catch-22 is that although employers aren’t required to use E-Verify in most states, but if you do use it and uncover an illegal worker, you have to fire that worker.

So, what happened to the employer and the 60 workers?

• The employer got caught short in high season and suffered a loss of business, and
• The speculation is that the 60 fired employees went to work for competitors who don’t use E-Verify or hire off the books.

In the case — Nixon-Tinkelman v. N.Y. City Dep’t of Health & Mental Hygiene — a municipal employee who was suffering from several ailments announced to her employer that she couldn’t reasonably make the over-60-minute commute to her job via public transportation, and she asked that her employer provide some sort of accommodation under the American with Disabilities Act. The employer quickly decided that “commuting” wasn’t part of her job description and thus wasn’t eligible for an ADA accommodation. She was ordered to make the commute or be fired. She sued, arguing that commuting does fall under the ADA.

The case was tossed out by a district court, but the federal appeals court told the district court to go back and analyze whether the company might be able to accommodate the request by, for instance,

• transferring the employee to a closer location
• allowing the employee to work from home, or
• providing employee with a car or parking permit.

The court did note that the employer should “consider” those and other accommodations, according to the resources of the employer. In other words, the bigger the employer, the broader the range of reasonable accommodations.

What’s it mean? Certainly, there’s no hard-and-fast rule that employers must provide a commuting accommodation, nor would all accommodations be reasonable. For example, it’s less likely that someone in a manufacturing job could work at home. However, the court’s decision does send a warning that employers shouldn’t simply dismiss accommodation claims based on long or difficult commutes by an employee suffering from health problems or a disability.

In a recent court case — Hofferica v. St. Mary Medical Center — a federal judge found an employer could be in violation of the Family and Medical Leave Act for failing to return an employee’s telephone calls while she was on FMLA leave. In fact, the judge said there was a possibility the employee’s boss had “retaliated” against the employee for taking leave.

The charges by the employee, as laid out in court documents:

• The employee says she took extended FMLA leave for a verified illness and expected to return to work in two months.
• During that time, she and her husband regularly left her direct supervisor phone messages that contained updates on her medical condition and when she expected to return to work. The supervisor often failed to return the calls or acknowledge the messages.
• At the end of the two months, the employee left another message, asking for a leave extension of about a week. Again, the supervisor again did not return the call.
• Shortly after that, the employer sent the employee a message informing her she’d been fired for exceeding the agreed-to amount of FMLA leave.

A lesson

The employer asked the judge to dismiss the case on the grounds that there was no retaliation, and that the employee had been fired because she took extended leave without getting an OK from her boss. The judge refused, saying a jury could reasonably decide that there was retaliation because of “an antagonistic attitude toward the employee, particularly … after the employee initiated FMLA leave, and continued despite regular communications from the employee.” Now, the employer likely will either have to dish out big legal fees to defend itself or make an expensive settlement offer to the employee.

The case illustrates what bosses must do when employees are on FLMA leave: Maintain contact with those employees. The law states that employees are required to keep their employers informed, and the same requirement works in reverse – employers are obligated to stay in touch with employees. It’s not overkill to have a company policy laying out just how often bosses should make contact with employees on leave.

Generally, the news is good for employers and employees. The IRS has decided that the value of employer-provided cell phones, even if partly used for personal calls, is exempt from employees’ wages. According to IRS Notice 2011-72, if an employer provides an employee with a cell phone “primarily for noncompensatory business purposes,” the cell phone will be treated as a “working-condition fringe benefit,” and the value of the cell phone usage will be excluded from the employee’s wages.

The agency defines  “noncompensatory business purposes” as including, but not limited to:

• the employer’s need to contact the employee at all times for work-related emergencies
• the employer’s requirement that the employee be available to speak with clients at times when the employee is away from the office, and
• the employee’s need to speak with clients located in other time zones at times outside of the employee’s normal work day.

IRS has also recognized that employer-provided cell phones can be used to promote the morale or goodwill of an employee and to attract applicants while still being considered noncompensatory, meaning the phones amount to a nontaxable de minimis fringe benefit. IRS has grandfathered an phones issued on or after  January 1, 2010.

In 2010, under the Small Business Jobs Act, cell phones had already been removed from the definition of “listed property,” meaning they no longer required exacting documentation and substantiation to qualify as a business expense. The act, however, hadn’t resolved whether cell phones are a taxable fringe benefit. That’s been settled by the latest ruling.

To see all the details of IRS Notice 2011-72, go here.

After receiving more than 7,000 comments, the National Labor Relations Board issued a press release announcing its decision to postpone the implementation date for the notice. The initial effective date for the notice was November 14, but it has now been pushed back to January 31, 2012, to, according to the NLRB, “allow for enhanced education and outreach to employers.” Accompanying the comments is an industry lawsuit targeting the notice and the NLRB mandate to post it.

The NLRB rule requires most employers to post a notice explaining:

• employees’ rights under the National Labor Relations Act, such as their right to organize, bargain collectively, and discuss wages and other terms and conditions of employment, and the right to picket and strike
• what is deemed illegal employer and union activity
• basic enforcement procedures, and
• contact information for filing complaints.

Employers that are subject to the NLRA must post and maintain the NLRB notice in conspicuous places, including all places where notices to employees are customarily posted.

Related story: Labor board gives unions new foothold.

A recent case before the National Labor Relations Board illustrates that managers have to be especially careful about what they say when a union steps in to negotiate for workers.

In the NLRB decision – Mesker Door, Inc., 357 NLRB, No. 59 — a union was certified as the collective bargaining representative at an Alabama company. Employer and union representatives met over the course of a year without coming to an agreement on a contract.

A frustrated manager then gave a speech in which he:

• threatened to fire two employees for filing unfair-labor-practice complaints
• stated that the company had been required to pay lawyers over $200,000 to defend against the charges, when the money “otherwise could have gone into improving life in the plant,” and
• suggested that if the union had been more cooperative, the employees would have received larger monthly bonus checks.

After that speech, a majority of the company’s employees voted to kick out the union. So far, so good for the employer until …

The NLRB ruled the plant manager’s speech contained unlawful statements, including

• an implied threat of discharge against the two employees who had filed the complaints, and
• the suggestion that attorneys’ fees – resulting from union stubbornness – resulted in lower employee bonus payments.

The result: The board found that the employer could not lawfully withdraw recognition of the union based on the employees’ vote, because the manager’s statements “tainted” the vote.

One of the traps in the Fair Labor Standards Act involves how employers tally overtime pay for employees who get commissions. The rules are complicated, and foul-ups are common. To avoid FLSA violations, take a look at this advice from the law firm of Franczek Radelet, in the form of three examples:

1. Commissions paid during an OT workweek

Chuck is paid a salary of $1,000 per week. The employee handbook states that the normal workweek consists of 40 hours, thus the base salary is intended to cover 40 hours of straight-time work. In one week, Chuck works 50 hours – 40 hours of straight time, and 10 hours of overtime, and Chuck earns $250 in commissions that week, too. Chuck’s pay would be calculated as follows:

• Regular rate = $1,000 + 250/40 hours = $31.25
• Total pay = (Regular salary + commission) + 10 hrs at time-and-a-half
• Total pay = $1,250 + (10 hrs x 31.25/hr x 1.5) = $1,718.75

2. Salary that includes OT

Now assume that Chuck and the employer have an understanding that the $1,000 is intended to cover up to 50 hours of work per week. As a result, Chuck would be entitled to the additional overtime premium for 10 hours at one-half of the regular rate of pay:

• Regular rate = $1,000 +250/50 = $25/hr
• Total pay = (Regular salary + commission) + 10 hrs at half the regular rate
• Total pay = $1,250 + (10 hrs x $25/hr /2) = $1,375

3. Monthly commissions

But things get trickier when that employee is paid both a weekly salary and a monthly commission, and the employer is not able to determine exactly what workweek in the month the employee earned a commission. Here, Chuck earns $1,200 this month in commissions but the employer cannot tie the commissions earned to a specific workweek. In such a situation, the employer must allocate the commissions equally to each workweek in the period covered by the commission payment. Therefore, to calculate Chuck’s regular rate of pay under these circumstances, divide the total commission amount ($1,200) by the number of weeks in the pay period (4) to determine the weekly commission earned ($300). So, here is how you would then calculate Chuck’s overtime using the data from the examples above:

• Regular rate = $1,000 + 300/40 hours = $32.50
• Total pay = (Regular salary + commission) + 10 hrs at time and-a-half
• Total pay = $1,300 + (10 hrs x 32.50/hr x 1.5) = $1,787.50
• Regular rate = $1,000 +300/50 = $26/hr
• Total pay = (Regular salary + commission) + 10 hrs at half the regular rate
• Total pay = $1,300 + (10 hrs x $26/hr /2) = $1,430

The program is called the Voluntary Compliance Settlement Program (“VCSP”). It essentially allows employers to resolve worker misclassifications as independent contractors by paying a small amount of tax in exchange for reclassification of those contractors as employees. The program comes on the heels of an announcement of a joint effort by the IRS and at least 10 states to uncover classification violations under the Fair Labor Standards Act.

To be eligible for the program, an employer must:

• consistently have treated the workers in the past as non-employees
• have filed all required Forms 1099 for the workers for the previous three years, and
• not currently be under a classification audit by the IRS, the Department of Labor, or a state agency.

Employers can apply by filing Form 8952, Application for Voluntary Classification Settlement Program, at least 60 days before they want to begin treating the workers as employees. Upon acceptance into the program, the employer will:

• agree to treat the class or classes of workers as employees for future tax periods
• pay 10% of the employment tax liability that would otherwise have been due on compensation paid to the workers for the most recent tax year
• not be liable for any interest and penalties on that amount, and
• not be subject to an employment tax audit because of the previous classification of the workers under the program.

Note: Application for the program doesn’t amount to the employer’s admitting to misclassifying all independent contractors.

For more info and details, go to the IRS web page on the Voluntary Compliance Settlement Program.

On what issue? Mandatory E-Verify — a hot topic of discussion during the Republican presidential debates.

Tea Party members and liberals have joined forces in fighting a Republican-sponsored bill in Congress that would require all employers to use E-Verify, the electronic government database that verifies whether new hires are eligible to work in the United States.

Passage of the bill in the GOP-controlled House looked like a lock. But then a coalition of varied groups mounted a campaign in Congress to defeat the measure.

Their gripes: The use of E-Verify, which is currently voluntary, would:

• create a national identification system
• infringe on rights such as the freedom to seek work
• cripple small businesses
• turn employers into immigration agents, and
• encourage identity theft.

As you may know, E-Verify works by comparing information entered from an employee’s I-9 employment form with Social Security Administration and Department of Homeland Security records. About 1 in 20 U.S. employers use it. Federal contractors must participate, and a few states also mandate its use.

Related story: Immigration audits rise sharply: What happens if you’re picked?

Classifying workers as independent contractors is about to get a lot tougher in those states that are part of a cooperative effort with IRS and the DOL to nab employers and employees who aren’t following IC rules.

The participating states have agreed to work with the feds in various ways — some more extensive than others. For instance, some will step up enforcement through the state attorney general’s office, and some will work through the state labor department. The participating states are:

• Connecticut
• Maryland
• Hawaii
• Illinois
• Massachusetts
• Minnesota
• Missouri
• Montana
• Utah
• Washington

The agreement is part of the so-called “misclassification initiative” started last year by the DOL and announced in its budget proposals. The department has contended that too many businesses are misclassifying workers as ICs to avoid paying employment taxes and benefits.

And why are the IRS and states involved, too? You probably know the answer: revenue. The IRS and the states claim lots of workers who are falsely classified as ICs aren’t reporting and aren’t paying full taxes on their income.

The message: If you’re an employer, especially in one of the 11 states, be careful about classifying workers as ICs.

The National Labor Relations Board recently ruled on a nursing-home union and “bargaining units.” What’s that got to do with your company? You might be surprised.

In the case — Specialty Healthcare, 357 NLRB No. 83 – the NLRB examined the appeal by certified nurse assistants (“CNAs”) at a nursing home that they represented a separate class of workers at the facility and should be allowed to form their own bargaining unit for the purposes of joining a union. Facility management argued that even though the CNAs had their own title, they worked so closely with other employees that none could be considered a separate unit.

Note: In a similar case 20 years ago — Park Manor Care Center, 305 NLRB 872 — the NLRB agreed with management and refused to recognize a small group of nursing-care workers as a separate unit.

This time, by a 3-1 vote, the board overruled the 20-year-old decision and adopted a new standard for determining appropriate bargaining units. Under the new standard, so long as a union’s petitioned-for unit consists of a clearly identifiable group of employees, the board will presume the unit is appropriate. If an employer argues that the unit should include additional employees, the employer must demonstrate that employees in a larger unit share an “overwhelming” community of interest with those in the petitioned-for unit.

So, what does all this mean for other employers?

• For one thing, the board’s new standard for small bargaining units can be applied to most industries. If you have a small group of workers with a common job title, they can break away from the rest of your employees and form a bargaining unit for the purpose of unionizing.
• It’s generally true that the smaller the unit, the easier it is to get the members to agree on a union. In a shop where you might persuade a group of 30 workers that a union is a bad idea, you could be faced with persuading five groups made up of six workers each. That presents a tougher job for management and an easier path to unionization.