Wednesday, February 9, 2022

We are officially in the Golden Age of Union Organizing. How will your company respond?

Yesterday, the White House Task Force on Worker Organization and Empowerment released its 45-page report on the use of executive branch policies, practices, and programs to promote the Biden Administration's support for worker power, worker organizing, and collective bargaining.

The key takeaway for employers? The Task Force has recommended that the federal government use its "authority to support worker empowerment by providing information, improving transparency, and making sure existing pro-worker services are delivered in a timely and helpful manner." 

Yikes! 😱

How will the federal government accomplish this?

  • The National Labor Relations Board is "strongly encouraged … to facilitate worker organizing and collective bargaining."
  • Federal agencies — including the Department of Labor and the Small Business Administration — "will act to expand awareness of workers' organizing rights and employers' responsibilities when workers are trying to organize."
  • The Department of Labor "will become a resource center, providing materials on the advantages of union representation and collective bargaining."

In other words, get ready for a whole bunch of pro-union NLRB decisions and other federal administrative policies, such as card checks in lieu of secret-ballot elections and bans on captive-audience speeches by employers.

Further, according to the report, 52% of non-union workers say that they'd vote for a union if an election were held today. That number is taken from a 2018 survey, two years before the pandemic highlighted issues of employee safety, minimum wage, paid time off, and workplace communication. I'd bet a current survey would peg this number well over 60%. This is bad news for employers who hope to remain union-free.

It's not just traditional manufacturing environments that are at risk of unionization. The pandemic has opened up a whole new world of employers that have never previously experienced union organizing. For example, Starbucks lost a union election in Buffalo, and petitions are pending more than 50 stores across the country. Also, this past summer, brewery employees at Ohio's oldest craft brewery, Cleveland's Great Lakes Brewery, took steps to organize, showing that the craft beer industry is very much on unions' radar. (If successful, it would become the first unionized craft brewery in the state and the largest craft brewery union in the country.)

So, employers, what can you do now to set yourself to remain union-free (if, in fact, that's your goal)? If you're a big national employer with a ton of resources, like REI, you can set up for your employees a slick website about the benefits of not unionizing, complete with a podcast, FAQs, and tons of resources. 

But just because you don't have these vast resources available to you doesn't mean that you can't educate your supervisors and managers about why you want to remain union-free and empower them to preach this gospel to your employees.
  • That you support the rights of your employees to speak and act for what they believe.
  • That unions, however, impact your ability to communicate directly with employees.
  • Unions require formal grievance and arbitration processes to resolve workplace disputes, which take time, and sometimes a lot of time to resolve.
  • With unions, promotions, raises, and other employment decisions are often based on seniority, not performance and merit.
  • Employees pay unions dues whether or not they actually support the union or voted for it (except in states with "right to work" laws, which Ohio does not have).

One caveat. There are four things an employer (or its managers or supervisors) cannot say to employees during a union organizing drive. Think TIPS (Threats, Interrogation, Promises, Surveillance), about which managers and supervisors must be trained before they address employees to avoid NLRB issues.
  • An employer can't threaten employees about what will happen if the union wins, such as plant closures, layoffs, shrinking pay and benefits, or discipline or termination of employees who supported the union.
  • An employer can't interrogate employees about their support of the union, including polling employees about their support or asking who signed authorization cards.
  • An employer can't promise employees that it will make things better for them if they vote against the union, including promises of pay raises, better benefits, or promotions for those who vote "no."
  • An employer can't surveil or spy on employees, including watching who goes into union meetings, attending union meetings, or eavesdropping on employee conversations.

Instead, managers and supervisors should be trained to focus on FOEs (Facts, Opinions, and Examples).
  • An employer can share facts about the union and the organizing process, including what the company and the union can and cannot legally do during an organizing campaign and at the bargaining table, how a contract negotiation works, how much union dues might cost, and news stories about the union (e.g., corruption investigations and indictment, unsuccessful strikes).
  • An employer can share its opinions about why you feel a union is not the right decision for your employees, such as unions eliminating personal and direct communication between employees and management in favor of a formal grievance and arbitration process, and how this will further divide employees from management.
  • An employer can give examples of situations that involve union organizing and contract negotiations, including YouTube videos of outrageous behavior on picket lines, news stories about union corruption, and examples of unions that failed to make good on campaign promises at the bargaining table.

Employers, we are officially in the Golden Age of Union Organizing, spurred on by the pandemic, the Great Resignation, and the Biden Administration. If your company's goal is to remain union-free, the time to act is now. You need to assume unions are talking to your employees and act accordingly, including training your managers and supervisors on TIPS and FOE. Otherwise, your conversation might be across a bargaining table, and by then it's way too late.

If you need assistance with any of the above, contact your friendly neighborhood labor and employment lawyer.