Explaining the “Golden Age of Union Organizing”

Unions aren't just having a moment, they are having their best moment in at least 50 years.

• What has caused the "perfect storm" of union organizing that employers are currently experiencing?
• How have the White House's policies impacted unionization and collective bargaining?
• What explains the trend of smaller, "in-house" unions, such as those seen at Starbucks and Amazon?
• How should employers assess their labor strategies in response to these changes?

This week, I joined the ProjectHR Podcast to discuss The Golden Age of Union Organizing, the forces that are helping to cause it, and how employers should be responding and reacting.

Here's a preview of what you'll hear in the episode.

You can listen to the entire episode here, or wherever you get your podcasts.

Federal court holds that the NLRB doesn’t have a sense of humor

On June 6, 2019, unionized employees of Vox Media, a left-leaning digital media company, walked off the job during union contract negotiations. That same day, Ben Domenech, executive officer of FDRLST Media and publisher of The Federalist (which is the direct opposite of left-leaning), posted this tweet from his personal Twitter account: "FYI @fdrlst first one of you tries to unionize I swear I’ll send you back to the salt mine."

Following the filing of an unfair labor practice charge by someone with absolutely no relationship with FDRLST Media (employment or otherwise), the NLRB concluded that Domenech's tweet violated employees' rights to unionize or otherwise engage in protected concerted activity, agreeing with the administrative law judge that the tweet was an "obvious threat" that "working conditions would worsen or employee benefits would be jeopardized if employees attempted to unionize." 

Do we need labor unions anymore?

When I challenge the continued viability of labor unions and the lack of benefits they offer to or confer upon 21st century employees, this is the refrain I often hear.

Minimum wage ✔️
Overtime ✔️
OSHA ✔️  
Child labor protections ✔️
Anti-discrimination laws ✔️ 
ERISA ✔️

None of those laws, I'm told, would exist without the historic efforts put forth by labor unions. 

You know what? That statement is 100 percent correct. Labor unions played a huge role in the passage of the FLSA, OSHA, ERISA, and Title VII, each of which granted a wealth of new rights and protections to employees.

They also help render labor unions irrelevant. 

Don’t ask employees about their problems after a union comes knocking

"I'm here to listen."

It's an innocuous enough statement for management to make to employees. What could possibly go wrong when a manager tells employees she's there to "listen"?

If a union representation petition is pending, the answer is a lot.

The NLRB is coming for your handbook (again)

• Corrective action rules
• A dress code
• A prohibition on cell phone use while working
• A social media policy
• Confidentiality rules

These are a few of the 19 different polices contained in Starbucks  employee handbook (called its Partner Guide), which the NLRB alleges constitute "interfering with, restraining, and coercing employees in the exercise" of the right of the coffee retailer's employees to form a union under the National Labor Relations Act.

Why are labor unions are having their moment?

Yesterday I shared about the moment labor unions are currently having, with representation petitions surging 57% over the past six months, and 625% in the hospitality and food service industry over the past decade. 

The question is why. 

To be sure, toxic management, poor workplace culture, and low wages are a factor. But they are a factor anytime a labor union takes hold in a workplace. I'm looking for the reasons our current labor movement is having its moment in time.

Here are my thoughts.

If it feels like labor unions are having their moment, it’s because they absolutely are

Union representation petitions are surging. According to the National Labor Relations Board, they have increased a whopping 57% over the past six months.

Even more astounding is just how many of these petitions are in hospitality and food service industry. According to an NPR analysis, 27.5% of all union election petitions filed thus far this year come from that market segment. Compare that to just a decade ago when the number was a scant 3.8%. That's nearly a 625% increase. 

I’m begging you, STOP firing union organizers

Brenda Garcia led union efforts at Chipotle as one of its employees. Or, rather, she was one of its employees until last week, when the restaurant chain fired her. 

Employers, I'm begging you, please stop firing union organizers. It's illegal. It's also a terrible union avoidance strategy because you're playing right into their hands.

Labor unions are doing just fine without the NLRB’s help

Over the past decade, labor unions win between 65 and 70 percent of representation elections. Given organized labor's recent more high-profile victories, I expect that number to increase for 2022. So then why is the NLRB hellbent on helping unions win even more?

The NLRB's general counsel, Jennifer Abruzzo, recently filed a brief in a case pending before the Board, Cemex Construction Materials Pacific, asking it to overturn decades of well-established precedent on employers' rights in union organizing campaigns. Specifically, she seeks to:

1. Ban "captive audience" meetings.
2. Eliminate secret-ballot union elections by requiring employers to recognize and bargain in most cases upon the presentation of a majority number of signed authorization cards
3. Prohibit an employer from providing employees legally correct information about how the employer-employee relationship might (will) change once they vote in a union to represent them.

Let's take a look at each of these significant proposed changes.

Protected concerted activity is an opportunity to engage with your employees, not to retaliate against them

"Due to the 6.8% inflation rate, all US workers are entitled to at least a 6.8% pay adjustment. We have received reports of some ABUSIVE EMPLOYERS not providing these adjustments. If you have not received such a raise, please ask your employer why your PAY WAS CUT."

"WHAT TO DO ON A BREAK TODAY: (1) Talk about your PAY. (2) Talk about your RIGHTS. (3) Begin ORGANIZING A UNION. GOOD employers are not afraid of these, but ABUSIVE ones are."

"You have a protected LEGAL RIGHT to discuss your pay with your coworkers. This should be done on a regular basis to ensure that everyone is being paid fairly. It is ILLEGAL for your employer to punish your for doing this."  

These comments, shared in the antiwork subreddit, appeared on sales receipts at an unknown and unnamed brewery.

“Salting” the wounds of labor organizing

One of the tactics workers used to successfully organize Amazon's Staten Island fulfillment center was the use of "salts."

"Salting" is a common organizing tactic used by labor unions. It is when union organizers apply for jobs with non-union employers for the express purpose of organizing the employer's workforce from the inside. In addition to organizing, the salts also try to inflict economic harm on the targeted employer by triggering unfair labor practice charges and resulting back pay liability. Salting is one the more underhanded methods of organizing used by labor unions.

It's devious, it's effective … and it's 100 percent legal. 

Why I’m anti-union

“Jon, why are you anti-union?”

I’ve received this question a lot lately. Between all of my posts about the need for all employers (including craft breweries) to pay attention to the recent wave of union organizing, and my philosophy of workplace management that focuses on positive culture and positive treatment of workers, many have asked why I oppose labor unions.

Let me explain.

Anti-union vs. Anti-worker

Tomorrow at 5 pm I'm participating in an online panel discussing fair compensation in the craft beer industry. It's part of the Craft Beer Professionals Spring Virtual Conference (register here).

Some members of the group, however, are objecting to my participation. They take issue with my recent posts about union organizing, and more specifically union organizing in the craft beer industry. They claim that "anti-union" (which I am) is the same as "anti-worker" (which I definitely am not). They argue that my anti-union views bar my seat at the fair compensation table — that I'm cannot opine on fair compensation because I'm anti-worker.

I believe, however, that anti-union and anti-worker can be, and often are, mutually exclusive. 

The biggest workplace story of 2022

Last Friday, workers won the first-ever union election at an Amazon warehouse (a fulfillment center in Staten Island, New York). This is the biggest workplace story of the year, and it won't even be close. 

Here's why.

Starbucks employees are trying to “kick down the door” across the entire food and beverage service industry

Less than one and one-half miles away from the flagship Starbucks that launched a global coffee empire five decades ago, employees unanimously voted for their shop to unionize. It became the seventh such store to vote to unionize, joining five stores in Buffalo, New York, and one in Mesa, Arizona. Of the 157 (and rising) Starbucks currently organizing or planning to organize, only one thus far (also in Buffalo) has sided with management.

Pay careful attention to what the employees of the Seattle store that just went union told The Seattle Times in speaking about what this vote means for employees in the food and beverage service industry generally.

In a stunning move, billion-dollar Starbucks investors urge the coffee retailer to go “union neutral”

Trillium Asset Management, which holds $48 million of Starbucks stock, is leading the charge on behalf of a billion-dollar-plus group of investors to push the coffee retailer to adopt a "union neutral" stance.

To date, more than 130 Starbucks stores in 26 states have petitioned the NLRB to unionize. Of the seven stores that have held elections so far, six have voted to unionize. 

According to the letter sent to both Mellody Hobson, Independent Chair of the Starbucks Board of Directors, and Kevin Johnson, its CEO (and obtained by CNBC), there exists grave investor concern that reports of Starbucks' "aggressive union-busting tactics" will harm the brand and its reputation (and, by extension, sales, profits, and, ultimately, share value).

Does your employment lawyer speak emoji and meme?

After a workplace discussion between employees about employees had been discussing concerns about a superior's management style, an employee goes to management to complain about having an unmanageable workload. That night, that same employee posts the following on his personal Facebook page. 

Just in case someone needed to know 🤷 

Employees don’t leave Companies, they leave Managers

At least 90 peple liked the post, including two co-workers who commented in support. The next day the employee was fired for alleged job performance mistakes. 

The fired employee files a charge with the National Labor Relations Board, claiming that he was fired in retaliation for engaging in protected concerted activity — his Facebook post. 

The NLRB concluded that the employee case presented a credible claim to litigate.

We conclude the Charging Party engaged in protected concerted activity because the Facebook post elicited support from coworkers over scheduling, management, and employee attrition, issues that had been topics of concern for employees. 

The post, as written, objectively sought to elicit support from coworkers and other employees—who were Facebook friends and would therefore see the post—regarding the perceived poor management practices that would lead to employee attrition.… [A]t least two of these employees' responses indicated their support for the Charging Party's message that bad management practices lead to a loss of employee morale and employee attrition.… Moreover, the Charging Party's post and the comments it elicited were a continuation of the Charging Party's earlier conversations with numerous other employees about the quality of the Employer's supervision.…

Non-text communications, such as emojis and memes, can be just as communicative as text and prose, and when they communicate a message the law treats them no differently. If your employment lawyer isn't conversive in emojis, memes, TikToks, and other newer forms of communication, it's time for a new lawyer. Your employees are speaking like this. You need to understand it, and so does your lawyer.

THIS is why craft breweries need to pay very close attention to labor unions

It was a simple question posed in the Craft Beef Professionals Facebook group: "Conversations on fair compensation are extremely important in our industry. What is a brewery that impresses you with the way they treat their team?" 

Out of the dozens of responses, this one should scare the hell out of any craft brewery owner: 

The IWW is looking into this and the other plethora of issues we face as workers in this industry. Reach out to brewing@iww.org if you're interested in creating a better work environment near you.

When I scream at the top of my lungs to craft breweries that they need to pay attention to union organizing, this is why.

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?

John Oliver’s exposé on "union busting” missed one key fact — the unions are actually WINNING

This past Sunday night, John Oliver closed his 2021 season with a long-form exposé on labor unions. More specifically, he focused on the efforts employers take to combat union organizing drives: anti-union messaging and videos, captive-audience speeches, threats of job loss and plant closures, and more pointed retaliation against union organizers and other pro-union employees.

His story, however, left out one key fact — the labor unions are actually winning. And they are winning a lot.