Employers Must Beware The Coming Union Organizing Storm

By Daniel Johns
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Law360 (October 7, 2020, 12:47 PM EDT) --
Daniel Johns
In the movie "The Perfect Storm," George Clooney plays Billy Tyne, a boat captain who battles a confluence of problems, including stormy weather and a malfunctioning boat while fishing in the Atlantic Ocean. Despite the captain's valiant efforts, the storm is too severe and the boat is lost. All aboard perish.

Although most labor and employment lawyers and human resources professionals probably do not think of themselves as Tyne battling the sea as part of their regular work responsibilities, the movie may be an apt analogy for the risk of union organizing that employers may face at the end of the COVID-19 pandemic.

Although the spread of the COVID-19 pandemic has hurt union organizing in the short run due to quarantines and social distancing rules, in the long run, the workplace atmosphere is not so clear. The COVID-19 pandemic has created a number of factors that are likely to increase employee interest in union organizing once the public health emergency subsides. 

What are those factors?

  • Economic unrest;
  • Risk of layoff or furlough;
  • Record-high levels of unemployment;
  • Employee concerns over whether working environments are safe;
  • Insufficient supply of personal protective equipment;
  • Hazard pay;
  • Leave of absence issues to care for children who cannot attend school; and
  • Job security in an uncertain world. 

The list of issues is endless. And, on a larger scale, the nation has seen increased political protest activity, as well as collective activity on many issues affecting employees and their families. 

Indeed, the COVID-19 pandemic has seen many industries face calls for one-day employee strikes over health and safety issues and appeals for consumer solidarity with essential workers. Support for these activities has been strong, even if forced to take place in a virtual environment, rather than out in the streets or in the workplace.

In a normal time, any one of these factors might drive employee interest in union organizing. Taken together, however, when the COVID-19 pandemic subsides, it will have left in its wake an atmosphere for a perfect storm of union organizing.

Where is the greatest risk of activity? Not surprisingly, the risk is likely greatest in the industries that the pandemic has impacted the most. Some potential industries include health care, retail, grocery, delivery services and hospitality. The list could go on and on. 

If employees feel unsafe in their jobs and/or fear that their job security has declined due to the pandemic and the local and national economic environments, they may look outside their workplace for protection. In those circumstances, the first phone call that an employee may make is to a union.

So what can employers do to prepare for this potential storm of union organizing? First, remember that good employee relations and HR practices are always the best way to defend against employee unrest.

Respond quickly to employee concerns, particularly where those concerns touch on issues of employee safety. Investigate and communicate with employees about their concerns in a timely manner.

Remember that employees will not necessarily hold it against an employer just because the employer does not agree with the concerns they have raised, but employees very likely will hold it against their employer if they feel like their concerns have been ignored. Employers must remember that ignoring employee issues does not mean that they go away. They may fester and become worse if not addressed.

Employers should also recognize that the old adage "all politics is local" applies with equal force in the workplace. What does that mean?

Employees think better of their employers if their individual relationships with their supervisors is positive. Supervisors must build relationships with the employees who report to them, treat employees with fairness and respect, and address any employee concerns that are raised. 

Visibility of management also matters. Managers need to get out of their offices. Walk the halls. Talk to people. Inspect the workplace. Overall, keeping an open door to your employees — providing an avenue where they have a voice and feel that their opinions are valued — goes a long way toward decreasing employee interest in union organizing.

Supervisors and managers also need to keep in mind that they have the right to talk to employees about unions. Too often, supervisors feel constrained by a fear of legal action if they talk to their employees about what they think about unions.

Of course, there is legal regulation of some employer speech in this context, including prohibitions on employer threats and employer promises of benefit as an inducement for employees not to unionize. There is nothing, however, that prevents an employer from telling employees through its supervisors and managers why they think union organizing is not in an employee's best interest.

HR teams need to arm supervisors with such information so that they can respond to employees who speak about and express interest in a union. Supervisory silence might be legally safe — but it is not necessarily prudent in this context.

Employers also should understand the basic legal process for union organizing. Under the National Labor Relations Act, employees have the right to form and join unions, but also to refrain from such activity. Union organizing efforts often focus on getting employees to sign union authorization cards, which provide that an employee is authorizing a union to act on his or her behalf with respect to the employee's terms and conditions of employment. 

The union only needs cards from 30% of the employees in a particular unit in order to seek an election with the National Labor Relations Board to determine whether the employees can become unionized. If the unit of employees sought by the union is deemed appropriate, the NLRB will conduct an election in the workplace.

Then, the determination of whether employees become unionized is made by a majority of those employees who decide to vote in the election. If 50% plus one of the employees who choose to vote in the election do so in favor of unionization, the union wins and the employer must bargain over a first contract.

The timeline between a union filing a petition and the NLRB holding an election has been significantly shortened in recent years. By the time a petition has been filed, it may be too late for employers to influence the result of the election. Indeed, if an employer waits until a petition has been filed before it thinks about these issues, it likely will be too late to win the election. 

The time to think about and deal with union organizing activities is before you are presented with a petition. Good managers and supervisors should think about these issues every day.

Employers must be wary of the fact that, in the midst of an unprecedented pandemic that has extended for six months and has no realistic end in sight, employees, supervisors and managers may feel beaten down. It is easy to worry only about what is most essential in such circumstances just to get through the day successfully.

Good employers, however, should not just be getting through each day. Supervisors and managers should be thinking about union organizing before it happens.

The COVID-19 pandemic has created a perfect storm of factors for union organizing once life returns to normal. With a little work and foresight, HR professionals do not need to be Tyne and go down with the ship.

Daniel Johns is a member at Cozen O'Connor.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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