Rising interest in unionization: What employers need to know

Have recent news stories about unionization made you question the effects of a union campaign on your business? Your best opportunity for avoiding unionization is well before a union campaign commences. It has never been more important to ensure your workforce is content, well-compensated, and above all, heard. 

Union membership has been on an apparent slide in the U.S. since the 1980s. In 2021, overall union membership declined by about 241,000 workers compared to 2019, putting it at 10.3 percent of the American workforce. This is a steep decline from 1983—the first year records were kept—when union membership stood at 20.1 percent. The rate of unionized public-sector workers remains five times that of the private sector (33.9 percent versus 6.1 percent). This only tells part of the story.

The statistics are misleading and actually reflect the fruits of successful union campaigning. If a union does anything short of becoming recognized as the employees’ exclusive bargaining agent, then the number of unionized workers doesn’t officially change. I say this because as a labor law practitioner, one gets the feeling that there is more union interest than has been typical in years past. We have all read about the Great Resignation, but, increasingly, it seems that employees are looking to unions to improve their work situations, so resignation is unnecessary. 

Unionization seems to resonate strongly with young people, who see it as a legitimate means for gaining higher wages from their employers to cope with student debt and stratospheric housing costs. The current administration is also proposing legislation, which, if passed, could increase unionization dramatically. The Protecting the Right to Organize (PRO) Act would, among other things:

• Make it harder for companies to lawfully designate workers as independent contractors;
• Allow unions to collect dues from all unionized employees, even in right-to-work states;
• Levy massive penalties against an employer that fires a worker who tries to unionize their workplace;
• Do away with “captive audience meetings,” which allow employers to hold all-employee meetings during work hours to plead their case for remaining non-unionized;
• Create a timeline for reaching an initial agreement, thereby preventing delay on the part of the employer;
• Allow the use of employer communications devices and systems in organizing, thereby overturning the National Labor Relations Board’s decision in Caesar’s Entertainment; and
• Expand the definition of “joint employment” to add liability to a host of related employers. 

The PRO Act is currently languishing in committee and has not passed from the House to the Senate. As we await its final disposition, it’s important for employers to understand what they can legally do, if they wish to remain union-free. 

Unions generally get traction with disgruntled workforces. Is your workforce content? How do you know? It’s critical that employers keep the channels of communication open with employees; understand their pain points; and either address them or explain, honestly and convincingly, why changes cannot be made. While a union contract will cover all major terms and conditions of employment, wages tend to be a major factor. If employees are complaining about low wages, and you’re having trouble retaining people, consider what you risk by not raising wages. 

Does your workforce appear unusually furtive? Do conversations stop when you draw near? Are strangers dwelling in your parking lot? If so, a union organization campaign may already be underway without your knowledge. Once a campaign starts, your ability to discourage the union will be drastically curtailed. By law, at this stage, you are prohibited from: 

• making Threats,
• Interrogating employees, 
• making Promises, 
• or Spying on employees. 

As you may have guessed, we remember these prohibited acts with the initialism, “TIPS.”  

Note that these prohibited acts aren’t necessarily obvious. Advising employees honestly about the negative consequences of unionizing may constitute a threat. Similarly, any attempt to overhear employees discussing unionization could be considered spying. This is true even if a member of management simply finds themselves in the same locale as two or more employees, regardless of whether the manager knows the employees are discussing the union.

It’s vital to address your employee’s concerns as early as possible, so you don’t have to worry about TIPS and other labor law complications. Listen and respond to your workforce’s needs up front, and unionization will be far less likely at your organization. 

Need help navigating labor laws and unionization efforts? Reach out to the experienced team at Employers Council today.