One fact that has become evident in the current run-up to the 2020 presidential election is that the Democratic contenders are tripping over each other to win the backing of organized labor. The Democratic Party has forever had a firm pro-union plank in their platform and have in some form or another stated that if elected, they will take immediate action to facilitate union organizing and rebuild the union house. However, now more than ever, unions are holding the candidates’ feet to the fire. Recently, Richard Trumka, head of the AFL-CIO, the umbrella group over most unions, said that none of the Democratic presidential hopefuls should take labor support for granted. He wants to see exactly what measures each of the candidates proposes to support and grow the union ranks.

Democratic candidates have always relied upon strong union support (beyond just their financial contributions, which are substantial). Union members have traditionally manned phone banks, made door-to-door calls, sent out mailers, organized and attended rallies, helped get out the vote, and generally been the boots-on-the ground for their favorite candidate. Organized labor understandably expects payback for all the union support in the past and anticipated support in the 2020 campaign.

What Does a Union Resurgence Mean for Employers?

What does this focus on tilting the playing field even more in favor of unions mean for non-union employers? The potential for greater and more aggressive union organizing of workplaces is a given. If the Democratic candidate is successful in 2020, it is an absolute certainty that we will have a pro-union National Labor Relations Board (NLRB). That federal agency regulates the relationship between private employers and labor unions. Rules to facilitate union organizing and penalize employers who oppose it, union access to private workplaces, and almost certainly another effort to mandate card check and similar measures to support unions are sure to follow.

The Current State of Labor Unions

Unions are at a crises point in their continued relevance to today’s workplace — their very existence is at stake. Private sector union membership stands at 6.4 percent, just about the lowest number since the passage of the National Labor Relations Act in 1935 (NLRA). The union membership rate of public-sector workers is 33.9 percent, more than five times that of the private sector. However, public sector unions suffered a major blow with last year’s Janus decision. The U.S. Supreme Court ruled that non-members of public sector unions could not be compelled to pay fees merely because they were employees in a union-represented government workforce. That followed the adoption of right-to-work laws in several more states, including Midwestern states, in the past several years. Schoolteachers and others in states such as Wisconsin, where they were no longer compelled to be union members, withdrew their membership in droves. Unions in both the private and public sector are therefore desperate to find new members.

How Unionization Works

Under the NLRA, which applies to private sector employers, an employer with two or more employees is subject to unionization. In order to become the exclusive representative of a unit of employees, a union must either win an NLRB-conducted secret ballot election or be voluntarily recognized by the employer. The formal process is started by the filing of a petition for certification as the exclusive representative with the NLRB. It must be supported by authorization cards from at least 30 percent of the employees in the unit. Generally, the traditional appropriate unit in a manufacturing facility is all production and maintenance employees in the workplace. However, that traditional unit description has been in a state of flux with changes adopted by the NLRB during the Obama administration that permitted small groups to be carved out, being overturned by the current NLRB. Generally, as long as the employees have a community of interests – meaning they share similar conditions of employment, in most cases the unit will be found appropriate. In its most recent case addressing the appropriate unit, involving the Boeing plant in North Charleston, South Carolina, the Board ruled that a unit limited to only two job classifications within an aircraft production line was not an appropriate unit. The unit proposed by the Machinist Union was one of approximately 175 mechanics out of a workforce totaling over 2700 employees.

What Happens once a Certification Petition is Filed

Once a valid certification petition is filed, the NLRB promptly seeks to resolve any issues regarding which employees are appropriately included or excluded from the unit. Once that is resolved, a secret ballot election is scheduled, usually within 20-25 days of the filing of the petition. Under the NLRB’s so called “quickie election” rules, another Obama – NLRB change, an election could be held within 10 days to 2 weeks of filing. Most elections have occurred closer to the 20^th to 22^nd day. Before the rule change, an election was conducted roughly 40-45 days from the petition filing date. Sometimes much later. This is significant because it gave an employer sufficient time to try to educate the employees about unionization. Today, very few employees have any understanding about unions and how they can impact the workplace, both positively and negatively.

The secret-ballot election is almost always held during working time on company premises. After the balloting period, the votes are immediately counted and the party with a simple majority of the votes actually cast is certified as the winner. If the union is successful it gains representation rights for a minimum of one year, during which its majority status cannot be questioned. If a collective bargaining agreement is signed, it bars any challenge to the union’s majority status for at least three years. If the employer is successful in the election, no union may seek to organize those same employees for one year from the date of the election.

How to Respond to Union Organizing

With the decline of private sector unions, there has been a commensurate decline in employer’s understanding regarding unions. As a consequence, today when confronted with union organizing activity, employers all too often respond in a manner that can easily result in unfair labor practices or at a minimum, what is known as “objectionable conduct.” If either one is proven to have occurred, an employer’s election victory can be overturned and a new election ordered. In some rare cases, such conduct can be deemed so egregious that a fair election cannot be conducted. In those cases the NLRB can issue what is called a “Gissel bargaining order.” The employer would be compelled to accept the union as the exclusive representative of the employees and bargain in good faith without another election being conducted.

Despite the fact that its actions in opposing union organizing are likely to be challenged by the union, employers can and should always lawfully respond to an organizing campaign. When properly done, in most cases a sufficient number of employees can be convinced that a union is not their best choice. Section 8(c) of the NLRA permits an employer to truthfully inform employees about the realities of a unionized workplace. As long as there are no threats, coercion, or promises of benefit for foregoing the union, an employer is free to speak to its employees about unionization.   

There has long been an unwritten rule in labor law that in responding to union organizing the acronym “TIPS” should be kept in mind at all times. Those letters stand for “threaten,” “interrogate,” “promise,” and “spy” or “surveillance.” Those are the primary “don’ts” in any campaign against union organizing. Employers are free to lawfully inform employees what it means to have a union. That includes the fact that the union will be their exclusive representative if they unionize. No more going directly to the employer to have a problem resolved. What is in the union contract will be their terms and conditions of employment — nothing more.

The company can also explain what unions never want employees to hear, that if contract negotiations are unsuccessful and the union decides to call an economic strike, they could be forced to go on strike and risk being permanently replaced. The employees are not fired or discharged, simply replaced permanently. They can only get their jobs back if the replacement employee leaves. As long as the employer does not imply that a strike is inevitable, it can tell them that they could be on the outside looking in. This might also be the case if the employer chose to lockout the employees to put economic pressure on the union. A lockout is the employer economic action that parallels a union strike. In addition, unions rarely mention the obligation to pay union dues and assessments over which they have little or no say. Another issue that they try to gloss over in the obligation to comply with the union’s constitution and by-laws. Few employees ever see these documents before becoming a member. All of this information and more can all lawfully be conveyed to employees before they cast their ballot for or against unionization.     

Avoiding Union Organizing

A union campaign avoided is far better than a union election won. Employers can help avoid becoming a target of a union or creating a fertile field from which the union seed can sprout by keeping in mind a few simple things. While there are numerous reasons why employees turn to a union, the top three reasons why employees are dissatisfied and seek help from an outsider source such as a union are: 1) Lack of appreciation – a feeling that the employer does not really care, 2)  A lack of knowing what is happening in their workplace, and 3) Not having a supervisor that is willing to listen to their issues, to work with them.

What is unique about all three of these factors is that each one is totally within the control of the employers each and every workday. Feeling appreciated does not require significant effort. A sincere daily greeting, a thank you, or pat on the back buys a great deal of goodwill. Sharing what we can about the business, its future, and what the employees can expect helps make employees feel more a part of the company. Lastly, having a supervisor that is fair, consistent, and understanding is something that employees have a right to expect. There is no question that competitive wages and fair policies that are consistently enforced are critical concerns. However, to the extent that employers fail to keep the three factors front and center, they may be inviting the union organizing that is sure to come at some point in the future. If unions are to survive, they must keep knocking on doors. Yours does not have to be one of them.

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