Union avoidance is a strategy in which management takes steps to make workforce unionization unnecessary. It’s a strategy that can union proof the workplace while increasing employee engagement and productivity. The union avoidance strategies employed have evolved over the past 70 years, largely in response to changing government administrations implementing new laws and regulations, and to changing social conditions driving public interest in company activities. Through the decades, employers used a variety of strategies to keep unions out or to get them decertified (voted out). As business-friendly Republicans begin to reshape labor laws, rules and regulations, it’s time to put the modern union avoidance strategy in its historical context and consider the best steps to keep unions out of your workplace.
Dealing with Unions Through the Years
With industrialization at the beginning of the 20th century, unions grew more powerful as they pursued unionization in manufacturing plants. Union busting and union avoidance strategies were used during the 1920s and 1930s, as employers gave foremen the power to direct, control and discipline employees. Employees landed and retained jobs based on how well they pleased their supervisors, and union-friendly employees were terminated. Employers also developed “community action” plans like the Mohawk Valley formula. It called for strikebreaking activities like discrediting union leaders, scaring the community with threats of violence, using intimidation against strikers, using private security forces and employing strikebreakers. However, it’s important to remember the context was a period in which unions were growing more powerful and were often violent, so it was tit for tat.
The National Labor Relations Act was passed in 1935 (Wagner Act), and section 7(a) said that “employees shall have the right to organize and bargain collectively through representatives of their own choosing.” It created a tripartite of employers, unions, and the government. There was now a labor law favoring collective bargaining as the way to settle disputes. It also created the National Labor Relations Board and provided for the enforcement of Board rulings. With the institutionalization of collective bargaining, employers showed a bit more tolerance for unions and collective bargaining during the 1940s until the end of the 1950s.
However, “union-busting” strategies were still employed, like firing employees who were sympathetic to unions and making sweetheart contract deals with unions without employee participation. Employers were manipulating union elections, threatening to revoke employee benefits, spying on workers and using other strategies in light of weak labor law enforcement practices. Unions, of course, continued to use coercion and intimidation tactics to convince employees unionization was the only solution to their problems. The passage of the Landrum-Griffin Act in 1959 (Labor-Management Reporting and Disclosure Act (LMRDA)) redefined the relationship between union members and employers, granting the unions a Bill of Rights and establishing standards for union and employer reporting and the election of union officers.
Emergence of Modern Union Avoidance Strategies
The 1970s were a difficult economic period during which the U.S. economy stagnated, globalization was growing and technology began changing how people worked. To better compete and gain flexibility in employee work design, assignments, wages and schedules, employers began focusing more on keeping unions out of nonunion workplaces, a shift in strategy from the 1960s practice of negotiating the “best bargain” to implementing “union avoidance” strategies.
New approaches in union avoidance were developed that worked well for employers during the 1970s-1980s. They included screening out people who supported unions during the recruiting and hiring process and communicating to employees the rationale for objections to unions. During this period, work continued to be radically altered by technology and people became more connected. The trend in the 1990s and into the present became developing a workplace where employees don’t want or need unions. Employee engagement became the new union avoidance strategy. Human resources policies were developed that mimicked what could be obtained through collective bargaining, and companies developed workplace cultures that created positive employee relations in which managers engaged in HR practices that were right to do.
Will Policy Changes be Good for Employers?
Where are we today? There’s no question that President Obama and his Labor Secretary Tom Perez consistently supported unions. During President Obama’s administration, the National Labor Relations Board issued a long series of rules and decisions that made it easier for unions to organize. The NLRB rulings allowed workers to picket on private property, expanded the type of work that falls within federal labor law, and gave groups like graduate students the right to unionize. The unpopular ‘persuader rule’ required lawyers to disclose arrangements, even if they never met with employees and only advised employers.
When Richard Griffin was appointed as the NLRB’s general counsel, unions found a powerful advocate. He has the ability to run the five-member board, and direct investigations and use that power to support union activity. There’s no doubt left that the NLRB wants to help unions expand after the board charged McDonald’s Corp. in 2014 with “joint employer” status as a result of a series of unfair labor-practice complaints against franchised restaurants, allowed micro-unions and adopted the speedy election rule.
The election of President Trump and his appointment of Andrew Puzder as Secretary of Labor signals a potential shift in government policies. Previously, Puzder was the CEO of CKE Restaurants. As CEO, he was anti-regulatory, supported replacing workers with technology to reduce labor costs, opposed raising the minimum wage, criticized the overtime regulation, and hired union avoidance consultants. President Trump is also appointing new National Labor Relations Board members who will surely reverse some of the pro-union decisions made in the past. Note the speedy election rule is likely to remain in place.
General Counsel Griffin will be replaced when his term ends on October 31, 2017, probably leading to reviews of cases like employee use of corporate email to conduct union activity and unionization of graduate students. However, as an employer, you cannot know or depend on the actions President Trump or the NLRB will take because nothing is certain in the political arena.
Don’t Breathe a Sigh of Relief
Unions have reached a new low in terms of membership, so it’s tempting for companies to breathe a sigh of relief. That’s not a good plan, and the proof is in the new kind of union activity taking place in the first few months of 2017. In March 2017, news came out that Silicon Valley tech workers were talking about unionizing, alarming for two reasons. One is that it is high-paid engineers and product managers are talking unionization. More concerning is that the interest in joining a union arose out of objections to some of President Trump’s statements and policies and not out of working conditions. It is social activism driving interest in joining a union and not company conditions, adding a whole new twist to staying union-free.
You cannot rely on a business-friendly government to keep unions out of your workplace. There is enormous uncertainty surrounding the union-friendly rules and regulations that will be reversed or how courts will rule should reversals be litigated through new cases. History has also shown that the tide can change in favor of unions in certain economic conditions, and there will always be unions actively searching for new members. The best strategy is to union proof your business by creating a positive culture, treating employees well, being in constant communication with employees and creating an engaged workforce with common goals. There are no certainties in this world, a fact that’s especially true in the world of unionization.