Birth of a Union Campaign
A union campaign doesn’t suddenly burst to life. They begin slowly, in one of two ways. It could be a few employees with a common issue who are not satisfied with their employer’s response and contact a union representative. The second path is when a union representative encourages discontent by convincing one or more employees that their employer is mistreating them, and that the union can help.
There are five basic steps that unions implement in order to organize employees. The basic steps are just that: broadly applied to most campaigns. However, within each of these fundamental steps, there are a number of sub-steps and activities intended to solidify the support of as many employees as possible.
Of course, when faced an organizing drive, the natural reaction of an employer is often to go into defensive mode. However, savvy employers have prepared well in advance to respond rapidly and legally should a union campaign take place. You can respond in this manner by learning and understanding how unions think and behave in the modern world of technology, staying current on federal and state laws and by making sure your leaders possess critical knowledge about the things employers can and cannot say and do during a union campaign.
So these two beginnings – employees contacting a union or a union targeting a company – have been the two primary initiations to a union campaign for many decades. Today, though, technology makes it easier than ever before for your employees to conduct what the National Labor Relations Act calls “protected concerted activity.” Until social media was available, it took phone calls, personal meetings, and private “social gatherings” at local venues for union organizers to discuss unionization with potential members. Today Facebook, Twitter and a host of other social media sites and union websites provide a place where employees and organizers can connect privately, even using their personal smartphones at work. Employees are easily able to sign up for e-newsletters and updates, enabling the union to stay in regular contact.
One of the mistakes that many employers make is overreacting to organizing activity. Employers may decide to break up whispering groups of employees who are on break, put spies in the lunchroom, secretly monitor social media and then admonish employees when they don’t like what they read, telling them the company will shut down if they unionize. These types of actions can lead to employees (or the union, on employees’ behalf) filing formal grievances with the National Labor Relations Board (NLRB), claiming protected, concerted activity rights have been violated.
The Developing Union Campaign
The union effort is a flowing, flexible one because the union representative must customize the process through the various stages, including how and when they contact employees and the types of grievances the union will file (we assume there will be some). The first step is to learn the usual, predictable steps unions use during an organizing campaign.
- Employees begin to contact each other about joining the union, personally or through social media, eventually connecting with the union, or the union contacts employees and tells them how much better their lives would be if they allow the union to negotiate with the employer as their representative.
- After the union gets involved, they assign a representative to meet with a small group of interested or curious employees. The purpose is to answer employee questions, and of course, promote unionization.
- The union collaborates with the initial group to develop an organizing plan.
- The union forms an in-house organizing committee when it seems like there are enough people interested across the company. The organizing committee will ideally consist of employees from each unit, division, department, and shifts, and will reflect the demographics of your workforce.
- The union trains the members of the organizing committee. The training is to teach employees about the law from their perspective, employee rights, the process, methods for contacting co-workers and getting them onboard, and the particular union’s policies and procedures. In turn, the organizing committee members share information about the workplace operations, policies, and procedures with the union.
Note that the union interpretation of the law is likely not the same interpretation an employer would apply. This is a step in the process of creating a union proof organization and employers need to be knowledgeable of the labor laws and have good legal counsel in place well in advance of a union organizing campaign.
The Journey to A Union Election
Union representatives then present signed union authorization cards to the NLRB. The NLRB determines who is eligible to vote (bargaining unit) and will also schedule an election. Legally, the union only needs to be 30 percent of the bargaining unit to sign an authorization card to petition the NLRB for an election.
If more than 50 percent of a potential bargaining unit signs union authorization cards, the union will first demand the company accept the union as the representative of employees without holding an election (card check). Naturally, most employers won’t agree to this. Unions prefer to have a substantial majority of bargaining unit signatures (over 50 percent) before filing a request with the NLRB or the FMCS.
During the campaign, you are legally required to provide additional information about your employees. The union wants specifics for each employee – name, address, phone number, online sites of contact, shift worked, department/division/unit and job title. The organizing committee members begin to solicit employees to sign union authorization cards, either online or hard copies, getting the information the union needs to advance the campaign process. Committee members also partner with the union to identify employee issues, with an eye to finding many things you are doing that the union can claim is unfair (trodding on the little guy).
The union will also collect information about the company’s locations of operations, products and services, vendors and contractors customers and prior union activity.
The NLRB sets the election date. Currently, the “expedited” or “quickie” election rule is in effect. This rule shortens the time between the filing of the petition and the actual vote. Previously, employers had approximately 38 days, but today, you’ll have as little as 10-13 days and certainly no longer than three weeks. The “quickie election” rule gave the unions an advantage – no longer did they have to sustain employee interest for a month or longer! Now, union organizers only have to keep the momentum going for 2 to 3 weeks, and employers are limited in ability to respond and educate workers.
The “quickie election” rule is just one reason why it’s critical to be prepared to respond to a union campaign long before a union even discovers your business. Work to build your UnionProof culture. Have your materials assembled and ready for rapid customization. Be prepared to respond to specific issues and educate employees on unions. Waiting until you see a petition for election means you’ll have used half of the campaign just getting your materials assembled!
The law also limits the objections that you can raise before an election and restricts your right to challenge election results with the NLRB. The union and your managers will spend the time between petition and election educating employees on the benefits already provided and the facts about becoming a union member (i.e., must pay union dues). The goal is to convince employees that they are much better off maintaining their direct connection with management. Ideally, you can address the issues that led to some employees engaging with the union. Be sure to pay attention to your tone and approach – although the union will try to call your efforts to educate employees an “anti-union campaign,” it really should be a “pro-employee campaign.”
An employee who signed a union authorization card (electronically or hard copy), does not have to vote for the union during the election process. Understanding this point is a significant reason the quality of your pro-employee response is so important. It’s an opportunity to sway votes.
During the campaign, employees and the employer must adhere to company policies on the distribution of materials in the workplace. If you allow the distribution of any non-union materials, then employees have the right to distribute union materials. It’s also critical to know what an employer should not say during a campaign, (i.e., 25 employees will lose their jobs if you support the union).
The NLRB then holds a secret ballot election. If your efforts were successful, the union ends their campaign – but can return a year later. If a majority of your employees vote for the union, the union wins and is certified by the NRLB as your employees’ legal bargaining representative.
Collective Bargaining: More, Same, Less
Collective bargaining begins as the union has usually promised employees they will have “everything in writing.” There are two teams of people at the table during negotiations, one group for the employer and one for the union. Each side is likely to have an attorney as a member in this day and age.
Employers are required to negotiate with the union, but the negotiation process is usually contentious. The employer is unhappy the union won and now has to negotiate wages, benefits, safety, employee work locations, Human Resources policies, grievance procedures, management decision-making concerning employees and more. There are also items like whether the bargaining unit will be a “union shop” in which all employees in the bargaining unit are required to join the union. You can submit the initial items you want in the contract to the union. The union uses the list to get the negotiation process started.
The union will begin mobilizing employee support for the union’s stand on various items. There’s good reason for this. The union wants employees to pressure their employer to accept the union’s terms. If the contract negotiations fail, the union must either accept the employer’s terms or go on strike. In some cases, the union gives up, and employees work without a union contract. In other instances, employees go on strike. The union or the employer can protest the negotiation process when one party believes the other party is not negotiating in good faith.
Cost of a Union Campaign
The cost of unionization for employers is high. There is a cost to union members, companies and communities. Some costs are tangible and easily measured, like attorney fees. Others, like low morale, exact an intangible cost. In the age of technology and social protest, unions can negatively impact a company’s relationship with employees and community members.
The average cost of a union campaign is difficult to pinpoint because a lot depends on how smoothly the campaign goes and the size of the company. For example, if the union files complaints with the NLRB claiming company representatives violated employees’ concerted, protected activity rights, you will spend more on attorney fees, and the process will take longer. If a company has multiple locations, the campaign is more expensive.
Preparation of training materials, employee meetings, management time spent dealing with various issues, lowered employee productivity, and travel expenses are examples of the direct and indirect costs of a union campaign.
Labor consultant Jim Gray researched the cost of one unionization campaign. He found a business will spend $400,000 to $2,000,000 on a single campaign. The campaign is just the beginning of the costs an employer incurs.
Once a workplace is unionized, you will end up paying approximately 20 percent more in labor wages, per the U.S. Bureau of Labor Statistics. Also per the BLS, from 2006 to 2016, employer benefits costs increased 31 percent for union employees and 22 percent for non-union employees. Additional ongoing costs concern things more time-consuming grievance procedures, management time spent addressing union-related issues, inability to promote based on merit versus seniority which can lower productivity, dealing with lawsuits or arbitration cases, meeting additional accounting requirements and hiring more Human Resources and legal staff. The initial associated intangible cost is the fact that union organizing campaigns harm employer-employee relationships, sometimes irreparably.
Even if the union loses an election, they are legally entitled to re-petition for a new election a year later. This rule means the union can and will stay in contact with employees to find new issues and continue promoting union membership. This constant fuel for discontent causes divisiveness in the workforce.
Union membership numbers have trended downward since 1983, from 20.1 percent in 1983 to 10.7 percent in 2017. This has reduced the amount of union dues collected, a primary source of their revenues. Unions were also dealt a financial blow when the Supreme Court decided that forced union dues paid by public employees were not legal in the case of Janus v. American Federation of State, County, and Municipal Employees, Council 31. In just one example, more than 10,000 New York City employees opted out of paying union dues as a result of the Supreme Court’s position on the Janus case. Unions lost approximately $250,000 in two weeks. Over half the states also have right-to-work laws that prohibit making the payment of dues a condition of employment.
These legislative hurdles have led unions to use any means possible to continue their aggressive recruitment of new members more cost-effectively. Technology has enabled unions to economically communicate with a large number of people with less staff. The labor unions now use social media, websites, Twitter, online newsletters, videos, and other tech-based communication tools.
Unions are also turning to strategies like corporate campaigns and card check to avoid the cost of an organizing campaign. A corporate campaign attacks a company in a way that damages the company’s reputation over time, and costs that company so much time and money that the employer agrees to the union’s demands. The union can use economically strategic actions like helping employees file multiple unfair labor practice charges or “salting” the workforce with union representatives for the sole purpose of inciting the employer to fire them. Corporate campaigns facilitate union organizing by damaging the business to the point where unions can successfully demand a “neutrality agreement,” meaning the employer agrees NOT to fight unionization. Card-check, discussed here previously, means employers voluntarily recognize the union and agree to bargain without holding a secret-ballot election once 50%+1 employee signs a union authorization card .
It’s important for employers to understand that labor unions are relentless in their efforts to recruit employees. Despite court cases and NLRB decisions in favor of employers, the unions will find workarounds.
Resisting a union campaign can be expensive in terms of lost productivity and attorney fees. The best path is to develop a positive work culture, supported by trained leaders across the organization, and a trained and engaged workforce, reducing the chances the union will get a foot in the door. Sometimes the union still comes knocking. Understanding the elements of a union campaign is key to detecting and managing the process in a way that keeps the union out of the workplace, and your company out of the NLRB claims system.
Check back next week for part 2 in this 2-part series, Step By Step: Resisting a Union Campaign!