Tag Archives: Union Organizing

Another Symptom of COVID-19: Union Organizing

Contributed by Beverly Alfon, May 26, 2020

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If your “essential” workforce is not already organized, consider this your wake-up call. 

As this pandemic has worn on, and more “essential workers” have fallen ill to COVID-19, labor unions have become noticeably more active. Just last Monday, the AFL-CIO filed suit in federal court to compel the Occupational Safety and Health Administration (OSHA) to issue an emergency temporary standard, aimed at forcing the agency to mandate certain safety actions by employers. 

Noticeably, the rhetoric from the AFL-CIO has been focused on “all workers” as opposed to “their members.” Plagued by a continuing decline in membership, unions seemingly recognize that they cannot let this opportunity to organize more workers pass them by. In an April 30 opinion piece published by the Chicago Sun-Times, Gary Perinar, executive secretary-treasurer of the Chicago Regional Council of Carpenters, declared: “The importance of unions is more obvious than ever during the COVID-19 pandemic…Of all the injustices exposed by this public health crisis, the risks faced by non-union workers are the most apparent.” It was a direct call to non-union workers. 

Indeed, many of the headlines about labor activity during this pandemic have not involved unions. For example, there have been walkouts to protest unsafe work conditions in nonunion workplaces such as Amazon warehouses in Staten Island, New York; Amazon-owned Whole Foods grocery stores in Chicago and other locations; and McDonalds workers in Chicago have sued the corporation over safety concerns (albeit, this one was financially backed by the S.E.I.U.). Even gig workers delivering groceries for Instacart called for a work stoppage. Such activity, of course, confirms that some workforces are ripe for union organizing. 

As businesses begin to reopen (and essential businesses begin to move forward), they will be forced to deal with employee concerns and demands over personal protective equipment, wages, hazard pay, paid sick leave, disability accommodations, and the status of laid off employees.  These very matters – job insecurity, safety concerns, and benefits – are what unions rely upon to organize workers. 

So now what?  Get your union avoidance plan in place. 

  1. Identify who your “supervisors” are (as defined by the National Labor Relations Act) and get them trained on identifying and dealing with union organizing. A “supervisor” cannot be represented by a union. They are also agents of your company, so training is key. They should be directed on what their role should be in avoiding union organization and what they can and cannot do in the event that union organizing has already begun.
  2. Review policies for clarity, perceived unfairness, and employee relations. A union will often focus employees on unfair policies. 
  3. Benchmark wages and benefits. A union will often promise more money. So, it is best to be prepared with a response.
  4. Identify employee relations problems now and deal with them before employees turn to a union. Get feedback from the group of employees who are vulnerable to union organization. Sometimes, it is as simple as tweaking a supervisor’s management style.
  5. Train management on positive employee relations. Your supervisors need to know about the importance of providing regular feedback to employees and maintaining open communication with them.
  6. Get a communications plan in place in the event that union organizing begins or has begun. 

While you may already have much to consider during these unusual times, being aware of the potential threat of union organizing at your workplace is not enough. Assessment and planning are necessary so that if the need arises, response can be timely, effective, and within the parameters of the National Labor Relations Act.

Keep Calm and Be Cautiously Optimistic – Recent NLRB Developments

Contributed by Beverly Alfon, September 25, 2018

Gavel2

Gavel on white background 

The National Labor Relations Board (NLRB) is taking more steps towards positive, significant change for private-sector employers:

Joint Employer Standard

CURRENT LAW:  The Board may find that two or more entities are “joint employers of a single work force if they are both employers within the meaning of the common law, and if they share or codetermine those matters governing the essential terms and conditions of employment.”  Browning-Ferris Industries of California, Inc., 362 NLRB No. 186 (2015). The primary inquiry is whether the purported joint-employer possesses the actual or potential authority to exercise control over the primary employer’s employees.

DEVELOPMENT:  On September 14, the Board issued a proposed rule that would consider an employer a “joint employer” of another employer’s employees “only if the two employers share or codetermine the employees’ essential terms and conditions of employment, such as hiring, firing, discipline, supervision and direction.” However, the purported joint employer “must possess and actually exercise substantial direct and immediate control over the employees’ essential terms of employment in a manner that is not limited and routine.” It reflects the current Board majority’s initial view, and is subject to potential revision in response to public comments.  Public comments are due by November 13, 2018.

Construction Industry Collective Bargaining Agreements – Section 9(a)

Most collective bargaining relationships between employers and unions are governed by Section 9(a) of the National Labor Relations Act, which requires a union to have the support of a majority of employees in the bargaining unit. In the construction industry, however, these relationships are presumed to be governed by Section 8(f) of the Act, which allows an employer to enter a collective bargaining agreement with the union without an election or other proof of majority support. Key distinction: An 8(f) relationship can be unilaterally terminated upon expiration of the agreement, but a 9(a) agreement obligates the employer to engage in good faith negotiations with the union for a successor contract.

Current lawA union can convert an 8(f) relationship to a 9(a) relationship based on contract language alone.  Staunton Fuel & Material, 335 NLRB 717 (2001). Typical language in a one-page memorandum of agreement states that the union requested and was granted recognition as the majority or 9(a) representative of the bargaining unit, based on the union having shown, or having offered to show, evidence of its majority support – regardless of whether the union actually presented or offered to present such proof of majority.

DEVELOPMENTOn September 11, the Board invited the public to file briefs regarding whether or not it should revisit this standard. Construction industry employers should be pushing hard for this reevaluation. Briefs from interested parties must be submitted on or before October 26, 2018.

Employee Use of Company Email for Union Organizing

Current law: Employees may use company computer systems for the purpose of union organizing.  Purple Communications, Inc., 361 NLRB 1050 (2014).  This applies to both union and non-union employers.

DEVELOPMENT: Last month, the Board invited briefs on whether they should uphold, modify or overrule Purple Communications. The public comment period has been extended to October 5, 2018. On September 14, the NLRB General Counsel filed an amicus brief in a pending case and took the position that employers should be allowed to restrict non-work use of its email systems in a non-discriminatory manner, as it does with other company-owned resources.

Be cautiously optimistic, but remain cognizant of the current law.  Stay tuned.