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Prevent Union Organizing
The Bureau of Labor Statistics (BLS) issued its annual Union Members Summary for 2022, causing a media deluge of reporting that says the continuing downward trend of union membership rates is due to employment laws that side with employers. One of the interesting facts about these statistics is that statistics are not always what they seem at first glance. Looking at the 2022 numbers, you would think employers could breathe a sigh of relief that the union membership rate has decreased again from 10.3 percent to 10.1 percent, even though there is a pro-union National Labor Relations Board (NLRB) and a pro-union Biden administration. However, employers should take this report as a message that the remaining two years of the current administration will lead to an acceleration and intensification of support for unionization. How do the statistics inform employers about the steps they can take to prevent union organizing?
The Bureau of Labor Statistics reports the union membership rate each year, and the union membership report for 2022 was issued on January 19, 2023. The summary highlights the data collected via the Current Population Survey (CPS), a monthly sample survey of 60,000 eligible households. The first thing to note is that the technical note attached to the union membership report says the union membership and earnings data are determined from one-quarter of the CPS sample and are subjected to sampling and nonsampling errors. There is a 90 percent level of confidence in the statistics, which is actually not that good. A more acceptable statistical confidence level would be plus or minus five percent. There are also nonsampling errors that include not sampling a population segment, inability to get responses from people included in the sample, unwillingness of respondents to provide correct information, and errors made during data processing.
These potential and actual errors are significant given that the union membership decrease is reported at minus .2 percent, from 10.3 to 10.1 percent. Another critical point is that a respondent was classified as a union member if the person answered "yes" when asked if a member of a labor union or an employee association similar to a union. A reader would assume that employee associations include organizations like independent unions, which are growing more popular after Starbucks and Amazon workers organized independently.
If the person said "no" to being a member of a labor union or employee association, the second question asked was whether the person is covered by a union or employee association contract. If the answer was "yes," the person was classified as a union member, even though this group undoubtedly includes many people who did not want to belong to a union but were forced to deal with a labor union anyway. There are 1.7 million people like this who are not union members.
Following are some significant statistics reported in the annual BLS 2022 union membership report.
The BLS reports that non-union workers earned a median weekly wage of $1,216 compared to non-union workers who earned a median weekly wage of $1,029. However, the BLS adds the caveat that many factors could be important in explaining the difference, and the amounts reported don't take them into account. IRI Consultants discussed the real effect unions have on employee wages because statistics and numbers often don't reflect the whole truth.
The union membership rate can't be looked at in isolation to determine the truth about unionization trends. Though the overall union membership rate decreased, you will find more interesting information in the breakdown of the BLS numbers and the economic numbers that will guide your efforts to prevent union organizing. The Economic Policy Institute (EPI) analyzed data from the Bureau of Labor Statistics and the NLRB and found the following.
The pro-union organizations and labor unions say that millions of workers cannot join a union because the employment laws support employers more than workers. EPI suggests the PRO Act should be revived and passed in Congress. The Protecting the Right to Organize Act has yet to pass through Congress. It's hard to say if new legislation to restrict employers and make unionizing easier is possible because Democrats control the Senate and Republicans control the House.
A problem with interpreting current statistics is that 2022 was one of the pandemic years, which has skewed job and employment numbers for comparison purposes.
The union membership rate fell because fewer people among the 5.3 million employees joined a labor union. But it's a mathematical calculation. The number of union members grew by 1.9 percent, and the number of workers grew by 3.9 percent. Remember your days of math lessons? When a denominator increases faster than the numerator, the result is a decrease. As workers in the labor force returned to work post-pandemic, the number of employees increased.
Second, the fact that the 2022 unionization rate is the lowest on record may not indicate that employees aren't organizing. Employees today organize in new ways as independent unions, alt-labor groups, associations, and sometimes just as a disengaged group of employees who get together in a workplace to protest something or to walk off the job but without formally organizing. Some of these people may have indicated they are union members, but there is no way to know if they did or did not. This affects the calculation of unionization statistics.
The growth of independent unions that are not affiliated with major labor unions and employee activism not connected to any union in the workplace makes it very difficult to determine if union membership is really decreasing. Some employees form associations that are union-like but are neither labor unions nor independent unions. For example, non-union worker organizations are being created by people who don't have the right to unionize under the National Labor Relations Act. The organizations act like labor unions, but they are not. They organize wildcat protests, file class action lawsuits against employers, report safety complaints to OSHA, demand higher pay and more benefits, and lobby state legislators to change employment laws.
They include the following:
There is no way to know if any of the people in these non-union groups are represented in the Bureau of Labor's statistics. There is also no way to know how many immigrants would refuse to respond given their worker status as undocumented workers. Yet, the worker associations represent millions of people. For example, United for Respect has 16 million members, and Restaurant Opportunities Centers United has 65,000 members. The National Domestic Workers Alliance advocates for 2.2 million workers, and the Coalition of Immokalee Workers advocates for more than two million workers.
Is the real unionization trend really heading down? Looking at the big picture of organizing, the answer is "no."
The reported unionization rates are a cause for concern for several reasons besides the fact that the numbers aren't inclusive, which distorts unionization trends. One reason for concern is that the statistics will motivate the NLRB and labor-related agencies like the Department of Labor and the Biden administration to pursue regulations, policies, and legislation that promote unionization. As IRI Consultants has discussed many times in various blogs, NLRB General Counsel Jennifer Abruzzo has a clear agenda that she calls pro-worker, which equates to limiting employer rights. The NLRB and other agencies, including the DOL and the EEOC, are working together to promote her agenda and the agenda of the White House Task Force on Worker Organizing and Empowerment.
The AFL-CIO issued a statement to address the report's statistics to make the point that the union membership numbers are likely understated or don't reflect what the labor union sees as a trend.
While the report indicates a slight drop in union density from 2021 to 2022, the data don't capture the surge in worker organizing across every sector, from teaching assistants to baristas to museum workers, construction workers, video game developers, and many more. With the resurgence of union organizing and unprecedented federal investment in job creation, the labor movement is poised to grow significantly in the coming years.
Labor union leaders recognize the issues with the BLS statistics and take hope from them. Some industries will see more union organizing than they have in the past. They include hospitals, transportation and warehouses, leisure and hospitality, universities and colleges, and food workers. Unionization in the tech industry and sports and athletics is also increasing. The tech industry includes gaming software developers who began organizing last year.
As GC Abruzzo works through her agenda, there is no doubt that she will make it easier for employees to unionize.
In 2023, the NLRB will pursue changing the independent contractor standard so that more people are classified as employees and thus eligible to join a union. This will increase the number of union elections. On December 16, 2022, for example, the NLRB decided in the case of Bexar County Performing Arts Center Foundation d/b/a Tobin Center for the Performing Arts and Local 23, American Federation of Musicians that property owners can only exclude off-duty workers who work for someone else when able to prove the employees' Section 7 activity significantly interferes with the use of the property or where exclusion is justified by another legitimate business reason." This means employees that don't work for an employer can conduct labor protests or distribute handbills on the employer's property.
The NLRB has returned to what is called the Specialty Healthcare standard. This standard says an employer or union challenging a petitioned-for bargaining unit must demonstrate that excluded employees share an "overwhelming community of interest" with employees in the bargaining unit that petitioned the NLRB. This makes it more likely that labor unions will organize micro-units that the NLRB will certify. Micro-units create a leadership challenge because you could end up with multiple collective bargaining agreements with different requirements.
In addition, the public is supportive of unions. Gallup's August 2022 survey found that 71 percent of Americans approve of labor unions. The results also found that union membership is highest among frontline and production workers at 20 percent, but healthcare and social assistance (13 percent), white-collar positions (11 percent), and administrative and clerical roles (10 percent) have union membership rates almost equal to or already higher than the total membership rate of 10.1 percent. The increasing support for unions probably resulted from the many issues that arose during the pandemic, like the health and safety of workers and compensation.
Employers will also be pressured to voluntarily recognize a labor union rather than forcing an election or not starting a campaign to discourage votes for a union if a union election takes place. Major League Baseball voluntarily recognized the Major League Baseball Players Association as the bargaining representative for minor league players. The Academy Museum of Motion Pictures voluntarily recognized Academy Museum Workers United, an affiliate of the AFSCME Council 36.
Microsoft chose the path of a labor neutrality agreement for Activision Blizzard, which it recently bought. Microsoft president Brad Smith told the Washington Post that the agreement means, "…we respect the right of our employees to make informed decisions on their own. It means that we don't try to put a thumb on the scale to influence or pressure them. We give people the opportunity to exercise their right to choose by voting ... it's something that's respectful of everyone, more amicable, and avoids business disruption."
Equity is an issue that the public and unions embrace. There is social pressure to close the wage gap between Black and Hispanic workers compared to White workers and between men and women. According to research by Asha Banerjee and others, unions help to close or reduce gender and racial/ethnic gaps. According to this research, union Black workers are paid 13.1 percent more than non-unionized Black workers, and Hispanic workers are paid 18.8 percent more than non-unionized Hispanic workers.
Another issue is the increasing connectedness of union organizations and union members globally and nationally. On January 26, 2023, the Trade Union Front PAME met online with the Amazon Labor Union USA organizer Chris Smalls. He is the man who successfully led the union organizing campaign at Amazon's distribution center by using social media and engaging in practices like providing food to workers who walked off the job. The recent meeting was to discuss the attempts of Greek workers to unionize and "the need to strengthen the organisation of workers in every workplace and the development of Solidarity."
If you are like many employers, your leaders are striving to engage employees in the most productive manner. There are a number of steps you can and should take now as the pressure on employees to unionize intensifies.
The NLRB statistics say that 41.5 percent of union election campaigns include an unfair labor practice charge. In the fiscal year 2022, the number of ULPs jumped 19 percent from 15,081 in the fiscal year 2021 to 17998 in 2022. The NLRB issued 132 decisions for ULP cases and another 111 in representation cases. It took an average of 84.8 days to reach determinations on ULPs. Employees can file a ULP even if not in a union. The implication is that increasing employee engagement and reducing your vulnerability to an organizing campaign is critical, even when there is no immediate threat to unionizing.
The NLRB discussed the developments in the law made through NLRB decisions in FY 2022. Do your leaders understand what they can and cannot do? For example, in the case of Tito Contractors, the Administrative Law Judge and the NLRB found, "…the Employer had violated the Act by discharging employees; interrogating employees about their protected activities; threatening employees with discharge, loss of overtime, and immigration-related reprisals for engaging in protected activities; and creating the impression that employees' protected activities were under surveillance." This cost the company $250,000 in back pay. The case took almost a decade to settle, a costly proposition.
Industries once believed to be fairly immune to union organizing are discovering that belief is now wrong. The implication is that the leaders of every company in every industry that wants to prevent union organizing should conduct a union vulnerability assessment. Though the statistics say the union membership rate continues to trend downward, the bigger picture points to increasing membership rates in 2023. This is the time to review your organization's policies and procedures, employee engagement level, organizational culture, and union vulnerability.
The industry experts at IRI Consultants can help your company prevent union organizing in the age of employee activism. The time to prepare is now!
Walter is IRI's Director of Digital Solutions and founder of UnionProof & A Better Leader. As the creator of Union Proof Certification, Walter provides expert advice, highly effective employee communication resources and ongoing learning opportunities for Human Resources and Labor Relations professionals.