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Prevent Union Organizing
Once upon a time, generally only union employees would go on strike as a last resort attempt to force an employer's hand during collective bargaining contract negotiations. Times, as they say, change, and they are radically changing as more non-union strikes, pickets, and protests take place. Non-union employees, from restaurant workers to retail workers to tech workers, are walking off the job to protest hours, benefits, work schedules, pay rates, environmental practices, and lack of social responsibility in the types of business an employer conducts. You must prepare for an employee walkout, strike, or protest, even if you are not a unionized workplace.
Labor activism is on the rise, and this time, the labor shortage, increased self-awareness, and a pro-union Biden administration empower workers. Statistically, every employer should be aware and informed regarding the possibility of worker activism.
The School of Industrial and Labor Relations at Cornell University created the Labor Action Tracker in 2020, which is now considered one of the most comprehensive databases for U.S. labor actions. The year 2020 is the first full year reported. Since 2020 was an unusual year due to the pandemic and walkouts were down for practice reasons, it was easy to predict that walkouts would return in 2021.
The U.S. Department of Labor Statistics tracks strikes only at businesses with 1,000 or more workers, and the strike has to last at least a whole shift, so its database doesn’t provide a true reflection of what’s happening in the workplace. Companies as small as 10 or 15 employees are experiencing employee walkouts.
Cornell University ILR School also reports:
There is a long list of reasons employees gave for work stoppages. The top five based on the number of work stoppages are the following.
Manufacturing, transportation and warehousing, educational services, health care and social assistance, and accommodation and food services were the top five industries in terms of work stoppages.
It might be tempting to get complacent since unionization rates continue to fall, but instead, non-union workers are rapidly changing the scenario. While the unionization rate for 2021 declined to 14 million workers and 10.3 percent of the labor force compared to 2020, worker unrest and public approval of unions are increasing, and the NLRB is promoting changes that make it easier for workers to strike, walk out, or protest.
Interestingly, there were 20 work stoppages in 2021 concerning retirement benefits, but they accounted for 1,256,471 strike days involving 21,620 workers. Some of the work stoppages had multiple demands, including a $15 minimum wage, first contract, job security, racial justice, union recognition, an end to sexual harassment, and scheduling. In 2022, we can add pay not keeping up with inflation. In some states, the price of gas per gallon is more than the minimum wage.
There are numerous opportunities to learn how employees across industries think about their jobs and employers and the issues they are willing to address through walkouts of some type.
These are just a few examples of the walkout activity going on now. Employees are encouraged by unions and worker groups (non-unions) to get attention in any way they can. One strategy is picketing stores that sell the employer's products. The NLRA does not allow unions to picket secondary employers, but a legal exception exists for retail stores and distributors. The protestors or strikers cannot interfere with operations, can't ask customers to stop doing business with the retailer, and can't demand the store stop buying products from the employer where employees are striking.
Fall 2021 (September to November) saw many strikes and protests. Business Insider listed 25 companies that struck or protested from September to November.. A few on the list include:
Of course, Starbucks and the Staten Island Amazon facility are great examples of employees unionizing without a formal labor union. You can see how complex staying union-free has become. Protests, strikes, and walkouts are occurring across industries, in union and non-union workplaces, by white-collar and blue-collar workers, for various traditional and non-traditional reasons, and all while supported by national labor groups and independent workers' unions.
Last fall was a very active period for work stoppages. Is there another fall of unrest ahead? It's likely because union and non-union employees are feeling very empowered with the support of the federal administration and the NLRB.
Starbucks stores have been unionizing, and CEO Howard Schultz offers an insightful perspective. While acknowledging the company needs to make some changes, Schultz believes worker issues don't necessarily have to do with Starbucks policies and procedures. His theory events during these workers' young lives, from the Great Recession to the global pandemic, have a powerful impact on them. Younger workers see a growing labor movement and believe joining a union may help them feel better.
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IRI Consultants is here to to help companies proactively identify and address potential employee relations vulnerabilities, so we developed the Labor Relations Readiness System. With the results of the LRRS, we’ve helped some of the nation’s largest corporations avoid new unions while containing their existing bargaining units. Click here to get learn more.
The National Labor Relations Board (NLRB) says. "All employees – union or not – have the right to participate in a protected strike, picket, or protest." However, the activity must concern a work-related issue concerning the interests of employees.
Section 7 of the National Labor Relations Act (NLRA) allows employees to engage in concerted activities for collective bargaining or other mutual aid or protection. Section 13 addresses the right to strike, and it defines what makes a lawful (protected) or unlawful (not protected) strike.
The catch is that a strike's lawfulness is open to interpretation by the NLRB. Lawful strikes can be economic strikers who want concessions on working conditions, schedules, and wages. The employer can replace these strikers, and the employer can recall them to work when openings occur.
There are also unfair labor practices (ULP) strikers who protest their employer's actions. The strikers cannot be terminated or permanently replaced, presumably because a ULP means the employer has violated the NLRA. The strikers can get their jobs back, even if the company must terminate a replacement worker.
There are some conditions under which a strike can be unlawful. If the strike has an illegal purpose or a no-strike provision exists in a collective bargaining contract, then the strike can be illegal. A strike can be unlawful if strikers engage in serious misconduct, like violence or blocking people from entering or leaving the employer's property.
Employers respond to employee work stoppages in different ways. One of the primary considerations is whether the work stoppage impedes productivity and makes it so the business cannot continue operating. The law office of Fisher Phillips says the NLRB will consider how often the protests take place. The more frequent they are, the more likely the walkouts will be regarded as unprotected concerted activity. If it's a one-time protest, you could immediately begin a dialogue with the workforce to understand their grievances better and work together to find solutions.
Much depends on the type of business too. Some employers may let their employees participate in walkouts because operations are only mildly disrupted. Some companies will temporarily close. Businesses like healthcare facilities – especially hospitals – generally must stay open. Employers can't support the work stoppages because they put other people at risk, so they will look at options like hiring temporary employees. This option is challenging and financially costly to administer in the current labor shortage.
The employer response first hinges on whether the work stoppage is a protected concerted activity intended to advocate for the interests of employees. Even a work stoppage for political advocacy can be protected concerted activity IF employees are seeking something like better working conditions and a workplace free of discrimination or PPE. The connection as to whether the walkout is protected is that the employer CAN do something about working conditions, PPE, and discrimination.
Employers can't discipline employees who engage in protected concerted activity while not at work. They can discipline employees who walk out during a shift or don't show up. Your Human Resources policies should always be up-to-date and ready to administer if necessary. Violating HR policies is grounds for discipline.
Some employers will withhold the employee's pay if the walkout occurs during the work day when the employee should be working and not on break. Of course, strikes fall under specific NLRA rights that employers must protect, as described earlier.
Good communications can prevent employee walkouts. Seldom do employees walk out without any warning. Similarly, if employers have developed a solid positive employee relations strategy, they can address employee concerns quickly.
For example, in June 2019, 500 Wayfair employees walked off their jobs to protest the company's contract to supply furniture to migrant detention centers. Before they walked off, the employees had written a letter to the CEO, and some met with the CEO. Employees were not happy with the response and walked out. Many took to social media and quickly publicized the situation. However, Wayfair was ready to respond. The CEO made it clear that employees were at risk of losing their jobs and asked them to come back to work.
Employees usually are very public today about their grievances, like posting on social media accounts. Ignoring these signals of employee discontent or not recognizing the signs of union organizing increases the risk of a protest, strike, or walkout. In today's volatile environment, it's not always possible to prevent a work stoppage. Still, they are seldom a surprise, and your LaborWise leaders should always be prepared to respond legally.
The attorneys at Wimberly Lawson, Steckel, Schneider & Stine suggest four possible responses.
Complicated? Yes! The wrong response can quickly turn a short protest into a crisis.
Companies can't stop or prevent a pandemic, avoid another Great Recession, meet all employee demands and stay in business, or block all outside forces from influencing their workforce. To determine whether a work stoppage is legal, the NLRB and Administrative Law Judges will consider whether you can institute remedies for the employee demands, like eliminating sexual harassment, improving safety standards, and adjusting work schedules. If employees walk out to protest something outside the employer's control, the work stoppage is probably not legal. We use the word "probably" because the NLRB strives to change labor law to deliver more substantial support to employee organizing efforts.
The implication is that employers should prepare in advance for potential employee walkouts and protests. The best scenario is avoiding employee protests, but that's not always possible. Work stoppages are likely to increase in number and duration as public and government pressure encourages them to hold firm. Waiting until the work stoppage occurs can significantly damage the ability of the business to continue operating. Employers should be proactive in developing positive employee relations; you need to be proactive in preparing for employee walkouts.
Union and non-union employees can strike. Developing a protest, walkout, and strike contingency plan for a work stoppage is crucial to business sustainability and reputation management. You have to be prepared to address various types of work stoppages and not just union strikes. A strike contingency plan may also contribute to faster restoration after a labor event.
IRI Consultants assists clients in developing a customized contingency plan that prepares any company to quickly and effectively respond to an employee walkout, picket, or protest. Proposed changes in legislation, rules, and regulations make it difficult for employers to remain current. Each company should ask: Do we know what employees are allowed and not allowed to do per labor law, and how should we legally respond to their specific actions?
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.