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Tagged with: Prevent Union Organizing
The focus on the 2022 midterm elections is understandable, but they are just another event feeding a gathering storm of workplace conflict and pro-union activities. This is a storm in which the National Labor Relations Board (NLRB) is prepared to reverse past decisions that protect employer rights conveyed by the National Labor Relations Act (NLRA) to make it easier for employees to unionize in traditional and non-traditional ways. It is a storm in which employee activism is leading to the formation of alt-unions leveraging social media to organize employees across companies and geographic boundaries and internal unions that are independent of traditional labor unions.
Add in the tsunami of unfair labor practice charges, a pro-union federal administration, public support for workers who are low-wage earners demanding a voice, and passionate differences in political views. The storm will only get bigger and stronger and threaten to engulf the workplace unless you do now what you wish you had done before – adapt and strengthen the workplace culture for a post-pandemic era. Now is the time for employers to look back, learn lessons, and look forward based on a plan for employee engagement.
Looking back to look ahead makes it easy to realize there have been numerous events that are now converging to create a national environment supporting unions and encouraging employee dissent. From self-organized protests to an active NLRB determined to reverse many decisions it considers unfair to employees, the storm clouds are gathering to create a new whole. That new whole should be your focus going forward. Following are past events that have changed the future and thus employer responses.
The union membership rate at the end of the year 2021 was 10.3 per the Bureau of Labor Statistics (BLS), and that was the number at the end of 2019, the last pre-pandemic year. Gallup annually measures labor union membership among all working and non-working workers each August. For the fiscal year 2021-2022, as of August 2022, the research company found that 12 percent of people surveyed said they were members of labor unions. It's only speculation, but the Gallup figure may be closer to the truth because many workers are now forming their own grassroots unions without going through the National Labor Relations Board (NLRB), and some small groups of employees are not included in NLRB statistics. These people consider themselves as unionized as members of unions like the Teamsters and the AFL-CIO.
Ten or 12 percent may not seem like numbers for alarm but consider these statistics. Union petitions filed increased by 53 percent year-over-year as of the federal fiscal year, September 30, 2022. Almost 2,510 petitions were filed for the fiscal year 2021-2022 compared to 1,638 union representation petitions the prior year. The number of unfair labor practice (ULP )charges increased to 19 percent for the same period, with 15,082 charges filed with the NLRB (an increase of 2,140 ULP filings).
The NLRB General Counsel Jennifer Abruzzo called this a "historic surge in union election petitions and unfair labor practices." The NLRB prioritizes election-related matters.
Secretary Marty Walsh wrote in a Department of Labor (DOL) February 2022 blog post that the White House Task Force on Worker Organizing and Empowerment is the first type of government-wide effort to promote policies, programs, and practices to actively help workers organize. The DOL's role is now identified as educational and supportive of unionizing. The agency is increasing efforts to ensure employees know their NLRA rights concerning organizing and bargaining rights (read: push for unionization), establishing a resource center on unions and collective bargaining; and advancing equity across underserved communities by supporting worker organizing and collective bargaining.
Even though the PRO Act did not pass Congress, multiple government agencies are working to promote worker organizing and implement as many of its provisions as possible through regulations. Another February 2022 DOL blog post by Lynn Rhinehart discussed that 20 government agencies and offices across the executive branch are working together to promote worker organizing per recommendations in the report issued by the White House Task Force on Worker Organizing and Empowerment, which has PRO Act provisions included.
Given it has only been seven months, the effort to expand organizing protections is far from being fully coordinated. The DOL says, "Now the challenge is on all of us to quickly and aggressively implement these recommendations and help grow the labor movement."
In the next 100 days, and through the next two years, the federal government will be finding numerous ways to encourage traditional and independent unionizing activity and support workers who choose to hold a union vote.
NLRB General Counsel Jennifer Abruzzo has made it clear in various advice memos she wants numerous changes initiated, and most of them reverse past decisions that were in favor of employers. For example, she wants mandatory (captive audience) meetings banned and wants card check reinstated so a union election can be bypassed. Abruzzo has encouraged the NLRB to rule in favor of the many changes she wants.
One of the most recent cases was the Tesla ruling which confirmed that employers couldn't stop employees from wearing union apparel or union insignia like a button. The only exceptions are when the employer can demonstrate there is a "special circumstance" like employee safety, quality control, public image, and workplace decorum. However, attorneys at Barnes & Thornburg say, "On their face, these categories could conceivably be used to justify any employer restriction. In practice, however, employers likely will be hard-pressed to demonstrate special circumstances in most cases."
Attorney David Pryzbylski, also with Barnes & Thornburg, told the Society for Human Resources Management (SHRM) the Tesla ruling "likely signals the beginning of a major sea change at the NLRB. Employers should expect more decisions that will limit their ability to do certain things in the workplace. More decisions limiting flexibility are expected—and soon." There will be decisions on union solicitation, recording, union access to employer property, and more.
On September 14, 2022, there was a full House of Representative Education & Labor committee hearing titled, In Solidarity: Removing Barriers to Organizing. It was almost four hours long. This is Congressional activism, so to speak, as pro-union representatives look for ways to increase union membership. Opposing voices on the committee said the NLRB should not be taking sides and must remain neutral, but Abruzzo obviously disagrees.
The mid-term elections will be disruptive in several ways. They may divide your workforce because of different political views, but they will also trigger lame-duck legislation. The legislation will be discussed on social media and in the workplace. No matter which party takes control of the House and Senate, there will be new laws that cause disruption and a large element of unknown consequences for employers. Forced organizational change is on the horizon.
In presentations at RILA (retail) and NATERA (transportation and warehousing), My colleague at IRI Consultants, Jay Kuhns, the VP of Strategic Planning and I, call these times "the age of affiliation." Employees are joining together and affiliating with a movement, a political party, or a union. The movement may be as broad as promoting social justice, as specific as supporting a particular political party, or as traditional as focusing on wages, benefits, and working conditions. The labor union can be a traditional labor union or an independent labor union that can be an internal labor union, or one formed externally to the organization.
The Fight for $15 and a Union, including Raise Up the South, is a combination of affiliations. It's a movement addressing issues like getting paid a living wage, employee voice, and equality in society, and it is also an independent labor union consisting mostly of low-wage workers who lack a sense of belonging in their workplaces. Members believe their employers don't respect their work and purposefully take advantage of them.
Employee activism includes strikes, protests, and walkouts, and today there's no penalty for a quickie strike. Starbucks employees have employed activism on a store-by-store basis but are likely not fully aware of the reality of their situation. The Starbucks employee group called Workers United is the certified bargaining representative for most stores and is part of the SEIU. The reality of unionization is that there is no guarantee a final collective bargaining agreement will be reached. Despite 240 company-owned stores unionizing in the past year, it is only now (October 2022) the company is beginning negotiations on labor contracts.
Employees in independent unions are usually focused on the union itself and not the agreement that will emerge between the union and the employer as a collective bargaining agreement that could be more, less, or the same. There is cognitive dissonance by focusing on the union instead of what could come out of an agreement and how long it takes to reach an agreement, if ever. Employee activism is very emotional behavior rather than behavior based on facts. For this reason, employee activism will certainly increase and especially as the economy slows down and workers feel even less secure.
From an HR standpoint and in light of the upcoming mid-term election, IRI executive Jay Kuhns and I believe, "Your workforce is about to be divided…whether you like it or not. Will it be 50/50 or 70/30? What should you be doing now, knowing that this division is about to hit full force and knowing the union campaign ads are ramping up and there's a split in your workforce?" Do you remain silent? Do you ignore events and never speak about them, forgetting the feelings and pressure? What do your employees want?
Maslow published his Hierarchy of Needs motivational theory during the turbulence of the 1970s. It was a period that saw women, African Americans, LGB, and other marginalized people fight for equality. As a reminder, from bottom to top, the needs are physiological, safety (employment, health, personal security), love and belonging (sense of connection), esteem (respect, self-esteem, recognition, status), and self-actualization. From a workforce perspective, notice that all five levels of needs are elements of employee engagement.
Psychologist David McClelland proposed the Acquired Needs Theory. This theory identified three learned employee behaviors that, taken together, motivate all people:
The pandemic created some of the learned behaviors that employees see as a way to meet their needs. Pandemic isolation created uncertainty that drove a need for affiliation or belonging. Most organizations believed their strong culture developed pre-pandemic would remain the preferred culture post-pandemic, and that has proved to be a false assumption. "Given the isolation of the pandemic driving a need for affiliation and belonging, is what you're currently doing concerning organizational culture meeting employee needs post-pandemic?" is the question that we recommend managers ask themselves.
Resting comfortably on past success is not a good strategy for the next 100 days and beyond. Assuming your strong past organizational culture is relevant to the present doesn't take into account either the disruptions taking place during and after the pandemic or the changes you already made in the workplace, i.e., the hybrid workforce. Do your remote employees still experience strong employee engagement and a sense of belonging? Many do not.
This is the time to demonstrate bold leadership and engage employees differently. Sharing our expertise in working with organizational leaders across industries, both Jay Kuhns and I suggest that employers who are relying on past success begin building a revamped culture by starting with a full assessment of current communication systems followed by developing a customized strategic communication plan. Following are some tips on assessing your organizational communication.
To fully prepare for the volatile next 100 days, during which the push for unions will only grow stronger, your leaders should ask and answer some critical questions right away.
During this period of volatility and disruption, it's of the utmost importance to recognize and respond to employee needs to avoid unionization. So many factors and events are in play today that support unionizing, and they will converge over the next 100 days into a perfect storm. Though these are challenging times, you have a path forward by developing a strong culture within the context of the times and based on an effective communication plan. The one thing you should not do is do nothing.
IRI Consultants works with a variety of companies preparing for a future of change in the age of affiliation. Contact our team of experts for assistance in developing a culture of belonging and engagement that recognizes the needs of employees post-pandemic.
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Mark Codd, Ph.D, SHRM-SCP is Vice President and Managing Director for IRI Consultants. Mark is an organizational change leader with a 25+ year record of driving and accelerating positive business/workforce transformations in rapid growth, for private and publicly held organizations.