All Posts by Jennifer Orechwa

Virtual union organizing has become a standard practice for labor unions in the last few years. People are getting more creative in their utilization of social media and digital communications because they are mobile accessible and easy to use. All generations are using these communication tools, albeit for different purposes. It makes sense for labor unions to leverage social media and other digital communications for organizing and running labor union campaigns. There are even platforms that are invitation only, adding to the ability to maintain secrecy as long as possible. Employers are locked out of knowing union organizing is taking place until the petition is filed with the National Labor Relations Board. Each year, virtual organizing gets more sophisticated as labor unions learn to use social media and their websites for outreach. 

Social Media and Digital Communications Create an Ideal Outreach Recipe

It makes sense that social media and digital communications are used for so many types of interactions. With a few clicks, labor unions and employees can communicate with remote and in-office employees, host virtual meetings to keep remote employees connected, share information, answer questions, organize employee protests or walkouts, and more. Digital communication of all types also gives people easy (and private) access to one another. All these ingredients make the perfect recipe for union organizers to cook up a union organizing campaign. Walter Orechwa, Director of Digital Solutions at IRI Consultants, says, "The key to successfully communicating with your employees is just to start doing it. Figure out the demographics and, if possible, the social media platform that they are using to communicate with each other right now. There may be several platforms that can easily be used simultaneously. But start now, not when you have a labor situation; get employees used to hearing from you, your philosophy, your listening, and your responses." 

Orechwa continues, "Make communicating with employees as two-way as possible. Take the good and the bad, show that you are listening, that employees are being heard, and that you care. Should a union target your organization, then these communication channels are already in place for you to transition the messaging as needed. This is not a one-and-done; develop a plan, a timing, or cadence and stick with it – forever, because it's the smartest thing you can do."

Furthermore, social media channels provide a way for labor unions to create a space for employees to express grievances and to spread the claim that their employer can't or won't take the time to hear those same complaints. It's easy to see how digital platforms promoting the creation of private groups have quickly become tools for union organizing efforts and are driving the formation of independent unions. No need to arrange a meeting space or worry about ensuring all interested people have access. Event planning platforms enable union organizers to schedule an event, post a link or phone number that gives access and recruit participants. There are also features available that create sophisticated marketing opportunities for the labor unions so they can spread their message.

There are social media options for every generation too. With four generations in the workforce now, employers need to realize that different generations utilize different social networking platforms differently. A whole research paper could be written on this topic. Following is a summary based on research by the digital marketing agency Indigital concerning social media use by Baby Boomers, Generation X, Millennials, and Generation Z. 

• 80 percent of every generation uses social media at least once a day
• Millennials and Gen Z use social media many times each day
• Millennials and Gen X use 5-6 different platforms, which are Facebook, YouTube, Instagram, Twitter, and Pinterest
• Gen Z has favorite platforms, which are YouTube, Instagram, and TikTok
• Only 36 percent of Gen Z use Facebook weekly, while 87 percent of Millennials, 90 percent of Gen X, and 96 percent of Boomers use Facebook weekly
• All generations like YouTube, but younger generations prefer short video forms like Instagram live and TikTok

Baby Boomers use social media to share pictures and videos of family and friends, while Gen X avoids posting information about their personal lives. Millennials have a fear of missing out, so check for updates regularly. Gen Z is willing to share personal information and is not worried about shared data. Labor unions target employees through careful selection of social media and digital communication options. 

Pandemic Driven Changes

Of course, the COVID-19 pandemic accelerated the use of social media and digital communication for union organizing. Once considered a benefit but not a working norm, flexible working arrangements are common. McKinsey's survey found that 58 percent (92 million employees) work at least part of the time remotely. 35 percent of employees can work from home full-time and 23 percent part-time. It's now believed that hybrid work schedules are here to stay. In many ways, that is a boon for labor unions that had trouble accessing employees working onsite in the early stages of union organizing. It was more laborious to schedule meeting places, secretly recruit employees, and share information, and much more difficult to keep the organizing effort quiet until 30 percent of the bargaining unit (or a significant number of employees) were willing to sign union authorization cards.

The pandemic also had another impact. It made workers more willing to address what they see as workplace problems. Some issues were schedules, safety, hazard pay, and social justice. Even though many employers adopted temporary policies related to working conditions during the pandemic, employees were unhappy when the policies were reversed post-pandemic. It's very difficult, for example, to give people extra pay and then take it away. The pandemic's influence on employees made them more willing to be activists for themselves and the common good. When it was nearly impossible to meet in person, employees turned to virtual communication via social media and digital communications, and the labor unions recognized the new opportunities this afforded them. 

Labor Unions Go Digital

Labor unions are using social media and digital communications in a variety of ways for union organizing. They are becoming proficient at marketing their unions and organizing employees.

• Training employee union representatives in the best ways to recruit co-workers
• Getting employee signatures on digital union authorization cards or petitions
• Holding online meetings about the union organizing campaign
• Holding promotional events to keep employees excited about unionizing
• Posting online petitions for various causes which engage employees
• Raising funds to support the cost of union campaigns
• Marketing the labor union in general
• Tracking employee actions by the employee and making notes, including contact information and follow-up
• Signing up volunteers who want to help the union succeed
• Utilizing a variety of digital tools for communication with employees, including text messaging, email, and online forms
• Identifying interests of employees, i.e., interested, influencer or leader, low interest, etc.
• Embedding links in labor union websites that take visitors to sites where they can read more about the union and leave contact information
• Embedding links to the labor union websites on social media
  
  

Using platforms means the union can collect big data, and data analytics helps the labor union refine its approaches. 

Sophisticate Digital Communication Gives Unions Control of the Dialogue

Can Facebook become a union organizing tool? Yes, it can and is being used for that purpose. CampaignGears, one of many platforms available for union-backed and independent organizing today, described a real-world example of how a labor union used Facebook for its union campaign. The first point made is that the longer the organizing is kept secret, the better. Another interesting point is that a union representative told CampaignGears, "The union felt that the digital side of the campaign gave it momentum – a sense that voting 'yes' was cool and that a victory was inevitable and exciting." There are tips provided to build a unionization drive on Facebook. 

For example, union organizers are advised not to rely on traditional organizing methods like emails and house visits. Instead, they are told to upload a list of emails to Facebook to create a custom audience and use the audience for targeted ads. To capture leads, organizers are advised to make "a connection to broader workplace issues." Using nurses as the example group, a Facebook page promoting job safety is developed, and petitions are run on Facebook using lead ads. This generates leads of healthcare workers who are not in unions yet. 

Daniel Schwartz, a Partner at Shipman & Goodwin, discusses digital organizing via TikTok on a ProjectHR podcast. His first point made is that professionals need to take digital communication seriously and adapt their messaging to match how people are consuming media. Employers got on Facebook eventually, but union organizing communication is taking place on other social media sites. 

Schwartz points out, "there is no single town hall where everyone is listening," making it challenging for employers to stay ahead. This also offers opportunities for employers to communicate, and TikTok is just one of the newest ways. Employers can't say, "I'm on Facebook," and that's good enough. It's not. The communication platforms are addressing issues and not just serving as meeting places. Employees are asked questions like: Does your employer need better scheduling? Do you think your employer should offer certain paid benefits? So employees are being urged to be dissatisfied with their employers.

Mastering Technology for Organizing

Wired posted an article about the use of TikTok to organize employees. TikTok is a social media site growing in popularity as a communication tool, especially for Gen Z employees. It is being used to target Amazon and Starbucks for purposes of union organizing and is now used for activism that could lead to employees deciding to organize. When Starbucks fired seven employees at a Memphis store, a college student coded a script that allowed people to auto-submit a pile of fake job applications to replace the workers. They did so because they believed the terminations were due to the employees trying to organize a union. 

Another coder created a website called Change is Brewing that gave simple instructions on how to use the script. The website was pushed on TikTok and across many other social media channels. More than 140,000 people flooded the application pool with fake applications. This effort is one way to get people interested in organizing and convincing them it works. 

One of the organizers (Joshi) said, "What I'm hoping is that we created a new generation of organizers who understand digital tactics and social media algorithms better than most past organizers. Now we have this knowledge of how to run campaigns successfully, how to get people out to vote, and how to go beyond views and actually make a tangible difference. And now, we're all real organizers. Digital organizing is legitimate organizing." It's so legitimate that the traditional big labor unions have reached out to the organizers.

Gen-Z for Change, a coalition of progressive digital activists that began as TikTok for Biden, rebranded itself and is now getting involved in the labor movement. It has 540 million social media followers. They have spammed Starbucks, Amazon, and Ralph's supermarket. "Unions are taking over the country," says organizer Joshi, "and people want to get involved with that because it's one of the coolest things that we have ever seen. And it's one of the most promising, optimistic things that we've seen. We've needed optimism for such a long time. We've lacked it." 

Labor unions are flooding social media platforms that include Facebook, Instagram, and Twitter. Organizers at REI and Starbucks have used hashtag campaigns like #UnionYES. The National Nurses Union (NNU) recently reported on Twitter that Ascension Seton Medical Center in Austin, Texas voted #UnionYES to join the union. Numerous platforms are used to communicate with employees, including Signal, the invite-only Clubhouse app, Frank, and more appear all the time.

Social media is giving unions control over the dialogue around union organizing efforts. Employers who don't have a strong social media presence or don't give employees a voice on their websites by allowing comments are particularly vulnerable. That's the assessment of Donald Schroeder at attorneys Foley & Lardner.

Retargeting Potential Union Members

One of the drawbacks to virtual union organizing is that employees can click away from a union recruitment website without taking any action. Today, it's possible to add a tracking pixel on the union website that enables the website owner to follow website viewers when they leave the website. An ad is then placed on another website unrelated to the union website. The retargeted ad has the union logo and invites the viewers to click a link in a call-to-action that takes people back to the union website. 

Retargeting is used extensively by retail brands and is one of the most effective digital marketing tools available for converting website visitors into customers. The labor union can segment the audience for purposes of developing specific ads. For example, the labor union can segment the audience by URL. The people who visit the union webpage that explains the purpose of the union become a group. The people who visited the union digital authorization card webpage became a group, etc. This enables the union to create different ads that are most likely to sway the viewer.

Retargeting is also used in cases where someone has completed an online form and needs to submit additional information. The additional information request step is when many people are lost. In those cases, the ad campaign encourages people to click through and complete the process. 

Retargeting can also be used to address people who have followed through on the union website to keep them engaged. Remember, a union organizing campaign is only successful when employees vote for the union. The employees who sign digital union authorization cards aren't required to vote for the union. Feathr is a company that helps organizations create engaging digital experiences and names six categories of needs that ad campaigns can address. 

• Covid-19 response
• Education
• Engagement
• Recruitment
• Retention
• Advocacy

Get Savvy About Social Media-Based Union Organizing

It seems like Lucy keeps moving the football, meaning new union organizing strategies are regularly emerging that change the game plan. It's a fact of life concerning technology that new options are continually changing, making it difficult for employers trying to stay on top of potential union organizing. What should you do now? Some points to keep in mind include the following. 

• Stay informed – Employers need to study the labor union strategies and tactics used in successful organizing campaigns that rely on social media and digital communications. If unable to stay abreast of specific and relevant union activity, let IRI Consultants help. Not only do you need to understand modern labor union strategies, but you also need to understand how employees interact with each other outside the workplace to drive messages about their workplace.
• Assess union vulnerability – Social media creates a union vulnerability because it enables networking and spreading messaging far and wide. However, the only reason employees would get involved in union-related messaging is because they are either not engaged or perceive something in the workplace as unfair or unjust. By conducting a union vulnerability assessment, you can stay on top of areas needing improvement or address with employees. Couple the union vulnerability assessment with information gleaned from studying labor union strategies and employee grievances across industries.
• Analyze your communication system – Are you using one-way messaging with employees? If so, the communication system has a serious defect because there is no way to understand employees' real concerns if you aren't hearing the employee's voices. Social media is a form of employee voice, except it's being used to organize employees around a message they believe their employer hasn't heard and doesn't want to hear.

Do you understand what your employees are thinking and feeling? If in the throes of a union organizing campaign, are you relying on traditional communication tools like posters, bulletin boards, and captive audience meetings? These forms of messaging leave enormous gaps in communication with employees. Use social media and other digital communication options to get your message out before union organizing starts.

• Train ALL your leaders – Training in union avoidance is often given to managers and higher-ups. Yet, it's the supervisors down to the frontline who are the weak links because they lack labor law knowledge and critical leadership skills in areas like listening, two-way feedback, and recognizing the signs of unionization. They may even be on social media, putting the company at risk by having good intentions but responding to employee posts inappropriately. Train all your leaders from top to frontline in developing positive employee relations, employee engagement, trust building, and the dos and don'ts of union organizing. 

Develop Your Digital Communications Strategy

IRI Consultants has had the pleasure of working with hundreds of companies across industries who needed assistance with things like developing digital communication strategies, positive employee relations, leadership training, and responding to union organizing attempts. Comprehensive tools like custom video and eLearning can help organizations tackle their employee engagement and communication challenges.  

With a solution like ProofBox, you can instantly solve even the most challenging employee communication needs and build a culture where unions simply aren't necessary. You'll have one easy-to-use comprehensive platform to address the diverse needs of your Human Resources and Labor Relations teams. With resources that help build an authentic employer brand and true employee engagement, ProofBox will become your favorite way to communicate with employees on tough topics. 

You want to know how unions are utilizing social media and digital communications to organize employees, but you also want to know how to develop a workplace culture and employee relations that make it less likely your employees will get involved with labor unions on social media or anywhere else in the first place. Union organizing gets more complex and more secretive with each passing day.

Contact IRI Consultants to learn about the many training tools and consulting services that can help your leaders maintain direct connections with employees and your organization not become part of the unionization trend.

Social media is now pervasive in the personal and work lives of employees. Employers face the challenges of monitoring and managing what employees post about the workplace, management, and unionizing without violating  protected, concerted activity employee rights granted in the National Labor Relations Act (NLRA). It gets more challenging every time the National Labor Relations Board (NLRB) decides an unfair labor practice case involving social media. You don’t want to interfere with the protected concerted activity rights of employees, and you do want employees to have a voice, but you also don’t want employees harming your company by publicly disparaging the business.

We previously discussed protected concerted activity surrounding email and social media,  how to identify PCA, and offered some examples of what is and what is not protected activity in social media and email, and pointed to the NLRB’s continued expansion of the definition of what is protected concerted activity. The NLRB will allow employee language and statements in social media that employers are likely to object to, but when do the statements go too far? 

There is a case that has been open since 2014 and remains open in 2022 – Stericycle vs. Teamsters Local 628 (Case 04-CA-137660 et al.). The Teamsters charged that Stericycle’s work rules intruded on employee Section 7 rights and asked for the Boeing Rule to be overturned with a return to the Luther Heritage Document. Though this case involves a policy prohibiting the use of cameras and videos in the workplace, the NLRB decision could have far-reaching consequences for social media policies in employer handbooks. How do we define a chilling effect on NLRA Section 7 rights today, and what is inherent protected concerted activity?  

No one knows why the NLRB has delayed a final decision on the case, but attorneys Weinberg, Roger & Rosenfeld inquired in August 2022 about the delay, In this case, the decision is important to the writing of employer social media policies.  

A Decade of NLRB Decisions Leave Continued Confusion 

The NLRB has a webpage that discusses protected concerted activity relative to social media, and how it came to two main points. The following was issued in 2012. 

• Employer policies should not be so sweeping that they prohibit the kinds of activity protected by federal labor law, such as the discussion of wages or working conditions among employees. 
• An employee’s comments on social media are generally not protected if they are mere gripes, not made in relation to group activity among employees. 

These two points sound logical, but over the past ten years, the NLRB has issued decisions in a wide variety of social media cases - and continues to do so. Today, social media policy creation is actually more challenging than ever.  Employees feel empowered to speak out and their posts may offend your company and management, but if it’s considered protected concerted activity, that speech is protected under the NLRA. Employer rights to restrict employee social media posts that could harm the business must be balanced with those team members’ protected concerted right to discuss their work with coworkers. If your policy violates the NLRA, you could find yourself in an indefensible position that opens the door to union organizing.

(Note: The National Labor Relations Act (NLRA) was passed in 1935 and amended in 1947 by the Taft-Hartley Act. The first recognizable social media site appeared in 1997, so for over two decades, it has fallen on Administrative Judges, Appellate Courts, and the National Labor Relations Board (NLRB) to address employee use of social media within the context of the NLRA.) 

Social Media Test for Protected, Concerted Activity  

Back in December of 2017, the NLRB established a test to determine if a social media policy is facially neutral, meaning the policy doesn’t intentionally interfere with Section 7 rights of a particular group of people. The NLRB established the balancing test in what is commonly referred to as the Boeing Company case (case No. 19-CA-090932) or "Boeing Rule."

The NLRB created three categories for evaluating employer policies as “lawful” or “unlawful” within the context of the NLRA. Category 1 is lawful, category 2 requires individualized scrutiny, and category 3 is unlawful. The balancing act of the review process says the NLRB will assess an employee handbook rule to the extent the rule impacts employee rights  - and whether the employer has legitimate justification for the rule.  

The 2017 Boeing Rule overturned another rule, established in 2004, the Lutheran Heritage Rule. The Lutheran Rule found that employers violated the NLRA by maintaining workplace rules that don’t explicitly prohibit or restrict protected activities, but that an employee could reasonably interpret as prohibiting the exercise of NLRA rights, a so-called "chilling effect."

Back to the Drawing Board 

Despite establishing these three review categories, the NLRB was back to the drawing board in the  2021 Bemis Company case (case 18-CA-202617) – or they were at least in a position of revising what was already on the drawing board. In the case of Bemis Company, Inc. vs. Graphic Communications Conference of the International Brotherhood of Teamsters, Local 727-S, the NLRB overturned a Judge’s decision on the legality of a social media rule in August 2020. This case involved both Section 7 and 8 NLRA rights. (Section 8 gives employees the right to unionize and to join together to advance their interests as employees.)  

Given you can’t have an employee handbook social media rule that violates Section 7 or Section 8 rights, the two social media policy issues needing attention in the Bemis case were:  

• Can employers require employees to be respectful and professional (civil) on social media, no matter what is posted? and 
• Does the employer have to justify its social media policy, especially when it appears too restrictive? 

The Bemis case supplemented the Boeing case by adding additional context. The employer had fired a union-supporting employee over aggressive statements made at work and posted online. The Judge ruled the employer’s social media policy violated Sections 7 AND 8 of the NLRA. 

Bemis’ social media policy read:  “Employees are expected to be respectful and professional when using social media tools; with the rise of websites like Facebook, Myspace, and LinkedIn, how employees can communicate internally and externally continues to evolve. We expect our employees to exercise judgment in their communications relating to Bemis to effectively safeguard the reputation and interests of Bemis.  

Employees should: 

• Communicate in a respectful and professional manner 
• Avoid disclosing proprietary information; and   

Each employee is responsible for respecting the rights of their coworkers and conducting themselves in a manner that does not harass, disrupt, or interfere with another person’s work performance or in a manner that does not create an intimidating, offensive, or hostile work environment.”  

Social Media Policies as a Whole 

It sounds so reasonable. What could possibly be wrong with it? Asking employees to remain civil online and not harm the company’s reputation is reasonable, isn’t it? The Judge ruled the policy restrains the employee’s right to discuss working conditions. They ruled that the policy’s impact on Section 7 rights outweighed the employer’s interest in protecting its brand and its customers’ brands. The Judge did not like the first paragraph because he believed it was too general. Therefore, the Judge took each paragraph and ruled on it instead of considering the whole social media policy and how a reasonable person would interpret the policy. 

The NLRB disagreed. The new rules that came out of the NLRB decision to reverse the Judge’s ruling included:  

1. The policy must be read as a whole and not interpreted as an intent paragraph by paragraph. 
2. General expectations should be fully defined. 
3. The policy cannot prohibit private conversations, but it can instruct employees not to negatively impact the employer’s public reputation. 
4. The policy doesn’t necessarily need to be written as narrowly as possible (again, read the policy as a whole) 
5. The intent should reflect what a reasonable employee would interpret the intent being. 
   
   

The NLRB said you need to read the whole policy. The subsequent paragraphs fully defined the general expectations outlined in the first paragraph. So the NLRB disagreed with the Judge.  

Group Action and Mutual Aid or Protection
 

The fifth NLRB rule in the Bemis case implies inherency, something that's becoming a very large issue in defining NLRA employee concerted rights in social media. Returning to the Luther Heritage Rule is the foundation of an NLRB doctrine that recognizes inherently protected concerted activity. The expectation is that the NLRB will revisit the Boeing Rule and reinstate the Lutheran Heritage Rule or will write a completely new restrictive rule. Either way, the Boeing Rule is bound to no longer apply to protected, concerted activity on social media in the near future. 

The NLRB took a position in a Memorandum (GC 21-03) on a social media post that it was inherently concerted activity even though it did not call for two or more employees to act or for “mutual aid or protection.” These two requirements – group action and mutual aid or protection – have been the bedrock principles of protected concerted activity up until this point.   

The Memorandum says that employee activities are protected when they involve efforts to “improve their lot as employees through channels outside the immediate employee-employer relationship as well as in support of employees of employers other than their own.” Employee discussions that address “certain vital elements of employment” can make the discussions inherently concerted ‘even if group action is nascent or not yet contemplated.’ In other words, as long as the activity has a direct connection to employee interests, including political and social justice advocacy, it is protected. Your employee could post a lone complaint about working conditions to gain the support of other employees, and the NLRB would consider it concerted activity.   

In the future, you can expect continued expansion of what is considered an unfair labor practice, impacting what employees are allowed to post on social media or write in emails.

Writing Social Media Policies 

No employer wants employees to post negative statements on social media about their company or management, and they certainly don’t want proprietary information or lies shared. You don’t want any information that could jeopardize the organization’s brand or reputation in the marketplace. Similarly, social media, by its nature, conveys a certain degree of authority, and companies also don’t want employees making statements as if they are official company statements. Too many people believe that if someone says it on social media, then it’s true.  

You want to develop a social media policy that maintains positive employee relations but doesn’t have a chilling effect on NLRA rights. The fact the NLRB keeps addressing social media policies indicates the difficulty in settling on what is a fair NLRB rule. Consider the following.  

1. Under the Boeing Rule, social media policies that required workers to be “respectful and professional” when discussing the company were lawful. They would not be lawful under the Lutheran Heritage Rule.  
   
2. Under the Boeing Rule, policies prohibiting employees from using abusive language towards others are considered reasonable. Under the Lutheran Heritage Rule, the NLRB said a policy that prohibits making false, vicious, profane statements about the employer or coworkers could be construed to prohibit the exercise of NLRA rights and thus unlawful. 

Can’t and Can in Social Media Policies 

Despite the varying interpretations, some social media policies are converging at the NLRB. There are some things you can and cannot do, based on the NLRA. 

So, you can’t:  

• Write a blanket prohibition on discussing work on social media. 
• Establish a social media policy without explaining why the rule is made 
• Restrict employee Section 7 or 8 rights under the NLRA 
• Interfere with an employee’s right to post privately 
• Create a chilling effect on employee rights to discuss compensation, benefits, or workplace conditions with other employees 
• Restrict employees from referencing the employer’s name on social media postings 
• Require employees to identify themselves by their real name when discussing their work, company, coworkers, or products or services in personal social media interactions.  
• Write a broad policy that prohibits the disclosure of all employee information. 
• Prohibit employees from contacting traditional media about workplace conditions 

But you can:  

• Require employees to protect proprietary information like vendor lists, trade secrets, or customer names  
• Disparage the company, associates, customers, business practices, vendors, or other employees just to gripe 
• State that there are designated employees who are authorized to speak for the company on social media 
• Tell non-authorized employees they must make it clear they are not speaking for the company. 
• Restrict the use of the company name and logo in a social media account name or URL 
• Require that personal opinions be identified as such 
• Establish that employees should not post anything discriminatory, harassing, bullying, threatening, defamatory, or unlawful 
• Restrict employees from posting content, photos, videos, or images that they don’t have the right to use 
• Make it clear that concerted protected rights are excluded from the policy. 

Keep the policy language simple enough that an employee can read it and understand exactly what it means.  

We recommended that you go ahead and flag policies that would not meet the Lutheran Heritage Rule or a similarly restrictive rule. You don’t need to make changes now if your employee handbook policies meet the Boeing Rule. The Stericycle case is likely to be settled soon and is likely to trigger a need to review each of your social media policies. There is a good chance any NLRB decision made will apply retroactively to all cases still pending, as they did when they adopted the Boeing Rule.   

One Employer Word Can Lead to a ULP 

After reading the above, it wouldn’t be surprising for any employer to think, “What a mess! How am I supposed to know what I can or can’t say in my social media policy?” The NLRB’s march towards relying on “inherent protected concerted activity” makes policy writing even more hazardous.    

Another one of the difficulties of reconciling social media policy statements within the context of the NLRA is that one word can lead to union complaints: using “should” versus “required.” A labor law attorney or labor relations consultant should review your specific policy for this reason. Employees have a right to discuss working conditions and wages, and benefits with coworkers. Your social media policy simply cannot interfere with that right. Just one wrong word can cost a company thousands of dollars in attorney fees as it defends against an unfair labor practice charge (ULP).  

Companies are finding themselves trying to undo damage to their reputation due to false or misleading employee social media posts or unintentionally violating the NLRA and NLRB rules. IRI Consultants provides resources and training tools to help you avoid ULPs and unionization through employee engagement tools and labor-wise leadership training for positive employee relations. 

Positive employee relations are the foundation of a workforce that has a voice, shared values, purpose, and satisfaction with the workplace culture. Maintaining a direct relationship with employees not only promotes positive employee relations. It is needed to avoid unfair labor practices charges (ULPs) and makes labor unions unnecessary. How does it help you avoid ULPs? One of the steps in developing positive employee relations is developing leaders knowledgeable in current labor laws and how to make a direct connection with employees.   

Leaders unintentionally make mistakes due to a lack of information about labor laws, leading to expensive ULPs and damaged employee-management relationships. In the following sections, we summarize a few real-world ULP cases to better understand some of the mistakes managers make and how positive employee relations could have avoided many of the issues.    

Connecting Positive Employee Relations and ULPs 

Most of the decisions the National Labor Relations Board has made concern unfair labor practices, which can be attributed to leadership mistakes, lack of leadership knowledge, or confusion about current labor law. They probably haven't learned the TIPS and FOE rules. A ULP is a violation of federal law. In contrast, a grievance is a complaint about something in the workplace, like a belief compensation is unfair, safety rules are not strict enough, perceived unfair treatment by a supervisor, etc. If a company is unionized, a grievance becomes a violation of some aspect of a collective bargaining agreement.   

That is why it is important to have a formal grievance procedure, so employees have a path to express their issues (one aspect of employee voice) and can expect a management response. A formal grievance process in a unionized or non-unionized organization can help to prevent attempts to unnecessarily and wrongly elevate the grievance to a ULP, OR it becomes important evidence during a formal NLRB investigation as to whether your managers handled an employee complaint equitably and fairly. This is all part of maintaining positive employee relations because employees who have a voice, express an issue, and get a management response are less likely to file a ULP.  

Leadership during union organizing can be a field of landmines. Employers are sometimes found to not have conducted a ULP that was filed with the NLRB, but there is a much greater chance of being found in violation of the National Labor Relations Act (NLRA), given the pro-union focus of the NLRB. Similarly, dealing with a union (or multiple unions) when the workforce is already unionized can be a consistently sticky situation. What may seem like a reasonable policy, decision, or supervisor directive can quickly lead to legal problems and damaged employee-employer relationships. However, some cases are clearly due to organizational leaders at some level – from the CEO to the frontline supervisors – making decisions that violate labor laws or damage the direct connection with employees, which leads to unionizing.  

Case Studies of Leadership Mistakes 

The following NLRB Strategic Technology Institute, Inc. and the International Association of Machinists and Aerospace Workers, AFL-CIO (case 15-CA-249872) case is an example of numerous leadership mistakes made during union organizing and after employees vote to unionize. Many of the mistakes are due to leadership's lack of knowledge of how to maintain a direct relationship with employees, and many are due to poor leadership skills and lack of knowledge about labor laws.  

The leadership missteps accumulated over time, leading to the initial employee charges filed in October 2019. So many elements come into play - remote work, leadership communication, employee terminations, employee training, etc. Your leaders can make mistakes at any point during the employee experience.  

The Strategic Technology Case (STI) case is not officially closed as of September 2022 because the employer has filed a petition to review the Board decision. The petition for review says the Board failed to prove STI engaged in ULPs and failed to "establish anti-union animus or knowledge of union activity by STI management."  

First, here is some background information. STI program manager Boyd was located in Texas but remotely managed a maintenance contract team in Arkansas beginning in 2017. He never visited the Arkansas site until after some employees were terminated in 2020. In Arkansas, Kiihnl became a site supervisor in 2018. Boyd and Kiihnl never met before Kihnl resigned in 2019.  

Employee Conversations Start About Unions 

The International Association of Machinists and Aerospace Workers (IAM) had organized employees at the Arkansas site, but they worked for contractor VSE. The union for VSE employees was voted in February 2019. Around the same time, STI mechanic Bartow called an IAM representative to discuss the union. On August 30, 2019, mechanic Rambo resigned. He had been carpooling with Bartow and had discussed the VSE collective bargaining agreement and how the agreement's terms compared to working conditions at STI. Bartow and another employee then discussed the Union weekly with an employee in the STI's main shop.  

When he resigned, Rambo completed an exit survey form that was very critical of STI and Kiinhl. During an exit interview with Kiinhl, Rambo complained about Kiinhl's management style and mentioned STI employees were interested in joining a union. Kiihnl said he told Boyd what Rambo said about employee unionizing, but Boyd denied Kiihnl mentioned unions. 

Rambo says he later told Boyd in a phone conversation that the employees were starting union talks due to worsening working conditions. Once again, Boyd denied he was told anything about a union. However, Boyd did read Rambo's exit survey at that time. Bartow was eventually terminated in October 2019. Rambo told the Administrative Law Judge (ALJ) that he had asked in a statement prepared to support Bartow after his termination if Boyd had reviewed the exit surveys of the five employees who quit STI before him. Boyd told Rambo he had not but would look into it.  

Leadership Strategic Mistakes 

In early September, Boyd asked Kiihnl for a list of employees who had resigned in the prior year and the reason for their resignation. The judge concluded that Boyd's newfound awareness of possible union organizing by September 16 had spurred his interest in resignations. Boyd tried to say he knew nothing about union talk before terminating Bartow, but the judge didn't believe him.  

Boyd was communicating with a supervisor named Pittman in Arkansas about what was going on. In late September, Boyd ordered Kiihnl to evaluate and rank all mechanics. Kiinhl gave a rating of 3 to everyone (out of 1-5) and ranked them 1-41, but later testified the ranking was random.  

Several employees made a mistake that jeopardized safety when they had a tool unaccounted for. Safety rules required tracking all tools, and one was left in the equipment they were working on. While Kiihnl was on vacation, Boyd terminated all three without disciplining them first. That spurred mechanic Bartow to contact the union representative who met with employees, and from October 2-4, Bartow collected signed authorization cards. 

Boyd then terminated 14 more employees for "poor performance," including Bartow, and secretly had verbal counseling forms placed in the personnel files. The poor employee performance was said to be due to safety issues created by the missing tool. The 14 people were the bottom 14 names on the ranking list (remember, the ranking had no meaning). The assertions made were that the employees had been given training and counseling several times, were insubordinate, were complacent about safety, and had refused to comply with job-related instructions. The 14 forms were identical verbal counseling forms.  

They were all lies per the ALJ. Giving it away was the fact some employees had not worked there long enough to have had time to receive the number of employee training and counseling sessions claimed by Boyd. The employees never got counseling and never saw the forms that were placed in their HR files. In addition, the forms had Kiinhl's signature, and he had never given authorization to Boyd to sign his name. Kiihnl resigned and was replaced by mechanic Pittman, who rehired two terminated employees.  

After the discharges, the IAM filed a representation petition with the NLRB, and the employees voted to join the union on November 1, 2019. The union wanted to bargain about the terminations and met once with STI representatives, using email after that to communicate. In August 2020, STI told the union it had lost the contract. 

Leadership Mistakes Lead to Unionizing 

The STI case is chock full of leadership mistakes. One leader involves other leaders in poor leadership behaviors that harm positive employee relations even as employees are getting increasingly interested in union organizing. Developing a direct connection with employees requires soft and hard leadership skills. In the case of STI, the managers and supervisors were not skilled in leading or communicating with employees. 

Based on the STI case, the following are some of the skills a leader needs to master to develop positive employee relations. Effective leaders: 

• Apply Human Resources policies uniformly, fairly, and consistently – STI employees were not disciplined for safety violations found by government inspectors and were not given an opportunity for corrective training. The Little Rock employees were treated disparately compared to employees at other STI locations, and they knew it.  
• Are transparent about decision-making - The ALJ said Boyd refused to tell Kiihnl the reason for the ranked list was not to improve safety, "but was for an objective he wished to conceal, such as putting a stop to union organizing." 
• Are honest and ethical - Boyd admitted the employees were not fired because of any belief they were responsible for corrective actions needed. It was to prevent employees from unionizing. 
• Follow through on employee actions - Boyd did not investigate when employee issues arose, like resignations, exit interviews consistently criticizing management, and getting notified of union activity. 
• Develop effective communication with others - Communication between the managers was poor and unproductive. 
• Do not lie to protect themselves – The STI managers lied to other managers and employees, in this case, to the NLRB and ALJ. They didn't care that they were harming the reputation of various employees and the reputation of the organization. 
• Ensure employees have access to the training needed to do their best work - Employees were not disciplined or given opportunities for training and counseling before being terminated. Making it worse, the forms placed in the personnel files said they had received several training and counseling sessions. 
• Properly document manager and employee conversations - There was a complete lack of documentation of conversations between managers and many of the managers' one-on-one conversations with employees concerning unions and other issues.  
• Reviews all exit interviews – Boyd refused to read employee exit interviews until forced to. Exit interviews often provide critical information about workplace issues that can be addressed now to prevent future problems and even unionization. 
• Utilize performance reviews for two-way feedback - Job performance reviews did not include employees when Boyd wanted to terminate them. 
• Develop employee engagement skills - At STI, employees were not listened to and not given constructive feedback, nor were they working in a positive workplace environment.  
• Are labor law wise – Staying current on labor law and developing labor-wise leadership skills are crucial to successfully navigating a union organizing campaign or preventing the need for a union.
  

The STI employer was ordered to: 

• Stop discriminating against employees due to knowledge or suspicion of union activities 
• Interfering with or restraining, or coercing its employees in the exercise of their rights under Section 7 of the Act 
• Pay the employees for lost earnings and benefits 
• Pay for the terminated employees' search-for-work and interim employment expenses and tax consequences 
• Remove from the personnel files any reference to unlawful discharges 
• Post a notice to employees that Federal labor law was violated.  

Following are a few more examples of leadership mistakes that became unfair labor practices. 

St. Mary's Medical Center, Inc., and Service Employees International Union (SEIU), District 1199, WV/KY/OH, The Health Care and Social Services Union. Case 09–CA–269032 August 24, 2021 - St. Mary's rescinded an offer of employment made to M. McGuire. The NLRB decided it was because she formed, joined, and assisted a union and engaged in concerted activities. The hospital had to hire McGuire, make her whole for loss of earnings and benefits as backpay, compensate her for search-for-work and interim employment expenses, and pay for any adverse tax consequences. All mention of the employment recission was ordered removed from her personnel file.  

Ed's Beans Inc. d/b/a Crazy Mocha Coffee and Sharyn Marie Sefton and Emily Raden-Shore. Cases 06– CA–265396 and 06–CA–265574 June 22, 2021 - On May 18, 2020, the Respondent's employees Sefton, Raden-Shore, Ciccocioppo, and Rideout engaged in concerted activities with each other and other employees for the purposes of collective bargaining and other mutual aid and protection, by making demands regarding communication, wages, recall rights, and worker safety. 

In May 2020, Ed's Beans manager Wethli, by telephone, demanded that employees remove a petition concerning complaints about safety and communications from social media. In June 2020, during a Zoom meeting, he told employees they would be discharged because they complained about their working conditions. In July 2020, Wethli, by telephone, told employees that they would not be recalled from layoff because they complained about their working conditions. In August 2020, manager Garrett, by electronic mail, informed employees that they would not be rehired because they complained about their working conditions.  

The NLRB found the employer acted as it did because the employees complained and discouraged them from engaging in protected concerted activities. The managers didn't know labor law or understand what protected concerted activity is and the NLRA rights of employees.  

Unions Impede Positive Employee-Employer Relationships 

Unionization brings many changes to an organization. The limitations and impacts reach throughout the organization and even into communities. First, there are impacts on your managers and supervisors. A union contract limits the ability of your supervisors to promote the best employees on merit because seniority is more important than productivity, experience, and education. It's difficult to lay off or terminate union employees with an almost guaranteed union objection. Remember, one of the tenants in the union platform designed to win over employees is more job security.  

Unionization impedes the employee-employer relationship because unions gain and keep support by making employers appear like adversaries during the union organizing campaign. Though they tout the union-management partnership, the reality is that unions are cooperative only when their demands are met. Once a union contract is in place, they need to consistently find ways to criticize supervisor decisions to demonstrate their need and convince employees to vote for the union again when the current contract expires. The manager or supervisor, along with an attorney, will spend time dealing with grievances and arbitrations, costing the company in terms of productivity. This reinforces the union's "we-they" perspective. Grievance procedures in a union shop, especially those that land at the NLRB as ULPs, create resentful employees who share that resentment with coworkers. The damage to workforce morale and company culture is swift.  

Focusing on Positive Employee Relations Instead of Unions 

It is tempting to either focus heavily on unions or turn a blind eye to unions even where there are signs of union activity. Instead, your leaders need to develop skills in positive employee relations, which is most likely to prevent the need to address union organizing. By developing effective leadership skills, like those mentioned earlier via the STI case, labor unions won't get a foothold. 

Does it mean the labor unions won't try to organize your employees? No! They may find one or two employees who are actively disengaged or an employee with a grievance and try to leverage their unhappiness with the workplace. If you have developed a direct relationship with the other employees, the union will either be completely unsuccessful in getting the workforce interested in a union organizing campaign, or the union organizing campaign will not lead to a positive vote during a union election. 

There is so much turmoil and change in the labor force today that your leaders are challenged to maintain positive employee relations. However, some skills are essential to quality leadership. The following are major categories. 

• Communication – Communication is a broad area that includes active listening, feedback, emotional intelligence, demonstrating true caring for employee needs and success, utilizing digital communications to ensure full workforce inclusion and to give employees a voice, collaborative decision-making, coaching, and specificity in directives are some key communication areas. The manager's communication skills have the most direct impact on employee engagement. 

• Trust building – If your employees don't trust you, employee engagement will be low. They also won't believe what you say or do. One of the common grievances of employees who turn to unions is that they can't trust management, so they believe they need an intermediary. 

• Developing shared purpose – Developing a shared purpose in the workforce delivers many positive results. Employees believe their work matters and are important to business success, so they are less likely to want union interference. Employees are motivated, engaged, and forming productive relationships. Should union organizing develop, strengthening shared purpose becomes a leadership strategy for reminding employees of their importance. 

• Maintaining strong ethics and integrity – As the STI case demonstrated, a lack of leadership integrity and ethics drove employees to start a union organizing campaign. Even while the union organizing was in progress, managers lied about employees. This was a major factor in the employees voting for a union.  

• Labor-wise skills – Your leaders must be labor-wise and understand current labor laws. This goes beyond just being familiar with the NLRA because the NLRB is frequently making changes to labor laws through interpretation of the NLRA. Maintaining labor-smart leadership is essential to maintaining positive employee relations. 

Any unfair labor practice charge filed with the NLRB will take a long and expensive time to settle. Avoiding leadership mistakes and developing positive employee relations are not only good for your organization's culture. They can save your company tens of thousands of dollars in legal fees, employee compensation for back pay, and fines. 

During union organizing, you can avoid leadership mistakes by ensuring management is trained on what constitutes protective concerted activity and employee and employer rights. Each year conduct a review of your organization's Human Resources policies to ensure they are in alignment with the NLRB decisions and update leadership knowledge of labor laws. Always maintain a respectful workplace, even during union organizing. Finally, continue to give employees a voice, even during union organizing, because you may be able to settle some issues without a union election.   

Employee Engagement is the Link 

Ultimately, it is all about employee engagement and knowing what the right and wrong things are to say and do. Employees who believe in your company's values, integrity, honesty, and fairness are not going to turn to unions. They know they can talk to their supervisors about work issues and get honest feedback, fair and thoughtful decisions, and equal opportunities to succeed. Communicating effectively, legally, and regularly with all employees is at the heart of all strategies for helping employees realize they don't need to pay a union to get fair treatment. 

Protected concerted activity (PCA) is one of the important guiding principles in the National Labor Relations Act (NLRA). It provides employees their rights to engage in union activity and to band together to address work-related issues even if they are not interested in unionizing or aren't currently represented by a union. Any employee action falling under the employee rights protected concerted activity. The NLRA also addresses employer rights and limitations concerning protected concerted activity (PCA). You can't "discharge, discipline, or threaten" an employee, nor can you "coercively question" an employee about a protected concerted activity. That is the basic definition, but unpacking what this means in the workplace continually proves more complex with the availability of social media and email and a pro-union National Labor Relations Board (NLRB) determined to expand what protected concerted activity includes.

Conversations On Any Communication Channel

 The details of the specific employee and employer rights put into action are frequently changed by the NLRB, which interprets the NLRA and issues decisions and guidance on relevant PCA matters. Can an employee post or write whatever he or she wants as long as it concerns wages, benefits, and working conditions? The NLRA says an employee can lose NLRA protection when statements are "egregiously offensive or knowingly and maliciously false, or by publicly disparaging" the employer's products or services without relating the complaint to a labor issue. An activity is concerted when it involves more than one employee and protected when it falls under the auspice of the NLRA.  

The National Labor Relations Board has extended the protected concerted activity protection to conversations on social media and in emails. In 2012, the NLRB reviewed 14 employee charges involving discipline for Facebook postings and 14 employer policies. Another report examined seven employer policies governing the use of social media by employees. The findings were a broad mix of some social media posts found protected; some were unprotected; the union engaged in unlawful coercive conduct by posting videotaped interviews with employees at a nonunion jobsite about their immigration status; some employer policies were too broad, and some discharges were unlawful because they were based on unlawful company policies. 

In 2012, the NLRB began issuing decisions involving social media postings and so began establishing precedent. By 2021-2022, there have been hundreds of NLRB decisions, creating a confusing array of responses that admittedly are not always consistent because the political affiliations of the NLRB often drive an agenda. Thus there has been a lot of back and forth between reversing prior decisions and expanding on current ones. Also creating confusion is the addition of new technologies in digital communication and employee activism that has added social justice principles to discussions on compensation, benefits, and working conditions. 

The NLRB's General Counsel issued a memorandum (GC 21-03) that greatly expanded what is considered a PCA. It said, protected employee advocacy "need not be explicitly connected to workplace concerns and may include employees' political and social justice advocacy when the subject matter has a direct nexus to employees' interests as employees.'" The memorandum adds "political and social justice advocacy" that is based on Section 7 of the NLRA giving employees the right to engage in concerted activities for the purpose of "mutual aid or protection." The current NLRB believes there could be a link between political and social justice activities and workplace issues or the interests of employees. The "interests of employees" clause greatly expands protected concerted activity. 

As an employer, you are faced with constantly adapting your Human Resources and workplace policies and keeping your leaders trained in labor law to avoid charges of unfair labor practices (ULPs). It is a huge challenge that will grow bigger as a pro-union NLRB continues to move forward in its efforts to support unions.    

Identifying Protected Concerted Activity

There has to be a clear understanding of PCA to understand what employees can say and post on social media or write in emails. There are many forms of protected concerted activity. It could be as simple as your employees wearing buttons and pins with a labor union logo (or posting a union logo on social media) or as complex as a work stoppage to get management's attention for an employee issue (or employees calling for a work stoppage through social media). It may be union organizing via social media or email or posts trying to whip up interest in approaching management about work schedules. With access to email and social media accounts like Facebook and Twitter, your employees can easily and publicly address work-related issues and share information about pay, benefits, and working conditions with coworkers. 

It only takes two employees to qualify as a PCA. Protected concerted activity may apply to a single employee only as long as the employee is "acting on the authority of other employees, bringing group complaints to the employer's attention, trying to induce group action, or seeking to prepare for group action." An employee can gripe about a performance review, pay, work schedule, or other personal interests, but it's only protected concerted activity when two or more employees are involved, even if both are not on social media. 

To be protected concerted activity under Section 7 of the NLRA, the employee's conduct must be both "concerted and "for the purpose of mutual aid or protection." It can include: 

(1) statements by lone employees addressing their coworkers to initiate, induce, or prepare for group action;

(2) a lone employee's communications with management to convey a truly group complaint;

(3) statements made to elicit group action from like-minded coworkers for a personally held view about working conditions; and

(4) communications involving "inherently concerted" discussions about vital aspects of workplace life. 

Employees can lose protected concerted activity status by saying or communicating something knowingly false, malicious, or publicly disparaging about their employer. In addition, what you as an employer consider egregiously offensive may not be the same as what the employee considers egregiously offensive. PCA does not include employee complaints, but the employee can say something publicly disparaging as long as the statements are related to a labor issue, and there are two or more employees involved. These rules give employees a lot of leeways to claim protected concerted activity. It is not that difficult for employees to find a way to link a critical comment to a workplace issue.    

Once it was words that were protected, but social media now offers a variety of ways to express an opinion without writing words. They include: 

• Emojis
• Memes
• Emoticons
• Likes
• Thumbs down (dislikes)
• GIFs

NLRB Advice Based on an Employee Charge

An NLRB Advice memo issued on August 24, 2021, addressed a situation in which a bariatric surgical practice employee was unhappy with management. An employee (charging party) filed a charge with the NLRB, and the NLRB issued an Advice Memo. This case involved the use of a meme, emoticon, and social media posts by coworkers.

Attorneys on JDSUPRA summarized the situation that occurred and the NLRB response. The charging party and other employees had discussed among themselves their issues with management. One of the employees quit. The charging party believed the workload was too heavy and discussed it with the employer. The charging party posted on Facebook that night, and it said, "Just in case someone needed to know," followed by a shrugging emoticon. The post included a meme that said a "bad manager can take a good staff and destroy it, causing the best employees to flee and the remainder to lose all motivation." The charging party ended the post with, "Employees don't leave Companies, they leave Managers."

Many people commented on the post, and at least two of them were coworkers. One coworker posts, "YESS. Freakin YESSSSSS!! [sic].” Another coworker posted an emoticon that was a face with no mouth (think: no employee voice).

The employer's representative saw the post, and a coworker got a text message from that person that said, "someone just sent me a screenshot of your comment you made on [the Charging Party's] Facebook posting about managers. Just a heads up," making the coworkers and charging party worry about their employer's response. The two coworkers deleted their texts.   

The next day, the employer's representative questioned the first coworker about the post, mentioning it was forwarded to others within the organization and asked if the employee was happy. The employer warned the employee to be careful about what was posted online. 

The charging party was told he/she had 11 patient complaints lodged within a month and terminated the employee. The employer didn't produce any documentation of the complaints.

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Expansion of Protected Activity

The NLRB said the Facebook post was protected concerted activity because the post was made to initiate, induce, or prepare for group action over the quality of management and employee attrition. The NLRB used the first coworker's comment and the second coworker's mouthless emoticon to base their opinion. But was the conduct inherently concerted activity? It was determined it was because a desire to induce group action is implied when employees discuss higher wages, work schedules, or job security. In this case, the NLRB said the charging party discussed job security.

As attorneys Barnes & Thornburg explain, The NLRB's Division of Advice took the position that the post was an "inherently concerted activity" even though it did not call for group action or "mutual aid or protection. This is a wide expanse of what protected concerted activity includes. 

There is also the issue of the employer terminating the employee to "chill or curtail potential future Section 7 activity," which is not allowed under the NLRA. The NLRB pointed to the charging party complaining about the workload, the employer representative's threats to the first coworkers about the Facebook posting, and the suspect rationale for terminating the charging party. 

NLRB Advice memos are not binding, but employers should treat them that way. They provide insights into how the NLRB thinks. This Advice Memo expands the scope of protected concerted activity and will be the guide for the NLRB's decision-making.  

As an employer, you have vulnerabilities to PCA under normal circumstances because the National Labor Relations Act protects employees. However, the vulnerability level increased several notches with a change in the federal administration and NLRB membership, both vocally pro-union. Charges of unfair labor practices (ULPs) based on an employer interfering with protected concerted activity are almost certain to be decided in favor of the employees, given the current pro-union NLRB.    

You have an employer's right to protect certain confidential business information, but there are limits. You don't have the right to have a rule that says employees will be subject to disciplinary action if they disclose compensation data, personnel, and salary information. You can't violate NLRA Section 8(a)(1), which makes it a ULP for an employer "to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7." 

Using Email for Union Organizing: Seeing Purple 

We have previously shared the case of Purple Communications, Inc. and Communication Cases Workers of America, AFL-CIO (21-CA-095151). This case, now closed, usually referred to as Purple Communications, involved a CWA Unfair Labor Practice claim the employer's handbook prohibited employees from using the company's email system for "activities on behalf of organization…with no professional or business affiliation with the company," and this violated employee NLRA rights. 

The NLRB established a new standard for employer rules restricting the use of an email system in this case. In Purple Communications, the decision by the NLRB, affirmed by an Administrative Law Judge, was that the employer violated Section 8(a)(1) by restricting employee use of the company's email system. Employees who already use an employer's email system at work could use that system during non-working time for NLRA Section 7 communications.  

Purple Communication took the case to the U.S. Court of Appeals, which sent it back to the Board for reconsideration in light of the Board's decision in the Caesars Entertainment, dba Rio All-Suites Hotel and Casino case (368 NLRB No. 143). The Caesars Entertainment case overruled the Purple Communications case. It said the employer "does not violate the Act by restricting the nonbusiness use of its IT resources absent proof that employees would otherwise be deprived of any reasonable means of communicating with each other, or proof of discrimination." The case that began in 2014 finally ended in 2020. 

Currently, employees don't have a right to use their employer's email system for protected concerted activity as long as they have other ways to communicate. Take note, though, that on August 12, 2021, General Counsel Abruzzo released a memo that identified NLRB priorities, and it included cases involving employer handbook rules, the scope of protected concerted activity, and the definition of mutual aid or protection. Abruzzo has signaled she would like an overruling of Caesars Entertainment and a return to Purple Communications.   

In general, employees can use social media for union organizing as long as they meet the requirements of Section 7 of the NLRA. Employers must walk a treacherous path. They can look at public social media, but looking at a private social media page is more nuanced. The employer can't do anything that creates a chilling effect.  

Using Slack for Union Organizing 

New digital communication platforms are regularly appearing. As the pandemic progressed, organizations became more reliant on digital communication technologies, especially in companies that have remote employees. Employees use a variety of technologies like chat rooms and Slack channels. In the case of Packingham v. North Carolina, the Supreme court decided that social media websites are physical gathering places.   

Employees are embracing technologies for union organizing in different ways, and tech workers are paving the way by forming communities and unions. Slack is a platform for the workplace that has channels for focused conversations, files, and tools; Slack Connect for team collaboration; messaging, and voice and video calls. Private channels can be set up that are only open to people by invitation by someone already a channel member. 

It is an ideal communication channel for union organizing though that wasn't its intent. Its intent is a workflow management and work communication system. However, a young labor force and tech workers use Slack to organize. Slack is often used in combination with other communication tools. For example, Mapbox employees used a combination of private Slack for private communication, Facebook Groups for crowdsourcing information, and Signal for confidential discussions to organize the Mapbox Workers Union (the union lost the election). 

The Apple story is an example of how the younger tech workers are latching onto digital communication channels. Two Apple repair technicians launched AppleConnect, a Discord server, in 2018 so techs could collaborate. It wasn't a secret and became so popular that other Apple workers wanted to join. By October 2021, 600 employees were using anonymous identities to discuss work issues.   

In August 2021, Apple blocked an employee effort to create a Slack channel to talk about pay equity. The employee relations representative told employees, "Slack channels are provided to conduct Apple business and must advance the work, deliverables, or mission of Apple departments and teams."   

The problem is the decision is inconsistent with other Slack channels the company allows, like one for fun dogs and one for dad jokes. These are obviously non-work activities, so blocking discussions on workplace pay inequities, a protected concerted activity topic, by applying inconsistent social media rules is not going to stand.  

There are two issues here. One is the inconsistent application of the rules concerning employee communication channels. The second is that talking about pay equity is a protected concerted activity. The problem for Apple was that the company had opened up an opportunity for the NLRB to return to Purple Communications should an employee file an Unfair Labor Practice.  

Using Social Media for Union Organizing 

Once again, two or more employees have the right to hold conversations about workplace conditions using various communication channels. They must follow the NLRA requirements about not falsely disparaging the employer or telling lies. In reality, the application of the law depends on NLRB determinations that blow with the political wind and are unpredictable.

Example of Protected Concerted Activities 

An attorney writing for Forbes, Tom Spiggle, demonstrated the issue by pointing out opposing decisions.  

The NLRB found activities like the following to be protected concerted activity.  

• Employees posting on Facebook about a coworker who was critical of their performance. 
• An employee likes another employee's Facebook post that complained about an employer's mistake in filling out a tax form incorrectly.
• An employee insulted his manager and the manager's family on social media before a union election and encouraged other employees to vote yes.  

Not Protected Concerted Activities

The NLRB found activities like the following to not be protected from concerted activities.  

• Employee's Facebook post made fun of a workplace accident. 
• An employee complained about bad tips.  
• Employee complaints about tipping on Facebook were directed toward a relative and not a fellow employee or group of workers. 

Establish a Detailed Social Media Policy

Corporate reputation management is infinitely more difficult with so many communication channels available today. Employees are allowed to post negative comments about their employer as long as the post concerns something that can be linked to the workplace. With the addition of topics like social justice and environmental sustainability, almost anything can be construed as concerning the workplace, employee health, safety, etc.  

Employers are advised to review their employee handbook policies and procedures to make sure they don't restrict employee communications about their workplace on social media in violation of the NLRA and that they communicate the organization's values. Establish a detailed social media policy so that employees aren't confused about what is unacceptable. Before saying anything to an employee who posts something you don't like, first evaluate whether it's protected concerted activity. A labor relations specialist, attorney, or labor relations consultant can assist, saving your company thousands of dollars by avoiding ULPs. There is no doubt that the NLRB will continue to expand what constitutes protected concerted activities as much as possible.

Labor unions are more active today than they have been for years, giving new importance to developing a Readiness Response Team (sometimes referred to as a Rapid Response Team) to ensure your company - and your team - are prepared to manage a union organizing campaign. An RRT provides your organization with peace of mind that not only can your leaders recognize the signs of employee dissatisfaction, but they’re prepared to respond.

A Readiness Respons or Rapid Response Team is a group of managers who consult with union experts and labor law attorneys to prepare in advance for potential union activity. However, their primary role is to engage employees, so they trust the employer enough to discuss unions openly regularly. 

A readiness response team is made up of key players, identified and specifically tapped for their role in the company’s positive employee relations strategy. These representatives are trained in specific strategies and tactics, utilizing role play scenarios and more to be prepared to support the company’s direct connection to its employees. 

Deciding to Invest in a Readiness Response Team

There is a time and place for a Readiness Response Team. Not every company needs one. If vulnerability assessments demonstrate that your risk of union organizing is low, simple preparedness can include developing a campaign-ready website that explains the company’s position on unions, reinforces the positive aspects of working for the company and focuses on employee engagement as best practice. 

Training leaders on a wide variety of soft skills from intentional conversations to conflict management to implicit bias can also help prevent unionization, but for companies in industries or areas where unions are aggressively active, the the Readiness Response Team can be crucial. If your company has experienced union organizing in the past, or if you’re concerned about risk factors, consult with a labor relations professional to assess the need for an investment in a Readiness Response Team.

By investing in this type of very specialized development and training, your company is making a commitment to support it’s direct connection to employees. But commitment is the key word - this investment isn’t just financial, it’s also an investment in time and energy.

Beyond that, your Readiness Response Team will need resources and ongoing support. Your executive leadership must make a commitment that developing the team is not a one-time endeavor but a long-term investment in the future of the organization.

The Role of the Readiness Response Team

The goal of the RRT is clear: be prepared to address employee questions and concerns surrounding union organizing in an effort to meet their need for information. To reach that goal, determine the roles individual team members will take on. Those roles will be unique to your workforce and the ways in which you lead and communicate.

Think about the power of strategic, planned conversations versus more casual, informal interactions. Which will resonate with your employees? Make sure that your RRT members know how they are expected to interact, control the narrative and deliver information. Your training should reflect these expectations.

Take care that you don’t place undue expectations on your RRT. While they need a clear understanding of the NLRA, employee rights and the things that can and cannot be said by management during a union campaign, excessively citing legal references won’t connect with employee concerns during a union organizing drive. Help RRT team members learn to build rapport and engage employees on the things that matter.

Readiness Timeline

Today, unions are emboldened by public support, a pro-union administration and an unprecedented interest in organizing, post-pandemic. Unions are not waiting for employees to approach them. They are actively and routinely seeking new members, disgruntled employees, and vulnerable employers. Beyond that, internal unions - formed by employees themselves - are becoming more and more common.

The timeline for deploying the Readiness Response Team is tightly tied to the typical union campaign timeline, so let’s review that first. NLRB rules still enable a union campaign to evolve quickly. Once a representation petition is filed with the NLRB, the employer has eight business days (10-12 calendar days) to prepare and file a statement of position. Employers who haven’t thought about unions, union campaigns, and union issues are going to have a lot of difficulties meeting the deadline with a quality response. Think about how long it takes to develop, write, and issue any business policy, especially an HR policy, and it gives perspective. By developing your RRT ahead of time, they will be able to take action, connect with employees and gain a better understanding of how you ended up here, even as you work with your labor attorney and consultant to draft your position statement.

The timeline continues: 14 business days from the initial petition to hold the pre-election hearing, five business days for the employer to post a notice of election, and five business days to file a post-hearing brief. The employer must give the union a list of eligible voting employees within 35 days after petition filing. Once an election is approved, it will take place in 20 days at the earliest, meaning the time period for a petition to contested election is 55 days. 

Your communication strategy for a union organizing campaign response gives you about 55 days to build (or rebuild) the trust and respect that helps you maintain your direct connection to employees. That can include:

• Develop a statement of position on unionizing

• Work with labor consultants and a labor attorney to analyze the petition 

• Train managers and supervisors on the organization’s position on unions

• Train leaders on T.I.P.S. Rule and F.O.E. Rule (what they can and cannot say) 

• Train leaders on dealing with disruptive union supporters 

• Train leaders on union tactics and their arguments they use to convince employees

• Set up a system to respond to NLRB requests for information 

• Develop and regularly update a campaign website to keep team members and their families informed

• Prepare and distribute printed and virtual educational materials to employees

• Develop interactive communication tools for employees, to give them a voice and to provide management feedback

• Create a system for responding to union complaints and grievances 

• Develop a system for responding quickly to an increase in employee grievances

• Review all employee handbook policies to ensure they don’t offer opportunities for charges of unfair labor practices

As you can see, the ability to put into place a well-trained and highly skilled Readiness Response Team can address nearly half the items on this checklist. If you have reason to believe your company may face a union organizing campaign, the Readiness Response Team development and deployment timeline should be part of your preparedness plan.

Getting Started With A Readiness Response Team

The primary role of the RRT is to engage employees, and provide the truth, so team members trust the employer enough to discuss unionization openly. Readiness Response Team members are internal ambassadors, engaging employees in honest, informed conversations about unions, and problem resolution. The Readiness Response Team is always prepared to factually  answer employee questions about unions, the impact of unions on employees and their families, the realities of a collective bargaining, and employees’ rights under the NLRA (National Labor Relations Act). If employees are asking questions about these issues, an honest dialogue can help combat the promises and half-truths union organizers often use to convince employees to vote for unionization.

The ideal Readiness Response Team has two main functions: 1) maintain the company’s direct connection with employees, and 2) respond to a union organizing campaign in progress. To behind developing your team, you will need to:

• Select cross-functional team members from different leadership levels

• Determine the extent of the team’s responsibilities, i.e., responding to disruptive workplace issues as they arise to avoid unionization, holding ongoing conversations with employees, managing the union organizing campaign, etc.

• Train RRT team members on the leadership behaviors that contribute to a culture of open communication, employee engagement, honesty and integrity, fairness and equality, and respect

• Train team members on the rules of communication about unions and employee rights so they don’t cross the line and appear to threaten or coerce employees; i.e., holding conversations that are based on active listening, not asking employees questions about their feelings on the union, not making false promises, etc.

• Train team members on the do’s and don’ts of union campaigns

• Train team members on identifying union organizing activity, i.e., quiet and obvious signs

• Develop a communication strategy with supporting resources regularly and transparently talking about unions, i.e., social media, texts, emails, brown bag meetings, department meetings, forums, videos, etc.

• Provide regular follow-up management training for maintaining the team’s current knowledge of the fundamental law, NLRB decisions relevant to the general workplace (without asking them to be legal experts), union specific information, holding engaging conversations with employees, etc.

• Develop a strong support system for the team that includes resources like a union-free website (dark website), campaign material that addresses the benefits of working for the company, communication technologies, printed material, UnionProof tools, etc.

• Conduct periodic union vulnerability assessments to uncover specific issues bubbling up in the workplace, i.e., industry or local unionization rates, turnover rates, rate of employee grievances, employee feedback, etc.

• Identify the unions that present the most risk to the organization based on industry research or local activity, and train team members on their tactics and strategies to better detect signs of organizing or the union’s influence on employees and develop a targeted, targeted, insightful response

The Readiness Response Team is important to maintaining a union-free workforce, but only if its members are well-trained in engaging employees and have access to the right resources. Members must know how to initiate non-threatening conversations with employees and how to respond to questions. Should a union organizing campaign start, RRT members are already trained to respond quickly and appropriately, alleviating the stress and burden that is so often apparent in an unexpected organizing drive.

Is An RRT Right for Your Company?

First, work with your trusted advisors to determine if a Readiness Response Team is indicated for your current situation. If the answer is yes, and you have the commitment of resources, look to someone skilled in the development of RRTs to help put one in place. Attempting to do-it-yourself will result in wasted time, energy and resources, while gaining support from experienced RRT providers will ensure that your Team is ready to respond at a moment’s notice.

Micro-units have been a source of contention involving employers, unions, and the National Labor Relations Board (NLRB) for many years. Unions are always looking for ways to start union organizing campaigns, and pushing micro-units is one strategy that emerged over the past years. A small group of employees joins a union, encouraging other small groups of employees to join their preferred union, leading to employers dealing with multiple collective bargaining units rather than one. 

What is a Micro-Unit?

This term “micro-unit” is used to refer to a small portion of the total number of employees at a particular worksite, which a labor union is seeking to represent. Essentially it is a targeted group within a workplace. As stated by William Ozier of Bass, Berry & Sims PLC, “smaller units are often easier for a union to organize. If the union is successful in convincing a small unit to choose union representation, the employer will face bargaining with one or more unions over small portions of its workforce, creating numerous operational inefficiencies at the very least.” It’s easy to see how there is nothing “micro” about the threat of unionization from a micro-unit.

It’s a management nightmare and an expensive scenario for any business. As the NLRB composition changes and becomes proactively union-friendly, without a doubt, the number of micro-units will increase. Avoiding unionization will become even more challenging, making it more important than ever for leaders to have positive employee relations with employees, strong employee engagement, an effective workplace communication system, and a plan for staying union-free.  

The History of Micro-Units and the NLRB

Understanding the changing political picture puts the micro-unit challenge in context. Each NLRB has a plan, largely aligned with political persuasion since the President, with Senate consent, appoints board members. The President also appoints the General Counsel, an independent position responsible for investigating and prosecuting unfair labor practice (ULP) cases.  

The NLRB has a term expiring shortly -- in August 2021 -- and the Biden-appointed replacement person plus a vacant seat appointment will certainly make the NLRB one that favors unions. The two individuals expecting NLRB appointments have represented large labor unions for years. When Democrat appointments soon hold a majority of NLRB seats for the first time since 2016, and the General Counsel is union-friendly, you can plan on numerous decisions and guidances supporting unions over the next few years. One of the subject areas that will assuredly get support is micro-units.

The history of micro-units lays the foundation for understanding the changes you will have to manage carefully soon as the new NLRB begins decision-making.  Let's take a look at some real-world examples.

Specialty Healthcare (yes to micro-unit) 

Micro-units are on-again, off-again, on-again. The saga of micro-units begins in July 2011 with the case of Specialty Healthcare and Rehabilitation Center of Mobile and United Steelworkers. This case addressed the standards for determining an appropriate bargaining unit. The labor union wanted a bargaining unit of only certified nursing assistants (CNAs), while the employer wanted CNAs plus all other nonprofessional service and maintenance employees included in the unit. The NLRB decided in favor of the union, saying the employer had to prove the larger group shared an overwhelming community of interest (shared interests).  

The NLRB uses shared interests to determine whether a group of employees should be allowed to form a bargaining unit. Shared interests include:

• Things like hours and wages.
• Conditions of employment.
• A similarity in skills, duties, interests, working conditions.
• Supervisory structure.
• Contact among employees. 

It’s not surprising the CNAs formed a micro-unit because the structure of the healthcare workforce is based on groups of employees with official and unofficial status. All the union had to do was show they were a “readily identifiable” group of employees who shared things like work locations, skills, and departments. The burden was on the employer to show other employees shared a community of interest with the CNAs.  

PCC Structurals (maybe to micro-unit) 

In 2017, the NLRB overruled the Specialty Healthcare decision in the 2017 case of PCC Structurals, Inc. and the International Association of Machinists & Aerospace Workers, AFL-CIO. The decision said it would “return to the traditional community-of-interest standard that [it] has applied throughout most of its history.” 

So this case rejected the micro-unit by returning to the traditional evaluation of community-of-interest. The NLRB, it was argued, was “rubber-stamping” petitions to form micro-unions and had ceded its statutory obligations. The Board was not assessing whether the shared interests of employees in the proposed bargaining unit were different from the interests of the employees not included. 

Bottom line: Basing the unionizing decisions on the fact employees were “readily identifiable” as a group was excluding a review of the employees excluded. 

Boeing Company (no to micro-unit) 

In the 2019 case of the Boeing Company and International Association of Machinists and Aerospace Workers IAM), things took another turn. After two failed attempts by the IAM to organize a 3,000 person unit of all production and maintenance employees at Boeing, the IAM petitioned for a smaller bargaining unit of only 180 Flight-Line Readiness Technicians and Flight-Line Readiness Technician Inspectors at Boeing’s North Charleston site. 

The union won the election, which Boeing asked the NLRB to review, saying the two job classifications were not an appropriate bargaining unit because they shared a community of interest with the larger workforce. Out of this case came a three-step process for determining if a bargaining unit meets the community of interest standard. 

1. NLRB must consider whether the proposed bargaining unit shares an internal community-of-interest 
2. If the employees do share an internal community of interest, the NLRB must analyze the interests of the proposed bargaining unit and the shared and distinct interests of the employees excluded from the unit. 
3. The NLRB must consider previous decisions on the appropriate bargaining units in the particular industry. 

The Boeing union election was vacated. Using the three-step analysis, the NLRB found the proposed bargaining unit failed the analysis. First, the proposed unit didn’t share an internal community of interest. Second, the proposed unit excluded employees with a high degree of functional integration, like those on the same production line.   

IKEA Distribution Services (yes to microunit)

In April 2021, the Republican-controlled NLRB approved a 15 employee bargaining unit at an IKEA Distribution Center in California. IKEA wanted a bargaining unit of 400 employees. Applying the three-step Boeing analysis, the employees were found to have an internal community of interest.

However, when it came to step two of the analysis, there was a problem. An interesting aspect of this case is that the union election was allowed to proceed because IKEA missed a deadline to show why the bargaining unit should include the 400 employees. The company was one hour and 41-minutes late. 

IKEA was allowed to submit some proof of its reasoning, but the union was found to have made its case. It’s a reminder that a small misstep in the union organizing campaign can lead to unionization. You need to rely on labor relations professionals and union-free consultants because of the intricacies of a union organizing campaign of any size. 

Nissan North America (no to micro-unit) 

In a June 2021 case involving Nissan North America, Inc. and the International Association of Machinists and Aerospace Workers (IAM), the NLRB decided against approving a micro-unit of 87 Tool and Die Maintenance employees. The employer wanted the bargaining unit to consist of all 4,300 production and maintenance employees. The Board used the three-step community-of-interest standards and agreed with the employer, finding the technicians shared a community of interest with the other plant employees, so a plant-wide bargaining unit was appropriate.  

Takeaways  

The NLRB certification of micro-units has been inconsistent, but there are takeaways to keep in mind and that point to the growth in micro-units as the NLRB makeup changes. 

For Unions 

• The unions don’t like the traditional community-of-interest standard, of course. They want a return to the standard established in Specialty Healthcare where the union basically said a group of employees with the same job title is a bargaining unit, and the NLRB accepted it.  

Unions are counting on the Democrat-controlled NLRB to restore the Specialty Healthcare standards, making it easier to form micro-units.

It’s much more difficult for unions to justify micro-units under the three-step community-of-interest analysis.

It’s more difficult to get the signatures of 30 percent of employees on union authorization cards in a larger unit needed to support a petition. 

For Employers

•  Micro-units fragment the workforce. 
• A fragmented workforce makes it much more difficult for employers to develop things like great benefits for all employees. 
• Employers have to operate under multiple sets of rules, creating friction between employee groups, damaging positive employee relations.
• Microunits can engage in allowed union activities like strikes, which in turn could shut down the rest of the operation.  
• The ability to form micro-units will lead to increased legal and other expenses, management time commitment, and disruption due to multiple organizing campaigns. 
• Multiple micro-units means negotiating multiple labor contracts and dealing with an increased number of employee grievances. 

Strategies for Staying Micro-Unit Free 

There is little doubt the Democrat-controlled NLRB will approve the reversal of the PCC Structurals decision, leading to many more micro-units. The UnionProof team has discussed the coming wave of government support for unions due to a number of factors, like the PRO Act and the changing composition of the NLRB. The appointment of a strong pro-union NLRB General Counsel was another step towards ensuring employers will face numerous unfair labor practices claims, unionizing attempts, and now micro-unit petitions. 

Operational Considerations 

There are many steps you can take now to prepare for the onslaught of union activity, including micro-units. The labor relations practice of Ogletree Deakins discussed strategies for retail employers concerned with micro-units after a micro-unit was formed at Macy’s and denied at the Neiman Marcus Group d/b/a Bergdorf Goodman in 2012.

With it likely the NLRB will return to the Specialty Healthcare standard, the advice remains very relevant. For example, the NLRB has indicated in their Specialty Healthcare (and some prior) decision that the way employers choose to structure their operations is important to bargaining unit determination. This includes the way in which the employee skills and training are utilized in the workplace.  

The NLRB considers the two most important factors to be: 

• Whether groups of employees have common supervision 
• The interchange between job classifications and departments (back and forth movement of employees from one position to another) 

In other words, blur the lines between groups of employees when possible. For example, cross-train your employees on multiple job duties, increase the interchange between job classifications, rotate employees among jobs or classifications, and train several supervisors to share oversight of multiple departments.  

Positive Employee Relations 

The operational considerations are geared towards developing optimal bargaining units to avoid unionization. The ideal way to stay union-free is to make unions completely unnecessary. 

• Develop positive employee relations through leadership training that focuses on communication, emotional intelligence, creating a respectful workplace, etc.  
• Ensure fair and unbiased treatment of employees in terms of things like scheduling and application of policies 
• Maintain a respectful workplace 
• Ensure benefits and wages are competitive locally and in the industry 
• Develop a positive organizational culture, which is also a UnionProof culture, based on well-trained leaders, employee participation in decision-making, and effective, transparent communication at every level 
• Train all managers and supervisors on recognizing the signs of unions and on using wise words for responding to real-world employee questions 
• Develop and maintain a process for identifying employee issues  
• Establish an effective employee complaint or grievance resolution process 
• Ensure workplace safety and physical and mental health is a priority 
• Stay abreast of current labor laws, NLRB decisions, and union activity in your area so you can better manage employee relations with facts. 
• Develop and implement a plan for staying union-free that includes an employee website explaining the organization’s philosophy on unions and the reasons for adopting that policy; regular communication about unions; positive aspects of working for the company, etc. 

Staying union-free is all about positive employee relations supported by leadership training, fair policies, and procedures and strong communication systems that embrace all workers, including onsite and remote workers. You should identify and address employee relations vulnerabilities. In the Proactive Era, leaders must rely on their ability to develop great relationships through skills like active listening, fair decision-making, inclusion and belonging practices, and soft skills applications. 

Prepare Now for Union Organizing 

Your workers don’t want to work in a disrupted, fragmented, divisive workplace, yet micro-units present the potential for that situation to develop. We are honored to provide the training and other resources all employers need to not only educate and empower their leaders and supervisors, but to stay union-free. You can schedule a demo or chat with one of our skilled leaders, and we can meet you where you're at to solve your specific needs. The key is being proactive, not reactive. We're excited and ready to help!