All Posts by Walter Orechwa

Looking for an employee, you casually walk into the breakroom to check for the person, and there it is - a union authorization card laying in plain sight on one of the tables. The card is a form the employee signs to designate a particular union as a bargaining agent. Feeling at a loss as to what comes next is a normal initial reaction, especially if you had no idea your employees were talking to union representatives. It only takes 30 percent of employees in a bargaining unit to sign cards for the National Labor Relations Board to agree to hold a union election. It takes 50 percent plus one employee to give the union the right to demand you accept the union without holding an election. This is called a union "card check," and while you aren't likely to agree to it, it's better to never reach that point.

One Misstep Can Lead to Unionization

What are the implications of finding the union authorization card and knowing where it could lead? First, you mentally prepare for tackling a process to legally convince employees that joining a union isn't a good decision. Like unions and employees, employers do have legal rights, and they're designed to keep the union campaign as fair as possible for everyone involved. A union card check (also can be referred to as a majority sign-up) is a method for employees to organize into a labor union in which a majority of employees sign authorization cards, stating they wish to be represented by the union.

What is critical is that you don't start making accusations or off-the-cuff remarks because this makes it more likely you will be accused of unfair labor practices, creating a "chilling effect" or discouraging employees from exercising their NLRA Section 7 & 8(a)(1) rights to self-organize. One misstep is all it takes. For example, running out of the break room to interrogate whoever you think may be involved is a sure way to create a chilling effect and will inevitably lead to a formal complaint being filed with the NLRB.

Always staying within the limits of the law is crucial to staying union-free and avoiding expensive NLRB cases. There are four methodical steps to follow that will guide you through the process for legally responding to attempts to unionization. It's only four steps, but each includes a set of critical activities.

Carefully and Thoroughly Follow the Steps after Finding a Union Authorization Card

You found the union authorization card, and it's time to put an action plan in place to respond. The card's appearance likely means some of your employees have been meeting for a while with union representatives. The four steps in a solid legal action plan are: Investigate, Assess, Strategize, and Act when it comes to a union card check process.

1. Investigate

Investigating union activity requires knowledge of the law and NLRB decisions concerning the questions/statements employers can make. To make it simpler to remember what is allowed, think of the acronyms T.I.P.S. and F.O.E.

• T.I.P.S. Rule - Don't Threaten employees, Interrogate employees about their support for the union, make Promises of rewards for not supporting unionization, or conduct Surveillance of employees and union activity
• F.O.E. Rule - Share the Facts, share personal Opinions and talk about specific Examples

Keeping the two rules in mind, you can ask employees questions in a non-threatening and non-interrogatory manner. You're advised to consult a labor attorney so the person is involved from the beginning of the process. They can provide guidance through the four steps and assist with developing an accurate assessment of the situation.

Carefully choose the employees you talk to. Remembering the consequences of creating a chilling effect, the purpose is not to interrogate employees about union activities or to criticize unions. It's to find out the reasons employees are talking to union representatives and how a union card check could happen. You can ask trusted employees if they know of employees who are upset with anything. This includes everything from policies, schedules, pay, benefits, supervisors, and so on.

Collaborate With Your Supervisors

You should also talk to supervisors, and ask them if they have observed unusual employee behaviors. There are innocuous signs of union organizing activity that are overlooked until a holistic view is taken. For example, employees take long breaks together and suddenly quit talking when a supervisor walks into the break room. Are employees lingering in the parking lot and involved in deep conversation among themselves or with non-employees? It's the change in behaviors that indicate potential union activity.

Also, ask supervisors if they have noticed a change in employee language. Increased use of typical union and NLRB words indicate employees have been talking to union representatives. Words like "grievance," "just cause," "arbitration" and "seniority" are the language of unionization. Employee language gets more formal too. For example, an employee would normally say, "I don't understand this schedule change. Seems unfair to me. Think I'll complain to my supervisor!" becomes "My supervisor violated my rights, so I'm going to file a grievance."

Another indication that employees are considering organizing is when your managers begin began receiving reports from frontline supervisors concerning employee defiance. Additionally, employees may be unusually cool towards or avoid management, regularly challenge work rules, express unhappiness with even small changes in the workplace, and project a sense of resentment of management. A workforce that has been cooperative in the past, and willing to communicate with their supervisors, adopt a we-they attitude.

2. Assess The Situation

Employee engagement is crucial to keeping unions out of the workplace and preventing a union card check. When employees decide to listen to unions, it may be they have been disengaging over a period of time. This occurs for many reasons.

Perhaps your organization implemented policy changes in benefits, hours of operation, work rules, pay scale, or any of a variety of perks. Have employees expressed frustration or anger surrounding any known issues? Sometimes, it is a matter of poor communication between employees and management, and the employee-employer relationship erodes over time. However, lowered engagement levels could also be due to a general change in an organization's culture. If employees perceive the culture as less supportive or even negative and begin to develop the we-they attitude in which its employees against management, unions are likely to make an appearance.

You must ask yourself if there any other factors, internal or external, that might have played a role in the union getting a foot in the door. Did a competitor's business recently unionize? Did your company reorganize? Are your supervisors well-trained on your union-free philosophy? Did you hire unpopular managers? Do managers know how to respond to complaints, engage employees and explain the union-free philosophy? Your company may have inadvertently allowed itself to become vulnerable to union organizing by not transparently addressing internal and external factors.

An assessment should also try to discover the status of the union campaign. The authorization card you found in the break room may be a single card or one of many. How far along is the campaign? Is the union campaign just getting started? Or is the union getting close to enough signed cards to move ahead with an election? It's not easy to get the answers you seek, but it's important to try.

3. Strategize

After investigating and assessing the situation, it is time to develop a strategy and an implementation plan. The strategy and the speed of implementation depend on the status of the unionization effort. Your supervisors need to be knowledgeable of events and know how to go forward with answering employee questions, promoting the advantages of working for the company, and communicating the employer's stance on unions. Your supervisors are the frontline and mid-managers who work directly with the largest number of employees. They are the people who have the most influence over employees. They get the first opportunities to recognize the signs of unionization and can prevent a union card check. Your supervisors can help keep your company union-free.

You need to provide your supervisors with the tools and information that enable them to answer employee questions with accuracy and without violating the law. The tools include web-based training programs, like videos and eLearning programs. It's important to regularly update the information, so supervisors have the most powerful and accurate information available at all times.

Keep Your Employees Educated to Prevent a Union Card Check

Another strategy for avoiding unionization is keeping all your employees educated on unions. Chances are many of your employees need to learn about the National Labor Relations Act and the rights, roles, and responsibilities of employees, employers, and unions. Unions are experts at organizing. Like salespeople, they know what to say and how to present themselves in a convincing manner.

One common approach of unions is to minimize the value of an employee's signature on the union authorization card. For this reason, it's critical to educate your supervisors and employees on the facts about union authorization cards. They need to know what they are, what they mean, and why the employee signature is so valuable to unions. Unions like to convince employees to sign cards by saying, "Just give it a try. You can always vote the union out later." What they don't tell employees is that it's difficult to decertify a union once it's in place, and decertification can turn into a very long process.

Be Prepared with the Facts

Supervisors need to understand the full ramifications of employee signatures on authorization cards for the simple reason they need to be able to respond when an employee says, "My signature doesn't mean I'll vote for the union during an election." The employee clearly doesn't fully understand the union strategy, how unions operate, and the potential consequences. Your supervisors should be able to explain, in a non-threatening manner, all the implications of signing the card.

Well-prepared employers have a "dark" website always ready for fast launch. The dark website is an employee-focused communication tool designed to educate employees on union facts as well as sharing the company's philosophy on unions. Some companies keep the website dark until a union campaign starts. Other employers make it live immediately after development as part of their strategy to educate workers on their union-free philosophy. The strategy you implement depends on your unique situation and culture.

4. Act

With a strategy and execution plan prepared, it is time to act. Following are a series of steps in an action plan:

• Take the dark website live, if it is not already
• Implement an online resource for supervisors to keep them informed
• Show the video "Speak Up: The NLRA Explained" to demonstrate to employees that you know the law, will adhere to the law and want to share factual versus emotional information. (Unions operate a lot on emotions)
• Also, show the video "Little Card, Big Trouble" which educates employees on the real power of the union authorization card. (This can be shown first if you think a number of cards have been signed)
• Show a video on the "Cost of Unionization" so employees understand the real and full financial impact of unions on their paycheck, the company, and communities
• Additionally, share a video on "Decertification" to explain the process and how difficult it is to end unionization once it's in place, combatting the "just give us a try" mentality

Opportunity for Transparency

Don't just show the videos. Give employees opportunities to ask questions and hopefully provide insights on why they're interested in unionizing. Transparency is important. One reason employees talk to unions is because they believe their employer is not open and honest about things like its policies and goals. Finding the union authorization card gives you an excellent chance to act transparently.

Anything to do with unions is complicated because of both the legal implications and the emotional aspects. However, finding a union authorization card in the breakroom does not automatically mean unionization is a sure thing. It's part of your obligation as an employer to meet your employees' need for information, education, and transparency. This is the best strategy to prevent a union card check and keep your workforce union-free.

Should an employer let employees decide if they want to unionize? Or should the employer do everything possible within the law to keep unions out? This question is common among employers when some employees and a union are attempting to initiate a union campaign. Some business leaders will fight tooth and nail to keep the union out. Meanwhile, others decide they prefer not to oppose unionization for any number of reasons. The truth is, different approaches will work differently for different companies and workplaces. Below, we will discuss the differences between a union vs non-union workplace.

Before making a decision, it is essential to consider all aspects of not opposing unionization versus striving to remain union-free. It is not an easy decision because there are so many interrelated factors to consider. There are many pros and cons of unions, so we felt a deep-dive analysis might be helpful.

Remaining Non-Union

Employers who strive to remain non-union generally do so because they find unions are not necessary. They also understand the many disadvantages of unions and typically believe they will do more harm than good. Companies that remain union-free have done so by nurturing good employee-management relationships and positive work culture. Their employees don't see the need for union representation because the employer treats them fairly. This fair treatment is the most important thing that employees are searching for.

From the Employer's Perspective, Successfully Staying Union-Free Means:

• Business leaders can proactively engage employees in a variety of ways without interference. This includes giving them opportunities for input into decision-making and providing useful feedback
• Managers are delivering high quality and consistent orientation of new hires, including successfully sharing the union-free philosophy during onboarding
• The organization develops better leaders whose employees trust to treat them fairly and respectfully through good communication practices
• The organization successfully reinforces the company's union-free philosophy with all employees through high-quality training tools that are available 24/7
• Leaders develop a collaborative work environment
• It is possible to create and implement a promotion policy based on merit. This includes exceptional job performance, skills, training completed, leadership qualities, etc.
• Maintaining the ability to fill open positions with internal or external job candidates, whereas most union contracts have seniority rules
• Retention of the ability to terminate non-productive or problem employees at will within legal requirements. They cannot discriminate based on race, ethnicity, religion, age, etc. Union contracts often include a need for proving 'just cause' for termination which depends on the context
• Ability to create more opportunities to increase employee engagement because there is no union interference in employee-employer relationships or communication
• Being able to reinforce that employees do not have to pay union dues, and employees keep more of their pay
• Maintaining employee autonomy when making a decision about things like grievances, accepting new job responsibilities, promotions, etc.
• Better managing of payroll costs - one of the main disadvantages of unions is that the employer is hindered by a collective bargaining agreement. Without a union, there is more freedom for employers to choose benefits vendors and design benefits packages, have full control over the compensation schedule, the ability to design leave policies that work for the employer and the workforce, etc.
• Retention of ability to motivate employees with opportunities for future job advancement and job redesigns without hindrance from the union
• Having the ability to reward employees for exceptional performance. This would include the implementation of incentive plans. (Unions typically discourage their members from exceeding performance requirements or going beyond normal job expectations)
• Being able to encourage employee initiative, individuality, and creativity. Typically, unions stifle individuality, requiring employees to adhere to union rules and be supportive of fellow union members; unions get their power and strength through groupthink (think 'solidarity')
• Understanding the fact that numerous federal/state employment laws/regulations protect employee rights and support good leadership practices
• Staying more competitive in terms of prices for goods and services by avoiding the higher negotiated compensation and benefits costs. This may lead to raised prices.
• Maintaining more control over community relationships and brand reputation through messaging
• Avoiding a situation where union-negotiated policies/procedures may negatively impact non-union members should the bargaining unit not include all employees
• Retention of the ability to institute organizational change or restructuring without having to negotiate with the union
• Being able to change Human Resources policies and procedures without going through union negotiations
• Making it easier to maintain an open, supportive culture that makes it easier to attract diverse people and women. This creates a more comfortable and inclusive culture than one which creates specialized groups of people

Choosing to Allow Unionizing

Employers have many reasons they decide to let the chips fall where they may when employees participate in a union campaign and election. The employer may simply believe it's too expensive to try and oppose the union. They may also believe that fearful opposition to the union will cause too many problems in the workforce. Or they consider unionization as inevitable, so why spend the money trying to keep the union out.

The thought process is also that unionization does offer some advantages to the employer, as well as employees. When considering the pros and cons of unions, the question the employer must answer is whether the benefits of unionization outweigh the disadvantages.

From the Employer's Perspective, Unionization Mean:

• Requiring management to give up a significant amount of control over the talent management process. This includes the ability to recruit external job candidates, along with compensation and promotions
• Restricting the ability of leaders to communicate with the workforce because some issues must go through union representatives first
• This means the employer can expect more in-house grievances, arbitrations, lawsuits or NLRB complaints, leading to difficult and expensive processes
• This leads to a negative workplace culture when unions and management are adversarial
• This means the employer loses some decision autonomy because the employer is legally required to bargain with the union in good faith to establish an acceptable collective bargaining agreement and must negotiate with the union during various post-contract events impacting union employees in any way, i.e., implementing organizational change to the infrastructure like closing a manufacturing plant or downsizing a workforce
• Union contracts require the promotion of employees based on seniority. This means the employer will have difficulty promoting someone based on productivity or potential
• During workforce downsizing or restructuring of jobs, union contracts require the termination of employees based on seniority. This ultimately would force the layoff of some employees the employer would like to retain
• Increases payroll costs due to higher negotiated employee wages and benefits and the likely addition of one or more employees who are responsible for managing union-related activities, like collection and remittance of union dues (as of 2018, the average non-union worker made 82 percent of compensation for union employees)
• Means benefits are spelled out in union contracts, and the need to negotiate new terms with different vendors each year is minimized
• Pension plans will need to be initiated, or existing plan costs may increase
• Adds stability to the compensation schedule. Pay rates, overtime, and wage increase schedules are established through negotiation with the union - and applicable for the length of the contract
• This means the employer does not have to deal with individual employees anymore. The union negotiates compensation, benefits, and leave policies for all union employees
• Will minimize potential conflict with employees over compensation during the length of the collective bargaining agreement. Employees would know the compensation schedule that the union negotiates with the employer
• Means job descriptions are established through negotiation, but job responsibilities can become a point of contention in the exercise of supervisory duties, i.e., the employee is asked to do something the union considers to be outside the person's job description
• Presents a potential for less turnover. People have better pay/benefits and job security so are less likely to look for another job
• Increases accounting costs
• Decreases the market value of the business because expenses go up
• This means the disciplinary process is pre-defined and union representatives are included in disciplinary actions
•  Union members can legally strike

Practical Considerations for the Union or Non-Union Argument

Just because a workplace unionizes does not mean the employee-employer relationship suddenly becomes adversarial. Some businesses unionize, and employees and managers maintain a good working relationship. The employer may be able to anticipate potential employee conflicts/disagreements associated with unions to avoid whatever problems may arise.

With that being said, history shows that unions are more likely to create problems for managers. In some cases, unions purposely keep employees agitated and encourage them to feel dissatisfied - that is how they maintain control. Contented employees do not unionize. 

There is a final point to keep in mind. If a union campaign and election are held, remember, this does not guarantee a vote for unionization. The majority of employees can choose to vote 'no'. Even if the employer decides not to oppose unionization, there is always the chance that employees will decide they do not want union representation.

Unionization is ultimately a risk. Like all risks, the full impacts need to be carefully evaluated and considered. The pros and cons of unions provided are for thoughtful consideration. Each employer and each union is different, making it difficult to generalize.

However, it is important to not fight against unionization only because that seems to be the cheapest and least disruptive path at the time. In the long run, unionization will cost a company more. Ultimately, it will also bring many restrictions that management may not be willing to accept. At UnionProof, we believe it is much more practical and less risky to become an employer of choice and not have to address unionization at all. We are happy to offer you a number of resources when it comes to keeping your employees engaged, your retention low, and your workplace union-free.

There are two paths employers take when dealing with the issue of union organizing. One is to be reactive in communicating with employees to keep a union out, including a campaign-focused website. The second path is to prepare ahead and plan on taking additional action when (or if) a union organizing campaign starts. That's one of the differences between choosing to maintain a live informational website and creating a 95-percent complete dark website that goes live after union activity starts.

Communication with a Goal

There are many union-focused preventive measures your company can take to keep unions at bay. They include sharing the company's union-free operating philosophy during the job candidate's interview process, developing leaders in the art and science of engaging employees, and educating employees on the reasons to stay union-free. 

There is something that ties all three steps together - effective organizational communication. Productive communication can take many forms – brochures, signage, videos, eLearning programs, emails, and social media. However, people today are "always on." They want access to 24/7 websites that are also mobile-friendly. A full-time preventive union organizing website is an ideal communication tool for all employees that's available around the clock and accessible from any location. 

A preventive union organizing website can be launched with the intent to educate and inform employees so they understand the implications of unionization, or one responding to a union organizing campaign at any stage. The first option is the ideal one because it becomes a trusted information source that not only helps employees understand why unionizing is not a good decision, but also helps communicate the company's philosophy on unions.

UnionFree.com: Keeping the Light On

Your site can be a fully customized, preventive union-focused website that is live full-time. The prevention, in that case, refers to preventing unionization by encouraging employees to not support early union efforts or ensuring employees know they can vote against unionizing if an election is held. The website can also be kept dark (ie: not live) but "active ready" for launch during a union campaign.

Either way, your employee-focused website should be designed to make it easy to drop in union-specific information and facts, should active organizing begin. Your website should reflect the unique characteristics of your company – brand, employer-employee relationships, community relations, and demographics.

 "Most employers wait until they have a union problem before they go live with a dark site," says Projections, Inc. President, Chris Craddock. Projections brands include UnionProof.com, UnionFree.com, and LaborLook.com. "A union organizing campaign can begin before the employer even learns of the effort," continued Craddock, "not just when a petition for election is filed with the National Labor Relations Board."

Union representatives have investigated your company, identified what they consider weaknesses, designed a "talking points" agenda, and talked to employees or people who can influence employees. Almost suddenly, it seems union representatives are influencing employees.

RELATED: How Do I Get Started With a Dark Site For Union Organizing?

Transparent and Ahead of the Unions

Employers have the right to proactively explain to employees why they believe unions are not in their best interest, and how unionization is likely to affect the company. Whether or not a formal union organizing campaign has started, there are many benefits to keeping a customized preventive union organizing website available at all times, including the following:

• A preventive site's tone and language can communicate and reinforce the importance of a direct connection to management;
• An employee-facing site can preempt common union claims, arming employees with factual information;
• Your preventive UnionFree.com site can offer 24/7 availability of the company's open-door policy, dispute resolution procedures, even a direct line to management
• Your custom site for employees makes it easy to share timely company information with everyone quickly
• Communicating the facts around issues a union organizer might try to stir up is easy, and addressing evolving issues can be a snap, i.e., benefits package changes, revised HR policies, etc.
• You can meet employees where they are by linking the site to your employee-facing social media

• Employees today are comfortable getting information via video, so your site can include custom video messages as well as topics around organizing, bargaining, and more
• Your site can include an anonymous FAQ page that employees can access 24/7 to ask questions anonymously or share information with company leaders, giving managers insights into what employees are thinking about a variety of topics from grievance procedures to compensation.
• A UnionFree.com site gives managers and supervisors a specific place to direct employees for correct legal answers to their questions;
• Your site also delivers a uniform message to all employees across the organization;
• Your video content can even include documentary-style information on what really happens after unionization;
• UnionFree.com sites encourage employees to investigate the facts about unions before making any decision;
• An employee-facing site establishes a trusted starting point for customizing a rapid response when union activity is detected, from card signing campaigns to union petitions
• Your site can use language that informs them of their choices and keeps employees feeling empowered, like "you also have the right to NOT join a union."
• Your site can also support your "open door" management policy by inviting offline discussion

"When it's kept fresh or updated, a preventive union organizing website also keeps employees coming back to the website. This is a powerful employee engagement tool," says Jennifer Orechwa, Chief Operating Officer at Projections. 

That's what the proactive full-time preventive union-focused website is really all about – keeping employees engaged, and their thinking and beliefs aligned with the facts and not with union false claims and promises they can't keep. For example, unions promise employees they'll get certain benefits or an automatic pay increase. If the workforce unionizes, the reality is there is a long drawn-out negotiation process between the union and the employer. Employees could end up with more, they could end up with exactly what they have now, or they could even end up with less. That's the fact, and that's what your site should communicate

Think Proactively

Why are most customized union organizing websites sitting on the proverbial shelf collecting dust? One reason is that employers are afraid to mention unions to their employees, believing this will give them ideas they wouldn't have otherwise. 

The reality is that unions will aggressively promote themselves to your employees. So instead, you should think proactively You want people to be thinking about unionization while armed with the facts and not based on union rhetoric and promises. 

"Let's Talk!"

The preventive union organizing website shows employees their Company is pro-employee and wants to promote healthy conversations and feedback. The full-time union-focused website is telling employees, "Let's talk." 

By addressing rather than avoiding unions, it confirms that company leaders are confident about their Human Resources policies and commitment to employees, and fairness in the workplace. Employers afraid of mentioning unions send a signal there is something to be afraid of and equates to a lack of transparency. 

Unionfree.com professionals have a deep understanding of what engages and motivate employees and how you can stay or become union-free. One of the most powerful tools offered is the preventive union organizing website. So let's talk about your particular circumstances and the best strategy for keeping unions outside your business. It's important that you get your preventive union organizing website active as soon as possible. We'd love to be a resource for you to get started with a custom solution!

The term "gig economy" evokes images of app-driven tasks completed by people earning their income one task at a time. Independent workers, like Uber drivers and food deliverers, will get an order via smartphone, complete that order, and move on. 

It doesn't seem applicable to an industry like manufacturing, which is heavily unionized, but the gig economy is invading every industry as technology is embedded deeper and deeper into society. There is a growing trend, fueled by big unions, to turn gig workers into employees. This, in turn, makes them more accessible to unions. Even if already unionized, keeping union membership to a minimum in the future is becoming more challenging each year. We'll discuss the impact of the gig economy on unionization and how it can affect gig workers and companies alike.

At IRI Consultants, we have over 40 years of experience connecting with employees. We are dedicated to helping companies create their own unique positive employee relations strategy. Our dream is to revolutionize the way companies connect with their employees. We offer companies trusted, innovative, comprehensive, employee communication resources that keep them union-free while inspiring and motivating their employees. 

Unions Make False Assumptions about People

Think in terms of a manufacturer producing a certain amount of products. When the order or project is completed, the workers leave for new jobs as independent contractors. The workers are gig workers, many of whom purposefully decided to become a gig worker for work-life balance reasons. They aren't forced into this type of work. They choose it, and that fact often gets overlooked when listening to union representatives speak about the gig economy.

Technology is usually the reason gig work is possible in any industry. Focusing on manufacturing, programs, and robotics simplify work, making it possible for independent workers to step in and complete the job. But the manufacturing industry is rooted in tradition and unions that have established rules for career paths. 

It is the perfect setup for a clash of the independent workers and the union workers who jealously guard their traditions and contracts. In the traditional model, union workers go through a career journey of apprentice, journeyperson, and master, with pay and promotions tied to status. 

In the new model, it goes like this: worker, team leader, and manager. Workers (and sometimes team leaders) include full-time and part-time employees, temporary workers who may or may not hope for regular employment, and gig workers or people who purposefully go from job to job. Gig workers serve an important role because they can fill skills gaps. 

The ABC's of Employment

Unions, of course, want to unionize gig workers because they need to shore up declining membership. The AFL-CIO is working through legislators to get laws passed that force gig workers to be treated as employees, making them eligible for unionizing. For example, California Assembly Bill 5 (AB5) (2750.3 of the California Labor Code) went into effect on January 1, 2020, and requires businesses hiring independent contractors to reclassify them as employees. This was based on the California Supreme Court case of Dynamex Operations West, Inv. vs. Superior Court of Los Angeles. 

The law is a precursor to what unions hope to get in other states. As the law reads, anyone hired is assumed to be an employee, unless the business can prove the following. This is also referred to as the ABC test:

• The worker is free to perform services without any control or direction
• A worker is performing work tasks that are outside the usual course of the company's business activities
• A worker is customarily engaged in an independently established trade, occupation or business of the same nature as that involved in the work performed

The way the law is written, it is nearly impossible to remain a gig worker. A gig worker accepting a job in manufacturing will, of course, be doing work that is usual for the company nearly all the time. 

For example, the company couldn't hire web developers to develop new product webpages on a gig basis, if they usually have web developers working the rest of the year. The gig worker will also need direction. There are some occupations exempted in AB5, but the requirements to prove independent contractor status is a legal quagmire, leaving unions open to challenging just about any gig worker. 

Union Putting Focus on Manufacturing?

The success unions had at getting the California legislation passed encouraged them to work for similar legislation in other states. In fact, Illinois has already passed a similar law, and New York and New Jersey are working on it. The unions are focused on states right now that just so happen to be high-level manufacturing states. 

According to Industry Week research, Illinois has 36 manufacturing companies, and New York has 33, putting both of them in the top 5 manufacturing states. New Jersey is another state with similar legislation. It has the most manufacturing firms, with their employees accounting for 7.72 percent of the workforce in 2019. 

You can bet that gig workers in manufacturing will become employees should these laws pass. A lot of people don't like California AB5. There are dozens of amendments to the bill proposed already, mostly to add occupations to the list of exemptions, according to the Los Angeles Times. No one knows whether the challenges will succeed as unions furiously lobby legislators.

"Don't Destroy My Career"

There are some freelancers who make it clear they are not interested in being anything other than independent contractors. The unions assume everyone is interested in things like job security and benefits. It's not true.

In fact, there is a group called "Fight for Freelancers NJ," and it discusses the belief that the N.J. legislation "destroys the careers of people who choose to work for themselves based on the ABC test" because the ABC test is "so strict, and can be interpreted and applied in such wide-ranging ways, that honest and lawful companies are refusing to work with properly classified independent contractors."

Though the economy was interrupted due to COVID-19, it will rebound at some point in 2020. When it does, there is likely to be more manufacturing production gearing up over time as Americans generally agree there's a need for more goods produced at home. This will, in turn, require more skilled labor, and manufacturers need a new source. Gig workers or independent contractors will be that good source. 

Opposing Forces

What is the impact of the gig economy on unionization in manufacturing? At Union Proof, we anticipate two opposing forces. The need for independent contractors will lead to unions working harder behind the scenes as lobbyists to change state laws to make it difficult to stay a gig worker. Many freelancers will fight long and hard to stay freelancers. 

Union membership has declined overall. However, this has made them more determined to find ways to bring more people into the union fold. It is tempting to think unions have had their heyday and will not recover their membership numbers. Gig workers are expected to play an important role in the manufacturing industry, and that's already motivating unions. 

Some Thoughts on the Gig Economy

• Gig workers are mostly millennials at this time and are some of the most skilled technology people
• Millennials account for over half the workforce in 2020
• Gen Z is now entering the workforce and is even more tech-savvy
• COVID-19 virus crisis is spurring the manufacturing industry to grow in the future as more processes are brought back to the U.S., while also becoming more flexible and adaptable (a threat to unions)
• There are an estimated 57+ million Freelancers (members of the gig economy); 40 percent are millennials, and 53 percent are Gen z
• Gig workers are a highly-skilled group of people
• As international manufacturing returns to the U.S. and existing U.S. plants grow, there will be an even wider skills gap that gig workers can help fill
• Unions will intensify their lobbying efforts across the states to get as many gig workers as possible reclassified as employees

Here is a tip: Each manufacturing company, plus upstream suppliers and downstream logistics companies and business customers, need to strengthen their strategies for keeping gig workers, as well as regular employees, engaged, so they want to stay union-free. Unions are trying to engage independent contractors, meaning you should too.

It may be tempting to believe that since a manufacturing workforce is already unionized that unions don't present a new challenge. Don't make that assumption if you want to keep labor costs down and help independent contractors stay independent.

New Union Frontline

As the new laws on independent contractors already demonstrate, unions are employing strategies that create new potential members. The anticipated increased utilization of gig workers will drive the need for new strategies to stay union-free or to minimize union membership in your company.

Union Proof is always looking ahead to assess how unions are most likely to behave in the future. If you manufacture goods or supply manufacturers, business leaders should prepare for renewed union action on a new front. If you need a solution to help your organization become an employer of choice, we'd love to help you with a custom solution.

The American Disabilities Act (ADA) and its amendments were passed to protect and guarantee the rights of people with disabilities. This act specifically enables them to access and participate in employment, public services, public accommodations, telecommunications and transportation. The ADA's Title I specifically prohibits discrimination against people with disabilities in every area of employment. This includes everything from recruitment, interviewing, hiring, promotions, benefits, to termination and layoffs. When it comes to respectfully approaching disabilities and diversity in the workplace, unions can ultimately pose a problem.

All employers with more than 15 employees, and labor unions, plus some other organizations, must adhere to ADA requirements. However, it doesn't take a law for ethical leaders to do the right thing. They need to treat people with disabilities in a fair and equitable manner.

What is Fair?

It's clear how you, as an employer, must treat job candidates and employees who have disabilities. The question concerns how the ADA is integrated with union contract requirements in practice in the unionized workplace. Per the National Labor Relations Act, the union has a duty to fairly represent all employees without discrimination. However, union contracts have strict requirements about talent management policies. The contracts include everything from promotions, job restructuring, job schedules, changes in job responsibilities, job reassignment and leave policies. The reality is -- unions don't always make it easy to accommodate employees. Essentially, this is because agreeing to exceptions to the contract is usually something they want to avoid.

The United Electrical, Radio & Machine Workers of America (UE Union) addresses disability in its online statement. The statement says the ADA gives the union opportunities to represent workers, and there is a long description of how the employer must accommodate the employee in various ways and how accommodation fits within union contract requirements. However, read closer and the union guidelines give a clue as to the difficulty of accommodating people with disabilities in the unionized workplace.

Guidelines begin by saying the ADA does not require "bumping". Therefore, accommodation can mean keeping a person in their old job or placing them in a vacant position. The guidelines go on to say the ADA doesn't give employers the right to violate the union contract to the detriment of another employee. They also encourage people with disabilities to work with the union if they want accommodation.

Unions Protect Their Rights Before the Employees

Their explanation goes on to say that "reasonable accommodation" doesn't have to be the best accommodation. For an employer, the best solution might be placing a disabled union member in a vacant seniority position. Alternatively, a reasonable accommodation from the union's perspective is keeping the person in a current job, even if they are underutilized. It's similar to the issue employers have when they want to promote someone based on excellent job performance but are unable to do so because of union contract requirements. This is just one example of how unions make it difficult to navigate disabilities and diversity in the workplace.

It's clear the union is carefully protecting its rights first, above and beyond the rights conveyed in the ADA. The UE Union says this about the ADA, "If used effectively, we can use ADA to strengthen our shop floor unity and the role EU plays in the lives of our members." In other words, the unions are leveraging the ADA as a means of strengthening their relationship with employees. In reality, you can do the same thing. Hiring and accommodating people with disabilities offers many advantages that include closing labor skills gaps and exercising social responsibility.

Negotiating an Accommodation

In many cases, unions can limit your ability to accommodate, due to union contract restrictions. The ADA prohibits collective bargaining agreements from discriminating against people with disabilities. Essentially, the contract requirements create the risk that you may not be able to accommodate your disabled employees like you want. For example, you determine it's in the best interest of a qualified person with a disability to change a job description or to reassign job duties. Following through with these actions may violate the collective bargaining agreement.

The agency responsible for enforcing of the ADA is the Equal Opportunity Commission (EEOC). The EEOC determined an employer considering a reasonable accommodation cannot claim an undue hardship by saying that following through would violate a union contract. The employer and union are expected to negotiate and settle the issue. The real test is whether the accommodation would cause a hardship on other union employees. If it doesn't, the union must allow the accommodation. If it does, the accommodation moves out of the realm of "reasonable."

You aren't allowed to bypass the seniority rights of employees to accommodate a person with a disability. The Supreme Court ruled in US Airways v. Barnett that the ADA doesn't require an employer to place a disabled person into a position when it would violate a seniority system. This gives the union grounds to deny the request to bypass seniority contract requirements. This remains true even if the placement is in the best interests of the employee and workforce.

Bypassing seniority contract requirements isn't considered a reasonable accommodation. You can still attempt to negotiate with the union to allow a one-time accommodation or revise the collective bargaining agreement. In a workplace where the employer and union experience ongoing tension, the union is unlikely to allow any variance.

Reluctant to Hire People with Disabilities?

Researchers at the IZA Institute of Labor Economics studied the relationship of disability and the unionized workplace. The results were eye-opening. The unionization rate fell more rapidly among employees with disabilities. This is because employers are "reluctant to hire people with disabilities into jobs with union protections." In a review of union bargaining agreements, it was learned that policies address disability from the perspective of an injured or sick worker who will recover. The contract emphasis is not on inclusion. 

Also, a tension exists between ADA-protected interests and union interests. Unions operate from a philosophy that the needs of the whole (union workers) are more important than the needs of individuals. With this perspective, a union is not likely to allow a person with a disability to step into a position that doesn't fit the seniority plan or allow you to change job requirements or allow flexible scheduling to accommodate. The result is a disengaged or underutilized employee.

When negotiating a collective bargaining agreement, wise employers insist on including procedures for addressing reasonable accommodations. This often creates a lack of understanding of the relationship of the ADA and the union contract. This ultimately contributes to employers being reluctant to hire people with disabilities into a unionized workplace. It's an attempt to minimize the risk of additional issues needing negotiating over the life of the contract. 

Any discussions involving contracts is a time-consuming and costly process, requiring managers to spend time resolving issues. It's also risky because the union will leverage the discussion as a "marketing tool" by presenting itself as the defender of the struggling employee, when in fact it's the union contract causing a challenge to accommodation issues. 

Creating a Respectful Workplace that Accommodates Disabilities and Diversity

In a respectful workplace, all employees are treated fairly and valued. The workplace is defined by its intolerance of harassment or bullying in any form, its championing of diversity and a high quality employer-workforce relationship. Disagreements are constructively addressed, employees feel free to discuss work challenges with management, and reasonable accommodations are welcomed as a means of enabling people with disabilities to work at full capacity. 

It's important to recognize that a unionized workplace adds complexity to an employer's efforts to develop the respectful workplace. The best thing to do is stay union free and avoid the natural tension created for people with disabilities in a unionized workplace.

Employees today are more willing to go public with their workplace complaints. It doesn't matter if the workforce is union or non-union. Employees will walk off the job, publicly share their complaints and post criticisms of their employers on social media. Did the company even try to figure out how to avoid employee protests? Did the company's leaders at least try to sit down and talk about the issues? Why did employees believe it was necessary to walkout and make a very public protest about their employer? 

Organizing Without A Union

On May 1, 2019, approximately 20,000 Google employees held an international sit-in. They were protesting alleged management retaliation against employees who had previously joined a walkout in November 2018. The original walkout, according to the organizers, was to protest "sexual harassment, misconduct, lack of transparency, and a workplace that doesn't work for everyone." The retaliation claims included employees being demoted, jobs restructured, being forced to take sick leave when not sick, and having staff reports taken away. May 1 was chosen because it is May Day and International Workers' Day. 

While Google employees are not unionized, any group activity like a protest requires organizers. Google employee Meredith Whittaker organized the "Google Walkout For Real Change." She believes she is a victim of retaliation for organizing the walkout on November 1, 2018. Whittaker was clearly the top mover and shaker. However, there were other employees who played critical roles in both walkouts, like Claire Stapleton. 

Whittaker left Google on July 15, 2019, to join the AI Now Institute at NYU. She is assuming a state-of-the-art job by working at a research unit dedicated to studying the social implications of Artificial Intelligence. Why is this relevant to this discussion? She is likely to continue her organizing efforts in the tech industry. This kind of job will be a steady source of information for her. As a non-union tech worker, Whittaker represents the younger generation and their style of organizing in an industry experiencing rapid change.

No Immunity To Organizing

There is a lot to learn from the Google walkouts. One is that no company is immune to organizing in some form. The danger is that employees who do organize on their own and see results are more likely to formally organize via a union. When they do this, they gain an even more powerful voice. Some Google employees didn't join the walkout/sit-in because it would mean a high risk of job loss. Many of them were TVCs (temps, vendors, and contractors), called the "shadow workforce," and a group the unions would love to organize. The protesting workers shared their protest issues and experiences via Twitter, more proof of the power of social media as an organizing tool. 

The employee stories of retaliation indicate a lack of employer transparency and inadequate communication of the core issues. According to Whittaker and Stapleton, plus 10 other organizing leaders, "Google has a culture of retaliation, which too often works to silence women, people of color, and gender minorities. Retaliation isn't always obvious. It's often confusing and drawn out, consisting of icy conversations, gaslighting, project cancellations, transition rejections, or demotions." Before the walkout, employees held a town hall meeting, similar to a union organizing meeting. Of course, Google management responded by saying retaliation is clearly prohibited in policies, and all employee claims are investigated. 

Reasons For Employee Protests

Some of the Google employees were interviewed about their participation in the protests. Employee Ashley said, "I've been seeing more and more of a rift between top-level execs and the rest of the company." One of the things she says points to poor employer communication and lack of transparency of core issues. Ashley mentions that Google management used to hold weekly meetings where executives would field all types of hard questions and answer with transparency and honesty. Employees appreciated these meetings, and stopping them made top management less transparent and appear like they had something to hide.

Short Walkout vs. Long Strike

One of the most effective ways to keep employees engaged is by regularly communicating with employees to keep in touch with their concerns. This will also reinforce a commitment to transparency. If an employer doesn't sit down with employees inside the business and address their concerns (which doesn't mean always giving in to their demands), the employer may find the employees sitting outside the business for all the world to hear their complaints as they use words like "solidarity," "demands" and "chilling practices." You can bet a union has been involved behind the scenes of the Google protests because this is the language of unions and the language the protesting Google employees are using.

Google, Walmart, and other businesses have experienced walkouts. A small walkout occurred on Amazon's Prime Day at a Minnesota warehouse. Employees wanted fairer scheduling, more reasonable production quotas, more temporary workers converted to employee status, and safer working conditions. Not too long ago, the public demands of employees led to Amazon agreeing to pay a $15 per hour minimum. But the goodwill of higher pay had already worn off. 

The good thing about a short walkout is that employers are given an opportunity to address the major concerns of employees without going through union representatives or a drawn-out labor situation. Compare the six-hour Amazon warehouse employee walkout to the months-long Chicago hotel workers strike, or the four months of contentious contract negotiations between King Soopers and City Market grocery stores, and the UGCW Local 7 union that included the threat of a strike.

Avoid Employee Protests By Being On the Same Page

Companies publicly quoting company policies in response to employee protests often add fuel to the fire. The reason employees walk out includes believing a policy is harmful. Or if the policy is fair, they believe the employer is violating it. There are usually multiple reasons employees protest. However, employers who avoid talking directly to employees only make it more likely a union will get a foothold. Some face-to-face communication is important for reinforcing management's personal commitment to work with employees. However, time constraints limit these types of sessions and meetings. 

Fortunately, technology tools can ease the burden and help to avoid employee protests. Tools include videos, websites, and eLearning for employee training and communication. However, it's how the tools are used that determines their success. Posting a policy on a website makes it readily available 24/7, but has the same issue as publicly quoting it. The policy must be clarified through additional explanation as to why the policy exists and how it is applied. This is how transparency and employee engagement are improved. 

The information should be presented in a confident manner which is why so many employers use professionally developed tools. Consistency is also critical. All of your managers and supervisors at every level should be able to respond to employee questions with consistent answers. Managers are creating opportunities for dissatisfied employees to attack policies and procedures if they are saying something different than what the CEO is saying or contradicting what is communicated to employees through the various communication tools. 

Avoid Employee Protests With Communication

Managing the continuous changes in labor laws is a challenge that employers are facing today. Another one is dealing with the willingness of employees to loudly and publicly complain about their employers, with many complaints going viral around the world. Protests are seldom a local issue any longer. Google and Amazon employees in Europe asked fellow employees in the U.S. how they can show solidarity. 

Employers are more likely to find themselves in a defensive mode for damage control when they lack the confidence to respond to employee issues directly and transparently. Leadership training is crucial. The training should be realistic and actionable. It should also produce trainees who can confidently and effectively talk to staff members and know how to act in various situations. One of the triggers for the original Google walkout was a manager who retaliated against an employee for reporting him for sexual harassment. HR agreed he was guilty. However, the only consequence for the manager was being coached on the company's policy. This made the employee angry and resentful.

Union Proof AND Organize Proof 

It is wise to consult a labor professional or labor attorney as part of the leadership training program long before you are challenged by employees. They can help teach you how to avoid employee protests. A labor expert can:

• Advice on what can and cannot be said to employees,
• How to legally respond without ducking issues (legitimate or not-so-legitimate),
• How to communicate information about unionization,
• Employee and employer rights,
• Company policies and procedures, and
• Specifics of various labor laws. 

Today it could be said that you need to union proof or organize proof your business. Not responding to employees when they complain is a mistake that can lead to serious consequences, like unionization or walkouts. Ask the employees who are clear leaders to sit down and talk about their concerns. Answer their questions so that you can figure out how to prevent employee protests. Reinforce a culture of support and regularly update the online information to address the specific concerns of all employees. Silence is definitely not golden when it comes to employee engagement.

You already know that staying union-free is a balancing act. As a manager or leader, you've got to handle any union organizing effort within the law. You still need to take advantage of every opportunity to maintain a union-free environment. One of the trickiest situations that regularly lands small and medium-sized businesses in hot water is the mishandling of a union's demand for recognition.

What Is A Union Demand For Recognition?

Business leaders often lack in-depth training on the National Labor Relations Act (NLRA), which can put them in a precarious position when a union begins to organize employees. The first step that labor organizations take is gathering employee signatures on "authorization cards."

When the union can show majority support, instead of petitioning the NRLB for a secret-ballot election, union representatives can present these authorization cards to a manager of the business. The union then makes a "demand for recognition," essentially asking management to voluntarily recognize the union, based solely on the volume of signed membership cards.

The reality is that the union won't do this in the form of a request. Instead, they make a demand, which can be hard for untrained managers to turn down. After all, a large stack of signed membership cards can indicate that many employees want union representation. So what do you do when someone tries to hand you something? Usually, you take it.

The Secret Ballot Process

Businesses that prefer to maintain a union-free environment must always decline a demand for recognition. Remember that authorization card-signing is not at all confidential, and it is quite possible that some employees felt pressured by their peers to support organization efforts. Therefore, the opportunity for a secret ballot election is vital to the health and morale of your company and its employees.

Your best course of action is to require the union to file a representation petition with the regional office of the National Labor Relations Board. Insisting the process be handled by the NRLB triggers that secret-ballot election. In the time that passes between your awareness of the union's organizing efforts and that secret-ballot election, take the time to educate employees. Make sure every team member (and even their families!) has all sides of the story in hand, including union membership, finances, strikes, the reality of dues, and all the risks that come with being unionized.

Remember, the outcome of a secret-ballot election with confidential voting can demonstrate a very different level of support for union representation.

RELATED: UnionProof Certification

The Demand For Recognition Meeting: Pitfalls and Cautions

If union representatives approach you with a demand for recognition, .you'll want to be aware of several points of caution.

1. First, refuse the representative's offer to show management the signed union cards. The National Labor Relations Board (NLRB) has determined that the simple act of looking at the cards was management's consent to, and voluntary recognition of, the union.

2. Second, explicitly state that management requires unions to proceed through the entire election process to receive recognition by the business. Insist that the union file a representation petition. Take the time to educate and inform employees.

If an error occurs and management does voluntarily recognize a union, the NLRB requires that the union be permitted to represent its collective bargaining unit for a reasonable time before any changes are made. Bargaining-unit employees may be able to decertify the union, but that, too, can be a lengthy and difficult process.