Employers Should Take Note of Recent Spike in Union Organizing Activity

In the first quarter of 2022, unions filed more than 550 election petitions in the United States, compared with only 290 in the first quarter of 2021. It’s the largest first-quarter number filed in the past seven years. While part of the increase can be attributed to the Service Employees International Union (SEIU), which has filed dozens of petitions at Starbucks facilities throughout the country, many believe COVID-19 pandemic-induced labor market issues and the rise of worker autonomy have created an opportunity for organized labor.

Bracing for New NLRB Pressure

On April 11, 2022, National Labor Relations Board (NLRB) General Counsel (GC) Jennifer Abruzzo filed a brief in an ongoing case involving the Teamsters union and Cemex Construction Materials Pacific Inc. In it, she urged the NLRB to reinstate a doctrine established in the 1949 case of Joy Silk Mills Inc. Under the doctrine, which was overturned in 1969, the Board allowed a union to be recognized without an election if a majority of workers signed authorization cards.

Reinstating the doctrine, needless to say, would be a dangerous precedent. It would mean employees who sign authorization cards because of pressure from others and/or after hearing only the sales talk and nonbinding promises from union pushers may find themselves represented by a union with no easy way out. They would not have received any information on the facts, laws, and potential risks associated with union representation.

The NLRB’s current considerations make it even more pressing for employers to stay on top of workplace issues and keep their finger on the pulse of employee morale.

Educating Employees

As current union successes become more publicized, your employees may be more willing to listen to organizers’ sales pitches, and online and social media activities make listening easier and more secretive. While some consider employers that educate their employees on the risks of union representation to be pariahs and law breakers, the bottom line is you have an obligation during any union organizing drive to give employees all the facts and risks associated with representation. More important, you should engage in regular employee relations maintenance to help prevent union organizing from occurring at all.

Remember, to force an election, a union needs to sign up only 30% of the employees in the bargaining unit it seeks to represent. Unions have had success carving out smaller units within larger facilities, arguing the smaller groups have a unique community of interest separate and apart from other employees in the facility. The saying that you are only as strong as your weakest link definitely applies here.

If the Biden administration’s Protecting the Right to Organize (PRO) Act ever passes, employers will be further hampered in their ability to get employees enough information during an election campaign. Among other things, the Act would:

• Ban group meetings during a campaign;
• Allow union access to company property;
• Shorten the timeline for elections; and
• Limit the use of outside counsel or consultants.

Training Supervisors

You should have no-solicitation and bulletin board policies in place as well as a union-free statement included in a new-hire packet or handbook. Moreover, your main defense against union organizing is of course your frontline supervisors. They must understand:

• The importance of continuous and positive employee relations;
• The danger signs of potential union organizing; and
• What can and cannot be said year-round about union representation.

It’s important to have your ducks in a row about policies, supervisor training, and employee communications. A contented workforce usually isn’t interested in what a union has to sell.

Sid Lewis is a partner in and the head of the labor and employment practice group at Jones Walker LLP in New Orleans. You can reach him at slewis@joneswalker.com.

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