Labor organizing efforts have changed in recent years, and management would be wise to learn lessons from those developments, according to attorneys who advise employers on union matters.
In addition to new organizing strategies, change is sparked by a union-friendly climate in the nation’s capital, at both the White House and the National Labor Relations Board (NLRB).
“President Biden is on record as stating he would be the most union-friendly president in history and followed up on that statement with the appointment of a union-friendly secretary of the Department of Labor and general counsel for the NLRB,” Tim Lindsay, an attorney with Butler Snow LLP in Ridgeland, Mississippi, says.
The NLRB recently gained a 3-2 Democrat majority, which benefits unions, Lindsay says, adding that employers should expect “a much more aggressive” Board.
Richard I. Lehr, an attorney with Lehr Middlebrooks Vreeland & Thompson, P.C. in Birmingham, Alabama, also says employers should expect a more labor-friendly environment because of changes at the NLRB.
Lehr says employers can expect a return to the “quickie election” rule favored by unions and fought by employers along with efforts to limit employer “captive audience” meetings with employees to discuss unionization. In addition, he says there may be efforts to eliminate elections if a union gets a majority of workers to sign cards.
Starbucks Campaigns
Coffee shop giant Starbucks is seeing a new style of organizing campaign as workers at a handful of stores across the country have voted to unionize in recent years. Workers United, an affiliate of the Service Employees International Union (SEIU), has organized Starbucks workers in New York, Arizona, and Washington.
The first Starbucks organizing effort in a Southern state, where unions have had less luck, centered on a single store in Knoxville, Tennessee. The vote, announced in March, resulted in eight votes in favor of unionizing, seven against, and one disputed ballot. The NLRB is expected to make a ruling on the challenged ballot after a hearing.
Organizing at Starbucks has often taken a store-by-store approach affectiing just a small number of workers at a time.
“I think Starbucks has made a strategic mistake by not establishing a more regional scheduling/job assignment process, which would make it more difficult for the union to organize, as it would have to reach several stores rather than one,” Lehr says. “Generally, the smaller the potential bargaining unit, the greater the likelihood of union success.”
Starbucks fought the store-by-store approach in the Knoxville campaign, but the NLRB decided in that case that a single-store effort was valid.
Amazon Unionization
A union vote at an Amazon facility on Staten Island, New York, was announced on April 1, making it the company’s first workplace to vote to unionize. The vote was 2,654 in favor and 2,131 against joining the Amazon Labor Union, which is an independent organization not affiliated with an established union. Amazon announced it would explore options including filing objections over the NLRB’s actions.
Charles H. Kaplan, an attorney with Hodgson Russ LLP in New York City, says the union victory demonstrates how effective a self-unionization effort by workers at a facility can be. The election outcome also “shows how an employer’s efforts to remain union-free can be frustrated by ill-considered, heavy-handed conduct by management that plays into the hands of union organizers,” he says.
“We can expect organized labor to seek to rely more on organizers already in a workplace and to listen more closely to the concerns of the employees they seek to organize in an effort to duplicate the success of the in-house union at Amazon’s Staten Island, New York, facility,” Kaplan says.
That Staten Island union victory follows a March vote at the company’s fulfillment center in Bessemer, Alabama. The outcome of that effort awaits the resolution of challenged ballots. As of March 31, there were 993 votes against unionizing, 875 in favor, and more than 400 challenged ballots.
In Bessemer, workers were voting whether to join the Retail, Wholesale and Department Store Union. The vote was ordered after the NLRB decided Amazon had interfered in a 2021 union campaign.
Lehr says Amazon’s experience should send a message to employers. “The company won the first election by an overwhelming margin,” he says. “Too often, employers consider an election victory as affirmation of the status quo, when in fact it means that employees will give the company another opportunity to address their concerns.”
The closeness of the second election “suggests that Amazon’s efforts to resolve employee concerns were insufficient,” Lehr says.
Advice for Employers
Since union strategies are changing with the advent of independent unions and store-by-store elections, Lehr says employers should keep in mind that “all politics is local.”
“That is, employers need to focus on finding out what concerns employees, how to address those concerns, keep employees informed of business developments, and train supervisors and managers regarding their role to sustain union-free status,” Lehr says.
Lindsay advises employers to “take the pulse of their workforce and be proactive in correcting any real or perceived workplace issues.”
“Unions look for weaknesses that can be exploited,” Lindsay says. “For instance, Starbucks’ hourly wages are as good as if not better than any in the industry. So, since wages were not something that could be easily attacked, the union focused on safety during COVID and staffing issues.”
Lindsay advises employers to train all management personnel about the rights of employees and the rights of employers during union activity and/or organization efforts.
“Unions will often use unfair labor practice charges in an effort to highlight issues, and these are often the product of an unknowing manager who inadvertently commits or is trapped into an unfair labor practice,” Lindsay says.
Tammy Binford writes and edits news alerts and newsletter articles on labor and employment law topics for BLR web and print publications.