As I have been explaining on my blog and podcast, the Biden administration may cause a turning point in the decline of unions as it does everything it can to support unions.
Currently, only 6% of the private workforce is unionized and 34.8% of the public workplace is unionized. The rate of overall unionization has declined from 20.1% or 17.7 million workers in 1983 (the first year for which there is data on unionization from the BLS) to 10.8% or 14.3 million workers in 2020. There are 7.2 million union members in the public sector and 7.1 million in the private sector.
Many businesses have never experienced union organizing. However, that may be about to change as I mentioned on the post with my last podcast episode. The Biden administration is the most pro-union presidency in decades. It is continuing to do more to help unions grow by encouraging the passage of the PRO Act, speaking in support of union campaigns (such as the campaign at Amazon), and the creation of a task force to find ways to support union organizing.
All of this leads to the important question…
How do Campaigns to Unionize a Company Begin?
There are two ways that unions seek to organize a company: employee driven and union driven campaigns. There are some major differences in both of these campaigns. Below are the major elements of each type of campaign.
1. Employee Driven Campaigns
An employee driven campaign is typically caused when employees want a union to fix some issue that they have with the company.
The most common issues that causes employees to seek a union are:
a. Unfair compensation
Employees may seek a union because they believe that the union will result in them receiving higher pay or more benefits. This may especially be the case if the employees are underpaid compared to others within their industry and geographic area.
b. Bad boss or supervisor
A poor supervisor that treats employees unfairly, plays favorites, and is generally unpleasant is one of the most common causes of a union organizing drive by employees. A union may be able to file grievances and represent employees that are unjustly terminated or disciplined.
Of course, on the flip side, unions also represent and sometimes get employees reinstated that should clearly not be such as this railroad engineer that defecated on a train-car Knuckle, threw toilet paper covered feces out the window of the train, and told his manager that he had left a present for him.
c. Poor safety record
The pandemic has increased employee concerns about safety. Employers that do not respond to safety problems are more at risk to unionize.
d. Poor job security
Employers that fire employees without good cause or treat employees unfairly and replace employees that should not be terminated may cause employees to feel that a union can protect their jobs.
e. Not being treated as well as employees elsewhere
If other employers are offering better pay or benefits, especially if they are unionized, then that may cause employees to seek a union.
f. Employee coming from another unionized facility
Employees that used to work at a unionized facility may be more likely to try to establish a union at a new place of business if they had a good experience with the union.
g. Ignoring employee complaints
Employers that ignore complaints of employees risk employees believing that a union could solve the problem.
2. Union driven campaigns
Union driven campaigns, those started by a union, differ from employee driven campaigns in a number of ways. Most unions, at least the major ones, have employees that are tasked with organizing companies (union organizers). These workers may try a variety of tactics to organize a company. For some unions this may be targeting their typical worksite (like the UFCW targeting food processors). Others may have selected specific companies that they wish to organize (like the UAW trying to organize the Volkswagen facility in Chattanooga, Tennessee that has failed repeatedly).
The typical targets for unions have the following characteristics.
a. Major companies
Unions typically target major companies where they can exert political and community pressure on the company to organize.
b. Within the union’s typical sphere
Unions typically, but not always, try to focus on groups of employees that they are familiar with to organize. For example, the United Auto Workers (UAW) focuses on car manufacturing and other manufacturing employers.
c. Target for many years
Unions will typically select a company that they wish to unionize and show up every year to try to build on their support. Organizing is a long game and it may take time before the union is successful in organizing a facility.
d. Vulnerable because of other unionized facilities in the area
Targets that are vulnerable because they are located in areas with a lot of unions are often selected. If there are unions in an area, then it is likely that workers are more familiar with unions and may be more inclined to unionize. Of course, there is also the possibility that workers in an area have seen unions fail to protect jobs or protect jobs of workers who deserved to be fired, which may cause them to be less inclined to unionize.
e. Desire for large units over small ones
Unions target companies that are bigger to try to get more members, or at least the campaigns that are started by unions tend to begin this way. The median bargaining unit size is only 26 employees. Small employers can often be organized easier than larger units.
f. Contacted by employees to run a campaign
Finally, unions often take over campaigns once they are contacted by employees about forming a union. In these circumstances, much of the groundwork has been done for the union to begin organizing the facility’s workforce. It is not a union initiated campaign, but unions that receive requests to assist often jump at the chance because it is an easy way for them to secure members.
Once a union decides that a company is a target, then the union will often assign organizers to conduct the campaign until the union wins, it becomes obvious that the union will not win, or the organizers find that their time is better spent targeting other companies.
How do unions typically campaign?
3. Common Tactics by a Union in a Campaign
Unions have a number of tactics that are common in their campaigns. Of course, some campaigns are larger than others and some even involve the infamous corporate campaign, which you can read about here.
The most common tactics in a normal union organizing campaign are the following:
Unions are likely to come to the facility, at least pre-COVID, and pass out fliers to employees in the parking lot or as they leave the facility/building if the company lacks a no-solicitation policy.
Social media is a great tool for unions to organize meetings with employees and inform employees about unions.
Reaching out to employees at home
Unions will try to obtain employee addresses so that they can visit them at their homes without having to come to the facility. People at their homes may be more or less open to these visits. Many employees find this to be an invasion of their privacy. Once an election is filed, employers are required to provide unions with the names, addresses, cell phone numbers and employee addresses of eligible bargaining unit employees (an Excelsior list).
Unions will hold events where employees can learn about the union and the union will attempt to recruit employees that can encourage other employees to sign union authorization cards.
If unions have access to email, then they will often use it to share information and invitations to union sponsored events.
Text messages/phone calls
Much in the same way as email, unions will use employee phone numbers to provide information to employees.
Some unions will attempt to place a supervisor in an awkward position or make them susceptible to a possible unfair labor practice. They may do this by calling out behavior of the supervisor (whether those complaints are justified or not) or encouraging employees to report any interactions with supervisors. Supervisors need to be especially careful with their friends and relatives that work at the facility. These individuals can, and do, make reports about supervisors to the union that can lead to unfair labor practice charges against the company that names the supervisor.
In the past, unions were allowed to use company emails to communicate with employees for the purpose of organizing and other non-business purposes (this was the Purple Communications standard). This rule was overturned by the Trump NLRB board in Caesars Entertainment Corp, which reinstated the 2007 standard that allowed an employer to ban all non-business email communications. It is expected that the Biden board will go back to the Purple Communications standard at some point in the future.
Aim to file unfair labor practice charges
Unions will file unfair labor practices against employers for activity that violates the National Labor Relations Act. As a bonus for the union, if there is an election the unfair labor practices charges that involve activity occurring during the election can result in the NLRB throwing out the election results and conducting a new election if the employer wins.
Unions may have union members seek to be hired by the employer that they are targeting. This is called salting. It is essentially a way for the organizers to gain an inside look at the facility and the ability to do more than they can do as outsiders (they may be able to talk to employees or solicit them inside the facility).
If you would like to learn more about responding to union organizing, how employees can decertify (get rid of) a union, and other information about union organizing you can read the following posts on my blog and my podcast, Employment Law Problems:
● How to Respond to Union Organizing: https://texaslaborlawblog.com/respond-union-organizing/
● How to Get Rid of A Union: https://texaslaborlawblog.com/how-to-get-rid-of-a-union/
● Amazon and responding to union organizing: https://podcasts.apple.com/us/podcast/amazon-and-responding-to-union-organizing/id1559744548?i=1000518395454
The information provided in this blog is for educational purposes only and is not legal advice. If you need legal advice, then you should speak with a lawyer about your specific issues. Every legal issue is unique. A lawyer can help you with your situation. Reading the blog, contacting me through the site, emailing me or commenting on a post does not create an attorney-client relationship between any reader and me.
The information provided is my own and does not reflect the opinion of my firm or anyone else.
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