I Don't Want to Scare You, But…

John Hendon Commentary

I Don't Want to Scare You, But…

How many times have you heard a phrase such as, “With all due respect …” or “I don’t want to scare you, but …” and you know nothing good is going to be said once the statement is completed? Sooo … I don’t want to scare you, but there is significant circumstantial evidence that union organizing efforts in companies of all sizes — from mammoth businesses such as Walmart to the local electrical or carpentry shop — are likely to rise at an alarming rate in the next year or two.

The increase in union organizing efforts is being driven at least in part by a series of National Labor Relations Board decisions as well as apparent recent changes in union focus. In addition, the NLRB changes have gathered significant support from current White House cabinet offices such as the Department of Labor and the Justice Department, whose rule-making and enforcement authority has provided teeth for the new NLRB regulations.

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In the last four years, we have seen the following issues:

• Approval of micro-bargaining units for purposes of organizing workers. These micro-bargaining units and the potential problems they create for business are illustrated by a recent NLRB ruling that the cosmetics and fragrances department employees in a single Macy’s store were a distinct bargaining unit for the purposes of unionization and collective bargaining with the employer. This creates the possibility of companies having to bargain with multiple unions representing multiple small groups within one business.

• A new NLRB rule allowing what are known as ambush elections to take place within as little as 10 days of the filing of an initial petition for a union vote. Historically, it was about 40 days between the filing of the petition and the election — an amount of time that allowed the employer to create a strategy to fight the organizing drive and to counter union arguments (legally!) in meetings with their employees.

• An apparent shift in union strategies toward organizing smaller companies — and even subsets of employees within those companies — based on the allowance of the micro-bargaining units above. Again, an illustration here is the Macy’s unionizing drive above.

• A new joint-employer ruling by the NLRB that will require employers who use staffing agencies to enter into multi-employer bargaining agreements if the employees of both entities organize into a single bargaining unit.

The NLRB decision allows the contingent staffing company workers to join with the primary employer’s workforce in creating these bargaining units without consent from either employer.

While a Wall Street Journal headline earlier this year noted that “New NLRB Election Rules Haven’t Helped Unions Grow as Expected” yet, there is little reason for companies to let their guard down at this point.

So what does a company need to do in response to this activism at the federal level? The primary requirements are as follows:

• Train all managers and supervisors concerning what to watch for in their workforce that might give them advance warning of potential attempts to organize employee units, and remember that it doesn’t have to be the entire organization!

• Have at least a rudimentary plan concerning what information needs to be disseminated to your employees immediately upon learning of an organizing vote. Create the materials and have your attorneys ensure that those materials are within current legal limits.

• Help managers and supervisors develop talking points concerning the negative aspects of unionization that they can use immediately if union discussions come up at work. For example, the manager can note that skill level and performance will not allow employees to move up in the organization under most union contracts. The only determinant of promotion in many unionized organizations is how long the person has been at the company. So a hard worker won’t gain any advantage in a union contract-driven organization.

With all due respect, if you don’t prepare for the possibility of a unionizing drive at your workplace, you probably deserve what you get.

John Hendon is co-author of a human resource management book and a senior instructor in human resources and management at the University of Arkansas at Little Rock. Email him at JRHendon@UALR.edu.