february2021 - 14

THE LABOR LAW ADVISOR

Unions at the Crossroads
IT'S WELL KNOWN the majority of U.S. workplaces today operate union free. The unionization rate of
American workers currently stands at 10.3%. In non-government workplaces, the percentage is only 6.4%.
This is the lowest percentage of unionized workers since the passage of the National Labor Relations Act
(NLRA) in 1935. The lack of a union in the overwhelming majority of workplaces has understandably led
to a major decline in knowledge about unions by both employers and employees. Yet surveys show that
younger workers, especially millennials, lacking first-hand knowledge of unions, have a positive image
of unions. It has not, however translated into increased numbers in the union ranks. At least not yet.
Unions' continued relevance in
today's workplace is clearly at a crisis
point. Their very existence is at stake.
Their only option for survival is to
increase their numbers through successful organizing. It has been anticipated
that a Biden administration would
give union organizing a major boost by
passage of the Protecting the Right to
Organize Act (PRO Act). The proposed
law would dramatically tilt the playing
field in favor of union organizing.
A Democratic administration
will likely ensure the appointment of
pro-labor members to the 5-member
National Labor Relations Board (NLRB).
That federal agency regulates essentially all relations between unions and
employers. A pro-labor majority on the
NLRB will help facilitate organizing
activity in a variety of ways, not the least
of which are a return of the " quickie "
union election and much stricter
limitations on employers' responses to
unionization efforts.
Employers who lack the necessary
knowledge and experience regarding
permissible conduct during a union
organizing campaign frequently engage
in activities found to be unlawful after
the fact. Such conduct often constitutes
unfair labor practices (ULPs). ULPs can
result in an nullification of an employer's
election victory and the ordering of a
new election. In circumstances where
employer conduct is particularly egregious, the employer could be ordered to
bargain with the union regardless of the
election outcome.
In most cases, well-intentioned
supervisors or managers who are simply

FEBRUARY 2021 ■

unaware of the strictures that apply to
employer conduct, engage in the conduct
ultimately deemed unlawful. The lack
of proper training on how to lawfully
respond to union organizing activity too
often results from lack of training due
to employers' aversion to preparing for
something viewed as unlikely because
union organizing has never occurred
before. Most believe an organizing
attempt is such an improbable event that
it does not warrant the time and effort
it takes to invest in such preparations.
The proper training of first line
supervisors is a critical step in being
prepared. Through their daily interaction with the employees, they are likely
to be among the first to become aware
of unionizing efforts. Their training
should focus on what a union can mean
to the workplace, as well as the types
of conduct prohibited by the NLRA.
The acronym " TIPS " describes generally the unlawful conduct supervisors
should be trained to avoid. TIPS stands
for " threaten, " " interrogate, " " promise, "
and " spy/surveil. " These are the primary " dont's " for employers and their
representatives in a union organizing
campaign. Without a proper understanding of what conduct violates the
rules, violations are certain to occur.
The conduct that TIPS addresses
is fairly straightforward. Threatening
employees that something negative or
adverse will occur for supporting or
voting for the union is clearly unlawful.
Similarly, asking an employee what they
or others think of the union, or how they
intend to vote is unlawful interrogation.
Offering something of value such as

www.CPAPracticeAdvisor.com

a promotion, pay raise, or increased
benefits to employees to refrain from
supporting the union would constitute
an unlawful promise. Finally, attempting
to monitor union meetings or gatherings constitutes unlawful surveillance or
spying.
In addition to educating supervisors and managers in how to respond
to union organizing, Section 8(c) of the
NLRA permits employers to lawfully
inform employees of a wide variety of
union-related facts, provided it is not
conveyed in a coercive or threatening
manner. This includes such critical
information as the fact that if successful, the union becomes the exclusive
representative of all the employees,
whether they like it or not. They have
only one voice, that of the union. What
is ultimately agreed upon in the union
contract will be the terms and conditions of employment for everyone.
This is the case even if some of the
terms are less than what they enjoyed
before unionization. Employers are
permitted to tell employees that if negotiations are unsuccessful, the union may
call a strike. As union members, they
would be required to follow the union's
directions to strike or could be subject to
fines from the union. Employers also can
and should inform employees that in an
economic strike, employees are subject
to being " permanently replaced. " The
employees are not fired or discharged,
but simply replaced by someone who
wants the job. They can only return if
the replacement employee leaves.
Avoiding a union organizing drive
is never totally within the employer's

RICHARD D. ALANIZ

Senior Partner
Alaniz Schraeder Linker Faris Mayes, L.L.P.
ralaniz@alaniz-schraeder.com

control. Often, a particular industry or
employer is targeted by a union. The best
defense is to have a workplace where the
union message cannot take root. While
there are a variety of reasons why any
particular workforce responds positively
to a union appeal, among the most
common reasons are: 1) lack of appreciation - feeling that the employer does not
really care about them; 2) lack of feeling
" in " on things related to them and their
workplace; and 3) lacking a supervisor
or manager who is willing to listen and
be understanding. There are no doubt
innumerable factors that contribute
to employee dissatisfaction, including
failure to pay competitive wages and/
or benefits, insufficient time off, unfair/
inconsistent discipline, etc. However,
in general, the three items cited above
represent the primary drivers of worker
dissatisfaction, which can open the door
to union organizing.
Fortunately, there is a relatively
simple answer to addressing those three
most important factors for maintaining
employee goodwill. Each can and should
be addressed every day that supervisors
and managers are in the workplace.
Making employees feel appreciated
does not require a significant effort. A
sincere daily greeting, a " thank you " for
a job well done, and similar expressions
of goodwill can make a world of difference. Similarly, sharing information
on matters that affect them and being
receptive to their issues and concerns
take only the will to do so. Each day that
managers and supervisors take the time
to genuinely interact with their employees, they help your workplace remain
union-free. ■

http://www.CPAPracticeAdvisor.com

february2021

Table of Contents for the Digital Edition of february2021