VANNOY:

Unions are gaining popularity, what employers can and cannot do about it. Okay, I’m gonna just confess right from the jump. This is a provocative subject and I’d say a provocative title. It it, but it’s an important topic that we need to discuss. I, I think first and foremost, this is not a political show. We know people feel really strongly, pro-union, anti-union red, blue, left, right? I, I don’t care about any of that. The show doesn’t care about any of that. We’re just here to supply the very best information we can to employers. And I think, you know, spoiler alert here, if you treat your employees with the utmost respect, you pay them fairly. You treat them fairly, they feel they’re being treated fairly. It doesn’t matter whether you’re in a union shop or not. 

You’re kind of golden. And, and that’s, that’s really the, the intent here. So to help me unpack the topic a regular guest on the show, many of you know him. Brian Shenker, he’s an attorney at the Long Island New York office of Jackson Lewis. Brian’s practice focuses on repeat representing employers in a wide range of workplace matters, as well as preventative advice and counseling. Brian has extensive experience defending class and collective action lawsuits under federal and state wage and hour laws, 80 successfully defended wage and hour audits conducted by the US and New York State Departments of Labor. Brian regularly handles cases before courts and administrative agencies involving claims of discrimination, sexual harassment, and retaliation. Welcome back to the show, Brian.

SHENKER:

Thanks for having me, Mike.

VANNOY:

All right. So before we get into some practical do’s and don’ts that I think all employers really need to take serious re regardless of, of, of how big or small you are. We talk all the time on this show there, there’s a sea change, right? Where in the, you know, going back to the FIT 1930s, you had the Fair Labor Standards Act first giving, you know, child labor protection overtime the sixties with civil rights, the seventies with workplace safety, osha in the, in the, the federal laws started to accelerate. And then they started fracturing into becoming state and local laws where it’s becoming increasingly, increasingly complex. But the, the, the, the, the sea change is clear. That power shifting from employer to employee, which really kind of think hits on the heart of this whole unionization issue, right? It’s how do employees have bargaining power? How do, how do, how do employees have negotiating power and represent representation with quote unquote management? Now, that might feel like a big company thing but so many factors between complexity and compliance, the war for talent hitting Main Street this is increasingly becoming a smaller mid-size business issue. What, what, what do you have to say about the topic?

SHENKER:

Yeah, absolutely. I think that you know, if you were to look at overall trends, you know, over the last 50 plus years, you might think that you know, organized labor is declining and less of an issue. You know, I think in 19, around 1950s you know, about 38% of the workforce was unionized. And now it’s you know 10, 11% in the private sector, it’s even lower, you know, six or 7%. So, you know, unions have been on the defensive for some time, but in the last couple years, we’ve seen a couple things. One, you know, union favorability you know, the general public’s, you know, favor, you know, favorable rating towards union is very high. I think as of 2022, it’s about 71% of Americans approve of unions.

VANNOY:

And, and that’s, and at the same time we’ve started, that’s a lot, right? Pre-pandemic. We were in the upper mid sixties, I think. So this is a big jump,

SHENKER:

Right? Exactly. It’s up from the, the sixties. And again, you know, what, what we have are also, you know, increase in union election petitions filed. And, you know, so we’re seeing a lot more you know, activity too right now. And, you know, it’s not just you know, the typical players, the big labor unions. We’re seeing, you know, grassroots campaigns, you know, for example, at, you know, Amazon the Amazon Labor Union, the A L u was started by a former you know, warehouse worker. You know, so we’re starting to see, you know, trends where, you know, it, it, it’s not as we typically saw, you know, in manufacturing, we’re seeing more in hospitality and retail. And you know, part of that I think is, you know, unions are looking at the decline in membership. They’re, and they’re looking for different areas different prospects for be staying relevant and they’re having success.

VANNOY:

Let’s maybe just kinda back

SHENKER:

Up, yeah.

VANNOY:

So, Brian, what, why, so again, no union bashing here. Why might an employer not want, just so everybody understands kinda the purpose of the, of today’s topic, why might an employer prefer not to have their shop unionized? What, what are the, what are the pros and cons?

SHENKER:

Yeah, absolutely. That, that’s a great question. And yeah, there, there, there are a number of reasons, you know, why, why a company might necessarily not, you know, want a union. You know, some of the issue there is it, you know, you, the employer has much less flexibility in dealing with employees whereas, you know, without a union, you know, an employer and management might be able to go directly to the employees and discuss issues oftentimes, you know, that’ll now involve a union rep. If, if a union’s in there you know, sa same way, you know, scheduling flexibility oftentimes, you know, the collective bargaining agreement will establish, you know, how schedules can be set limits on them. And whereas, you know, the, the employer loses some of that freedom that they may have otherwise had. So you can see, you know, just that general flexibility in running the operations, you know, whereas, you know work rules now would replace, you know, some common sense managerial judgment decisions.

 And, you know, other issues like, you know, when, when you have a union, typically you know, collective bargain agreements will place a lot of importance on seniority. So, you know, seniority might apply to, you know, certain positions or layoffs and, you know, look, it, it could in some instances you know, impact the company’s ability to use, you know, the best people, you know, most effectively. And then in general, look what a lot of companies say is the result of unionization is the feeling, a broad feeling of, you know, an us versus them type situation, right? Where the, the work atmosphere becomes, you know, more formal and to some extent maybe less cooperative. And, and again, look, these all aren’t, you know, these aren’t the rule, you know, certainly there are union employer relationships that work perfectly fine, but you know, in general, these are some of the trends you would, you might see with a union. Yeah, you

VANNOY:

Know what,

SHENKER:

And so I think flexibility is, is probably the key.

VANNOY:

Then when you’re the employer, it’s like, okay, I, I prefer the flexibility to be able to negotiate and work directly with my employees without a mediator. That seems to be the, the fastest, most effective path to communication. But sometimes I can feel a little lopsided if you’re on, on, on the employee side, it’s like, okay, the employee has all the power here. I’m nodding in agreement with you, but I think this is crazy. I don’t agree with what you just did for the schedule change, the covid response pay cut, the, the change to the benefits, whatever the case may, may be. So to me in a, in, in a, in, I don’t wanna go too deep off here, but I feel like low unemployment, and because when unemployment is really, really low, the, the employee has more power cuz they can vote with their feet, right?

They, they have, they have choices that they can go work for somebody else in, in, in better conditions when unemployment’s really high, the employees don’t have that power. But between really low unemployment is seems to be the ongoing pervasive trend. And I would argue that’s gonna stay that way for a long time. And in states and local municipalities passing their own version of federal laws for to prevent discrimination, in fairness, in transparency in, in, in equity it seems as though the marketplace, aka unemployment and the government state locals are starting to take a little bit of the role that unions used to. Can you comment on that?

SHENKER:

Yeah, look, and I, I think that’s perfectly stated, and it really gets to the point of this, you know, concept of, you know, positive employee relations that, you know, when employees have issues, right? Whether it’s discrimination or sometimes it’s not even discrimination, just employees don’t feel they’re being treated fairly. And that can lead to, you know, a potential discrimination claim. Or you know, we see, we might see, you know, unpaid work, you know, unpaid wage claims. So, you know, when employees have issued workplace issues, they have several options. And the first option, which is what companies typically, you know, want to ha to occur is that the employees go to the company for, for that help, right? Or for an issue to their supervisors, managers, hr. And if the company listens and, you know, communicates effectively and responds to those issues, that’s usually the end point.

You know, these problems are resolved but when a company, you know, maybe doesn’t have an open door policy or doesn’t timely address issues, then exactly right. They’ll, they’ll go to places like the E E O C or the Department of Labor or other state agencies and then that puts the, the company on the defensive, you know, they can also, employees can also go to a private attorney for these types of issues resulting in a lawsuit and, you know, negative publicity for the company. And right now, a third option, the one we’re discussing today, is they can reach out to a union or start organizing themselves. And, you know, that is the one, you know, part of these, these options that can have the most wide ranging effects where it’s not then just the employee you know moving forward to resolve their own rights, but a potential situation where it’s, you know, going to impact, you know, a whole set or a whole subset of, of workers. So the way I see, you know, as we have more expanding state laws, touching all, all different areas whether it’s, you know, pay transparency, discrimination the employers that are responsive to that and deal directly with their employees in, in a good manner, in a positive manner and are responsive you know, typically if a company is doing that, you know, there’s not a need for employees to organize because they’re feeling their voices are heard, they’re feeling respected, right? And so, yeah, I, I think that’s, that’s critical.

VANNOY:

So there’s a paradox right now then, because on one hand, the government is increasingly advocating on behalf of the employee. So more protections whether it’s transparency and wages whether it’s minimum wage laws, I mean, I don’t know how many hundreds of them there are. When you get it down to local jurisdictions, clearly the, the, the, the trend here is for government providing more protections, more advocacy for the employee. When you combine that with the power of the employee being able to vote with their own feet, because unemployment, you know, 3.6 ish percent hey, if you don’t like it, here you go somewhere else because there’s, there’s more job openings than there are workers in the US right now. How do you, how do you, how do you rationalize those two things with the fact that the popularity for unions is still increasing? I would’ve, I would’ve kind of thought those two things would be an offset that, oh, you know what, we don’t need unions as much, and again, not disparaging unions, but you would’ve, I, I would’ve, I would’ve expected the marketplace to say, okay, don’t need it as much. But yet, despite those kind of major market forces, it’s still rising in, in popularity. Why do you think that is?

SHENKER:

Yeah, so I think that, you know, we’re, we, we see, you know, a number of issues being the, the you know, the top ones that are, you know, the main cause of, of unionization. And I think, you know, some of these are somewhat, you know, fall through the cracks of where, where the laws are. You know I think many companies, employers think that, you know, wages and benefits are probably, you know, the, the number one and two issues for, for employees in terms of, you know, organizing. But tho those we find are, are pretty, are lower on the list. And that, you know, the main issues might not necessarily, you know, be those, but, you know, mistreatment by supervisors. So, you know, even if a company is abiding by, you know, an, you know, anti-discrimination laws but you know, employees aren’t feeling respected by their supervisors or they’re not feeling that, you know, there’s a fairness in terms of employment decisions such as, you know, discipline or promotion or, you know, lack of communication about those employment decisions.

Tho those are often the main drivers for employees to you know, organize. And again, it, it could be an employer, for instance, you know, when we talk about, you know, when we hear about, you know, the Starbucks and the Amazons, you know, those, those companies, they’ve got strong legal departments, they have strong HR departments. Yeah. Right? They know what the laws are in all the areas they operate. You know, they’re not necessarily you know, violating those laws, you know, discrimination laws or others at a higher rate than, than other companies. But what often is the case is this issue of, you know, the direct line supervisors and how they’re dealing with, with these workers is often, you know, both the key in making employees happy and the key in driving them elsewhere to the government, to lawyers or to unions to seek, you know, the, you know, that respectful treatment that everyone really deserves. And, and so I, I think, you know, that’s, you know, we, we often say it’s the supervisors that, that are going to, you know, cause you liability for, you know, discrimination, retaliation, it’s supervisors that, you know, need to track, help you track hours and understand the laws. And certainly in this context, you know, it’s supervisors who, you know, make or break the workers’ experience at, at the company. And when it’s a negative experience, you know, workers will talk among themselves, look elsewhere, right. And, you know, unionization can often be the result.

VANNOY:

Yeah. I just think you hit, hit, hit the nailing head so hard here. So whether if you’re a small business owner, you’re, you’re a an executive of this small, mid-sized business, and you’re like, Hey, this topic doesn’t apply to me. I mean, there’s no no way we’re gonna get unionized. The thing you need to hear here is the reason employees are seeking unions, the, the, the most common reasons. It’s not because they, they’re looking for a pension, and they’re not looking for better benefits. They’re not looking for wages. Those are, those are nice to have. It’s about fair treatment. Right. And I’d like you to, to speak to this. My, my thinking, Brian, is that even though your business may not be at risk of being unionized, and it’s probably a bigger risk than you realize, but even if it’s not, you are, your risk is losing your current employees or potential candidates to companies who are employee friendly. Is that a fair way of saying it?

SHENKER:

Yeah, absolutely. Absolutely. And you know, a a lot of it is, you know, and if you listen to you know, people interviewed coming out of the, you know, all these, you know, Amazon and Starbucks unionization attempts or, you know, successful elections at, at many of the the Starbucks you know, you, you hear things like that, that you know, that the workers are saying that, you know, they don’t want these to be short time jobs. Right? You know, often we think of, you know, those warehouse workers or a barista, Starbucks is, you know, a short term job. And a lot of times that turnover is driven by the same factors that are driving, you know, employees to organize now, right? The, you know, whether it’s you know, a lot of the reasons we heard for, for Starbucks over the pandemic were, you know, shifts were being understaffed.

 You know, there was there was incidents of aggression towards employees without, you know, company response. You know, th there they were focusing on not, not just better wages, but you know, better distribution of labor and, and security. And so, you know, these employees are ones where, look, I think all companies can agree where that, you know, an employee staying longer is less costly for the company. Turnover is costly. So we want workers to stay longer. And so these same, you know, issues that become problems for the employees and drive them to be turn to unions, they’re the same things that if a company corrects them and and has a positive result, that it, it’s two things. One, there may not necessarily be a need for, for the union because the employees are getting directly from the employer, you know, what they want.

 And number two, they’re, they’re going to stay longer. You’re not going to see as much turnover because you know, now you have a better, you know, workplace situation. And I, I think, you know, what we’ve seen in, you know, for, you know, Starbucks for instance, you know, those stores have been organizing on a one by one basis, meaning, you know, it’s not groups of stores, it’s single stores you know, that are organizing. And, you know, you know, we saw this, I think in, in the Midwest around Chicago, that, you know, there were a few Starbucks that that organized that had elections, and then a smaller coffee chain there with a few locations they organize. So these are things where, you know, employees are seeing this, they’re, they’re seeing that they have a bigger voice now that there is something they can do that, you know, if the employee’s not gonna listen to them, you know, we can listen to each other and, you know, reach out to you know, an organized union or like, you know, the instance I brought up in Amazon, right?

The the first Amazon location that had a union that had the union election you know, in favor of, of the union was in Staten Island, New York. And that was led by a former Amazon employee at that warehouse who had been terminated in, in March of 2020. And then, you know, he said, I, I, I’m gonna set out to help these other workers, you know, fight for, you know, the various issues that, that we don’t think the company is addressing. And so, you know, those take off and, you know, it gives employees, you know, much more you know, confidence to do this. And, you know, we’re seeing a lot of these unionization efforts, you know, being led by, you know, gen Z and millennial workers, which, you know, is a brand new thing for, for us, right? That’s, that’s, you know, not what you think of when, when, when you think of union organizing. But, you know, we’re seeing it, you know, now at Trader Joe’s Chipotle. You know, it, it, it’s, you know, and so these are individual locations. So that means for any employer out there thinking, this can’t happen to me, yeah, you know, it, it, it can, so, you know, your employees, if they’re unhappy there, there will be action whether them leaving or, you know, potentially, you know, organizing to get those better benefits.

VANNOY:

This is so important that I just want everybody to really understand. So we’re, we’re, we’re dropping brand’s, dropping big names, Chipotle, Starbucks, Amazon, household names, could we recognize those? But the org, the labor organization is not happening at the corporate entity level. It is happening at the local level. The reason you don’t hear about union unionization for the 15 person company is because no one’s heard of the 15 person company doesn’t make headlines when it happens at Amazon, even though it might be a 15 person location. It makes headlines. But the, the, the seriousness, I’m not, I’m not gonna say the threat cause I really don’t, I really want to, I don’t want to talk badly of unions because they, they, they serve their purpose in, in, in, I think there’s this, there’s this ecosystem of balance of power, of employer power of employee, and how they can coexist together each being treated fairly, and that in each one’s needs being understood fairly. But so, so let’s, let’s, let’s jump right to it. I wanna talk about some of the do’s and don’ts. What happens if you’re an employer and you just hear the first little whisper that maybe this is an issue. Maybe, maybe it’s a single employee that is being vocal. Maybe there’s an email, maybe there’s a, a huddle happening around the water cooler that, that you’ve caught wind of. Walk us through how you, as an employer should, should address this. As soon as you, you hear that, that there’s, there’s discussions starting,

SHENKER:

Right? So, right. Obviously, as we discussed, but before any of this occurs, you should be trying to establish, you know, positive relations with employees, not just as for the purpose of, you know, potentially, you know, for a company that doesn’t want a union to come in, but just as for all the reasons we’ve outlined, it’s, it’s a positive thing, but Right. What if you spot, you know, employees, you know, asking you questions about unions, you know, rumors of groups talking, you know, at meetings and outta the way places, you know, some of those telltale signs that something is occurring. Yeah. so what happens in the union organizing process is that there’s a so-called secret phase. And this secret phase is where a union needs to obtain a showing of interest, they need to establish a showing of interest. And that essentially means that they have at least 30% of the proposed unit that they wanna organize in favor of the union.

So how do they do this? It’s essentially through these things called authorization cards. They can take many different forms, but you can bet that if you’re hearing rumblings of a, of a union or employees starting, you know, question, you know, unusual questions about workplace policies or anything like that, what likely is occurring, you know, unbeknownst to the company, is that this secret phase has already begun that, you know, whether it’s employ, you know, something like the Amazon Labor Union you know, where it’s, you know, an in-house group or if it’s an already established, you know, union, like, you know, the teamsters, right? They’re, they’re coming in, they’re speaking to, to your employees, and they’re getting them to sign these authorization cards and those cards it, it, they really don’t say much, if anything, legally, it’s really just, you know, contact information for the employee.

You know, it could be a three by five postcard, you know, nowadays. It, it could also be online acknowledgements. And, you know, sometimes it’s very unclear to, you know, to the workers, you know, the legal impact of what they’re signing. But these things are going to be what the union uses to show they have at least a 30% you know support of the bargaining unit, which then lets them go to the National Labor Relations Board and petition for an election. So, you know, what, what should a, you know, company be doing? Well, at the same time, you need to understand what, what the union is likely doing, right? So, yeah, the, the union in, in getting these cards is going to be discussing, you know, the negative parts of the company, right? That the, the issues that, that we discuss, you know managerial, you know mistreatment or unfairness or, or wages.

And so the union’s gonna be talking up the other side that, Hey, we can help you get these things that the company is unwilling to give you now. And so you know, what the company, you know, needs to understand is you know, what, what we can and, and cannot do in, in response to that. So we, we use an acronym called foe, f o e, which means, you know, a company can provide, you know, facts, opinions, and examples, right? That’s, that’s permitted for when we call it free speech. It’s not so much free speech in this regard. There are many restrictions on what employers can do when discussing unions. And you know, what, what we look at this is that, you know, a company should be, you know, the goal here is to provide information, right? The same way a union is providing information, you know, the company should provide in information.

 You, again, we’re not saying this is anti-union, but for instance, you know, facts, you know, the company can provide, you know, facts about, you know, what the situation is that, you know you know, some of these might be, you know, negatives, right? That, you know, for instance, negotiations are, are risky, right? Wages and benefits can go up or down, you know, it’s all on the table. Yeah. Another example is, you know, union elections are decided by a majority of those who vote and choose to vote, which is often why, you know, why, you know, employers and unions like, you know, push for, you know, as many people to vote. Because even those in the potential bargaining unit who don’t vote, you know, will be bound by the result, you know, of, you know, electing, you know, to go with the union or not.

Yeah. and then, you know, the employer can, you know, offer opinions, right? You know, but for instance, you know, you, you know, and it’s not an opinion to say, you know, my opinion is you, you’ll be fired if you support a union. Right? <laugh>, that’s not an opinion. That is a threat. And as we’ll get to, yeah. You know, that’s not something that’s permissible. But, you know, an example of of a, an opinion would be something like for instance, you know, you know, I don’t believe a union is in the best interest of, of our companies, something like that. Again, I’m not saying that’s a fact, but you know, that that’s an example of an opinion. Ok? you know, examples, again, you know, an example can be a supervisor sharing their experience, you know, with, with unions that you know, I worked in a plant that had a union and X, Y, and Z, right? Th those are, those are examples. And so really the, the overall arching, you know, theme here is that if, if you’re an employer and there’s, you know, rumblings of org, you know, union organizing that, you know, they’re, they’re, they’re basically the one key thing is tell the truth, right? You’re gonna be direct and tell the truth. And of course, you know, employers most likely going to be positive about the company. Yeah. and you’re going to answer employee direct questions directly. You know, this is something where Brian is there is

VANNOY:

There a formal way in which this so FO’s the facts opinions, examples mm-hmm. <Affirmative> is there any formal way in which an employer should be communicating these documenting the fact that you’ve communicated them in this whole process? I, I think, I mean, I, I feel completely ignorant. I, I have no idea. I have no idea what the actual steps are for employees to unionize, and when is there a, a legal stamp put on that? That’s a, it’s a done deal. I would Right. Probably note that you, you should expect with 100% certainty, the organizers on the other side have labor attorneys who know exactly what that process is, and they are working that process. So probably smartforce to get smart on this process.

SHENKER:

Yeah, exactly. So, you know, what we’ve been talking about is, you know, the rumblings, right? So that, you know, when, when you hear those rumblings, you know, before any petition has been filed, you know, again, it’s going to be mostly informal discussions, you know, between the direct supervisors and the workers. And so, right. It’s absolutely imperative that those supervisors understand what they can and cannot say. Just as you said, you know, the union organizers for sure, they, they know what they, you know, they have the experience, right? Right. They know what they’re permitted to do. And, and that, so it behooves the company to, you know, seek counsel, seek guidance on when, how, how they can say things. But look, that, let’s move it forward, right? So after these rumblings, now you have a, a, you know, the, the union has, you know, they, they’ve garnered enough support.

They have at least 30% of this, you know, let’s say it’s a hundred person warehouse. So they have at least 30 of those workers who have signed authorization cards. What’s next for them is they’re gonna file, the union’s going to file a petition at the National Labor Relations Board seeking an election. Most likely, if the union has done that, they have far more than the 30% support, and most likely a majority support. And at that point, you know, you, the employer, you’ll get notified that there’s been a, a petition filed for an election. And basically within about two weeks or so there will be, you know, a hearing with the National Labor Relations Board to discuss, you know, what that election will look like, and you know, when it will take place. Typically, you know, the, the union and the NLRB and the employer, they, they, you know, they agree upon these terms, right?

That the election will take place on X state. This, you know, how it will be done. And, you know, it’s usually a, it’s some type of secret ballot election. And, you know, typically, you know, there’s, it’s not set in stone. But, you know, my best estimate is, you know, after that you know, that hearing and the petition filing, you know, we’re talking about maybe 30 to 45 days approximately again until that, that election occurs. So that is the time period. Then those 30 or 45 days where the employer and the union are both, can both start providing information. So, you know, some call it a, a campaign but basically, you know, this is the time when, you know, the employer can tout, you know, their look, you know, this is what, you know, we’ve done, you know, many employers will say, you know, for instance, you know, look at the positive impact when we, you know, directly deal with you.

And, you know, they might note how it could become more difficult if, you know, having a union. So, you know, that’s when, you know messages and information is gonna go both ways from both the union and the employer. So, a again, informal discussions by, you know supervisors, but also, you know, the company can call meetings. The company can have meetings and provide information. They can provide, you know, pamphlets to to workers. Again, you know, there’s limits on that. You know, just as we have the, the foe, f o e as permissible speech, the facts, opinions and examples we, you know, we have another acronym for what employers should not be doing during this time period, these 30 to 40 days. And that’s tips t ips, right? So, do not threaten workers. Do not interrogate workers. We’re not going to promise benefits to oppose the union, and the company should not be, you know, spying on employees union activity.

 And, you know, we can get into those, but just so you know, employers out there have an understanding of how serious this is, you know, violations of these rules, right? For instance, if if there’s evidence the company is threatening employees or interrogating them you know, viola, these are violations of the National Labor Relations Act that if it’s bad enough, the NLRB could rule that we don’t even need an election. The union is now recognized, right? So that, that’s how, you know, that’s, you know, the biggest impact. I mean, obviously there are smaller, you know, repercussions too, but you know, that’s a potential repercussion for unlawful activity. If a, if an employer is, you know, opposing this campaign with unlawful conduct, that there won’t even be an election. So it is very important to understand what can and cannot be done.

Now, that being said, you know, we would not recommend that employers, you know, sit there idly, because to do that means that the only information employees are receiving is from the union. And, you know, that perspective may be fine, and that, you know, they might be saying, you know, truthful things, but then, you know, on the other hand, you know, the, the company should make sure that, you know, it’s a, you know, it’s opinion that it’s thoughts are, are heard by employees, so that, you know, in voting whether to unionize or not, you know, like, like in anything, like in a political election there, right? You wanna know both sides. You wanna know what you’re, what you’d be voting for, and what you’d be voting against. And so that’s the, the, the important part of that, you know, the 30, 45 days that a company is, you know, providing appropriate information and not going outside the bounds, as you know, you know, and just, for example, going back to, you know, Amazon for instance, you know, there have been, you know, allegations thrown both ways in some of those union unionization attempts that the Amazon Labor Union did, you know, engage in impermissible conduct.

And, you know, same thing, you know, they’re, they’re alleging Amazon did the same. And then, you know, those types, types of arguments get dealt with at, at the N L R B.

VANNOY:

All right? So you’re in the employer, you’re hearing news from the break room that there, there’s talks of this happening. You, you, you use the acronym FO facts, opinions examples. You socialize this, you get in front of it. You don’t wait, because I, if you have employees that are talking to a, a a A A, an organized union, they’re gonna understand the legal process. And so you need to get in front of it, start communicating in a thoughtful, transparent, truthful, legal way. Of course, I hate the way to say that, but I think that’s obvious, right? Once they have engaged in filed petition you’re talking a coup two, three weeks, and then there’s a, a, a, a, a meeting with the National Labor Relations Board, and then it’s a month or two before there’s a vote. And then that’s the determining factor, whether you’re shop’s unionized or not. Am am I saying it right?

SHENKER:

Exactly. And all that, they, the union needs to win that vote is 50% plus one employee, right? So if, you know, easy example, a hundred employees, they need 50 plus one. So they need 51, you know, a basic, you know, majority there. And then, right. And then, you know, we we’re not gonna get into collective bargaining necessarily here. Yeah. That’s a whole nother story. But right. Assuming the, the union would, you know, win the election, then the next step is, you know, the union and the employer coming together and negotiating a collective bargaining agreement that covers, you know, terms, conditions, benefits, you know, all that stuff. And you know, that I, I think the latest numbers on that o on, you know, collective bargaining for a first contract is that, you know, that usually takes, I think it’s over 400 days now.

So we’re talking over a year. Hmm. so, you know, and, and that’s one thing that, you know, companies may often point out, you know, to, to employees during this informational campaign, we’ll call it, is that, you know, if you vote for a union, right? It’s not gonna change benefits tomorrow or the next day. It, it could be, you know, a long period of time before you know, anything has changed. And, and that’s just factual because, you know, just because a union is now representing employees, it does not mean the employer has to agree to any terms, right? So that’s when there’s a negotiation, there’s the trading of, you know, for instance, you know, what’s the priority for the union, what’s the priority for the company? And, you know, there’ll be trade offs, and, you know, that’s just natural in any negotiation.

VANNOY:

Yeah. So really, it’s, it doesn’t mean everything, it doesn’t mean everything changes, and all of a sudden you have to offer a pension. What it does mean is this is the new beginning for any changes. Changes to compensation, to scheduling, to benefits are gonna have to go through a new process, right?

SHENKER:

E exactly right. The, the main thing, and I we touched on this before, is that once the union’s in play, even if the employer, you know, you have a collective bargaining agreement now as the employer, you, you want to give people raises. You cannot just unilaterally give people raises. That needs to be bargained with the union. Any terms of employment need to be bargained. So, you know, you know, obviously, you know, not, not so important if you don’t have a union now. But again, in terms of those repercussions, you know what the differences are? Once a union is there, is that, you know, the employer really loses a lot of the ability to unilaterally make decisions, even if the employer thinks they’re beneficial to the employees, that it’s still something that needs to be negotiated with, with their representative with the union.

VANNOY:

Okay? So you got your rumblings, you got your facts, opinions, examples, you’re working at the, the, it does, you are notified of a meeting, national Labor relations Board. Now you’re, now you just really formalize your communication strategy, getting in front of as much as you can, that this is no longer just simply ad hoc water cooler probably should be pulling your entire team together. You should be having thoughtful presentations take home materials really, really working this, the, the, the best you can. And let’s say and you, and you said something really important, it’s 50% plus one employee. So if I’ve got a hundred employees and I’ve got 50 warehouse workers that feel they’re not treated fairly, and I’ve got 50 white collar jobs, but all the warehouse folks, plus one person in the white collar world, that that’s all it takes. So it’s, it’s the aggregate population. Hmm.

SHENKER:

So I may have misspoken. So to clarify, it’s, it’s the population of the group they’re trying to organize. So right. In that example, if we have 50 warehouse workers, it would be 25 plus one there. Right? We, you know, they’re not organizing, you know, it would only be to that specific bargaining group. So thank you. Cause I, I probably didn’t clarify that

VANNOY:

Enough. Right? No, I’m, I’m glad I asked it. So are are, yeah. Are there rules there for small business owners then? So if I’m a small business owner, I’ve got, I’ll use that same example, but scale it back. I’ve got, I’ve got 10 guys out on job sites. I’ve got five people in the office. Can the five office people organize separate? Can the 10 people in the field are there employee count limits? What? Take us through that.

SHENKER:

So this is often the the subject of that first hearing at the NLRB where there might be disagreement between, you know, the union and the employer over what the appropriate bargaining unit is. And there might be reasons on both sides, you know, for instance, a union knowing that they have the support of certain, you know, a certain group of warehouse workers that, you know, do one particular thing, right? They might wanna seek an election of just that subgroup, right? Mm-Hmm. <affirmative>, you know, we’re talking about, you know, that could objectively be defined as a subgroup. You know, they can’t just say, well, we have a hundred warehouse workers. We only wanna organize half that, that you know, favor. So we’re not talking about that, but we’re talking about, you know, distinct populations, distinct, maybe

VANNOY:

Hazard 20% of that hundred warehouse workers handle hazardous materials. And so there’s a clear distinction, is that Right?

SHENKER:

Right. And, and so often you have, right, the union might know they have the majority support of that subgroup, right? Of those 20. And then you can imagine the, the employer would take the position at the NLRB that no, no, the appropriate bargaining unit is, you know, the whole a hundred people in the warehouse, because maybe the employer thinks that if it’s expanded to all those people, that the employer has a better shot, you know, that, you know, more people will vote against it. So you can see it’s kinda you know, I, I guess I would almost draw the comparison to, you know, gerrymandering in political elections, right? It’s, you know, you know, what, what’s the group that we’re gonna be talking about? And, you know, the, the union’s gonna see, you know, a certain defined group that might be more favorable to them.

You know, the, the, you know, the employer might see it differently. And, you know, for example, you know, real world example you know, with Starbucks as I mentioned before, it’s individual stores that have been organizing and, you know, on the union is, you know, they’re typically only, you know, filing petitions at the stores where, you know, the union has majority support. What Starbucks has tried to do is expand the units to multiple stores so that, you know, it’s not just, you know, one store in Chicago that’s maybe all the stores in that neighborhood, or all the stores in that town, because this company thinks, you know, Starbucks think it might be able to, you know, get more no votes than yes votes in that broader population. So that, those are some of the issues that are resolved. And, you know, a lot of times agreed upon you know, at that initial you know, NLRB hearing. So, and you know, there, those types of issues are just as important as, you know, these other messaging issues. Cause it’s, you know, who’s gonna be voting.

VANNOY:

So in hr, we’re in peril and HR world, we’re so used to like the definitive lines Cobra whenever over what 20 or 2020 employees affordable Care Act, over 50 employees. And there’s really specific rules for number of employees and how to calculate FTEs to get to those number of employees. I guess what I’m hearing you say here that that’s not the case. It’s up to the national Labor Relations Board in that hearing to decide what is the, what does constitute an appropriate collective

SHENKER:

Group bargaining unit Yeah. Bargaining unit. What’s the unit? Yeah, exactly right. And if the, and look at some places it might be, you know, it might be very clear and, you know, for instance, at, at a Starbucks it might be clear, it’s, it’s the baristas. And, you know, sometimes that might, you know, involve, you know, some, some somewhat higher level. But you know, these bargaining units, they cannot include supervisors, right? So they’re just the workers. They’re, we’re never including supervisors in these. And so, yeah, you know, a lot of these Starbucks stores, it’s been maybe, you know, 15 people voting and, and others it’s, you know, 30 people voting, you know, at Amazon when we have a whole warehouse voting, I mean, it might be a 8,000 person bargaining unit, and we might have, you know, four or 5,000 of those people voting. So yeah, it’s not necessarily tied to a specific number. We’re really just talking about percentages. Yeah.

VANNOY:

So I think this is really important cuz a a lot of people listening today come from small and mid-sized companies that, again, if they didn’t think this applied to them, they probably aren’t, you know, with us, you know, 45 minutes into the show. But if you, if you are, this is just proof that it could be a relatively small subset of employees that, that, you know, that they, they could be legally entitled to. And if you, if they decide to act and they have the partnership of a well-funded union behind them, who understands the processes, will likely provide the legal assistance and any, you know, at least some, possibly some financial resources. If you don’t get ahead of it, you’re, you’re kind of seal your own fate. You will be negotiating with a union rep, not directly with your employees. Am I, I, I don’t think I’m overstating that, am I?

SHENKER:

No, no, absolutely. And look, I, I think the world we’re in now, it’s, it’s these grassroots com campaigns, which are, are not your typical, you know, union organizing you know, type of efforts over the last, you know, 50 years. And, and I, I, I think the other point is that, you know, these unions are smart, right? They, they’re on the decline. They, they need to, you know, increase membership. And what they’re also doing is they’re tying unionization efforts to other, you know, social issues, right? They’re, they’re not just, you know, focusing on, you know, the workplace issues. They might be, you know, getting into, for instance, you know, black Lives Matters or Me Too issues or other causes. And they’re, you know, increasing awareness about certain issues. And so a lot of times, you know, that’s how these meetings might start, right?

Where, or, you know, say, you know, workplace, you know, safety and that, you know, it’s not really, Hey, we’re a union, we we’re gonna organize, you know, that that’s, it’s not, it can be a bit more subtle than that where, you know, there are issues and people come to talk about those issues, and now it naturally flows from that, that, hey, you know, we can do more than talk about these issues. We can, you know, impact things that will, will affect, you know, your actual, you know, workplace, you know, wellbeing. So you know, unions are tapping into a lot of areas that, you know, they, they wouldn’t have in the past. You know, a lot of these are, you know, they create websites and, you know, employees will go to those websites and some of them give, you know, almost step by step you know certainly instructions outline on, you know, how to organize. So the information is out there more and more now that it doesn’t even take one of these national, you know, you know, recognized, you know, affiliated unions. You know, it can be done much more locally and informally because the same articles that these as an employer you’re reading about unionization employees are aware of this too.

VANNOY:

Brian, last topic, we published a blog recently around this whole concept of the quickie strike. Can, can you speak to just what try to see around corners for us? What, what, what is, what is the trend here around unionization and employees once organized their ability to strike in, in, and and I guess, you know, how much can they flex their muscles, especially in a small business?

SHENKER:

Sure, sure. So I, I think may maybe, you know, one step back, I, I know I’ve mentioned a lot about the National Labor Relations Board, but maybe just a real quick overview, because, you know, that’s directly tied to right, these quickie type strikes too, is that, okay. The NLRB is made up of a five member board and they interpret the National Labor Relations Act and set the rules that regulate you know, specific unionized and, you know, some non-unionized workplaces. And, you know since, you know, president Biden made appointments, you know, they’ve now been a, you know, these board members have now taken their seats and there’s a democratic majority on the board. So we’re seeing, you know, obvious trends that we would expect from a Democratic board more, you know, they’re talking about changing rules in favor of employees and, and unions.

 And so, you know, one of the key people involved in this is the Nlr nlrbs general Counsel Jennifer Abzo she’s a president Biden appointee, and she’s, you know, as general counsel, she’s the defacto prosecutor. She, and she’s announced some of her enforcement priorities and right, one, one of those enforcement priorities is with respect to quickie strikes. So, you know, quickie strikes are something that, I mean, it, it’s exactly how it sounds. It’s not a long strike that we typically think of where the whole work, you know, the workforce is out, they’re picketing and, you know, no one’s performing work for, you know, days or weeks until you know, you know concessions or agreements are made. Yeah. But quickie strikes are when workers intermittently walk off the job for short periods. And these are, can be very disruptive for employers and disrupt productivity because the employees can repeatedly do this, but at the same time, they’re quick, right?

We’re talking about maybe, you know, a number of hours or half a day. You know, these are quick strikes. So the employer doesn’t have the ability to use, you know, for example, replacement workers because these strikers return to work before they, the replacements can be hired under the National Labor Relations Act. Quickie strikes are not protected activity, right? Meaning that a company could, you know, discipline employees as a result. But what, you know, the new general counsel wants to do is narrow the definition of what constitutes a quickie strike, which would then provide workers with more protection to walk off the job intermittently and limit the employer’s ability to discipline them for that. So that’s really, you know, that’s one example. You know, there, there, there are other examples that you know the general council has you know, raised that, that would, you know, could significantly assist unions and, and, you know sway, you know the, the law towards towards unions.

Another example is card check changes. So earlier we were discussing the, the card, the authorization cards, and needing at least 30% of those before signed before the union can file a petition for an election. Now, I guess what I failed to mention is that, that there is another way a union can be recognized. They can go directly to the employer and say, Hey, we have majority support. Will you voluntarily recognize us? And, you know, bargain, the vast majority of the time, employers say no. They, they don’t have to give a reason. They just say no. And then, you know, the, the union has to go the election route. What the general counsel is proposing is changing this rule to be that if the union, you know, tells the employer that it has a you know, a majority support that’s over 50% of union authorization card signed, that there, she’s proposing that it would be unlawful for the employer to withhold its voluntary recognition unless it had a legitimate reason for doubting the union’s majority support.

So basically what, what the change would be with that would be that the, the union could organize without an election, and unless the employer had, would have a valid reason for doubting their majority, the union’s majority support, there would be no election there, there they would be, the union would be recognized, can understand, you know, the, the, the main impact of this is that from the employer perspective, you know, those, we talked about those 30 to 45 days, you know, between, you know, the, the NLRB hearing and the the election, right? That’s the time when, you know, the employer can now kind of give their, send their messaging out there, right? What, whatever that will be. And you know, sometimes oftentimes, you know, people who signed authorization cards, you know, based on what they heard from the union, they might change their mind after hearing, you know, from the employer about, you know, how this might impact the workplace. Yeah. And so, votes change. You know, votes can go both ways. And so you can see how, you know, this could be another, you know, potential change at, you know, at the NLRB that that could you know, benefit unions and, you know, get more recognition with, without even needing to have elections.

VANNOY:

You know, I, I, I’m looking at time and I’m, I’m gonna bring this to a close, Brian. We could keep going for a long time. I, I, I just think about the long trajectory here. And Im, I remember sitting in elementary school learning Upton St. Clair book The Jungle, and how that led to, you know, you got, had little kids getting fingertips cut off, right? I mean, the laws needed to change. We needed the ability to, to, to organize in, in unions I think the 40 hour work week to, to unions, lots of good. And I think since then there’s been a power struggle between employee and employer. Maybe pensions got too big and companies couldn’t afford it, and then employers started getting too much power again. I, I think increasingly, I always assumed that the marketplace, the market forces would of low unemployment and legislation that protects the employee would probably be this counterbalance to, to, to keep both employer and employee e in balance, because they would rely on, on, on the law not fighting against each other.

But clearly there’s support for this. And clearly this is not some fringe thing. We have you know, on the represent legal representation with the National Labor Labor Relations Board openly talking about possibly a quickie strike where your employees could walk out for their, for two hours this afternoon. You miss a deadline on your customer. You lose your biggest customer crushes your business, and you can’t fire anybody over it. The these are, these are not hypotheticals, these are real world situations we are living in. And I guess maybe the, I, I would close with a very non-union. What can you do? Can’t you do closing, which is the sea change is clear power is shifting from employer to employee. And if you don’t see it, not only are you gonna have compliance risks, are you gonna have labor organization risks?

You’re not gonna be able to hire anybody, cause no one’s gonna come, wanna come work for you because they’re gonna choose to go work for companies that pay fairly, treat their employees fairly, that give rewards and advancement, and they have career development. So they’re acquiring new skills so that they can have a career, whether it’s with you, with you, or somebody else. So you know, the old what Ben Franklin announced of prevention worth a pound of cure, I think it’s an ounce of prevention, is worth about a thousand pounds of cure in this case. Cuz if you’re too reactionary in this area, you’re not gonna get good employees. They’re not gonna be productive, and you’re gonna end up in an adversarial relationship negotiating with a union leader, not your employees directly. And that can be damned expensive. So, I may, maybe I’m being a bit melodramatic, but that, that, that’s how I see it. Anything you’d wanna say in closing, Brian?

SHENKER:

Yeah, I, I, I think you’re right, right on point. I, I, I think, look, the, the key that I would I would hope employers take out of this is that, you know, communication both ways between employees and supervisors you know, access to management, responding to employees. You know, it, it’s absolutely imperative, right? If you don’t do that, you’re gonna have a whole host of issues, you know, including, you know, possible organizing. And, you know, I I, there’s a quote by general Colin Powell that I, I think is, is real applicable here. That you know, the day soldiers stop bringing you their problems is the day you stop leading them. And they have either lost confidence that you can help them or they’ve concluded you don’t care. And either, either case is a failure of leadership. Yeah. And you know, that that’s exactly what we’re talking about here.

VANNOY:

Yeah. Great. Always learn from you, sir. Enjoyed our conversation. To everyone else, thanks for joining today. If, if you find yourself in a situation and you want legal help by all means Brian’s firm and Brian himself, this is what they do for a living. If you’re looking for the ounce of prevention that’s where it sure comes in with our HR services. For many businesses who can’t afford a full-time shrm, certified HR professional for pennies on the dollar, we can do this on a fractional basis and give you the compliance support that you need. But as as well as talent acquisition and management strategy to get in front of these issues and really make your employees feel heard and listened to, but not in a gratuitous way that really gets engagement from your work workplace in, in, in, make your workers as productive as you possibly can. Brian, thanks so much and thanks to everyone else for joining.