“You get the union you deserve.”

For decades, labor relations experts and attorneys used these foreboding words to encourage their clients to create positive employee relations and great places to work. Traditionally, companies heeded this warning by offering competitive wages and benefits, making sure the “jerk managers” were identified and removed and conducting employee engagement surveys.

With new NLRB rules of engagement in place, are these tactics enough? Let’s explore best practices from labor experts Terry Dunn of Positive Management Leadership and Michael VanDervort of CUE.

The Landscape

Here’s an overview of the current state of labor relations:

  • Private sector union membership is in steep decline
  • Unions are shifting their focus to the service sector
  • Organizing efforts are increasing in traditionally non-union geographic areas
  • Workplace issues such as minimum wage, scheduling laws and paid sick leave are moving to a state, county and municipal level.
  • More union elections are being held on a smaller scale (micro-units) and are no longer wall-to-wall. For example, it’s possible for just the bakers in a restaurant to organize instead of all hourly workers.

We’re also dealing with the most activist NLRB that we’ve seen in decades – maybe ever. In the last few years, the NLRB has made sweeping changes, including:

  • “Quickie” or “ambush” elections are here, and now we go from a petition to an election within 21 days. It is extremely difficult for companies to organize an effective response to a union election that quickly.
  • Electronic authorization cards
  • Expanded definitions of protected concerted activity, including social media

The Fight for $15 is a hot topic in the restaurant industry, and it’s having an impact in other areas. For example, some companies in the manufacturing and distribution industries are setting wages at $15/hour. Michael VanDervort noted these commonly used tactics:

  • Funding by entities such as charitable foundations, along with funding and support from traditional labor unions like SEIU
  • Brand attacks on social media
  • Protest and occupy movements at business locations and marches on City Hall
  • Cooperation with labor unions and other community activist groups
  • Organizing through texting and social media

Demographics

Demographics play a huge role in the Fight for 15 and in organizing efforts in general. Women, minorities, and Millennials are more receptive to social justice issues such as immigration, part-time work, and minimum wage.

According to Gallup, nearly six in 10 Americans now approve of unions. This is up from 48% in 2009. Millennials are now the largest demographic in the workplace and Pew reports that more than half (57%) view unions positively.

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Technology

Terry Dunn reminded us that in the past, we used to have an inkling that organizing activity was occurring when we’d find union authorization cards in the break rooms or parking lots.

With the advent of electronic authorization cards and social media enrollment, those days are gone.

The NLRB’s position is that email exchanges, social media posts, and personal/company emails can all be construed as an e-signature card. Electronic authorization cards are extremely easy for unions to collect. People are used to registering at websites, so they don’t give it a second thought. Often once they register a pop-up appears asking them to invite their friends to register.

While electronic authorization cards raise questions of authenticity, they are a huge benefit to union organizers. It’s an incredible way to build a list, which our friends in marketing know is a cornerstone of any successful campaign.

The Persuader Rule

In 2011, the Department of Labor (DOL) issued a proposed rule concerning reporting on the use of labor relations consultants. The “Persuader Rule” languished for years in regulatory limbo, but it’s been submitted to the Office of Management and Budget which is the final step before the rule can be published in the Federal Register. It appears that it’s been fast tracked to be in place before the November 2016 elections.

The rule potentially broadens the scope of employers’ and service providers’ reporting obligations under the Labor-Management Reporting and Disclosure Act. For decades, consultants, employee engagement firms and survey providers were exempt from this reporting unless the services provided included a direct “persuasive” component. This rule change would require employer disclosure of financial spend on any vendor (including law firms), and vendor disclosures of receipts and disbursements related to any activity that directly or indirectly influences an employee’s decision with respect to union organizing, collective bargaining, or protected concerted activity.

The bottom line is that the money you spend on labor lawyers, consultants, and employee engagement surveys could part of the public record, and available for unions to use against you during campaigns.

You Still Need to Be Vigilant and Ready

With electronic authorization cards, most companies don’t realize they have a union organization effort occurring until they receive a petition for representation from the NLRB. The shorter election periods make an effective response nearly impossible without diligent pre-planning by your company.

Staying union free requires constant vigilance. You can accomplish this by:

  • Proactively monitoring social media messaging (but avoid surveillance)
  • Training key managers and a cross-functional response team. Teach them about: positive employee relations, union organizing warning signs, how to identify and respond to protected concerted activity. This is especially important since Millennials enjoy using the power of the collective, but they don’t realize that their actions may fall into protected concerted activity.
  • Protecting your property rights. Use off-duty law enforcement if necessary.
  • Keeping the lines of communication open with landlords, the community, and law enforcement agencies.
  • Having media contacts and statements prepped and ready to go.
  • Staying informed by reading CUE newsletters and other publications

Support your efforts with a labor relations strategy that includes training, executive team support, and commitment to cultural values across your entire organization – including franchises. You can’t afford to be fragmented in your approach since unions will take advantage of this vulnerability.

Finally, it’s worth remembering that despite all of these changes to the NLRB’s rules, and regardless of the rise of Millennials in the workplace, some strategies never go out of style:

  • Listen to your employees and respond to them in a timely manner
  • Remove “jerk” managers from your organization
  • Eliminate workplace irritants, such as scheduling hassles and not having the right tools and equipment for the job
  • Use some of the employee engagement tactics that we heard about during the Global Best Practices Conference.

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1f8e46dLiz D’Aloia is the founder of HR Virtuoso, a mobile recruiting company based in Dallas, TX. She is an HR professional, employment attorney, speaker, and blogger. Prior to launching HR Virtuoso Liz worked at national transportation companies and at a global retailer. Connect with Liz on LinkedIn and follow her at @hrvirtuoso.