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Union Awareness: Top 5 Issues That Non-Employers Should Look Out For

After vowing to be the most pro-union president in history, President Biden took steps literally from day one to achieve that goal. On his inauguration day, President Biden called for the resignation of the Trump-appointed National Labor Relations Board (NLRB) General Counsel and later appointed former union attorney Jennifer Abruzzo to the position.

General Counsel Abruzzo has already issued several directives to NLRB field offices to make union organizing easier. Non-union employers need to heighten their awareness of these directives and other union organizing trends, especially if they prefer to remain union-free.

The NLRB is actively looking to expand the definition of protected concerted activity.

In one of the first acts as General Counsel, Abruzzo issued a memo directing the NLRB field offices to look for and pursue cases that would expand employees’ rights to engage in protected concerted activity. Complying with Abruzzo’s direction, field offices are expected to bring unfair labor practice charges against employers that disciplined workers for discussing concerns that aren’t typically considered subjects of protected concerted activity, such as social justice and political advocacy.

Petitions for union representation elections are increasing—and so are their win rates.

During the first three quarters of the federal fiscal year 2022, union representation petitions filed with the NLRB increased by 58% over the same period of the prior fiscal year. Within the first eight months of the fiscal year 2022, the NLRB received more union representation petitions than in the entire previous fiscal year. Unions won 76.6% of elections in the first six months of 2022.

Americans have a more favorable view of unions now than they have in decades.

According to Gallup’s annual poll, completed in August, 71% of Americans approve of unions in 2022. This union approval rating is the highest since 1965 and represents a significant increase since a dip to 48% approval in 2009. This high approval rating is valid even though most American workers are not union members, suggesting that many employees would look favorably upon union organizing in their workplace.

The NLRB may severely restrict employers’ ability to respond to a union organizing campaign.

General Counsel Abruzzo has specifically asked the NLRB to reconsider the legality of so-called “captive audience meetings.” Currently, employers may require employees’ attendance at mandatory meetings, during which the employer educates the employees on the potential downsides of joining a union and the upsides of rejecting representation. Amazon has successfully utilized such meetings to defeat union organizing campaigns in several locations. However, they would no longer be allowed if the Board decides that such meetings would constitute an unfair labor practice. In the meantime, the NLRB is already showing a greater willingness to hold employers accountable for their responses to union organizing, filing multiple unfair labor practice charges against Starbucks’ alleged unfair anti-union campaign practices and retaliation against union organizers.

Employees may choose unions for better pay and benefits and increased fairness among workers.

Traditionally, the most common reason employees give for organizing has been to combat unfair treatment by their employers, as they looked to the union to advocate for fair, uniform standards and avoid favoritism. However, a recent Jobcase survey suggests that employees now see better pay and benefits, plus increased job protection, as the primary benefits of a union workplace. Notably, although it may not have been at the top of the pro-union list, a focus on fairness remains, with 67% of Jobcase survey respondents believing that unions could help ensure fair treatment of workers.

With union organizing increasing, and employers’ ability to respond to organizing being limited, non-union employers’ best bet to stay that way is to proactively address the concerns that may lead employees to join unions in the first place. Employers may preempt organizing by confirming that they are paying appropriately for their market, getting creative with benefits when money is tight, and ensuring that all managers and supervisors treat employees fairly and equitably. Incidentally, those are some of the same strategies that may help employers attract and retain workers in this tight job market!

 

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Erin Jacobson JD

Erin Jacobson is the Director of Legal & HR Advice for Archbright, where she manages Archbright’s team of Attorneys and HR Advisors, as well as provides advice and counsel to members on complex employment law and labor relations issues. Prior to joining Archbright in 2016, Erin held the role of Assistant City Attorney with the City of Spokane since 2009, serving as chief negotiator with the City’s seven labor unions; advising the City on labor and employment practices and policies; and representing the City in labor arbitrations, PERC hearings, and other labor-related disputes. She earned her Juris Doctorate from Georgetown University Law Center in Washington, D.C. and was admitted to the Washington Bar in 2001, the Idaho Bar in 2016, and the Oregon Bar in 2018.