Employment Lawyer Answers Top Union Questions
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Jon Hyman is a nationally recognized employment and labor lawyer with a large following on social media. He often discusses labor unions and has an interesting perspective. Hyman says he wants people to understand that being anti-union and pro-management does not mean one is therefore anti-labor.
While Hyman doubts the effectiveness of unions because he says they often cannot deliver on the promises they make, he wants employees to be treated with dignity and respect by their employers. In his conversations, he stresses the point that employers who wait until unions form to respond to their employees’ concerns are committing a form of negligence.
Recently, Hyman spoke with HR Exchange Network about how to manage possible unionization at an organization. Discover his thoughts and advice for HR leaders, whose employers may be wondering about these issues:
HREN: Why are labor unions having a moment again? What has changed?
JH: There are two main issues at play here. I think the pandemic is one, and many issues that labor organizers typically talk to employees about were in the spotlight because of COVID. Pointing out OSHA (Occupational Safety and Health Administration) complaints is an old-school organizing tactic. Safety is always a hot button issue for unions, and the pandemic played right into that. Employees were feeling through the pandemic that they were out on the front line, while employers were doing what they could to stay open and keep the lights on. Employees felt that they were in harm's way and that management was not necessarily listening to their issues. They experienced a lack of communication, lack of respect, which all plays into union’s hands.
The other issue is the demographic of employees, who are organizing. They definitely skew younger and more educated. Gen Z, which is largely driving the current wave of organizing is much more activist and socialist in their beliefs. They genuinely believe that the workplace should be a collaboration between workers and management. They are demanding that their voice be heard, and they have their seat at the table. Also, they cut their teeth on social justice issues like Black Lives Matter and LGBTQ+ rights. And we're seeing it now with the pro-choice with the Roe v. Wade issue. They've learned how to organize around social justice issues, and they're now turning that inward toward the workplace. And they're doing it very effectively.
HREN: So, what should HR leaders and employers do about this increased interest in labor unions? What advice do you have?
JH: I think focusing on the employee experience and culture are key. Now more than ever, if a union is successfully organizing, then there's something endemically culturally wrong in a workplace. It’s better that you understand what those problems are, and fix them as best you can before the union starts talking to your employees. Once they start talking, they're in their ear about all the things they can fix for them. If employees don't feel respected, don't feel that they're listened to or that their opinions matter or if they feel that they're mistreated, you're done. The best union avoidance strategy has always been and will remain just to be a good employer and treat your folks well and have a positive culture for your employees.
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HREN: What are some of the legal mistakes that employers might be making, as these unions start to form?
HJ: The acronym that's most often used is T-I-P-S. T is for threats, I is for interrogation, P is for promises, and S is for surveillance. These are the four big things you can't do. You can't threaten employees about what will happen if a union comes in. You can't say really anything that starts with the word “will,” right? You can’t say, “This is what will happen, and what we will do. There will be layoffs, you won't get any more money. We will have to close down.” No threats can be made whatsoever.
The I for interrogate means you can't ask employees really anything that ends with a question mark and [is related to the union formation]. So, you can't ask them who supported the union. You can't ask them if they signed the authorization card, how they plan to vote, why they support the union, or anything that ends in a question mark.
P is for promises. You can't make any promises to try and dissuade employees from joining a union. For example, you can’t say, “You'll get a raise if you vote no.” One of the issues that Starbucks is having right now is that they are alleged to be soliciting grievances from employees, which is another implied promise, such as, “What issues do you have that are leading you to unionize? Bring them to us, and we'll help fix them.” That's an implied promise. If you vote no, we'll make things better for you.
The S is for surveillance or spying. You can't eavesdrop on employee conversations. The same goes with email. The National Labor Relations Board says that if employees have access to a corporate email server, then you can they have the right to use it for union related business. But as an employer, you can't read it because that’s illegal surveillance. You can't send somebody to see who's gathering in the union hall or who's getting together in the bar after work to talk about union stuff or who's meeting with union organizers in the parking lot.
The only things you can do is state facts and give opinions. Also, you can share evidence. You can share facts about unionization and your personal opinion either as a supervisor or as a corporate philosophy about unionization. What's really the most compelling is evidence you can share about unions. While you can't make a threat about what will happen with your particular facility if you're unionized, you can certainly share a news clipping about the plant or the facility or the store down the street that was unionized, and then shut down. You can share that news clipping about the union official who just got indicted for embezzling dollars from the union pension.
HREN: What about being proactive? What should employers be doing before the union is forming?
JH: Avoidance is strategy number one. If you're getting presented a stack of authorization cards to say that employees are demanding their secret ballot [union] election, something has gone horribly off the rails from a culture standpoint, right? What you want is to have a culture where, when the union organizer is talking to one or more employees and saying, “This is why you need a union, we're going to help you be heard, have a say, make things safer. We're getting you more money, improving working conditions,” the employees can objectively look at the union and say, “We already have all that. Why should we pay dues for something we already have?”
Photo courtesy of Jon Hyman
