Identify the campaign tactics used in the organizing model of union representation.

Organized labor is riding a wave in successful union organizing in 2022, after years of declining influence. Between October 2021 and March 2022, union representation petitions filed at the U.S. National Labor Relations Board (NLRB) increased 57% from the same period a year earlier.

Workers at major American companies such as Apple, Amazon and Starbucks have all prevailed in unionization efforts in recent months. Employees at other large companies — including Target and Google — have taken note and filed for union elections with federal labor regulators as well.

“Right now, there is a surge in labor activity nationwide, with workers organizing and filing petitions for more union elections than they have in the last 10 years,” said NLRB General Counsel Jennifer Abruzzo.

This resurgence is fueled by greater public support for organized labor in the U.S. A September 2021 Gallup poll found that approval of labor unions is now at 68%, the highest number at any time since 1965. Notably, the poll found that young adults aged 18 to 34 approve of unions at a rate of 77%.

“The climate has changed for employers,” said Kate Bronfenbrenner, director of labor education research at Cornell University’s School of Industrial and Labor Relations, in an interview with Law360. “Unions may not have control right now, but unions are driving the conversation.”

Corporate legal departments need to be prepared for that conversation to come to their front doors.

The LexisNexis Practical Guidance team has curated a number of targeted information resources to help in-house counsel navigate the complex and highly regulated world of organized labor. One of these components is an insightful practice note from David P. Phippen, Counsel at Constangy Brooks Smith & Prophete LLP.

When union organizing first takes root at a company, the employer’s initial response sets the tone for the path that will follow. Here are nine steps for companies to take after union activity surfaces within your organization, excerpted from Phippen’s practice note on Lexis+:

Get the facts

Although the employer may not interrogate employees, you should gather as much information as you can about the union organizing efforts. Investigate and determine which employee issues may have prompted union contact by speaking to managers and supervisors.

Stay abreast of union communications

You should promptly review copies of handbills, letters, or union cards that your company lawfully obtains (e.g., those voluntarily given to managers and supervisors, left behind at the workplace or made public by the union). Together with members of management, you should devise a strategy regarding anticipated communications with employees such as what to say, who should say it, and when.

Research your property rights

If organizers are at the employer’s facility or a nearby parking lot, you should examine your company property lines and research state law governing property rights to determine whether to seek injunctive relief or call law enforcement.

Educate managers and supervisors

You should ask to meet with managers and supervisors in a private location. Inform them about the union activity and advise them not to speak to employees about it until they are trained on how to lawfully address the issues. Prepare a list of “dos and don’ts” for managers and supervisors to which they can refer throughout the campaign.

Identify supervisors

This is a critical legal issue at the outset of any organizing campaign. With the assistance of managerial employees, you should keep a list of all employees by department/supervisor. Tentatively classify individuals as supervisors or non-supervisors based on their actual job duties and responsibilities. A supervisor is not part of the bargaining unit and will not vote in a representation election. He or she may act as a representative of the employer and communicate the employer’s position and messages throughout the campaign.

Audit your employment policies

Review your policies, particularly those governing solicitation and distribution, and determine whether the company uniformly and lawfully enforces these policies. Generally, an employer may make corrections pre-petition, but you should research the issue before making any changes in response to union activity. 

Know the entire operation

Refresh your understanding as much as possible about all company operations, such as organizational structure, employee demographics, etc. You should also understand the workplace communications systems, including bulletin boards, mail boxes and email.

Know the union

After you learn the identity of the union, you should gather as much information about it as you can. Available sources of information include the use of the union’s public Department of Labor filings (particularly the Form LM-2), the union’s own by-laws and constitution, area election results, collective bargaining agreements the union may have covering employees in the area or in the same industry as the employer, news on strikes and corrupt practices, and a strike history. The more current and localized the information, the better.

Find support in industry and/or local organizations

Consider investigating any industry and/or community organizations, such as the local Chamber of Commerce, economic development groups, employer associations, or personnel associations in the area that can provide assistance or information relevant to the union campaign. Understand that the union typically will be doing the same thing, seeking support from groups such as churches, advocacy groups, and politicians.

It’s important to stipulate that, while the current surge in labor organizing is noteworthy, it is premature to conclude that it will be meaningful until we see how successful these new unions are with securing collective bargaining agreements. Bronfenbrenner told Law360 that fewer than half of unions reach a first contract within a year of their elections, about 40% fail to reach contracts after two years, and upward of a quarter of unions don’t reach a contract within three years.

But this uptick in union organizing efforts shows no signs of slowing any time soon, so in-house counsel need to be prepared to advise their executive teams and corporate boards on how to prepare for labor actions that might come to their doorsteps.

LexisNexis Practical Guidance contains valuable tools and resources to help in-counsel understand the triggers and red flags of union activity and lawfully respond to union organizing efforts, as well as strategies for how employers can lawfully maintain a workplace that does not provide fertile ground for seeding union organizing efforts.

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