As a result of the Executive Order, Vice President Harris will chair a task force to find ways to encourage worker/union organizing and collective bargaining. The task force may propose new laws, regulations, and other changes to support union organizing.
During Biden’s address yesterday, he said “Wall Street didn’t build this country. The middle class built this country. And unions build the middle class. And that’s why I’m calling on Congress to pass the Protecting the Right to Organize Act – the PRO Act — and send it to my desk to support the right to unionize.” If Congress passes the PRO Act it would end right to work laws, make union organizing easier and, make it harder to be a gig worker or independent contractor. Just three more Senators are needed before the PRO Act will be brought to the Senate floor for a vote .
All of these events make understanding union organizing even more important for businesses and human resources professionals. Companies and human resource representatives that are unprepared will make mistakes that could lead to liability and lawsuits.
What is in this Episode?
In this episode, I discuss the recent union organizing drive at Amazon including some of the reasons that employees may have voted for a union and why the employees ultimately voted down the union.
I also explore how organizing drives typically begin and the differences between the two types of organizing drives: union driven and employee driven. I analyze what causes these two different types of campaigns to start and what employers can do before a campaign begins.
Finally, I discuss what an employer can do during a union organizing campaign. I also review the concept of TIPS (threaten, interrogate, promise, or spy) so that employers can learn the basics of what they cannot do in a union organizing drive.
The information provided in this blog is for educational purposes only and is not legal advice. If you need legal advice, then you should speak with a lawyer about your specific issues. Every legal issue is unique. A lawyer can help you with your situation. Reading the blog, contacting me through the site, emailing me or commenting on a post does not create an attorney-client relationship between any reader and me.
The information provided is my own and does not reflect the opinion of my firm or anyone else.
You are a company leader. You’re getting ready for work. You turn on the television and see the name of your company blasted all over the news. You discover that there is a group that is very publicly advocating for a change in the company’s policies, or worse, you find out they want the company to close down altogether. You’re stunned. It’s your worst nightmare to see your company’s name dragged through the mud.
What can you do? You fear the answer is nothing.
Thankfully, that’s not the case. There are some steps that companies can take to respond to actions such as this, and that includes properly responding to what is called a “corporate campaign.”
What is a Corporate Campaign
A corporate campaign begins when enough people are motivated by some issue or action that the company has taken and these individuals attempt to force the company to change their position or correct what they did. A corporate campaign may or may not involve employees. It may involve stockholders, students, members of the community where the business is located, a union, customers, or even people with no relation to the company.
An example of this would be a university that has students asking it to divest from Israeli companies or companies that do business in Israel (see examples here and here. You may notice that the articles have very different views on the same event. Strong opinions on both sides are often present in corporate campaigns as they tend to focus on a hot-button issue.).
A corporate campaign is different than a union campaign (you can read about those here). A union campaign has the goal of having the employees at the facility unionize. Sometimes, but not always, a union may use tactics from a corporate campaign to boost their own union organizing at a company.
What Issues May be the Subject of the Corporate Campaign
While a corporate campaign can be about any particular issue, the most likely issues to initiate a corporate campaign are similar to those in a union campaign.
The most common issues of a corporate campaign are:
Higher wages
Improved safety
Gender wage gap issues
Diversity issues
Environmental issues
Investments in a particular country
Members of the community not wanting a business of that type in the community (e.g. opening a prison or a garbage dump near/in a community)
Accusations of monopoly
A union organizing drive
Urging the company to take a stance on a particular political issue
Ethical issues (e.g. the treatment of animals at a food processing facility)
Job related issues (e.g. accusations that the company is sending jobs overseas or closing a facility)
What A Corporate Campaign May Look Like
The main goal of a corporate campaign is to get the company to change or adopt a particular position or policy. Whoever is running the corporate campaign will use whatever means they can to put pressure on the company to increase the chances that the campaign is successful.
There are a number of strategies that the organizers may employ to conduct the corporate campaign such as:
Passing out fliers in the parking lot or in front of the building
Protesting or holding signs in front of the building
Employees going on strike
Seeking to get media coverage of the campaign
Starting a Facebook group, Instagram page, Twitter handle, or a podcast to release information about the company and to target them online
Letter or email bombing the company by sending a tsunami of emails or letters to the company
Contacting members of the Board of the company
Protesting outside the homes of members of the company’s board or executive team
Going to shareholder meetings and requesting a vote on an issue
Filing charges through the National Labor Relations Board
Making accusations against the company anonymously and/or against anonymous employees of the company (these are obviously difficult to disprove)
Trying to get hired by the company to report about it or try to take actions against the company from the inside (this is called salting)
Seeking out community leaders to address the issue and the company. These can include politicians, celebrities, religious leaders, and other people with influence.
Filing administrative claims with OSHA, wage and hour claims, discrimination claims, and other claims
Sharing content about the company online, in emails, and other mediums to shareholders, employees, customers, and members of the general public
The main goal of all of these tactics are to change the direction of the company and get them to adopt certain policies.
Is There Any Way to Prevent Being a Target
Attempting to prevent a corporate campaign is key. The best thing that could happen to you as a company regarding corporate campaigns is to never become the target of one in the first place. There are many companies that will never experience this such as small companies or companies in non-controversial industries.
There are a few ways that companies can lessen the likelihood that they will become a target of a campaign. The main goal of these efforts is to ensure that the company is in compliance with the law and employees are happy. You can do this by:
Seeking feedback from employees
Hold town halls to hear and address employee complaints and concerns (quarterly or monthly meetings with all employees in one meeting or holding enough meetings so that all employees can attend).
Have meetings with representatives from different areas of the facility if the business is too large to have meetings with large numbers of employees. These representatives should seek input from their coworkers so that they can bring any issues to management.
Conduct stay and exit interviews. Stay interviews are annual interviews with employees to get feedback from them, discuss what they are doing well, and what can be done better. Exit interviews are meetings with employees that are leaving and can be used to determine where the company can improve.
Have a suggestion box.
Make sure that you have an open-door policy.
Encourage managers and members of the HR team to walk the floor and interact with employees on a daily basis.
Have a complaint procedure that allows employees to report problems to multiple members of management and escalate as appropriate
Providing professional development training for managers on a variety of topics. You can read about the suggested topics on my post: How to Train Your Supervisor. Managers are often a source of potential lawsuits for companies either because of their failure to act or acting in the wrong way in a given situation. It is cheaper to train a manager than it is to defend a lawsuit. It also makes your company a better place to work.
Conduct wage audits to determine whether your wage rates are competitive (i.e. fair) and you are not engaging in disparate treatment of any protected group (i.e. no group of employees in any protected class (e.g. gender, age, race, etc.) is being paid less than other employees in the same job, with the same experience, and other relevant factors).
Keep good relations with the stakeholders in the company and members of the community.
Conduct anti-harassment and bystander training for employees so that they can address situations if no manager is involved in the incident.
Unfortunately, sometimes even with taking these precautions a corporate campaign will take place. Large companies are much more likely to be pressured and consider making changes due to a corporate campaign due to their public exposure. In a similar way, you will see corporate campaigns a lot more frequently in controversial industries.After the company becomes aware of a campaign, a company needs to act quickly.
There are a number of things a company may need to do in a campaign. Determining what to do in a campaign requires examining the extent of the campaign, the weaknesses of the company, and the particular issues that are being raised by the group.
There are a few steps that apply in any campaign:
Continue meeting with employees to address issues that they may raise.
Ensure that confidential materials, such as contact information for the executive team and board members, are secure on company devices and shared files.
Develop a team, which may include outside help, to determine how to best address and respond to issues that the group raises.
Continue to maintain good relations with members of the community, the board if any exists, employees, and other stakeholders.
Assess the weak points that are present in the company, which may include supervisors, policies that need changes, or other issues.
Work to resolve the issues that are being raised to the extent that they should be resolved. This will depend on the issues that are being raised and the appropriateness of correcting them during the campaign. If a union is involved, then the company may not be able to make changes without violating the National Labor Relations Act even if the company was not aware of the issue before the campaign began. You can read more about responding to union organizing here.
Companies must address the specific problems of the campaign and develop a well-tailored plan to resolve the problems raised by the campaign.
Conclusion
Corporate campaigns are difficult to respond to. They can focus on any particular issue and arise unexpectedly. Companies, especially public companies, need to be prepared to respond to a potential corporate campaign. Again, being proactive and acting to prevent one from occuring in the first place is your best route as a company. If this is not possible, then the company should make a plan soon after a campaign begins.
The information provided in this blog is for educational purposes only and is not legal advice. If you need legal advice, then you should speak with a lawyer about your specific issues. Every legal issue is unique. A lawyer can help you with your situation. Reading the blog, contacting me through the site, emailing me or commenting on a post does not create an attorney-client relationship between any reader and me.
The information provided is my own and does not reflect the opinion of my firm or anyone else.
In a past post, I discussed how to respond to union organizing. But what happens if the employees have an election and a union is voted in or if the company has had a collective bargaining agreement for years. What do employers need to know when negotiating an agreement?
As a reminder, a collective bargaining agreement is an agreement between an employer and the union that represents a group of the employer’s employees. It contains the provisions that the parties agree will govern the workplace. The National Labor Relations Act requires the company and the union “to meet at reasonable times and confer in good faith” to try to negotiate a collective bargaining agreement. Employers and the union are required to bargain about the “rates of pay, wages, hours of employment, and other conditions of employment” under the Act. However, neither party is compelled by law to agree to any specific proposal.
Bargaining in Good Faith
Good faith
bargaining is only understood in the context of bad faith bargaining. Bad faith
bargaining, sometimes called surface bargaining, is not the same thing as an
employer lawfully adopting a position at the bargaining table and trying to
stick to it. The NLRB considers the underlying reasons for company made
proposals and a willingness to compromises when it considers whether the
company made a good faith attempt to bargain.
For example, consider
a case where the union proposed a wage of $30 an hour for a certain type of job
and the company proposes a wage of $20 an hour. The company can demonstrate
bargaining in good faith if it can show that the market rate for the position
is $20, it pays employees in nonunionized facilities in the same position the
same wage, and it has had no trouble finding employees at this wage rate. The
employer here is likely bargaining in good faith.
However, consider the opposite scenario. The union proposes a $20 wage for a certain type of employee in a unionized facility, the same type of employees in the employer’s other nonunionized facilities receive the same wage of $20 per hour, and $20 is the market rate for the type of employee. However, the company refuses to budge in its offer of paying $10 an hour. This is likely bad faith bargaining as there is no legitimate business reason for the company to take this position, and it seems to prevent the formation of a contract.
The National Labor Relations Board recently confirmed this in its Phillips 66 decision (369 NLRB No. 13). In that decision the Board held that examining whether a company is bargaining in good faith requires an evaluation of the totality of a company’s conduct. The Board reiterated that bargaining in good faith “does not compel either party to agree to a proposal or require the making of a concession.” The Board further stated that “even ‘adamant’ insistence on a bargaining position ‘is not of itself a refusal to bargain in good faith.”’
There are also differences in good faith bargaining in initial agreements (first collective bargaining agreements) and collective bargaining agreement’s for established units. It is difficult to make a substantial change, especially when you are taking away benefits from employees, in a contract renewal. A proposal to take away a previously given benefit to employees can result in a charge that the employer is bargaining in bad faith. Considering what proposals to make and what proposals to accept in an initial collective bargaining agreement is thus even more important than what happens in subsequent agreements. The initial agreement sets the framework for any subsequent agreements.
Bargain with the union concerning permissive subjects of bargaining, but not to impasse.
Lock out your employees where your sole purpose in doing so is to bring economic pressure to bear in support of a legitimate bargaining position.
Make changes in the scope and direction of your enterprise – matters that lie at the core of your entrepreneurial control of your business – without bargaining about the change. You must, however, bargain with the union concerning the effects of the change on unit employees. (Whether a particular change is a nonbargainable “scope and direction” change or a mandatory subject of bargaining may present a difficult legal question. However, subcontracting that merely substitutes one group of workers for another to do the same work under similar conditions of employment is not a nonbargainable “scope and direction” change.)
What Employers Cannot do In Negotiations
Here is a short list of some of things that employers cannot do, although the NLRB lists more items:
Bypass the union and deal directly with employees. (However, you may communicate to your employees accurate information about your bargaining proposals.)
Insist to impasse on a proposal concerning an illegal subject of bargaining, or include an illegal clause in a labor contract. Illegal subjects include, for example, a proposal to make the contract terminable at will or to give the employer the right to discharge employees for union activity.
Refuse to bargain over the effects of a change in the scope and direction of your enterprise, even though you need not bargain over the change itself because it concerns a matter at the core of your entrepreneurial control of your business. (Whether a proposed change is a nonbargainable “scope and direction” change or a mandatory subject of bargaining may present a difficult legal question. However, subcontracting that merely substitutes one group of workers for another to do the same work under similar conditions of employment is not a nonbargainable “scope and direction” change.)
Engage in bad-faith, surface, or piecemeal bargaining.
Remember, when a
union represents a group of employees an employer cannot make unilateral
changes to any area affecting employees when the subject is covered as a
mandatory subject of bargaining unless the company and the union have reached
an impasse or the union has waived the right to bargain.
Conclusion
Employers that negotiate collective bargaining agreements must walk a fine line to ensure that they advocate for their position but do not violate the law. Companies, and the counsel that represents them, can benefit from examining collective bargaining agreements for similar groups of employees and agreements that the local or international of the particular union representing the employee has put forth. You can view some of these agreements through Berkley’s labor contracts database and through this source on the Department of Labor website. At the bargaining table, employers should generally start with a position that they can make changes to and allows flexibility to make concessions to ensure that they bargain in good faith. It is often best to use outside counsel or at least someone that does not have the authority to make the final call on whether to accept a proposal because the negotiator can tell the union that they need to reach out to upper management to confirm whether a proposal is acceptable, which gives the employer the chance to better determine any financial effects of a proposal and to develop a counter proposal.
Collective bargaining is not easy. Companies that are not careful will have unfair labor practices filed against them. To avoid this, it is important that company negotiators or outside counsel are well prepared before any bargaining begins.
The information provided in this blog is for educational purposes only and is not legal advice. If you need legal advice, then you should speak with a lawyer about your specific issues. Every legal issue is unique. A lawyer can help you with your situation. Reading the blog, contacting me through the site, emailing me or commenting on a post does not create an attorney-client relationship between any reader and me.
The information provided is my own and does not reflect the opinion of my firm or anyone else.
Brett Holubeck (of Houston, Texas) is the attorney responsible for this site.
