Your Workers Are Trying To Unionize. What Can You Do?

You don’t have to allow a union in your workplace, do you? After all, you are the employer, right? If you own the business, don’t you get to decide what can and can’t go on in the workplace?

Your workers don’t like their pay? They don’t think conditions are safe? They don’t like management? Well, they can just go somewhere else then, right? You’ll just fire them. After all, they’re employees at will. What’s the problem?

Maybe you don’t want to fire them, you just want the unionization efforts to cease. So you instead focus on stopping them from organizing. You can do that, right?

Not necessarily. Neither choice is really a good one if you are looking to avoid legal trouble and retain a good healthy workforce that enables you to keep your business going and growing. Read on and we’ll explore what you can — and what you shouldn’t– do.

As always, we have two real, live examples of worker unionization and employers’ efforts to thwart it: Starbucks and Target.

Here, in a nutshell, is what appears to have gone down:

A number of Starbucks stores have unionized or are in the process of doing so. The first store to do so is in Buffalo, NY. Most recently, however, Starbucks fired seven workers at its Memphis, TN location. Those workers are a third of the store’s workforce and include most of the store’s union organizing committee. The workers and Starbucks Workers Union (SWU), not surprisingly, claim that the firings are retaliation for their union organization efforts. SWU has vowed to file Unfair Labor Practices with the National Labor Relations Board on behalf of the seven fired employees.

Starbucks claims that the firings have nothing to do with the unionization efforts, rather they arise out of breach of company rules causing “safety and security violations”. It cites the employees’ opening the doors and leaving them unattended after close of business while allowing in unauthorized people both behind the line and in the “back of the house”. It also shows that an employee who was not a designated cash controller opened the store’s safe and was allowed to do so, which Starbucks says was a significant violation of the rules carried out by those involved.

The problem here appears to be twofold: 1) the alleged breach of rules arises out of the workers allowing journalists into the store after hours as part of its efforts to organize; and 2) according to a former manager, the policies Starbucks cites were “often violated” when she was manager and not offenses for which employees would typically be let go. She also stated that the employee found in violation of cash handling policy “had not yet completed such training and therefore could not have known that they were in violation for opening the safe.”

Let’s come back to Starbucks and look at Target.

Target apparently instructs its store managers to prevent employees from unionizing, according to leaked training documents. Managers are told to look out for warning signs of labor organizing and to work with corporate HR to block unionization efforts. The training materials claim that rather than being “anti-union”, Target is  “pro team member and guest” and that unions would not “improve anything – not for our team members, our guests, or the company”

Target’s materials characterize unions as  “a business that makes money from the dues and fees paid by its members”.

An organizer with Target Workers Unite and a worker at Target in Christiansburg, Virginia store stated the training materials had been leaked from his store shortly after his flyers to promote a local event about Black labor in Richmond, Virginia, for Black History Month co-hosted by Target Workers Unite, had been eliminated from the break room. The organizer confronted HR, reminding them that the removal of the flyer violated a 2018 NLRB settlement, and pointed out what he termed “selective enforcement” of its no-solicitation policies.

Both employers have apparently tried to convince workers that unions would not ultimately be good for anyone. Starbucks has said unions aren’t necessary because they already pay workers an average of $12 an hour, offer health benefits to part-time employees and college tuition reimbursement among other benefits. All those points may be true. They are also irrelevant to the issue at hand.

Wait. Doesn’t an employer have a right to talk to employees and show them that unionizing is not in their interest and how they already take care of their workers? In theory, yes. The problem here is that there’s a fine line that these employers appear to have crossed. The NLRA affords workers the right to participate in concerted activity, which includes conversations about work conditions, efforts to improve those conditions and to organize to do so, whether via a union or otherwise. Attempts to actually block unionization are a likely NLRA violation.

Yes, it’s OK to look for warning signs. In my humble opinion though, the warning signs of actual organization activities are probably the wrong focal point. It’s probably too little too late. The focus and the efforts need to come much earlier. The first question an employer needs to ask is why workers commonly seek to unionize and whether any of those issues exist in their workplace. The next step is to make appropriate efforts to address those issues.

Not all employees want to join a union. In fact, many don’t. If they feel they’re being heard and valued and that their employer is at least trying to play fair with them, many will not see a need to join a union.

Unions are again gaining traction. The pandemic has caused employees to re-think what’s important to them, triggering what has been coined The Great Resignation. Employees are the backbone of almost every business. Taking employee concerns about pay, benefits, safety, diversity equity and inclusion among many others is a good start to ensuring you have a healthy work culture and that you attract and retain good talent. Yes, your employees need jobs, but you need employees to enable you to run your business and grow. You don’t need lawsuits, NLRB hearings, audits, and high turnover–at least I assume you don’t.

Enough said.

Are you an employer interested in proactively addressing workplace challenges and company culture? Visit my website, http://www.theemplawyerologist.com to contact me for a complimentary 20-minute consultation. 

Watch the latest video clip in my series, “Ask the Employer’s Lawyer: My Employee Has Exhausted All Her FMLA Leave Time. What do I do?

Watch my television interview on Stop My Crisis with Vivian Gaspar.

Contents of this post are for educational/informational purposes only, are not legal advice, and do not create an attorney-client relationship. Consult with competent employment counsel in the state(s) in which you employ people with your specific questions.

Before choosing an attorney, you should give this matter careful thought. The selection of an attorney is an important decision. If you find this communication to be inaccurate or misleading, you may report it to the Committee on Attorney Advertising Hughes Justice Complex, CN 037, Trenton, NJ

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