Non-Union Employers Take Note: The COVID-19 Crisis is Likely to Cause a Spike in Union Organizing Activity

​As we all continue to endure the Coronavirus pandemic and everything that comes along with it, it is becoming increasingly clear that labor unions are seeing the pandemic as an opportunity to organize new groups of workers.  Unions have been losing market share in the United States for decades, and not surprisingly, they are always on the lookout for the chance to bring in new members, with a corresponding increase in their revenue streams.  This includes efforts to organize employees in industries and areas that traditionally have not been unionized.

Because of COVID-19, worker concerns about safety, job security, and transparency on work issues have become front and center in recent months.  This is true for employees working in industries that have been designated as "essential," but also for employees in many other industries.  Concerns like these are often ones that unions use to appeal to workers who they are trying to organize, and when employees feel as though their employer is not listening to their concerns or adequately communicating with them, they may turn to labor unions for help.

Unions are already taking steps to capitalize on the organizing opportunity presented by COVID-19.  Many have become adept at organizing employees virtually, using social media, text messages, and Zoom meetings to connect with groups of employees.  And some have even set up websites where employees who are "concerned about working during this Coronavirus Pandemic" can fill out a form to have a union organizer contact them.

As businesses start to reopen their doors or return more employees back to work, the potential for unions to gain traction among employees will almost certainly increase, with worker concerns about issues related to COVID-19 precautions taking center stage.  Employees may be asking themselves whether their employer is doing enough to promote their safety and well-being, and unions will likely be telling them that their employer should be doing more.

This all means that employers proactively should be addressing and anticipating employee concerns, not just as a means to create a better worker environment, but also to eliminate risks of union organizing.  Employers must also be careful not to run afoul of any applicable laws when instituting such programs and plans.  The principal law in this arena is the National Labor Relations Act.  Section 7 of the NLRA protects employees' right to join together to advance their interests as employees, and to refrain from such activity.  In that same vein, the NLRA makes it unlawful for an employer to "interfere with, restrain, or coerce employees" in the exercise of those rights.

Non-union employers should also be aware that under the National Labor Relations Board's election rules, the time between when a union files a petition for an election and when the election takes place is very short, averaging around only 3-3.5 weeks at present.  This means that for an employer who has not previously been communicating with its employees about the facts surrounding unionization, the window of time that it has to do so is very limited.  Moreover, due to current social distancing guidelines, many employers are finding themselves hamstrung in these campaigns.  Those guidelines are making it difficult, if not impossible, for employers to conduct in-person meetings with their employees, and employers are also being denied in-person elections, with the NLRB instead conducting elections by mail ballot.

While many employers recognize some of the negative aspects or complications that can accompany unionization, many employees (including managers and supervisors) might not.  For example, they may not realize that union representation can and often does result in a loss of flexibility to address employee issues, and that having an outside third-party placed between management and employees often creates a counterproductive "us versus them" attitude.  Many also do not understand the rigors and requirements of collective bargaining.

Takeaway for Employers

Although we are living in uncertain times, it is virtually certain that unions are going to continue their efforts to organize new groups of employees, and the Coronavirus pandemic is providing them with a unique opportunity to try to do so.  Although employers are dealing with countless other issues related to the pandemic, the possibility of union organizing activity among their employees as a result of this crisis is one issue they should not neglect to consider.

Employers who think there is any possibility that their employees might be susceptible to union organizing efforts should consider developing a plan now for lessening and/or responding to union organizing activity within the confines of the law.  Such a plan might include providing training to managers and supervisors on how to recognize and respond lawfully to union organizing activity.  The plan might also include providing positive employee relations training to managers and supervisors, which could head off union organizing activity before it starts.  Many Seyfarth lawyers have vast experience in this area, and are more than happy to help.