After decades of declining numbers, organized labor has achieved a flurry of notable organizing successes so far in 2022, including in businesses and industries previously ignored by union organizers. A quick Google search reveals workers at a number of high-profile businesses opting for union representation, including StarbucksAppleConde NastAmazon, and, yes, even Google itself! 

On the heels of a world-wide pandemic, why are workers suddenly rediscovering the labor movement their grandparents started but their parents walked away from? More importantly, what steps should employers take to vaccinate their employees against the spread of unionization into their workforce?

Fall and Rise of Union Organizing 

When the U.S. Bureau of Labor Statistics began tracking union membership rates in 1983, 20.1% of all workers belonged to labor unions, for a total of 17.7 million union members. By 2021, those numbers had plummeted to 10.3% and 14 million, respectively. The percentage of union members was even worse for private-sector employees, with only 6.1% belonging to unions (compared to five times that many, 33.9%, in the public sector). 

A variety of reasons have been given to explain the dramatic decline in union membership over this period, including (1) the movement of factories overseas or to regions in the United States less hospitable to labor organizing; (2) increasing worker protections mandated by federal and state law, which made unionizing less imperative; (3) the domestic entry of non-union players in traditionally union-heavy industries such as Big Auto, which seemed to highlight the competitive risks of unionization; (4) negative publicity associated with union corruption; and (5) more recently, the passage of “right to work” statutes in even historically union-friendly states that made it easier for employees to drop out of unions.

Given this long, slow decline in union membership, what has changed over the past year leading to the high-profile union victories described above? A few things, in my view:

  • Our experience in responding to COVID has given many of us a feeling that “we’re all in it together,” as opposed to the more individualistic attitude modeled by the Me Generation/Boomers and later accepted by Generation X, which was more resistant to collectivist movements such as unionizing.
  • The national outcry over social injustice has led to a more generalized demand for action, which labor unions have capitalized on in their campaign themes to potential votes—a vote for the union is not just a vote for your pocketbook, it’s also a vote for social justice (this was the main theme of the union’s “first” Amazon campaign in Alabama last year). 
  • Workers in a variety of industries have felt mistreated, aggrieved, and burned out after two years of working in near-crisis conditions, particularly those in industries deemed “essential.”
  • A generation of new union organizers has adopted new organizing techniques, such as aggressive use of social media, in place of the 1970s union organizer’s playbook emphasizing home visits, cook-outs, and brochures accusing management of various misdeeds.
  • There is a new attitude about labor unions. A poll conducted by Gallup in September 2021 found that 68% of Americans have a favorable view of labor unions—the highest percentage since 1965. Some of the highest approval ratings are among the newest generation of workers: 77% of 18-34 year-olds have a favorable view of the labor union movement.
  • Finally, new labor unions have cropped up targeting businesses and industries not historically targeted by labor unions, including white collar, “pink” collar, and high tech occupations.

In addition to these trends, President Biden left no question that “personnel is policy” when he replaced the previous General Counsel of the National Labor Relations Board (NLRB) with Jennifer Abruzzo, who has since made clear her desire to overturn decades of settled law under the National Labor Relations Act in order to make it easier for unions to organize. 

Among other things, Abruzzo has declared her desire to make secret-ballot union elections unavailable to employees in most circumstances, limit employers’ free speech rights to hold meetings during working time stating their reasons for opposing unionization and expand the ability of union supporters to hijack company-provided electronic mail systems for the purpose of union organizing. These changes, if successful, would give added momentum to the unions’ recent run of organizing successes.

A Different Way to Stay Union-Free 

Among his many famous quotations, Winston Churchill is credited with saying, “Generals are always prepared to fight the last war.” Applying that here, employers who wish to keep their workplaces union-free in the face of these new challenges might be tempted to look to the standard “union avoidance” playbook employed by management consultants for decades, which includes tightening up their policies on solicitation and distribution of materials in the workplace, training their supervisors in the signs of union organizing or the intricacies of “TIPS” (Threats, Interrogation, Promises, Surveillance) and “FOE” (Facts, Opinions, and Experiences), and maybe even employing outside “persuaders” whose goal is to convince employees that voting for union representation would be against their best interests.

Just as union organizers have updated their organizing playbook in the face of new realities, however, employers might consider whether there is a better way to respond to this challenge—one grounded in a modern understanding of what motivates and engages workers, as opposed to an outdated approach that persuades them to vote against unions out of fear.

It is an open secret among labor lawyers and management consultants that employees rarely vote for unions for economic reasons such as the promise of improvements in wages or benefits or increased job security. Instead, successful union organizing drives are mostly about one thing: ineffective leadership that creates disengaged workers, who decide to bring in a third party out of frustration to force management to treat them with greater respect

Research shows that employees who are engaged are less likely to feel the need to bring in a labor union or file legal claims against their employers, and more likely to come to work regularly, behave professionally, and perform effectively. Employers with the most engaged workplaces have these features in common:

  1. Their leaders have developed their emotional intelligence to communicate, relate, and lead more effectively, so that employees don’t feel the need to hire an outside party to represent them.
  2. Employees at all levels of the organization are encouraged to identify and leverage their strengths.
  3. Feedback is seen as being as vital as coffee breaks, and employees are trained to give and receive feedback with a growth mindset geared toward continuing improvement, rather than a fixed mindset seeing feedback only as negative criticism.
  4. Healthy conflict is encouraged as a way to sharpen thinking, resolve hidden disputes, and get the best out of each individual and team—minimizing the need for discipline and maximizing productivity, creativity, and innovation.

Because we believe in the power of these principles so deeply, Ice Miller has replaced its former “Labor and Employment Group” with a new “Workplace Solutions Group” focused on helping employers develop better leaders, more engaged workers, and more creative ways to resolve workplace disputes. Whether you are a union-free organization hoping to remain that way or a unionized employer hoping to increase the engagement of your workforce, our talented lawyers, coaches, and other professionals stand ready to help you build a better workplace. 

[1] If that title made you groan (as it did my wife, children, and everyone in my office), just be glad my editors rejected the original title: “Employees Espresso Increasing Desire to Unionize.” 

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.

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