COVID-19 AND AMERICA’S RETURN TO WORK · Impacts both unionized and non-unionized workplaces...
32
COVID-19 AND AMERICA’S RETURN TO WORK: Organized Labor’s Challenge to Union and Non-Union Employers
Transcript of COVID-19 AND AMERICA’S RETURN TO WORK · Impacts both unionized and non-unionized workplaces...
COVID-19 AND AMERICA’S RETURN TO WORK:
Organized Labor’s Challenge to Union and Non-Union Employers
2
Polsinelli COVID-19 Resources
Contact
For COVID-19 legal advice across a spectrum of
issues impacting an array of industries and legal
areas, our team is available and connected
nationally and in the communities in which you
operate.
Contact us with questions at:
Polsinelli’s cross-disciplinary COVID-19 blog
provides companies tools and information needed
to effectively and lawfully protect their employees
and business.
Visit our blog:
https://www.covid19.polsinelli.com/
Blog + Resources
2
Introduction
Unprecedented Opportunity for Union
Activity
Caution for Non-Unionized Workforces
Protected Concerted Activity
The Upcoming Federal Election
Considerations for Unionized
Workforces
Immediate Action for All Employers,
including Lawful Communication
Today’s Topics
An Unprecedented Opportunity for Union Activity
Richard Trumka
President, AFL-CIO
"Since this crisis began, the Department of Labor and federal government have failed to meet their obligation and duty to protect workers; the government's response has been delinquent, delayed, disorganized, chaotic and totally inadequate."
Until the last couple of years, union
membership has experienced a
decades’ long decline
Unions are capitalizing on COVID-19 to
turn impassioned worker-activists into
union members
Worker Unrest Sets Stage for a Wave of Organizing Efforts
Iain Gold, Strategic Research and Campaigns Director,
International Brotherhood of Teamsters
"There is a pandemic that's creating an environment where workers fearful for their lives are taking action with their co-workers that they hadn't contemplated before.
There is, I think, an unprecedented amount of organic, worker-led activity."
Todd Crosby, Organizing Director
United Food and Commercial Workers
“We are building a real organization at the workplace to win collective bargaining rights.” “In some other places…we’re working with activists to engage in rebellion and protest that may lead to a permanent organization and collective bargaining.”
“Like a Match to a Haystack”
In recent weeks, there have been protests,
strikes and work stoppages in the
following industries:
Healthcare
E-commerce
Transportation
Distribution, Shipping, and Logistics
Grocery and Retail
Food processing and packaging
Sanitation
Fast food and restaurants
Caution for Non-Unionized Workforces: New Organizing Efforts
Non-union employees are
seeking:
Job Security
Safety Protections
Increased leave and time off
Improved benefit programs
Transparency
The environment is ripe for organizing efforts.
Fight for $15 efforts have enjoyed moderate success, particularly in
metropolitan areas where COVID infections are highest
Federal legislation has provided unemployed workers with an
additional $15 an hour benefit through July 31, 2020, which may
translate to a demand for higher wages upon reentry to the workforce
Many workers who are “essential” are now being paid less to work in
hazardous conditions than unemployed peers
CARES Act loans mandate neutrality in organizing campaigns
Caution for Non-Unionized Workforces: New Organizing Efforts
What Organizing Activities Should You Look For?
Employee meetings and gatherings,
particularly off-site or between employees
who don’t normally socialize together
Employees seen frequently visiting work
areas or departments they do not normally
visit
Significant increase in questions relative
to wage increases, benefits or company
policies and procedures
Presence of union literature on bulletin
boards or in break rooms
Significant employee turnover
Increase in allegations that the company
is violating labor statutes
Increase in employee complaints about
management or supervision
Employee attendance at union-sponsored
meetings or rallies
In the era of COVID-19, it is important to be on alert for these activities in
virtual settings, such as social media.
Do not look at any material offered by a union, especially authorization cards
Do not open a letter from a union
If you do open a letter, do notlook at the authorization cards
What Should You Do If Contacted by a Union?
Grants employees two basic rights:
To form, join or assist a union
To engage in concerted activities for mutual aid or protection, which is
any effort by two or more employees to improve pay, benefits, or
working conditions
Impacts both unionized and non-unionized workplaces
National Labor Relations Act
Section 7 of the NLRA provides that “employees
shall have the right to self-organization, to form,
join, or assist labor organizations, to bargain
collectively . . . And to engage in other concerted
activities for the purpose of collective bargaining or
other mutual aid or protection.”
Section 8 of the NLRA makes it unlawful for an
employer to “interfere with, restrain, or coerce
employees” in the exercise of their Section 7 rights.
Protected Concerted Activity in the Age of COVID-19
Does it affect terms and conditions of employment?
Do coworkers comment? (If no comments, then no concerted
activity in some cases)
Can lose protection if comments are, among other things,
“opprobrious” or disloyal
Individual gripe—or commenting on terms and conditions?
Protected Concerted Activity: The Test
An employee speaking to a supervisor on behalf of other
employees about lack of sanitation supplies
An employee posts on social media complaining about
inadequate PPE
Employees circulating a petition asking for paid sick leave
Several employees walk out of work to protest working
conditions
Examples of Protected Concerted Activity
Current administration has not
advanced as many employer-
friendly policies and initiatives as
was anticipated, particularly at the
regional level
Potential change in administration
on the horizon
Discourage Seeking Shelter in the Administration
Bargaining over the impact/effects of the pandemic (i.e.,
COVID-19 policy, FFCRA leave, hazard pay,
layoffs/furloughs/return to work, safety)
Mid-term bargaining issues/reopeners
Increased joint labor-management meetings
Economic/safety considerations in successor agreements
Protected, concerted activity over workplace concerns
Considerations for Unionized Workforces: Bargaining Issues in Light of COVID-19
• Refusal to Return to
Work
• Potential for Strikes
or Other Work
Stoppages
• Demands for Hazard
Pay and Better PPE
Consideration for Unionized Workforces: Return to Work Issues
Revisit Policies
Solicitation and Distribution
Access to Premises
Social Media
Educate Supervisors
Observe Employees
Carefully and Quickly Respond
Best Proactive Practices for All Employers
py
romise
nterrogate
hreaten
Respect Employee NLRA Rights:
S
P
I
T
Respect Employee Rights: Don’t SPIT
Don't spy on or appear to spy on union activities.
Don't ask any coworker to spy on union activities.
Don't go to a union meeting or near where a union meeting
is being held.
Don’t Spy
Don't make or act on any promises of a benefit in return for a
coworker not engaging in union activity, such as promises of:
o Higher pay
o More overtime
o Better benefits
o Extra privilege
o Better treatment
o Promotion
S Be careful about Promises
Don’t ask about:
Past or present union membership.
Union buttons, shirts, stickers, etc.
Feelings or opinions about union(s) or
union officers
Voting intentions
Signing of a union card
Union Activity
Don’t Interrogate
Don't make or act on any threats to discourage union activity or
support. Unlawful threatened actions may include:
o Benefits cuts
o Shift changes
o Loss of privileges
o Workload changes
o Termination
o Blacklisting
o Demotions
Don’t Threaten
This is exactly what the union is hoping you think.
NOT SAYING ANYTHING IS THE WORST THING YOU CAN
DO.
There are four things you can’t do and HUNDREDS of things
you can do!
REMEMBER – If your employees don’t hear the facts from you,
they won’t hear them anywhere.
“If there are so many things we can’t say, I just won’t say anything.”
(c) The expressing of any views, argument, or opinion, or the
dissemination thereof, whether in written, printed, graphic, or
visual form, shall not constitute or be evidence of an unfair labor
practice under any of the provisions of this Act, if such
expression contains no threat of reprisal or force or promise
of benefit.
Section 8(c) of the NLRA
act
pinion
xperience
Respect
F
O
E
What can you say about unions?
31
Polsinelli COVID-19 Resources
Contact
For COVID-19 legal advice across a spectrum of
issues impacting an array of industries and legal
areas, our team is available and connected
nationally and in the communities in which you
operate.
Contact us with questions at:
Polsinelli’s cross-disciplinary COVID-19 blog
provides companies tools and information needed
to effectively and lawfully protect their employees
and business.
Visit our blog:
https://www.covid19.polsinelli.com/
Blog + Resources
31
Polsinelli PC provides this material for informational purposes only. The material provided herein is general and is not intended to be legal
advice. Nothing herein should be relied upon or used without consulting a lawyer to consider your specific circumstances, possible changes
to applicable laws, rules and regulations and other legal issues. Receipt of this material does not establish an attorney-client relationship.
Polsinelli is very proud of the results we obtain for our clients, but you should know that past results do not guarantee future results; that
every case is different and must be judged on its own merits; and that the choice of a lawyer is an important decision and should not be
based solely upon advertisements.
© 2020 Polsinelli® is a registered trademark of Polsinelli PC. Polsinelli LLP in California. Polsinelli PC (Inc.) in Florida.
polsinelli.com
