January 10 Tip of the Week
Amazon, Starbucks, who is next?
What do Amazon and Starbucks have in common? They both have been subject to union organizing drives in the last few months. Amazon was able to stave off a union election in its Alabama location and an effort to unionize a Staten Island facility has been shelved for now due to a lack of the required number of signatures on the petition. Starbucks, on the other hand, has not been quite as successful in avoiding a unionized workforce at a few of its locations.
Workers in a Starbucks in Buffalo, New York, a traditionally blue-collar area with a higher density of unionized workers than other surrounding states, voted to be represented by a union. Ballots are still being counted in two more stores in the Buffalo area and union organizing drives are also occurring at Starbucks stores in Mesa, Arizona and Boston, Massachusetts. With nearly 25% of its workforce belonging to a union, New York has the highest percentage of unionized workers than any other state. Alabama, where the first attempt to organize Amazon took place, has approximately an 8% unionization rate – a very low percentage when compared to New York, but one of the highest unionization rates in the Southeast, an area that has not been hospitable to unions.
Could the recent union campaigns at two of the largest employers in the United States signal an increase in union activity? Certainly, the concerns surrounding worker safety and working conditions particularly during the COVID pandemic have created an environment that is more conducive to unionization and collective activity. In addition to worker concerns, the National Labor Relations Board has also taken a more sympathetic view to labor unions resulting in several policy changes that employers need to be aware of when dealing with employees.
A primary manifestation of this move toward a more pro-labor NLRB is a shift in how the Board views an employer’s efforts to discipline or otherwise address an employee’s conduct at work and an expansion of the definition of concerted activity. Policies that are being scrutinized as infringing on a worker’s right to engage in collective activity include social media rules, media communication rules, civility rules, and use of email and other electronic communications. Attempts by employers to discipline employees for wearing shirts that show support for union activities can run afoul of the NLRB’s prohibition on the unlawful interference with an employee’s right to engage in collective activity.
In fact, the “inherently concerted doctrine,” a premise that asserts that an employee engages in concerted activity when they are engaged in discussions about vital terms and conditions of employment, has been expanded to include conversations about health and safety in the workplace. In today’s COVID world, this means that employers need to be careful in how they address issues such as mandatory vaccinations and employee concerns about working conditions that expose them to COVID.
What does this mean to employers? The shift in federal labor policy has made it even more important for employers to review their employee conduct and discipline policies and employee handbooks to ensure that they do not impermissibly interfere with employees’ rights of self-expression and the ability to engage in collective activity. Employers should also consider how their actions impact morale in the workplace; disgruntled employees are more likely to unionize. Ensuring that all employees are treated fairly and consistently can minimize the risk of collective activity. ASK HR can help you in the review of your policies and handbooks and can assist you in addressing worker misconduct and discipline issues.