In this episode, host Thom Jennings and attorney Kathleen Jennings discuss union activity in the workplace and how an employer can spot it before it takes hold. Kathleen discusses how to spot a potential union organizer during the hiring process, and how to manage the workplace when union activity is suspected or confirmed. Labor union activity is on the rise, so you cannot afford to ignore the warning signs.
Podcast Episode Transcript
You are listening to Cover Your Assets, a podcast that discusses the timely and significant legal issues faced by employers. Kathleen Jennings is an attorney who has over 30 years of experience in advising employers as to their legal responsibilities and has written extensively about employment law Inner Popular Cover Your Assets blog if your business has employees you cannot afford not to have your assets covered.
Thom Jennings (00:33):
Hello and welcome to Cover Your Assets, the Labor and Employment Law Podcast. And of course we are here once again with your resident expert, my sister Kathleen Jennings. And I'm your host Thom Jennings. I don't know that I even mentioned my name very often in the introduction, cuz, cuz during the, the, the introduction by the, the real announcer. I don't think I mentioned, I think it's just you, isn't it?
Kathleen Jennings (00:57):
You know, I don't know. I need to listen and find out. So I'll say that. My name is Kathleen Jennings and I'm here with my favorite brother Thom Jennings, who also to all of our wonderful listeners, Mr. Thom Jennings is going to have a birthday this week. So please everybody wish my brother a happy birthday
Thom Jennings (01:19):
And that's July 21st, cuz many people go back in the archives and listen to these episodes. But of course, if you want to send me a gift, please do, because I love gifts. Now, today's topic is one that my resident expert slash sister says is a hot topic. Now, when I think hot topic, I think of that store in the ball where I used to take my kids and they had funny t-shirts and skateboards and everything like that. But she says that this is indeed something that is getting a lot of discussion, a lot of traction in the labor and employment law community. And again, just to reiterate, for those of you tuning into the podcast for the first time, this is a podcast designed for employers dealing with these complex legal situations related to labor and employment law. So what is our topic today?
Kathleen Jennings (02:09):
Our topic today, Thom, is signs that a union may be organizing in your workplace. And the reason that this is a hot topic be is because that there are companies out there that for a long time have never had a union, and recently, within the last year or so, have had unionization and successful union elections. For example there's a Starbucks store in Buffalo, New York, not too far from you that recently became unionized. Amazon has had some locations that have had union votes in favor of unionization. And because of the way that the economy is right now where workers are scarce workers from what I've heard, are feeling more powerful and are pushing unionization in order to possibly strengthen their rights. So from the employer perspective, we need to be on the lookout for possible signs of unionization because as more unions get in, they will try to spread to more workplaces.
Thom Jennings (03:24):
Alright, and, and let's, let's have a little bit of full disclosure here. I am the member of a labor union, NIIT, which is the New York State teacher's union. So from my perspective, I'm coming from the perspective of, of a union person. Kathleen has never been in a union.
Kathleen Jennings (03:40):
I've never been in a union. But let me, let me say with the proviso that when I was in law school at nyu, I had a part-time job as a law clerk at Ncit.
Thom Jennings (03:55):
Oh, well, so you worked for the union that I am now part of, so that is wonderful.
Kathleen Jennings (03:59):
I did, yes.
Thom Jennings (04:00):
But ultimately, I, I think the, the importance in disclosing that is that we wanna try to remove ourselves from the topic in terms of the the, the emotions behind it and the opinion whether they are good or bad. I think that you would agree with me that ultimately foreign an employer, it is probably more ideal for them to not have a union in place. And maybe sometime, sometime down the road we'll talk about how, you know, union have working with a union and those laws impact the workplace. But I think, you know, from an employee perspective, I mean, I, I've really had a great experience being in a union. So that all being said, this particular episode is going to be about how to prevent a union in a place where there is not one already, correct?
Kathleen Jennings (04:49):
Well, it's yes, basically, look, what are the signs that you might have some organizing, which is, is what we're the first step toward a union. And if you see them what you can do to try to possibly avoid, you want to avoid getting to the point of a petition for a union election. And if that happens, there's a whole process where you really need to get council to help you navigate the National Labor Relations Act and the National Labor Relations Board process. So today we'll just talk about things to look for before that point, that there may be possible union activity in your workplace and lawful ways for you to deal with them.
Thom Jennings (05:36):
And we need to reiterate that statement because that may be the most important thing that anybody gets out of this podcast. Lawful ways to deal with union activity because there are many, many laws regarding protect, protecting employees that come into the workplace that are trying to organize a union. So let's use that as a starting point. I know you and I, I discussed before we came on air that about a particular case, it was put in the New York Times the the Buffalo Starbucks, which as you said, you know, you're in Savannah, Georgia, I'm in near Buffalo, New York. I'm, I'm not parti, I'm not familiar with that particular location of Starbucks, and I don't have an opinion about Starbucks in general as a company, but it looks like that the individual that came in there as an employee clearly had the agenda of starting a union. So in reading the article in the New York Times, and I'll put a link to it in the show notes so people know what we're talking about. What would you have recommended to them as their council to maybe look for in terms of the interview process when it comes to the, the very beginning of looking at employees who may be coming into the workplace,
Kathleen Jennings (06:50):
What, what that article talks about is a particular individual who was, who went and applied for a job with Starbucks and was hired, this person was a road scholar, highly educated and was what we in the business call a union salt. And a union salt is a person who is targeting a particular workplace for a unionization and goes and gets hired in that workplace as an employee. So they can basically be an insider to help talk the employees into filing a petition for a union election and to vote in favor of the union. So assault is someone some of the signs may be someone who is overqualified for the position or has a lot more education than the position really warrants. Maybe somebody who doesn't have any experience in your particular industry or with your particular company. Those are some signs that maybe this person has other reasons other than just wanting a job with your company. Now, sometimes overeducated people just wanna get a job with a particular company because they have good benefits or good hours. So that's just one of the things you wanna look for when you might think, you know, is there somebody who's coming in to possibly organize my workplace?
Thom Jennings (08:28):
And, and a couple takeaways from that. I mean, let's, let's just say that that it, yeah, this is a Starbucks, but these types of, this type of activity happens in every employment sector. You're gonna see it in factories, you're gonna see it in hospitals. So it could be nurses and not just baristas and, and people look at baristas and say, well, these are underpaid people that simply want more money, et cetera, et cetera. But you know, as my wife mentioned to me before we, we came on air, there's some nurses in Buffalo that are doing the same thing trying to unionize. And so something to keep an eye out for. Now, correct me if I'm wrong, but I guess my impression would be that if there is a salt assault is going to be a person who does their research, so they're not going to attempt to get a job in a place where they don't see the potential to organize a union. Is that a, is that a fair statement?
Kathleen Jennings (09:25):
Most likely. I mean, it would be a waste of their time to obtain employment with a workplace where they thought there was no possibility of unionization. So what you have that may precede your salt or it not necessarily assault. In some cases you may have a disgruntled employee who reaches out to a union because they feel like maybe their jobs in jeopardy or they're not being treated fairly. And so either to get back at the employer by reaching out to a union or because they think it will protect their job. If the employ, if the workplace is unionized, then you'll have the disgruntled employee also reaching out, not necessarily assault or just maybe somebody who's a true believer who believes in unions and just thinks it's a great idea. Now down here in the south, we don't have a lot of those. I think probably up near you, Thom, you have more of those folks that are what we would consider to be the union. True believers.
Thom Jennings (10:36):
Yeah, and I mean it's a, again, this goes back to state and federal law. There's federal laws that that protect union activity. There's state laws that protect union activity. And I, and there are traditions, I would imagine that a place like Michigan, for example, which has a long history and tradition of the, you know, having the auto industry being one of the main industries is probably a very pro-union state because most of the workers worked in unions. And in growing up in Rochester, you grew up in Rochester as well. We had two major employers in the area at the time. And we'll name 'em without, again, you know, saying in positive or or negative. But there was Xerox and there was Kodak, Xerox was Union, Kodak was not, but Kodak worked very hard to keep the union out. But they did it by offering really good benefits bonuses, all those types of things.
Thom Jennings (11:31):
I mean, when they were in a position financially to do so, unfortunately things changed. Kodak changed and whatnot. But that was definitely their strategy and they, they were very transparent about that. We don't want a union in here and we're gonna do that by making sure that our employees are happy with the working conditions. And I think that's another thing that, that needs to be noted, that as we said, they're a person that comes in to organize a union. They're looking for a workplace that, that is filled with disgruntled workers. Now most people say, oh, it's pay, it's always pay. It's always pay. It's not always pay. There's all kinds of different conditions that you need to look at in terms of your workplace that employees can be disgruntled about.
Kathleen Jennings (12:16):
Absolutely. And, and there was a time before the majority of employers offered healthcare benefits that Union o Union contracts would offer employees something they didn't have, which was health benefits, perhaps retirement benefits, and also just the concept of wrongful discharge in a most probably almost all if not all human union contracts pro require an employer to have some kind of cause to terminate employees. So if employees feel like people are being terminated for bad reasons or wrongfully or unfairly fairness is a big issue, maybe they feel like a union would offer them more protection.
Thom Jennings (13:11):
Yeah. And unfairness there fact, there's a, a viral TikTok video, which is weird for me to say cause I'm 55 years old. I don't really watch TikTok, but I did see a story
Kathleen Jennings (13:20):
<Laugh>, I think you do. Sounds like you do.
Thom Jennings (13:22):
I really don't. But there was a, i you do, there was a there was a story about a young lady who posted on TikTok about somebody that was promoted at her workplace and the, she trained that person, so she had trained that person. They came in and then that person was promoted over her and she says, I'm the one that chills up to work every day, and things along those lines. And it really does go down to fairness. So fairness said, pay fairness and like you said, termination, all those types of things. So I think step one, when it comes to proactivity, if you're gonna look, you, you really need to do some kind of assessment of your workplace that you can really gauge what employees are thinking. That's, and I think that that's a difficult prospect sometimes because employees don't always feel that they can be honest when it comes to employee surveys. I, I fill them out and, and they always say they're anonymous, but I don't believe for a second that they're anonymous <laugh>. And I don't consider myself an overtly paranoid employee. But do you think there's a,
Kathleen Jennings (14:21):
Are you, are you sure about
Thom Jennings (14:22):
That? Well, maybe a little bit, but it, it's, I mean, I don't, I don't really know a way that you can conduct those surveys in a way that employees don't feel comfortable enough to, to share what's going on. So what would you recommend in terms of doing an assessment of the workplace? I know you do things, you know, in terms of OSHA and things like that. Is there a way to kind of assess the, the culture of the workplace to see if there is the roots of maybe some disgruntledness, if there is such a word? If there's not, we should make it up.
Kathleen Jennings (14:56):
I think it's a great word. What you wanna really have are supervisors, particularly your frontline supervisors who have the kind of relationships with employees that they're going to hear if something strange is going on. Also, you need to train your supervisors, particularly your frontline supervisors, to look for some of the suspicious activities that could indicate that your employees are talking about banding together. You know, do you see folks employees getting together on a group and talking and when the supervisor approaches, they quickly shut up or quickly disband? Or do you see new alliances among employees in the workplace that weren't there before that seem strange to you, that don't have any sort of natural reason other than maybe they're talking about getting together? Or do you have employees who are starting to ask questions, specific questions about employer policies or employer benefits? More than usual.
Kathleen Jennings (16:10):
I mean, you always have folks that, that may have questions, particularly if they have a, an issue with their benefits. But if you start getting a lot of questions and a lot of inquiries or maybe a lot of requests for employees to see their personnel files, that can raise some suspicion that something else is going on. Also, look at your turnover rate and look at what people are telling you in exit interviews like we've talked about. If you start getting a lot of folks talking about they didn't feel like they were treated fairly or they didn't like the environment they were working in, that should raise con some concerns about is your workplace a possible target for unionization?
Thom Jennings (16:57):
Let's talk about turnover rate, because I would imagine that a workplace that has a high turnover would be more likely to see union activity based on the fact that your workforce, it doesn't have as many people that feel loyalty towards the company. The, the less the, the less amount of time you work for a place, the less loyalty that you have. And, and maybe on some level the less you fear about potential retaliation. And we will get to retaliation in terms of, of union activity in the workplace. But I, I mean, do you think if between the two, which really is, if there's any studies that, that look at this, of the two types of workforces, the ones that have the high turnover of the ones that have the low turnover, which do you think is gonna be the one that's more susceptible to have a union come in?
Kathleen Jennings (17:49):
Well, what, what we see is in a workplace where people are starting to talk about union unionization, the turnover rate will actually increase because in those discussions about unionization, chances are there's going to be negative comments about the workplace. And for some employees that's just gonna be that extra step to make them think, you know what? This place is lousy, I'm gonna go work someplace else. So union talk in your workplace can increase employee dissatisfaction because people are basically saying bad things about your company.
Thom Jennings (18:33):
So now back to the, the first scenario, we talk about Starbucks, but, and somebody coming there applying, they're clearly overqualified. I mean that's, that's a great scenario because there's some outward science, but let's face it, there's employees can get in to places and maybe get into a workplace and have zero intent of starting a union and somehow when they get there, they see an opportunity and pursue that. So you've done it, you've brought the employee in the salt. So what are the first steps that you should do as an employer wants that employee is within your workplace, and what are some of the things that you can't do that could get you in a whole pile of trouble?
Kathleen Jennings (19:12):
Well, once you start getting any kind, well, even before you have unionization, keep in mind that the Nat National Labor Relations Act governs pretty much all workplaces. Anybody that has any kind of goods and interstate commerce or anything, the National Labor Relations Act protects employee rights to talk about the terms and conditions of employment. Basically, you can't prohibit employees from talking about their wages, their hours of employment, their terms of employment, anything about the workplace, you can't prohibit employees from talking about that. You'll see, or I've seen in some employee handbooks, there may be a provision that says as an employee, we don't want you talking about your rate of pay with other employees under the National Labor Relations Act. That is unlawful. And you could get a charge from the National Labor Relations Board. And talk of unionization is obviously talk about the terms and conditions of employment.
Kathleen Jennings (20:20):
So you can't punish employees for talking about bringing in a union. You can't punish employees for bringing a petition for a union election and you can't punish employees for coming out and saying, I'm pro-union. Now you can punish employees if they have done something in the workplace that would otherwise warrant punishment. But you, you have to be very careful with people in particular who are spearheading a union election movement because those people are going to ha have some extra protection, quite frankly. And so if you take any action against them, you better be right about it and you better talk to council.
Thom Jennings (21:08):
And I had couple things to pull out of that I personal experiences, cuz gosh, we can't just make it through a whole episode without some personal experiences. <Laugh>,
Kathleen Jennings (21:18):
Of course not. That would be crazy. That's why you're here, Thom.
Thom Jennings (21:22):
Now New York State does did recently pass a law saying that employees are allowed to talk about pay rates. And my, my wife and I, we've actually had discussions, I don't wanna use the term argument, but it really was an argument, but in terms of discussing pay with other employees and, and the intent behind the law, I believe, at least as it was stated outwardly, was to address the disparity between male and female pay. So if I have the protection to discuss my pay rate with a coworker, then, you know, a female coworker could say, Hey, how come Thom's making, you know, $200,000 a year and I'm making 125 and we're doing the same job anyhow,
Kathleen Jennings (22:00):
You're making $200,000 a year. I
Thom Jennings (22:03):
Don't, I wish we would not be doing this podcast if I was making $200,000. Actually, we'd be doing, we'd be doing it in a really nice studio in the middle of New York City, probably Times Square area. So if anyone's looking for a podcast hosted $200,000 a year, I'm here for you. But my, my point being is that there was a period of time, and I think there is a generation of people that don't like to talk about pay rate and there probably is a perception out in the workplace that it's something that cannot be talked about. And but the employee manual at, at places that I work now, it states in there you can discuss salary. So in terms of proactivity, keeping union out, you're, you're gonna have to look at your, your salaries, make sure that if you're bringing somebody in, you may, there's a couple of things.
Thom Jennings (22:47):
You don't wanna bring somebody in higher than somebody that's worked there for a long, longer time because that is just a recipe for disaster and employees do find out about those types of things. So that is a legal protection as well. Now the question I have out of what you had just said in terms of union activity in the workplace area and being careful in terms of firing an employee or terminating their employment, whichever term is more politically correct, probably terminating, but I would imagine that if they were doing this activity during their regular work hours, that that could potentially be considered a dere election of duties. So for example, if during the regular course of the business day you're engaged in union activity, that would be fully protected, but an employee's not fully protected from, say, leaving their post and just walking around and talking to coworkers in terms of, you know, joining union. I mean, is that a, is that a fair statement or
Kathleen Jennings (23:45):
That's that's a fair statement and then, you know, there's a, there's a fine line. Because on the one hand, maybe if two employees are working together on some kind of assembly line and they're just talking with each other about the union, there's not a whole lot you can do about that. But the employee that is working on unionization or anything other than work when they should be working could be subject to discipline. Especially if you have a specific policy in your handbook that says that you would compare those people to perhaps the folks that are using their computers to watch tos while at work. And so if you had that kind of policy, then if you treat the people watching the tos the same way as the folks that are perhaps using computer resources on behalf of a union, then at least you could show you're consistent in the application of this policy. But it's, it's a fine line.
Thom Jennings (24:54):
All right, well, and we're, we're getting to that point. Speaking of fine lines, we're getting to that point where we gotta wrap this baby up and great topic, great discussion is always, hopefully people got something out of it. But to me, and I'll, I'll give one of my takeaways from my perspective and then I'm sure you have a, a bunch as well. Most important thing is if you suspect union activity is consult with counsel right away. Do not wait, do not cross go. Don't collect $200, however you want to say it. Don't try to handle it yourself. Cuz once those things start, I start going, you, you really need to make sure that what what you're doing is, is legal and ethical. So what
Kathleen Jennings (25:34):
Other and successful
Thom Jennings (25:35):
And successful. So let's how about some other takeaways today in terms of union activity
Kathleen Jennings (25:42):
Takeaways would be know your workplace, train your supervisors to know your workplace, to know your employees and to be aware of any changes in patterns or communications or anything like that. Keep, keep their head to the ground. That's what they need to be able to do. And as Thom said, he's absolutely right. If you suspect that you have union activity, union organizing activity going on in your workplace, you need to reach out to council that knows how to handle these matters. And there aren't a lot of 'em because for a long time we haven't had a lot of really heavy union activity. So make sure the council you reach out to knows what they're doing
Thom Jennings (26:27):
And make sure that counsel's last name is Jennings.
Kathleen Jennings (26:30):
There you go. I like that. What's
Thom Jennings (26:32):
Kathleen Jennings (26:33):
That was a softball right there.
Thom Jennings (26:35):
What's your what's your contact information?
Kathleen Jennings (26:38):
My contact information is kj email@example.com.
Thom Jennings (26:44):
And listen, if your employees are sitting around on the computer watching YouTube videos of this song, let's see if we can get it to play. Here we go,
Speaker 4 (27:03):
Uni young, it's wonderful.
Thom Jennings (27:07):
Then you know, you got a problem. I, you know, I was looking at, I was looking all over for some, some good music. So that's
Kathleen Jennings (27:12):
That is fantastic. That is, yes, that would be a major, major indication. Black, you
Thom Jennings (27:18):
Got a problem, you got a problem. So just remember, that's beautiful by the way. Disclaimer, we don't own the rights to that, so we only use a snippet of it. Black Eyed Peas, if you're listening, please forgive us. We just love that song so much. But anyhow ending on a little bit of, I guess levity is the term, this is the first time we've used that word on this podcast, but it's a great word. <Laugh>. This is a great word. I wanna say thank you as always. And remember, subscribe, share. We've we've had some great topic suggestions from people. We're gonna continue to, to, you know, solicit those. So if you got some topics, send 'em out our way. And I can say, you know what, I'm gonna let you sign off if, if you want this time sis, go ahead and tell everybody some nice things and then we'll sign off the program with you instead of me for a change.
Kathleen Jennings (28:00):
Wow. Well thanks bro. First of all, let's not forget to wish my brother a happy birthday. Happy birthday bro, little early, and thanks to everybody who's listened to our podcast and given us feedback. We appreciate it. We enjoy doing this, and we hope you enjoy listening as much as we enjoy doing it. Remember to please cover your assets.
The Cover Your Assets-The Labor and Employment Law Podcast is produced by Thom Jennings of the Caronia Media Group. For more details, you can contact him at firstname.lastname@example.org.
The information provided in this podcast is for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this podcast or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings. The opinions expressed at or through this site are the opinions of the individual hosts and guests.
Kathleen J. Jennings is a former principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters.