Furthermore, no reminder is necessary that our current political and social environment is quite divided. Savvy employers know that they cannot allow any such unionization efforts to become the source of further divisiveness. Failing to remain "in tune" to the potential for such divisiveness could lead to the very results an employer should hope to avoid. Accepting a premise of "us vs. them" (i.e., management vs. labor) is an unhealthy foundation for workplace relationships, and it also will fit the narrative many union organizers are attempting to foster in claiming that employees need "protection" from management.

Factors contribution to unionization efforts

With these reminders as an overriding consideration, what factors are converging that cause many pundits to predict an increase in unionization and how should an employer respond? Of course, there are ever-present issues that many organizers use – job security, pay and benefits (healthcare sound familiar?), and a "safe" workplace with appropriate protections.

The current pandemic has raised some new issues, or, at the very least, has heightened these recurring issues to ever greater visibility. This is not an exhaustive list, of course, because each workplace has its own unique challenges, but here is an overview:

1. Greater economic unrest, which further supports the demand for job security. Many employees have been laid off or furloughed during the pandemic, and these job losses have given employees a sense that their jobs are insecure. These feelings enhance the "job security" pitch of many organizers.
2. Demand for higher pay and health care benefits, particularly in the health care space and other jobs deemed "essential."
   • Hazard pay. For workers who had to continue to work despite the risks of the pandemic, calls for hazard pay have become prevalent. This development highlights the common demand in general for higher pay.
   • Health care benefits. It almost goes without saying that fears of the pandemic increase a person's interest in being assured of adequate health care, as concerns about treatment for workers and their family members have increased.
3. Safety issues relating to workplace protections and the availability to personal protective equipment (PPE). Some organizers will emphasize the employers' actions that fit a "profit over people" narrative, and employers who appear uncaring about safety, especially in this pandemic environment, risk contributing to that theme.

So, how should an employer respond?

As mentioned above, savvy employers have a strong "track record" of credibility, transparency, and empathy upon which to base any response, and they know they cannot allow their responses to any unionization efforts become the source of divisiveness. These attitudes should inform and underlie all responses. The following is not an exhaustive list but provides some guidance.

Job security.

In responding to an organizer's claim that having a union provides greater "job security" for employees, employers would be wise to hit that message hard with these realities:

• If a union could solve the issue of job security, there would not be layoffs at union facilities, which all employees know does happen.
• The reality of job security rests with, and only with, satisfied customers; that is, only a demand from customers/clients/patients can provide job security.
• Plus, to the extent that a union's leverage for pressuring management is a threat of work stoppage (strike), the presence of a union could actually threaten, not enhance, job security.

Two other items of note:

• During the pandemic, was the burden of reduced demand due to the pandemic borne equally by management? That is, did management also have cutbacks in pay, or furloughs, or layoffs? If so, that too should be emphasized in any response, as an example of how the company (management and hourly employees) were truly "in this together" and worked as a team to address the decrease in demand.
• And, an employer would be wise to give additional questions for employees to ponder and examine for themselves, namely the following: what does a union's providing "job security" really mean in practical terms? Does that really mean, in practical terms, that a union will seek to protect those persons who are not performing from proper discipline and discharge? How does that help others (i.e., those who are performing their jobs) to ensure satisfied customers/clients/patients?

Hazard pay/health care benefits. 

If the employer during the pandemic showed responsiveness to employee concerns (and almost all employers took some steps in that regard), the employer would be wise to highlight such responsiveness.

• Did the employer provide enhanced pay and/or benefits, such as hazard pay, or enhanced sick pay, or staggered shifts, or work-from-home flexibility?
• In what ways did the employer show willingness to be flexible in the face of a public health crisis?

This unprecedented crisis showed the need for quick flexibility – and responding in "team-work" – for situations such as this that arise unexpectedly. That flexibility is not available (at least not quickly) to employers and employees who are tied to a union contract.

None of us has the power of exhaustive surveillance, and that is why employers need flexibility to address situations quickly, which being tied to a union agreement can compromise.

Safety Issues.

Again, if the employer during the pandemic showed responsiveness to employee concerns, the employer would be wise to highlight such responsiveness.

• Did the employer allow some employees (particularly those in certain at-risk groups) to refuse work for some period of time by relaxing attendance policy requirements?
• Was there increased availability of PPE? If not, and this was an issue, the employer should consider transparent communication about alternatives sought and what other steps were taken to address these concerns.
• Did the employer take steps to ensure safe return to work?

As discussed, wise employers should remain vigilant to this convergence of factors that could lead to an increase in union organizing efforts, while also deploying credibility, transparency, and empathy with its workforce as serving the greater purpose of a healthy workplace environment.

Tim K. Garrett ([email protected]) is a member at Bass, Berry & Sims PLC in Nashville. He counsels employers on issues related to all aspects of labor and employment law. 

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