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Welcome to AccelPro Employment Law, where we provide expert interviews and coaching to accelerate your professional development. Today we’re featuring a conversation about best practices for employers hoping to avoid unionization. Our guest is David Pryzbylski, a partner at Barnes and Thornburg and thought leader on labor relations issues.
He says the key for employers hoping to avoid unionization is to forge a workplace with wages, benefits and policies strong enough that employees see no reason to organize.
The workplace landscape has changed, both socially and politically, since the pandemic. The NLRB has adopted more pro-labor positions, and employees have re-evaluated what they want and expect out of their employers. “People appear to be much more interested and open to the idea of unionization post-pandemic than they were pre-pandemic,” he says. “And that’s because of concerns about working conditions.”
David Pryzbylski’s Barnes and Thornburg profile.
16:24 | Pryzbylski, David. Up and Away: Union Organizing Skyrockets 57% in Last Six Months. (2022, April 19). Barnes and Thornburg.
16:44 | Abruzzo, Jennifer. (2022, April 7). MEMORANDUM GC 22-04: The Right to Refrain from Captive Audience and other Mandatory Meetings. National Labor Relations Board General Counsel.
Unfair Labor Practices Charge Filings Up 16%, Union Petitions Remain Up in Fiscal Year 2023. (2023, April 7). National Labor Relations Board.
I. THE RISE IN INTEREST IN UNIONS
Matt Crossman, Host: We’re going to talk about steps companies can take to remain union free. But before we get to that, I’d like to lay some groundwork. In the culture, in the news and in actual fact, interest in unions seems sky high. In fiscal year 2022, 2,510 union petitions were filed—a 53 percent increase over 2021. At the same time, the NLRB has adopted more pro-labor positions. What do HR execs and employment attorneys need to know about how the increase in interest and changes at the NLRB are related, if they are?
David Pryzbylski: Let me start with how they’re related. I’ll start with the legal landscape first. As you noted, we’ve seen a lot of legal developments from the National Labor Relations Board since President Biden has had an opportunity to appoint what’s widely viewed as pro-union people to lead the NLRB.
So what we’ve seen is the board take incremental steps to make it legally easier for unions to file election petitions to represent workforces, and then to prevail in those union elections.
As they’ve paved the way to make it easier, we’ve simultaneously seen an increase in union activity. I think some of that’s related to the legal foundation that’s been laid to ease the way for them to make inroads into various companies, but I also think it’s kind of the luck of timing from a union perspective.
On the heels of the pandemic, we saw broad shifts in attitudes toward unions, and Starbucks is the primary example. In the last two years approximately, Starbucks has seen over 1,000 election petitions, so that accounts for much, not all, of that increase in union petition activity you just referenced.
It’s kind of a microcosm of what we’re seeing more broadly. And what I mean by that is people appear to be much more interested and open to the idea of unionization post-pandemic than they were pre-pandemic. And that’s because of concerns about working conditions. People saw workplaces in a different light and operating in a different way in the pandemic.
And then coming out of the pandemic, things started changing again, and that gave unions an opportunity to say, hey, if you don’t like some of these changes, guess what? We’re a third party voice that might be able to help you have more say in that process. At least that’s the sales pitch they give to employees when they’re trying to convince them to organize.
II. THE LOW-HANGING FRUIT OF BENEFITS AND WAGES
MC: You’re both a practitioner and a thought leader in this space, and you’ve identified several steps companies can take to remain union free. Everybody’s going to bring up pay and benefits. How can a company structure its pay and benefits so that when an employee looks elsewhere or thinks about a union, they will say, Nope, I’m actually doing pretty good.
DP: That’s a great question. Pay and benefits are always what I call low-hanging fruit, a threshold issue. If you’re not competitive on wages and benefits, it can be a catalyst to union organizing.
By and large union organizing drives tend to pop up when people feel disrespected at work. People are playing favorites among the supervisors. Policies are not being enforced consistently, et cetera.
But back to your point. Wages and benefits is something I think that if we can get competitive, make it transparent and quote unquote perceived as fair across the board, that’s going to take a strong piece of ammo away from the union and at minimum make our people feel valued, which is something A, we should want to do, and B, going to help us remain union free.
So when we’re looking at wages and benefits, I think it’s important for companies to do a few things. One on the wages side: Look at area and industry survey data to make sure you’re at or around market. Internally, make sure you’re paying people who are doing the same jobs the same way and at the same rate.
One of the worst things that can happen is all of a sudden somebody finds out they’re doing the exact same job, working the same hours, maybe even more, and they’re for some reason getting paid less and they don’t have an understanding as to why. That could certainly give rise to frustration and open the door for somebody like a union to come in and say, Hey, if you had us there, we wouldn’t let that happen to you.
Whether or not that’s true, that’s what they’re going to tell the employee. On the benefits side, I would tell you again, anecdotally in the last couple of years, non wage-based benefits, non health-care-based benefits, such as pet insurance, parental leave, all these other types of things that companies are doing, and employees are talking about, take an even higher position in employee’s minds as they’re considering what the total compensation package is.
So I think companies not only need to look at the traditional things like wages and health insurance, they also need to look at what are my competitors doing both in my industry and in my area for employees? Are they offering enhanced vacation and paid time off? Are they offering extended time away from work to work?
Those are the types of things that I think companies need to start looking at more and more. Because more and more employees are wanting those things, and unions oftentimes will say, Hey, if you vote us in, we’re going to push for those things, and we’re going to get them.
Again, that’s not always true, but that’s what they tell employees they’re going to do for them.
III. THE VALUE OF A UNION VULNERABILITY ASSESSMENT
MC: You also suggest companies run what’s called a union vulnerability assessment. What is that, when should a company do one and what will it show them?
DP: They can take all different shapes and sizes depending on how involved you want to be. I’d say the most basic level is running a standard employee engagement survey from top to bottom. So not just your hourly rank and file, but you want to definitely hit the frontline supervisors and mid-level managers as well, to get feedback from employees about how they perceive the workplace, how they perceive compensation and benefits and all of those things.
If, based on that engagement survey, you find out that there are many frustration points, people are very displeased with various aspects of the company, then that’s an indicator to you that there might be a window for a third party, like a union, to come in and try to capitalize on those frustration points.
I think that model is fine. But I think just sending out an engagement survey likely isn’t a great indicator because you’re only going to have certain people respond if it comes by email, for example, and oftentimes it’s going to be the people who are unhappy. Those are going to be the people who take the time to fill out that survey, probably more so than the people who are either neutral or happy with the workplace.
So what I usually recommend is in tandem with that you do some interviews or round-table discussions, particularly with the rank and file. If you want to take it a step above that, I always encourage my clients to sit down and meet with the frontline supervisors. The reason for that is the frontline supervisors have direct daily interactions with the rank-and-file employees, and they might be more candid with you with thoughts about not only their own perceptions of the workplace, but the perceptions of the people who report to them as well.
In addition, legally speaking, there are some prohibitions on what you can ask hourly non-supervisory employees when it comes to unions. So you cannot interrogate hourly rank-and-file employees on their union views, whether or not they want a union, etc. However, you can ask questions of frontline supervisors and managers to the extent they’re actually quote unquote supervisors about whether or not they think hourly employees are interested in forming a union.
So I think that is the best way to kind of round out that analysis. And make sure you have your finger on the pulse, not only from a vague indicator perspective of how do people feel about working here, but actually asking people who legally you can ask the question to: Do you think we’re at risk of unionization? If so, why? What areas or departments do you think we’re susceptible to unionization in? If so, what are the frustration points there, etc.
So I think if we’re thoughtful and do a holistic view of the organization, that’s going to be the best way to figure out if we truly are susceptible to a unionization effort.
MC: It seems to me it’s crucial for a company to not all of a sudden make a bunch of changes, not all of a sudden act like they’re interested in all these things when they get whiff of hints that union activity is afoot because by then it’s too late. How does a company be sincere about this without coming across as if they’re just trying to prevent the union?
DP: It’s a great point. I think if you as a company are only making changes once the U word is peppered around, then you are going to be viewed as trying to buy people off or just make amends.
Before I get to that though, another wrinkle here is once employees express interest in forming a union and the employer becomes aware of those potential efforts, or even the potential interest, legally, an employer is forbidden from making changes solely to avoid unionization.
So they would actually need an objective business reason to make changes without regard to the unionization efforts. So an employer would not only come across as insincere, but legally would face some challenges to the extent they were going to try to make some changes just because they found out employees all of a sudden were interested in a union.
So I think to your point about coming across as sincere and better yet, actually being sincere—we care about our people and we want to be a great place to work and we want to value our people—my experience is that the vast majority of companies out there do that, which is a good thing, even though maybe not all execute this perfectly or in the best way possible.
I think the important thing is starting now. How are we going to let employees know we value them? How are we going to be more transparent as an organization?
One issue I see come up, I would say in 85 percent plus of the union campaigns, as a frustration point of employees is lack of communications from the company about the state of the business.
I’m not talking about sharing EBITDA, profit-loss statements, and all these things that are going to make people’s eyes glaze over. It can be simple as quarterly or semi-annual meetings, with either the CEO, CFO, plant manager, depending on the size of your company, how many locations you have, et cetera.
Just having a half-an-hour meeting saying here’s how business is going, here’s some exciting opportunities we have in the future, here’s areas of improvement we’ve identified for the organization. Letting people know how their specific roles and or site fit into the vision for the company in the short term and the long term and sharing that type of information gets employees to buy into what the company is doing.
And I think that’s really important in building that transparency. I think also looking at your policies to figure out, are these, A, drafted in a way that people can understand them, B, are they being administered consistently and fairly. And if they’re not, we’ve got to fix that, nip that in the bud ASAP, because I would tell you, nine times out of 10, if that’s going on, you’re going to be at risk for unionization potentially down the road.
And then finally, C, I would look to see what improvements we can make on our policies. All policies have an opportunity to be enhanced. One thing I’ve seen work wonders for companies, going back to transparency, is developing employee committees. There are labor law issues that come into play in terms of how these have to be structured, but having employee committees be formed, such as an employee discipline peer review committee.
So when the company is issuing discipline, you would have a committee that includes members of the hourly workforce who sit down and review the facts of the discipline. And usually this is only at a certain level, right? Like a written warning or above or something along those lines. And then they, along with the group of managers, sit down and review the facts to ensure this is how we have handled these situations in the past.
That way, when the employee ultimately is issued discipline, nine times out of 10, they view that as a more equitable process because they know it was not just management looking at that, right? Their actual peers, the people they work shoulder-to-shoulder with every day, also had a voice in that process.
Being creative and thoughtful about policies can go a long way as well in helping foster transparency within the organization and positive employee attitudes towards the workplace as well.
IV. HOW TO DEVELOP A POSITIVE ORGANIZATIONAL CULTURE OF TRANSPARENCY
MC: One other thing you recommend companies develop is to maintain a positive organizational culture of transparency. What does that look like on a day-to-day basis?
DP: It starts with the frontline supervisors. To the extent we as a company are communicating with frontline supervisors, or worse yet, maybe not, maybe we’re only communicating with mid-level managers or directors and above. We need to be communicating business plans, long-term and short-term objectives with the frontline supervisors and ensuring those data points, those messages, are also being shared with the hourly workforce, maybe not on a day-to-day basis, but certainly I would say on a weekly, if not multiple time a month basis.
So in shift startup meetings, if you’re looking at a plant setting, that’s a great time for frontline supervisors to share that information.
And some of these people might need coaching, right? A lot of frontline supervisors were promoted because they were great operators or great performers. That doesn’t mean they were ever coached or taught or meant to be a manager of people. If we are going to do well as an organization with communication, we need to make sure the people who are managing our people on a day-to-day basis are armed with the tools and the training to effectively communicate clearly, succinctly, and also be in a position to address tough questions.
The worst thing we can do is ask a manager or supervisor to march out there with a message and have them not be prepared for the tough questions and how to appropriately respond to it
MC: You encourage companies to develop and maintain good relationships between employees and managers. I read all the time that employees don’t quit jobs, they quit managers. It seems to me that investing in training is really important here. Do you agree? And what other steps can be taken to develop and maintain those relationships?
DP: Absolutely. One thing I frequently see is a very high performer promoted into a manager or supervisor position. And that person does not have great people skills. The way they communicate with people, the way they set expectations and hold people accountable to those expectations can be perceived negatively by people.
So I think on the front end, it is critical to make sure we are doing regular training, and I don’t mean weekly by any means, but certainly when somebody is promoted or within a short period of time thereafter, and then maybe once annually or every other year, we have some type of training for our supervisors and managers on our expectations of how they treat people and communicate with people, methods and strategies they can use to communicate with people.
One thing I always stress in positive workplace training and situations like these is showing appreciation, right? I think a lot of people don’t realize how impactful a simple thank you to somebody who has gone above and beyond can be.
And I think a lot of people are shocked at how often a frontline supervisor or manager neglects to say the simple thank you to somebody.
V. COMMUNICATION IS VITAL
MC: Communication has been a factor in almost every subject we’ve talked about. And you argue that the NLRB has made it tougher for companies to communicate with their employees about unions. I’m going to read a quote from you. “Unfortunately for employers desiring to remain union free, the legal landscape looks to be more challenging when it comes to communicating with employees about unions.”
DP: So the current general counsel or top lawyer of the National Labor Relations Board, her name is Jennifer Abruzzo. She has issued a memo that says, in her opinion, captive audience meetings by employers with employees to express views on unionization are unlawful. So what does that mean?
During a union campaign or anytime a company finds out its employees have an interest in a union, historically, one of the more effective communication tools for a company is to have all-employee meetings, where at those meetings, site leaders, managers, executives, whoever the company deems to be the best people or person, sit down with employees and walk through various reasons why they don’t think unionization is a good idea for the employees, the site.
And they have an opportunity to talk about benefits that employees currently enjoy, what the collective bargaining process looks like in reality, as opposed to what the union might be portraying it as. They have a whole variety of things they can talk to and communicate about with the workforce to influence the workforce’s opinion towards unionization.
And they could require attendance at these meetings. So that’s why it’s called a captive audience meeting. And again, for decades, this has been lawful. It’s been the right of employers under the National Labor Relations Act. Well, again, Jennifer Abruzzo, the top lawyer at the NLRB has issued a memo saying she believes that practice is unlawful.
And if employers utilize that practice, and then if they win a union election, she will use that as a basis to set aside that union election and maybe even force union representation onto the workforce because the employer has created an environment where employees could not actually vote free and clear of any undue influence by the employers.
With that memo hanging out there and her position on that, employers are hampered. You can still have voluntary meetings, meaning you can still hold these meetings and not require attendance by employees, but you can’t penalize anybody who doesn’t want to attend.
This is a significant curtailment of a longstanding avenue of communication employers had at their disposal to communicate with employees about these issues.
VI. TURNING A LIFELONG INTEREST INTO A CAREER
MC: Now I want to pivot and ask you some professional development questions. I’m going to quote from your LinkedIn bio. The opening line is, “My interest in labor relations began early in high school, having grown up next to several of the largest steel mills in the world.” Question No. 1, where was that? Question No. 2, how did that experience shape you into the employment lawyer you are today?
DP: I grew up predominantly in Munster, Indiana. right by U.S. Steel Gary Works, former LTV and Inland Steel sites, which got rolled up into ISG, which got rolled up into ArcelorMittal, which is now Cleveland-Cliffs, and a bunch of other steel mills up on the lakefront. The reason I grew up predominantly in Munster, Indiana is both my parents are from Pittsburgh, both come from steel families. All my grandparents and uncles all worked in steel mills in Pittsburgh.
My dad took a labor relations management side role with U.S. Steel and got transferred up to the Iron Range in Minnesota at their iron ore mine operations. So I was born there, and then he got transferred to U.S. Steel Gary Works right outside Chicago.
At the same time, my dad’s twin brother, my Uncle Dennis, was a union steward at U.S. Steel back in Pittsburgh. So when we got together for Thanksgiving, Christmas, all the holidays, I grew up around debates between my dad and my uncle over overtime premiums, seniority, bidding rights, vacation schedules and all those things that were up for negotiation in the U.S. Steel contract talks. So I grew up around labor relations debates. It’s kind of funny, but that’s how I got interested in it and that’s what I’m doing today.
MC: So what are Thanksgiving conversations like now?
DP: Well, it’s me and my dad against my Uncle Dennis, both of whom have since retired. It’s more of the same, to be honest with you. My Uncle Dennis has a certain viewpoint, and I think my dad and I have a different viewpoint. But at the end of the day, we’re family, and we all love the Steelers.
MC: You are pretty active in the thought leadership field. How did that come about?
DP: Nine or ten years ago, my law firm launched a labor relations blog. And the first couple years, I was not extremely active. As I started to track daily or weekly labor law developments, kind of keeping a running outline of issues that were happening, things to be mindful of as clients are calling with questions, I started to put together more frequent blog posts. As I started to blog several times a month, I started to get inquiries from reporters, I started having companies reach out to me to see if I could work with them on specific projects, which was pretty exciting.
So since then, it just kind of snowballed. And now I’ve gotten into a weekly groove. It’s been very exciting for me, to meet new people, new connections, both in the media and through various client opportunities. In addition, the great thing about it is it truly does require me to be on top of labor law, so I’m not surprised when somebody calls with an issue if there’s been a legal development. I usually can already talk intelligently about it because I’ve read about it, and I’ve also written some analysis around it as well.
This AccelPro audio transcript has been edited and organized for clarity. This interview was recorded on August 31, 2023.
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