3 Questions with Ann Freeman and Tara Walker: Union Activity in Maine

Bernstein Shur’s Ann Freeman and Tara Walker answer questions about recent unionization activity.

It seems like there is a lot of union activity in the news lately!  What’s going on?

It’s true. Unions have been active across the country, but particularly in Maine. This trend does not just involve the big-name retailers like Starbucks or Amazon, which have been dominating the headlines. We have seen far more unionization efforts in small companies, nonprofits, and political organizations throughout the state, which never make the news.

Anecdotally, we see this in our practice. Before the last two years, new union organization efforts were fairly novel and did not occur with much frequency. However, in the past years, our Labor and Employment Practice Group has been involved in several new unionization efforts and new contracts, and nearly all of them are small employers in Maine.

There are a few possible economic and social reasons for the increased activity. (1) The obvious one is the pandemic. Employee’s hours and demands often increased as a result of the pandemic, whether it was in healthcare or because coworkers had competing childcare obligations or were sick or caring for loved ones. They began demanding better wages and benefits, more time off, and changes to their working conditions. (2) With widespread labor shortages, employees also feel more emboldened; rather than getting a new job, they are pushing their current employers to provide greater benefits because they know their employers want to keep them.

There have also been a few legal changes in recent years that may explain this shift. First, after the U.S. Supreme Court decision in Janus v. AFSCME, Council 31 in 2018, with public sector unions no longer able to charge union dues to nonmembers, we believe that unions have become more active in mobilizing the private sector. This has generally taken the form of unionizing progressive, nonprofit organizations who tend to be more union friendly. For those employers, it is critical to have labor counsel who can strike a careful balance between representing the employer’s mission and understanding management concerns.

Second, under the Biden administration, it’s widely expected that the National Labor Relations Board (“NLRB”) will change its rules, making it easier to organize small businesses with so-called “micro-units.” We saw this standard applied with units as small as 5-6 employees in Maine. This standard was recognized in 2011 case, Specialty Healthcare, but had disappeared for a time during former President Trump’s administration. The NLRB is considering this standard now, and a return to the Specialty Healthcare standard would make it easier for a just a handful of employees in a department or subset to share a “community of interest” and unionize. Stay tuned.

What can organizations do to address employee concerns if we sense possible union interest? Can we be proactive?

Yes!  There are a number of things employers can do to address these concerns before they arise. Employers should be proactive and responsive to employees’ complaints and concerns.  Transparency is also key. Share information which impacts the company and the employees and be as open with your communications as is practicable. Encourage your supervisors and managers to have open communications and dialogue with their employees. Ensure your managers and supervisors are appropriately trained on how to respond to employees’ complaints and to bring them to leadership so that there is awareness of what the issues may be. Often, we find that there can be intermediate managers or supervisors whose management style leads employees to organize. If you have poor managers, make sure you are responding to their performance.

Ensure that your organization’s employment decisions are equitable and are consistent with your organization’s policies and procedures. Do not be shy about sharing all the benefits that your organization offers and emphasize being pro-worker (vs. anti-union). Consider performing a cost analysis between the cost of making certain changes to employees’ wages and/or benefits and the cost of handling a union organizing campaign at your workplace. The latter can be incredibly costly, not just in financial terms, but morale, productivity, and reputation.

If you have reason to believe that your employees are organizing or in contact with a union, call your labor counsel.

What kinds of common mistakes can be made if employers try to navigate the campaign without legal advice?

When handling unionization efforts, management can quickly get in hot water with the union and the Maine Labor Relations Board (for public sector employers) or the NLRB. The kinds of actions that the National Labor Relations Act (“NLRA”) and Maine law prohibits are not intuitive. We often see employers who, acting out of an abundance of good faith and earnest effort, trip over the rules that are not obvious about how the employer must conduct itself during a union campaign. Most often, it is not owners or high leadership, but intermediate or lower-level supervisors who have more regular, direct contact with the organizing employees who say or do things that lead to prohibited practice complaints (public sector) or ULP charges (private sector).

Employers and individual supervisors may have the best intentions. They may feel that the unionization effort reflects some personal failing on their part. They may also feel that they are fully equipped to respond directly to concerns or to convince employees that unionization is not the right direction. But good intentions may still violate the law. For example:

• Asking individual employees their stance on the union or how they will vote, their reasons for unionizing or issues that they have discussed is prohibited by the NLRA or Maine law, depending on the context.
• Often, managers and leadership are tempted to assure their employees that they can redress their concerns. Again, depending on the context, this is also something that can be prohibited by the NLRA or Maine law.
• Employers are also limited in the restrictions you may place on your employees who are wearing union paraphernalia or distributing union literature. If you allow other groups to “solicit” your employees, you may not be able to restrict the union from similar opportunities.

Bottom line: getting in touch with experienced labor legal counsel as soon as possible is critical.