Right-to-Work part 2: Beware of “piecemeal” organizing
January 17, 2013
Article courtesy of SBAM Approved Partner ASE
By Gary Klotz
(The following article is the second of a two-part series. It identifies issues non-unionized employers who want to stay non-unionized should concern themselves with regarding Right to Work. Click here for Part 1.)
Most non-unionized employers believe two things about Michigan’s new “right-to-work” (RTW) law: it will either be irrelevant because they have no unionized employees or helpful to them because, by weakening unions, it will further reduce the risk of union organizing.
A potential unintended consequence of the RTW law, however, is that it may actually increase the risk of union organizing. As discussed in this space last week, one potential negative effect of the RTW is that it will enable unions to offer apparently “no-risk” unionization to non-unionized employees—that is to say, the benefits of a union without the obligation of compulsory union membership and financial support of the union.
There is still another potential, negative, indirect effect of the RTW law on non-unionized employers. It concerns the possibility that unions will organize “mini” or “micro” bargaining units.
Since 2011, the current pro-union National Labor Relations Board, departing from NLRB tradition, has authorized representation elections in any bargaining unit sought by a union that the NLRB views as “appropriate,” even if the bargaining unit consists of only a single job classification or a small segment of the workforce. This authorization constitutes one of the most unfavorable and potentially damaging developments for non-unionized employers in recent years, because it effectively exposes them to the risk of piecemeal unionization.
In the new RTW environment, unions may seek to organize “mini” or “micro” bargaining units in which their support is concentrated. Obtaining the required majority support in a “mini” or “micro” unit may be easier for the union to achieve. In addition, employees in these small units may be more inclined to voluntarily become dues-paying union members, despite the RTW law.
Successfully organizing and effectively representing a “mini” or “micro” bargaining unit may help a union demonstrate the value of unionization to other employees in the workforce whom the union can then seek to organize. It creates the scenario for piecemeal unionization.
In addition to the risk of “mini” or “micro” bargaining units, a further indirect effect of the RTW law on non-unionized employers is that employee handbook sections about unionization will need to be reviewed and potentially revised. Many handbooks now contain language similar to the following:
No Company employees have to join a union and pay union dues to keep their jobs at the Company.
This language addresses the issues of compulsory union membership and financial support of a union by advising employees that if they unionize, then they will have to join a union and pay dues. The RTW law, however, means that this kind of language is now inaccurate and obsolete. A non-unionized Michigan employer should update its handbook section about unionization to eliminate this kind of language. Prospectively, handbook language should not allude to compulsory union membership and compulsory financial support of a union if employees were to unionize. Instead, an employer’s statement on unionization should focus on other reasons why employees are better off without a union.
In response to the new RTW environment and the risk of “mini” or “micro” bargaining units, non-unionized employers, as a preventive measure, should also review their programs for remaining union-free and their effectiveness. To remain union-free in the new RTW environment, an employer will need to continue to create a positive workplace in which employees view unionization as unnecessary. The employer will have to persuade employees that the value proposition for remaining union-free is preferable to the value proposition of unionizing in the new RTW environment, with “no risk” of compulsory union membership and financial support of a union.
The expectation that the RTW law will weaken unions in Michigan and reduce the risk of union organizing to non-unionized employers may prove to be correct. But a potential unintended consequence of the RTW law may be that it will make it easier for unions to organize employees with the sales pitch of “no risk” of compulsory union membership or financial support of the union. And it may make employers more vulnerable to the piecemeal organizing strategy now authorized by the NLRB.
For non-unionized employers that want to remain union-free in the new RTW environment, continuing to create a positive workplace and to maintain robust programs for remaining union-free is essential. Even after the enactment of the RTW law, a non-unionized employer will need to continue to make the maintenance of its union-free status a top organizational goal and to support that goal with effective programs and training.