A Loading Dock and a Latte: The Millennial Workforce Changes the Rhythms of Union Organizing With a Little Help From the National Labor Relations Board

This article reflects on how, led by changes in retail and logistics, the dynamics of union organizing have made rapid shifts, and how changes in legal policy at the federal level are accelerating and supporting those changes.

As noted by the NLRB Office of General Counsel in April of this year, “[d]uring the first six months of Fiscal Year 2022 (October 1–March 31), union representation petitions filed at the NLRB have increased 57%—up to 1,174 from 748 during the first half of FY2021. Organizing drives in the logistics industry, most notably in Amazon warehouse operations, accompanied by high profile retail targets like Starbucks have captured media attention. For those of us engaged in advising employers responding to organizing, identifying common catalytic elements can be crucial in identifying why well honored and effective techniques like employer sponsored group meetings are failing.

One standout factor is the camaraderie of the millennial  workforce staffing such jobs and their common interests. One of the most distinctive is the workers are also the customers, whether as purchasers of on­line merchandise, often as not, from their laptops or phones while in a coffeehouse. This is new. Industrial workers did not consume the coal they mined or, as directly, the industrial products they helped manufactured. Labor unions faced a historically challenging burden of convincing workers to assume the risks of retaliation for the common purposes of enhanced worker bargaining power.  However, in this new environment, the millennial workforce is, in essence, a natural organizing environment, where workers share social and cultural bonds.

A useful window into how well the current, union friendly presidential administration, understands this development, are the comments by NLRB General Counsel Jennifer Abruzzo, in an April 7 Memorandum labeled, The Right to Refrain from Captive Audience and other Mandatory Meetings (GC 22-04 April 7, 2022).

GC Abruzzo sets the table thusly:

In workplaces across America, employers routinely hold mandatory meetings in which employees are forced to listen to employer speech concerning the exercise of their statutory labor rights, especially during organizing campaigns. As I explain below, those meetings inherently involve an unlawful threat that employees will be disciplined or suffer other reprisals if they exercise their protected right not to listen to such speech.

The employee right nominally being protected is the right of employees to communicate amongst themselves under Section 7 of the National Labor Relations Act. The GC appears to be advancing the argument that any employer required, or sponsored group meetings necessarily contains within it an “inequality of bargaining power” between individual employees and their employers, as employees depend upon their employer for their jobs, an “economic dependence”  standard  articulated by the Supreme Court in   NLRB v. Gissel Packing Co., 395 U.S. 575, 617 (1969) notwithstanding the basic principle that employer speech is itself a protected right.

In this context, the GC proposes:

The Board adopt sensible assurances that an employer must clearly convey to employees that their attendance is truly voluntary. Such an approach will appropriately protect employers’ free-speech rights to express views, arguments, or opinions concerning the employees’ exercise of Section 7 activity without unduly infringing on the Section 7 rights of employees to refrain, or not, from listening to such expressions.

For the millennial workforce, the sea change is that this “workforce”, whether by text, email, social media or shared space is naturally in constant communication with itself. This means that any effort by an employer to control such an already active group behavior runs the risk of reinforcing the sense of group solidarity and power – exactly the opposite effect of any employer intent to discourage unionization

CONCLUSION

In GC 22-04, Counsel’s office seems to suggest employers craft policies that ensure attendance at such meetings are “truly voluntary”, which necessarily implies that any policy short of such a goal, even if achievable, creates the potential for unfair labor practice charges. More fundamentally, the lesson being learned is that in the current worker environment tools meant to “bust” unions will only make them more likely.

Share this post: