The headlines are everywhere. Take The Guardian, for example, which recently published an article titled “Booming US cannabis industry seen as fertile ground for union expansion.” (Michael Sainato, The Guardian, July 31, 2022.) The piece touts the growth in the cannabis industry, noting that the sector grossed between $17.5 billion and $21.3 billion in revenue in 2020 and is expected to grow to $41 billion in 2026. This perceived growth has led unions to target the cannabis industry. The article notes that the “United Food and Commercial Workers and Teamsters both represent thousands of workers in the cannabis industry and are leading union organizing campaigns to keep up with the pace of the industry’s growth.” (Id.)
But employers in the cannabis industry, like employers in any industry, must remain cautious in their approach to unions, as failing to do so could result in significant legal and PR problems. In a recent unionizing campaign in Denver, Colorado, a union alleged that a local cannabis dispensary “fired their whole staff, excluding management, then rehired them under a staffing agency.” (Bart Schaneman, Denver marijuana company’s dispute with union highlights PR Pitfalls, MJ Biz Daily, April 28, 2022.) The union promptly filed charges with the Colorado Department of Labor, alleging unfair labor practices.
The approach that the Denver dispensary allegedly took is, not surprisingly, the wrong one—but it is also not uncommon. Indeed, a study from the Economic Policy Institute found that “[e]mployers are charged with violating federal law in 41.5% of all union election campaigns.” (Celine McNicholas, et al., Unlawful, Economic Policy Institute, December 11, 2019.)
So, what can employers do to avoid unfair labor practice charges?
At the outset, there are a number of tactics employers may not use when it appears a union campaign is afoot. Under the National Labor Relations Act (“NLRA”), employers must refrain from (1) threats; (2) interrogation; (3) promises; and, (4) surveillance. (See, e.g., Society of Human Resource Managers, What Management Do During a Union Campaign, “Union Campaigning”, available at https://www.epi.org/publication/unlawful-http://www.shrm.org/resourcesandtools/tools-and-samples-hr-qa/pages/unioncampaigns.aspxemployer-opposition-to-union-election-campaigns/).
The National Labor Relations Board (“NLRB”) has provided a number of examples of actions employers may not take in response to a union campaign:
- Threatening employees with loss of jobs or benefits if they join or vote for a union or engage in protected concerted activity.
- Threatening to close the plant if employees select a union to represent them.
- Questioning employees about their union sympathies or activities in circumstances that tend to interfere with, restrain or coerce employees in the exercise of their rights under the Act.
- Promising benefits to employees to discourage their union support.
- Transferring, laying off, terminating, assigning employees more difficult work tasks, or otherwise punishing employees because they engaged in union or protected concerted activity.
- Transferring, laying off, terminating, assigning employees more difficult work tasks, or otherwise punishing employees because they filed unfair labor practice charges or participated in an investigation conducted by NLRB.
Thus, employers must refrain from coercive tactics when confronted with a union campaign. Unions similarly have an obligation under the NLRA to avoid threatening and intimidating behavior to force support for the union. (Id.)
So, what kinds of activities can employers engage in when coming up against a potential union? Practitioners often note that the union may communicate facts, opinions, and examples to employees. (See Union Campaigning.) Although some employers tend to run anti-union campaigns, the most effective campaigns emphasize the company’s benefits and the virtues of the management in the absence of the union. Indeed, “[ra]ther than run against the union’s record, management sometimes chooses to run on its own record.” Fulmer, Step by Step Through a Union Campaign, Harvard Business Review (July 1981). One example occurred when the president of a company wrote a letter to employees comparing their current benefits to a nearby competitor the union organized. (Id.) The letter compared 24 separate benefits, including everything from cafeteria service to wages. (Id.)
This approach seems to be the most effective. Employers, applying the “facts, opinions, and examples” method should:
- Emphasize that they are not against the union, in theory, but simply regard a union as inappropriate and unnecessary in their workplace.
- Explain that employees may sign union cards, but reiterate that they are under no obligation to join a union.
- Remind employees not obligated to speak with union organizers.
- Educate employees about the company’s benefits, especially compared to unionized competitors and similar companies.
- Educate employees regarding the various steps employees will have to take to seek recourse under a collective bargaining agreement (including using intermediaries like union stewards).
- Emphasize the costs of joining and participating in a union, such as initiation payments, ongoing dues, and fines and assessments.
- Note the risks involved in economic strikes, including being replaced and a potential requirement to picket.
- Inform the employees that unions may promise certain results, but they cannot make guarantees.
(See Union Campaigning.)
More critical than how to respond once a union begins trying to organize a workforce are the proactive steps employers can and should take to mitigate the risk of organizing. Unions tend to focus organizing efforts on employers whose employees appear most susceptible to the typical union promises of better wages, increased benefits, and a greater “voice” in the workplace. Thus, employers should proactively maintain positive employee relations with a focus on employee recognition, work-life balance for employees, and competitive wages and benefits. Creating a positive and rewarding work environment where employees feel valued and fairly treated is the best defense against the intrusion of a union. Also important to keep in mind is that once union organizing starts, employers are severely limited by law as to making any changes to pay, benefits, or other terms and conditions of employment. By creating a positive working environment with fair and competitive wages and benefits, employers not only reduce the risk of union interest but also are positioned to respond to any union organizing by highlighting the positive aspects of working for the employer, reminding employees of the benefits they enjoy without a union, which is far more effective than simply pointing out the negative aspects of a union.
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About the Author:
Aaron Burrell (Member, Detroit & Troy) focuses his practice in the areas of complex commercial litigation, labor and employment law, appellate law, and minority business enterprises. As a member of the firm’s labor and employment practice, he has successfully defended clients in a wide range of discrimination and unfair-labor-practice claims in state and federal court, as well as before the Equal Employment Opportunity Commission, the Michigan Department of Civil Rights, and the National Labor Relations Board. Mr. Burrell has also counseled clients on all aspects of the employment relationship including hiring, discipline, and the creation and enforcement of employment agreements. Mr. Burrell may be reached at 313-223-3118 or at aburrell@dickinsonwright.com.