As the COVID-19 pandemic continues and grows, worker concerns about safety, job security, and transparency on workplace issues have become forefront.  For example, Amazon has fired warehouse employees who protested the company's working conditions and COVID-19 mitigation measures.  Although Amazon stated it fired these employees for performance issues and violation of mitigation requirements within the warehouse, these firings are close to crossing the line for violations of the National Labor Relations Act (NLRA).

A senior executive of the company quit because of these terminations.  “I quit in dismay at Amazon firing whistleblowers who were making noise about warehouse employees frightened of COVID-19,” wrote Tim Bray, who worked as a senior principal engineer at the company’s cloud services group. “The justifications (for the firings) were laughable; it was clear to any reasonable observer that they were turfed for whistleblowing,” Bray wrote in his blog.

McDonalds employees did a walkout on May 22, the day before the shareholder meeting, to protest what they said were inadequate protections for employees during the COVID-19 pandemic.  The strike was supported by the Service Employees International Union and was organized by the "Fight for $15" minimum-wage labor campaign.  And just July 20, workers again walked supporting a Strike for Black Lives.

Employees may be asking themselves whether their employer is doing enough to promote their safety and well-being.  Unions will be capitalizing on these doubts, especially as more employers may be terminating employees who question mitigation measures.  People talk.  Unions will likely step up and be telling them that their employer should be doing more.  And as employees become more active in political causes, it complicates the employer-employee relationship.

Unions are becoming more competent with technology – using social media, text messages, and Zoom meetings to connect with groups of employees and organize virtually. Unions have started websites where employees who are “concerned about working during this Coronavirus pandemic.” Teamsters organizing director Jeff Farmer said the portal is meant to help nonunion workers "fight back," meaning to assert their rights and demand immediate change. Organizing — a tougher, more protracted battle — comes later.

"There is a pandemic that's creating an environment where workers fearful for their lives are taking action with their coworkers that they hadn't contemplated before," said Iain Gold, the strategic research and campaigns director for the International Brotherhood of Teamsters. "There is, I think, an unprecedented amount of organic, worker-led activity."

The AFL-CIO, the largest union group, is suing the Occupational Health and Safety Administration (OSHA) for not issuing an emergency temporary standard protecting U.S. workers against the Coronavirus.  "It's truly a sad day in America when working people must sue the organization tasked with protecting our health and safety," AFL-CIO President Richard Trumka said in a statement. "But we've been left no choice. Millions are infected and nearly 90,000 have died, so it's beyond urgent that action is taken to protect workers who risk our lives daily to respond to this public health emergency. If the Trump administration refuses to act, we must compel them to."

Employees may vote simply on emotion, not on the realities of unionization, from working through a third party to settle disputes to union dues, which becomes another deduction for an employee from their paychecks.  And depending on the negotiations, employees could lose out on benefits that the employer may otherwise provide.

For employers trying to fight the organizing, both timing and social distancing may be a negative to their efforts.  First, the time between when a union files a petition for an election and when the election takes place is very short, averaging around 3 to 4 weeks generally.   Second, social distancing makes it difficult for employers to conduct in person meetings with employees.   And if they do a phone conference or Zoom meeting, employers may not know who is listening.   Finally, with the NLRB conducting elections by mail these days, employers lose out on the realities.

Employers need to work specifically on messaging and listening to employee concerns.  By demonstrating concern with appropriate actions, it may delay and stop a possible union campaign.  Once HR hears rumblings, they should talk with the legal counsel as to possible approaches to appropriately and compliantly address employee communications and actions to short-circuit any unionization attempt.

Source:  Seyfarth Shaw 5/14/20, USAToday 5/19/20, Yahoo Finance 5/18/20, PC Magazine 5/4/20, Business Insider 3/30/20, Law360 5/21/20