How companies use predictive analytics to get ahead of union drives

Striketober may be over, but the private sector’s fraught relationship with unions is seemingly never ending. As the labor shortage persists, employees will continue to look for leverage in a variety of ways, from seeking an end to forced arbitration to staging walkouts to forming a union.

The prospect of employees organizing sends many CEOs into a darker spot than our mental health when daylight saving time begins (reminder: the sun will set on parts of the East Coast at 4:45pm on Sunday). But Joseph Brock, a former union president turned labor relations consultant, says the prospect of a union organizing drive is “the best thing that can happen to a company.” He argues that union drives force companies to shape up.

“The threat is good because when an employer escapes an organizing drive by the seat of their pants, a lot of them implement change in the workplace,” Brock explained.

Brock is one of many consultants—some of whom charge up to $10,000 per day—who persuade employees that unionizing isn’t worth it.

Increasingly, these consultants rely on high-tech methods to identify priority targets. But labor organizers say consultant-driven campaigns are often rife with misinformation and make it nearly impossible for workers to successfully organize.

Sky eyes and heat maps

Some companies are applying advanced data analytics to predict facilities, teams, and individuals perceived as most at risk of unionizing; they then send consultants, like Brock, on-site to persuade these employees that management, not the union, has their best interests in mind.

This can include a new high-tech spin on what is often called a “union vulnerability assessment,”  which typically has been based on collecting employment data and surveys to inform management of possible union sympathies without tipping off the employees. Other examples:

• Cluster analysis, called an “Eye in the Sky” analysis by one firm, which alerts employers to union campaigns in the immediate geographic area, under the theory that union activity “happens in clusters.”
• Heat maps based on predictive analytics that flag high-risk locations in red. The underlying models can be advanced: Reportedly, Amazon-owned Whole Foods used more than two dozen variables including sales performance, employee “diversity index,” and team member satisfaction to create a store-level unionization risk score. In some cases, vendors like Perceptyx use a similar approach to drill down even further and create a vulnerability score for each employee.
• Personality indexes can leverage data from pre-hire assessments to rank employees’ attitudes toward reporting coworkers’ inappropriate behavior to management or discussing workplace concerns with supervisors.
• Employee surveillance of workplace behaviors can tip off management of organizing. Google reportedly auto-notifies management of any internal meeting scheduled with 100 or more employees, partially to weed out potential employee organizing.

“I’ve made these heat maps,” labor relations consultant Matt Antonek told HR Brew. “As a field, we’re so metrics-driven: We’ve got metrics for store performance, turnover, manager tenure—everything. If you put it all together and weight it appropriately, you get a good idea of whether the store is healthy or unhealthy. If it’s unhealthy, you might say, ‘Wow, we need to get together and find out what’s happening, see what is concerning employees.’”

BTW, is this legal?

To be clear, the National Labor Relations Act [NLRA] of 1935 “guarantees the right of employees to organize and bargain collectively with their employers, and to engage in other protected concerted activity.” Employers do not have to make the process easy. When it comes to worker surveillance, the NLRA asks if an employer’s behavior is “out of the ordinary” in a way that would tend “to interfere with, restrain or coerce employees” collective action.

Charlotte Garden, associate professor at the Seattle University School of Law and expert in labor and employment law, writes in her report “Labor Organizing in the Age of Surveillance” that “employers can continue practices adopted before employees began to engage in concerted activity (usually a union drive), even if those practices later have the effect of allowing the employer to observe concerted activity once it begins.”

John Logan, chair of the labor and employment studies at San Francisco State’s Lam Family College of Business, told HR Brew that he finds this surveillance particularly disturbing because employees may not know the data is being collected—or how it will be used. He further notes the law around surveillance hasn’t been updated for the digital age. He believes the NLRA is “totally incapable” of handling this level of sophisticated employee tracking.

“The law has just not kept up,” he said. “And the likelihood that this type of surveillance would ever become the subject of an unfair labor practice complaint is just far, far less because of the sub rosa nature of the activity.”

In English? Employers have every incentive to collect as much employee data as possible as early as possible: Data ranging from location tracking (like keycard swipes or meeting room reservations) to internal communications on computer servers to performance reviews and self-reported company-culture surveys could provide relevant insights that help employers understand which employees are leaning toward voting yes in a union campaign.

However, under the NLRA, employers cannot begin surveilling employees (physically or digitally) once a union organizing drive is underway. Ask Boeing: They made the mistake of starting to monitor union employees’ work hours and movements after a union drive was announced, and were hit with a NLRB complaint in 2018.

Targeted outreach

Antonek is part of the $340 million per year industry of consultants who work to keep unions from getting a foothold in US companies.

The National Labor Relations Board requires employers to uphold a standard known as “TIPS”: HR and supervisors cannot threaten, interrogate, make promises, or spy on employees to gain information about organizing efforts.

But predictive analytics, meant to be implemented before there is any sign of union organizing, allows employers to take steps to counteract an organizing effort without violating labor laws. According to Logan, the “mountain” of available data allows America’s largest employers to wage a “24/7, 365-day-a-year union-avoidance campaign.”

Based on advanced analytics, consultants will travel to high-risk facilities to launch a full-court press: They lead education sessions about what they claim to be the risks of unionizing (downsizing facilities, wages paid to union dues, etc.), train supervisors on talking points, and hold focus groups to hear employee concerns.

“I work in a lot of manufacturing settings where there might be one HR person per shift for the whole plant, so at baseline, it is almost impossible to create trust,” Antonek explained. “That’s a challenge, because we want people to feel comfortable coming to management with concerns. My top suggestion is to walk the floor. You need to take time to say, ‘Good morning,’ or talk about the football game. Ask yourself every day, ‘Was my feedback balanced?’ If employees only see you walking the floor to give corrections, they’re not going to trust you.”

Antonek said his strategy involves improving day-to-day communication and immediately tackling employees’ biggest-ticket workplace concerns. He contends that if management can address those priority items, workers will be less inclined to seek representation. Brock said that employers shouldn’t be afraid to “get out ahead” of the conversation about unions and lead the narrative.

“Talking to your employees about unions is kind of like talking to your kids about drugs,” Brock told HR Brew. “A lot of employers don’t do it because they’re afraid that they’re going to magically give [employees] the idea to go call a union. That doesn’t happen.”

What workers really want

To Kate Bronfenbrenner, the director of labor education research at Cornell University's School of Industrial and Labor Relations, these targeted tactics feel like punching down in an  already unfair fight. Although a 2017 study from the Economic Policy Institute found that 48% of nonunionized Americans “would join a union tomorrow” and a separate 2020 Gallup poll found 65% of Americans favor unions, union membership is on the decline.

According to the US Bureau of Labor Statistics, union membership nationwide in 2020 hovered around 11%; private-sector membership is currently about 6%, down from 32% in 1960, Time reported. New contracts are difficult to win: According to one study cited in MIT’s “Work of the Future” research, only one-seventh of union organizing campaigns that pass the initial hurdle of scheduling an election (a threshold that, in itself, requires signatures from at least 30% of the workforce) reach a collective bargaining agreement within the first year.

“As someone who’s been studying union campaigns for more than 30 years, sometimes I think it’s amazing that workers ever succeed, because we have such weak labor law, and employers have so many tools at their disposal to fight unions,” Bronfenbrenner told HR Brew.  “But the reason that workers succeed in organizing is because employers cannot give workers the reasons that they organize: Workers don’t organize because of wages. Workers don’t organize because of benefits. Workers organize for these intangible things that you can only get because of the union: Workers organize because they want a voice in work. They want respect. They want dignity. And you can only get that through an independent voice [that] they get through a union.”

If you’re feeling brave, forward that quote to the C-suite. We’d love to hear their thoughts.—SV

Do you work in HR or have information about your HR department we should know? Contact Susanna Vogel via the encrypted messaging apps Signal and Telegram (@SusannaVogel) or simply email [email protected].