Steven Swirsky Quoted in “Unions Organizing on Zoom Catch Employers by Surprise”

Law360 Employment Authority

Steven M. Swirsky, Member of the Firm in the Employment, Labor & Workforce Management and Health Care & Life Sciences practices, in the firm’s New York office, was quoted in Law360 Employment Authority, in “Unions Organizing on Zoom Catch Employers by Surprise,” by Kevin Stawicki. (Read the full version – subscription required.)

Following is an excerpt:

Videoconferencing platforms like Zoom have been useful for unions trying to organize swiftly and secretly, causing some employers and management-side attorneys to feel blindsided by recent petitions for representation elections, while some union-side experts sing the praises of virtual organizing.

Still, many observers from both the management and employee sides say Zoom is far from the panacea unions desire.

Zoom, which went into widespread use for employers and unions alike when the coronavirus pandemic made many workplaces virtual, has been particularly useful for unions trying to keep organizing campaigns hidden from employers, labor experts told Law360. …

Does Zoom Organizing Matter?

Whether an organizing campaign is conducted largely through Zoom can affect the chances of a union winning a representation election, experts said. …

How quickly an election petition is filed with the NLRB and whether Zoom helps facilitate further organizing up until the election can directly affect the amount of time an employer has to respond to a petition, according to Steve Swirsky of management-side firm Epstein Becker Green.

If Zoom has any effect on the speed of elections, Swirsky said that impact would only be compounded if the NLRB issues new rules related to expedited hearings in representation cases. During the Obama administration, the NLRB issued rules aimed at speeding up the union election process, but the board rolled back those regulations in 2019.

It's reasonable to expect that a Democratic-controlled board will engage in rulemaking and bring the election rules back to what they were in 2016, when companies had less time to respond to union petitions, Swirsky said. While employers have historically maintained that a longer period of time to respond to a union petition gives them time to effectively respond to it, unions have said that it's insincere to suggest the timing changes work against employers.

"This will make the timing concern all the more critical because if you don't have any idea that organizing is going on until a petition is filed or you receive a request for recognition, it really does mean the employer is at a tremendous disadvantage in terms of their ability to communicate their position," Swirsky said.

Zoom's role in organizing may also reflect a broader shift toward the increase in use of technology in organizing and NLRB election procedures, attorneys said.

For example, the increased use of Zoom in organizing may parallel other recent developments like the more frequent use of electronic union authorization cards and the push for electronic union elections, Swirsky said.