In today’s episode, Mike talks with Dan Gilmore, an experienced labor and employment attorney. Dan helps his clients understand the changing legal landscape around unions and organizing.
He’s the founder of Squire Strategies, where he advises employers on staying union-free through better communication and engagement with employees. Dan shares insights from his 30+ year career representing management.
Dan Gilmore’s Bio
After serving as a Judge Advocate in the United States Marine Corps, I joined the Tennessee-based firm of Miller & Martin and began a decades-long career in employment law. With Miller & Martin, I spent ten years in Southern California serving as “captive counsel” for the firm’s largest client. While in that capacity, I was directly involved in the client’s employment law matters in 14 states.
Throughout my career, I have represented clients in all phases of proceedings in state and federal courts and before administrative agencies. I have experience in contested equal employment opportunity matters, employee and management training, alternative dispute resolution, and traditional labor law — including representation elections, contract administration, arbitrations, and negotiations.
I work regularly in partnership with human resources representatives and all levels of management to creatively and proactively identify and resolve issues impacting the workplace. I have advised and represented clients in matters including, but not limited to, the Fair Labor Standards Act, Americans with Disabilities Act, Family and Medical Leave Act, Uniformed Services Employment and Reemployment Rights Act, Title VII of the Civil Rights Act of 1964, Age Discrimination in Employment Act of 1967, National Labor Relations Act, Genetic Information Nondiscrimination Act, as well as their state and local counterparts. For the past ten years, I have served as an adjunct professor in the Gary W. Rollins College of Business at The University of Tennessee at Chattanooga.
In This Episode…
- Union membership in the US is at an all-time low of 10.1%, which is about 1/3 of what it was in the 1980s.
- However, union organizing activity has been on the rise recently, especially in industries like hospitality and retail. Starbucks, Chipotle, and Amazon are some examples.
- Younger generations seem more interested in unionizing, likely because they see the power in collective action.
- Changes at the National Labor Relations Board under the Biden administration have made it easier for employees to organize and engage in “concerted activity.”
- Employers need to be proactive about listening to employees and being accessible, rather than dismissive, to prevent unionization attempts.
- Social media has made it much easier for union organizers to connect with employees. Employers have to be careful in reacting to negative social media posts.
Links & Resources Mentioned…
Mike O'Neill: Welcome back to Get Unstuck and On Target. I'm Mike O'Neill. Whether we at Bench Builders are working with a company or it's me coaching a CEO one on one, getting leaders and companies unstuck is at the heart of everything I do. And that's exactly what this podcast is all about. Each week, we invite incredible guests who share their hard won experiences of getting themselves or others unstuck back on target and moving forward.
And I hope it gets you unstuck and on target as well. Joining me it's Dan Gilmore, long term listeners will remember Dan because he was my guest for episode number eight, by the way. And we recorded that back in November of 2020, Dan founded Squire strategies in 2013 to protect companies from costly lawsuits, loss, productivity, and lower employee morale. As you can guess, Dan is an accomplished attorney. And as a topic, what we're going to do is talk about the notion of the labor movement. And we've entitled this episode, the labor movement is on the rise and the NLRB is leading the way. Dan, welcome.
Dan Gilmore: Thank you very much, Mike. It's great to be back.
Hard to believe it's been that long since episode 8. Time flies.
Mike O'Neill: It is staggering. Let me share a little bit more about your background with our listeners. After serving as a judge advocate in the U.S. Marine Corps, Dan joined the Tennessee based firm of Miller and Martin and began a decades long career in employment law.
With Miller and Martin, he spent Ten years in Southern California, serving as captive counsel for the firm's largest client. While he was in that capacity, he was directly involved in the client's employment law matters in 14 states. Throughout his career, Dan has represented clients in all phases of proceedings in state and federal courts and before administrative agencies.
He has experienced and contested EEO matters. Alternate dispute resolution and traditional labor law, including representation, elections, contract administration, arbitrations, and negotiations. Dan, you are an accomplished attorney and friend, and it really is good to have you back on the podcast to talk about this timely topic.
Hey, I'm so glad you're here. We discussed what we could talk about, and we had this conversation around Labor Day. We're recording this after Labor Day, but of all the things we could talk about, we keyed in on labor law. Why do you feel that would be the most timely topic that we could discuss today?
Dan Gilmore: I really feel like Mike, we could very well be at a real turning point in terms of the significance of the labor movement, labor organizations in our economy there is, as we can talk more details to go along about the activities, in organizing, for example, over the last year in particular but this all comes in the context of last year's numbers in terms of union membership, which the government releases at the end of every fiscal year.
So, as of fiscal year, 2022, end of last September, the percentage of union membership around the country was 10. 1 percent and to put that in context, that's the lowest ever recorded. And to put it in further context, it's about a 3rd of what it was in the 80s or about half of what it was in the 80s and less than a 3rd it was what it was in the 50s. And with that as a backdrop it's been interesting this last year to see the number of petitions for elections on the rise elections on the rise, the activities involving the nationally relations board of individuals and unions alleging unfair labor practices on lawful actions by employers is on the rise and at the highest levels that we've seen in several years.
So I cannot see how that historic low point can get any lower and can only go up as far as I can tell. And there's so many different things going on right now. Some more obvious impactful and others like the writer strike with along with the actors that impacts us all and what we watch every evening and watch on TV and listen to, as well, as other strike activity that could be on the horizon with the automakers, for example, but there's been, I think, the most significant and most obvious to me, at least increase has been in industries involving the hospitality industry, for example Starbucks has been very active their baristas at their stores throughout the country Chipotle, Apple stores, Trader Joe's that I think is reflection of, and we talked a little bit about previously about the the support of unions right now in the American public, with the highest percentage being those in the Gen Z generation being those in their mid 20s younger. And those being, I think it's a coincidence those are the employees that are being most active right now, and are only going to get become more active as they progress in their careers.
So I see this as a point of potential real shift from what we've seen over the last several decades.
Mike O'Neill: You know, it could be possible that a person says, all right, 10%. That's a relatively small percentage. But what I'm seeing, see if this matches your understanding is the the union activity, particularly the work stoppages, the strikes are garnering lots of attention in the media and the polls that I've been seeing is that largely the public is supportive of what is it that they are striking on. Now, that might not change the percentage of the unionized workforce, but it seems as if the perception of unionization, particularly amongst the generations entering the workforce now, it really is intended to kind of create some awareness.
And I think that's what I hope we could do in this conversation is What you're not sounding quote an alarm bell, but what you are saying is it's changing and if we don't pay attention to the changing landscape, then some things might happen in your organization that you may or may not. So, I guess I'll start with the 1st question.
What is it about unionization that is so appealing to employees? What do they think that they're going to get if they were to affiliate with?
Dan Gilmore: The biggest attraction as I see it, Mike, is that by acting in a concerted way, and that's the language you see from the National Laborations Act, concerted activity, which means joining together to try to achieve something that they can't achieve individually that by applying that type of pressure and withholding their labor. I mean, that is the word strike goes all the way back to the ships that would sail across the ocean and they would strike the sales, put the sales down and say, we're not going to sell a ship unless we get better food or whatever it might be. So by withholding their wages, I mean, they're holding their labor collectively I think more and more people are seeing the power of that.
And with as you said, with the majority of the public supporting at least the objectives of the the union movement that's been the case in some sectors, for example, in education, I think, for a long time, I think teacher strikes have been successful because, for the most part, the public knows that they have an awfully tough job to do and are underpaid, but I think that kind of support is spreading into other areas of the economy.
And the other part of our title is about the National Labor Relations Board and, as I see it particularly this last year the board, which now is comprised majority of democratic members, which is a result of the current administration has that prerogative to to appoint members of the party.
That's in the administration. There are there have been repeated almost on a daily basis decisions coming out to make it easier to organize easier to engage and concerted activity with the objectives. I see it of creating more opportunities for unionization and for the unions to get some traction.
So, from the standpoint of those listening to us I don't think companies, if you don't have unionized members can just kind of hope for the best and assume that it won't affect your business because it's becoming much more pervasive. And to address those concerns it's requires employers.
And I know you've talked about in many of your your episodes about the importance of communication and having those kind of relationships with employees that don't cause them to go look for a 3rd party to do their bidding for them. Because no company wants to have a 3rd party have to be in between themselves and their employees.
That just is not necessary. And the most part, I think employers have a big opportunity to not allow their employees to feel that's necessary.
Mike O'Neill: Dan, you and I have kind of worked on some things together and there are kind of, I'll use this term, maybe to loosely kind of rules of engagement when there is union activity and if I just step back and kind of look at the techniques that were used 20 years ago have changed dramatically for a variety of reasons. Can you give us a sense on how union organizing has changed and why that might be something we need to be paying more attention to?
Dan Gilmore: It's become with technology being what it is now with the ability to utilize social media to utilize text messaging, other forms of their platform, social media, whether it be Facebook or Instagram, et cetera, the ways in which those who are organizing can reach out to and communicate with those who are potentially interested in what they're doing.
Those communication channels have really increased to where, you know. 30 years ago, especially if not more recently you'd have to mail letters to homes or try to catch them in the parking lot or maybe call their homes. But now it's much easier to communicate with those people.
And I think that's something that organizers have become much more effective at and a recent example, the 1st big win that Amazon had up in Staten Island with their warehouse there. A key to that victory was just interacting with the employees. By fellow employees and having those communication channels opened up rather than having outside parties be the ones that are attempting to create that interest in the union. I think having a local presence, the unions have realized that is critical to their success.
Mike O'Neill: You know, you mentioned the importance of personalization and that in today's climate, employees always need to feel that they're heard and respected, but in today's climate, if they're not, they have ample opportunity to make that known. And one of the things I know that we've talked about on this podcast is the employer brand. We have leaders listening to this podcast who are responsible for the employer brand. And I've been using that term because it seems as if companies spend so much energy on establishing a marketing presence.
But they don't pay attention to how they want to be perceived by their employees and potential employees. And I asked that question because to have a strong employer brand, you need to have an engaged workforce that feel that they've been heard. Communication is open. I know that much of your work is more preventative, if I could use that term.
Dan Gilmore: Right. No, that's exactly right. Right.
Mike O'Neill: What are the things that when you are talking to your clients, and they say, all right, Dan, you're the expert, what type of things should we be doing so that this is not necessarily a concern for us?
Dan Gilmore: Well, I think going back to communication, it's important to keep our ears open and eyes open and not be hidden away.
You hear these stories of management that the employees never see, or they're off, hidden behind doors and they can't contact them. That was 1 of the problems with Amazon down in Alabama at Bessemer's, their managers, they couldn't find them and they just couldn't communicate concerns with them. Being accessible is critical.
And as issues come up, don't be dismissive. Employers don't have to automatically agree or concede to requests by employees, but it's important they'd be heard. I had a conversation with a colleague this morning About the process for communication within a small nonprofit, for example, and whether or not employees should be allowed to or courage to reach out to the board members at some point.
And my thought to him was that's shouldn't be your 1st line of communication, but a, an available one, if all else fails before an employee feels they need to go out to reach out for a union or reach out to the or reach out to any kind of outside entity or agency to resolve their problems.
They need to feel that they can be heard and even if they don't necessarily agree with the result that they've been listened to and there's been thought given to how to address their problem so those lines of communication are very important. Having multiple lines are important.
So if you have a problem with your supervisor, don't just say, go to your supervisor. And if you can't work it out. That's the end of the road have, depending on how robust your structure is have different avenues, but being heard it's so important. And I've seen so many union campaigns I've been involved in over the years where it was so preventable from my perspective of had certain things been addressed had employees be given this basic respect before decisions are made about what's going to happen with the company. So, if employees are just, it's just told to them, by the way, something big is happening that you've never heard about that's going to impact you and your families. You've had no impact and put in it that is going to do nothing but create distraction turmoil chaos and those who, like I said, going back to the Alabama situation with Amazon, those employees, they're just went to Google talking about the technology. It's available. They just Googled a union for Amazon, and they found one somewhere that was kept went down with the bat for them.
Not successfully because they were outsiders, but that shows you how easily that kind of information can be obtained by those who just feel like they're at the end of the road.
Mike O'Neill: We were talking earlier about the National Labor Relations Board. We oftentimes abbreviate it and its makeup is comprised usually by political affiliation.
Whatever party is in the president's Role typically has the upper hand and so it does somewhat kind of politicize the process per se. But from my standpoint, you do a great job. You send out kind of legal updates, maybe even legal alerts. And so I always read those because it keeps me fresh. But it does seem to me over the last year or 2 that the frequency of those has increased.
Is that accurate? Or is that just. No, I pay more attention.
Dan Gilmore: Yeah. If you notice, Mike, I mean, the last 4 or 5, I've sent the majority are related to the National Labor Relations Board. The things they're doing as I mentioned, the president has the prerogative to appoint members to the board and that to be confirmed by the Senate, which was a problem during the Obama administration because he just had some pretty radical people he was trying to put on the board, but. Okay. In a perfect world, there's five members. Majority three of those will be the party of the president. And as a result and I talk about this with my students at UTC a lot without getting into politics necessarily that the reality of it is that Democratic Party and now the Democratic majority board are typically more pro union, pro worker, pro employee.
And you see those decisions accordingly. Okay. And as I think one of my one or more of my those alerts, you may recall about the pendulum swinging. I just maybe because I focus on the national relations board so much that. It may not be any more unusual than other federal agencies, but it seems to be that so many of the decisions that are coming out now are going back and undoing overruling decisions from the last board that was not majority Democrat to try to create a more favorable environment for employees to be able to organize and engage in a concerted activity and making it more difficult for employers to discipline employees.
Like, they would like to, or maybe in the past have and you mentioned about the brand and protection of the brand, which is so important. That's one area that the National Labor Relations Board has been involved in pretty actively, especially recently is that an employer's natural reaction when there is a, let's say, a Facebook post by one of their employees that makes the company look bad.
It's negative it's complaining about work at the environment. At that in that working environment, that is, especially if it involves other employees is concerted activity. And so an employer's natural reaction is like, we got to get rid of that employee. We got to find that employee. And that's why I say, put the brakes on hang on because, we don't want to give them a reason to run to the board and file a charge, you know, and that's something that you turn about talk about awareness. So many employers, I think, are not aware of the fact. That's something to be considered to be mindful of when you're responding to situations like that.
In the past would not you wouldn't have to get second thought to. In my own practice, I've been practicing that for 30 years, especially in those early years. That was not a problem or an issue because that was before the board began to focus on. I think a big part of social media.
Going back to the prevalence of social media, all the channels out there, you mentioned that the unions can approach the employees, but also the employees can vent, you know, the old scenario is that the employee after work goes to the bar and kind of complains to the bartender, you know, and that's kind of individual gripes.
Now they do that on social media. They're doing videos and it's, and I'm not going to pretend it's easy to manage, but it's something that employers have to be careful about because what you want to avoid is creating a martyr for those, like, one of the primary organizers at Amazon when they were successful in Staten Island was an employee that was fired because of his objections to the safety conditions during COVID.
And so by firing him, they made him the martyr for the cause. And that was something that obviously they didn't do intentionally, but that was key to their success. There was reacting in a way that they should not have especially looking back on it.
Mike O'Neill: You enjoy long term relationships with your clients. It's a trusted relationship. And I know that through your training. You try to encourage supervisors and managers if you see something that doesn't quite look right. Speak up, right? Don't bury it per se, because getting ahead of some of things is very important.
I want to go back to the social media aspects. And that is, it does seem to me that social media has changed the whole game. And because it's not just one platform, it's multiple platforms. And those are all a protected activity.
Dan Gilmore: And at least presumptively now, if they start threatening to kill their supervisor or blow up the facility that takes it outside of protection.
But the, and even more recently, the board is saying that we got to give employees the leeway. It's pretty emotional when they're getting, you know, worked up about work. So, but this. As a reassurance to employers, there is a point at which that becomes unprotected if it's for example, threatened certain destructive or criminal action in the process.
Mike O'Neill: Because you enjoy long term relationships with clients. My next question probably would be easy for you to answer. But can you reflect on an example perhaps where you or a client got stuck? And what did it take to get unstuck?
Dan Gilmore: Well, I'm thinking about that. Mike we, we talked about the 1st time I was your guest about some things in my career of where I felt stuck and got unstuck.
And one that I did not talk about that predates the ones we talked about that time is when I, as you mentioned, I was in the Marine Corps. I was a trial counsel, the Marine Corps, a prosecutor at the last several years came to Chattanooga and I was in the litigation department. And I was, did that because that's what I did in the Marine Corps.
I was a litigator, did tons of court marshals. But I was feeling increasingly stuck in that area of the law. Some of the work I was doing wasn't gratifying, wasn't challenging, and I didn't know what to do about it, you know? And so what came to, the possibility that came about wasn't something that I went looking for, but I was, when I was trying to be aware of.
Where'd I go from here? One of the attorneys in the labor and employment department moved back to Alabama and they came to me and said, Dan, would you like to move into the labor and employment department? And I thought, sounds interesting to me. So here we are 30 years later, which is incredible to me. But I've thought about this as you're talking about what you do in your coaching and I'm, I would imagine a big part of that is encouraging your clients to be mindful of what of what's going on around them, their opportunities. I could have easily at that stage of my career, just put my nose down and just power through it. But by being open to that and aware of that, and that was critical.
And I've, and now, yes, as you know, I teach. That area that law and I love it. It's forever challenging and changing as we talked about, but it got me unstuck in a way that I'm very grateful for. And it's often think about kind of the road, less traveled analogy about and that made all the difference.
So, that's one that comes to mind that was pivotal in my own professional and personal life.
Mike O'Neill: You mentioned the road less traveled. I want to go back to something you shared when we record this podcast. With together three years ago, and that is when you made a decision to leave a very fine reputable firm and Start your own squire strategies Particularly in the area that you tend to concentrate most of the lawyers that I know who do that type of work are affiliated with large firms I love talking to those people who've started businesses and learn a little bit about what they've learned along the way If you had to Characterize what's probably the biggest lesson you've learned from leaving corporate law firm to start on your own.
What might that be?
Dan Gilmore: I'll tell you something like that. I repeat this to people all the time and that period of time I went through before I made the decision to do what I'm doing now, I often refer to as my period of discernment. And I did a thing several years ago. I had different images.
I talk about different images and that period of time. I had the burning bush. On the screen, because it was like, what do I want to do? How should I do it? The person who I give credit to or blame, I'd say credit to nudging me in the direction that I ended up going, he says, number one, Dan, this is what I see you're leaning to do.
You want to do your own thing and have that independence. Number one, number two is you've got to always let people know what you do. And I may have told you this. Before Mike that's something that is critical. I've learned that is so important. I'm a lawyer and there are a lot of lawyers out there.
A lot of lawyers who do a lot of things that are nothing like what I do and it's important to me that those who I get to know and want to help out mutually like you, for example, that you have a clear understanding of what I do. And how I do it and the way I go about doing it. So as you see opportunities for me that I made it see for myself, you have your eyes open to what hey, this Dan could be helpful in this area.
And that is that has been my primary method of marketing ever since I started my career as a solo practitioner is. Making sure the people who and I'm very fortunate to have a number of people that have always wanted to help me and I'd like to help them back as best as I can. That they have a clear understanding of what I do.
Because if they don't, they can't be as helpful as they would like to be and as I would like for them to be,
Mike O'Neill: you know, Dan, you and I met for coffee not long ago and that's this topic kind of came up and that is I'm finding that the kind of work that I prefer to do. Kind of has fallen into a more narrow scope and it really falls into people skills training and the coaching.
And we do other things, but personally, that's the type of thing. And until recently, I've hosted a podcast for quite some time. And a lot of people said, gosh, I'll listen to your podcast, but. Mike, what do you do? And so I've tried to change that. So I'll sign off here in a few minutes and I'll make a shameless plug for, but what I would say to you is if people don't know, how can they refer?
And your business is based on referrals. My business is larger referrals. I do the podcast. Because I get a chance to meet and spend time with quality people like you. And I learn from my guest like I've learned.
Dan Gilmore: Yeah, I'm sure you do.
Mike O'Neill: Yeah. That being said, as you step back and kind of just look at all the things we've talked about, and I know we've narrowed our focus more around, you know, labor law and how it's changed over the decades in a life.
What are the things that you want our listeners to kind of say? If I don't remember anything else, Dan wants me to remember the following things. What might those be?
Dan Gilmore: I would say and we've talked a little about this already, but being mindful of your employees, I represent and advise almost exclusively employers very intentionally.
And it's so important to them to listen to be accessible to be responsive to the employees. I have conversation. My father was. An attorney during most of his life. And we had conversations where there was times where he kind of gave me a hard time about representing employers. He was a member of the college.
And so we had some interesting conversations and I told him, I said, dad, you know, as I look at it. As an advisor to employers, I want to make their business successful. And a big part of that is helping them understand how important it is to treat their people. Right? I've never been in the business or trying to find ways around the laws to try to take shortcuts, but do what you need to do that will lead to success.
And so, that's that's my biggest message and in the context, the narrow context of labor relations by doing that by training your people well, and training your supervisors to do the same thing you don't leave your employees with, lack of options to where they realize that, well, I've got nothing to lose by finding somebody to represent me because my employer is not listening to me.
I'm frustrated, you know, I'm not heard. So that's my, my message if you ask for one is just listen, be responsive. And I think that makes a big difference.
Mike O'Neill: You mentioned UTC. For those who don't know, UTC stands for University of Tennessee at Chattanooga, right? You are a long term lecturer. And it's very clear why you do that.
You're you've got a gift for explaining. Things in a way that I can understand and I'm confident those who are in the program at U. T. Chattanooga have benefited over the last, I guess, probably a decade
Dan Gilmore: and years.
I've been, I started teaching the same semester. I started by practice just really coincidentally.
But they, they overlap exactly. So, it's been an adventure. I tell people I've got two new little flocks this fall that I'm leading down the path to try to get across the finish line. So, but it's it's a very gratifying experience.
Mike O'Neill: There's no question that you're good at it. I, you can just tell by just how you've kind of just shared your experiences with us today.
Thank you for your willingness to do just that, Dan.
Dan Gilmore: Thank you very much, Mike. Really enjoyed it. And I look forward to seeing you in person again soon.
Mike O'Neill: Well, I like that as well. I also want to thank our listeners for joining us today for even more insights about getting unstuck and moving your business forward, I invite you to subscribe to The Bottom Line.
It's a newsletter that you can subscribe to simply by going to bench builders. com. When you asked the question earlier, Dan, what do you do? I have found myself saying that I found that the clients I work with usually had one of two problems. Either they were frustrated because they were losing the employees they wanted to keep.
Or their leaders, they found themselves stuck in the weeds of the day to day, and they were failing to execute on their long term strategy. So if you're listening in high turnover or poor execution is slowing your growth, let's talk, head over to bench builders. com to schedule a call. So I want to thank you again for joining us.
And I hope you have picked up on some quick wins from Dan. They'll help you get unstuck and on target.
Dan Gilmore: Thank you, Mike.