Union Organizing.docx

Union Organizing In the U.S. labor relations system, if a group of employees wants their employer to bargain with them collectively rather than individually, they typically will need to form a union and formally demonstrate that a majority of the employees support the union. This chapter discusses the behavioral, strategic, and legal aspects of this union organizing process. There are certain basic procedural steps and legal standards for how new unions are formed in the United States; however the ways in which companies and unions act within the confines of these processes are equally critical for understanding the union organizing process. An election timeline as well as a thorough discussion of each step of the election process is therefore presented. Against the backdrop of the legal aspects of the election process sits the human factor. Decisions to vote for or against a union are rooted in various factors, such as job satisfaction, beliefs of union effectiveness, and the social environment in which the employee works. These factors are explored in detail. After a certification election is scheduled, employers and unions battle for the vote of the individual employee. There is continuing debate over the effectiveness of employer campaign tactics (a well-known study, for example, found most workers already had their minds made up before employer campaigning began). However, this does not stop employers from using tactics such as captive audience meetings to get their message directly to the workers, using outside consultants to advise them on the best ways to keep the union out, and employing delay tactics to give them more time to fight the union effort. Unions often feel disadvantaged in the organizing process. Unions can be denied access to employees in the workplace by employers using “no solicitation” rules, i.e., the employer can use their private property rights to prohibit outside organizations from entering the workplace and interacting with workers. Unions must use home visits, rallies, and promises of what they might be able to do for workers to sway their vote. Unions also rely on workers themselves to spread the word. But is campaigning for both sides fair with the employer always able to play their property rights card? This chapter presents information for students to be able to understand this debate. The certification process has changed from a quick procedure with minimal employer involvement to a formal and often lengthy election procedure with extensive employer participation. Some people feel that the NLRB certification process has some major weaknesses. These weaknesses and suggestions for reform conclude this chapter. Learning Objectives By the end of the chapter, students should be able to: 1. Discuss the basic procedural steps and legal standards for how new unions are formed in the United States. This is called the organizing process. 2. List the determinants of whether individuals vote for or against a union in a representation election 3. Understand the tactics used by employers to weaken individual support for unions and why these tactics are controversial. 4. Understand the traditional tactics used by unions to strengthen individual support for unions and the pressures for developing new strategies. 5. Compare the pros and cons of the existing certification election process and options for reform. Lecture Outline Introduction To force the employer to bargain with them, employees must organize themselves into a union. There are numerous ways in which a union can be formed. Most U.S. unions are organized through secret ballot elections administered by the NLRB. The Organizing Timeline Organizing drives follow a common sequence of steps: Initiation. Building support. Authorization cards are the most important method. File election petition with NLRB, or request voluntary recognition (rare). NLRB election is held. NLRB Representation Elections Certification elections are used to ascertain if a majority of employees want to be unionized. Decertification elections are used to determine if a majority of employees no longer wish to be represented by their union. When a petition for a certification election is filed, the NLRB must determine the appropriate bargaining unit. Scheduled elections are supervised and monitored by the NLRB. Individual Voting Decisions Most voting decisions are based on the perceived costs and benefits of unionization as well as on individual attitudes toward unions. Specifically: Job dissatisfaction. A desire to maximize one’s own utility or well-being. Union instrumentality (feeling the union will be effective in improving things). No negative views about unions in general. The social environment of the workplace is favorable to unionization. These criteria are distinctly North American. In Europe collective bargaining often occurs at the industry level so decisions to join a union are based more on social and political concerns than workplace and economic desires NLRB Election Standards Employer and union campaigns try to affect the key determinants of how individuals vote in representation elections. The NLRA authorizes these elections to determine whether or not the workers want union representation. The key legal standard for NLRB representation elections is employee free choice. Threats and promises are not allowed. Campaign tactics that hamper, restrict, or interfere with employee free choice in deciding whether to have union representation are prohibited. The NLRB evaluates election conduct using its laboratory conditions doctrine. When the NLRB feels that election campaigning or conduct causes employees to vote differently from their true preferences, the election results will be thrown out and a new election conducted. Example: firing union activists. Employer Campaigning Employer campaign tactics try to influence the four key determinants of individual voting decisions: Job dissatisfaction. Union instrumentality. General union attitudes. Collective social identity. Tactics usually include providing company and anti-union information and opinions to the employees in a variety of methods: Supervisors meeting with employees individually or in small groups. Letters or e-mails to workers. Captive audience meetings. Another employer campaign tactic is to use no solicitation rules. However, restrictions on both employees and nonemployee union organizers must be equally enforced. The use of outside union-avoidance consultants and lawyers is a prominent component of employers’ campaigns. With the help of attorneys and consultants, another employer tactic is delay. The legality of some employer tactics is hard to observe and measure. Union Campaigning Unions also campaign to influence the four key determinants of individual voting decisions in NLRB representation elections. From a legal standpoint, the laboratory conditions doctrine applies to union as well as employer actions. Unions have little to campaign with except promises that they will try to win gains for the employees. Unions have few face-to-face communication tools beyond the Excelsior list and home visits. Union campaigning has traditionally focused on the distribution of flyers and letters through mailing and handbilling. In some campaigns, existing workers take the lead in talking with their co-workers about the possibility of unionizing. The Certification Election Process: Help or Hindrance? The certification process has changed from a quick procedure with minimal employer involvement to a formal and often lengthy election procedure with extensive employer participation. Three criticisms expressed most frequently about the NLRA certification process: Unequal access to employees. The lack of penalties for violators of the NLRA. The length of the election process. Some people feel that the NLRB certification process has some major weaknesses and may be responsible for the decline in U.S. union density; however there are other possible explanations for the decline. Some unions are explicitly trying to organize new workers outside of the NLRB certification process. A successful election only obligates the employer to bargain with the union. A contract is not guaranteed. Lecture Tips I use a very basic timeline of the union organizing process (initiation – campaigning / filing a petition – voting – results) as the underlying framework for lecturing and discussing the important issues relating to the union organizing process. In the initiation phase, I talk about union versus employee initiated campaigns, the importance of collecting authorization cards, and requests for voluntary recognition. The fact that voluntary recognition is rare leads into a discussion of how else to obtain recognition. Before 1935, recognition strikes were key, but the Wagner Act sought to replace these disruptive strikes with an orderly procedure, which has now grown into the NLRB certification election process. This leads naturally into a discussion of how to obtain a certification election—filing a petition and the NLRB’s evaluation of it (timeliness, definition of the bargaining unit, and sufficient interest). I use the Harvard clerical and technical workers case (Box 7.4) to discuss union and management preferences for different bargaining unit definitions, and also how unions might have to start over if the NLRB expands the unit (the union collected 30% cards from the Medical Area in 1983, but the NLRB ruled that the appropriate unit should be all clerical and technicals at Harvard which tripled the size of the bargaining unit from 1200 to 3600. The union no longer had 30% so it was back to the drawing board and it didn’t get signed cards from 30% of this new bargaining unit until 1988). Once an election is scheduled, campaigning really heats up and attention turns to individual voting behavior in NLRB elections. I present the standard results on the determinants of individual voting (such as the importance of union instrumentality) and conclude this discussion by raising the question of the importance of management and union campaigning. In this regard, I first discuss the NLRB’s laboratory conditions doctrine and then management and union campaign tactics. I conclude by examining the pros and cons of this election procedure, and some reform possibilities. As with my approach to chapter 5, I intersperse the two labor law discussion cases (Boxes 7.6 and 7.7) into the lecture to break up the lecture and create more student involvement and discussion. Active Learning Ideas Have students form small groups and answer the questions in Box 7.4: The Appropriate Bargaining Unit for Harvard University Clerical and Technical Workers. Discuss the outcomes in class. Have pairs of students create lists of legal and illegal union avoidance tactics (i.e., union substitution versus union suppression tactics). Go around the room and have each group give one and list them on the board. Explain why some are OK and why others cross the line and are illegal. Have students form small groups and answer the questions in Box 7.6: Labor Law Discussion: Does a Meeting with a Supervisor Interfere with Employee Free Choice? Discuss the outcomes in class. (See Labor Law Discussion, Teaching Notes.) Have students form small groups and answer the questions in Box 7.7: Labor Law Discussion: Does Community Activity Interfere with Laboratory Conditions. Discuss the outcomes in class. (See Labor Law Discussion, Teaching Notes.) Additional activity: Ask students to rewrite the letter so that it would not be ruled illegal by the NLRB. Have students form small groups and answer the questions in Box 7.9: Ethics in Action: A Union-Avoidance Consultant Tells All. Discuss the outcomes in class. Key Terms Students will be introduced to the following key terms: NLRB representation election Election to determine who, if anyone, employees want to represent them. This includes certification and decertification elections supervised by the NLRB. Authorization card Preprinted form containing something like, “I authorize [union name] to represent me for the purposes of collective bargaining” that all employees fill out and sign. Authorization cards can be used to show the employer that a majority of employees want union representation, and are the most important way of demonstrating to the NLRB that there is sufficient to have an election. Card-check election A method for determining majority representation based on checking authorization cards without going to an election. A neutral party can examine authorization cards and determine if more than 50 percent of the employees signed cards. If so, the employer agrees to recognize the union and is then obligated to bargain with the union. Recognition strike A strike to compel the employer to recognize their union. These were common before the passage of the Wagner Act in 1935. Certification election An election supervised by the NLRB in a nonunion location to determine if a majority of employees want to become unionized and designate a specific union as their bargaining agent. Decertification election An election supervised by the NLRB to determine if a majority of unionized employees no longer wish to be represented by their union. Appropriate bargaining unit NLRB-determined occupations and geographical locations included in a certification election. This unit can then vote in an election and will be represented by the union if the union wins the election. The appropriate bargaining unit is usually determined by looking at what occupations share a community of interest. Union instrumentality The degree to which an employee thinks a union will be successful in improving their workplace. Commonly believed to be one of the most important predictors of whether or not workers vote for a union in a certification election. Laboratory conditions doctrine NLRB doctrine stating that in election proceedings, it is the NLRB’s function to provide a laboratory in which an experiment may be conducted, under conditions as nearly ideal as possible, to determine the uninhibited desires of the employees. It is the duty of the NLRB to establish those conditions. It is the duty of the NLRB to determine whether or not they have been fulfilled. Also known as the General Shoe doctrine. Captive audience meeting A group meeting held in the workplace during working hours in which employees are forced to listen to management’s antiunion and pro-company presentations. Excelsior list After a representation election is schedule, a longstanding NLRB rule requires employers to provide the union with this list of names and addresses of the employees eligible to vote in the election. Gissel bargaining order Requires an employer to recognize and bargain with the union even though the usual election results are lacking. This order is rarely issued, and only for the most extreme case in which multiple, severe unfair labor practices have been committed. Reflection Questions 1. Outline the pros and cons of the NLRA’s union recognition process focused on secret ballot elections. What are some of the alternative means for deciding questions of representation? What do you think would be best for the workplace of the 21st century? Pros: A majority of employees must want the election. Every effort is made to be sure the employee vote is free-choice. Elections are consistent with basic democratic principles and processes. Cons: The length of the process, including opportunities for managerial opposition and resistance. NLRB determining the appropriate bargaining unit. Alternatives: certify a union based on signed authorization cards without holding an election. Public demonstrations to pressure employers into recognizing unions without the election process. Pressuring local governments to include provisions requiring union employees when using public funds for construction. Boycotts to force recognition. Student answers to the last part may vary, but one possible response is that elections are still the best method in the 21st century, but reforms should be made to shorten the process. 2. Box 7.10 contains an argument for entirely excluding employers from NLRB representation elections. Do you agree? Why or why not? Student answers will vary. The longstanding tradition of protecting property rights will probably guarantee that employers will always be involved. Employers should be able to counter any questionable information presented by union representatives. 3. Even labor scholars in the early 20th century recognized that “the overshadowing problem of the American labor movement has always been the problem of staying organized.” Why is staying organized a problem? What should unions do to increase their success in organizing new employees and in staying organized? Student answers will vary. Some items that may contribute to difficulties staying unionized are: 1) management continually try to make unions irrelevant and push them out, 2) employee turnover which requires unions to continually build new support, 3) satisfying employees, particularly in the case of general unions, and particularly in difficult times when unions have to decide which battles to fight, and 4) membership apathy. To increase their success in organizing new employees and in staying organized, unions should be sure they have the support of rank and file workers. When certified, they should frequently communicate with workers to remind them of the benefits they are providing, and to be sure the employees feel they truly have “voice.” This might entail more of an organizing model of representation than a servicing model (recall chapter 6). 4. Box 7.18 contains four scenarios of union organizing drives that end with a different decision point for management. For each scenario, develop an HR strategy for responding to the organizing drive by (1) Outlining the various alternatives for responding to the union organizing drive, and (2) Developing and supporting a specific recommended course of action to present to upper management. Student answers will vary. Acme Auto Parts: (1) I would do everything I could to keep open communications with the employees. I would schedule small meetings with employees to explain the financial situation of the company, and to allow them to ask questions of management. I would try to be sure the workers knew both sides of the story, i.e., the other union shops aren’t doing very well in negotiations, make sure they are aware of the dues required, and so on. (2) I would be sure that management was aware of all NLRA rules so that if an election takes place and the union is not voted for, there will be no appeal. I would be sure that all supervisors were treating employees right and would notify HR of any questions they may have overheard from workers. If plans had previously been in place for raises, additional benefits, profit sharing, etc. I would implement them as soon as possible. Another approach is to take a harder line stance and be more aggressive. The Zinnia: Similar to Acme Auto Parts, but an added decision is whether or not to contest the definition of the bargaining unit. Only 40% signed authorization cards so increasing the unit to include front-of-the-house workers might stall the drive, but students should discuss both the pros and cons of this tactic. School District 273: Similar to Acme Auto Parts, but now the big decision is whether to accept voluntary recognition or force an election. Accepting voluntary recognition guarantees a union (con), but can help establish a more productive and cooperative relationship (pro). Forcing an election can potentially prevent unionization (pro) but create more of an adversarial climate (con). Woodville Healthcare: Now the big decision is whether to accept the election results or challenge. The pros and cons are similar to those presented in School District 273. You could ask students if their answers would change if the odds of victory (estimated at 20% in the case) changed. Labor Law Discussion Cases Box 7.6: Does a Meeting with a Supervisor Interfere with Employee Free Choice? Teaching Notes The Issue The union was arguing that the employee rights guaranteed by Section 7 of the NLRA were being violated. RIGHTS OF EMPLOYEES. SECTION 7. Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8(a)(3). UNFAIR LABOR PRACTICES. SECTION 8. (a) It shall be an unfair labor practice for an employer--(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7. SECTION 8. (c) The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any provisions of this Act, if such expression contains no threat of reprisal or force or promise of benefit. So in essence, the issue is whether employees are being allowed to exercise their right to self-organization. Discussion Are employee rights being infringed upon? Does this situation coerce or threaten the employees? The NLRB said it would adhere to General Shoe only when it can be said free choice is unlikely because of: i) The small size of the groups interviewed ii) The location of the interview iii) The hierarchical position of the interviewer, and iv) The tenor of the remarks. The NLRB found that in this case, because of the size of the groups and the number of employees interviewed overall, there is little reason to believe that individual employees felt singled out for special attention or felt special pressure. They also felt that since the employees were familiar with the general manager’s office, it didn’t impact the employees greatly. Also, the remarks were noncoercive and temperate. In General Shoe, the employees were called into the president’s office and subjected to an intemperate antiunion speech. Two of the NLRB members, the regional NLRB director and the union argued that yes, pressure was being placed on the employees by calling them into the office and trying to get them to vote against the union. The union wanted an adherence to the General Shoe doctrine. Interviewing 160 of 172 employees a month before the election can hardly go unnoticed by the employees. Groups of five or six are certainly small enough for an employee to feel pressure. A supervisor urging employees to vote against the union clearly interferes with the conditions necessary for employees to exercise their free choice. Rulings The regional director set aside the election and ordered another election. The employer filed an objection, however, and the NLRB ruled that the meetings did not infringe upon an employee’s ability to exercise free choice. The union was not certified as the authorized bargaining agent and no new election was ordered. Citation This case is NVF Company, Hartwell Division and Shopmen’s Local Union #616 of the International Association of Bridge, Structural and Ornamental Iron Workers affiliated with the AFL-CIO (210 NLRB 663 (1974)). Box 7.7: Does Community Activity Interfere with Laboratory Conditions? Teaching Notes The Issue The union was arguing that the employee rights guaranteed by Section 7 of the NLRA were being violated. RIGHTS OF EMPLOYEES. SECTION 7. Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8(a)(3). UNFAIR LABOR PRACTICES. SECTION 8. (a) It shall be an unfair labor practice for an employer--(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7. SECTION 8. (c) The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any provisions of this Act, if such expression contains no threat of reprisal or force or promise of benefit. So in essence, the issue is whether employees are being allowed to exercise their right to self-organization. Discussion Are employee rights being infringed upon? The employer argued that the ad was not coercive and therefore did not disrupt anyone’s free choice. Additionally, the employer argued that he was not responsible for the ad. The union (and agreed by the administrative law judge and the NLRB) argued that the advertisement threatened employees with a loss of their job--exercise of free choice was severely constrained by this threat. Rulings The administrative law judge and the NLRB set aside the election and ordered another election (actually a third election since the election in question was ordered following a previous charge). The NLRB ruled that the ad certainly threatened the employees and therefore created an atmosphere not conducive to the exercise of employee free choice. The NLRB did not care whether or not the employer was responsible (did not find a violation of section 8(a)(1)). They ruled that the atmosphere was created and the responsibility for its creation was not relevant. The relevant question is the ability to self-organize and express free choice. (Precedent: NLRB will set aside an election when it finds conduct has occurred which creates a general atmosphere of confusion or fear of reprisal such as to render impossible the free and untrammeled choice of a bargaining representative, even in the absence being able to attribute prejudicial conduct to one of the parties). Remedies The NLRB issued an order for a third election. An alternative would be to issue a Gissel bargaining order, but the employer did not seem to violate the law so that would be an extreme remedy. Citation This case is Monarch Rubber Co., Inc. and International Hod Carriers’ Building and Common Laborers’ Union of America, Local No. 1085 (121 NLRB 81 (1958)). Suggested Class Discussion or Short Essay Topics Regarding Box 7.4: The Appropriate Bargaining Unit for Harvard University Clerical and Technical Workers, as one of the Harvard workers, how do you feel about the rule that the NLRB decides on the appropriate bargaining unit? Do you feel that this rule does or doesn’t support “employee free choice?” Why or why not? Do you think that there should be any limits on employer and union campaigning? Give reasons to support your answer. If you agree, what type of limits would you suggest? Once a representation election is scheduled, the NLRB requires the employers to provide the union with a list of names and addresses of the employees eligible to vote in the election (the Excelsior list.) If you were one of the workers on that list, do you feel that this is an invasion of your privacy? Do you think that employees should be given the option of having their name excluded from the list? Give reasons to support your answers. Internet Exploration 1. Search the Internet for websites for union avoidance management consultants. Are these consultants good or bad for labor relations? What types of tactics are described on their websites? How do these tactics compare to those described by longtime consultant Martin Jay Levitt in his 1993 book Confessions of a Union Buster? Tip: Try searching for “union avoidance” or “union free” 2. Search for union sites that are focused on organizing new workers, such as www.walmartworkersneo.com. What types of issues are emphasized in the different campaigns? What tactics are used? What are the pros and cons of using websites for organizing? Tip: Search for “authorization card” 3. Websites like www.cyberlodge.org and www.youareworthmore.org feature online forums or bulletin boards for unorganized workers. Is this more consistent with a servicing or an organizing model of union representation? Is it ethical for a company to monitor these sites to see what its workers are saying? Other Links Federal Labor Relations Authority: http://www.flra.gov National Labor Relations Board: http://www.nlrb.gov AFL-CIO Organizing Institute: http://www.aflcio.org/aboutunions/oi/ Justice for Janitors: http://www.seiu.org/building/janitors/ Wal-Mart Workers Las Vegas: http://www.walmartworkerslv.com/ WashTech: http://www.washtech.org/wt/ Suggested BusinessWeek Articles “Is the J.P. Stevens War Over?” (June 9, 1980, pp. 85-87) “All’s not Fair in Labor Wars” (July 19, 1999, p. 43)) “Can the UAW Stay in the Game?” (June 10, 2002, pp. 78-80) “How Wal-Mart Keeps Unions at Bay” (October 28, 2002, pp. 94-96)