Union Organizing Professor Bruce Fortado University of North Florida MAN 4401/6411 Labor Relations If someone asked you to join an organization that required a membership fee, a large time commitment, and meetings that could become heated, you probably would not be too interested. Organizing a union entails all these costs, plus the threat of employer retribution, a wasted effort if the organizing campaign fails, and perhaps a painful strike. Given these realities, why would anyone join a union? The employees are said to weigh the costs and the benefits. The literature says American workers attend largely to “bread and butter” or “pocketbook” issues. Employees are unlikely to undertake an organizing campaign unless they have a long-term time horizon (few alternative jobs and limited upward mobility), a group of shared grievances, adequate communication channels between the workers, and frequently a critical incident that sparked them into action. This mention of a critical incident suggests the decision to unionize may be an emotional one that centers on relationship issues (protection from humiliation, respect, etc.). Layoffs, low wages, excessive workloads, bad management (arbitrary or punitive acts, broken promises, double standards, etc.), and the lack of a meaningful voice often result in interest in organizing. Collective bargaining offers greater shared power, higher wages and benefits, the objectivity of seniority and the impartiality of arbitration (a third party neutral deciding grievances). Union membership as a percentage of the non-agricultural workforce has declined from 35% in the mid-1950s to roughly 12.5% in 2005 (Carrell and Heavrin, 2007: 5354). At one point in the 1970s, it was estimated 40% of the decline was due to structural shifts in the economy from the industrial sector toward the service sector, 20% to lower union effort and effectiveness, and 40% to increased employer resistance. Employers can alternatively resist by offering conditions equal to or better than union conditions (substitution), or using force to put down the dissent (suppression). We have actually seen an increase in both. Let us now turn to how an organizing effort progresses, so we can better understand the process. 1. Most union organizing is initiated and coordinated at the local union level. Historically, over ninety percent of the time, disgruntled employees invite in a union organizer. In the 1980s, in recognition of declining union success, some unions began “salting.” This stands for sending in employees, either unemployed union workers or union organizers, to start organizing activity by taking jobs with the employer. There is a huge difference between having an organizer outside the walls of the organization and having organizers working on the inside of the organization. This is a particularly highly charged labor-management subject. 2. The union organizer will look to recruit current employees in various parts of the operation who are trusted and respected by their coworkers. These employees will serve as the framework for the organizing campaign. Ideally, an organizing committee made up of activists from each work unit will be formed. These employees must establish good communication channels with their coworkers.
Perhaps most importantly, they must identify the pertinent shared grievances (complaints). Most people who join a union do so based on one-on-one contacts. This is where the best connections are made between the leaders and the workers. It is easy to set aside a flyer. When a person comes to visit, an interaction is initiated. A computer database may be set up. The employee organizers will systematically meet with each worker. This database will be used to record who has signed a card, who has joined the union, who will help contact other employees, how the person plans to vote in the election and other possible pertinent information. 3. In order to get the NLRB to set an election date, at least thirty percent of the employees in the prospective bargaining unit must sign union authorization cards. Meeting this minimum is essential, but most organizers will seek a much higher number of signed cards, probably in the fifty-five to seventy percent range, because they anticipate some support will be lost once the employer learns of the organizing campaign and starts to counter it. If a second union wants to be placed on the ballot, a ten percent showing of interest must be established. 4. The union organizer may ask the employer to recognize the union on the basis of the signed cards. Most employers will refuse to examine the cards. If a third party is authorized to inspect the cards, and confirms majority representation, the employer probably will have recognized the union. 5. The union will petition the NLRB to have a representation election date set. This normally will be done in 45 to 260 days. More time will be taken when the employer contests issues and a hearing must accordingly be held. The employer must provide within seven days the names and addresses of the employees who will be in the bargaining unit (the Excelsior list). One way an employer can effectively initiate opposition is to delay the process by arguing over who should vote. The delay makes the union look less effective, it lessens the enthusiasm and unity of the card signers, and it strains communication. The employer will normally seek to dilute the shared interests of the workers in a prospective unit by including collateral employees. Consider the following example: Production & Maintenance 700 362 338 Shipping Cafeteria Clerical Total
100 60 40
20 6 14
75 8 67
895 436 459 Pro-Union Anti-Union
Some tradeoffs exist. The employer often wants to include more groups to raise the probability of winning the election. If the election is lost, two costs will be incurred. If there is a strike, the number of people involved will be greater. This
could make it harder to run even a reduced operation. Further, some of the promanagement employees may be very happy to be in the bargaining unit. 6. The NLRB must make situational judgments in regards to who should and should not be in a particular bargaining unit. Some judgments are routine, such as security guards will not be included in the same units as the workers in the operation they are monitoring. Beyond this, the NLRB will consider: 1) 2) 3) 4) 5) 6) 7) 8) 9) Community of interest History of bargaining Desire of employees (consent of professional employees or skilled trades) Prior union organization Relationship of the unit to the organizational structure of the company Public interest Accretion Stipulated units Statutory considerations
Although there are many situational considerations, the trend has been toward larger units. 7. During the time prior to the scheduled election, both the union and the employer will convey important campaign messages to the employees. The union will stress unfairness, and the promise that a union grievance procedure and seniority based decision-making would have to improve matters. Examples of unfair actions by managers are sought out for campaign coverage. Wages are normally said to be too low. A union would help the employees have a voice in determining wages and working conditions. If job security is an issue, this subject will be brought up. The union will stress how it will bargain for what the employees want. The union often cites what has been obtained elsewhere. The process of sitting down at the negotiating table with the employer provides greater status, respect and voice for the workers. The employer will often state improvements are not dependent on unionization. If mistakes have been made, or promises have been broken, the employer will ask for a second chance. Efforts will be made to show the wages are good. This could include comparisons to regional wage surveys, nearby union wages and the like. Many employers will argue the cost of union dues will outweigh any gain. The union might be portrayed as outsiders. The union leaders may be called crooked, undemocratic and/or selfish. The possibility of strikes and violence may be discussed. The employer could say the employees need to get the facts before deciding, and the employer has the facts. Typically, employees only remember two or three issues out of the thirty plus issues that are often brought up. Which issues will they remember? NLRB decisions have established some guidelines for election conduct. It should be kept in mind that the members of the NLRB are political appointees, and the decisions of this body can shift over time.
The employees may be polled, but the purpose of confirming the union’s asserted majority must be stated, the employees should be assured of no reprisal and it should be a secret ballot. Calling an employee into an office and quizzing him/her on what contacts the union has made, and where the employee stands, while ringed by several supervisors, is probably a bad idea. The employees should not be made fearful or feel adverse consequences may follow from the interactions. Supervisors should avoid eavesdropping on or following pro-union employees, especially outside of work, because this may be deemed to be a form of intimidation (rough shadowing). The employer may call a “captive audience” meeting on paid time in an auditorium to speak to the employees about the upcoming election. Employers who do not allow solicitation of any kind on their premises may also exclude union organizers. E-mail contact can be made, unless there are rules against it. Union buttons and emblems can be worn in the workplace, unless there is a valid business reason to prohibit them. Union organizers often stand outside gates to hand out literature to employees coming and going from work. If there is no way to contact the employees outside of work (e.g. on a ship at sea or in a remote logging camp), the union may be granted access to company property. If employees normally have access to bulletin boards, internal mailboxes and meeting rooms, the union may not be denied access. Sympathetic employees can solicit support from colleagues on break times, at lunch, and before and after work, as long as it does not interrupt normal operations. Employers should not threaten employees during an organizing campaign, but economic predictions regarding matters outside of the employer’s control, which are demonstrable, may be made. Fine distinctions exist here, so before giving a speech or distributing a memo, one should consult a labor lawyer. The NLRB talked at an early point about maintaining “laboratory conditions” in an election campaign. This meant preserving an environment where the employees can make a free choice. Incidents involving discrimination may be discussed, but the parties should refrain from playing an extraneous race/ethnicity card. Both sides should refrain from inflaming racial hatred. Originally, the NLRB required people to be truthful in election campaigns. This changed in 1977. Lies and distortions have come to be expected in representation campaigns. If the other side has time to expose and/or rebut the remarks, the election result may be sustained even though something objectionable happened. The NLRB prohibits employers from holding captive audience meetings 24 hours prior to the election, because insufficient time will exist for the union to respond (Peerless Plywood, 107 NLRB 427 (1953)). The employees may voluntarily attend meetings during this period on their own time. Altering NLRB postings and documents to give the impression the government favors one side is prohibited. If this is done, an election result may be set aside and a new election ordered. When an employer has committed a ULP that has strongly altered the climate, it is possible the employer will be ordered to recognize the union based on the majority card signing. This is called the Gissel Doctrine (NLRB v. Gissel Packing Co., 1969).
One company used the “TIPS” and “FORE” method to instruct supervisors (Carrell and Heavrin, 2007: 170-173). Supervisors are taught not to Threaten, Interrogate, Promise or Spy. Supervisors are taught they can convey Facts, Opinion, Rules and Experience. The union organizing team will do a “hard count.” In some cases, a group of professional organizers will be brought in to help shortly before the election. A “hard count” means each person in the unit will be contacted once again to ask how they will vote in the representation election. In the final days before the election, only those who give firm “yes” responses will be contacted. These people will be asked if they have voted and urged to do so if they have not yet done so. 8. The NLRB election is held. Both parties should avoid electioneering near the polling place (100 ft). This could result in a new election being ordered. A union will prevail if it obtains 50% plus one vote of those who voted. If there are more than two choices on the ballot, and no one obtains the 50% plus one vote majority, another election will be held. The choice will be restricted to the top two vote getting choices. 9. The representation election result will stand for the next year. If the union prevails, it is the exclusive bargaining representative for the next year. During this time, no other union may challenge this exclusive status, and no decertification campaign may be undertaken. If the employer prevails, there is an “election bar” for one year.