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Cornell University Press ILR Press Chapter Title: Union Organizing and Bargaining Structures

Book Title: An Introduction to U.S. Collective Bargaining and Labor Relations Book Author(s): Harry C. Katz, Thomas A. Kochan and Alexander J. S. Colvin Published by: Cornell University Press, ILR Press. (2017) Stable URL: http://www.jstor.org/stable/10.7591/j.ctt1vjqr3z.12

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157

7

UNION ORGANIZING

Chapters 7, 8 , 9 , and 10 examine the middle (functional) level of labor relations activity. The focus in this chapter is the processes that create, or organizes labor into, new unions and the bargaining structures that determine which employees are covered by a collective bargaining contract.

In some ways, the representation election is the most important step in collective bargaining: if unorganized workers vote not to be represented by a union, collective bargaining cannot proceed. In contrast, positive expression of worker interest in representation opens the way for subsequent bargaining.

Various factors in the external environment shape the power and preferences of the parties in the organizing process. The law, for example, plays a prominent role in union-organizing drives and representation elections. Environmental factors also exert an important infl uence on the determination of the formal bargaining structures a union and management will use in the bargaining process. Strike leverage and the economic environment, for example, are prominent not only because of their effects on organizing success but also because they shape the parties’ preferences for particular bargaining structures.

Negotiations cannot take place until a bargaining representative has been duly certifi ed as the exclusive representative of the employees. Normally, this requires that a union win a representation election (although an employer may voluntarily recognize a union if the union can demonstrate that it represents a majority of the employees involved). 1 The events and regulations that surround representation elections are described below.

The Organizing Process The key steps in the organizing and representation election process are described in Box 7.1 . Note that before the NLRB will schedule an election, at least 30 percent of the election unit must have signed an authorization card indicating they would like an election to be held. In actual practice, most unions will not request an election unless they have already signed up a signifi cant majority of potential voters.

Union Organizing and Bargaining Structures

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158 Part III. The Functional Level of Labor Relations

BOX 7.1 Steps in Organizing a Union and Holding a Representation Election

1. Interested employees seek out a union to learn their rights and gain help in organizing, or a union seeks out a group of employees in order to explain their rights to them and explore their interest in organizing.

2. The union builds support for organizing among the employees and solicits their signatures on authorization cards.

3. When suffi cient cards are signed to indicate substantial employee support, the union asks for recognition as the bargaining agent for the employees. If at least 30 percent of the employees have signed cards, the union can petition for an NLRB certifi cation election. If over 50 percent of the employees have signed cards, the union can ask the employer for recognition, or, if this is refused and serious unfair labor practices are committed by the employer, the union can ask the NLRB for certifi cation. If the employer does not voluntarily recognize the union, either party can petition for an NLRB certifi cation election to determine whether the union has majority support.

4. The NLRB investigates to determine whether an election should be held. The board considers whether it has jurisdiction, whether there is suffi cient interest among the workers, and whether there is already a bargaining agent, and whether an election has been held in the past twelve months. Most important, the NLRB determines the appropriate bargaining unit.

5. If the NLRB fi nds that the conditions for an election have been met, it orders that one be held. Procedures of varying formality are used, depending on the level of disagreement between the parties. Expedited procedures can be used if the union has engaged in picketing to organize workers or to obtain union recognition from the employer.

6. Once an election date is set, campaigning on both sides intensifi es. Restrictions apply to both union and management behavior during this period. This is because both sides need to maintain laboratory conditions; that is, an environ- ment in which workers can make free, uncoerced choices.

7. Representatives of the NLRB conduct an election by secret ballot. The union, management, or the NLRB can challenge an individual ’ s right to vote. For example, a claim might be made that an employee does not work within the designated bargaining unit or that he or she is a supervisor and thus is excluded from coverage. If there are more than two choices on the ballot and no option receives a majority vote, a runoff election will be held between the two choices that received the most votes.

8. If the union wins the election, then, after any objections or appeals, the NLRB certifi es the union as the exclusive bargaining agent for the employees. The employer has the obligation to begin negotiating a fi rst contract. If the employer wins the election, there can be no further election for twelve months.

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Union Organizing and Bargaining Structures 159

Why Workers Might Want Union Representation To understand how the organizing process works, it is useful to fi rst ask why an individual might seek union representation. Evidence shows that for workers to express a preference for unionizing, they must (1) be deeply dissatisfi ed with their current job and employment conditions; (2) believe that unionization can be helpful in improving those job conditions; and (3) be willing to overcome the generally negative stereotype of unions in the U.S. population.

Workers might turn to unions because of their concerns with employment conditions or because they are unsatisfi ed with the process by which decisions are made at their workplace. Thus, workers might, for example, vote in favor of the union in the hope that subsequent contractual negotiations will improve wages. Or a worker might be angered by a recent managerial decision, such as a layoff or a disappointing performance appraisal . In these cases, the worker might turn to the union with the hope that the union will either improve future management decisions or, at a minimum, give employees a greater voice in future decision making.

The evidence Richard Freeman and Joel Rogers collected on why employees vote in favor of union representation is provided in Box 7.2 . Their survey evidence shows that a very signifi cant factor in employees’ decision to unionize is their confi dence and trust in management and employees’ feelings about whether they are being treated fairly by management.

Union Campaign Practices Unions commonly rely on organizers to rally employee support during election campaigns. These organizers often include paid full-time staff from existing unions who travel from campaign to campaign. The union also often enlists some of the work force to assist as organizers. Organizers and union supporters use a variety of mechanisms to promote a pro-union message. They often hold group meetings

BOX 7.2 Employee Motives for Voting to Unionize

Nonunion employees are more likely to say they would vote for a union when they also say that:

1. Relations between employees and management are bad. 2. They do not trust management. 3. They believe that management shows little concern for employees. 4. They dislike their job. 5. They are dissatisfi ed with their infl uence and with the workplace. 6. They believe management is unwilling to share power.

Source : Survey evidence reported in Richard B. Freeman and Joel Rogers, What Do Workers Want? (Ithaca, N.Y.: Cornell University Press, 1999).

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160 Part III. The Functional Level of Labor Relations

after work hours in a local church or community meeting room. Union supporters who have the opportunity to move around the work site often spread the message during work hours. 2

Management ’ s Campaign Practices Management is rarely a passive observer in the election process. Managers often try to design personnel and other corporate policies far in advance of any repre- sentation election to dissuade employees from favoring union representation. These tactics can be as important to the election outcome as the tactics management might use during an election campaign.

Common strategies managers use before the onset of organizing campaigns to reduce the incentive to unionize include most, if not all, of the following:

1. Wages and fringe benefi ts equal to or greater than those paid to comparable workers in the local labor market.

2. A high rate of investment per worker in such employee programs as training and career development.

3. Extensive efforts to stabilize employment and avoid layoffs as much as possible.

4. Advanced systems of communications and information sharing in the company. 5. Informal mechanisms for or encouragement of participation in decision

making about the way work is to be performed. 6. Development of a psychological climate that fosters and rewards loyalty and

commitment to the company. 7. Rational administration of wages and salaries, performance appraisal, and

promotion systems that reward merit but also recognize seniority. 8. A nonunion grievance procedure (usually without binding arbitration). 9. Locating new production or service facilities in southern states or rural areas

or areas that are only sparsely unionized.

Management does not always have the will or foresight to put all these policies in place, and election campaigns can arise even when some of them are in place. When managers face a representation election, they typically will attempt to convince employees to vote against union representation. They will call meetings with employees (these might be individual or group meetings) to make their case. Under the NLRA, management is allowed to hold these meetings on company time and in company facilities (the law allows captive-audience speeches up to twenty-four hours before the vote). During such a meeting, a management spokesperson (such as the company president) might remind the employees of the direct costs of union membership (dues) or the potential losses in income to employees during any strikes that ensue.

Under the NLRA, employers may not threaten to punish workers if they join or vote for a union. The NLRA also forbids employers from making promises to workers that might encourage them to reject the union. But an employer may make a prediction about the future if the prediction is based on fact. An employer may say that workers could be laid off if the union wins the election and successfully

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Union Organizing and Bargaining Structures 161

negotiates for a 50-cent raise, provided the employer has the evidence that a 50-cent raise would lead to layoffs.

The NLRA gives the NLRB two ways to require an employer to recognize and bargain with a union if it fi nds that an employer has committed egregious violations of the labor law during a representation campaign. One option is to issue a direct order certifying the union as the bargaining agent and requiring the employer to bargain with it, and the other is to go directly to a federal court to obtain an injunction requiring the employer to stop its illegal actions and to bargain with the union. In recent years, the NLRB has made greater use of the court injunction option because it takes less time to implement. Box 7.3 describes a recent case where the Board acted directly by issuing a bargaining order.

The Election Unit The election unit is the group of employees that the NLRB (or the appropriate state agency with jurisdiction over the employees involved) determines is covered under the appropriate statute and is eligible to vote in the representation election.

BOX 7.3 A Rare Case Where the NLRB Ordered Union Recognition

Although the NLRB rarely exercises its authority to order management to recognize a union, this does sometimes happen in the face of egregious employer violations of the nation ’ s labor laws. A case occurred at a New York branch of Hogan Transports Company, which provides trucking services exclusively for the Save-A-Lot supermarket chain. The Teamsters union began attempting to unionize the employees in June 2013. The union alleged that the employer had committed several violations of fair labor practices after the petition for an election, including threats of job loss, coercive pay raises, and a biased termination.

The NLRB issued a bargaining order in this case by ruling that while the violations did not constitute “exceptional” or “outrageous” violations (two criteria that justify issuing a bargaining order), the employer ’ s actions met the third criteria of signifi cantly diminishing the chance that a fair election could take place. In the Hogan Transports case, supervisors held multiple captive-audience meetings at which they claimed to have received strong indications from their sole supplier, Save-A-Lot, that it might terminate its contract if the shop unionized. This claim was uncorroborated in the investigation. Also, Hogan Transports put a pay raise into effect when it learned of the union campaign, with no evidence that this would have happened if no election was to be held. Finally, a vocally pro-union employee was terminated under suspicious conditions.

Source : Hogan Transports, Inc., 363 NLRB No. 196 (May 19, 2016)

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162 Part III. The Functional Level of Labor Relations

Two main decisions must be made to defi ne the appropriate election unit. First, the range of employees to be included must be decided. This may involve choosing between a craft election unit structure (covering only workers in a single occupation), an industrial election unit structure (for example, all the blue-collar production and maintenance workers in a plant), or between employees at one plant or location and employees at multiple plants or job sites. Second, the issue of who functions as a supervisor or manager must be decided, because since the passage in 1947 of the Taft-Hartley amendments to the National Labor Relations Act, supervisors have been excluded from coverage of the act.

The Scope of the Unit—The NLRB ’ s Criteria Since the composition of the electorate can infl uence the outcome of the

election, the scope of the election unit is often a hotly contested issue. The union typically will seek an election unit that maximizes its ability to win the election and the employer will seek a unit that minimizes the union ’ s chances of winning. The NLRA states that the fundamental objective in choosing an election unit should be to ensure that employees have “the full freedom in exercising the rights guaranteed by this act.”

The NLRB and the state and local boards normally consider the following general criteria in deciding on the appropriate election unit:

1. The community of interests among the employees 2. The potential effects of alternative units on stability in the labor-management

relationship 3. The need to provide suffi cient freedom of choice to professional and skilled

employees 4. The history of bargaining or the employer ’ s decision-making structure with

similar units

This fourth criterion is useful in resolving disputes between the parties over whether certain employees should be excluded because they perform supervisory or managerial functions.

Whether craft workers are put into the same election unit as production workers in the same plant (or company) is a diffi cult part of the process of determining an election unit. Although Section 9(b)(2) of the Taft-Hartley Act was designed to limit the NLRB ’ s ability to put craft workers into industrial election units, the board has consistently rejected petitions to exclude craft workers from the large industrial units. Indeed, the board has argued that the interdependence between craft workers and production workers warrants a single comprehensive unit.

The NLRB has been somewhat more willing to grant professional employees a separate bargaining unit. Section 9(b) of Taft-Hartley prohibits the NLRB from including professional employees in a bargaining unit with nonprofessional employees unless the professionals decide by a majority vote to be included in a larger, more comprehensive unit.

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Union Organizing and Bargaining Structures 163

Union Organizing Success Rates In 2015, labor unions won 69.5 percent (1,128 out of 1,628) of the representation elections conducted. 3 This fi gure declined steadily from the 1960s to the mid-1990s but has risen steadily since then. However, the number of workers organized through the election process continues to be very small relative to the size of the nonunion labor force. In any given year since at least the 1990s, unions have organized less new members than the number of new entrants to the labor force. In 2015, unions organized some 61,650 workers through NLRB elections, down slightly from 64,000 in the previous year. In 2015, unions won 73 percent of elections held for units of less than 50 employees, compared to a win rate of 61 percent for units with 50–99 employees and 58 percent in units with 100–499 employees. 4 In large multi-establishment companies, unions have had trouble even securing enough signed authorization cards to certify to the NLRB that an election should be held. 5 These data make it clear that unions are not going to reverse their long-term decline by using the established procedures of the NLRA unless they make efforts to substantially increase the number of organizing drives they conduct.

Union involvement in representation elections and win rates in those elections vary somewhat by union. The Teamsters are the most active union in representation elections. They participated in 384 representation elections in 2015, accounting for approximately 20 percent of all NLRB representation elections. The union involved in the second highest number of representation elections was the SEIU, with 152 elections in 2015. SEIU, the Laborers International Union of North America and the International Association of Machinists and Aerospace Workers were the most successful unions in representation elections; each won about three-fourths of NLRB elections in which they participated.

At the same time, the low level of recent union organizing success and the fact that only 11 percent of the work force is now unionized should not be taken to mean that only a small fraction of the American work force desires union representation. 6 The most complete survey of how workers would respond to union organizing efforts on their jobs and how they would expect their employer to respond was carried out in the mid-1990s by Professors Richard Freeman and Joel Rogers. The results showed that a sizable number of nonunion employees desire union representation. Just under one-third of nonunion private sector employees indicated that they would vote for union representation if given the chance to do so. That was essentially the same percentage who gave this response in the fi rst national survey of this kind in 1976.

More recent polls (the most recent was in 2004) indicate interest in union representation has increased to just under 50 percent of the nonunion workers who participated in nationally representative surveys. Thus, the interest of nonunion workers in joining a union has increased substantially over the past several decades even as union membership has decreased, leading Freeman and Rogers and others to conclude that there is a large representation gap in the United States.

In response to declining unionization, American unions have adopted new organizing strategies (described later in this chapter). One aspect of the new

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164 Part III. The Functional Level of Labor Relations

organizing approaches of American unions is intensifi ed efforts to organize profes- sional employees. As Box 7.4 describes, this includes organizing campaigns among university professors and graduate assistants.

Even if a union wins a majority vote in a representation election, this does not ensure that a fi rst contract will be negotiated. The NLRA requires that employers (and the union) bargain in good faith, but the law does not require that the parties reach agreement. In fact, fi rst contracts are won in only about two-thirds of newly designated units.

Does the Election Campaign Infl uence How Workers Vote? Research has shown that workers tend to become less inclined to vote for union representation when an election is delayed. 7 Studies also show that illegal employer behavior during the election campaign (a signal of aggressive employer opposition to bargaining) further reduces the probability that a fi rst contract will be settled. 8 The effects of employer resistance is quite substantial; as we noted in Chapter 6 , the most comprehensive study of this issue found that only about 10 percent of bargaining units where a majority of workers sign authorization cards are successful in achieving a fi rst contract if the employer resists to the point that an unfair labor practice charge is fi led. 9 Evidence also shows that fi rms with previously poor worker-supervisor relations and low wages are more likely to commit violations of fair labor practices during election campaigns. 10

The results of these studies further reinforce a conclusion most unions have come to: investments in organizing through the procedures the NLRA has established have to be made very carefully, given the low probability of success and the high costs involved. Most union leaders today look for other ways to gain neutrality from employers in organizing or fi nd ways to attract members without having to use these processes. The evidence also indicates why most labor law and policy experts recognize that this feature of labor law is in need of fundamental reform. We will discuss options for reform in Chapter 16 .

In 2015, the NLRB announced some changes in how it would administer representation election processes and adjudicate claims that an employer or union was violating the rules governing these processes. Specifi cally, it indicated that it would speed up the process by no longer hearing evidence on unfair labor practice charges until after the election, by requiring employers to provide unions with the e-mail addresses of those eligible to vote (in the past, only mailing addresses were required), and requiring employers to post notices of the right of workers to form a union. These new administrative processes have been in effect only a short time and it is too early to tell whether they will make any difference in the outcomes of elections.

Union Decertifi cation Unions lose members through decertifi cation elections . The 1947 Taft-Hartley amendments to the NLRA prescribed the election procedures for decertifying a union.

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Union Organizing and Bargaining Structures 165

BOX 7.4 The Unionization of University Professors and Graduate Students

Working in higher education has become increasingly precarious as universities have shifted from staffi ng full-time, tenure-track professors to relying sig- nifi cantly more on part-time adjunct professors and graduate assistants. Though these changes have made unionization necessary by lowering the standards of working conditions, they have also created greater opportunity for successful unionization efforts.

This apparent paradox can be resolved by looking at one of the major historic roadblocks to university unionization. In 1980, a conservative Supreme Court ruled in NLRB v. Yeshiva University that tenure-track professors in private universities were ineligible for unionization because they had signifi cant managerial authority in the university. However, the growth of the admin- istrative bureaucracy that enabled the transition to a contingent work force led the NLRB to decide in 2014 that “colleges and universities are increasingly run by administrators” and that therefore professors are for the most part nonsupervisory employees.

While the NLRB has recently begun to open the door for unionization for private institutions, professors in public universities not covered by the board ’ s jurisdiction have, as with other industries, unionized at a far more rapid pace than their counterparts in private universities. Of the estimated 386,000 unionized university faculty in the United States, 344,762 work in public universities.

Those who have been most affected by the changes in academia are the ones who have fought the hardest for unionization. Graduate, teaching, and research assistants have borne an increased workload as universities staff less full-time professors. These educators also face bleaker job prospects after earning their degree. Their efforts were stunted in 2004, when the NLRB ruled in a case concerning Brown University students that because graduate students were “primarily students,” they were ineligible for unionization. However, an NLRB ruling in August 2016 in favor of Columbia University students has practically overturned the 2004 ruling by stating that despite their broader relationship with the university, graduate students are still protected under the NLRA and can form a union based on the work they perform under the direction of the school. This may prove to be a watershed event in the struggle for university student unions.

Source : Noam Scheiber, “Grad Students Win Right to Unionize in an Ivy League Case,” New York Times , August 23, 2016; and David Ludwig, “Why Graduate Students of America Are Uniting,” The Atlantic , April 15, 2015.

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166 Part III. The Functional Level of Labor Relations

The decertifi cation elections held since Taft-Hartley have been far fewer than the representation elections, but in recent years their number has been increasing and unions have been losing an increasing percentage of these contests. The fi rst year after Taft-Hartley passed, for example, 97 decertifi cation elections were held, or only 3 percent of the 3,822 representation elections held that year. That ratio held steady throughout the 1950s and 1960s but began creeping upward in the 1970s. In 2015, 185 decertifi cation elections were held and unions retained representation rights in 72 (or 39 percent) of them. 11

Most union members appear to be satisfi ed with their unions and union leaders. A recent survey fi nds that union members are generally very satisfi ed with their personal experiences with the unions at their workplaces. Survey data shows that 90 percent of union members would vote to keep their union if given the chance to directly vote on the issue.

THE DEBATE OVER LABOR LAW REFORM

The diffi culties workers and unions have experienced in navigating through the representation process in the face of employer resistance has led to much debate over whether the endorsement of collective bargaining that the NLRA provided is being fulfi lled. Remember that the original objective of the law was to ensure that employees would be able to exercise free choice regarding union representation, untrammeled by an employer ’ s (or a union ’ s) false promises or false information, threats of reprisals or promises of benefi ts, or misuse of economic power. To reach this objective, the NLRB (and most state labor boards) attempted to establish laboratory conditions for the election process. The notion was that workers should be free to judge whether they wanted union representation in an environ- ment free of coercion and misinformation.

Advocates of labor law reform often argue that the penalties imposed on employers who commit unlawful acts during an election campaign are too weak. They also claim that the procedures for remedying unfair labor practices and or holding representation elections are too protracted and that too often employers merely move or close operations as part of union avoidance strategies. As we will discuss in more detail in Chapter 16 , a major congressional debate over labor law reform occurred in 1977 and 1978. The labor law reform bills introduced then would have imposed harsher penalties on labor law violators, required stricter time limits on the election process, and provided stronger remedies for victims of unfair labor practices. The bills were not passed (one bill passed the House of Representatives but died in a fi libuster in the Senate in 1978). In 1991, Congress debated labor law amendments that would limit the ability of employers to hire permanent replacements during a strike. In 1994, a presidential commission, the so-called Dunlop Commission, recommended several changes in labor laws and the application of laws to overcome delays and other tactics employers have been using to oppose union organizing. However, in the end, the Dunlop Com- mission ’ s recommendations were ignored. In 2009, after the election of Barack Obama, the labor movement mounted another effort to reform labor law with

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