EmpRel 1/Union Campaigns

Union Campaigns

Read chapters 6 and 7 of the text. While the material refers to both union campaigns and union avoidance, we will combine the study of the two. To this end:

1. When elections for unions occur, the process can be very adversarial and contentious, as many elections can be. Put yourself in the position working on a union election. Which of these 3 roles would suit you best and why, knowing the information you now are learning about labor relations:

• Running the campaign of a union candidate
• Monitoring election outcomes
• Informing all parting of legal rules regarding campaign organization and the election process.

Explain your answer and tell us a bit about yourself and your personality.

2. Read the GMFC case on 189 and state your answer to the problem, as listed in the last sentence on 190.

3. What is your opinion of the philosophy-laden approach to employee relations?

Submission Instructions: (www.turnitin.com)

Any papers/assignments should at a minimum contain 3-4 pages of content (double spaced), include a properly formatted cover page, and a reference listing page with at least three (3) NEW references properly listed at the end of your work. Providing additional references to your assignments demonstrate your desire to conduct additional research on the topic area and can improve your research skills.

With all assignments, include properly formatted in-text citations within the body of your work for each of your listed references so the reader can ascertain what is your original thought or ideas and what portion of your work is taken from credible sources to support your work. It is really important to identify work from other sources to ensure that proper credit is provided to researchers in the field.

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Chapter Six

Union Organizing Campaigns This chapter is the first of two chapters that examine how unions organize new bargaining units and how and why employers attempt to avoid being unionized. Chapter 6 covers union organizing campaigns, the election process, and the roles of the National Labor Relations Board (NLRB) and the National Mediation Board (NMB). Chapter 7 covers employers’ overall strategies for avoiding unionization and operating without unions.

Recall from Chapter 2 the long history of employer resistance to union organizing in the United States. In the mid-1930s the Wagner Act strongly facilitated and institutionalized collective bargaining as the preferred method for resolving workplace conflicts where employees chose it.

Recall also from the introductory chapters that employees become union- ized only if a single union receives a majority of votes from employees in the unit. The concept of exclusive representation establishes a “winner- takes-all” outcome in representation elections. This requirement, which contributes to the adversarial relationship that exists between employers and unions, begins with an organizing campaign.

Organizing is highly adversarial and heavily regulated. Most employ- ers actively resist. Union campaigns usually stress unfair treatment by employers, the lack of a forum for effectively voicing complaints, and the necessity of organizing to gain outcomes the employer should grant but won’t without unionization. Organizing campaigns are waged intensively by both sides. The NLRB or NMB acts as a referee in the process. Where recognition disputes occur, the boards provide a forum for their settlement and rule on the permissibility of the parties’ campaign conduct, if ques- tioned. From a regulatory standpoint, this chapter will focus primarily on the NLRB’s role since the preponderance of elections are conducted under its auspices.

Chapter 1 introduced some of the reasons that workers unionize. This chapter examines the flow of organizing campaigns, involvement of the NLRB, strategies and tactics used by employers and unions during elec- tion campaigns, and recent results in NLRB-monitored representation

Chapter 6 Union Organizing Campaigns 153

elections. Chapter 7 focuses in detail on employers’ increasing interest in operating “union-free” and the strategies and tactics they use to avoid unionization.

In studying this chapter, consider the following questions:

1. At what points and in what ways is the NLRB involved in representa- tion elections?

2. What effects have employer campaigns had on union organizing success?

3. What strategies and tactics do employers and unions use during orga- nizing campaigns?

4. How successful are unions in organizing new units? 5. What new strategies are unions now using, and how effective are they?

ORGANIZING AND UNION EFFECTIVENESS

Chapter 1 noted that unions create an opportunity through negotiated contracts for employees to have a voice in addressing workplace problems and effectively create a labor supply monopoly. Monopoly power gener- ally leads to a union wage premium.

The ability to gain a wage premium depends on the proportion of an industry that is organized. This means that unions have a strong interest in organizing workers in industries and labor markets where nonunion competition reduces their monopoly power. However, with increasing globalization, eliminating nonunion competition is impossible.

Unions depend on members’ dues to operate. More members create economies of scale. Thus the level and scope of member services are related to some extent to a union’s size. Organizing new units, accreting expanded facilities, and merging with or absorbing other unions are all mechanisms used to expand membership and enhance union effectiveness. Strategies and tactics that increase the probability of success in organizing and main- taining majority status in existing units should lead to greater chances for effectiveness in bargaining and representation.

HOW ORGANIZING BEGINS

Campaigns to organize unrepresented workers begin at either the local or the national union level. National unions target specific employers or geographic areas and send professional organizers to encourage and assist local employees in unionizing. Sometimes organizers apply for jobs in the targeted firm to gain closer contact with employees. Employers cannot legally refuse to hire applicants based on union membership or concur- rent union employment even if their primary purpose is to organize the

154 Labor Relations

workforce. 1 National union campaigns often occur if a unionized firm opens a new nonunion plant. The union representing employees in the firm’s other plants campaigns to organize the new plant to maintain com- mon employment practices across the firm. National organizing may also

1 NLRB v. Town & Country Electric Inc., 516 U.S. 85 (1995). See also M. D. Lucas, “Salting and Other Union Tactics: A Unionist’s Perspective,” Journal of Labor Research, 18 (1997), pp. 55–64.

Yes

No

Yes Yes

No No

Yes

Yes

No

Yes

No

Yes

No

YesNo

Present employees contact union

Union field representative contacts employees

NLRB determines bargaining unit

NLRB holds election

Union gets

> 50%

Bargaining begins

Election barred for one year

Union requests representation election

> 50% ?

< 30%

< 50%< 30% Authorization card campaign

Petition for an

election

Recognition denied?

Union requests

recognition

FIGURE 6.1 Sequence of Organizing Events

Chapter 6 Union Organizing Campaigns 155

target nonunion firms in predominantly unionized industries. Most orga- nizing begins at the local level when some employees decide they would be better off if they could bargain collectively with the employer. 2

The Framework for Organizing Organizing begins with an authorization card campaign and most often ends with the NLRB certifying the election results. Figure 6.1 presents a generalized sequence of the organizing events that will be described in the following sections. This section covers activities leading to a recogni- tion request, petitions to the NLRB for elections, and elections in which bargaining-unit determination is uncontested. Subsequent sections exam- ine bargaining-unit determination, the election campaign, and election certifications.

Authorization Card Campaign An authorization card campaign tries to enroll employees in the union in the unit the union seeks to represent. Organizers contact employees individually to persuade them to sign cards authorizing the union to act as their agent in negotiating wages, hours, and terms and conditions of employment. Figure 6.2 shows an authorization card.

Recognition Requests If a majority of workers signs authorization cards, the union can request rec- ognition as the employees’ bargaining agent. A union seldom requests rec- ognition unless a substantial majority has signed because employers often question whether some workers are eligible to be represented or to vote in an election. Employers faced with a recognition request usually claim that the union’s majority status is doubtful. The union may offer to have a neu- tral third party match the authorization card signatures with an employee list to determine whether a majority actually exists. If a majority has signed and the employer is satisfied with the appropriateness of the proposed bar- gaining unit, the employer can grant recognition voluntarily. 3

2 For an expanded examination of union organizing activities and permissible active management responses, see K. Bronfenbrenner, S. Friedman, R. W. Hurd, R. A. Oswald, and R. L. Seeber, eds., Organizing to Win: New Research on Union Strategies (Ithaca, NY: Cornell University Press, 1998); M. A. Spognardi, “Conducting a Successful Union-Free Campaign: A Primer (Part I),” Employee Relations Law Journal, 24, no. 2 (1998), pp. 35–42; M. A. Spognardi, “Conducting a Successful Union-Free Campaign: A Primer (Part II),” Employee Relations Law Journal, 24, no. 3 (1998), pp. 31–55; and J. J. Lawler, Unionization and Deunionization: Strategy, Tactics, and Outcomes (Columbia: University of South Carolina Press, 1990). 3 See J. W. Budd and P. K. Heinz, “Union Representation Elections and Labor Law Reform: Lessons from the Minneapolis Hilton,” Labor Studies Journal, 20, no. 4 (1996), pp. 3–20, for an example of a situation in which the employer agreed ahead of time to a card check as an appropriate method for determining majority status.

156 Labor Relations

A union may picket an unorganized employer for up to 30 days, demanding recognition as the employees’ bargaining agent. This rarely happens, but if it occurs, the employer can petition the NLRB for an elec- tion in the employee unit the union seeks to represent. If the union loses, further recognitional picketing would be an unfair labor practice (ULP).

Representation Elections Representation elections are held to determine whether a majority of employees desires union representation and, if so, by which union. Elections in units where employees are not currently represented are called certification elections. If employees are currently represented, but at least 30 percent of them indicate they do not want continued represen- tation, a decertification election is held. If a majority votes against rep- resentation, the union loses representation rights. So-called raid elections occur when at least 30 percent of employees indicate they would prefer a different union to represent them. Elections cannot be held if an election result was certified within the previous year. Decertification elections may not be held while a contract is in effect. Figure 6.3 shows that if inter- est in an election is sufficient, the union (or the employer in the absence of a demand for recognition) can petition the NLRB to hold an election to determine employees’ desires. The next section traces the basic steps involved in conducting an election.

I, the undersigned employee (Company)

authorize the International Association of Machinists and Aerospace Workers (IAM) to act as my collective bargaining agent for wages, hours and working conditions. I agree that this card may be used either to support a demand for recognition or an NLRB election at the discretion of the union.

Name (print) Date

Home Address

City

Job Title

Sign Here

Phone

State

Dept.

Zip

Shift

X Note: This authorization to be SIGNED and DATED in Employee’s own hand- writing. YOUR RIGHT TO SIGN THIS CARD IS PROTECTED BY FEDERAL LAW.

RECEIVED BY (Initial)

FIGURE 6.2 Authorization Card

Chapter 6 Union Organizing Campaigns 157

Election Petitions The union may petition the NLRB to hold an election in the unit it is try- ing to organize and include the signed authorization cards as evidence of support. The NLRB checks the signed cards against a roster of employees in the unit. If fewer than 30 percent have signed, the petition is dismissed. If more than 30 percent have signed, the union is legally within its juris- diction, and if the employer doesn’t contest the appropriateness of the proposed unit, the NLRB schedules an election. The employer frequently contests the makeup of an appropriate bargaining unit, requiring that the NLRB decide which employees should be included. The criteria the board uses to decide whether a proposed unit is appropriate are discussed later in this chapter.

When an appropriate bargaining unit is defined and at least 30 percent of employees in the unit have signed authorization cards, the NLRB will order an election unless the union withdraws its petition. If the union

Intervention

Second union begins organizing

Union pickets for recognition

Yes

Union requests election

No

NoNo

Yes Yes

No No

Recognition

Union requests recognition

Employer requests election

Election denied

NLRB orders election

30%Majority

Employer recognizes

Union is bargaining representative

Yes

Yes

Intervention denied

10%

No

Employee(s) request election

Decertification

Picketing

FIGURE 6.3 Avenues to Election Petitions

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receives a majority of the eligible votes cast, the board certifies it as the employees’ bargaining agent and contract negotiations can begin. If the union loses, the board certifies the results, and elections are barred in that unit for one year. In effect, certification guarantees the union or nonunion status of a bargaining unit for at least one year. 4

An election petition may be filed by a union, employer, or employee. In certain types of elections, employers cannot file petitions because early petitions might preempt union campaign efforts. Proof of inter- est must be shown when a petition is filed or within 48 hours. The union must specify the group of employees it desires to represent. If an employer has had a recognition demand, it can directly petition the board to hold an election. A union or an employee can file a decertifica- tion petition asking for removal of the present bargaining agent. Under certain stringent conditions, an employer may petition for a decertifica- tion election if it has a good-faith doubt about the union’s continued majority status, but an employer cannot withdraw recognition until a lack of majority status is proved. 5

Preelection Board Involvement There are two types of elections: (1) consent elections, in which the par- ties agree on the proposed bargaining unit and on which employees will be eligible to vote, and (2) board-directed (petition) elections, in which the NLRB regional director determines, after hearings, an appropriate bargaining unit and voter eligibility. In a petition election, the employer must provide within 7 days a so-called Excelsior list containing names and addresses of employees in the designated bargaining unit. 6 After 10 days but within 30 days, the election will normally be held. Figure 6.4 details board procedures before the election.

The Election The NLRB conducts the secret-ballot election. Company and union observ- ers may challenge voter eligibility but cannot prohibit anyone from voting. After the votes are counted and challenges decided, the choice receiving a majority is declared the winner. If more than two choices (e.g., two differ- ent unions and no union) are on the ballot and none obtains an absolute majority, a runoff is held between the two highest choices. After any chal- lenges are resolved, the regional director certifies the results. Figure 6.5 shows an NLRB election ballot.

4 Brooks v. NLRB, 348 U.S. 96 (1954). 5 T. C. Stamatakos and T. J. Piskorski, “Levitz Furniture: NLRB Rewrites the Book on Employer Efforts to Oust Incumbent Unions,” Employee Relations Law Journal, 27 (2001), pp. 31–44. 6 Excelsior Underwear, Inc., 156 NLRB 1236 (1966).

Chapter 6 Union Organizing Campaigns 159

Outline of representation procedures under Section 9(c)

Petition filed with NLRB Regional Office

Investigation and Regional Determination

Petition may be withdrawn by petitioner

Petition may be dismissed by Regional Director. Dismissal may be appealed to Board

Agreement for Consent Election: Parties sign agreement waiving hearing and consenting to election resulting in Regional Director’s Determination

Stipulation for Certification upon Consent Election: Parties sign agreement waiving hearing and consenting to election resulting in certification issued by Regional Director on behalf of Board if results are conclusive, otherwise determination by Board

Formal Procedures

Request for Review: Parties may request Board to review Regional Director’s action. Opposition to request may be filed

Ruling on request: Board issues ruling, denies or grants request for review

Board action if request for review is granted: Board issues decision affirming, modifying, or reversing Regional Director

Board issues decision directing election (or dismissing case)

Regional Director issues Decision directing election (or dismissing case)

Consent Procedures

Election Conducted by Regional Director

Regional Director or Board Directed

Regional Director may serve on parties or direct Hearing Officers to serve on parties a report containing recommendation to Board

Hearing may be ordered by RD to resolve factual issues

If Results Are Not Conclusive (challenges determinative and/or objections filed)

Regional Director investigates objection and/or challenges (subsequent action varies depending on type of election)

Stipulated Election

Consent Election

Board considers Report and any exceptions filed thereto. Board issues Supplemental Decision directing appropriate action or certifying representative or results of election

Regional Director issues Certification of Representatives or Results

Regional Director issues final report to parties disposing of issues and directing appropriate action or certifying representative or results of election

Regional Director may issue Supplemental Decision disposing of issues and directing appropriate action or certifying representative or results of election (Supplemental Decision subject to Review Procedures set forth above)

Board considers Report and any exception filed thereto. Board issues Supplemental Decision directing appropriate action or certifying representative or results of election

If Results Are Not Conclusive (challenges not determinative

and/or no objections filed)

Regional Director serves upon parties a Report containing his recommendations to Board

Formal Hearing Conducted by Hearing Officer. Record of hearing to Regional Director or Board

Case may be transferred to Board by Order of Regional Director at close of Hearing or subsequently

FIGURE 6.4 NLRB Involvement in Petition to Election

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BARGAINING-UNIT DETERMINATION

The NLRB considers a variety of factors to determine the bargaining unit: (1) legal constraints, (2) the constitutional jurisdiction of the orga- nizing union, (3) the union’s likely success in organizing and bargaining, (4) the employer’s desires to resist organizing or promote stability in the bargaining relationship, and (5) its own philosophy.

Bargaining units can differ depending on whether the focus is on orga- nizing or contract negotiations. For example, several retail stores in a given chain may constitute an appropriate bargaining unit for representation election purposes; while for negotiating purposes, several retail stores owned by different companies may practice multiemployer bargaining. This chapter’s discussion is concerned only with bargaining units for rep- resentation; bargaining units for negotiations are discussed in Chapter 8.

Legal Constraints Legal constraints limit the potential scope of a bargaining unit, but within these constraints, the contending parties—labor and management—are free to jointly determine an appropriate unit. If they agree on the proposed unit, a consent election results. If they do not, the NLRB determines unit appropriateness.

UNITED STATES OF AMERICA

National Labor Relations Board

FOR CERTAIN EMPLOYEES OF

Do you wish to be represented for purpose of collective bargaining by —

MARK AN “X” IN THE SQUARE OF YOUR CHOICE

YES NO

DO NOT SIGN THIS BALLOT. Fold and drop in ballot box. If you spoil this ballot return it to the Board Agent for a new one.

FIGURE 6.5 Specimen NLRB Ballot

Chapter 6 Union Organizing Campaigns 161

Section 9(b) of the Taft-Hartley Act constrains unit determination. First, no unit can include both professional and nonprofessional employees without majority approval of the professionals. Second, a separate craft unit may not be precluded simply because the board had earlier included it in a broader group. However, the NLRB has broadly interpreted this subsection by continuing to include craft groups in larger units. Third, no bargaining unit may include both guards hired by employers to enforce company’s rules and other employees. Fourth, supervisors and managers may not be included in a unit and/or bargain collectively because Section 2 defines their roles as agents of the employer.

The 1974 amendments to Taft-Hartley permitting representation in pri- vate, nonprofit health care facilities established special constraints on bargaining. In response, the board determined that separate units would be appropriate for registered nurses, physicians, other professionals, tech- nical employees, skilled maintenance workers, business office clericals, guards, and all other nonprofessional employees.

The major difference between the Wagner Act and the Railway Labor Act (RLA) is that the RLA requires that bargaining units be formed on a craft basis.

Jurisdiction of the Organizing Union Some unions organize certain occupations or industries. Others organize outside their traditional jurisdictions. If an AFL-CIO union is attempting to raid another affiliate, the NLRB will notify the AFL-CIO when a petition is filed to allow it to activate its internal procedures to adjudicate the prob- lem. Problems are usually resolved because, as a condition of affiliation, unions agree to let the federation resolve internal disputes.

The Union’s Desired Unit Unless it seeks to represent all eligible employees within an employer, a union faces several problems in deciding which bargaining-unit configu- ration it desires. It must balance the unit that would be the easiest to orga- nize against future objectives in contract negotiations. A craft union would likely seek a bargaining unit that includes only workers of relatively simi- lar skills. Industrial unions usually seek plantwide units.

A union must be recognized before it can bargain. But organizing a unit that would have little impact on business if the union were to strike would be futile. For example, gaining a majority in a manufacturing plant custo- dial unit may be relatively easy, but negotiating a favorable contract would be difficult because the employer could readily subcontract the work for little incremental cost during a strike.

The union, then, has two bargaining-unit goals: (1) creating a “ winnable” unit and (2) creating a unit that will have bargaining power with the employer.

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The Employer’s Desired Unit The employer often desires a unit different from, but not necessarily the opposite of, what the union wants. It prefers a unit the union is unlikely to win. If a craft union is organizing, the employer would favor a plant- wide unit. If unskilled workers are the most interested and they are a majority of the workforce, the employer may seek to exclude craft groups. Figure 6.6 shows why management might argue for a smaller unit than the union desires. Assume in this case that 60 percent of production and maintenance employees favor representation, while only 40 percent of other occupations would vote for the union. If the election were held in the union’s desired unit and all employees voted, the union would win by 860 to 790. If management were able to exclude other employee groups, only the production and maintenance employees would be unionized.

The employer also would like a unit configured to minimize union bargaining power if the union wins. Thus, the employer might desire functionally independent units, which would allow continued operations if a strike occurred. But it would also like to avoid fragmented units, which would decrease bargaining power if different contract expiration dates enable unions to threaten a sequence of strikes.

NLRB Policy NLRB policy determines bargaining-unit appropriateness where disputes exist. Although not completely consistent in determining units, the board has applied the following criteria: 7

1. Community of interests. The mutuality of interests among employees in bargaining for wages, hours, and working conditions is frequently applied. 8 However, the community of interests criterion is difficult to

Union’s desired unit

Management’s desired unit

N = 50 N = 1,000 N = 200 N = 400

Skilled trades

Production and maintenance

Shipping and receiving

Office clericals

FIGURE 6.6 Conflicting Unit Desires

7 J. E. Abodeely, R. C. Hammer, and A. L. Sandler, The NLRB and the Appropriate Bargaining Unit, rev. ed., Labor Relations and Public Policy Series, report no. 3 (Philadelphia: Industrial Research Unit, Department of Industry, Wharton School of Finance and Commerce, University of Pennsylvania, 1981); see also www.nlrb.gov/nlrb/legal/manuals/online_chap 12.25p. 8 Continental Baking Co., 99 NLRB 777 (1952), and NLRB v. Action Automotive, 469 U.S. 490 (1985).

Chapter 6 Union Organizing Campaigns 163

interpret because no benchmark is used to define the degree of similar- ity necessary between employee groups.

2. Geographic and physical proximity. The more geographically separated two or more locations are, the more difficult it is for a single union to represent employees. This factor carries considerable weight when the employer’s policies differ substantially across locations.

3. Employer’s administrative or territorial divisions. If a firm’s labor relations or human resource management were uniform over a given territory (e.g., 46 grocery stores located in five counties of southeastern Michigan and managed as a territorial subdivision of a multistate chain), then this unit, rather than a single store or subset of stores, may be appropriate.

4. Functional integration. This refers to the extent to which all potentially includable employees are required to provide the company’s output. For example, in the Borden Co. decision the board recognized that although 20 different facilities with varying human resource policies were involved in the seemingly independent processes of manufac- turing (3) and distributing (17) ice cream, an appropriate unit would contain all 20 plants because of the interrelationships among facilities necessary to market the final product. 9

5. Interchange of employees. If employees transfer frequently across plants or offices, their community of interest may be similar, leading the board to designate a multiplant unit.

6. Bargaining history. In applying this factor, the board may consider the past practices of the union and the employer (if it is a decertification or unit clarification election) or typical industry practices in bargaining. 10 For example, if an employer had a companywide unit that had served the mutual bargaining interests of both the employer and the union, the board would probably leave it undisturbed.

7. Employee desires. Early in the board’s history, the Globe Doctrine was developed. 11 Where a bargaining history involving several units exists, the board may allow employees to vote for or against their inclusion in a more comprehensive unit.

8. Extent of organization. After these factors have been analyzed, the board may consider the degree to which organizing has occurred in a proposed unit, although this is not considered the prime factor. 12 The Supreme Court has ruled that the board could consider it because Section 9(c)(5) of the Taft-Hartley Act requires that the board consider allowing employees the fullest freedom to exercise their rights.

9 Borden Co., Hutchinson Ice Cream Div., 89 NLRB 227 (1950). 10 Dallas Morning News, 126 LRRM 1346 (1987). 11 Abodeely et al., NLRB and the Appropriate Bargaining Unit, pp. 66–68. 12 NLRB v. Metropolitan Life Insurance Co., 380 U.S. 438 (1965).

164 Labor Relations

Many of these factors are related. For example, employee interchange is more likely to occur within a defined administrative unit, and, in turn, an interchange should establish a broader community of interests. Thus the board’s determination frequently rests on several factors. Although these factors are generally used, there have been exceptions to each. 13

Craft Severance The term craft severance means that a group of employees with a sub- stantially different community of interests is allowed to establish a sepa- rate unit. Craft severance can occur during initial unit determination or when a group of employees votes to leave their bargaining unit. Severance is easier during initial organizing.

The NLRB will allow craft severance only when the following condi- tions are present: (1) a high degree of skill or functional differentiation between groups and a tradition of separate representation; (2) a short bar- gaining history in the present unit and a low degree of likely disruption if severance is granted; (3) a distinct separateness in the established unit among members of the proposed unit; (4) a different collective bargaining history in the industry; (5) low integration in production; and (6) a high degree of experience as a representative for the craft of the union desiring severance. 14 Craft severance has been allowed in cases where a recogniz- able difference exists in the communities of interest and there is no prior contrary bargaining history. 15

What Factors Are Used? Except in health care, no administrative rules apply. The board determines bargaining-unit appropriateness on a case-by-case basis. For severance, the overriding factor is bargaining history, buttressed by functional inte- gration in an employer’s operation. For representation, community of interest and functional integration are important. The workers’ commu- nity of interest is affected by the production process, transfer policies, geographic proximity, and administrative decision making.

There are few judicial precedents, and bargaining-unit determina- tions are unappealable because they are not final orders. If an employer believed the board’s determination was wrong, it would refuse to bar- gain if it lost the election and the board would seek enforcement of its order in the courts. 16 In most cases, the courts leave board unit orders undisturbed.

13 Abodeely et al., NLRB and the Appropriate Bargaining Unit, pp. 11–86. 14 Mallinckrodt Chemical Works, 162 NLRB 387 (1966). 15 E. I. duPont de Nemours & Co., 162 NLRB 413 (1966), and Anheuser-Busch, Inc., 170 NLRB No. 5 (1968). 16 Abodeely et al., NLRB and the Appropriate Bargaining Unit, pp. 28–29.

Chapter 6 Union Organizing Campaigns 165

Other Issues in Unit Determination Organizational structures change over time. What was initially an appro- priate unit may not be appropriate now. Major factors involved in the ongoing definition of a unit include new facilities and acquisitions, reorga- nization, job reclassification, sale to another firm, or joint employment.

Accretion Accretion occurs when a new facility is added to the bargaining unit or when an existing union in an employer wins representation rights for employees previously represented by another union. The NLRB generally applies the same criteria to accretion as it applies to initial unit determina- tion. However, the board gives extra weight to the desires of employees in the unit subject to accretion. 17

Reorganization and Reclassification An employer occasionally reclassifies jobs or reorganizes administrative units. These changes might make a previously defined bargaining unit inappropriate, and the parties may redefine the unit by consent. Failing this, the employer would have to refuse to bargain, and the union would have to file a ULP charge for the board to reexamine appropriateness.

Successor Organizations A firm that acquires or merges with another firm assumes existing contractual obligations. 18 Where ownership changes but operations con- tinue unchanged, the new owner must recognize the union but does not need to honor the existing contract. 19 Where operations continue but, because of layoffs and/or new hires, the union lacks a majority, the employer has no obligation to honor a contract. 20 When a closed firm is reopened by new owners, the bargaining relationship continues if a majority of the employees worked for the former company and were in a represented unit. 21

17 Compare Consolidated Edison Co., 48 LRRM 1539 (1961), where no accretion to an established unit was permitted but a distinct unit was ordered, with Textile, Inc., 46 LRRM 1264 (1960) and Special Machine & Engineering Inc., 124 LRRM 1219, where accretion occurred, and Honeywell, Inc., Semiconductor Division, 140 LRRM 1147, where no accretion was allowed due to employee desires. 18 John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543 (1964). 19 NLRB v. Burns International Security Services, 406 U.S. 272 (1972). 20 Howard Johnson Co., Inc. v. Detroit Local Joint Executive Board, Hotel and Restaurant Employees & Bartenders International Union, AFL-CIO, 417 U.S. 249 (1974). 21 Fall River Dyeing and Finishing Corp. v. NLRB, 482 U.S. 27 (1987); see also R. F. Mace, “The Supreme Court’s Labor Law Successorship Doctrine after Fall River Dyeing,” Labor Law Journal, 39 (1988), pp. 102–109.

166 Labor Relations

Joint Employers Occasionally a group of employees has two employers. If an employ- ment agency supplies temporary employees to another and both can fire, discipline, change wages, and so on, then they are joint employers. An appropriate bargaining unit can include temporary joint employees, regardless of whether the employer that hires and pays them consents. 22 Agency employees have tried unsuccessfully to organize in Microsoft and Amazon.com. Even if successful, they would face the possibility that the units in which they work would be sold. They have had some success in being legally classified as company employees for benefit purposes. 23

THE ORGANIZING CAMPAIGN

Organizing campaigns are highly contentious. Increasingly, unions and employers fight bitterly over the future of the employment relationship for the targeted work group. The discussion to this point has focused on the overall framework and basic rules for determining whether a majority of employees want union representation. The campaign has many of the characteristics of a political campaign. This section examines the actual practices of unions and employers during organizing campaigns and pro- vides examples of how the parties, particularly employers, bend the rules to gain an advantage in influencing the outcome of the campaign.

The usual catalyst for a campaign is employees’ frustration about their wages and benefits or their inability to influence outcomes in the work- place. It’s also possible that a national union that organizes similar types of employers identifies the employer as a ripe target for organizing. In the latter case, the national union needs to size up the organizing climate, including the economic and political climate; evidence of union interest or activity by employees; likely community attitudes or support; and the demographic characteristics of the potential unit. If a decision is made to pursue organizing, a strategy is developed. As soon as management becomes aware of any organizing activity, it also develops a strategy to thwart the activity. 24 Figure 6.7 presents a theoretical model of the organiz- ing and certification election process.

Unionization aims to permanently change the employment relationship by institutionalizing collective bargaining as the method through which managers and employees deal with each other about future wages, hours,

22 M. B. Sturgis, Inc., 331 NLRB 173 (2000). 23 D. D. van Jaarsveld, “Collective Representation among High-Tech Workers at Microsoft and Beyond: Lessons from WashTech/CWA,” Industrial Relations, 43 (2004), pp. 364–385; see also Vizcaino v. Microsoft Corp., 173 F.3d 713 (9th Cir. 1999). 24 K. Bronfenbrenner, “The Role of Union Strategies in NLRB Certification Elections,” Industrial and Labor Relations Review, 50 (1997), pp. 195–212.

Chapter 6 Union Organizing Campaigns 167

and terms and conditions of employment. For the union, organizing is an ongoing process. The campaign aims not only to secure a majority who will vote for representation but also to develop an identification with the union and solidarity among employees so that they will be willing collec- tively to threaten or resist the employer when their interests are at stake.

The union needs to convince those who didn’t initially sign authori- zation cards that it can and will improve their employment outcomes. Employees who are hired after unionization need to be recruited to join and to be socialized to better understand and support the union’s goals.

Union Strategy Employer Strategy

Outside Consultant

Organizer Background

Worker Union Density

Election Outcome

Contextual Influences

Economic Climate Political Climate Union Density and Activity Community Support

Bargaining-Unit Demographics Company Characteristics Union Characteristics Election Background

FIGURE 6.7 Theoretical Model of the Certification Election Process

Source: K. Bronfenbrenner, “The Role of Union Strategies in NLRB Certification Elections,” Industrial and Labor Relations Review, 50 (1997), p. 197. © Cornell University.

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To be successful, the union must negotiate an initial contract that improves the conditions that led to organizing. A permanent support organization must be established within the unit to address member concerns and chal- lenge management when workers’ rights have been abridged.

If unionized, many decisions that managers previously implemented unilaterally would require consultation and negotiation with the union. The national union with which the local affiliates will likely pressure the employer to operate much more like unionized competitors in its industry. It’s likely the union will focus on improving wages and benefits beyond the level the employer and other nonunion employers offer. Given the economic consequences of unionization, the employer needs to decide how much and what types of effort it will invest in the campaign to defeat the unionization drive. And, if it loses, the employer must decide whether to accept the outcome or to implement evasive and intransigent tactics to frustrate union efforts and erode the confidence of bargaining-unit members.

Employer Size and Elections For more than 20 years, over half of all NLRB-conducted certification elec- tions have been in units with less than 30 employees. Assuming that the average unit size is 20, that employees earn an average of $12 per hour when the organizing campaign starts, that the union wins about 50 percent of the elections, that average union dues are equal to two hours of wages per month, and that 50 percent of dues are remitted to the national union with which the local is affiliated, the expected increase in dues revenues for the national from conducting an organizing campaign in one of these small units is about $1,440 per year. To remain economically viable, the national must be able to amortize its organizing expenses and provide half the necessary services a unit would require (given the expected 50 percent win rate) with these revenues.

For an employee, the cost of union dues is equal to about 1.15 percent of pay (24 out of 2,080 straight-time paid hours per year). If the union succeeds in negotiating future contracts that exceed what the employer would voluntarily grant, the return on union dues is quite high. Histori- cally in the United States, the wage premium paid to union employees, with all else equal, is usually greater than 10 percent, which is substan- tially less than the cost of the dues that support the structure necessary to negotiate the increase and provide other bargaining-agent services to employees.

Very few elections take place in private sector establishments with 500 or more employees. In 2005, the NLRB conducted 52 elections in units of 500 or more, and unions won 25 of those elections. The average size of these units is close to 800. If pay and dues remission are as described above for small units, the expected annual return to an organizing campaign for

Chapter 6 Union Organizing Campaigns 169

the national union would be $57,600. The union win rate is generally lower in large units, and there are fewer large units available to organize than in the past. 25

Economic returns from union representation are substantially greater than costs of organizing for employees in most industries. The cost of organizing an additional worker is roughly equal to the annual earn- ings increase of covered workers. 26 Thus, unions recoup their investment through dues, and employees receive an increasing and continuing wage premium compared to nonunion employees.

General Organizing Campaign Rules Through their rulings on ULP cases, the NLRB and courts have established guidelines of permissible conduct for unions and employers in organiz- ing campaigns. If either violates the rules, a ULP may be found and some redress ordered, which may include rehiring fired employees with back pay, rerunning an election, or imposing a bargaining order if the violations were egregious.

No-Distribution or -Solicitation Rules Most employers prohibit solicitations by any organization on company property or on company time. These rules prohibit labor organizers from gaining easy access to employees, because legally they can be barred from access like representatives of other organizations. Organizing is more dif- ficult if workers must be contacted off the job, especially if their residences are widely dispersed.

No-solicitation rules do not apply to employees. Employee orga- nizers can solicit fellow workers on company premises (during non- working time) unless it’s clearly shown that solicitation interferes with production. 27 Nonemployee organizers (e.g., international union field representatives) can, in most instances, be barred from soliciting on company property. 28 Thus, early in-plant support is necessary for a drive to be successful.

Organizers may gain access to clerical and technical employees through employers’ e-mail systems. Within the company, it is much easier for employees to contact and solicit others (and it is also easier for the employer to trace their actions). Employers can restrict computer and e-mail system

25 H. S. Farber, “Union Success in Representation Elections: Why Does Unit Size Matter?” Industrial and Labor Relations Review, 54 (2001), pp. 329–348. 26 P. B. Voos, “Union Organizing: Costs and Benefits,” Industrial and Labor Relations Review, 37 (1983), pp. 576–591. 27 Republic Aviation Corp. v. NLRB; and NLRB v. LeTourneau Co., 324 U.S. 793 (1945). 28 NLRB v. Babcock and Wilcox Co.; v. Seamprufe, Inc.; and Ranco, Inc. v. NLRB, 351 U.S. 105 (1956).

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use to working time, thereby making all internally developed e-mail communications related to organizing a violation subject to disciplinary action. 29 Employees generally have the right to send personal messages to each other, but employers have the right to block incoming e-mail. 30

Organizers may solicit on company property if reasonable access to employees is unavailable, as in remote operations such as logging, or where workers live in a company town. 31 But organizers may not solicit on quasi-public property, such as shopping mall courts or parking lots. 32 Employers reduce soliciting opportunities by requiring that employees leave working areas and plants at the end of their shifts. Employer prop- erty rights generally receive precedence over the rights of employees to solicit when the two sets of rights are in conflict. 33

Communications Employees can be required to attend meetings on company premises dur- ing working hours to hear presentations opposing the union. 34 However, if solicitation is barred during nonworking time (as in a retail establish- ment), the union may be entitled to equal access. 35

Employers cannot promise employees new benefits if the union loses, but they can point out that if the union is certified, present levels of wages and benefits will be subject to negotiation. 36 If extraneous racial propa- ganda is used in campaigns, it is likely a rerun will be ordered if objections are filed. 37 However, there is no requirement generally that campaign

29 D. V. Yager and T. S. Threlkeld, “Workplace Cyberspace—Going Where No Board Has Gone Before,” Employee Relations Law Journal, 25, no. 2 (1999), pp. 53–70; see also J. M. Hunter, “The NLRA at 70: Employer E-Mail and Communication Policies and the National Labor Relations Act,” Labor Law Journal, 56 (2005), pp. 196–202. 30 S. S. Robfogel, “ Electronic Communication and the NLRA: Union Access and Employer Rights,” Labor Lawyer, 16 (2000), pp. 231–252. 31 Marsh v. Alabama, 326 U.S. 501 (1946); Lechmere Inc. v. NLRB, 502 U.S. 527 (1992). 32 Central Hardware Co. v. NLRB, 407 U.S. 539 (1972); and Hudgens v. NLRB, 424 U.S. 507 (1976). 33 R. N. Block, B. W. Wolkinson, and J. W. Kuhn, “Some Are More Equal than Others: The Relative Status of Employers, Unions, and Employees in the Law of Union Organizing,” Industrial Relations Law Journal, 10 (1988), pp. 220–240; see also A. Story, “Employer Speech, Union Representation Elections, and the First Amendment,” Berkeley Journal of Employment and Labor Law, 16 (1995), pp. 356–457. 34 Livingston Shirt Corp., 107 NLRB 400 (1953). 35 May Department Stores Co., 136 NLRB 797 (1962). 36 One commentator argues that employers’ First Amendment rights are abridged by prohibiting campaign promises of future benefits for voting against representation. See P. J. Caldwell, “Campaign Promises in NLRB Elections: Advancing Employer Speech through Political Elections Law and the First Amendment,” Labor Law Journal, 56 (2005), pp. 239–259. 37 N. A. Beadles and C. M. Lowery, “Union Elections Involving Racial Propaganda: The Sewell and Bancroft Standards,” Labor Law Journal, 42 (1991), pp. 418–424.

Chapter 6 Union Organizing Campaigns 171

rhetoric be truthful, although the board has switched its position on this several times. 38 Voters tend to decide their positions early in the campaign; thus, truth or falsity may have little effect during the waning days. 39

The 24-Hour Rule Because it would be impossible for a union or an employer to rebut a last- minute campaign statement, employers or unions cannot hold a captive- audience presentation during the 24 hours directly preceding an election (Twenty-four hour rule). 40

Interrogation Employer interrogation of employees during a campaign would probably be legal only if used to test a claim of majority status, 41 but it would be unfair if (1) the employer has been hostile toward unions, (2) information is likely to be used against a particular individual, (3) the questioner is a high-level manager, (4) the interrogation is done in an intimidating man- ner, or (5) the respondents are fearful. 42

Surveillance Employers routinely operate a variety of surveillance equipment to track the security of their premises. If videotaping is used to record protected concerted activity, such as organizing by employees during break times in nonwork areas, this would be a ULP. 43

Union Strategy and Tactics Organizing campaigns have three distinct sequential goals: (1) obtaining signed authorization cards from a majority in the unit the union seeks to represent; (2) obtaining voluntary recognition based on a card count or a board-directed election; and (3) achieving the negotiation, ratification, and implementation of a first contract.

Obtaining a majority requires that employees sign an authorization card for an organizer. For this to happen, the organizer must contact employ- ees, convince them that unionization is to their benefit, and indicate what strategy the union has to prevent the employer from retaliating against

38 Beginning with Hollywood Ceramics Co., 140 NLRB 221 (1962), which required truthfulness; adopting Shopping Kart Food Markets, Inc., 229 NLRB 190 (1977), which did not; shifting to General Knit of California, Inc., 239 NLRB 101 (1978), which did; and concluding with Midland National Life, 263 NLRB No. 24 (1982), which did not. 39 J. M. Walker and J. J. Lawler, “Union Campaign Activities and Voter Preferences,” Journal of Labor Research, 7 (1986), pp. 19–40. 40 Peerless Plywood, 107 NLRB 427 (1953). 41 Blue Flash Express Co., 109 NLRB 591 (1954). 42 Bourne v. NLRB, 322 F. 2d 47 (1964). 43 J. A. Mello, “Salts, Lies and Videotape: Union Organizing Efforts and Management’s Response,” Labor Law Journal, 55 (2004), pp. 42–52.

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union adherents. While Section 7 of the Taft-Hartley Act forbids employers and unions to interfere with employees’ rights to join or not join a union, employers frequently retaliate against activists.

Organizing needs to gain the support of workers and also may need to proactively blunt management’s campaign or potential retaliation. Where the employer is a significant economic entity in the local area, community action is an important adjunct. 44 When the employer is not particularly dependent on the local community, but is well known to the public or can be linked to other organizations that are, the union may also undertake a corporate campaign to inform the public and pressure the employer to conduct a fair campaign.

Over the past 10 years, new organizing strategies have been developed by national unions of the AFL-CIO. Traditional campaigns make heavy use of handbilling, letters to employees in the unit, and mass recruiting meetings. Less often these are supplemented with community action, corporate campaigns, and negotiating for recognition (most often in the building trades). 45 The new strategies use national union representatives who are trained in organizing and a developed internal cadre to wage an intensive one-to-one rank-and-file campaign. 46

Campaigns establish individual contacts through home visits, small group meetings, and one-to-one solicitation on the job site during non- working times. Campaigns stress themes related to fairness, dignity, and justice and often downplay, but do not ignore, economic issues.

As the campaign gains momentum, an internal organizing committee is established. Solidarity days are scheduled on which signed-up mem- bers wear union buttons and/or T-shirts to work to signal their strength. A negotiating committee may also be established to define what specific outcomes are important to obtain in a first contract. This both personal- izes the campaign to the unit and gets workers to realize that winning the campaign is necessary before desired bargaining outcomes can be attained. 47

Most campaigns still use traditional strategies. Only one-third use resource coordination and community action. Corporate campaigns are used about one-quarter of the time, and negotiating with employers for preferential hiring is used least often. 48 Table 6.1 indicates the organiz- ing tactics used in a sample of elections. In campaigns, unions have one

44 See R. Bussel, “Taking on ‘Big Chicken’: The Delmarva Poultry Justice Alliance,” Labor Studies Journal, 28, no. 2 (2003), pp. 1–24. 45 R. B. Peterson, T. W. Lee, and B. Finnegan, “Strategies and Tactics in Union Organizing Campaigns,” Industrial Relations, 31 (1992), pp. 370–381. 46 Bronfenbrenner, “The Role of Union Strategies in NLRB Certification Elections.” 47 Ibid. 48 Peterson et al., “Strategies and Tactics.”

Chapter 6 Union Organizing Campaigns 173

advantage over management because they can suggest positive changes unionization would bring, but employers may not legally communicate future benefits that would result from an organizing failure.

Studies indicate grievance handling, job security, and economics are important issues. Differences in treatment across employee groups and decreases in influence in the workplace are often catalysts for organizing. Restructuring related to health care reform has been perceived by nurses to negatively affect patient care and reduce their decision-making ability. Unless they perceived they had administrative support to cope with reor- ganization, intentions to vote for unionization increased. 49

A match between the demographic characteristics of the target unit for organizing and the organizers increases success rates, particularly in units predominantly populated by women and/or minorities. 50 If the

Tactic %

Traditional:

Handbilling 77

Mailing letters 100

Holding meetings 100

Signing authorization cards 100

Corporate campaigns:

Attacking source of finance 30

Action of stockholders 10

Confronting employers on antiunion stands 33

Isolating employers 7

Conducting boycotts 6

Using private intelligence 22

Negotiating:

Neutrality pledge language 7

Accretion agreements 6

Preferential transfers 4

Preferential hiring language 33

Coordinating resources with other unions 35

Working closely with community leaders to facilitate community acceptance of union

33

TABLE 6.1 Percentage Use of Various Union Organizing Tactics

Source: Adapted from R. B. Peterson, T. W. Lee, and B. Finnegan, “Strategies and Tactics in Union Organizing Campaigns,” Industrial Relations, 31 (1992), p. 375.

49 P. F. Clark, D. A. Clark, D. V. Day, and D. G. Shea, “Healthcare Reform and the Workplace Experience of Nurses: Implications for Patient Care and Union Organizing,” Industrial and Labor Relations Review, 55 (2001), pp. 133–148. 50 K. Bronfenbrenner, “Organizing Women: The Nature and Process of Union-Organizing Efforts among U.S. Women Workers since the Mid-1990s,” Work and Occupations, 32 (2005), pp. 441–463.

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bargaining unit is predominantly female, face-to-face organizing tactics are more successful and advancement and technical training issues are more salient. 51 Organizing campaigns aimed at college and university faculty members are more successful if they stress rational calculations of what unionization could offer rather than stressing trade union solidar- ity or values. 52 Minority group members are significantly more likely to favor unionizing. 53 Younger employees are less likely to vote for unions. This, however, is apparently not directly age-related but rather due to a lack of experience with employment and unions. Union representation may be seen as an “experience good.” 54 Women organizers and organiz- ers for the Service Employees International Union (SEIU) focus more on participation in the workplace, women’s issues, and union conscious- ness in their campaigns. 55 Exhibit 6.1 portrays information from the SEIU’s “Justice for Janitors” campaign in Los Angeles that sought to build Latino solidarity. 56

Beliefs about unions and the opinions of others salient to the future influence voting behavior. A “big labor” perception reduces the willing- ness to vote for representation, but beliefs that unions are instrumental for gaining positive employment outcomes leads to voting for represen- tation. 57 Personal contact is associated with election success for unions. 58 Voters are influenced by co-worker and family member attitudes toward unionization but not generally by supervisors or managers. Among phar- macists the intention to vote for a union was predicted by prior union experience, being in a union household, and beliefs that the union would

51 M. L. Lynn and J. Brister, “Trends in Union Organizing Issues and Tactics,” Industrial Relations, 28 (1989), pp. 104–113. 52 V. G. Devinatz, “Reflections of a Rank-and-File Faculty Union Organizer at a Public University,” Journal of Collective Negotiations, 30 (2003), pp. 209–221. 53 S. M. Hills and G. DeSouza, “Women’s Intentions to Vote for Union Certification across Time,” Labor Studies Journal, 21, no. 4 (1997), pp. 64–80. 54 A. Bryson, R. Gomez, M. Gunderson, and N. Meltz, “Youth-Adult Differences in the Demand for Unionization: Are American, British, and Canadian Workers All That Different?” Journal of Labor Research, 26 (2005), pp. 155–167. 55 M. Crain, “Gender and Union Organizing,” Industrial and Labor Relations Review, 47 (1994), pp. 227–248. 56 C. D. R. Cameron, “Forming More Perfect Unions: What Organizing Success among Latino Workers in Southern California Means for the Future of the American Labor Movement,” Labor Studies Journal, 25, no. 1 (2000), pp. 45–65; see also J. J. Chun, “Public Dramas and the Politics of Justice: Comparison of Janitors’ Union Struggles in South Korea and the United States,” Work and Occupations, 32 (2005), pp. 486–503. 57 H. Park, P. P. McHugh, and M. M. Bodah, “Revisiting General and Specific Union Beliefs: The Union-Voting Intentions of Professionals,” Industrial Relations, 45 (2006), pp. 270–289. 58 D. M. Savino and N. S. Bruning, “Decertification Strategies and Tactics: Management and Union Perspectives,” Labor Law Journal, 43 (1992), pp. 201–210.

Chapter 6 Union Organizing Campaigns 175

improve the professional environment. 59 These influences, combined with beliefs about the union’s instrumentality for achieving employment goals, predict actual votes very well. 60

59 P. P. McHugh and M. M. Bodah, “Challenges to Professionalism and Union Voting Intentions: The Case of Pharmacists,” Journal of Labor Research, 23 (2002), pp. 659–271. 60 B. R. Montgomery, “The Influences of Attitudes and Normative Pressures on Voting Decisions in a Union Certification Election,” Industrial and Labor Relations Review, 42 (1989), pp. 262–279.

About Justice for Janitors Justice for Janitors is a 16-year old campaign

that began in 1985 in Denver, Colorado. The campaign is about hard-working janitors unit- ing for fair working conditions with support from our communities.

Last year, 100,000 SEIU (Service Employees International Union) janitors in 16 cities across the U.S. made a committment to coordinate their efforts so that janitors could secure a liv- ing wage and win health insurance and full-time work. They also vowed to help other janitors win a voice on the job by joining together in a union. Check out our victories!

As part of our campaign, janitors and community supporters demonstrate every June 15th—Justice for Janitors Day—to call attention to our fight for the American Dream.

Justice for Janitors Day was established after janitors in Los Angeles were beaten by police during a peaceful demonstration against the cleaning contractor ISS, on June 15, 1990. The public outrage that generated from this inci- dent resulted in ISS agreeing to recognize L.A. janitors in a union.

In remembrance of that day, SEIU janitors and supporters take action every June 15th in cities nationwide and in countries around the world.

Source: http://www.justiceforjanitors.org/j4j/about/

Exhibit 6.1

Janitors for Justice 2001 Campaign

JUSTICE FOR JANITORS 2001 An international campaign for justice

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Factors Related to Union Success in Organizing Union campaign success within industries is affected by firm size, capital intensity, the ratio of labor to total costs, and extremes in profitability. In general, large, unprofitable firms are most vulnerable. 61 Unless there are salient local issues, even well-orchestrated organizing drives are likely to fail, as did efforts to organize several state Blue Cross–Blue Shield insurers. 62

An analysis of 261 elections found that union wins were predicted by the percentage of authorization card signers, holding solidarity days (buttons and T-shirts), establishing a bargaining committee before the elec- tion, and focusing on fairness and justice issues. Teamsters-led drives were significantly less successful. Success was lower in larger units and where the election unit was different from the petition unit. Delay was positively related to success in one-on-one style campaigns. Unemployment and union density were positively related, as was unionization in other units in the same company. Company profitability and a preexisting, quality- of-work-life program were negatively related. Units in which wages were low, workers were younger, and the majority of employees were women and/or minorities were more likely to unionize. Finally, campaigns were more successful when organizers were based in a national union and had one to five years of rank-and-file experience. 63

Unions that use innovative methods, specialize in representing spe- cific employee groups, and do not have centralized control have more organizing success. 64 Unions that are decentralized and take advantage of information technology are more successful. 65 Unaffiliated locals are more successful in organizing than AFL-CIO unions. 66 In the nonhospital health care industry, unions win more often in for-profit units; when organized by the United Food and Commercial Workers (UFCW) union, American Nurses Association, or an independent; in smaller units; and where the employees are professionals. 67 The SEIU succeeded in organizing child

61 C. L. Maranto, “Corporate Characteristics and Union Organizing,” Industrial Relations, 27 (1988), pp. 352–370. 62 H. R. Northrup, “The AFL-CIO Blue Cross–Blue Shield Campaign: A Study of Organizational Failure,” Industrial and Labor Relations Review, 43 (1990), pp. 525–541. 63 Bronfenbrenner, “The Role of Union Strategies in NLRB Certification Elections.” 64 J. Fiorito, P. Jarley, and J. T. Delaney, “National Union Effectiveness in Organizing: Measures and Influences,” Industrial and Labor Relations Review, 48 (1995), pp. 613–635. 65 J. Fiorito, P. Jarley, and J. T. Delaney, “Information Technology, U.S. Union Organizing and Union Effectiveness,” British Journal of Industrial Relations, 40 (2002), pp. 627–658. 66 M. H. Sandver and K. J. Ready, “Trends in and Determinants of Outcomes in Multi-Union Certification Elections,” Journal of Labor Research, 19 (1998), pp. 165–172; and V. G. Devinatz and D. P. Rich, “Information, Disinformation, and Union Success in Certification and Decertification Elections,” Journal of Labor Research, 17 (1996), pp. 199–210. 67 C. Scott, A. Seers, and R. Culpepper, “Determinants of Union Election Outcomes in the Non-hospital Health Care Industry,” Journal of Labor Research, 17 (1996), pp. 701–715.

Chapter 6 Union Organizing Campaigns 177

care workers in Illinois using nontraditional approaches that bypassed NLRB-supervised elections, 68 and it succeeded with home health care workers in California by identifying employers and working with both caregivers and consumers to improve the quality of both employment and care. 69

Union organizers do not expect that all campaigns will be success- ful on the first attempt. If there is a substantial union vote that fails to achieve a majority and if the turnover rate is relatively low, the union can rely on an established cadre to work on subsequent campaigns. In these situations, the union’s future campaigns focus on tracking whether management fulfilled postelection promises that it made to address employee problems. 70

Organizing is a difficult job requiring tenacity and experience. The AFL-CIO created an Organizing Institute following President Sweeney’s election and recruited a number of activists, often recent college gradu- ates, who didn’t have previous experience as an employee in a unionized setting. To this point, the initiative has not been very successful, especially since the ideological goals of the activist organizer recruits are frequently at odds with the pragmatic objectives of the groups they are seeking to organize. 71

Neutrality Pledges and Card Check Agreements Where not all units of an employer are already organized, unions try to negotiate neutrality pledges into the collective bargaining agreement. These pledges require that the employer agree not to oppose future orga- nizing drives by the union within the company. Card check agreements may also be negotiated for units that are not currently unionized. Neutral- ity agreements have been negotiated between the Communications Work- ers (CWA) and the major regional phone companies, except Qwest, and the CWA has card check agreements with AT&T and Verizon. 72

68 F. P. Brooks, “New Turf for Organizing: Family Child Care Providers,” Labor Studies Journal, 29, no. 4 (2004), pp. 37–44. 69 L. Delp and K. Quan, “Homecare Worker Organizing in California: An Analysis of a Successful Strategy,” Labor Studies Journal, 27, no. 1 (2002), pp. 1–24. See also P. M. Mareschal, “Innovation and Adaptation: Contrasting Efforts to Organize Home Care Workers in Four States,” Labor Studies Journal, 31, no. 1 (2006), pp. 25–49. 70 Lawler, Unionization and Deunionization, pp. 23–24. 71 A. Foerster, “Labor’s Youth Brigade: What Can the Organizing Institute and Its Graduates Tell Us about the Future of Organized Labor?” Labor Studies Journal, 28, no. 3 (2003), pp. 1–31; and D. Rooks, “The Cowboy Mentality: Organizers and Occupational Commitment in the New Labor Movement,” Labor Studies Journal, 28, no. 3 (2003), pp. 33–62. 72 J. Keefe and R. Batt, “Telecommunications: Collective Bargaining in an Era of Industry Reconsolidation,” in P. F. Clark, J. T. Delaney, and A. C. Frost, eds., Collective Bargaining in the Private Sector (Champaign, IL: Industrial Relations Research Association, 2002), pp. 263–310.

178 Labor Relations

Card check agreements substantially increase the probability of orga- nizing success. The effect is considerably greater than that of neutrality pledges because a card check would never be sought before the union held a majority. With a neutrality pledge, bargaining-unit determination might still be an issue and an election would be held. 73 One study comparing U.S. and Canadian organizing campaigns found that about 3 to 5 percent of the difference in unionization between the two countries can be accounted for by the greater prevalence of card checks leading to voluntary recogni- tion in Canada. 74 In British Columbia, organizing law first permitted card majorities to be sufficient for recognition. Later, elections were required, and union organizing success declined by 19 percent. When card check evidence was reinstituted as sufficient, success rebounded by 19 percent. 75 Requiring an election instead of allowing card checks enables the employer to orchestrate an opposition campaign.

Management Strategy and Tactics Management plans strategy and tactics both at corporate offices and at the site where organizing is occurring. Except in the public sector or where neutrality pledges have been given, management strongly resists organiz- ing. Advisers are sent out at the first sign of union activity. Major firms have specific goals for repelling or containing union organizing efforts. 76

Many organizations conduct attitude surveys and ask supervisors to keep alert for signs of potential organizing activity. When organizing occurs, consultants are often hired to assist managers in conducting an anti-union campaign. 77 Uncovering union activity in a covert manner, restricting solicitations, waging an intense campaign, and opposing a consent election reduce union win rates. 78 If an election petition is filed, management almost always contests the proposed bargaining unit to gain time to mount an intensive opposition campaign.

73 A. E. Eaton and J. Kriesky, “Union Organizing under Neutrality and Card Check Agreements,” Industrial and Labor Relations Review, 55 (2001), pp. 42–59. 74 S. Johnson, “The Impact of Mandatory Votes on the Canada-U.S. Union Density Gap: A Note,” Industrial Relations, 43 (2004), pp. 356–363. 75 C. Riddell, “Union Certification Success under Voting versus Card-Check Procedures: Evidence from British Columbia, 1978–98,” Industrial and Labor Relations Review, 57 (2004), pp. 493–517. 76 A. Freedman, Managing Labor Relations (New York: Conference Board, 1979), p. 33; and A. Freedman, The New Look in Wage Policy and Employee Relations (New York: Conference Board, 1985), pp. 5–6. 77 B. E. Kaufman and P. E. Stephan, “The Role of Management Attorneys in Union Organizing Campaigns,” Journal of Labor Research, 16 (1995), pp. 439–455. 78 K. F. Murrman and A. A. Porter, “Employer Campaign Tactics and NLRB Election Outcomes: Some Preliminary Evidence,” Proceedings of the Industrial Relations Research Association, 35 (1982), pp. 67–72.

Chapter 6 Union Organizing Campaigns 179

Management campaigns paint unions as outsiders that are less con- cerned than the employer about employee welfare. They also argue that unionization may not improve conditions and that employees will lose the right to deal individually with employers on employment conditions. Management communicates directly with employees and their families to oppose the union. Employers hold mass meetings, small-group dis- cussions with management specialists, and individual interviews giving information on present (not anticipated) company human resource pro- grams. 79 Supervisors, a group that communicates daily with rank-and-file employees, need extensive briefings on the company’s position and how to avoid ULPs.

Undecided employees tend to vote for the company rather than the union. 80 Unless employees make an effort to gain exposure to the union’s position, they will have heard much more from management during the campaign.

Management uses tactics that give early warnings of organizing and combine outside consultants, strong inside involvement, and delays. 81 One study found that union win rates decreased when employers increased wages (illegal), made promises about future changes (illegal), held fre- quent captive-audience meetings, and sent several letters to employees during the campaign. But union tactics were about three times as influen- tial as management tactics. 82

Some employers, particularly those with low wages and poor working conditions, 83 purposely commit ULPs to blunt organizing drives. In 2001 the Supreme Court enforced an NLRB finding against Beverly Enterprises barring it from intimidating employees attempting to organize. The nurs- ing home operator, in a campaign orchestrated by top management, was found to have committed 240 ULPs in 54 facilities across 18 states. 84 The cost of back pay to employees for rehiring fired union activists was far less than the potential costs of negotiated wage increases if the union

79 For an overview and incidents involving consultants for both sides, see Labor Relations Consultants: Issues, Trends, and Controversies (Washington, DC: Bureau of National Affairs, 1985). 80 J. Getman, S. Goldberg, and J. B. Herman, Union Representation Elections: Law and Reality (New York: Russell Sage Foundation, 1976), pp. 100–108. 81 Murrmann and Porter, “Employer Campaign Tactics and NLRB Election Outcomes”; J. Lawler, “Labor-Management Consultants in Union Organizing Campaigns: Do They Make a Difference?” Proceedings of the Industrial Relations Research Association, 34 (1981), pp. 374–380; and J. J. Lawler, “Union Growth and Decline: The Impact of Employer and Union Tactics,” Journal of Occupational Psychology, 59 (1986), pp. 217–230. 82 Bronfenbrenner, “The Role of Union Strategies in NLRB Certification Elections.” 83 R. B. Freeman and M. M. Kleiner, “Employer Behavior in the Face of Union Organizing Drives,” Industrial and Labor Relations Review, 43 (1990), pp. 351–365. 84 P. F. Clark, “Health Care: A Growing Role for Collective Bargaining,” in P. F. Clark, J. T. Delaney, and A. C. Frost, eds., Collective Bargaining in the Private Sector (Champaign, IL: Industrial Relations Research Association, 2002), pp. 91–135.

180 Labor Relations

won. Employer ULPs occur most often in industries where unionization is prevalent and where the labor acts have been violated previously. 85 Consequences are slight. Discrimination against union activists decreases union organizing success by about 17 percent. 86 Employees who perceived that their employers committed ULPs in campaigns were less likely to vote for representation than those who had not, other things being equal. 87 Employers involved in multiple campaigns increase their likelihood of committing ULPs. 88 ULP charges by unions have increased substantially since 1970, and at the same time, union election success and the number of elections have fallen. The intensity of management campaigns has contin- ued to increase while organizing activity has decreased. Estimates indicate that management spends $500 or more per person in a proposed bargain- ing unit to finance its campaign to oppose unionization. 89 For an employee with compensation costs of $30,000 per year, this is substantially less than the likely negotiated pay increase in a first contract.

THE ROLE OF THE NLRB

The NLRB conducts the election and certifies the results. If there are ULP charges, it must decide whether they occurred and interfered with employ- ees’ Taft-Hartley Section 7 rights to freely choose. The NLRB’s position is that an election should “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,”90 (laboratory conditions).

Election Certifi cations After the election, ballots are counted to determine whether any alterna- tive received a majority. If no objections or unfair campaign charges are filed, the NLRB certifies the results. If a union won, it becomes the employ- ees’ exclusive representative and can begin contract negotiations. If it lost, and challenges are unsuccessful, then an election bar takes effect, barring elections for one year. Even if a winning union loses its majority within the year, the board won’t permit a new election. The Supreme Court has

85 M. M. Kleiner, “Unionism and Employer Discrimination: Analysis of 8(a)(3) Violations,” Industrial Relations, 23 (1984), pp. 234–243. 86 W. N. Cooke, “The Rising Toll of Discrimination against Union Activists,” Industrial Relations, 24 (1985), pp. 421–442. 87 T. J. Keaveny, J. Rosse, and J. A. Fossum, “Campaign Tactics and Certification Election Outcomes,” unpublished manuscript (Milwaukee, WI: Marquette University, 1989). 88 Lawler, Unionization and Deunionization, pp. 76–77. 89 M. M. Kleiner, “Intensity of Management Resistance: Understanding the Decline of Unionization in the Private Sector,” Journal of Labor Research, 22 (2001), pp. 519–540. 90 General Shoe Corp., 77 NLRB 127 (1948).

Chapter 6 Union Organizing Campaigns 181

ruled that certification is equivalent to an elected term in office, even if the official’s constituents no longer support him or her. 91 If the union lost the election, the employer cannot legally take action against its supporters because they have, under Section 7, the right to attempt to organize.

Setting Aside Elections If challenges are filed and the board finds the activity interfered with the employees’ abilities to make a reasoned choice, the election will be set aside and rerun. If the violations are trivial, the board certifies the results.

Bargaining Orders In some cases, the board considers an employer’s totality of conduct; that is, was an employer’s overall conduct so coercive that it eroded a preelection majority? For example, assume that a majority of employees signs cards and attends union meetings and that the employer interrogates employees, threatens cutbacks and possible plant closings, or indicates that it would never agree to bargaining demands even if the union won. If the union loses and the board finds employer conduct undermined an actual union majority, it issues a bargaining order, requiring the employer to recognize and negotiate with the union. The remedial approach is imposed because the union would have won if not for the employer’s illegal conduct. 92 Following the Supreme Court’s decision in the Gissel case, circuit courts have generally enforced so-called Gissel orders only where there is clear evidence that a majority of employees favored the union at some point during the campaign, that the majority was under- mined as a direct consequence of the employer’s actions, and that a rerun could not redress the problems. About half of NLRB Gissel -type orders are enforced by circuit courts. 93

The Impact of Board Remedies Unions win rerun elections less frequently than they win initial elections. This is consistent with evidence that intensive employer campaigns reduce union win rates. However, delays in conducting a rerun appear to operate in the union’s favor. 94 Bargaining orders do not necessarily lead to a con- tract. An examination of a large number of Gissel- type cases found that in

91 Brooks v. NLRB, 348 U.S. 96 (1954). 92 NLRB v. Gissel Packing Co., 395 U.S. 575 (1969); for a case in which the NLRB issued a bargaining order where no majority had been demonstrated but where the employer’s behavior was seen as preventing its establishment, see G. R. Salem, “Nonmajority Bargaining Orders: A Prospective View in Light of United Dairy Farmers,” Labor Law Journal, 32, (1981), pp. 145–157. 93 P. J. Leff, “Failing to Give the Board Its Due: The Lack of Deference Afforded by the Appellate Courts in Gissel Bargaining Order Cases,” Labor Lawyer, 18 (2002), pp. 93–120. 94 M. Mayfield and J. Mayfield, “NLRB Election Delays: Do They Make a Difference?” Labor Law Journal, 50 (1999), pp. 53–57.

182 Labor Relations

only 39 percent were unions able to achieve a contract. Success in getting a contract is apparently independent of unit size, extent of organization, or type of employer violation. 95

Besides reruns or bargaining orders, the NLRB can issue cease-and- desist orders for ULPs during organizing drives. If employees were fired for union activity, their reinstatement will be ordered with back pay and interest to cover the difference between actual earnings and wages they would have earned after the unlawful discipline. However, if employers fire undocumented workers for organizing, the Supreme Court has ruled that they are not entitled to back pay because they were never legally entitled to work. 96

Election Outcomes In 2005, 177,627 persons voted in 2,618 NLRB-conducted representation elections. Of these, 2,233 were requested by unions, employees, or employ- ers in initial representation (labeled RC and RM cases by the NLRB), and 385 were filed by employees seeking decertification (RD cases). Table 6.2 shows the size of bargaining units, number of employees eligible to vote, total elections, and percentage of elections won by unions in 2005. Over half of these elections were conducted in units of less than 30 employees. Unions won about 56.3 percent of all elections. Union win rates are higher in white-collar units, and independent unions win more frequently than unions affiliated with the AFL-CIO.

Other Types of Representation Changes After certification, some events might lead an employer to doubt whether the union continues to have a majority. Low membership, little bargaining activity, lack of interest by national union representatives, and signifi- cant workforce changes could contribute to this doubt. In small units, a national union may abandon the local if there are difficult relations with the members. If there have been strikes, the employer might have replaced the strikers. Even though the unit consists of new employees, the employer cannot presume replacements oppose the union. An employer may with- draw recognition only if there is clear-cut evidence that the union has actually lost its majority. 97 However, if an employer has a good-faith doubt about majority status, it may request a decertification election. 98

95 B. W. Wolkinson, N. B. Hanslowe, and S. Sperka, “The Remedial Efficacy of Gissel Bargaining Orders,” Industrial Relations Law Journal, 10 (1989), pp. 509–530. 96 Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002). 97 Allentown Mack Sales & Serv. v. NLRB, 522 U.S. 359 (1998). 98 Stamatakos and Piskorski, “Levitz Furniture: NLRB Rewrites the Book on Employer Efforts to Oust Incumbent Unions.”

Chapter 6 Union Organizing Campaigns 183

If an election bar does not exist and no contract is in force, another union could supplant the current bargaining representative. So-called raid elec- tions require showings of interest similar to initial representation elections. Incumbent unions win raid elections more often when there is higher unem- ployment, in large units, and the local is affiliated with a national union. 99

Contextual Characteristics Related to Election Results Union Characteristics Unaffiliated unions win more often than AFL-CIO unions. They may be more in tune with workplace interests. 100 Larger and more democratic unions win more often. Direct benefits to members and relatively lower dues enhance organizing success for white-collar employees but make no difference for blue-collar workers. 101 Teamsters win fewer elections.

Environmental Characteristics High unemployment rates during prior years and a high degree of unionization in the industry being organized are associated with union victories. 102 Organizing is easier in units where employees are in relatively

99 E. Arnold, C. Scott, and J. Rasp, “The Determinants of Incumbent Union Victory in Raid Elections,” Labor Law Journal, 43 (1992), pp. 221–228. 100 V. G. Devinatz and D. P. Rich, “Representation Types and Union Success in Certification Elections,” Journal of Labor Research, 14 (1993), pp. 85–92. 101 C. L. Maranto and J. Fiorito, “The Effect of Union Characteristics on the Outcome of NLRB Certification Elections,” Industrial and Labor Relations Review, 40 (1987), pp. 225–239. 102 W. N. Cooke, “Determinants of the Outcomes of Union Certification Elections,” Industrial and Labor Relations Review, 36 (1983), pp. 402–414.

Size of Unit Number Eligible Total Elections % Won by Union

<10 3,218 512 58.8

10 to 19 8,369 569 63.8

20 to 29 9,565 381 54.3

30 to 39 7,581 214 59.3

40 to 49 6,709 150 48.0

50 to 69 12,174 200 49.0

70 to 99 17,393 196 54.1

100 to 149 19,739 158 55.7

150 to 199 11,833 71 49.3

200 to 299 15,834 63 52.4

300 to 499 19,224 52 42.3

500 to 999 27,779 43 48.8

1,000 and over 18,209 12 41.7

TABLE 6.2 Union Win Rate by Unit Size, Fiscal 2005

184 Labor Relations

homogeneous skill groups. If job-duty changes increase the skill mix, lower organizing success can be expected. 103 State right-to-work laws appear to damage the credibility of organized labor. Organizing attempts decrease about 50 percent in the first five years after their passage and an additional 25 percent over the next five years. Membership is reduced between 5 and 10 percent. 104

Preferences for unionism among private sector and public sector employees differ. In the private sector, preferences are associated with beliefs that the union will be instrumental for workplace changes, the union’s image, job dissatisfaction, and beliefs that the employer will not positively change the workplace. Public sector employees are most influenced by the union’s image and the employer inability to posi- tively change the workplace. Public sector employees respond more positively to job security issues during a campaign than do those in the private sector. 105

In hospitals, previous union activity, the presence of other unions, and the opportunity to organize influence union victories. Nonmedical jobs and nonprofit or religious hospitals are associated with union losses. Size is generally negatively related to organizing across all hospitals, although it is positively related in larger cities. 106 Registered nurses who were employed by health care providers involved in mergers or restruc- turings perceived a reduction in the attention paid to health care and an increased interest in unionization. 107

Worker Characteristics Most representation election voting models focus on attitudes and char- acteristics predicting an intent to vote and the relationship between intent and actual voting. 108 Studies of race and ethnic characteristics find that

103 R. S. Demsetz, “Voting Behavior in Union Representation Elections: The Influence of Skill Homogeneity and Skill Group Size,” Industrial and Labor Relations Review, 47 (1993), pp. 99–113. 104 D. T. Ellwood and G. Fine, “The Impact of Right-to-Work Laws on Union Organizing,” Journal of Political Economy, 95 (1987), pp. 250–273. 105 J. Fiorito, L. P. Stepina, and D. P. Bozeman, “Explaining the Unionism Gap: Public-Private Sector Difference in Preferences for Unionization,” Journal of Labor Research, 17 (1996), pp. 463–478. 106 B. E. Becker and R. U. Miller, “Patterms and Determinants of Union Growth in the Hospital Industry,” Journal of Labor Research, 2 (1981), pp. 307–328; and J. T. Delaney, “Union Success in Hospital Representation Elections,” Industrial Relations, 20 (1981), pp. 149–161. 107 P. F. Clark, D. A. Clark, D. Day, and D. Shea, “Health Care Reform’s Impact on Hospitals: Implications for Union Organizing,” Proceedings of the Industrial Relations Research Association, 51 (1999), pp. 61–67. 108 For a comprehensive summary and analysis of this research, see H. N. Wheeler and J. A. McClendon, “The Individual Decision to Unionize,” in G. Strauss, D. G. Gallagher, and J. Fiorito, eds., The State of the Unions (Madison, WI: Industrial Relations Research Association, 1991), pp. 47–84.

Chapter 6 Union Organizing Campaigns 185

only African-Americans have a stronger preference for representation. 109 In a South Florida study, African-Americans had more favorable attitudes toward unions than did whites, who, in turn, had more favorable attitudes than Hispanics. Women were more willing to vote for unions than men. 110 Recent immigrants unionize at about the same rate as other new entrants to the labor force. 111 Family values and work beliefs predict attitudes toward unions, with people whose families were union members and who have Marxist and/or humanistic work beliefs having a stronger interest in joining a union. 112

FIRST CONTRACTS

If a union wins a representation election, it still can face formidable barriers in bargaining with the employer. Before bargaining can begin, the NLRB has to certify the election results. Employers may object to a variety of campaign irregularities and, if the election was close, the eligibility of some voters. If objections are raised, some time will elapse until the board issues a ruling. During the delay, the company may take a number of employee relations actions that indicate it will take a tough stance toward the union. In addition, it may discipline union activists, thereby committing ULPs and reducing long-run interests in remaining unionized. If the union is faced with an intransigent management strat- egy, it will need to use substantial energy and resources to combat the employer. 113

For its part, the union needs to shift its tactics from an organizing to a negotiating mode. Organizing is highly adversarial, while nego- tiating requires that the parties, especially the union, start from the position that gaining agreement on a contract is a primary goal. If a national union assisted in organizing, this may be the point at which a new representative—one not involved in organizing—is brought in

109 G. DeFreitas, “Unionization among Racial and Ethnic Minorities,” Industrial and Labor Relations Review, 46 (1992), pp. 284–301. 110 R. Silverblatt and R. J. Amann, “Race, Ethnicity, Union Attitudes, and Voting Predilections,” Industrial Relations, 30 (1991), pp. 271–285. 111 E. Funkhouser, “Do Immigrants Have Lower Unionization Propensities than Natives?” Industrial Relations, 32 (1993), pp. 248–261. 112 J. Barling, E. K. Kelloway, and E. H. Bremermann, “Preemployment Predictors of Union Attitudes: The Role of Family Socialization and Work Beliefs,” Journal of Applied Psychology, 76 (1991), pp. 725–731. 113 W. N. Cooke, “Failure to Negotiate First Contracts,” Industrial and Labor Relations Review, 38 (1985), pp. 163–178; and W. N. Cooke, “The Rising Toll of Discrimination against Union Activists.”

186 Labor Relations

to assist the new local. 114 Newly organized local members are usually inexperienced in negotiating and need training and assistance from the national. An unaffiliated local often has difficulty learning how to negoti- ate, but this weakness may be offset by greater worker involvement in its organization and operation.

An employer may also undermine the union during the bargaining process. It might refuse to bargain on technical grounds such as the appro- priateness of the bargaining unit. This will require NLRB intervention and a bargaining order. It also might bargain in a defiant or evasive manner by making it difficult for the union to get information about the employer’s situation and starting with an offer that includes conditions and wages lower than those presently implemented. 115

A particularly egregious example of attempting to thwart organizing and bargaining is represented by the S. Lichtenberg case. After organiz- ing failures in 1966 and 1971, the Amalgamated Clothing and Textile Workers (ACTWU) finally organized the rural Georgia curtain maker in 1988. The ACTWU tied the organizing effort to community concerns. The unit was 90 percent African-American women. After losing the representation election, the company delayed the start of negotiations and fired employees who were union leaders. The NLRB ordered rein- statement with back pay. The ACTWU provided training on leadership and collective action, particularly following certification. A corporate campaign alerted Kmart and JCPenney, two major S. Lichtenberg cus- tomers, about unionization issues and also tied in civil rights issues. A first contract was finally negotiated in 1991. The company continues to fight the union by hiring replacements, and it attempted to decertify during a strike in 1994. 116

If the employer can forestall reaching an agreement for at least one year after initial certification, employees could (with sufficient interest) petition for a decertification election. It is also possible that the union could fail to enroll a majority of workers as union members and conclude that interest in representation is waning. It might, in unusual circumstances, abandon the negotiations and walk away from the situation.

Evidence suggests that newly organized employers have been taking a harder line in negotiating first contracts, especially since there are few real penalties the NLRB can implement for refusing to bargain. Where a management is particularly intransigent, community action and/or cor- porate campaigns may be the only effective strategy the union can use to

114 T. F. Reed, “Securing a Union Contract: Impact of the Union Organizer,” Industrial Relations, 32 (1993), pp. 188–203. 115 R. W. Hurd, “Union-Free Bargaining Strategies and First Contract Failures,” Proceedings of the Industrial Relations Research Association, 48 (1996), pp. 145–152. 116 R. Bussel, “Southern Organizing in the Post-Civil Rights Era: The Case of S. Lichtenberg,” Industrial and Labor Relations Review, 52 (1999), pp. 528–538.

Chapter 6 Union Organizing Campaigns 187

buttress its attempts to win an initial contract. A study of FMCS-assisted negotiations found that in about a quarter of cases, managements and unions failed to reach agreement on a first contract. 117

Summary Organizing is an intense process involving unions, employers, and the NLRB. The union’s goal is to organize a majority of employees, the em- ployer seeks to avoid unionization, and the NLRB’s role is to provide employees with the opportunity to make a free choice about whether to be represented or to remain unorganized.

A union organizing campaign can be started by employees or by union organizers. Components of the campaign include the signing of authoriza- tion cards, demands for recognition, election petitions, determining an ap- propriate bargaining unit, the election campaign, the election, and NLRB certification of the results.

The organizing campaign includes communications from the union and employer, attempts by the union to contact every potential voter, mass meetings, small-group meetings with supervisors, and develop- ment of union committees in preparation for bargaining. Employers usu- ally have an advantage in accessing employees to present their campaign positions.

Recent results show that unions improve their chances for success where organizers with rank-and-file work experience conduct a person- to-person grassroots campaign that emphasizes fairness, voice, and equity issues. Employers usually campaign intensively against unionization and often commit ULPs in the process. The penalties for ULPs include, among other things, restoration of discharged employees with back pay, election reruns, or bargaining orders. Increasingly, corporate campaigns are used as an adjunct to local organizing in influencing employer resistance to organizing.

Unions win about half of all contested elections. A large share of elections are conducted in units with fewer than 30 employees. Even if a union wins an election, there are several difficulties it must overcome to successfully negotiate a first contract.

117 J. Cutcher-Gershenfeld and T. A. Kochan, “Taking Stock: Collective Bargaining at the Turn of the Century,” Industrial and Labor Relations Review, 58 (2004), pp. 3–26.

188 Labor Relations

Selected Web Sites

www.aflcio.org www.changetowin.org www.laboreducator.org www.nlrb.gov www.nrtw.org www.seiu.org

1. To what extent should the NLRB get involved in determining bargaining units? Shouldn’t the vote be in the unit preferred by the employees?

2. Should union organizers have more or less access to employees when organizing campaigns than they have now?

3. What do you think explains the relatively poor recent record for unions attempting to organize large bargaining units?

4. Do employers have an unfair tactical advantage in union organizing situations?

5. Is an adversarial relationship necessary for successful organizing and permanent unionization of an employer’s establishment?

Discussion Questions

Key Terms Exclusive representation, 152 Union-free, 153 Authorization card, 155 Recognitional picketing, 156 Representation election, 156 Certification election, 156 Decertification election, 156 Raid election, 156

Appropriate bargaining unit, 157 Consent election, 158 Board-directed (petition) election, 158 Regional director, 158 Excelsior list, 158 Multiemployer bargaining, 160 Community of interests, 162 Craft severance, 164

Accretion, 165 Twenty-four hour rule, 171 Community action, 172 Corporate campaign, 172 Laboratory conditions, 180 Election bar, 180 Totality of conduct, 181 Bargaining order, 181

Chapter 6 Union Organizing Campaigns 189

Last year, General Materials and Fabrication Corporation (GMFC) acquired a manufac- turer of custom-built conveyer equipment used in the freight forwarding industry. The nonunion plant, renamed the Custom Con- veyer Division (CCD), employs about 120 production employees, 3 supervisors, a gen- eral supervisor, a production manager, 2 engi- neers, 3 office clericals, and a plant manager. The production employees are in five semi- skilled job classifications: fabricator, welder, prepper, painter, and assembler.

The fabricators convert raw material, such as steel plates and tubes, into parts using presses, sheers, numerical-control cutting equipment, and the like. Welders take the fab- ricated parts and create frames for conveyer subassemblies. They also weld sheet metal into complex slides and chutes. Preppers clean welding slag, grind welds, degrease welded assemblies, and perform other clean- ing functions for painting. Painters spray paint assemblies using a variety of paints and painting equipment, taking special care not to paint areas where additional parts will be attached. Assemblers, working in teams, use the welded subassemblies and fabricated parts (purchased parts such as rollers, chains, sprockets, belts, motors, and switches) to assemble the equipment and test its opera- tion. Then the assemblers travel to the instal- lation site to combine the subassemblies and test the completed custom installation.

The plant is located in Cumberland, a small rural city of about 2,500. All the employees are hired from about a 20-mile radius around the plant. The starting wage for all classifica- tions is $9 per hour, with an increase to $9.50 after a 60-day probationary period. Wages increase to a maximum of $11 per hour in three 50-cent increases at six-month intervals. About 75 percent of the employees are earning the

maximum hourly rate. CCD pays for compre- hensive health insurance for all employees and provides for 80 percent of the cost of depen- dent coverage. Turnover is very low, averaging about 5 percent per year from all causes. Two other plants in Cumberland hire employees with the same types of skills and pay a starting wage of $8 per hour. Most of GMFC’s employ- ees have been hired from those plants.

The plant earned over $1.25 million after taxes last year on gross revenues of $9 million. Sales have been increasing about 20 percent per year recently. Total labor costs last year were $4.5 million. Materials cost $1.5 million. Facil- ity maintenance was $0.5 million and deprecia- tion on the plant and equipment equaled $0.75 million. Taxes totaled $0.5 million. Labor and material costs are variable. Maintenance and depreciation are fixed for the next year since the plant has about 20 percent unused capacity. If expansion continues, there is enough space on the current property to double the plant size at a cost of about $10 million. The local labor market can provide workers with the required entry-level skills if the operations were to dou- ble over the next four years. Five other com- petitors manufacture this type of equipment, but GMFC-CCD has established a reputation for high quality and low cost, and its market share is expanding. Because most of the con- veyer systems are used in airports and ware- house operations in large cities, transportation is required for each unit shipped. GMFC paid about $16.5 million for the operation when it was purchased last year.

UNION ORGANIZING The district director of the United Steelworkers in the region in which Cumberland is located wants to increase the number of members in the district. He received an e-mail today from

Case: GMFC Custom Conveyer Division

190 Labor Relations

Dave Neumeier, an employee of GMFC-CCD, who is a former Steelworker member. Dave suggested that CCD was ripe for organiz- ing given the $2 and $5 difference in wages between CCD ($11 maximum) and GMFC’s main Central City operation. He said some of the preppers were dissatisfied, too, because their work was much more repetitive and dirtier than the other jobs but the pay was the same.

The district director assigned two of his newest organizers, Rebecca Shea and Rick Anderson, to attempt to organize the plant. Rebecca just graduated from the state univer- sity with a bachelor’s in labor studies. Rick was a welder for a heavy-equipment manu- facturer. The district director has given them a copy of the GMFC contract that’s currently in force (see the mock negotiating exercise at the end of Chapter 11). Rebecca and Rick have been instructed to try to get jobs at the plant and begin organizing internally. If that’s not possible, they are to contact Neumeier and get names and addresses. In either event, they need to formulate a strategy for organizing.

MANAGEMENT

James Holroyd, the plant manager, has just held his weekly supervisors meeting. A super- visor, Steve Christian, said a new employee who just moved to the area, Dave Neumeier,

has a Steelworkers local sticker on the inside of his toolbox. While there has been no union activity at CCD, Holroyd was told by GMFC top management to make sure the operation remained nonunion. While work has been steady lately, a layoff is possible in two months if new orders aren’t received.

The plant has a generous recreational pro- gram for employees, with a party every quarter, an outboard runabout, a recreational vehicle, and an extensive videocassette library for free use by employees.

PROBLEM

If you have a union organizer role, develop a strategy for organizing this plant. Consider such things as the authorization card cam- paign, contacts with employees, campaign lit- erature, comparisons you want employees to make, bargaining-unit determination, coping with delays, and potential ULP charges.

If you have a management role, develop a strategy to maintain a nonunion employ- ment situation. How would you determine whether an organizing threat is likely? Create employee communications, supervisory train- ing programs, and the like. Consider how you would respond to potentially untruthful cam- paign literature. How will you deal with Dave Neumeier if he starts to encourage employees to unionize?

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191

Chapter Seven

Union Avoidance: Rationale, Strategies, and Practices

Chapter 6 examined union organizing campaigns. The chapter covered the flow of events associated with a campaign, union strategies and tactics, management responses, the roles of the National Labor Relations Board (NLRB) and the National Mediation Board (NMB), and the factors influ- encing election outcomes. At several points, the chapter emphasized that, except in isolated instances, most employers strongly resist organizing drives.

In this chapter we explore in greater depth the reasons for employers’ resistance, strategies that a growing number of employers are using to create and maintain a “union-free” employment environment, tactics that they use to prevent union success in organizing, the role of decerti- fications in deunionizing partially unionized employers, and the effects of organizational and job structuring on limiting unionization within employers.

As you study this chapter, consider the following questions:

1. Are employers increasing or decreasing their opposition to unions in the current era? What evidence is there to support your position?

2. What are the economic effects of initial unionization on the employer? 3. What additional activities appear necessary for an employer to avoid

unionization? 4. If an employer faces an organizing campaign, what components and

process are included in a typical employer response? 5. What is a decertification election, and how does it differ from other

NLRB elections?

192 Labor Relations

HISTORICAL OVERVIEW

The business and labor history of the United States, going back to the Phil- adelphia Cordwainers, is replete with examples of employer resistance to unionization. The fundamental differences in philosophies, goals, and val- ues of capitalists and trade unionists make this resistance inevitable and make employer accommodation after unionization sometimes difficult.

Capitalistic and Trade Union Philosophies Capitalists (either entrepreneurs or investor-owned corporations) use their resources to create mechanisms (productive processes) that will enable them to develop and sell goods and services in the marketplace at prices great enough to yield a higher return than that from other alternative investments. Employees are hired to produce the output. Employees are generally free to leave at any time, and capitalists would like to have the freedom to hire or terminate them, individually or collectively, as neces- sary to achieve their business purposes. Capitalists assume the risk that they will not be able to realize a positive yield from their investments and ideas. If they fail, their investments will be diminished or lost. They also expect that if they are successful in the marketplace (i.e., their returns are greater than they might realize through riskless investment) they will be able to keep these returns as a reward for taking the risk.

Trade unionists believe that wealth is ultimately created by the workers who produce the products or deliver the services to the consumer. In cases where the firm is successful in the market (i.e., it makes a profit), unions attribute a large measure of the success to the efforts of employees. Their actions are seen as ultimately adding the value to the inputs that make the products and services attractive in the market. From a union perspective, these gains need to be shared with the employees. While employers would like complete freedom to hire, fire, and assign workers to jobs, unions see employees as becoming increasingly invested in their jobs with their employers. Job property rights are established over time and employ- ers should be constrained in the types of decisions they can make about employees as employees accrue seniority and firm-specific skills. Unions also believe that employees should have a role in determining the rules that will be used to decide how these gains will be distributed and how the workplace will be governed. Employees are seen as investing a substantial part of their lives in employment, often with a particular employer. As such, they are entitled to a role in determining how the social system in which they are involved should be operated.

Employer Resistance before World War II As noted in Chapter 2, employers engaged in a variety of strategies and tactics to avoid unionization or to reduce its power. They used security forces to police the workforce, forcibly kept out organizers, or ferreted

Chapter 7 Union Avoidance: Rationale, Strategies, and Practices 193

out internal union activists or sympathizers from the late 1800s to World War II. These types of tactics were particularly prevalent in steel and auto production plants.

Employer resistance was greatest and most successful where workers were essentially unskilled, where employers controlled entry to occu- pations, and where an employer was the dominant business in a given location. The organization of the workplace gave a great deal of power to foremen (supervisors) in the direction, control, and discipline of the workforce. The ability of an employee to retain a position depended to a large extent on whether he or she pleased the supervisor. This approach has been labeled the “drive system,” and it held sway in manufacturing for most of the first third of the 20th century. 1

During the 1920s and 1930s, employers implemented their own ver- sions of “community action” plans—the American Plan and the Mohawk Valley formula. Both of these sought to link labor unions with interests outside the community—especially with foreign ideologies. The Mohawk Valley formula, in particular, mobilized community leaders and police against organizing and strikes. Both plans stressed the need for workers to be able to refrain from joining unions and to be able to deal directly with their employers rather than through outside agents. Where unionization seemed unavoidable, employers worked with sympathetic employees to help establish so-called company unions that would not be affiliated with a larger international and would be less militant and more familiar and sympathetic with the employer’s situation. 2 The passage of the Wagner Act, however, made employee organizations that were established and assisted by employers illegal.

The Corporatist Period From the late 1940s through the middle to late 1970s, large U.S. employers and unions moved through a period during which unions were essen- tially conceded a permanent role in a tripartite employment environment involving employers, unions, and the government as reflected in public policy toward employment. Laws and regulations favored collective bar- gaining as the method for dealing with industrial disputes. Productivity rose at a steady rate, and wage increases could be financed without sub- stantial inflationary pressure until the late 1960s and 1970s.

However, the oil shocks of the 1970s and their effects on inflation, together with the beginnings of economic globalization, led employers to increasingly resist wage increases and additional unionization. At the

1 D. M. Gordon, “From the Drive System to the Capital-Labor Accord: Econometric Tests for the Transition between Productivity Regimes,” Industrial Relations, 36 (1997), pp. 125–159. 2 S. M. Jacoby, “Reckoning with Company Unions: The Case of Thompson Products, 1934–1964,” Industrial and Labor Relations Review, 43 (1989), pp. 19–40; and D. Nelson, “Managers and Nonunion Workers in the Rubber Industry: Union Avoidance Strategies in the 1930s,” Industrial and Labor Relations Review, 43 (1989), pp. 41–52.

194 Labor Relations

same time, the rate of productivity gains in the United States declined substantially, and the economies of Japan and Western Europe were begin- ning, for the first time, to outstrip major segments of U.S. manufacturers. Economic returns to shareholders had gone flat in the early 1970s, and the U.S. economy was stagnating in low productivity, inflation, and uncom- petitiveness in an increasingly global economy.

Union-Free Employment Employers in newer or more rapidly growing industries such as informa- tion technology, financial products and services, discount retailing, and personal services either had never been unionized to any extent or were experiencing many new entrants who were not unionized. Employers in established industries like autos and steel were heavily unionized and faced substantial economic problems. New companies entering the steel industry, for example, created so-called mini-mills that could produce low-end commodity products at substantially cheaper prices with much lower investments and lower-wage nonunion employees.

To gain flexibility in the design of work and employee assignments, and to reduce wage levels, employers embarked on a variety of union-free strategies (detailed later in this chapter). These strategies were aimed at avoiding unionization in nonunion facilities and at reducing or eliminating unionization in the others. This approach represented a shift in manage- ment strategy from trying to secure the “best bargain” to practicing “union avoidance.” 3 The initiative was aided during the Reagan administration by a shift in public policy away from the corporatist approach and toward labor and management having greater freedom to use whatever legal tactics each wanted to use to achieve its objectives. Some argue that the scales were tipped to the extent that previously illegal tactics were either reinterpreted to be legal or overlooked as administrative oversight was reduced. 4

THE ECONOMIC RATIONALE

Chapter 1 noted that unions introduced voice and monopoly power into the workplace. For employers, the introduction of monopoly power leads to decreased profitability. As noted later in Chapter 9, unionized workers’ wages are significantly higher than those of nonunion workers in virtually every industry. The ability of unions to increase wages through monopoly power is one of the leading reasons that employers oppose unions. All else being equal, shareholder value declines since higher wages reduce profits, leading to lower share prices.

3 A. Freedman, Managing Labor Relations (New York: Conference Board, 1979). 4 W. B. Gould, IV, Agenda for Reform: The Future of Employment Relationships and the Law (Cambridge, MA: MIT Press, 1993), pp. 11–62.

Chapter 7 Union Avoidance: Rationale, Strategies, and Practices 195

Infl exible Rules Chapter 10 will discuss how unionization changes the policies and prac- tices employers can use to promote, transfer, and lay off employees. Over time, various work rules and production standards are also established. These rules and standards have the potential to negatively influence pro- ductivity because they reduce the employer’s ability to include merit as a criterion in making personnel decisions and they reduce flexibility in adapting to change by applying restrictive work rules.

Profi tability Unionized firms are less profitable than nonunion firms and less profit- able subsequent to unionization. 5 Decreased profitability may occur as a result of employers’ extending negotiated wage and benefit increases to nonrepresented employees to avoid further unionization. While produc- tivity increases have been found following unionization for represented employees, this may not carry over to nonunion employees who also received increased pay. 6

Shareholder Value Shareholder returns are reduced following unionization. A study tracking organizing success after the passage of the Wagner Act in the 1930s found that organized firms had about a 20 percent lower rate of return to share- holders than did firms remaining nonunion. 7 Firms involved in organizing drives and whose securities are publicly traded experience a reduction in share prices when an election petition is filed, 8 a reduction of about 4 per- cent following a successful campaign, and a 1.3 percent reduction even if the union lost. 9 The latter probably occurs because, whether they win or lose, firms facing union activity increase wages more than those that don’t. 10 If unionization leads to lower shareholder returns, other things equal, as the agents of shareholders, top managers could be expected to try to reduce unionization in their firms, particularly if a substantial proportion of

5 R. B. Freeman and J. L. Medoff, What Do Unions Do? (New York: Basic Books, 1984), pp. 181–190. 6 B. E. Becker and C. A. Olson, “Unions and Firm Profits,” Industrial Relations, 31 (1992), pp. 395–415. 7 C. A. Olson and B. E. Becker, “The Effects of the NLRA on Stockholder Wealth in the 1930s,” Industrial and Labor Relations Review, 44 (1986), pp. 116–129. 8 S. G. Bronars and D. R. Deere, “Union Representation Elections and Firm Profitability,” Industrial Relations, 29 (1990), pp. 15–37. 9 R. S. Ruback and M. B. Zimmerman, “Unionization and Profitability: Evidence from the Capital Market,” Journal of Political Economy, 92 (1984), pp. 1134–1157. 10 R. B. Freeman and M. M. Kleiner, “Impact of New Unionization on Wages and Working Conditions,” Journal of Labor Economics, 8 (1990), pp. S8–S25.

196 Labor Relations

their compensation is in the form of stock options. 11 On the other hand, lower returns in unionized firms are accompanied by lower risk in that security prices are less volatile, perhaps reflecting increased risk sharing by employees through layoff procedures. 12

Company Investment Decisions Employers reduce their historical rates of investment in newly unionized facilities. The reduction is equal to what would occur if the corporate income tax rate were increased by 33 percent. 13 U.S. employers invest less in and are less likely to locate operations in developed economies that have high employment regulation or that impose terms of collective agree- ments negotiated elsewhere, or resist unionization more strongly than do firms that are headquartered in Europe or Japan. In Korea, compared to Korean-owned companies and compared to the United States, European- owned firms were significantly more likely to be unionized. In Taiwan, compared to U.S.-owned firms, being Japanese-owned was positively related to being unionized. 14

Industrial Structure Evidence suggests that productivity differences between union and nonunion employers are greatest in construction, where unionized workers have higher skills than nonunion workers. Relatively speak- ing, in service industries, unionized worker quality is lower than that of their nonunion counterparts. The service sector is expanding relative to the size of the manufacturing and construction sector. To the extent that lower unionized service worker quality translates into lower productiv- ity, greater resistance to unionization should be seen in the service sec- tor. Additionally, labor is a larger share of total costs in the service sector, so the effects of a given wage increase following unionization would have greater impact. The service sector’s secular relative growth rate could be a primary contributor to the increased resistance of employers in general to union organizing.

11 This and other issues are discussed and analyzed in B. E. Becker and C. A. Olson, “Labor Relations and Firm Performance,” in M. M. Kleiner, R. N. Block, M. Roomkin, and S. W. Salsburg, eds., Human Resources and the Performance of the Firm (Madison, WI: Industrial Relations Research Association, 1987), pp. 43–86. 12 B. E. Becker and C. A. Olson, “Unionization and Shareholder Interests,” Industrial and Labor Relations Review, 42 (1989), pp. 246–261. 13 B. C. Fallick and K. A. Hassett, “Investment and Union Certification,” Journal of Labor Economics, 17 (1999), pp. 570–582. 14 P. Feuille, J. Lawler, J. Bae, and S. J. Chen, “Unionization Determinants of Multinational Firms,” Proceedings of the Industrial Relations Research Association, 51 (1999), pp. 101–109.

Chapter 7 Union Avoidance: Rationale, Strategies, and Practices 197

UNION-FREE APPROACHES

A union-free organization is one that is entirely unorganized in its U.S. operations. Many companies fit this label, but among very large compa- nies, they are more likely to be in the financial services industry. Among firms with manufacturing operations, IBM and Hewlett-Packard are exam- ples of large firms without organized employees in the United States.

A study of large nonunion organizations identified two types of firms operating without unions—doctrinaire and philosophy-laden. A doctrinaire organization explicitly desires to operate without unions and implements human resource policies it believes will lead employees to resist them. Its human resource policies frequently mimic what unions have won in similar organizations through collective bargaining—for example, paying wages equal to or exceeding what unions have negoti- ated in that industry. 15 Thus, its practices are essentially a substitute for unionization. A philosophy-laden company has no unions, but the lack of organizing is because of the organization’s employee relations climate. Management engages in human resource practices it believes are right. 16 Many of these firms are included in lists of “most admired” employers or “best places to work.” They are essentially invulnerable to unionization because their employment practices are more attractive to their employ- ees than those unions typically advocate. The policies are evidently congruent with employee desires because union organizing activities in these firms are practically nonexistent. We will examine these two approaches and explore the human resource policies of each.

Environmental Factors Associated with Union Avoidance A variety of environmental factors are associated with union avoidance, some of which employers consider when making locational choices. Union penetration is highest in the Northeast and Midwest and lowest in the South and rural areas. Employers may locate in lightly unionized areas for two reasons. First, employers may believe employees in areas where unions have relatively little membership may be less willing to join unions. Mixed evidence exists on this point, as discussed in Chapters 1 and 6. Second, plants located in areas without unions don’t provide information to employees that would enable them to compare economic benefits provided by union and nonunion organizations; and, as a result, employees may not be motivated to organize for economic reasons. This

15 D. G. Taras, “Managerial Intentions and Wage Determination in the Canadian Petroleum Industry,” Industrial Relations, 36 (1997), pp. 178–205; see also W. Lewchuk and D. Wells, “When Corporations Substitute for Adversarial Unions: Labour Markets and Human Resource Management at Magna,” Relations Industrielles, 61 (2006), pp. 639–665. 16 F. K. Foulkes, Personnel Policies in Large Nonunion Companies (Englewood Cliffs, NJ: Prentice Hall, 1980), pp. 45–57.

198 Labor Relations

assumption rests on the belief that employees will choose local plants as a logical comparison, instead of other plants in the industry. However, the evidence suggests that organizing around justice, fairness, and dignity issues is more successful than organizing that emphasizes economics. 17

Employers may associate plant size as a factor to use in avoiding unions. Evidence on union election success, covered in Chapter 6, found that units with fewer than 100 employees were more vulnerable to unionization than larger units. While very large plants are more difficult to organize, employers may also believe that the type of human resource management they would prefer to implement is difficult to inculcate in a large plant. Thus, the trend appears to be toward locating plants in labor market areas that are able to support medium-size operations and planning that they will generally not exceed 500 employees unless returns to scale are large. One problem with smaller plants is that they may not be optimally pro- ductive given the appropriate capital-labor mix. 18 Plants also should not be smaller than 200 employees because a union can capitalize quickly on an issue in a smaller plant and because the plant population may be relatively homogeneous, enabling quicker and more nearly unanimous agreement among employees on whether to be represented.

Differences also exist among and within industries. Industries with a large proportion of white-collar workers, such as finance, are less likely to be unionized. But within industries, some firms have not been orga- nized, while others are completely unionized. In construction, relatively new organizations remain nonunion by guaranteeing employment dur- ing usual layoff periods and by implementing human resource policies on an organizationwide basis. Newly incorporated, technically oriented industries also have had a relatively low level of unionization, even when they have been located in traditionally highly unionized areas. Some of this is probably due to employment security resulting from rapid growth and abundant alternative employment opportunities, while other aspects of resistance to organization may be related to progressive employee relations policies and practices. Further many of these firms locate manu- facturing facilities offshore, in lower-wage areas far from their technical facilities, or they outsource production.

A Philosophy-Laden Approach to Employee Relations A model has been constructed to explain how a philosophy-laden approach to employee relations results in a variety of outcomes, one of which is the likely absence of a union. The model shows that environmental factors similar to those mentioned above may be involved in the location and

17 K. Bronfenbrenner, “The Role of Union Strategies in NLRB Certification Elections,” Industrial and Labor Relations Review, 50 (1997), pp. 195–212. 18 M. Milkman and M. Mitchell, “Union Influence on Plant Size,” Journal of Labor Research, 16 (1995), pp. 319–329.

Chapter 7 Union Avoidance: Rationale, Strategies, and Practices 199

demographics of the organization’s establishments, the variety of substan- tive policies implemented, and company characteristics that promote the ability to achieve specific outcomes. These, in turn, lead to a particular cli- mate or culture. The by-products of this culture are a variety of behaviors and attitudes associated with a reluctance to join unions, an avoidance of industrial conflict, and a belief that the company is a good place to work. Figure 7.1 depicts this model, which will be explored in some detail in the following sections.

Wage Policies Large nonunion organizations generally try to lead the market in their pay levels. They try to anticipate what unions will gain at the bargaining table and provide pay increases equal to or exceeding that level, award- ing them before unions gain theirs. Nonunion organizations may also implement merit pay policies, using performance measures to differenti- ate pay increases. They communicate pay and benefit levels and prac- tices to employees. 19 More recently, companies may implement skill-based pay programs to support new organizational structures stressing team designs. Additionally, increasing numbers of companies are considering or implementing profit-sharing or gainsharing programs.

To accomplish these wage goals, an organization’s pay must compare favorably with others. 20 Location in a growing industry with relatively high profits or a position as market leader in the industry should enable an organization to maintain its ability to pay. In turn, a high-paying employer may have an advantage in recruiting and retaining high-quality employ- ees who are motivated to retain their high-paying jobs. 21

If a philosophy-laden organization considers employee preferences as it is expected to do, then benefit levels in nonunion employers should closely lead those in unionized employers because they might be expected to react quickly to changing needs associated with changing age and gen- der mixes in their workforces.

Nonwage Policies Unionized employers generally have lower turnover rates and higher rates of internal promotion and transfer than nonunion employers. If an employer sought to emulate the conditions employees desire, it would have a rationalized internal labor market with high levels of information on job opportunities available to employees.

19 Foulkes, Personnel Policies in Large Nonunion Companies, pp. 158–163. 20 Ibid., pp. 165–167. 21 J. Yellen, “Efficiency Wage Models of Unemployment,” American Economic Review, 74, no. 2 (1984), pp. 200–205.

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Chapter 7 Union Avoidance: Rationale, Strategies, and Practices 201

Large nonunion firms generally have formalized job-posting systems, with clearly communicated and unambiguous promotion criteria that emphasize seniority and skills as well as development opportunities so that employees can develop the skills necessary to take advantage of open- ings that are likely to occur. 22

Philosophy-laden firms have generally taken a career-oriented approach toward employment. Full-time nonprobationary employees are assumed to be likely to spend their entire careers with the organization. Thus, non- union firms frequently require longer probationary periods or hire sub- stantial numbers of part-time employees to provide a buffer for permanent employees during periods of fluctuating product demand. 23 They also pro- vide substantial amounts of targeted training and development programs to continuously upgrade skills and prepare employees to perform well in expanded job roles.

Human Resource Expenditures In unionized employers, union representation and the negotiated contract take the place of many human resource programs devised by nonunion employers. Management has less need to attend closely to employee desires because doing so is the union’s responsibility and the contract spells out how employee relations will be handled. Staffing and develop- ment needs are handled through on-the-job training, and employees are retained through negotiated seniority clauses and the employees’ initial and continuing interest in being represented.

Nonunion employers have higher human resource expenditures, and more human resource workers are involved in employee relations. The employer must pay more attention to compensation because it usually tries to match or exceed what unions negotiate or to construct a particu- lar package to attract and retain employees. Development activities are emphasized. Supervisory support for problem solving is offered through the human resource department instead of the grievance system.

Employment Security Union members have the rules for determining their employment security spelled out in the contract. Almost always, increasing competitive-status seniority is associated with greater rights to continued employment in a present job or another job for which an employee is qualified. Recently, these rights have been of lower value where employers have opted to close entire facilities, but even there, entitlements to transfers and sever- ance pay are often spelled out in contracts and benefit levels increase with seniority.

22 Foulkes, Personnel Policies in Large Nonunion Companies, pp. 123–145. 23 Ibid., pp. 99–122.

202 Labor Relations

Employees in nonunion companies have their employment rights determined by their employers. Unless otherwise provided, it’s legally assumed an employee is hired at the will of the employer and can be terminated for a good reason, a bad reason, or no reason at all, as long as the termination is not for a reason prohibited by employment law. However, courts have increasingly narrowed employers’ rights to ter- minate at will, particularly where employers are judged to have acted in bad faith. 24 Even where employers have contracts with employees, and where a discharge could lead to a breach-of-contract suit, employers may be vulnerable to heavier tort damages for bad-faith behavior associated with a discharge. 25

In the reciprocal employment relationship, employees may come to feel that an implied contract exists between them and their employer. When employees invest in developing skills for their present employer and apply conscientious effort, they see themselves as producing benefits for the employer. In turn, employees may build expectations of long-term employment in return for effort and loyalty. 26

Nonunion employers use a variety of methods to enhance employment security for at least some employees. Given the need for flexibility in the workforce, more employers are subcontracting or allocating jobs that need relatively little training about the employer’s specific mode of operation to supplemental or complementary workforces of temporary employees. Frequently, these employees are hired on a contract basis for a particular term—usually a year or less. These employees are explicitly told they have no employment security guarantee beyond the period for which they are hired. When faced with a need for major employment reductions, employ- ers have increasingly implemented expanded separation incentives, rede- ployment to other facilities with or without retraining, training programs for new occupational assignments, expanded personal leaves, and work- sharing programs that involve cuts in salary and hours to save jobs or to provide incentives for those willing to terminate employment. 27

Employee “Voice” Systems Lower turnover in unionized situations (detailed in Chapter 10) might be related to the fact that union employees have an opportunity to voice their needs for change through the grievance and negotiation processes. Where

24 E. C. Wesman and D. C. Eischen, “Due Process,” in J. A. Fossum, ed., Employee and Labor Relations, SHRM-BNA Series, vol. 4 (Washington, DC: Bureau of National Affairs, 1990), p.117. 25 M. J. Keppler, “Nonunion Grievance Procedures: Union Avoidance Technique of Union Organizing Opportunity,” Labor Law Journal, 41 (1990), pp. 557–562. 26 J. A. Fossum, “Employee Relations,” in J. A. Fossum, ed., Employee and Labor Relations, SHRM-BNA Series, vol. 4 (Washington, DC: Bureau of National Affairs, 1990), pp. 12–14. 27 F. K. Foulkes, “Employment Security: Developments in the Nonunion Sector,” Proceedings of the Industrial Relations Research Association, 41 (1988), pp. 411–417.

Chapter 7 Union Avoidance: Rationale, Strategies, and Practices 203

these mechanisms are absent, employees who desire change may be able to achieve it only by “voting with their feet.” 28

In unionized organizations, employees are able to exercise their voice on immediate issues through grievance procedures and on long-term issues through participation in negotiation committees. Employees who have the greatest disagreements with an organization’s operations might be expected to be most involved in union activities at the employer level.

In nonunion employers, employees have no contractual entitlement to redress grievances or to have a voice in how the organization should be run. Some nonunion organizations, particularly those with philoso- phy-laden backgrounds, have constructed elaborate systems that enable employees to voice complaints and get action on them. 29

A model system enables an employee to communicate directly with his or her company’s chief executive officer, who has a department that directly investigates causes of complaints and reports its findings. The employee’s superiors may be the focus of the investigation, but the employee is not identified, and no reprisals may be made against the person who filed the complaint. Exhibit 7.1 is a commentary on how one of these systems works.

28 A. O. Hirschman, Exit, Voice, and Loyalty (Cambridge, MA: Harvard University Press, 1970). 29 For an overview, see R. Bernbeim, Nonunion Complaint Systems: A Corporate Appraisal (New York: Conference Board, 1980).

THE OPEN-DOOR POLICY The Open-Door Policy is deeply ingrained in [the company’s] history. This policy is a reflection of our belief in respect for the individual. It is also based on the principle that every person has a right to appeal the actions of those who are immediately over him in authority. It provides a procedure for assuring fair and individual treat- ment for every employee.

Should you have a problem which you believe the company can help solve, discuss it with your immediate manager or your location’s person- nel manager or, in the field, with the manager of your location. You will find that a frank talk with your manager is usually the easiest and most effective way to deal with the problem.

Second, if the matter is still not resolved, or is of such a nature you prefer not to discuss it with your immediate manager or location person- nel manager, you should go to your local gen- eral manager, regional manager, president or general manager of your division or subsidiary, whichever is appropriate.

Third, if you feel that you have not received a satisfactory answer, you may cover the matter by mail, or personally, with the Chairman of the Board.

Source: Fred K. Foulkes, Personnel Policies in Large Nonunion Companies (Englewood Cliffs, NJ: Prentice Hall, 1980), p. 300.

Exhibit 7.1

204 Labor Relations

To reduce potential employee cynicism about management’s commit- ment to neutral grievance procedures, IBM operates a system that allows employees with complaints to have direct anonymous access to high-level management. When complaints are received, investigations are required, and the remedial action to be taken, if any, is communicated back to the grievant. Follow-up is monitored by high-level management.

These so-called open-door policies vary substantially in their real access to higher-level managers—in terms of the types of complaints or questions that can be taken up and also the degree to which employees must first contact lower-level supervisors and managers before higher- level managers will review a complaint. 30

Another innovative approach is creating an employee review board to act as an impartial group to resolve outstanding grievances. Where this approach is used, a review board of randomly chosen employees or per- sons at the same relative organizational level as the grievant hears the evi- dence and renders a binding decision for the employer and the grievant.

Employees may have concerns about due process. For due process to operate, a procedure must necessarily include an objective investigator and decision maker who has the power to make a binding decision for both an employee and the employer. 31 Unless the employee believes the employer’s procedures allow a valid appeal, the employee may prefer to take an employment grievance to court as a tort issue. 32 Nonunion proce- dures in the public sector are relatively similar to union grievance proce- dures. Peer review panels are sometimes included. Their effectiveness is related to employees’ use of them, training in their operation, assistance by management in processing complaints and obtaining information for grievants, full and fair hearings, and an explanation of the decision. 33

Some large nonunion organizations also periodically conduct attitude surveys for early identification of potentially troublesome areas. Such problem areas might include certain employee groups or certain employee relations policies such as advancement, pay, or development opportuni- ties. Given that attitudes may be precursors of subsequent behaviors, the diagnosis of potential problems allows management to conduct remedial activities to eliminate potential areas of contention.

Grievance procedures introduce justice systems to the workplace. Justice can be defined in several ways: distributive (methods used to decide rela- tive shares of an outcome), procedural (methods used to determine how

30 D. M. McCabe, “Corporate Nonunion Grievance Procedures: Open Door Policies—A Procedural Analysis,” Labor Law Journal, 41 (1990), pp. 551–556. 31 D. W. Ewing, Justice on the Job: Resolving Grievances in the Nonunion Workplace (Boston: Harvard University Press, 1989). 32 Keppler, “Nonunion Grievance Procedures.” 33 G. W. Bohlander and K. Behringer, “Public Sector Nonunion Complaint Procedures: Current Research,” Labor Law Journal, 41 (1990), pp. 563–567.

Chapter 7 Union Avoidance: Rationale, Strategies, and Practices 205

decisions are reached), and interactional (methods used to communicate). Perceptions of organizational justice are influenced by all three, but pro- cedural justice is the strongest, followed by interactional and distributive. Employee input in the process and independence of decision makers are important components of all three justice types. 34

In some organizations, supervisors and managers are evaluated by their subordinates as well as by other performance indicators. They are expected to maintain a work environment leading to positive employee attitudes as measured by periodic surveys. When attitude surveys point out a problem, they may be required to devise action plans to eliminate difficulties.

Nonunion employers that operate in competitive environments are par- ticularly interested in managing conflicts in their organizations. A conflict that leads to a dispute or the possible violation of an employment law or regulation will occupy considerable management time and incur expense and uncertainty until a settlement is reached. Litigation consumes resources and polarizes positions within the organization. Increasingly, employers are developing preventive methods to diagnose potential employment disputes at an early point and to train employees and supervisors to rec- ognize and avoid situations that create unnecessary disputes. 35

About half of nonunion firms have grievance procedures. These firms have higher proportions of managers and professional employees, are larger, value human resource management, do not have unionized employ- ees, and are not in a high-technology industry. Some grievance procedures include binding arbitration if a grievance is unresolved. Characteristics associated with third-party resolution include union avoidance strategies, being a smaller firm, low assets per employee, not being in manufacturing, and being a high-tech firm. 36

Where nonunion grievance procedures exist, rates are higher when peer review and/or nonunion arbitration is used for deciding cases. If manag- ers are included in the final phase of the resolution process, grievance rates are lower, probably due to cynicism regarding the fairness of the process. Grievance rates are lower in team-based and high-performance work organizations. 37

34 D. Blancero, “Nonunion Grievance Systems: Perceptions of Fairness,” Proceedings of the Industrial Relations Research Association, 44 (1992), pp. 458–464. 35 D. B. Lipsky and R. L. Seeber, “Dispute Resolution in the Changing Workplace,” Proceedings of the Industrial Relations Research Association, 54 (2004), pp. 30–40. 36 J. T. Delaney and P. Feuille, “The Determinants of Nonunion Grievance and Arbitration Procedures,” Proceedings of the Industrial Relations Research Association, 44 (1992), pp. 529–538. 37 A. J. S. Colvin, “The Dual Transformation of Workplace Dispute Resolution,” Industrial Relations, 43 (2003), pp. 712–735.

206 Labor Relations

Other Innovative Techniques Some organizations have begun to hold mass meetings between employ- ees and top-management officials to get a sense of possible problems. One approach involves meetings between top managers and groups of lower- level employees to present current problems. This “deep-sensing” approach may give top managers a better reading on the pulse of employee morale, and employees in turn might expect more action on their problems.

Another approach, called vertical staff meetings , includes about a dozen employees from various levels who are picked at random to meet with the division’s president at a monthly meeting. The president follows up on the problems disclosed by the attendees and reports to the participants. 38

Employer/Employee Committees Employers have formed various types of management-employee com- mittees. Quality circles are one example. Others involve employees’ making recommendations to management regarding hiring, personnel assignments, hours, terms and conditions of employment, and other similar issues, which are the subject of collective bargaining in unionized employers.

The Taft-Hartley Act forbids dominance of a labor organization by an employer. The Electromation decision narrows an employer’s ability to broadly ask employees to consider employment issues. 39 Involvement of employees in nonmandatory bargaining issues is unlikely to lead to suc- cessful charges of employer dominance.

Employee participation in some of these committees may be similar to collecting attitude survey data from a sample of the plant population and using these data as a representation of overall employee attitude. It also enables both groups to enrich their understanding of what each perceives as problems in the workplace and their causes.

In Canada, company unions are permitted, and there has been a long history of nonunion employee representation in Imperial Oil. The Joint Industrial Council (JIC) in Imperial dealt with a variety of workplace issues, including wages and benefits. However, when employee JIC mem- bers perceived they were losing influence in decision making on employ- ment issues, they organized a union with the former JIC representatives as

38 For additional perspectives on employee voice, see T. A. Mahoney and M. R. Watson, “Evolving Modes of Work Force Governance: An Evaluation,” in B. E. Kaufman and M. M. Kleiner, eds., Employee Representation: Alternatives and Future Directions (Madison, WI: Industrial Relations Research Association, 1993), pp. 135–168. For an overview of research on nonunion grievance procedures, see R. B. Peterson, “The Union and Nonunion Grievance System,” in D. Lewin, O. S. Mitchell, and P. D. Sherer, eds., Research Frontiers in Industrial Relations and Human Resources (Madison, WI: Industrial Relations Research Association, 1992), pp. 131–162. 39 Electromation, Inc., 309 NLRB No. 163 (1992).

Chapter 7 Union Avoidance: Rationale, Strategies, and Practices 207

the new union’s officers. 40 Canadian firms with nonunion representation plans that stray far from offering union-type wages and benefits usually end up becoming organized. 41

Prior to being banned by the Wagner Act, a number of company unions were created, mostly during the 1920s. These were formed with the assis- tance of management and were operated at the enterprise level. Their outlawing by the Wagner Act was related to the conclusion that they lacked independence and had a compromised ability to represent worker interests. A recent analysis of company unions suggests, however, that they often enhance worker outcomes and generally benefit both employ- ees and employers. 42

Developing Practices in Nonunion Employee Relations Increasingly, companies have explicit union avoidance policies and tailor human resource practices to support these goals. Several areas in which there are differences between companies with an explicit union avoid- ance policy and those without one include providing more information to employees regarding their work group’s productivity; more work- group discussion of quality or productivity issues; more encouragement of participation mechanisms, such as quality circles and autonomous work teams; work sharing in preference to layoffs; and the development and operation of formal complaint systems. 43 Table 7.1 shows the number of positive responses toward a variety of human resource practices among a sample of large employers.

Besides their differences in communication and participation, new non- union and traditional unionized employers differ in the way the work- place is organized. To increase flexibility, employers have substantially reduced the number of job classifications. In many situations, employees are organized into teams, and the team is responsible not only for produc- tion but also for maintenance of its equipment. The team may have only one or two different jobs, which are defined on the basis of skill level rather than the functional specialty of the job holder. 44

40 D. G. Taras and J. Copping, “The Transition from Formal Nonunion Representation to Unionization: A Contemporary Case,” Industrial and Labor Relations Review, 52 (1998), pp. 22–44. 41 D. G. Taras, “Evolution of Nonunion Employee Representation in Canada,” Journal of Labor Research, 20 (1999), pp. 31–52. 42 B. E. Kaufman, “The Case for the Company Union,” Labor History, 41 (2000), pp. 321–350. 43 A. Freedman, The New Look in Wage Policy and Employee Relations (New York: Conference Board, 1985), pp. 16–20. 44 T. A. Kochan, H. C. Katz, and R. B. McKersie, The Transformation of American Industrial Relations (New York: Basic Books, 1986), pp. 81–108.

208 Labor Relations

PREVENTIVE PROGRAMS

In an effort to avoid being organized, employers design programs aimed at influencing employees to identify with management and the goals and culture of the organization, controlling contextual attributes that unions typically argue they can improve, and monitoring attitudes and behav- iors of employees to gain early evidence of any changes or situations that might encourage organizing. 45 Table 7.2 lists several initiatives manage- ment implements in each of these areas.

Some of the activities under contextual control and monitoring may be traded off or be used with increased emphasis. For example, inten- sive employee screening may be implemented to reduce the need for later surveillance and to create a workforce with more company-oriented

45 J. J. Lawler, Unionization and Deunionization: Strategies, Tactics, and Outcomes (Columbia: University of South Carolina Press, 1990), pp. 118–128.

Number of Companies in Which:

Managers Are Encouraged to Develop Practice Company Initiative or Sustain Exists

Information-related: Employees are given information about competitive or economic conditions of plant or business 431 Employees track their group’s quality or productivity performance 264* Participation-related: Employee participation programs (quality circles, quality-of-work-life programs) 364* Autonomous work teams 107* Employees meet in small work groups to discuss production or quality 340* Compensation-related: Profit-sharing, gainsharing, or bonus programs for nonexempt employees 191 Employees receive productivity or other gainsharing bonuses 121 “Payment for knowledge” compensation systems 107 All-salaried compensation systems 173 Miscellaneous: Formal complaint or grievance system 378* Work sharing instead of layoffs 176* Flextime or other flexible work schedules 162

*Statistically significant relationship with a company preference for union avoidance, at .05 or better.

TABLE 7.1 Company Practices among Nonunion Employees

Source: A. Freedman, The New Look in Wage Policy and Employee Relations (New York: Conference Board, 1985), p. 17. Reprinted by permission of the Conference Board Review.

Chapter 7 Union Avoidance: Rationale, Strategies, and Practices 209

attitudes. 46 Some activities within contextual control may also be exchanged. For example, high wages and good fringe benefits vary depending on the locations being compared. If labor costs are an issue, the firm may decide to locate in a lower-wage area and then pay at rates exceeding the competition. In any case, implementing these activities requires a more intensive employee relations/human resource manage- ment effort than it would in a unionized setting. The employer needs to determine that the long-term benefits exceed the costs.

MANAGEMENT CAMPAIGN TACTICS IN REPRESENTATION ELECTIONS

Campaign tactics depend to an extent on the size and sophistication of the employer. Smaller employers or units based in more remote locations often rely on labor relations consultants or attorneys to assist in organiz- ing and implementing the campaign. As we noted in Chapter 6, the use of consultants has a negative effect on union success rates. As in preventive

46 G. M. Saltzman, “Job Applicant Screening by a Japanese Transplant: A Union-Avoidance Tactic,” Industrial and Labor Relations Review, 49 (1995), pp. 88–104.

Objective Employer Activities

Influence Orientation programs Quality circles (especially blue collar)

MBO (management by objectives) (especially for white-collar and professional employees) Information sharing Attitude surveys Structuring of group interaction Empathetic management style

Contextual control Plant location Small plant size Outsourcing and use of flexible employment arrangements Employee screening Supervisor selection and training Influential HRM department Desirable working conditions High wages, good fringe benefits Job security Career advancement opportunities Grievance program Restrictions on workplace solicitations by union supporters

Monitoring Attitude surveys Surveillance Reports from operatives and management loyalists Review of employee complaints Review of personnel records

TABLE 7.2 Employer Influence, Contextual Control, and Monitoring Tactics

Source: Adapted from J. J. Lawler, Unionization and Deunionization: Strategies, Tactics, and Outcomes (Columbia: University of South Carolina Press, 1990), pp. 120–121.

210 Labor Relations

processes, employers may implement a variety of influence, contextual control, and monitoring activities to reduce the chances of the organiz- ing union’s gaining recognition. 47 Table 7.3 lists the activities frequently used by employers. Table 7.4 shows the frequency of a variety of common employer campaign themes that were used in a sample of 201 elections.

Management often uses a variety of consultants in opposing unioniza- tion once an organizing campaign begins. Consultants may include attor- neys, campaign advisers, advocates of positive labor relations, security services that provide investigation resources, trade and industry associa- tions that provide expertise gained from previous campaigns, advocacy groups that oppose unions in general, and educational institutions that might provide union avoidance information. 48

Several tactics, such as improving wages, hours, and terms and con- ditions of employment or treating union supporters in a discriminatory manner, are unfair labor practices (ULPs). Evidence indicates that an aggressive campaign that includes unfair labor practices is associated with management victories. 49 Since the costs of committing an unfair labor practice are very low for employers relative to the costs of unions winning

47 Lawler, Unionization and Deunionization, pp. 139–160. 48 Ibid., p. 90. 49 W. T. Dickens, “The Effect of Company Campaigns on Certification Elections: Law and Reality Once Again,” Industrial and Labor Relations Review, 36 (1983), pp. 560–575.

Objective Employer Activities

Influence Captive audience speeches Small-group and individual meetings Letters, posters, handbills, and other written communications Threats and/or inducements Films, slide shows

Contextual control External: Use of regulatory agency procedures

Election delays Linkages with community institutions (banks, police, newspapers, churches, etc.)

Intraunit: Supervisor training

Discriminatory treatment of union supporters Short-term improvement in wages and working conditions Establish or support employee anti-union committee Refuse workplace access to union organizers Restrict workplace solicitations by union supporters Excelsior-list misreporting Neutrality agreements

Monitoring Attitude surveys Surveillance Interrogation Reports from operatives and management loyalists

TABLE 7.3 Employer Election Campaign Tactics

Source: Adapted from J. J. Lawler, Unionization and Deunionization: Strategies, Tactics, and Outcomes (Columbia: University of South Carolina Press, 1990), pp. 141–142.

Chapter 7 Union Avoidance: Rationale, Strategies, and Practices 211

elections, this actually reinforces employer choices to commit them. Exten- sive advice on how to conduct a legal campaign in opposition to a union is readily available. 50

The lower an employer’s wage is relative to others in its industry, the greater management’s resistance will be. Employer resistance increases more rapidly with differentials than do employee desires for unioniza- tion. 51 An active union avoidance strategy for new facilities decreases the likelihood of organizing from about 15 percent to 1 percent. 52

DECERTIFICATIONS

Once certified, unions face periodic risks in continuing as the bargaining agent. A majority may vote to oust the union after the election bar ends if no contract is in effect. Decertification occurs more often in small units that lack local leadership and have low member involvement in union

50 See, for example, M. A. Spognardi, “Conducting a Successful Union-Free Campaign: A Primer (Part I),” Employee Relations Law Journal, 24, no. 2 (1998), pp. 35–52; and Part II, 24, no. 3 (1998), pp. 31–55. 51 R. B. Freeman, “The Effect of the Union Wage Differential on Management Opposition and Union Organizing Success,” American Economic Review, 76, no. 2 (1986), pp. 92–96. 52 T. A. Kochan, R. B. McKersie, and J. Chalykoff, “The Effects of Corporate Strategy and Workplace Innovations on Union Representation,” Industrial and Labor Relations Review, 39 (1986), pp. 487–501; see also J. J. Lawler and R. West, “Impact of Union-Avoidance Strategy in Representation Elections,” Industrial Relations, 24 (1985), pp. 406–420.

Campaign Theme Frequency (%)

Bargaining impact themes 66 Strikes may occur 40 High union dues 33 Potential for fines and assessments by the union 24 Unions cannot guarantee any changes 14 Possible plant closing 14 Bargaining may actually reduce wages, benefits, etc. 5 Antiunion themes 35 Union will interfere with good worker-management relations 7 Union dominated by outsiders 13 Union has failed elsewhere 6 Union is corrupt 9 Union is radical or leftist 6 Union will subject workers to rules 6 Unionism is inconsistent with employee and community values 1 Pro-company themes 20 Management is a friend to workers 7 Workers already enjoy high wages and/or good working conditions 9 Give company another chance 8

TABLE 7.4 Relative Frequencies of Common Employer Campaign Themes

Source: Adapted from J. J. Lawler, Unionization and Deunionization: Strategies, Tactics, and Outcomes (Columbia: University of South Carolina Press, 1990), p. 149.

212 Labor Relations

activities, a higher frequency of strikes, a high turnover of represented employees, low union density in the industry, and affiliation with a large national union. 53

Since the 1950s and 1960s, decertification elections have increased from 5 percent of all elections to between 12 and 25 percent. Decertifications are strongly related to macroeconomic measures, institutional changes reflected in increasing ULPs, relative reductions in social spending as unemployment increases, and a Republican administration in office. 54

JOB STRUCTURING

Employers and unions may be involved in a continual battle about whether jobs fall within the jurisdiction of the bargaining unit or not. At the time that an election is held, the NLRB defines what jobs and what employees are within the bargaining unit. As noted, the law requires that professionals affirmatively agree to be part of a bargaining unit before they can be included. If the nature of the work design is changed radically and skill requirements are increased, the employer may argue that the jobs required to perform the work are no longer a part of the bargaining unit as it was defined at election time. If, at the same time, low-skilled jobs are outsourced, the bargaining unit is gradually hollowed out by job design changes, and bargaining power is lost. Exhibit 7.2 contains information regarding job jurisdiction demands made by the Communications Workers of America (CWA) during its 2000 negotiations with Verizon that resulted in a lengthy strike.

Summary Differences between capitalistic and trade union philosophies related to the operation of the workplace cause inevitable conflicts. Employers have long resisted attempts to unionize, with industrial-type unions having lit- tle success in organizing workers until passage of the Wagner Act. Follow- ing a “corporatist” period of about 30 years after World War II, in which management generally conceded a legitimate role for labor, employers took a harder line against organizing and bargaining beginning in the late 1970s. Currently, many employers have a union-free employment goal and implement strategies to avoid new organization and to eliminate current unionization in their firms.

Unionization has a variety of economic effects on employers. In general, productivity of unionized workers is higher than that of nonunion work- ers in manufacturing and construction but not in the service sector. Union

53 See J. C. Anderson, G. Busman, and C. A. O’Reilly III, “What Factors Influence the Outcome of Union Decertification Elections?” Monthly Labor Review, 102, no. 11 (1979), pp. 23–31; and D. A. Ahlburg and J. B. Dworkin, “The Influence of Macroeconomic Variables on the Probability of Union Decertification,” Journal of Labor Research, 5 (1984), pp. 13–28. 54 E. A. Nilsson, “The Growth of Union Decertification: A Test of Two Nonnested Theories,” Industrial Relations, 36 (1997), pp. 324–348.

Chapter 7 Union Avoidance: Rationale, Strategies, and Practices 213

members earn a substantial pay premium. Where unions have negotiated wage and benefit improvements, employers generally pass these along to unorganized workers as well. Thus, the cost of unionization is not fully related to unionized workers only. Studies of stock price changes associated with unionization and deunionization generally find that share prices fall at a higher-than-expected rate when unionization or attempts to unionize occur.

Employers implement a variety of practices in an attempt to remain union-free. Employers adopting a philosophy-laden approach create an employment relationship that fits a particular culture and manner of treating employees. As a result, employees see their situations as being, in most respects, as good as or better than what they would be able to negotiate if they were represented. In other, more traditional approaches, employers may purposely implement a set of employment practices that closely mimic a unionized environment, thereby reducing the likelihood that issues would arise to lead to unionization.

Some of the areas on which nonunion employers focus in their avoid- ance of unionization include plant location decisions, wage and benefit policies, staffing practices, and employee grievance systems.

Preventive programs involve attitude surveys, surveillance, employee communications, and supervisor training. If an organizing attempt takes place, intensive communications, hiring consultants, and procedural delays are often implemented. If the union wins recognition, the employer may take an intransigent approach to bargaining an initial contract.

Decertifications are an increasing proportion of NLRB-conducted elec- tions. These must be initiated by employees during a period in which a contract is not in effect.

CWA POSITION ON JOB SECURITY IN BELL ATLANTIC/VERIZON BARGAINING (2000) CWA wants limitations on the movement of work as Bell Atlantic consolidates its merger with GTE. This would extend the assurances we won in negotiations when Bell Atlantic merged with Nynex.

CWA is fighting for real, enforceable limits on subcontracting. Far from using subcontracting to give it flexibility to handle booming business needs from time to time, Verizon’s subcontract- ing of work is widespread and constant.

CWA is seeking to bolster organizing rights for the company’s growing and nonunion wire- less operation. CWA’s goal is to help raise job standards for these workers and increase the opportunity for workers through Verizon to be able to transfer into new areas of the company. Verizon Wireless is the only major wireless oper- ation in the telecommunications industry where such organizing rights language hasn’t yet been negotiated.

Source: www.cwa-union.org/telecombarg/verizon/ issues.asp, August 29, 2000.

Exhibit 7.2

214 Labor Relations

1. Is the increasing resistance of employers to unionization a new phe- nomenon or simply a return to the historic relationship that has existed between unions and managements in the United States?

2. Would you expect a stronger anti-union response from an employer in manufacturing or an employer in a service industry?

3. In today’s increasingly competitive employment environment, would you expect to find many (or any) employers taking a philosophy-laden approach?

4. Should public policy change in some way so that unions that win rep- resentation rights have a guarantee that they will be able to negotiate a first contract?

Discussion Questions

Key Terms Company union, 193 Doctrinaire organization, 197

Philosophy-laden, 197 Open-door policies, 204

GMFC is planning to expand its U.S. oper- ations by building a new plant that will employ about 500 production workers. This new plant will manufacture motorized recre- ational equipment, including all-terrain vehi- cles, personal watercraft, and snowmobiles. The equipment will assemble mechanical components produced in other GMFC opera- tions or purchased from suppliers. The new plant will fabricate fiberglass body parts and complete the final assembly process.

GMFC would like to operate the new plant union-free. It’s likely that the United

Automobile Workers (UAW), and perhaps other internationals, will attempt to organize the workforce within a year after start-up. You are a member of a planning committee for the new plant. Your primary area of responsibil- ity involves issues related to potential union- ization and labor costs. What advice would you provide to the company on size, loca- tion, staffing, wages and benefits, and other employee relations issues that would help GMFC keep the new plant union-free and competitive?

Case: Locating the New Recreational Vehicle Plant

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De gemaakte PDF-documenten kunnen worden geopend met Acrobat en Adobe Reader 5.0 en hoger.) /NOR <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> /PTB <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> /SUO <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> /SVE <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> /ENU (Use these settings to create Adobe PDF documents for submission to RR Donnelley Book plants. Created PDF documents can be opened with Acrobat and Adobe Reader 5.0 and later.) >> /Namespace [ (Adobe) (Common) (1.0) ] /OtherNamespaces [ << /AsReaderSpreads false /CropImagesToFrames true /ErrorControl /WarnAndContinue /FlattenerIgnoreSpreadOverrides false /IncludeGuidesGrids false /IncludeNonPrinting false /IncludeSlug false /Namespace [ (Adobe) (InDesign) (4.0) ] /OmitPlacedBitmaps false /OmitPlacedEPS false /OmitPlacedPDF false /SimulateOverprint /Legacy >> << /AddBleedMarks false /AddColorBars false /AddCropMarks false /AddPageInfo false /AddRegMarks false /ConvertColors /NoConversion /DestinationProfileName () /DestinationProfileSelector /NA /Downsample16BitImages true /FlattenerPreset << /PresetSelector /MediumResolution >> /FormElements false /GenerateStructure true /IncludeBookmarks false /IncludeHyperlinks false /IncludeInteractive false /IncludeLayers false /IncludeProfiles true /MultimediaHandling /UseObjectSettings /Namespace [ (Adobe) (CreativeSuite) (2.0) ] /PDFXOutputIntentProfileSelector /NA /PreserveEditing true /UntaggedCMYKHandling /LeaveUntagged /UntaggedRGBHandling /LeaveUntagged /UseDocumentBleed false >> ] >> setdistillerparams << /HWResolution [2400 2400] /PageSize [612.000 792.000] >> setpagedevice