Union Organizing and NLRB Representation Election Procedures

1. Union Organizing and NLRB Representation Election Procedures • “Certification” is the immediate union goal • Ultimately, the union hopes to enroll new members • A contract will have to be negotiated • Meaning of certification • Exclusive bargaining agent status for union, I.e., it wins the right to exclusive representation • Duty to bargain “in good faith” on mandatory subjects • Fair representation obligation -- must represent all bargaining unit members in a fair and impartial manner

2. Three Certification Methods • NLRB-conducted secret ballot election • Voluntary recognition by employer • NLRB will certify if evidence shows majority status, e.g., via an authorization “card check” • ERs often refuse such, preferring to conduct a counter-organizing campaign • Bargaining Order (Gissel Doctrine) • If ER misconduct prevents a fair election • Seen as extreme measure by NLRB and avoided if possible

3. Petition for election From union or EEs From ER if union claims majority and requests recognition Substantial show of interest needed (30%) Co. notified, Excelsior list requested NLRB tries to establish “consent election” (only about 5% of elections) Questions for the NLRB Is this an appropriate bargaining unit (ABU)? NLRB jurisdiction? Substantial interest (30%)? Legal barriers re past or present union activity Election bar (1 yr.) Contract bar (3 yrs.) Is the union a qualified representative? The Representation Election Process

4. ABU DeterminationImportance and Occupational Rules • Importance • Who gets to vote? • Who will be affected? • Much strategizing and maneuvering goes on because the outcome may be strongly affected • Special rules on occupations • Professionals can only be included with nonprofessionals if professionals vote for it as a group • Craft workers can’t be denied severance simply because of past inclusion • Guards can’t be in same unit as other EEs • Supervisors excluded since T-H -- not EEs for NLRA/LMRA purposes • Confidential employees excluded (e.g., an HR clerk)

5. ABU DeterminationPurpose and Operational Criteria • General purpose: “… to assure employees the fullest freedom in exercising the rights guaranteed by this Act” … to establish a unit which maximizes “community of interest” among EEs • Operational criteria • Interests of both EEs and ERs are considered • History of CB in this and similar units • Transfers among EEs • Geography and proximity of workplaces • ER organizational structure, especially common supervision • Similarity of work • EE “sentiment” or extent organized, but this can’t be the deciding factor

6. Certification Elections • Voter eligibility • Usually payroll at election, but other rules may be appropriate • In construction, for example, eligibility often based on hours worked in the area prior to election • NRLB election processing and related matters • Usually prompt, 80% held within 45 days of petition; but some take years! • Participation is usually high (90% or better) • Runoffs if no initial majority (with multi-union elections) • Objections may be filed within 5 days (fairly common) • Some notable trends and results • Initially high union win rates (75%) in long-term decline, but have stabilized near 50%, increased slightly in recent years (51% in 1998) • Election volume dropped dramatically in early 1980s -- a more focused effort, more reliance on non-NLRB procedures (e.g., card checks) • More union success in smaller, female, and white collar units, but only gaining rights for small fraction of unorganized workers (about .1-.2%)

7. Decertification Elections • EEs or their reps may file, not ERs (normally) • This is supposed to be about EE choice • ERs still have “free speech" rights once underway • ER should consider possible adverse consequences of supporting decertification drive: A worse alternative, hard feelings? • Reasons • Poor service by the union (consistent with small unit predominance) • Union can’t win a contract with ER (25-33% of certifications) • Improved treatment by ER -- ER “sees the light” after union win • Striker replacements often don’t want a union (common scenario) • Trends and significance • 15-25% of all representation elections, stable now after rising steadily • Unions lose about 2/3 to 3/4 of decertifications • Mainly a small unit phenomenon; not a huge impact on union density

8. Campaign Conduct and NRLB Rules and Doctrines on Campaign Conduct • Laboratory conditions doctrine: An ideal. No contamination of the election so that its results reflect true, untainted employee desires • The reality: Lots of potentially coercive, intimidating, etc. conduct occurs in the context of representation elections • ULPs are up four-fold since the 1960s, while election activity, where most ULPs occur, has held steady or declined • Employer ULPs average about 2 per election • Roughly 1-in-20 nonunion workers who support unions are fired for union activities during organizing campaigns • Parties focus more on persuasion than truth (surprise?)

9. Campaign ConductGeneral Issues • When should the election be “set aside,” rerun, and/or cancelled in favor of a bargaining order? • Set aside and rerun: When misconduct has tainted an election and possibly had a substantial impact, but a fair election is still thought possible with appropriate corrections (e.g., cease and desist) • Bargaining (Gissel) order: When misconduct has made a fair election impossible and there’s evidence of majority support for union at some point • What conduct is the NLRB concerned about? • ULPs -- definitely • Lies, half-truths, etc. -- not since 1982 Midland Insurance decision (note three reversals in NLRB policy in a span of about five years!) • Considers the “totality of conduct” (that is, words and behaviors in context) -- casual remark in one instance may be a ULP in another. Legal behaviors can add up to violations in extreme instances

10. “Captive Audiences” ERs have a clear advantage (83% vs. 36% attending meetings during campaigns) Not within 24 hours before election (on ER premises and time) Similarly,circumstances may call for union access to ER property (if no real alternatives) “Polling” by ER limited “No solicitation” rules: ER property rights balanced with EE free speech rights. Bans must: Be general Distinquish verbal and written forms Be based on disruptive effects on production Distinguish work time from work hours Campaign ConductSome Specific Areas of Concern

11. Do Campaigns Matter? • Early analysis by Getman et al. (1976) said “no” (81% of voters seemed unaffected by campaigns), but more careful analysis of their data and other studies show substantial effects for both legal and illegal campaign activities • Most elections are fairly close. Changing a small number of votes can change the outcome • One recent study suggests that the type of campaigns run by unions are even more influential than employer campaigns • Delays are created by ERs for strategic purposes. ER controls the “status quo,” momentum of the drive dissipates, and perceptions that the union can change things (be “instrumental”) erode

12. Organizing, The Board, and the NLRA: Assessment • Interestingly, the NLRB was once hailed as a model of successful government regulation • Now, its problems are more often cited • Ineffectiveness in countering strategic delays, and Congressional partisanship has slowed the NLRB’s procedures further • Increased partisanship in appointments and decisions, especially under Reagan • Ineffective remedies: Back-pay with interest helps, but can it really “make whole” for the damage done (e.g., momentum)? • Lack of penalties and enforcement: Past violators are more likely to violate the NLRA again -- what did they learn? • Some “union busting” consultants say an NLRB notice serves as a hunting license to let workers know how far the ER will go to stop unions

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14. Bargaining Structure • Who bargains with whom? Who is affected? • The ABU (Appropriate Bargaining Unit) is not necessarily the actual bargaining unit • Four distinct levels of bargaining structure • Informal work groups (no legal status, but …) • ABU as determined by NLRB • Important for election purposes, as noted previously • A legal minimum; Neither party can insist on subdivision or amalgamation into a larger unit • Formal bargaining unit: Who is actually represented at the table? Often an amalgamation of ABUs • Unit of direct impact: Recognize that others may be affected rather directly, even if not formally (e.g., “pattern bargaining”) • Bargaining may occur at multiple levels

15. Market factors Unions seek to “take wages out of competition” Obvious way to do this: Include competitors within the bargaining unit Technology Similarity of work, production technology, etc. allows for amalgamation (grouping) Information technology affects ability to coordinate Community Laws re ABUs Laws re multi-employer bgng. Bargaining power (e.g., consider vertically and horizontally integrated companies) Union democracy Industrial democracy Responsiveness to local conditions Ability to adapt to technological change Opportunities for conflict Scope of conflict Bargaining Structure Causes Consequences

16. Bargaining Structure Arrangements • Highly varied. Beyond a few legal restrictions, the parties are free to arrange things as they please (voluntarism) • Common configurations • Multi-employer arrangements, typically where ERs are small and competitive (e.g., trucking, coal, construction) • Single employer multi-site (many large ERs in manufacturing, trade, postal service, elsewhere) • Single employer single site (smaller ERs) • Multi-union in some instances, often via “coordinated bargaining” • Pattern bargaining (autos probably the best example) • Multiple levels of agreements (local and national) • Deceptive decentralization? Who really calls the shots?

17. Bargaining Structure Trends • An old general rule: One wants competitors included in the formal (or de facto, e.g., via pattern bargaining) bargaining unit lest they gain an advantage via lower labor cost • Assumed risk aversion, management in a reactive mode • Many ERs have since 1970s sought decentralized structures, to break away from previous more centralized structures • Changing product mix, technology • New competitors (e.g., foreign, nonunion) • Local labor market conditions (especially after “greenfield siting”) • Opportunism, especially during “Great Recession” • Case in point: Steel industry formerly had virtual industry-wide bargaining. Now at company level