chapter 6

THE ORGANIZING TIME LINE

A union organizing drive—that is, a campaign to organize nonunion workers into a union that is recognized by the employer as representing the employees—typically follows a common sequence of steps (see Figure 6.1). Initiating an Organizing Drive - The first step is initiation. In theory, there are three possible initiators of an organizing drive: one or more employees, a union, or an employer. The last possibility might seem odd, but as an example, in the 1960s and 1970s some agricultural companies signed contracts with the Teamsters rather than risk having their employees choose the more militant United Farm Workers. Note that this interferes with employee free choice, and therefore employer-initiated organizing drives are illegal [Section 8(a)(1) unfair labor practices under the NLRA]. Thus our concern is with employee- or union-initiated campaigns. - An employee-initiated organizing drive is perhaps the classic scenario. Low pay, excessive overtime, harsh supervision, lack of respect and voice, or numerous other factors cause dissatisfied employees to talk with each other about forming a union to increase their collective strength. These employees might try to form a union on their own or, more frequently, contact a union organizer who works for an existing union in their area, industry, or occupation. In either case this is an employee-initiated campaign. - Alternatively, unions may initiate organizing campaigns by advertising, distributing information, and trying to contact employees to show the benefits of unionization. There are two types of union-initiated campaigns: strategic and opportunistic. Strategic campaigns are those in which organizing a particular workplace will enhance a union's ability to effectively represent existing employees. For example, the United Auto Workers (UAW) periodically tries to organize the nonunion U.S. manufacturing plants of the foreign-owned auto companies to maintain its bargaining power in that industry. On the other hand, opportunistic campaigns attempt to increase a union's membership by organizing dissatisfied workers who are "ripe" for unionization but who do not have a strategic fit with the existing membership, such as when the United Steelworkers of America tries to organize nursing home workers. Building and Documenting Support - In any case, once an organizing drive has been initiated, the next step in the union organizing time line is building support (see Figure 6.1). This generally involves meeting interested employees outside the workplace and distributing information. Organizing also involves raising expectations—what someone should expect from their job, their employer, a potential union, and ultimately, themselves and their coworkers.1 If an organizing drive is to continue, sooner or later employees must concretely express support for having a union represent them. The most important method in U.S. labor relations for showing this support is to sign an authorization card. An authorization card is a preprinted form containing something like "I authorize [union name] to represent me for the purposes of collective bargaining" which employees fill out and sign (see Figure 6.2). Collecting signed authorization cards is a crucial part of the union organizing process because the cards demonstrate the interest in unionization to three important parties: union organizers, the employer, and if necessary, the NLRB. Some union organizers will not continue to devote their time and resources to a campaign if they cannot collect a certain number of signatures in a certain time period. - More importantly, authorization cards show the employer that employees want union representation. Recognizing a union that lacks majority support violates the NLRA.2 But if a union gathers signed cards from more than 50 percent of the employees, it can ask the employer to recognize the union as the bargaining agent of the employees. If the employer is agreeable, a neutral party can examine the cards and determine if truly more than 50 percent of the employees signed cards. If so, the employer can recognize the union and is then obligated to bargain with the union. This is called voluntary recognition, and when this occurs, the union organizing process is over (see the right-hand side of Figure 6.1). Recognition based on authorization cards is called card check recognition or a majority sign-up procedure. - Unions often aggressively push for card check recognition procedures, both through legislative action (such as the Employee Free Choice Act discussed at the end of this chapter) that would require employers to accept card check recognition and through agreements with specific companies to voluntarily accept card check recognition. But unless the Employee Free Choice Act or similar legislation is enacted, card check recognition will probably continue to be the exception rather than the norm because employers typically refuse to recognize unions voluntarily. Alternatives to Voluntary Recognition - What happens after an employer declines a request for voluntary recognition? First consider the pre-NLRA era before 1935. In this era, employees had only one option: Step up the pressure on the company to force it to change its stance. As a result, employees would launch a recognition strike—a strike to try to compel the employer to recognize their union. Recall from Chapter 3 that the Ludlow Massacre, the 1934 general strikes in San Francisco and Minneapolis, the General Motors sit-down strike, the Memorial Day Massacre, and the Memphis sanitation strike were all recognition strikes. And recall further how costly these strikes were—in loss of human life, human suffering, lost profits, and economic disruption. A major goal of the NLRA is to replace these costly recognition strikes with an orderly alternative. What is the natural, orderly mechanism in a democratic society for determining the wishes of the majority? An election. - The 1935 passage of the NLRA therefore created a certification procedure in which employees can petition the NLRB for an election to determine if a union has the support of a majority of the employees. Although there are restrictions on recognitional picketing, the NLRA does not ban recognition strikes per se but rather tries to make them obsolete by giving employees a safer alternative that does not involve lost wages and the risk of being replaced by new employees during a strike. Most recognition questions today are settled through NLRB representation elections rather than through strikes. - Contemporary examples reinforce the NLRA's logic. For example, graduate student teaching assistants at some universities have been trying to form a union since the early 1990s. A major complicating factor, however, has been whether in the eyes of the law these individuals are employees or students. Except for 2000-2004 and again starting in August 2016, the NLRB has ruled that graduate assistants at private universities are students, not employees, and are therefore not covered under the NLRA.3 When graduate students have been excluded from the NLRB and therefore denied access to the NLRB certification election process, they have turned to grade strikes and other forms of economic pressure tactics to try to pressure university administrators to recognize their unions. In contrast, since the 2016 ruling when graduate students at private universities were ruled to be employees, disruptive strikes have often been avoided because graduate students are able to use elections to certify their unions, and their universities have then agreed to bargain. One notable exception was Columbia University which was trying to resist the 2016 ruling in anticipation of a reversal; its refusal to bargain with a newly certified union then prompted two graduate student strikes in 2018. Whether in the form of sit-down strikes, grade strikes, or traditional strikes, U.S. labor law tries to prevent this type of disruptive activity by allowing secret ballot elections to decide questions of representation among workers covered by the NLRA.

EMPLOYER CAMPAIGNING

Employer campaign tactics try to influence the four key determinants of individual voting decisions: job dissatisfaction, union instrumentality, general union attitudes, and collective social identity (recall Figure 6.3). At a minimum, these tactics usually include providing procompany and antiunion information and opinions to the employees. This is generally legal. Some companies are more aggressive and supplement this information with the manipulation of wages, benefits, working conditions, and job assignments as well as with threats, promises, rumors, layoffs, and firings. Antiunion committees might be formed, supervisors might be reassigned, and parties might be thrown. Many of these more aggressive activities can distort laboratory conditions and are therefore prohibited. These efforts might be led by full-time antiunion consultants. Two helpful acronyms to remember are FOE and TIPS. Providing workers with facts, opinions, and personal experiences ("FOE") pertaining to unions is generally legal, but it is illegal for managers to threaten, intimidate, make a promise to, or spy on workers ("TIPS"). Communicating with Employees - Information and opinions are shared with employees using a variety of methods. Supervisors might meet with employees individually or in small groups. Letters or e-mail messages might be sent to workers. The letters in Figure 6.4 are representative of common employer messages: The first letter tries to weaken workers' perceptions of union instrumentality, and the second portrays unions more generally in negative terms. Strikes and paying dues are also frequent themes. Another important employer tactic for sharing information and opinions is the captive audience meeting—a group meeting held in the workplace during working hours in which employees are forced to listen to management's antiunion and procompany presentations (captive audience speeches). Such meetings are legal as long as they are not within 24 hours of the election and steer clear of "TIPS." 40 Captive audience meetings are hotly debated—employers justify them on the basis of property and free speech rights; unions criticize them as giving employers an unfair advantage in communicating with, and perhaps pressuring, the employees. - These forms of communication are acceptable if they consist of "FOE" (Facts-Opinions-Experiences), but are unacceptable if managers are overly aggressive and deploy "TIPS" (Threaten-Intimidate-Promise-Spy). Sometimes, however, there is a fine line between predictions or opinions on one hand and threats on the other.41 Suppose an employer tells employees that if a union increases labor costs too much, the plant will have to close. Is this an opinion, a prediction, or a threat? Or suppose an employer tells employees that similar facilities have closed after being organized by this same union. Is this a factual statement or an implied threat? It depends. Predictions based on objective facts that some events will likely occur because of forces beyond the employer's control (like competitive forces) are acceptable; statements that convey the impression that these events are inevitable or at the discretion of the employer are prohibited threats. An acceptable conversation between a supervisor and an employee also becomes objectionable if it turns into an interrogation about the employee's views of unionization. A visit to an employee's home by a management official is grounds for invalidating an election—because the employer controls an employee's job, visiting him or her at home is viewed as intimidating and coercive.42 Employer Restrictions on Employees and Union Organizers - Another employer campaign tactic is to use no solicitation rules. The employer can use its private property rights to prohibit outside organizations from entering the workplace and interacting with workers. As long as these rules are equally enforced for all types of outside organizations, union organizers can be denied access to employees in the workplace, except in extreme circumstances when unions have no other access to employees (such as in remote mining camps).43 Union organizers can even be banned from shopping mall parking lots.44 Note carefully that this applies to outside union organizers, not the employer's employees.45 - Employees can discuss unionization in the workplace, but such conversations can be restricted to nonwork hours, and if they interfere with production or customers, to nonwork locations such as an employee cafeteria.46 Restrictions on employees and nonemployee union organizers must be applied even-handedly.47 Consider an organization that allows its employees to sell Girl Scout cookies in working areas but restricts employee discussions of unions to nonwork areas, or allows Boy Scouts into the workplace to sell holiday wreaths but prohibits union organizers from the premises. Isolated charitable acts will be overlooked.48 But if employees are allowed to repeatedly sell Girl Scout cookies to other workers during work time, such activities are likely not disruptive. To then restrict discussions of unionization by claiming that they are disruptive is disingenuous and amounts to discriminating against union activity.49 For the same reason, discriminatory enforcement of no solicitation rules is objectionable interference with employee rights to organize unions.50 - Currently, the sharpest debates are over employee use of company e-mail systems. It is well established in labor law that employees do not have a statutory right to use their employer's traditional office equipment for union organizing or other Section 7 rights, whether it be bulletin boards, telephones, or copiers.51 Until 2014, employer e-mail systems were treated the same way such that employees did not have a right to use employer e-mail systems for Section 7 activity.52 But in a controversial 2014 decision, the Obama-appointed NLRB ruled that because e-mail is such a critical means of communication for employees, employees who already have access to a company e-mail system are allowed to use it for nonbusiness purposes, including Section 7 activity, during nonwork time.53 Unlike other types of business equipment, the NLRB noted, employee use of e-mail is unlikely to prevent others from using it and is unlikely to add additional usage costs. If an employer wants to limit employee use of e-mail for union organizing or other Section 7 activity, it needs to show concrete costs (such as large e-mail attachments interfering with the e-mail system's operation) or that special circumstances make it necessary to restrict its employees' rights in order to maintain production or discipline. In 2018, the Trump-appointed NLRB signaled a likely reconsideration of this doctrine, but as of early 2019 it remains in force.54 Relatedly, an employer can monitor e-mail messages on its own e-mail system, but cannot do this in a discriminatory fashion, such as increasing its monitoring during an organizing drive or monitoring union supporters more intensely than others. Note that in all of these situations, the NLRB is trying to find a balance between workers' rights and employers' property rights. Union Avoidance Consultants - The use of outside union avoidance consultants and lawyers is a prominent component of employers' campaigns.55 Consultants can help managers take advantage of tactics such as captive audience meetings and train supervisors in union avoidance methods. Unions, however, view union avoidance consultants as another element of a deck stacked in favor of employers who can hold captive audience meetings, ban union organizers from the workplace, and hire expensive consultants to lead sophisticated communications and public relations campaigns. Moreover, at least some union avoidance consultants aggressively seek to break unions by resorting to almost any means necessary—a less publicly visible descendant of the aggressive strikebreaking agencies like the Pinkertons in the 19th century (described in Chapter 3). This is labor relations at its worst: lies, threats, promises, manipulation, harassment, espionage, abuse, and firings.56 In one extreme case in South Carolina, a 17-year employee with no record of violence challenged his plant manager to let the employees talk with a union organizer. The following day the employer notified the local sheriff that this employee was threatening workers, so the sheriff's deputies surrounded him at gunpoint on his way to work and forcibly took him to the local hospital. Based on what the employer told the sheriff, the employee was involuntarily committed to a mental hospital. He was held for two weeks against his will and forcibly injected with antipsychotic drugs until a lawyer could obtain his release.57 - With the help of attorneys and consultants, another employer tactic is delay.58 By challenging the proposed bargaining unit definition in an election petition, an employer can slow down the election time line and delay the election date for a couple of months or more. One unit determination case for Harvard University clerical and technical workers was stretched out by the university's lawyers to include more than 20 days of hearings; and in a similar case at Yale University, the university's lawyers submitted a witness list of over 300 individuals.59 Research shows that election delays reduce the likelihood of union certification.60 Why is delay a significant tactic in the employer's favor? The employer gains more time to campaign against the union; employee turnover may result in the loss of union supporters; perceptions of union instrumentality might be weakened as the union appears helpless to counter the employer's legal maneuverings; and critical union momentum is lost. As noted earlier, new NLRB election rules implemented in 2015 seek to reduce election delays. The Controversies over Employer Campaign Tactics - Employer campaigning during NLRB representation elections is a controversial topic in U.S. labor relations. Some argue that union representation is a question solely for workers, and employers should not be granted rights as formal participants in the process—free speech should be allowed, but not the right to object to the definition of the unit, to use special campaign tactics like captive audience speeches, and to challenge the results.61 The usual counterarguments are that the employers' property rights give them the right to participate in the process, that unions are too powerful without a fair counterweight of employer campaigning, and that employers need to speak for the antiunion employees and deliver their message. - More pragmatically, there is also significant debate over the practical questions of the prevalence and significance of employer campaigning. Some campaign tactics are hard to observe or measure (such as informal supervisor conversations with employees), and most are undertaken quietly (especially the illegal ones). Using NLRB data on illegal discharge unfair labor practices, it has been estimated that workers were illegally fired in 25 percent of representation election campaigns during the 2000s and that there is nearly a 2 percent chance that any pro-union worker involved in an organizing drive will be illegally fired. If union activists represent 10 percent of pro-union workers, this means that there is a 20 percent chance that union activists will be fired.62 Moreover, employees perceive the chances of retribution for organizing activity to be high: In one survey, 41 percent of nonunion respondents agreed that "it is likely I will lose my job if I try to form a union," and 79 percent of all respondents said it is "very" or "somewhat" likely that "nonunion workers will get fired if they try to organize a union."63 - More generally, research seems to reveal a pattern of broad-based employer campaigning during NLRB representation elections.64 This research often relies on the reports of union organizers, so it might overstate (if organizers or their inside sources intentionally or unintentionally inflate the amount of employer resistance) or understate (if organizers do not observe all the campaigning) the true level of employer campaigning. With this in mind, Table 6.2 presents some typical statistics. Note that a large fraction of employers reportedly use outside consultants, one-on-one meetings between workers and supervisors, and multiple captive audience meetings. - But do these tactics matter? This is the most debated question. Relative to their peers in other industrialized countries, American managers appear to be exceptionally hostile toward unions and have significantly stronger traditions of using union avoidance tactics.65 Various studies find that employer antiunion campaign tactics reduce the likelihood that employees will vote for unions in NLRB representation elections and that unions are less likely to win these elections.66 In contrast, a famous study in the 1970s found that most workers already had their minds made up before employer campaigning began and therefore that employer tactics do not matter.67 On the other hand, a reanalysis of this study's data revealed that because many elections are decided by thin margins, captive audience meetings as well as objectionable threats and actions toward union supporters can affect enough votes to shift the outcome of the election.68 Yet another study found that employer unfair labor practices did not reduce the probability of unions winning an election, but they did reduce overall union success rates by decreasing the likelihood that a petition filing would result in an election being held.69 And the debate continues. - In sum, by many accounts employers devote a lot of time and money to campaigning against unions in NLRB representation elections. Some campaign tactics are legal (recall "FOE"), though still criticized by labor supporters; other tactics are illegal (recall "TIPS"), and union busting can be "a very dirty business."70 Given the resources spent on campaigning, managers must perceive them as effective in reducing the likelihood that a union organizing drive will be successful. Moreover, the evidence points toward the presence of significant incentives to avoid unions at all costs. One-third of nonunion managers believe that their careers will be harmed if their employees unionize.71 And they are probably right: In one study, managers in establishments without any union organizing activity had a 21 percent chance of being promoted and a 2 percent chance of being fired; in similar establishments that experienced an organizing drive, not a single manager was promoted and 15 percent were fired.72

NLRB ELECTION STANDARDS

In the days and weeks leading up to NLRB representation elections, employers and unions typically conduct intense campaigns to bolster support for their sides. Unions try to create a social climate in the workplace that supports collective rather than individual action while highlighting reasons why employees should be dissatisfied with their jobs, how the union will be effective in improving their jobs (union instrumentality), and that unions in general are a positive societal force. On the other hand, employers try to make employees feel satisfied with their jobs, question the effectiveness of and need for unions in improving the workplace, negatively portray unions as dues-hungry or corrupt, and emphasize the value of individual rather than collective action. In short, employer and union campaigns try to affect the key determinants of how individuals vote in representation elections (see Figure 6.3). Various campaign tactics will be discussed in the next two sections; but first ask yourself whether there should be any limits or restrictions on employer and union campaigning. Remember that NLRB representation elections are not about employers or unions. Rather, the NLRA authorizes these elections to determine whether the workers want union representation. The key legal standard for NLRB representation elections is therefore employee free choice. Campaigning by employers and unions is permitted by the NLRA's employer's free speech provision [Section 8(c)]: "The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this Act, if such expression contains no threat of reprisal or force or promise of benefit." But this right is not unlimited—threats and promises are not allowed. Why? Because threats and promises can interfere with employee free choice. Union supporters might not vote for a union if they are afraid they will be fired if the union wins; employees who do not favor unionization might not vote against a union if union organizers have threatened them with physical violence. So to promote the key standard of employee free choice, the NLRB has established boundaries for employer and union campaigning: Campaign tactics that hamper, restrict, or interfere with employee free choice in deciding whether to have union representation are prohibited.36 This principle of free choice is similar to the typical standard for political elections: Well-informed voters are important for democracy, but buying votes through bribes or violence undermines democracy and is not allowed. Consequently, the NLRB evaluates election conduct using its laboratory conditions doctrine, also known as the General Shoe doctrine (after the name of the NLRB decision that created this doctrine): "In election proceedings, it is the [NLRB's] function to provide a laboratory in which an experiment may be conducted, under conditions as nearly ideal as possible, to determine the uninhibited desires of the employees. It is our duty to establish those conditions; it is also our duty to determine whether they have been fulfilled. When, in the rare extreme case, the standard drops too low, because of our fault or that of others, the requisite laboratory conditions are not present and the experiment must be conducted over again.37 " When the NLRB feels that election campaigning or other conduct causes employees to vote differently from their true preferences, the election results will be thrown out and a new election conducted (consider this yourself with "Labor Law Discussion Case 4" at the end of this chapter). The clearest violations of laboratory conditions are the NLRA's employer and union unfair labor practices: interfering with or coercing employees [Sections 8(a)(1) and 8(b)(1)], establishing a company-dominated sham union [8(a)(2)], and discriminating against employees on the basis of union support [8(a)(3)]. The classic example is firing union activists, which can affect the outcome of an election in several ways. Pro-union votes are kept from the election. Individuals who are key in spreading information about the union and creating a workplace climate supportive of collective action are removed. And other employees may be afraid to support the union for fear of being fired next. Firing (or otherwise discriminating against) union activists because of their union support therefore interferes with employee free choice and is illegal. Threatening to close a work site if a union wins an election or promising wage increases if the union loses amounts to buying votes and interferes with free choice. These actions are therefore prohibited. Improving wages, benefits, and working conditions before an election in order to defeat a union is also illegal interference. But the laboratory conditions standard goes beyond unfair labor practices.38 In other words, election conduct need not rise to the severity of a clear unfair labor practice in order to violate laboratory standards and therefore trigger a new election. For example, employer or union campaign tactics that inflame racial prejudices are not necessarily unfair labor practices, but they can create a tense environment in which employee free choice is affected. Lies and other distortions or misrepresentations of facts are also not unfair labor practices but can undermine free choice. Even though the NLRB has largely abandoned the view that lies and misrepresentations by themselves distort laboratory conditions—its logic is that workers can see through such propaganda—in extreme cases where the "pervasiveness of misrepresentation or the artfulness of deception during an election campaign renders employees so unable to separate truth from untruth that their free and fair choice is affected," a new election will be held.39 Finally, the actions of a third party—that is, individuals not under the direction of the employer or the union, such as individual employees, the mayor or chief of police, or business and labor union leaders from other companies and unions—cannot be unfair labor practices but nevertheless can negatively impact laboratory conditions (see "Labor Law Discussion Case 5").

INDIVIDUAL VOTING DECISIONS

In the most common scenario, an individual worker voting in a representation election receives a preprinted ballot asking, "Do you wish to be represented for the purpose of collective bargaining by [union name]?" and is instructed to mark the appropriate box—yes or no. An important question in labor relations is what influences individual workers to vote yes to form a union or no to remain nonunion. Research on U.S. workers typically reveals that demographic factors such as age and gender are not important predictors of how people vote in representation elections.20 Rather, the voting decision is believed to be much more practical and is based on the perceived costs and benefits of unionization as well as on individual attitudes toward unions. As such, two starting points for the voting decision are typically identified: frustration and personal utility maximization.21 In the frustration models, only dissatisfied workers or those frustrated by perceived workplace injustice will consider unionizing. In broad terms, frustration models can be thought of as psychological models because they are rooted in discrepancies between desired and actual employment conditions. In contrast, utility maximization models are economic models: Rational workers will consider unionization if it increases their well-being and the benefits outweigh the costs; job dissatisfaction is not required. Most studies support the importance of frustration/dissatisfaction rather than utility maximization.22 Job dissatisfaction and utility maximization are only the starting points, however. In order for these features to translate into a vote for unionization, three additional items are important: (1) A worker needs to feel that the union will be effective in improving things in the specific workplace, (2) a worker usually must not have negative views about unions in general, and (3) the social environment of the workplace must be favorable to unionization (see Figure 6.3). The first item is called union instrumentality: the degree to which an individual thinks a union will be instrumental (successful) in improving the workplace.23 Unsurprisingly, workers who do not think a union will make a positive difference in their workplace are unlikely to vote for a union even if they are dissatisfied with their wages, working conditions, or other aspects of their jobs. Workers' fears that a union will bring conflict to the workplace can be viewed as an important negative dimension of union instrumentality.24 In fact, union instrumentality is believed by some to be the most consistent predictor of union support.25 Workers' beliefs that their unions lack instrumentality also increase the likelihood that they will vote against union representation in decertification elections.26 The second item often identified as important for determining whether frustrated or dissatisfied workers will vote for a union is attitudes toward unions in general.27 Whereas union instrumentality is a belief about a specific union in your specific workplace, this second dimension pertains to broader images of unions. On the negative side, these general attitudes might include views of unions as autocratic, discriminatory, corrupt, outdated, bureaucratic, or conflictual. Negative stereotypes of unions are prominent in American culture, so unions need to work hard to overcome these antiunion attitudes in organizing drives.28 In contrast, general positive attitudes can include beliefs that unions improve working conditions, help ensure that workers are treated fairly, and lobby for needed protective labor legislation. Positive attitudes might stem from previous experience in unionized workplaces or from having a parent or a spouse who is a union member.29 The third item that affects whether job dissatisfaction translates into a prounion vote pertains to social aspects of the workplace. This reflects the basic fact that unionization is ultimately a social or collective rather than individual activity. When an individual thinks his or her coworkers support a union—especially respected coworkers—they are more likely to support it, too.30 More fundamentally, workplace-level employee solidarity and social identification are important factors in determining whether workers will try to correct perceived workplace injustices individually or collectively.31 In other words, if workplace solidarity is low and workers have more of an individual rather than collective social identity, job dissatisfaction is not likely to translate into pro-union support. Interestingly, sometimes low-wage immigrant workers are more likely to unionize than low-wage native workers because of the greater collective social identity of immigrant workers that results when they self-select or are forced into living together and working in concentrated occupational niches such as New York City's West African grocery delivery workers or Pakistani "black-car" drivers.32 A social context that results in support for unionization is also likely one in which there are effective leaders who can frame grievances as collective injustices requiring solidarity to redress.33 In putting these three factors together, it is important to remember that workers can face significant uncertainty during an organizing drive.34 They may be unsure about a union's ability to win improvements (union instrumentality). Longer organizing drives and being part of a diverse bargaining unit might increase their doubts. Workers might also question the extent to which coworkers will support a union, which can lead to a social dilemma as workers must confront how much energy to expend and whether to potentially put themselves at risk while knowing that if everyone free rides, an organizing drive will fail. This reinforces the importance of the social context, including social cohesion and solidarity, for the likely success or failure of an organizing drive. Finally, note that the description of individual decisions about whether to unionize captured by Figure 6.3 is largely North American. In the United States and Canada, the decision to join a union is closely linked to collective representation in the workplace. In continental Europe, in contrast, collective bargaining often occurs at the industry level and does not depend on whether a majority of workers in a workplace support a specific union (see Chapter 12). As such, an alternative explanation for why workers join unions focuses on political and ideological beliefs. But this applies more to European workers than North American workers; in some European countries, workers might also join unions for the pragmatic reason of getting access to unemployment insurance benefits.35 In the United States, however, whether to vote for and join a union is tightly linked to whether one wants collective bargaining in their workplace. Consequently, each NLRB representation election is an important contest for unions and companies, and campaigning by both sides to affect whether individuals vote for or against union representation is a significant component of the U.S. union organizing process.

UNION CAMPAIGNING

Like employers, unions can campaign to influence the four key determinants of individual voting decisions in NLRB representation elections (recall Figure 6.3). An example of a union campaign flyer is shown in Figure 6.5—note the emphasis on the implicit messages regarding job dissatisfaction (all other employees have a full subsidy for dependent health care) and union instrumentality (if we unionize, we can also win a full subsidy). But beyond some of these basic similarities between employer and union campaigning, there are significant differences. Labor law tries to balance the rights of employers and unions during the organizing process, but because of employers' power over their property and employees, the tactics available to each side differ. From a behavioral and strategic rather than legal perspective, U.S. unions have not traditionally devoted extensive resources to campaign tactics (though some unions are trying to change this practice).73 Yet in many ways, unions need to make more important decisions than employers. In fact, the organizing process is perhaps the primary area of labor relations in which unions are the proactive rather than the reactive party. Unions, not employers, need to figure out what type of representation philosophy fits best with various types of workers—factory workers, office employees, professionals, women, recent immigrants, and the like—and what type of campaign tactics support these philosophies. Communicating with Employees - From a legal standpoint, the laboratory conditions doctrine applies to union as well as employer actions. If union threats or harassment distorts employee free choice, the election results can be invalidated and a new election held. NLRB rulings, however, have traditionally been less likely to conclude that union promises undermine laboratory conditions.74 Rather, the NLRB typically holds the perspective that "Employees are generally able to understand that a union cannot obtain benefits automatically by winning an election but must seek to achieve them through collective bargaining. Union promises ... are easily recognized by employees to be dependent on contingencies beyond the union's control and do not carry with them the same degree of finality as if uttered by an employer who has it within his power to implement promises of benefits.75" - In fact, unions have little to offer employees except promises that they will try to win gains for the employees.76 One of the vexing problems for unions, however, is how to get this message to employees. - Recall from the previous section that employers can force employees to attend captive audience meetings and listen to captive audience speeches. At the same time, property rights can be used to enforce no solicitation rules banning union organizers from the workplace and the surrounding private property such as parking lots. So how can union organizers contact employees? In lieu of workplace access, once a representation election is scheduled, an NLRB rule requires employers to give the union a list of names, addresses, and available personal email addresses and phone numbers of the employees eligible to vote in the election. This voter list is called an Excelsior list (named after the 1966 Excelsior Underwear decision) and must be provided within two days of the NLRB scheduling an election.77 Unions can then contact employees or visit them at home.78 Unlike employers, unions are allowed home visits: "There is a substantial difference between the employment of the technique of individual interviews by employers on the one hand and by unions on the other. Unlike employers, unions often do not have the opportunity to address employees in assembled or informal groups, and never have the position of control over tenure of employment and working conditions which imparts the coercive effect to systematic individual interviews conducted by employers. Thus, not only do unions have more need to seek out individual employees to present their views, but, more important, [unions] lack the relationship with the employees to interfere with their choice of representatives thereby.79" - Some employees might view home visits as invasions of privacy, but with no workplace access, unions have little choice. Unions also use social media to provide campaign information, but they have to figure out how to direct employees to their feeds. Strategies to Create Worker Activism - Union campaigning has traditionally focused on distribution of flyers and letters through mailings and handbilling (the classic picture of a union organizer standing outside the factory gate handing out flyers).80 Even if we update this to include e-mail and social media blasts, individual workers are passive recipients of information; there is no personal contact, and they are not actively involved in building their union. Unions are increasingly supplementing these traditional tactics with new methods for developing personal relationships with workers—such as house calls and small group meetings—and for getting workers actively involved in the campaign, such as rallies and using workers as volunteer organizers (see Table 6.3). In fact, research has shown that these tactics are often more important than employer campaigning in influencing the outcome of NLRB representation elections, especially when used as a comprehensive union-building strategy.81 - Union organizing tactics are closely related to the type of message unions want to deliver. Passive campaign tactics like handbilling and social media blasts are consistent with the servicing model of union representation. Recall from the previous chapter that in this model workers consume union services, especially collectively bargained contracts and representation in the grievance procedure. Problems are solved for the workers, not by the workers. And who is the source of these problems? Management. The employer is therefore portrayed in campaign literature as the enemy. The union is a source of protection, and unionism becomes "us versus them" adversarialism (see Figure 6.6). - In contrast, the organizing model views unions as vehicles for worker participation and empowerment.82 Problems are not solved for workers—workers are directly involved in solving their own problems. Workers do not consume equity and voice—they participate in their attainment. Traditional passive union campaign tactics cannot be used to organize a new union based on active rank-and-file participation. A different type of unionism requires a different type of campaigning. To be successful, these campaigns use the types of tactics listed in Table 6.3—extensive one-on-one personal contact, active rank-and-file volunteers, and rallies to build collective identity. Much of the focus of labor advocates today is on developing these active campaign tactics to increase organizing success and build stronger labor unions.83 - These tactics that emphasize grassroots involvement rather than reliance on outside, full-time, paid union organizers reflect Saul Alinsky's "iron rule of organizing": "Never do for others what they can do for themselves."84 In such a campaign, existing workers take the lead in talking with their coworkers about the possibility of unionizing. To put this in perspective, consider how differently you might react if you were approached by a full-time union organizer whom you had never met or by a coworker whom you've known and respected for several years. Note also that existing employees have greater access to their coworkers than do outside union organizers because of the no solicitation rules and ability to use company e-mail systems discussed earlier in this chapter. Beyond the benefits that flow from volunteer rank-and-file organizers being better able to connect with their coworkers, the extensive use of such volunteers can build a much stronger local union organization. Following the iron rule of organizing creates new leaders by increasing personal responsibility, confidence, communication skills, and self-respect; creates a sense of vibrancy and life through participation; and roots the local union more strongly into the local community.85 - Many advocates believe that such tactics are necessary when employers seem to have the upper hand. As such, these new tactics can be aggressive and militant. A combination of public rank-and-file activism and alliances with community groups and worker centers has been effective in overcoming the language barriers and fears of immigrant and other marginalized workers by tapping into their strong social networks and by creating campaigns that are more responsive to the particular concerns of these workers.86 Perhaps the most heralded successes in this regard are the Justice for Janitors campaigns (see the accompanying "Labor Relations Application" box). The ongoing Fight for $15 movement in the fast-food industry has embraced similar tactics of public activism to organize and empower low-paid workers. - But these tactics that emphasize rank-and-file involvement do not have to be aggressively militant. Clerical and technical workers at Harvard University were successfully organized by a grassroots campaign that focused on developing personal relationships.87 This campaign explicitly rejected the traditional passive campaign tactics and the traditional "us versus them" adversarial mind-set. A prominent campaign theme was "It's not anti-Harvard to be pro-union." The workers were seeking empowerment, not protection. This philosophy is perhaps a good approach for organizing female workers, and it's no coincidence that the clerical and technical workers at Harvard and the lead organizers were overwhelmingly female.88 In fact, this organizing style is rooted in the ethics of care (Chapter 5), which is rooted in feminist thought. This emphasis on empowerment, involvement, and by extension independent judgment can also be a good model for professional employees who are looking for additional workplace voice but do not view their employers as enemies. Professional workers typically do not want outside third parties to "service" them and to create an adversarial, inflexible workplace.89 In organizing campaigns, professionals therefore "respond best to a democratic structure that allows them to take control of their own organization and use it to gain influence and respect and to enhance their professionalism."90 Again, unions are the proactive party in the organizing process and need to determine the best types of representation for different workplaces—and then develop comprehensive organizing campaigns to support them.

THE CERTIFICATION ELECTION PROCESS: HELP OR HINDRANCE?

The union certification process established by the NLRA in 1935 was initially a great victory for workers wanting union representation. Firing union supporters was made illegal, and rather than having to strike for recognition, workers could petition the NLRB for a democratic determination of whether a majority of workers favored unionizing. In the first few years after 1935, the NLRB used a variety of methods to determine majority status: authorization cards, petitions, union membership applications, employee affidavits of membership, strike participation, and employee testimony.91 The Taft-Hartley Act amendments in 1947, however, explicitly stated that if "a question of representation exists, [the NLRB] shall direct an election by secret ballot" [Section 9(c)]. Later the Supreme Court ruled that an employer can request a secret ballot election, even if majority status as indicated by signed authorization cards is not in doubt.92 Early NLRB decisions also excluded employers from participating in the certification process, but the Supreme Court and Section 8(c) of the Taft-Hartley Act explicitly authorize (noncoercive) employer participation in the process.93 The certification process has therefore changed from a quick procedure with minimal employer involvement to a formal and often lengthy election procedure with extensive employer participation, including not only campaigning but also legal challenges to proposed bargaining units and election results. Criticisms of the NLRA Certification Process - While the certification process has undergone this transformation, private sector union density has fallen from 35 percent in the 1950s to less than 10 percent today. Labor unions and their supporters frequently argue that employer resistance, including campaigning during representation elections, is primarily responsible for this extended decline in U.S. union density.94 To illustrate the difficulty of this process, one study of over 22,000 petitions for certification elections filed with the NLRB found that only 8,100 resulted in union election victories, and only 4,600 resulted in signed contracts within a year of victory.95 In other words, unions need to file five petitions to successfully gain one new bargaining unit with a signed contract. Three aspects of the NLRA certification process are criticized most frequently: unequal access to employees, the lack of penalties for violators of the NLRA, and the length of the election process. - First let's consider the criticism of unequal access. Employers can meet with employees informally, conduct captive audience meetings, and enforce no solicitation rules against union organizers while unions merely get a list of employee contact information after the election date is set. Some think this unequal access to employees gives employers an unfair advantage. Possibilities for reform include banning employer captive audience meetings, giving unions the right to hold captive audience meetings, requiring a certain number of campaign debates, or allowing unions to send e-mail messages using the company's system.96 In fact, for a few years in the 1950s, the NLRB granted unions a right of reply—if an employer used a captive audience speech, it also had to give the union an equal opportunity to address the employees.97 Other possibilities are to make Excelsior lists available at any time, or after a union collects 30 percent signed authorization cards.98 Others advocate greater union access to employees at work more generally.99 In particular, rather than placing the burden on the union to show that no other channels of communication exist, the burden could be on the employer to show that greater physical or electronic access for union organizers interferes with the business (the current standard for attempts to restrict employees from discussing unionization). - A second criticism of the NLRA certification process is the lack of penalties for violators. When a company violates Section 8(a)(3) by illegally discharging a union supporter, the worst penalty the company faces is minor: offering reinstatement with full back pay to the employee. And the company can reduce the back pay award by the amount the employee has earned elsewhere since discharge. Many see this as an inadequate deterrent to violating the NLRA and propose reforming the NLRA to allow compensatory and punitive damage awards (as is the case under antidiscrimination laws such as the Civil Rights Act) rather than allowing only back pay awards.100 With respect to elections, if the NLRB finds that laboratory conditions have been corrupted by employer, union, or third-party actions, the typical remedy is to throw out the election results and conduct a new election. In some instances this happens several times. In rare cases in which the NLRB believes that the union had majority support but extreme employer misconduct has eroded this support and has also been so pernicious as to make an election pointless, the NLRB can issue a Gissel bargaining order instead of trying to restore laboratory conditions and conducting a new election.101 A Gissel bargaining order requires the employer to recognize and bargain with the union even though the usual election results are lacking. As such, there are three ways in which a union can win recognition: voluntary recognition, an NLRB representation election, and a bargaining order. But bargaining orders are issued only rarely and only for the most extreme cases in which multiple, severe unfair labor practices have been committed. - A third criticism of the NLRB certification process is its length. There is always at least some gap between the filing of the election petition and the actual election, and employers' legal maneuverings can lengthen this period. Many believe that the worst violations occur during this period, when the campaigning on both sides is the most intense.102 - NLRB elections are supposed to be the democratic method for settling representation questions. But it's questionable whether NLRB elections fulfill the standards for democratic elections.103 Democratic elections should be free of intimidation, but many workers are fired for trying to form unions. Freedom of speech is essential for democratic elections, but employers can limit free speech in the workplace. Democratic elections also require reasonably balanced financial resources and access to voters, but employers typically have much greater resources and access to employees. - For labor supporters, therefore, the NLRB certification process has some major weaknesses. If these weaknesses are in fact responsible for the decline in U.S. union density, then reform is warranted. But there are other possible explanations for this decline. Structural, or compositional, changes are partly responsible: declining employment in traditionally unionized industries such as manufacturing combined with faster employment growth in Southern states, increased numbers of women in the labor force, and increases in education and skill levels.104 This structural explanation, however, begs important questions about why certain industries, occupations, regions, or workers are more or less receptive to unionization. Another possible explanation is that the demand for unions by nonunion employees has declined—perhaps because of increased employment laws, improved human resource management practices and alternative forms of employee voice, or unresponsive unions that have failed to stay in touch with the contemporary workforce.105 Union organizing might also be caught in a vicious cycle. Organizing drives are expensive so if fewer unions can afford them, then organizing activity will decline, which yields fewer new members and thus further reductions in new financial resources.106 There is no single, universally accepted explanation of why union density has declined, but the true answer is critically important for determining whether reforms to the NLRB certification process are needed. Organizing Outside the NLRB Certification Process - Without waiting for this academic debate to be settled, or for labor law to be reformed, more and more unions are explicitly trying to organize new workers outside the NLRB certification process. For example, the Justice for Janitors campaigns use public demonstrations to pressure commercial property owners and cleaning service contractors into recognizing unions without going through the NLRB election process. Unions are also trying to organize outside the NLRB by negotiating neutrality and card check agreements with employers in which employers agree to remain neutral in organizing drives and to recognize the union based on signed authorization cards.107 For example, thousands of AT&T wireless employees have unionized using this card check recognition process, including network technicians, retail sales associates, and call center workers. - The Hotel Employees and Restaurant Employees union (now UNITE HERE) has also occasionally succeeded in pressuring local governments to include these types of provisions in lease agreements when new hotels are constructed with public funds. In one case, the union staffed a table in the employee cafeteria to talk with interested workers and after 32 days had sufficient cards to be recognized through a card check recognition procedure.108 Compare this to the months (sometimes years) of hostility and warfare in standard NLRB elections. Finally, workers outside the scope of the NLRA (or other legislation) of course must also organize outside the NLRB. Notable examples are graduate assistants at private universities and agricultural workers. In California, for example, before a state law in the mid-1970s established a recognition election process, Cesar Chavez and the United Farm Workers were forced to rely on national boycotts of grapes and lettuce as well as public demonstrations (such as a 340-mile protest march from Delano to Sacramento) to win recognition for fieldworkers. At the same time, most companies resist card check agreements, and some labor activists have criticized campaigns for card check agreements that are high-level affairs pursued by national union staff disconnected from rank-and-file workers because organizing ultimately needs to be worker-focused.109 So while organizing outside the NLRB election process has become an important issue in labor relations, it is not without its own challenges. - In a different vein, one can argue that the NLRA obligates employers to bargain with unions on a members-only basis when a union represents less than a majority of employees.110 Therefore, another strategy for unions is to concentrate on building organizations within workplaces and signing up union members rather than on winning elections. The benefits that accrue to a small number of union members through members-only bargaining and representation can then build support among skeptical workers and perhaps ultimately create majority support and full-fledged exclusive representative status. This has the potential to drastically reshape the union organizing process, but conventional wisdom that emphasizes an all-or-nothing approach to winning majority support through NLRB elections is deeply ingrained in U.S. labor relations. Only time will tell whether members-only organizing and bargaining take hold legally and practically. Is the Employee Free Choice Act the Answer? - To remedy the perceived deficiencies in the NLRB certification election process, in recent years the labor movement has aggressively lobbied for the enactment of the Employee Free Choice Act. The Employee Free Choice Act would amend the NLRA in four significant ways. First, the act would provide for card check recognition by specifying, "If the [NLRB] finds that a majority of the employees in a unit appropriate for bargaining has signed valid authorizations designating the individual or labor organization specified in the petition as their bargaining representative and that no other individual or labor organization is currently certified or recognized as the exclusive representative of any of the employees in the unit, the [NLRB] shall not direct an election but shall certify the individual or labor organization as the representative." Second, if labor and management are unable to reach agreement on a first contract after a new union is certified, an arbitration panel would impose a two-year contract upon the parties. Third, penalties for violating the NLRA during an organizing drive or first contract campaign would be strengthened by providing for treble damages (three times an individual's back pay award) for unlawful discrimination [8(a)(3) unfair labor practices] and civil penalties up to $20,000 [8(a)(1) and (3) unfair labor practices]. Fourth, the NLRB would be required to seek injunctive relief in the courts when employers commit 8(a)(1) and (3) unfair labor practices during organizing drives and first contract campaigns. - The card check recognition part of the Employee Free Choice Act has received the most publicity. Supporters argue that a card check recognition procedure is needed because employers have hijacked the election process through sophisticated and sometimes illegal campaigning, manufactured legal delays, and other tactics that have been discussed in this chapter. Card check recognition is seen as a way to avoid many of these problems because these tactics are particularly severe in the weeks that lead up to an election. Card check recognition is common in Canada, and research shows that management opposition under card check regimes is significantly less effective in thwarting unionization efforts than in traditional election regimes.111 - Critics of the proposed Employee Free Choice Act, on the other hand, characterize it as antidemocratic by depriving workers of the secret ballot vote. There is a risk that workers will sign cards simply to stop prounion workers from pestering or threatening them, though survey evidence does not support this contention.112 By removing the election process, the Employee Free Choice Act is also portrayed as undermining informed employee decision making by reducing employer campaigning opportunities. But if employers were truly concerned with an informed electorate, they would not go to the lengths currently witnessed in denying unions access to employees to share their views. When he was Walmart CEO, Lee Scott was candid about his opposition to the act's intention of making organizing unions easier: "We like driving the car and we aren't going to give the steering wheel to anybody but us."113 - Although it has not received as much public attention, the proposal for first contract arbitration is also important. Successfully obtaining union recognition does not guarantee that a union contract will be achieved. Conventional wisdom is that 25-30 percent of newly unionized bargaining units fail to overcome managerial resistance and secure a first contract, but at least one estimate puts this figure as high as 45 percent.114 Critics argue that such a process would allow outsiders to impose terms and conditions of employment, but this is exactly the intent—the risk of arbitration is intended to provide an incentive to bargain rather than seeking ways to avoid negotiating a contract. In the words of a government-appointed commission that studied this issue, "once a majority of workers has voted [to unionize] the debate about whether a bargaining relationship is to be established should be over. At this point, the parties' energies and the public's resources should turn to creating an effective ongoing relationship that is suited to the needs of their workplace."115 Evidence from Canada indicates that mandated first contract arbitration encourages voluntary settlements.116 In the United States, arbitration is a well-established method for resolving bargaining disputes in the public sector and typically results in contracts that reflect compromise positions, not provisions that are out of line with competitors (see Chapter 8). - There are also ways to address the most controversial aspects of the Employee Free Choice Act. One possible change would be to add safeguards against the possibility of undue influence of union coercion in card signing campaigns, such as requiring signed cards to be accompanied by an individual's payment of the first month of union dues, setting the card check threshold at 55, 60, or even 70 percent of a defined unit of employees, and allowing the NLRB to require a secret ballot election if there are concerns about misinformation, misunderstandings, or union coercion.117 Another safeguard would be to allow employees to secretly withdraw their support during a cooling-off period before final certification was granted.118 An alternative is to provide for instant or snap elections in which a certification election must be held within a certain period, such as five days. Evidence from Canada suggests that this can be effective when paired with the expedited processing of unfair labor practice allegations.119 Yet another option is to allow employees to cast confidential votes online or via telephone anytime after a union demonstrates sufficient interest to the NLRB, and once the union achieves majority support, or some other threshold, these votes could be used to demand recognition from the employer.120 - Though unlikely during the Trump administration, passage of the Employee Free Choice Act would represent the most significant revision to the NLRA in 75 years, and it would likely make it easier for workers to successfully form unions and bargain collectively with their employers. But there would still be outstanding issues, such as unequal access to employees during organizing drives, the ability of unions to craft representational strategies that give workers what they want, and at a more fundamental level, the difficulty of getting an election held at all. Noting that the NLRA was enacted during a period of worker activism (recall the strikes of 1934), one could argue that with today's less activist workforce, "the law is like a cage built for a lion that instead confines a lamb" such that the steps for workers to get an election held are too onerous.121 This leads to a more significant reform possibility: requiring that NLRB elections be conducted automatically on an annual basis in all workplaces to see if workers want to be unionized or continue to be unionized, just like political elections are regularly held to determine political representation.122 - However, while there are various reform possibilities, the reality is that significant legal reform is unlikely in the foreseeable future. In 2014, for example, intense business lobby objections caused the NLRB to abandon its attempt to require employers to display a poster that informs employees of their existing rights and provides examples of illegal campaign tactics (see www.nlrb.gov/poster). This requirement would not have changed the election procedure; it only would have required displaying a poster similar to posters that are already required for minimum wages and other employee rights. That even this modest proposal generated significant controversy and legal challenge strongly suggests that the passage of the Employee Free Choice Act or other legislation that significantly changes the NLRA is unlikely. - In conclusion, this chapter has focused on the private sector union organizing process in the United States as governed by the NLRA and NLRB. This practice of using secret ballot elections to determine majority support and to bestow exclusive representation rights to a union is not representative of how unions are formed outside North America (see Chapter 12), but the process in the U.S. railway and airline industries under the Railway Labor Act and National Mediation Board is quite similar. Moreover, for occupations covered by a public sector bargaining law, the organizing process in the U.S. public sector also closely follows the NLRA philosophy and machinery (see the accompanying "Public Sector Labor Relations" box). And in both the U.S. private and covered public sectors, the certification of a majority union as the exclusive representative of employees obligates their employer to bargain with the union. After all, from a functional perspective this is why employees organize—to compel their employer to bargain with them collectively rather than individually. Bargaining is therefore the second major process of labor relations, and it is the topic of the next chapter.

NLRB REPRESENTATION ELECTIONS

Types of Elections - The several types of NLRB representation elections correspond to different questions of representation, but all have the same goal: to determine the wishes of the majority of employees. The most frequent type is the certification election, which is used in a nonunion location to ascertain if a majority of employees want to become unionized—that is, to designate a specific union as their bargaining agent. If so, the NLRB uses the election results to certify this union as the bargaining agent. Most certification elections have just one union on the ballot (so the choice is between a specific union and no union), but some have multiple unions vying for representation rights. In these cases, runoff elections between the top vote getters might be needed to determine the wishes of the majority. - The opposite of a certification election is a decertification election. This type of election is used to determine whether a majority of unionized employees no longer wish to be represented by their union. If so, this union is decertified and loses the right to represent and bargain for these employees. A small number of decertification elections decertify the existing union and certify a new union; this is a raid election in which employees can choose between their existing union, a challenging (raiding) union, and no union. Most decertification elections result in a workplace going from union to nonunion. The NLRB conducts around 1,500 representation elections each year; approximately 85 percent are certification elections (see Table 6.1).4 Unions win roughly two-thirds of certification elections and lose about two-thirds of decertification elections. This chapter largely focuses on certification elections. Most of the issues discussed are similar for decertification elections. Getting the NLRB to Conduct an Election - To request that the NLRB conduct a certification election, a group of employees or a union must file a petition form with the NLRB [you can see a blank 502 (RC) form at www.nlrb.gov/how-we-work/fillable-forms]. This petition must be supported by a demonstration of sufficient interest among the employees for such an election. "Sufficient interest" is defined by the NLRB as 30 percent. This is perhaps the most important use of signed authorization cards—the typical way to demonstrate sufficient interest is to provide signed authorization cards from at least 30 percent of the employees. Many unions wait until they have cards from more than 50 percent, but 30 percent is the legal minimum. Authorization cards are presumed valid for one year. Thirty percent is also the threshold for demonstrating that there is sufficient interest for holding a decertification election, though this would be demonstrated through signatures on an employee petition or other means, not by authorization cards. - In addition to verifying sufficient interest, the NLRB must deal with several other details before scheduling a representation election. First, unless there are unusual circumstances, the NLRB will not allow more than one election in a 12-month period. Second, elections will not be authorized within 12 months of any union certification.5 Third, a decertification election cannot be held when there is a valid collective bargaining agreement in place (up to a limit of three years); this is called the contract bar doctrine. - Finally, the NLRB must handle the most contentious aspect of the petition—defining the occupations and geographical locations included in a certification election. A union will be certified as the exclusive bargaining representative for employees when a majority of them support the union, but to what set of employees does this refer? For example, in a grocery store, does this mean just full-time cashiers, all cashiers, all hourly employees, all employees including managers, or some other group? For a grocery chain with multiple stores in a single city, is the unit limited to a single store or does it include multiple locations? Determining the Appropriate Bargaining Unit - When a petition for a certification election is filed with the NLRB, a definition of the relevant jobs and locations is proposed by the party filing the petition, such as this: "Included: All full-time and regular part-time table games dealers employed by the Employer at its facility in Las Vegas, Nevada." "Excluded: All other employees, dual rate employees, office clerical employees, poker dealers, floor supervisors, assistant casino managers, casino managers, guards and supervisors as defined in the Act.6" - If the employer objects to this definition, the NLRB must make a determination. Section 9(b) of the NLRA states that the NLRB "shall decide in each case whether, in order to assure to employees the fullest freedom in exercising the rights guaranteed by this Act, the unit appropriate for the purposes of collective bargaining shall be the employer unit, craft unit, plant unit, or subdivision thereof." As such, the group of occupations and locations relevant to the certification election is referred to as the appropriate bargaining unit; employees in these occupations can vote in the election and will be represented by the union if the union wins the election. - But how should the appropriate unit be determined? Security guards cannot be in the same unit with other employees. Individuals who are not defined as employees by the NLRA, such as supervisors and managers, are excluded from NLRB-defined bargaining units. In some cases, this can be a critical issue and can even end an organizing drive if enough employees are excluded. College professors can be seen as managerial because of their control over curricula, courses, and admissions; registered nurses can be seen as supervisors because they direct the work of less-skilled health care workers (more about this soon); and graduate students are often ruled to be students rather than employees.7 - Once the supervisory, managerial, and other exclusions are resolved, the NLRB's determination of the appropriate bargaining unit is generally based on grouping together the jobs that share a community of interest. In manufacturing it is common to include all production and maintenance employees in a single facility; this is called an industrial unit because it follows the industrial unionism model. Drivers, clerical employees, and workers at other locations of the same employer may or may not be included based on specific circumstances, such as whether there are common human resource policies or significant similarities and interactions between employee groups.8 In contrast, under the Railway Labor Act, bargaining units are narrow in occupation but broad in geography and include all of an employer's locations.9 But under the NLRA there is great diversity: Some units span many occupations and diverse locations, whereas under other circumstances the NLRB might rule that a single occupation in one location is appropriate (a craft rather than industrial unit). In some cases a bargaining unit consists of only two employees. The NLRB's determination of the appropriate bargaining unit can be contentious because the union and the employer each want the unit defined to maximize their own chance of winning the election. In fact, unions fare significantly better in smaller rather than larger elections, and in elections with more homogeneous rather than heterogeneous skill and racial groups.10 - Ultimately determining the appropriate bargaining unit, including who is a supervisor or a managerial employee and which employees share a community of interest, must be done case by case because the details can vary from one workplace to another. The hearing for one case involving college professors took 19 days and resulted in a 112-page decision.11 The resulting delays in some of these cases can weaken or end an organizing drive. In fact, once the appropriate bargaining unit is determined, the petition for a certification election might no longer be supported by signed authorization cards from at least 30 percent of the relevant employees. For example, in the Harvard University case discussed in the accompanying "Labor Relations Application," when the NLRB expanded the bargaining unit in 1984 to include all Harvard University clerical and technical workers, not just those in the medical area, the size of the bargaining unit tripled from 1,200 to 3,600 employees. The union had been collecting cards only in the medical area, so with this expansion it no longer had 30 percent. In such a situation, the union must return to the start of the time line in Figure 6.1—building support and collecting signed authorization cards. In the Harvard University case, the union spent nearly four additional years collecting enough cards to demonstrate sufficient interest for a certification election based on the new unit.12 But not all unions are successful in this endeavor; and because of changed unit definitions, antiunion campaigns, delays litigating unfair labor practice allegations, and other events that erode support for unionization, fewer than 70 percent of all petition filings result in elections.13 The Supervisor Controversy - The exclusion of supervisors from NLRB-determined bargaining units and from the protections of the NLRA against reprisal for union activity has become particularly important as the skill requirements for many jobs have increased: If everyone who occasionally directs another worker to do something is deemed to be a supervisor, countless workers will find themselves outside the NLRA protections. Unions also fear that companies are intentionally giving employees just enough responsibility to make them legally seen as supervisors with the express intent of removing them from the NLRA protections and thus making it harder for employees to unionize. Each time this issue is brought before the NLRB, it must determine who is and is not a supervisor by applying the statutory definition contained in the NLRA: "2(11) The term "supervisor" means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment." - The key legal difficulties are how to interpret these functions (e.g., what do "assign," "responsibly direct," and "independent judgment" mean?) and how to weigh them (e.g., what if only 10 percent of a worker's tasks are supervisory?).14 If one uses a loose interpretation, many workers could be seen as supervisors and therefore excluded from the protections of the NLRA, whereas stricter interpretations would exclude fewer workers. For example, consider what it means to "assign other employees." If this is seen expansively as including making any kind of task instruction, then nurses, teachers, and many other workers who work with aides or other less-skilled coworkers would be seen as supervisors. On the other hand, a stricter interpretation sees "assigning other employees" as pertaining to significant employment conditions such as the employee's position within the organization, their work location, and their work hours—authority that far fewer workers possess over less-skilled coworkers.15 In recent years, this has become a politically contentious issue, with the NLRB tending toward stricter interpretations when the NLRB is appointed by a Democratic president, and tending toward looser interpretations when appointed by a Republican president. Remember that being excluded from NLRA protection does not mean it is illegal to form a union. But by splitting workers deemed to be supervisors or professionals from other employees, unions can be weakened, and without NLRA protection for the excluded employees, they can be fired for trying to organize. Looser interpretations leading to increased supervisory exclusions from the NLRA are therefore seen by the labor movement as another example of the continued erosion of employee rights to form labor unions. Consequently, the labor movement supports legislative change to remove "assign" and "responsibly" directly from the definition of supervisor and would require the other supervisory functions to be a majority of an individual's job in order for him or her to be considered a supervisor. On the other hand, the Obama-appointed board was criticized by business groups for its narrow interpretations, such as rulings that tugboat captains are not supervisors.16 These controversies over who is a supervisor are likely to continue. Scheduling the Election - Once all the details are ironed out—sufficient interest, timeliness, and unit definition—the NLRB will schedule an election. Elections are supervised and monitored by NLRB officials and usually take place at the employees' worksite—aboard ships and in factories, warehouses, offices, restaurants, movie studios, sports stadiums, and train yards. In special circumstances mail ballots are allowed. Each eligible worker can vote using a secret ballot. Voter turnout is often quite high—around 80 percent on average.17 The speed with which elections occur has long been a contentious issue. Challenges to a unit definition can drastically lengthen the election timetable, and a few elections might not occur until a year or more after a petition is filed. In this period between filing the petition and conducting the election, the most intense campaigning by both unions and employers takes place—all with the intent of shaping how each individual worker votes in the election. - In 2015, the Obama-appointed NLRB implemented new "quickie election" rules to streamline the process and reduce delays. This includes postponing hearings on some issues until after an election. For example, if a union wins or loses by a wide margin, then a small number of disputed ballots are irrelevant. Rather than delaying the election by having a hearing to resolve these disputes ahead of time, a hearing will be held after the election only if it's necessary to determine the outcome. Before these changes were implemented, half of all elections were held within 38 days of a petition being filed; now half of all elections are held within 23 days and 98 percent are held within 56 days.18 Due to the shortened timeframe for conducting an election, SHRM and other business groups labeled this the "ambush election" rule.19 In 2018, the Trump-appointed NLRB sought comments on these election rules which indicates that there might be further changes, but as of early 2019 the quickie election rules are still in place.

The previous chapter described the organizational structure of U.S. unions—which are typically large, bureaucratic organizations with many members and locations (like many corporations). In contrast, to start this chapter, let's return to the fundamental conception of a labor union described in Chapter 1: A group of workers who join together to influence the nature of their employment. Suppose some employees want to get a vacation policy changed. The individuals can "self-organize" by meeting with each other and then collectively approach management to ask that the policy be changed. As long as these activities do not interfere with their work, we saw in Chapter 5 that U.S. labor law protects the members of this group from reprisals so they cannot be fired, demoted, or disciplined. But they can be ignored; management has no legal obligation to deal with this group. To force the employer to bargain with them, the employees must organize themselves into a union. So if the group's request to change the vacation policy is ignored, the individuals have four options: (1) They can look for work elsewhere, (2) they can endure the existing vacation policy, (3) they can be disruptive and possibly cause the employer to reconsider (while running the risk of being disciplined for their disruptive activities), or (4) they can try to form a labor union. If they successfully form a legally recognized union, the employer will have a legal obligation to bargain with them.

You can probably think of numerous ways in which a union can be formed. A few employees could initiate a strike and then round up support (as in the 1930s sit-down strikes); union supporters could get workers to sign cards or a petition and present the results to management along with a threat to strike if management ignores their request; or the employees could have a secret ballot election in which the union and employer must abide by the decision of the majority. Since the passage of the National Labor Relations Act (NLRA) in 1935, U.S. public policy has favored the last option. Most U.S. unions are organized (formed) through secret ballot elections administered by the National Labor Relations Board (NLRB). The first major U.S. labor relations process—the organizing process—is therefore principally shaped by the NLRA and the procedural and legal aspects of NLRB elections. These representation elections answer questions of whom the employees want to represent them. The most significant type of representation election is a certification election—an election to determine whether a union will be certified as the bargaining agent of the employees. Both the U.S. union organizing process and this chapter are largely about certification elections—how employees can get an election held, what determines how individuals vote, what constitutes acceptable or objectionable election conduct by both labor and management, how union and employer strategies affect employee voting behavior, and why the election process is heavily criticized by labor unions.