Unit 7 Assess

The Union Drive and Election

It is through the union drive and election that a union tries to be recognized to represent employees. To protect themselves and their employers, supervisors need to understand this process. It has five basic steps.28

Step 1. Initial Contact

During the initial contact stage, the union determines the employees’ interest in organizing, and establishes an organizing committee.

The initiative for the first contact between the employees and the union may come from the employees, from a union already representing other employees of the firm, or from another union. In any case, there is an initial contact.

Once an employer becomes a target, a union official usually assigns a representative to assess employee interest. The representative visits the firm to determine if enough employees are interested in a campaign, identifies employees who would make good leaders in the organizing campaign, and creates an organizing committee. The aim is to educate the committee about the benefits of forming a union and the law and procedures for forming a local union.

The union must follow certain rules when it starts contacting employees. The law allows organizers to solicit employees for membership as long as the effort doesn’t endanger the performance or safety of the employees. Therefore, much contact takes place off the job, perhaps at home or at places near work. Organizers can also safely contact employees on company grounds during off hours (such as lunch or break time). Yet, in practice, there will be much informal organizing going on at the workplace as employees debate organizing. Sometimes the first inkling management has is the distribution of handbills soliciting union membership.

Much soliciting will be via e-mail, but prohibiting employees from sending pro-union e-mail messages using company e-mail isn’t easy. You can’t discriminate against union activities. Therefore, prohibiting only union e-mail may violate NLRB rules. And barring workers from using e-mail for all non–work-related topics may be futile if the company actually does little to stop it.

Labor Relations Consultants

Both management and unions typically use “labor relations consultants.” These may be law firms, researchers, psychologists, labor relations specialists, or public relations firms. Some are former union organizers.29

For the employer, the consultant’s services may range from ensuring that the firm properly fills out routine labor relations forms to managing the union campaign. Unions may use public relations firms to improve their image, or specialists to manage corporate campaigns. (These pressure shareholders and creditors to get management to agree to the union’s demands.)

Some say consultants encourage questionable tactics. One tactic is to delay the union vote with lengthy hearings at the NLRB. The longer the delay in the vote, they argue, the more time the employer has to drill anti-union propaganda into the employees.

Union Salting

Unions are not without creative ways to win elections. The National Labor Relations Board defines union salting as “placing of union members on nonunion job sites for the purpose of organizing.” Critics claim that “salts” interfere with business operations and harass employees.30 The U.S. Supreme Court ruled that union salts are “employees” under the National Labor Relations Act; the NLRB will require that employers pay salts if they fire them for trying to organize.31 The solution is to know whom you’re hiring. However, not hiring someone solely because he or she might be pro-union or a union salt would be discriminatory.32

union salting

A union organizing tactic by which workers who are in fact employed full-time by a union as undercover organizers are hired by unwitting employers.

Step 2. Obtaining Authorization Cards

For the union to petition the NLRB for the right to hold an election, it must show that a sizable number of employees may be interested in organizing. Therefore, the next step for union organizers is to try to get the employees to sign authorization cards (see Figure 15-2). Among other things, these usually authorize the union to seek a representation election and state that the employee has applied to join the union. Thirty percent of the eligible employees in an appropriate bargaining unit must sign before the union can petition the NLRB for an election (although in Figure 15-2 this employer has agreed with SEIU to recognize the union without a follow-up vote if a majority of employees sign the authorization cards).

authorization cards

In order to petition for a union election, the union must show that at least 30% of employees may be interested in being unionized. Employees indicate this interest by signing authorization cards.

FIGURE 15-2 Sample Authorization Card

This is a dangerous time for supervisors. During this stage, both union and management use propaganda. The union claims it can improve working conditions, raise wages, increase benefits, and generally get the workers better deals. Management can attack the union on ethical and moral grounds and cite the cost of union membership. Management can also explain its accomplishments, express facts and opinions, and explain the law applicable to organizing campaigns. However, neither side can threaten, bribe, or coerce employees. And an employer (or supervisor) may not make promises of benefits to employees or make unilateral changes in terms and conditions of employment that were not planned to be implemented prior to the onset of union organizing activity.

Steps to Take

Management can take several steps with respect to the authorization cards. For example, the NLRB ruled an employer might lawfully inform employees of their right to revoke their authorization cards, even when employees have not asked for such information. The employer can also distribute pamphlets that explain just how employees can revoke their cards. However, the law prohibits any material assistance to employees such as postage or stationery.

Similarly, it is an unfair labor practice to tell employees they can’t sign a card. What you can do is prepare supervisors so they can explain what the card actually authorizes the union to do—including subjecting the employee to union rules. The union, for instance, may force the employee to picket and fine any member who does not comply. Such explanations can be an effective weapon.

One thing managers should not do is look through signed authorization cards if confronted with them by union representatives. The NLRB could construe that as an unfair labor practice, as spying on those who signed. Doing so could also later form the basis of a charge alleging discrimination due to union activity, if the firm subsequently disciplines someone who signed a card.

During this stage, unions can picket the company, subject to three constraints: (1) The union must file a petition for an election within 30 days after the start of picketing; (2) the firm cannot already be lawfully recognizing another union; and (3) there cannot have been a valid NLRB election during the past 12 months.

Step 3. Hold a Hearing

Once the union collects the authorization cards, one of three things can occur. If the employer chooses not to contest union recognition at all, then the parties need no hearing, and a special “consent election” is held. If the employer chooses not to contest the union’s right to an election, and/or the scope of the bargaining unit, and/or which employees are eligible to vote in the election, no hearing is needed and the parties can stipulate an election. If an employer does wish to contest the union’s right, it can insist on a hearing to determine those issues. An employer’s decision about whether to insist on a hearing is a strategic one. Management bases it on the facts of each case, and on whether it feels it needs more time to try to persuade employees not to elect a union.

Most companies do contest the union’s right to represent their employees, claiming that a significant number don’t really want the union. It is at this point that the National Labor Relations Board gets involved. The union usually contacts the NLRB, which requests a hearing. It then sends a hearing officer to investigate. The examiner sends both management and union a notice of representation hearing (NLRB Form 852; see Figure 15-3) that states the time and place of the hearing.

The hearing addresses several issues. First, does the record indicate there is enough evidence to hold an election? (For example, did 30% or more of the employees in an appropriate bargaining unit sign the authorization cards?) Second, the examiner decides what the bargaining unit will be. The bargaining unit is the group of employees that the union will be authorized to represent and bargain for collectively. If the entire organization is the bargaining unit, the union will represent all nonsupervisory, nonmanagerial, and nonconfidential employees, even though the union may be oriented mostly toward blue-collar workers. (Professional and nonprofessional employees can be included in the same bargaining unit only if the professionals agree.) If your firm disagrees with the examiner’s bargaining unit decision, it can challenge the decision. This will require a separate NLRB ruling.

bargaining unit

The group of employees the union will be authorized to represent.

The NLRB hearing addresses other issues. These include, “Does the employer qualify for coverage by the NLRB?” and “Is the union a labor organization within the meaning of the National Labor Relations Act?”

If the results of the hearing are favorable for the union, the NLRB will order holding an election. It will issue a Notice of Election (NLRB Form 707) to that effect for the employer to post.

FIGURE 15-3 NLRB Form 852: Notice of Representation Hearing

Step 4. The Campaign

During the campaign that precedes the election, union and employer appeal to employees for their votes. The union will emphasize that it will prevent unfairness, set up grievance and seniority systems, and improve wages. Union strength, they’ll say, will give employees a greater voice in disciplinary matters and in determining wages and working conditions. Management will stress that improvements like those don’t require unions and that wages are equal to or better than with a union. Management will also emphasize the cost of union dues; the fact that the union is an “outsider”; and that if the union wins, a strike may follow. It can even attack the union on ethical and moral grounds, while insisting that employees will not be as well off and may lose freedom. But neither side can threaten, bribe, or coerce employees.

Step 5. The Election

The election occurs within 30 to 60 days after the NLRB issues its Decision and Direction of Election. The election is by secret ballot; the NLRB provides the ballots (see Figure 15-4), voting booth, and ballot box, and counts the votes and certifies the results.

The union becomes the employees’ representative if it wins the election, and winning means getting a majority of the votes cast, not a majority of the total workers in the bargaining unit. (Also keep in mind that if an employer commits an unfair labor practice, the NLRB may reverse a “no union” election. Supervisors must therefore be careful not to commit unfair practices.)

FIGURE 15-4 Sample NLRB Ballot

Several things influence whether the union wins the certification election. Unions have a higher probability of success in geographic areas with a higher percentage of union workers. High unemployment seems to lead to poorer results for the union, perhaps because employees fear that unionization efforts might result in reduced job security or employer retaliation. Unions usually carefully pick the size of their bargaining unit (all clerical employees in the company, only those at one facility, and so on) because the larger the bargaining unit, the smaller the probability of union victory. The more workers vote, the less likely a union victory, probably because more workers who are not strong supporters vote. The union is important, too: The Teamsters union is less likely to win a representation election than other unions, for instance.33

How to Lose an NLRB Election

Over the years, unions typically won about 55% of elections held each year.34 According to expert Matthew Goodfellow, there is no sure way employers can win elections, but several sure ways to lose one.35

Reason 1. Asleep at the Switch

In one study, in 68% of the companies that lost to the union, executives were caught unaware. In these companies, turnover and absenteeism had increased, productivity was erratic, and safety was poor. Grievance procedures were rare. When the first reports of authorization cards began trickling in, they usually responded with letters describing the company as “one big family” and calling for a “team effort.”36

Reason 2. Appointing a Committee

Of the losing companies, 36% formed a committee to manage the campaign. The problems here are that: (1) Promptness is essential in an election situation, and committees move slowly. (2) Most committee members are NLRB neophytes, whose views reflect hope rather than experience. (3) A committee’s decision is usually a compromise decision, not necessarily the most effective one.

This expert suggests giving full responsibility to one decisive executive. A human resource director and a consultant or advisor with broad experience in labor relations should assist this person.

Reason 3. Concentrating on Money and Benefits

In 54% of the elections studied, the company lost because top management concentrated on money and benefits. As Goodfellow says:

Employees may want more money, but quite often, if they feel the company treats them fairly, decently, and honestly, they are satisfied with reasonable, competitive rates and benefits. It is only when they feel ignored, uncared for, and disregarded that money becomes a major issue to express their dissatisfaction.37

Reason 4. Delegating too Much to Divisions

For companies with plants scattered around the country, unionizing one plant tends to lead to unionizing others. The solution is, don’t abdicate all personnel and industrial relations decisions to plant managers.38 Dealing effectively with unions—monitoring employees’ attitudes, reacting properly when the union appears, and so on—requires centralized guidance from the main office and its human resources staff.