The Labor Relations Process

THE LABOR RELATIONS PROCESS

Holley | Ross | Wolters

11th Edition

THE LABOR RELATIONS PROCESS

Holley | Ross | Wolters

11th Edition

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T H

E L

A B

O R

R E

L A

T IO

N S

P R

O C

E S

S

Holley Ross

Wolters

11th Edition

76209_cvr_ptg01_hires.indd 1 14/03/16 4:06 PM

The Labor Relations Process

ELEVENTH EDITION

Australia • Brazil • Mexico • Singapore • United Kingdom • United States

The Labor Relations Process, Eleventh Edition

William H. Holley, Jr., William H. Ross, and Roger S. Wolters

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Brief Contents

Preface xiii Acknowledgements xvi About the Authors xvii

Part 1 Recognizing Rights and Responsibilities of Unions and Management

Chapter 1 Union Management Relationships in Perspective 4

Chapter 2 The History of Labor Management Relations 43

Chapter 3 Legal Influences 89

Chapter 4 Unions and Management: Key Participants in the Labor Relations Process 134

Chapter 5 Why and How Unions Are Organized 197

Part 2 The Bargaining Process and Outcomes

Chapter 6 Negotiating the Labor Agreement 266

Chapter 7 Economic Issues 325

Chapter 8 Administrative Issues 387

Chapter 9 Resolving Negotiation (Interest) Disputes and the Use of Economic Pressure 437

Part 3 Administering the Labor Agreement

Chapter 10 Contract Administration 496

Chapter 11 Labor and Employment Arbitration 537

Chapter 12 Employee Discipline 600

Part 4 Applying the Labor Relations Process to Different Labor Relations Systems

Chapter 13 Labor Relations in the Public Sector 650

Chapter 14 Labor Relations in Multinational Corporations and in Other Countries 701

Appendix A Collective Bargaining Negotiations Exercise 756

Author Index 759

Subject Index 762

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Contents

Preface xiii Acknowledgements xvi About the Authors xvii

Part 1 Recognizing Rights and Responsibilities of Unions and Management

Chapter 1 Union Management Relationships in Perspective 4

Phases in the Labor Relations Process 5 Elements in the Labor Relations Process 6

Focal Point of Labor Relations: Work Rules 6 Key Participants in the Labor Relations Process 10

Three Basic Assumptions Underlying U.S. Labor Relations 13 Constraints or Influences Affecting Participants Negotiation and Administration of Work Rules 14 State of the Economy: National, Industrial, and Firm-Specific Indicators 14 International Forces 19

Labor Relations in Action: Getting Online with Labor Relations Research 21 Public Opinion 22

Union Membership 24 Labor Relations in Action: Unions and Worker Centers 25

Labor Relations in Action: Are Unions Still Relevant? 28

Case Study 1-1: Was a Troublemaker Laid Off for Sharing Wage Information? Or for Business Reasons? 37

Case Study 1-2: Discharge for Whistleblower Activity 38

Classroom Exercise 1.1: Work Rules 41

Classroom Exercise 1.2: Union Membership Trend 41

Classroom Exercise 1.3: Word Association 41

Chapter 2 The History of Labor Management Relations 43

1869 to World War I 44 Early Legal Developments Involving Labor Management Relationships (1806 1931) 45 Civil Conspiracy Doctrine 47 Application of Antitrust Legislation to Labor Unions 47 Emergence of National Labor Organizations 49

Labor Relations in Action: Labor History Time Line: Selected Events 50 The Knights of Labor (KOL) 52 Strategies to Accomplish the KOL s Goals 53 Reasons for the KOL s Failure and Demise 54 The Eight-Hour Workday Movement and the Haymarket Riot 55 Origin and Goals of the American Federation of Labor 56 Strategies and Tactics of the AFL 58 Organization of the AFL 58 The Homestead Incident 59 The Pullman Strike 60

iv

Labor Relations in Action: Unions and the Civil Rights Movement 61 The Industrial Workers of the World 63

World War I to World War II 66 Union Organizing after World War I: Problems and Prospects 66

Labor Relations in Action: The American Labor Movement as Portrayed in Fiction 67

Opposition from Employers 68 Labor s Inability to Overcome Anti-Union Sentiment 70 Rise of the CIO and Industrial Unionism 71 Strong CIO Leadership 72 Realistic Goals 72 The Effective Use of Sit-Down Strikes 73 Passage of the National Labor Relations (Wagner) Act 73 Changes in Employees Attitudes 74

World War II to the Present 74 Developments in Organized Labor since World War II 75 New Collective Bargaining Issues 75 Increased Organization of Women, Minorities, Younger Age Employees, and Professionals in the Public-Sector and Private-Sector Service Industries 77 Merger of the AFL and CIO 77 Formation of the Change to Win Federation 78 Aspects of Organized Labor Unchanged since World War II 79 Unions and Politics 79 Difficulty in Achieving Consensus among Unions and among Members 79 Pursuit of Short-Range Economic and Job Security Goals Instead of Long-Range Reform 80

Chapter 3 Legal Influences 89

Origin of Labor Relations Law 91 The Norris La Guardia Act 93 The National Industrial Recovery Act of 1933 94 The National Labor Relations (Wagner) Act of 1935 95

Changes under the Labor Management Relations (Taft Hartley) Act 96 Labor Management Reporting and Disclosure (Landrum Griffin) Act 98 National Labor Relations Board 99 Labor Relations in Action: Selected Labor Relations Cases Decided by the U.S. Supreme Court and the NLRB 101

Employer and Employee Coverage under the LMRA, as Amended 104 Concerted and Protected Employee Activity 107 NLRB Unfair Labor Practice Procedure 108 Unfair Labor Practice Remedies 110 Assessment of the LMRA, as amended, and NLRB Administration 112

Transportation-Related Labor Relations Law (Railway and Airlines) 114 Assessment of the RLA 116 Deregulation Legislation in Railroads and Airlines 117 Promising Developments Regarding the RLA 117 Additional Laws That Affect Labor Relations 118 Employee Retirement Income Security Act of 1974 118 The Americans with Disabilities Act of 1990 119 Bankruptcy Act 119 Worker Adjustment and Retraining Notification Act 119 Racketeer Influenced and Corrupt Organizations Act of 1970 120 Employment Discrimination Laws and Executive Orders 120 Other Related Labor Relations Laws 121

Case Study 3-1: The Great Temperature Debate 128

Case Study 3-2: Independent Contractors? Or Employees? 128

Case Study 3-3: NLRB Jurisdiction over a Private Charter School 131

Case Study 3-4: Determination of Supervisory Status 132

Contents v

Chapter 4 Unions and Management: Key Participants in the Labor Relations Process 134

Goals and Strategies: Management and Unions 135 Company Strategic Planning 136 Nonunion Companies Strategies 137

Labor Relations in Action: Post-Electromation: Tests to Determine Whether Teams and their Activities Are in Violation of 8(a)(2) of NLRA 142

Unionized Companies Strategies 142 Union Strategic Planning 145 Company Organization for Labor Relations Activities 149 Union Governance and Structure 151

The Local Union 154 Differences between Local Craft and Industrial Unions 155 Government and Operation of the Local Union 157 The National or International Union 159 Leadership and Democracy 161

Labor Relations in Action: Rules Governing Union Officer Elections (U.S. Department of Labor) 162

Profile of Union Leaders 162 Administration 163 Professional Staff Members 163 Services to and Control of Locals 164 Dues, Fees, and Distribution of Funds 165 Mergers of National Unions 166 Intermediate Organizational Units 167 Independent Unions 167 Employee Associations 168 The American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) 168 Organizational Structure 169

Union Corruption and the Landrum Griffin Act 175 Union Security 177

Union Security Provisions 178 Closed Shop 178 Union Shop 178 Agency Shop 179 Contingency Union Shop 181 Union Hiring Hall 181 Preferential Treatment Clause 182 Dues Checkoff 182 Right-to-Work Laws: Controversy and Effects 182 Arguments for Right to Work Laws 185 Arguments for Abolishing Right-to-Work Laws 186 Recent U.S. Supreme Court Decision 187

Case Study 4-1: Employee Rights under the Landrum Griffin Act 194

Case Study 4-2: Financial Core Membership Rights under the Beck Decision 195

Chapter 5 Why and How Unions Are Organized 197

Why Unions Are Formed 198 Work and Job Conditions 198 Employees Backgrounds and Needs 200 Influences on Employees Votes for and against Unions 201 The Union s Challenge of Organizing the Diverse Workforce 203 Organizing Professional Employees 203 Activities of the Union in Organizing Employees 205 Activities of the Company in Union Organizing 209 Unintended Consequences of Anti-Union Behavior 212 Methods for Organizing Unions 212

Labor Relations in Action: Volkswagen and the United Auto Workers Chattanooga, Tennessee 216

Labor Relations in Action: Objections to Joining the Union 218

Labor Relations in Action: Examples of Employer Messages during a Representation Election Campaign 220

Labor Relations in Action: Interesting Comparison: FedEx and UPS (United Parcel Service) 224

Duties of the Exclusive Bargaining Agent and Employer 230 After Election Loss by the Union 230 Proposed Mandatory Secret Ballot Elections versus Employee Free Choice Act (EFCA) 230

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Conduct of the Representation Election Campaign 233 Campaign Doctrines and NLRB Policies 233 Captive Audience 24-Hour Rule 234 Polling or Questioning Employees 234 Distribution of Union Literature and Solicitation by Employees on Company Property 235 Showing Films during Election Campaigns 235 Use of E-Mail, Internet, and Social Media 236 New Union Strategies 237

Removing a Labor Union 238 Labor Relations in Action: Union Salting: A New Union-Organizing Tactic 239

Case Study 5-1: Are These Employees Engaged in a Protected Concerted Activity? 251

Case Study 5-2: Are the Employees Involved in Activities That Are Legal? 251

Case Study 5-3: Are the Field Supervisors Supervisors under the National Labor Relations Act (NLRA)? 252

Case Study 5-4: Are These Employees Activities Legally Protected under the National Labor Relations Act? 253

Case Study 5-5: Did the Company Violate the Section 8(a)(1) of the LMRA When It Discharged the Employee? 255

Case Study 5-6: Bulletin Board Use 257

Case Study 5-7: Nonemployee Union Solicitation Activity 258

Case Study 5-8: Campaign Threats or Implied Promise of Benefit? 259

Case Study 5-9: The T-Shirt Offer and Picnic Photographs 261

Classroom Exercise 5.1: Designing Union Election Campaign Literature 263

Part 2 The Bargaining Process and Outcomes

Chapter 6 Negotiating the Labor Agreement 266

Collective Bargaining: Definition and Structure 267 Bargaining Structure 268 The Bargaining Unit 270

Negotiation Preparation Activities 274 Selection of the Negotiating Team and Related Bargaining Responsibilities 274 Proposal Determination and Assessment 276 Formulating Proposals 277 The Bargaining Range 279

Labor Relations in Action: Bargaining Goals for Registered Nurses 282 Costing Contract Proposals 283

Understanding Collective Bargaining Behavior: A Framework 285 Distributive and Integrative Bargaining: Two Different Approaches 285 Strategies and Tactics 286 The Bargaining Power Model 287 Factors Potentially Affecting Both Bargaining Power Equations 290 Factors Affecting a Union s Disagreement and Agreement Costs 290 Factors Affecting Management s Agreement and Disagreement Costs 291 Complexities Associated with the Bargaining Power Model 291 Attitudinal Structuring 292 Intraorganizational Bargaining 292

Ethical and Legal Considerations in Collective Bargaining 293 The Legal Duty to Bargain in Good Faith 295 Type of Bargaining Subject 295

Specific Bargaining Actions 297 Totality of Conduct 298 Bargaining over

Contents vii

Managerial Rights 300 Successor Employer Bargaining Obligations 303 Collective Bargaining under Bankruptcy Proceedings 303 Legal Remedies

Associated with Violations of the Duty to Bargain in Good Faith 304 Contract Ratification 306 Explanation of Voting Behavior 306

Labor Relations in Action: Contract Ratification Process Affecting East and Gulf Coast Ports 307

Reasons for Rejection of Tentative Contract Agreements 308 Case Study 6-1: The Funeral Leave Policy Proposal 317

Case Study 6-2: Classification of a Bargaining Subject 318

Case Study 6-3: The Influenza Work Rule 319

Case Study 6-4: Refusal to Furnish Requested Information 322

Case Study 6-5: The Mileage Reimbursement Policy 323

Chapter 7 Economic Issues 325

Industrial Wage Differentials 327 Occupational Wage Differentials and the Role of Job Evaluation and Wage Surveys 329

Evaluating Jobs within the Organization 329 Surveys to Compare Firms Wage Structures 331 Production Standards and Wage Incentives 332 Wage-Setting Criteria: Arguments Used by Management and Union Officials in Wage Determination 336

Labor Relations in Action: Living Wage Ordinances: What are They? What Are Their Effects? 337

Differential Features of the Work: Job Evaluation and the Wage Spread 338 Two-Tier Wage Plans 340

Labor Relations in Action: The Waxing and Waning of Two-Tier Wage Plans 342 Wage Comparability 343 Ability to Pay 344 Productivity 345 Cost of Living 348 Wage Adjustments during the Term or Duration of the Labor Agreement 349 Lump-Sum Pay Adjustments 351

Employee Benefits 351 Insurance and Health Benefits 352 Health Care Cost Containment 353 Income Maintenance 354 Premium Pay Overtime and Other Supplements 355 Pay for Time Not Worked Holidays, Vacations, and Rest Periods 357

Pensions 358 Family and Child-Care Benefits 362 Other Benefits 363 Union Effects on Wages and Benefits 363 Case Study 7-1: Adding Insult to Injury 378

Case Study 7-2: Unilateral Freeze of Defined Benefit Pension Plan 380

Case Study 7-3: A Change in the Medical Insurance Plan 381

Case Study 7-4: Does the Deputy Sheriff Deserve a Pay Raise? 383

Classroom Exercise 7.1: Employee Benefits 386

Chapter 8 Administrative Issues 387

Technological Change and Job Protection 388 Labor Relations in Action: High Performance Work Organization (HPWO) Partnership Principles 391

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Benefits of Technological Change 391 Negative Effects of Technological Change 392

Job Security and Personnel Changes 393 Job Security and the Changing Psychological Contract 394 Job Security Work Rules 395 Plant Closures, Downsizing, and WARN 397 Subcontracting, Outsourcing, and Work Transfer 399

Labor Relations in Action: Creating Good Jobs Today and in the Future 402 Work Assignments and Jurisdiction 403 Work Scheduling 404

Labor Relations in Action: Computer Programming and Labor Relations 405 The Role of Seniority in Personnel Changes 406 Legal Issues Involving Seniority in Administrative Determinations 410

Employee Training 412 Work Restructuring 415 Safety and Health 416 Labor Relations in Action: Domestic Violence and Trade Unions 419

Case Study 8-1: Discharged for Facebook Comments 433

Case Study 8-2: The Outsourced Work 433

Case Study 8-3: The Disputed Safety Bonus 434

Case Study 8-4: Donning Safety Equipment? or Changing Clothes? 435

Chapter 9 Resolving Negotiation (Interest) Disputes and the Use of Economic Pressure 437

Impasse Resolution Procedures Involving a Third-Party Neutral 439 Mediation 439 Fact-Finding 442 Interest Arbitration 442

Mediation-Arbitration (Med-Arb) 446 Other Third-Party Procedures 447

Arbitration-Mediation 447 Tri-Offer Arbitration 448 Double Final-Offer Arbitration 448 Night Baseball Arbitration 449

Strikes and Lockouts: The Use of Economic Pressure to Resolve Interest Disputes 449

Replacement Workers during Strikes and Lockouts 450 Types of Strikes 451 Labor Relations in Action: 2011 National Football League Contract Negotiations and Lockout 452

Reasons for Strikes 456 Strategic Purposes of a Strike 458 Strike Experiences and Preparation 459 Reinstatement Rights of Unfair Labor Practice and Economic Strikers 463 Unlawful Strike Misconduct 465 Employee Picketing Rights 466 Secondary Strikes, Boycotts, and Picketing 466

National Emergency Dispute Resolution Procedures 471 Case Study 9-1: An Interest Arbitration Hearing 485

Case Study 9-2: Legitimate Picketing? Or Illegal Secondary Boycott? 487

Case Study 9-3: The Aftermath of a Strike 489

Case Study 9-4: The Right to Strike 491

Case Study 9-5: Denial of Health Care Benefits to Striking Employees 492

Case Study 9-6: Product Picket Activity 493

Contents ix

Part 3 Administering the Labor Agreement

Chapter 10 Contract Administration 496

Labor Relations in Action: Rules Governing Workplace Investigations 499

Grievances: Definition, Sources, and Significance 499 Reasons for Employee Grievances 502 Significance of Employee Grievances 505 Preparation for Grievance Processing 506

Steps in the Grievance Procedure 508 First Step of Grievance Procedure 509 Second Step of Grievance Procedure 511 Third Step of Grievance Procedure 511 Fourth Step of Grievance Procedure: Alternative Dispute Resolution (ADR) 512 Different Approaches by Grievance Mediators 513 Administrative Complexities of Processing Grievances 515 Other Forms of ADR 516

Labor Relations in Action: Tough Contract Administration Questions 517

Grievance Resolution: Relationships and Flexibility 517 Codified Relationships 518

Power Relationships 518 Empathetic Relationships 520 Flexible Consideration in Processing Employee Grievances 520

The Union s Duty of Fair Representation 522 Case Study 10-1: Are These Grievances Arbitrable? 531

Case Study 10-2: Should the Union Represent Slick Willie Owens? 534

Classroom Exercise 10.1: Arbitration Scenario 536

Chapter 11 Labor and Employment Arbitration 537

Development of Labor Arbitration 538 Elements of a Typical Arbitration Proceeding 540

Selection and Characteristics of Arbitrators 541 Decision to Arbitrate 544 Prehearing Activities 545 The Arbitration Hearing 545

Labor Relations in Action: Improving Preparation for Arbitration Hearings 548

Comparison of Arbitration and Judicial Proceedings 549 Evidence in Arbitration vs. in Judicial Proceedings 550 Arbitration in the Railway and Airline Industries 552

The Arbitrator s Decision 552 Decision-Making Guidelines Used by Arbitrators 553

Labor Relations in Action: Example of Contract Language Ambiguity 556 Past Practice 558 Previous Labor Arbitration Decisions 559

Current Issues Affecting Arbitration 560 Legal Jurisdiction 560

Labor Relations in Action: Tenets of Labor Arbitration 561 Labor Arbitration and the National Labor Relations Board 564

Labor Relations in Action: National Football League v. National Football League Players Association (Tom Brady) 566

Labor Relations in Action: Things They Never Told Me before I Became an Arbitrator 567

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Appraising Labor Arbitration s Effectiveness 567 Procedural Problems 569 Employment Arbitration 571

Labor Relations in Action: How Employment Arbitration Differs from Arbitration Found in Labor Agreements 575

Public Policy Implications for the Future 578 Case Study 11-1: Whether the Employer Violated the Contract by Implementing Fleet Operation Changes on or about June 18, 2014? If so, What Is the Appropriate Remedy? 587

Case Study 11-2: Issue: Did the Company Violate the Collective Bargaining Agreement When It Reduced the Hours of Full-Time Employees to Less than 35 Hours per Week as This Action Relates to the NLRB Charge? 592

Case Study 11-3: Should Employee Be Penalized for On-the-Job Injury? 597

Chapter 12 Employee Discipline 600

The Changing Significance of Industrial Discipline 601 Historical Overview of Employer Disciplinary Policies 601 Employment-at-Will Doctrine and Wrongful Discharge Consideration for Nonunion Employees 603 Present-Day Significance of Employee Discipline 605

Labor Relations in Action: Disciplinary Possibilities on the Assembly Line 606

Elements of the Just Cause Principle in Employee Discipline 608 Discipline for Just Cause and Discipline s Legitimate Purpose 608 Degree of Proof in Disciplinary Cases: Nature of the Evidence and Witness Credibility 610 Labor Relations in Action: Employee Discipline and Social Media 612 Effect of Work Rules on Discipline 613 Progressive Discipline 616 Disciplinary Penalty and Mitigating Circumstances 617 Possible Collision between Discharge Decisions and Public Policy 620

Labor Relations in Action: Examples of Employee Misconduct and Mitigating Factors to Consider in Employee Discipline 621

Due Process 623 Case Study 12-1: Issue: Was Mr. Babcock s Termination for Just Cause? If Not, What Is the Remedy? 635

Case Study 12-2: Falsification of Application 641

Part 4 Applying the Labor Relations Process to Different Labor Relations Systems

Chapter 13 Labor Relations in the Public Sector 650

Significance of Public-Sector Labor Relations 651 Labor Legislation in the Public Sector 652 Current Challenges to Collective Bargaining Rights of Public Unions 654

Labor Relations in Action: States That Have Passed Laws Limiting Representational Rights for Public Sector Employees Since 2010 656

Federal-Sector Labor Relations Legislation 657 Labor Relations in Action: Privatization of the Public Sector 658

Appropriate Bargaining Units and Union Recognition in the Federal Sector 660 Negotiable Subjects in the Federal Sector 660 Unfair Labor Practices

Contents xi

in the Federal Sector 661 Grievance Procedures and Arbitration in the Federal Sector 662 Labor Management Forums in the Federal Government 662

Labor Relations in Action: Arbitration under the Federal Service Labor management Relations Statute 663

Homeland Security Act 663 Labor Relations in the U.S. Postal Service 665 Similarities between Private- and Public-Sector Bargaining 666 Differences between Private-Sector and Public-Sector Bargaining 668

The Market Economy Does Not Operate in the Public Sector 668 The Relationship between the Budget and Public-Sector Bargaining Processes 669 Employee Rights and Obligations 669

Collective Bargaining Structures and Decision-Making Processes 671 Negotiable Issues and Bargaining Tactics 672 Grievance Administration 675 The Right-to-Strike Controversy 675 Discipline of Public- Sector Employees 676

Labor Relations in Action: Douglas Factors in Deciding Disciplinary Punishment of Federal Employees 677

Interest Dispute Impasse-Resolution Procedures in the Public Sector 677 Mediation 678 Fact-Finding and Arbitration of Interest Disputes 678 Effectiveness of Fact-Finding and Arbitration of Interest Disputes 680 Referendum 681 Conclusions on Public-Sector Labor Relations 682 Challenges and Opportunities for Public-Sector Unions 684

Case Study 13-1: Unions Representing Public Employees 694

Case Study 13-2: Discharge for Off-Duty Conduct 695

Chapter 14 Labor Relations in Multinational Corporations and in Other Countries 701

Multinational Corporations and Transnational Collective Bargaining 702 Union Approaches to Multinational Bargaining and Employer Reactions 706 Labor Relations in Action: Core Labor Standards 707

Obstacles for Unions in Bargaining with Multinational Corporations 708 Effects of Unions on Multinational Corporations 709 Conclusions and Predictions on Transnational Bargaining 710

Globalization and Concerns about Free Trade 710 North American Agreement on Labor Cooperation (NAALC) 712

Unions in Other Countries 714 Canada 715 Mexico, Central America, and South America 719 Cuba 724

Labor Relations in Action: Two Views of Trade Unions in Cuba 725 Western Europe 725 European Union 727 Great Britain 730 Germany 731 Central and Eastern Europe Former Soviet Bloc Countries 733 Japan 734 South Korea 738 Australia 739 China 741

Classroom Exercise 14.1: Mobile Factory 755

Appendix A Collective Bargaining Negotiations Exercise 756

Author Index 759

Subject Index 762

xii Contents

Preface

This textbook is a culmination of more than 100 years of classroom teaching to more than 10,000 undergraduate and graduate college students. The eleventh edition of The Labor Relations Process reflects our original objective in writing the book: to provide stu- dents with a textbook that will generate an understanding of and appreciation for core elements of union management relationships. We have attempted to involve the student with the subject matter and to create an interest in related issues that will continue after the student completes the course. A model of the labor relations process (Exhibit 1.2) is presented in the first chapter and expanded in subsequent chapters through extensive references to academics and practitioners that focus on real-world situations and con- cerns. This provides a balance between concepts and applications for the reader.

The eleventh edition of The Labor Relations Process continues our long-standing tra- dition of being the most comprehensive text on the market.

Features of the Eleventh Edition

The objective of this text has always been to increase student involvement by focusing on applying the concepts being taught. This emphasis is unmatched by other textbooks in this area. This application generates student interest in the subject matter while enabling students to demonstrate their understanding of concepts and principles and apply this information to real-world situations. These opportunities and related efforts should sharpen readers communication skills, a desirable skill for any student, regardless of his or her academic major or intended occupation.

Application has been enhanced through Labor Relations in Action features; National Labor Relations Board (NLRB), court, or arbitration case studies at the end of most chapters; and class activity experiential exercises designed to promote active stu- dent participation in the learning process. There are updated Internet exercises called Exploring the Web at the end of each chapter to enhance student learning and appli-

cation and to create interest in independent research. The negotiation exercise with com- puter applications and the arbitration cases have been prepared for role-playing experience to promote the reality of union management relations. The book has also maintained many of the previous edition s features: a focus on currency, ethics, interna- tional issues, and real-world applications:

Chapter-Opening Vignettes. Each chapter begins with a short story or situation that prepares the reader for the chapter s subject. These encourage critical thinking and make the chapter s subject matter relevant to the student. Currency. This edition offers many opportunities for readers to become involved with the current applications of the labor relations process. For example, recent col- lective bargaining occurred with management and union officials in the auto indus- try and recent bargaining subjects such as health care costs and technological change are given expanded coverage in this edition. Ethics. Ethical issues concerning such topics as bargaining behavior, union organiz- ing, employee empowerment, and termination for union activities are addressed throughout the book.

xiii

International Labor. Chapter 14 has been updated and expanded to include changes that have occurred in Canada, Mexico, China, Australia, and the European Union, as well as the effects of the North American Free Trade (NAFTA) Agreement. Real-World Applications. The Labor Relations in Action boxes integrate current events in labor relations and have been updated with several new applications.

Key Chapter-by-Chapter Changes in the Eleventh Edition

Each chapter has been updated with current research, laws and judicial decisions, studies, and statistics. Additional attention has been given to explaining the labor relations pro- cess and influences. Following are some of the key updates to this edition:

Chapter 1 features updated information on mediators, the effect of the recent U.S. economic downturn, and its effect on the labor pool, and encourages online searches on current labor relations topics, supplemented by Internet exercises in every chapter. Chapter 2 has new information about early legal developments involving labor management relationships, the Knights of Labor, and the origin and goals of the American Federation of Labor. Chapter 3 presents recent key decisions of the NLRB and courts affecting labor rela- tions, such as classification of hospital interns and residents, graduate students in academic institutions, and supervisors for purposes of determining coverage as employees under the Labor Management Relations Act. The chapter also includes

expanded coverage of the NLRB s unfair labor practice procedure, and the concept of concerted and protected activity under the LMRA. Chapter 4 offers updates in the leadership of the American Federation of Labor- Congress of Industrial Organizations (AFL-CIO), expanded coverage of financial core membership, and right-to-work legislation. Chapter 5 covers modern union-organizing tactics, with the latest updates on union salting, card check, and neutrality agreements. This chapter addresses NLRB policies with changes from President Obama s appointees and new representation election rules. Chapter 6 explores collective bargaining preparation and behavior, including a com- parison of distributive bargaining versus mutual gain (interest-based) bargaining approaches and contract ratification procedures. There s also a new feature about the labor relations struggle for nurses and two new case studies. Chapter 7 features current information on wage and benefit trends and expanded coverage of wage incentive pay plans, such as skill-based pay, health care cost con- tainment, and pension plans. Chapter 8 covers technological change issues, efforts to foster more cooperative labor management relationships, safety and health issues, and the Americans with Disabilities Act. Chapter 9 reveals the role of the mediator as viewed through the eyes of one of the nation s prominent labor mediators. Coverage includes trends in strike activity; legal decisions affecting employees and employers rights during a work stoppage; and secondary strike, picket, and boycott activity. Chapter 10 provides the important actions for a successful workplace investigation, elements of grievance mediation, and coverage of a union s legal duty of fair representation.

xiv Preface

Chapter 11 provides insights to the real world of labor/employment arbitration; offers a critique of employment arbitration; compares employment arbitration to labor arbitration; explores the controversy over mandated employment arbitration as a condition of employment; explains Due Process Protocol; explains the guide- lines used in arbitrator decisions; and reveals the arbitrator decision s potential con- flict and accommodation with public policy and the new NLRB deferral policy. Chapter 12 provides guidelines used by arbitrators in determining just cause and their consideration of due process principles. This chapter features updates on Weingarten rights, such as the withdrawal of the NLRB s extension of Weingarten rights to nonunion (unrepresented) employees. Chapter 13 addresses dramatic changes in public sector bargaining, which have resulted from budget problems and politics. The subjects of public sector dispute resolution, privatization of public services, and homeland security issues are addressed. Chapter 14 focuses on the labor relations issues among multinational corporations in a global economy and characteristics of labor relations systems of America s major trading partners, including NAFTA members, European Union countries, Australia, China, Japan, and Korea. The chapter also covers major recent develop- ments in those countries.

Supplementary Materials

Instructor s Manual with Test Bank This supplement includes chapter outlines, answers to end-of-chapter discussion ques- tions, case notes, suggested student readings and term projects, and both instructors and students instructions for the Collective Bargaining Negotiations Exercise (available on our product support Web site). The Test Bank has been fully revised, updated, and expanded.

Holley/Ross/Wolters Product Support Website Our product support website is a robust learning and resource center for both instructors and students. The self-assessment exercises on the site include:

An Industrial Relations Orientation Self-Assessment that measures the degree of one s pro-union or anti-union sentiments. Bargaining Strategy Orientation Self-Assessment that measure one s preference for different bargaining strategies (e.g., distributive vs. mutual gain). Mediator Effectiveness Potential Self-Assessment measures the degree to which one possesses the personal characteristics attributed to successful mediators. Quizzes presented as multiple-choice and true false questions for download by the instructor allow self-assessments by students in understanding materials related to each chapters key terms and concepts.

Preface xv

Acknowledgments

We are especially grateful to the following professors for their reviews and suggestions on this revision:

Jeffrey Arthur, Virginia Tech James Benson, Boise State University Kristian F. Braekkan, Virginia Tech Richard J. Campbell, University of Rio Grande Kim Hester, Arkansas State University Dr. Miguel R. Olivas-Lujan, Clarion University of Pennsylvania Tony Vrba, Tarleton State University

We also extend our appreciation to those who made valuable suggestions for previ- ous editions: Todd Baker, John C. Bird, Mollie Bowers, Gene Brady, James F. Byers, Joseph M. Cambridge, Anthony Campagna, James Chambers, William Chase, Boyd Childress, Milton Derber, Satish Desphande, Victor Devinatz, James B. Dworkin, Randyl D. Elkin, Geraldine Ellerbrock, Art Finkle, Paul Gerhart, Dennis W. Gibson, Carol L. Gilmore, Thomas P. Gilroy, David Gray, Charles R. Greer, Marvin Hill, Jr., Wayne Hochwarter, Janis Holden, Denise Tanguay Hoyer, Thomas Hyclak, H. Roy Kaplan, Zeinrab A. Karake, Katherine Karl, Philip Kienast, John Kilgour, Toni S. Knechtges, Kenneth A. Kovach, Charles Krider, Thomas W. Lloyd, Eugene Lorge, Howard T. Ludlow, Karl O. Magnusen, Douglas M. Mahoney, Marick Masters, William Maloney, Pamela Marett, Douglas McCabe, Patrick McHugh, Frank Milman, Jonathan Monat, Roy Moore, William L. Moore, Thomas Noble, Carol Nowicki, Lou Parrotta, Dane M. Partridge, Robert Penfield, Alex Pomnichowski, Roy R. Reynolds, Robert Rodgers, Richard L. Rowan, Sue Schaefer, Machelle K. Schroeder, Peter Sherer, David Shulenber- ger, Donna M. Testa, Herman A. Theeke, Peter A. Veglahn, Suzanne M. Vest, Jeffrey L. Walls, William Werther, Elizabeth Wesman, and Carolyn Wiley.

We also wish to thank Sarah M. Philips, Cathy Wright, and Charlie T. Cook for their aid in the preparation of this book.

Finally, we would like to thank Cengage Learning for its fine work on this book. We are especially grateful to Erin Joyner, Vice President and General Manager; Michael Roche, Senior Product Manager; Brian Pierce, Content Developer; Jennifer Ziegler, Senior Content Project Manager; Kristina Mose-Libon, Art Director; Emily Horowitz, Marketing Manager; and Casey Binder, Marketing Coordinator.

William H. Holley, Jr. Auburn University

William H. Ross University of Wisconsin La Crosse

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About the Authors

William H. Holley, Jr., has had research published in a variety of journals including Labor Law Journal, Arbitration Journal, Employee Responsibilities and Rights Journal, Journal of Construction Engineering and Management, and Industrial Relations. He has engaged in consulting with private and public organizations and served as an Administrative Hearing Officer in the grievance procedure of the City of Auburn, Alabama. Dr. Wolters is a mem- ber of the Labor and Employment Relations Association. Outside interests include golfing and motorcycling.

William H. Ross has taught labor relations, collective bargaining, and human resource management courses for 30 years. He teaches at the University of Wisconsin La Crosse, where he also serves as Chairperson of the Department of Management. He does research on third-party dispute resolution procedures, including mediation and arbitration, as well as the implications of technological innovations for human resource management. His research has been published in Academy of Management Review, Journal of Applied Psychol- ogy, Labor Law Journal, and Negotiation Journal. Dr. Ross is on the editorial board of The International Journal of Conflict Management and Negotiation and Conflict Management Research. He is a member of the Academy of Management, the Society for Industrial- Organizational Psychology, and other professional organizations. Dr. Ross received his B.A. from Auburn University and his M.A. and Ph.D. in Industrial-Organizational Psy- chology, with a minor in Labor and Industrial Relations, from the University of Illinois.

Roger S. Wolters is professor emeritus in the Department of Management at Auburn University, where his primary interests included labor law, collective bargaining, and dis- pute resolution. Coauthor of Labor Relations: An Experiential and Case Approach with William H. Holley, Jr., his research was published in Labor Law Journal, Arbitration Jour- nal, Employee Responsibilities and Rights Journal, Journal of Construction Engineering and Management, Industrial Relations, and other journals. Dr. Wolters has consulted to private and public organizations and served as an Administrative Hearing Officer for grievances with the City of Auburn, Alabama. He earned his B.B.A. and M.A. from the University of North Florida and his Ph.D. in Labor and Industrial Relations from the University of Illinois.

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The Labor Relations Process

PART1 Recognizing Rights and Responsibilities of Unions and Management

Part 1 introduces the labor relations process that will be discussed throughout the book, placing it in historical and legal perspec- tives. It also examines the difference between union and management organiza- tions and their labor relations strategies.

Chapter 1 Union Management Relationships in Perspective

Chapter 2 The History of Labor Management Relationships

Chapter 3 Legal Influences

Chapter 4 Unions and Management: Key Participants in the Labor Relations Process

Chapter 5 Why and How Unions Are Organized

3

CHAPTER 1

Union Management Relationships in Perspective

BOB SAT IN his office staring out the window and thinking about the future. As the human resources manager of the firm, Bob had just finished preparing an announcement to be sent to all employees informing them that the company had just been sold to a larger competitor. After 20 years of service, Bob was very proud of the employee relations that existed at his company and wondered how things might change now that a larger corporation would be in charge. Although Bob s unit was not unionized, he knew that the new owner had a number of unionized facilities within its corporate structure. Bob had never thought much about what it would be like to manage in a unionized firm and whether the management strategies he had relied upon throughout his career would be as effective or even entirely legal. How might the labor relations process change if he had to deal with employees as a group through their selected union representative rather than as individuals? Would there be an effort to equalize employment terms and policies between union and nonunion facilities of the new owner? Would unions already representing employees at other similar facilities of the owner now seek to organize employees at Bob s unit? While Bob had more questions than answers about the immediate future, he did resolve to be proactive by attempting to expand his current level of knowledge about the labor relations process.

4

Questions 1. In your opinion, what is the biggest difference between managing

employees in a unionized versus nonunion firm?

2. In your opinion, does having other unionized facilities within a corpora- tion s operating units alter management s approach to labor relations at its nonunion facilities and, if so, give an example to illustrate what you mean.

Today s global economy presents many challenges and opportunities for both employersand employees. As organizations seek to use resources both efficiently and effectively, there will be inevitable tension over how best to manage those assets to benefit both ownership and employees. The effective management of human resources is critical to maintaining an organization s competitiveness. Recognition of and respect for the legitimate interests of both labor and management are an important step in building and maintaining work relationships capable of adapting to change in the competitive environment most organizations face. Stable work relationships are built upon trust between ownership and employees, which is reflected in both the actions and words of the parties.

Chapter 1 seeks to build a basic frame of reference for understanding the labor relations process by first defining the three phases of the labor relations process and then placing this process into an analytical perspective. Chapter 1 introduces the activities, focal point, participants, and influences of the labor relations process, which are discussed in detail in subsequent chapters. The chapter ends with a discussion of the current status of union membership and the relevance of labor organizations in today s economy.

Phases in the Labor Relations Process

The labor relations process involves managers (representing the ownership interests) and a labor organization (union), selected by employees as their exclusive bargaining agent to rep- resent their interests. Managers and union representatives jointly determine and administer work rules. Where employees are not represented by a union, work rules are typically deter- mined unilaterally by the employer with the opportunity for individual bargaining between an employee and his or her employer at the employer s discretion. The negotiation and administration of work rules demonstrate considerable variation across public- and private- sector organizations in the United States, reflecting unique aspects of each organization.

The labor relations process includes three basic phases:

1. Recognition of the legitimate rights and responsibilities of union and manage- ment representatives. Employees have a legal right to form and join a union or to refrain from doing so (see Chapters 3 and 5). Labor law also sets forth the rights and responsibilities of management and union officials to abide by applicable laws and labor agreement (contract) terms. From a union s perspective, phase 1 may be the most impor- tant phase because without gaining legal recognition as the exclusive bargaining represen- tative of a group of employees in phase 1, the process does not proceed to phases 2 and 3.

2. Negotiation of the labor agreement, including appropriate strategies, tactics, and impasse resolution techniques. Contract negotiation involves union and management

5

representatives jointly determining work rules (policies) governing the parties rights and responsibilities affecting wages, hours, or other terms and conditions of employ- ment (discussed in Chapters 6, 7, and 8). The outcomes of such negotiations have an important impact on a firm s labor costs, management s rights, and covered employees standard of living. Most interest disputes (i.e., a dispute over what the terms or condi- tions of employment or work rules will be) are resolved voluntarily by union and man- agement negotiators during the bargaining process. Strikes, lockouts, mediation, and interest arbitration are examples of impasse resolution techniques (discussed in Chapter 9) that can be used to resolve an interest dispute. Phase 2 of the labor relations process generally receives the most media attention even though phases 1 and 3 are equally essential.

3. Administration of the negotiated labor agreement the interpretation and applica- tion of labor contract terms on a daily basis. Once contract terms have been settled in phase 2, there is a need to apply those terms every day during the stated term or dura- tion of the labor agreement. The contract enforcement phase of the labor relations pro- cess is generally accomplished through daily union and management interactions and, when necessary, the use of a grievance-arbitration procedure to resolve rights disputes (i.e., disputes over the interpretation or application of a contract s terms, discussed in Chapters 10, 11, and 12). Resolving rights disputes accounts for the most time and energy spent by union and management officials in the labor relations process and usually involves a larger number of these officials than the preceding phases.

Of course, not all labor management relationships progress smoothly through these three phases. Indeed, employees and their chosen union representative at some public- and private-sector organizations have a difficult time moving from the recognition of an employee bargaining representative (phase 1) through the remaining two phases of the process.1

The phases of the labor relations process are subject to qualitative variation as well. In the first phase, for example, organizations vary in the amount of mutual trust and respect union and management officials have for each other s goals. In the second phase, negotiations are carried out with different levels of intelligence, preparation, and sincere desire to achieve results. The third phase may vary as to how well the negotiated labor agreement is understood and effectively administered in good faith by both parties. There are probably as many different relationships as there are union and management officials negotiating labor agreements.

Elements in the Labor Relations Process

Exhibit 1.1 provides a framework for the labor relations process. The elements shown can be applied to the labor relations activities at a single or multiple facilities owned by a single company, or in an entire industry. The exhibit cites three major elements: (1) the negotiation and administration of work rules, which are the focal point of labor relations; (2) the key participants in the process, who are the union and management organiza- tions, employees, third-party neutrals, and branches of government (administrative, leg- islative, and judicial); and (3) the constraints or influences affecting the parties in their negotiation and administration of work rules.

Focal Point of Labor Relations: Work Rules Any academic discipline needs a focal point so that research, investigation, and commen- tary can generate applicable insights. Labor or industrial relations can become a

6 PART 1 Recognizing Rights and Responsibilities of Unions and Management

broad topic including many academic concerns. For example, sociologists have examined employee alienation; psychologists have investigated causes of job satisfaction and work motivation; economists have studied wage determination; and political scientists have assessed the impact of union and management as interest groups attempting to influence government policy and legislative outcomes.

John Dunlop s book Industrial Relations Systems provides a useful focal point for these diverse academic approaches. Dunlop suggested that the center of attention in labor relations should be the work rules negotiated between management and union offi- cials. Work rules facilitate the implementation of operational plans designed to accom- plish an organization s strategic goals. Work rules determine employees standard of living and the work environment within which employees will spend a substantial por- tion of their time. Today external factors (e.g., state of the economy, technology, interna- tional forces) play an increased role in determining the substance and type of work rules created by union and management representatives.

It is important to understand the influences determining the creation and particular content of work rules.2 Work rules can be placed in two general categories: (1) rules governing compensation in all its forms (e.g., wages, overtime payments, vacations, holi- days, shift premiums) and (2) rules specifying the employees and employers job rights and obligations, such as no employee strike or employer lockout during the term of the labor agreement. This second category of rules may specify performance standards,

Work Rules

Exhibit 1.1 Elements in the Labor Relations Process

CHAPTER 1 Union Management Relationships in Perspective 7

promotion qualifications and procedures, job specifications, and layoff procedures. Addi- tional examples of work rules are furnished in Exhibit 1.2.

Compensation work rules, such as a negotiated wage rate, often capture the attention of employees and the media because they are negotiation outcomes that are easier for most people to understand and compare. Union and management officials, however, may attach equal or greater importance to work rules regarding the second work rule category, job rights, and obligations. Managers are often adamant about retaining control over key oper- ating decisions such as determining the number and types of employees, equipment and technology decisions, geographic location of company operations, and operating hours. In order to appreciate the importance of these rules, consider the following three examples: Managers at Company A are interested in obtaining a work rule that permits production employees to perform minor repairs, instead of requiring higher paid maintenance employees to do the tasks. At Company B the union wants to reduce forced overtime; they want workers to have the final decision about whether and when they will work over- time. About 39 percent of union contracts contain limitations on the right of management to require employees to work overtime. At Company C union leaders are seeking work rules that would change the standard work week to less than 40 hours required to earn full-time pay and benefits.3 Why would the union at Company C seek a shorter work week? Assuming the number of employee work hours required to meet a firm s workload is relatively stable, reducing the number of hours considered to be an employee s full work week would theoretically require additional employee positions (and potentially more due- paying union members) or create more overtime work opportunities for employees.

Work rules can vary depending upon whether they are common or unique in the sub- ject matter addressed and vague or specific in the wording used to express the rule. Because work rules are the outcome of joint negotiation between union and management represen- tatives, neither party typically gets the exact contract language it originally preferred. Com- promise language is often worded more generally, which allows room for interpretation. However, vague wording can lead to subsequent grievance disputes during the contract s term as management implements its interpretation of contract terms through job decisions and that interpretation is challenged by employees or their union representative through the grievance dispute process. The wording or interpretation of work rules can also change over time in response to changes in operating environments and the need for greater flexibility.

For example, the work rules for airline flight attendants today would most certainly dif- fer from the following three work rules formulated in the 1930s: (1) swat flies in the cabin after takeoff, (2) prevent passengers from throwing lighted cigar butts out the windows, and (3) carry a railroad timetable in case of plane trouble. Today, the flight attendants union is concerned with issues such as too much luggage stuffed into overhead compartments, which may fall and hit a passenger, and passenger use of cell phones during flights, which could pose a security risk by making it easier for terrorists to communicate with each other.4

An analysis of work rules helps to explain the complex output of the labor relations process. The formal labor agreement in this sense represents a compilation of jointly negotiated work rules. However, as discussed in Chapter 10, labor relations activities are not limited to the negotiation of work rules. The labor relations process also includes the everyday interpretation and application of work rules and the resolution of any disputes arising over such decisions.

Concern over health care workers exposure to H1N1 flu, the Ebola virus, and acquired immune deficiency syndrome (AIDS) represents working conditions that create a need for appropriate work rules to limit patients and health care workers exposure. A nurses union could seek to negotiate health and safety work rules aimed at protecting members from unnecessary occupational exposure or ensure the availability of appropri- ate treatment when exposure does occur.5

8 PART 1 Recognizing Rights and Responsibilities of Unions and Management

Exhibit 1.2 Examples of Work Rules Job or Industry

Classification Work Rule

Government Installation

The employer agrees to furnish adequate protective clothing for employees required to work outside during rain, sleet, hail, or other atmospheric conditions detrimental to health or safety, provided the employee subjected to such assignments normally and historically performs the majority of his or her work assign- ment indoors. Employees who normally perform a majority of their work outdoors shall furnish their own protective clothing

Electricians Where the work assignment of employees who have been assigned a permanent reporting location requires travel to and between other work locations and/or return to their permanent reporting location, the time consumed by the employees in such travel shall be counted as time worked

Health Care In situations where a department head determines that it is necessary for an employee to use bilingual skills, those employees who have been previously determined to possess those skills at a level necessary for the assignment, and who are so assigned by the department head, shall be eligible to receive additional compensation of 3 percent above the applicable pay rate for the time period of the assignment

Communications The company subscribes to the principle that a well-informed union leadership promotes harmony and efficiency in union management relations. The company agrees to notify the union of any proposed changes affecting rates of pay, hours of work, and other conditions of employment. It is understood that the company has the sole right to institute all such changes as it may consider necessary, subject to the terms of this agreement. The union agrees to cooperate with the company at all times in maintaining a high degree of service to its customers and through conscientious endeavor and application of effort to strive for the lowest possible costs

Professional Baseball

The player and the club recognize and agree that the player s participation in certain other sports may impair or destroy his or her ability and skill as a baseball player. Accordingly, the player agrees that he or she will not engage in professional boxing or wrestling, and that except with the written consent of the club, he or she will not engage in skiing, auto racing, motorcycle rac- ing, sky diving or in any game or exhibition of football, soccer, professional league basketball, ice hockey, or other sport involv- ing a substantial risk of personal injury

Television The latest version of the script will be made accessible to the player in the casting office 24 hours in advance of a scheduled reading or immediately after the scheduling of the interview, whichever occurs last

Manufacturing When employees are called to work at a time other than their regular reporting time, and after having clocked out, they shall be paid two hours plus one and one-half their straight time rate for all hours worked, but in no event will less than four hours at the straight rate be paid

Cemeteries In all cases where a grave is dug straight down, a second person shall be assigned to assist the digger after a depth of five feet is reached

CHAPTER 1 Union Management Relationships in Perspective 9

Companies and unions are also negotiating no-smoking rules in the workplace both as a health benefit and a means of reducing health care costs associated with smoking- related insurance claims. In 1908, a Columbia University professor insisted that the dele- terious effects of tobacco are greatly exaggerated, a belief that prevailed for the next 70 years. Now, union and management officials and possibly arbitrators at thousands of facilities jointly determine whether the issuance of a no-smoking policy is reasonable and whether an employee was properly disciplined or discharged for violating the rule. For example, in Kansas City, an arbitrator ruled that a collective bargaining agreement between the fire department and the firefighters union that allowed smoking in designated areas of fire stations prevailed over a newer law banning smoking inside work facilities.6

A majority of employers engage in one or more forms of electronic monitoring of employee work performance. Computer monitoring software, bar code scanners, video cameras, and pressure-sensitive plates have enabled management to monitor employee performance in various ways, such as counting the number of key strokes made on com- puter keyboards, listening to employees telephone conversations with customers, following truck drivers via Global Positioning Satellite (GPS) signals, or viewing computer files, e-mail messages, and Internet connections on company computers. Employers have several legitimate interests for monitoring. These include evaluating employees work performance, seeking to eliminate illegal employee misconduct, protecting their company s trade secrets, and defending the firm s business reputation. Employees have a legitimate interest in ensuring that their union representatives negotiate appropriate work rules to govern the time, place, and method of such electronic monitoring as well as the use of such informa- tion to reward or penalize employees work performance. Employees also have a legitimate interest in discussing wages, hours, and working conditions among themselves electroni- cally (e.g., on social media Web sites) without fear that managers are electronically moni- toring their discussions in order to punish those who criticize the company.7

Key Participants in the Labor Relations Process Through the organization s structure, managers represent the interests of the ownership as well as their own self-interests. Under a legal doctrine known as agency theory, man- agers are delegated authority by the owners to make decisions required to operate the organization. Because managers represent the owners interests in employment relations matters, U.S. managers do not generally have a legally protected right to unionize.

Managers work at various levels within the organization from first-line supervisors or department heads to the highest ranking management official (e.g., chief executive officer). Labor relations managers are typically found at corporate, divisional, and plant levels. Companies with both represented (union) and unrepresented (nonunion) employees or facilities often prefer the term human resources manager rather than labor relations manager. Organizations that operate different facilities in different geographic locations may emphasize standardizing some work rules (e.g., management rights) at all locations while insisting that other work rules, such as a wage rate for a particular job classification, be based on local labor market conditions. Thus, wages would vary across facilities.

Plant-level labor relations managers implement these corporate directives, but they must also deal with other managers at each facility s location (particularly production and maintenance managers and first-line supervisors) who direct the daily work activities of hourly employees.

As will be further discussed in Chapter 10, first-line supervisors or department heads typically hear and attempt to resolve employees grievances on the production floor. In some cases, lower-level managers are surprised to learn that higher-level man- agement officials have overturned their decisions. Alert union leaders may use dissension

10 PART 1 Recognizing Rights and Responsibilities of Unions and Management

or lack of clear communication among different levels of management officials to influ- ence labor relations activities and the company s position toward unions.

Management consultants are individuals hired from outside the organization to provide some special service or expertise. The activities of management consultants in the labor relations process are varied and sometimes controversial, ranging from restruc- turing personnel practices in nonunion firms (in the absence of any active union- organizing campaign) to designing and presenting the employer s response throughout a formal union-organizing campaign. During an organizing campaign, both union sup- porters (often including professional union organizers) and union opponents (often including managers and managerial consultants) try to persuade employees to support (or oppose) forming a labor union; the campaign usually ends with a secret-ballot vote, supervised by the federal National Labor Relations Board (NLRB). One union estimate found that managerial consultants were involved in 75 percent of union-organizing cam- paigns.8 Employers who hire managerial consultants to thwart union-organizing efforts are more likely to engage in a number of legally and ethically questionable tactics. Employers who make threats of plant closings are more likely to hire outside consul-

tants, discharge union activists, hold captive audience meetings and supervisor one- on-ones, establish employee involvement committees during the organizing campaign, make unilateral changes in benefits and/or working conditions, use bribes and special favors, use electronic surveillance, threaten to report workers to the INS [U.S. Immigra- tion and Naturalization Service], and show anti-union films. 9 Controversy occurs over the consultants effectiveness. Research shows that the use of a management consultant can reduce the probability of a union win in very closely contested elections, but it does not appear to be as big an influence on union election outcomes as some other factors such as election-unit size (i.e., how many people will vote in a union representation elec- tion) or relevant labor market conditions.10

Effectively managing an organization s labor relations is an important part of the ownership goal of being competitive in the industry or market. Organizations with a quality labor management relationship may gain a competitive advantage over firms that lack the ability to gain cooperation and consensus from employees necessary to effectively implement change to meet new competitive pressures.

Union representatives, usually elected by the members to represent their employ- ment interests, are another key participant in the labor relations process. As elected representatives, union officials must consider the varied and sometimes conflicting inter- ests of individual employees within the bargaining unit seeking to build a consensus for decisions that benefit the majority of constituents. Unlike managers who are appointed by higher-level managers, union officials are subject to the political pressure of majority rule if they wish to be reelected to a union leadership position in the future. Unions as democratic organizations do experience internal differences of opinion on policies and priorities that union officials must learn to effectively manage. Every union has its own history, traditions, personalities, and accepted practices that can lead to observed differ- ences across union organizations as well as within a particular union. While different unions may share common interests and positions on many issues of common concern, each union tends to value maintaining its own independence and sense of self- determination in representing the interests of its membership.

Certainly some of the most significant participants in the labor relations process are nonmanagerial employees because they often determine whether a union is even present in an organization (representation elections and union-organizing drives are discussed in Chapter 5), whether a negotiated labor agreement is accepted or rejected, and the extent to which a threatened strike is actually carried out (see Chapter 9).

CHAPTER 1 Union Management Relationships in Perspective 11

Employees are treated here as a separate category because they may demonstrate dual loyalty to both their employer and union organization.11 Most employees want their organization to be successful but also value the ability of their union to voice employee concerns to managers or demand that employees be treated fairly both in com- pensation and work activities. For example, public employees such as firefighters, police, and teachers may feel torn between the critical or professional nature of their jobs and the strategic advantages of a strike. Auto workers may agree that operating costs, includ- ing labor costs, must be reduced for their employer to remain competitive. Yet they expect their union representative to ensure that when profitability improves employees will fairly share in that improvement. Employees varied interests help shape the exis- tence and content of particular work rules and thus employees are considered a third key participant in the labor relations process.

The government acting through its different branches executive, legislative, and judicial at the federal, state, and local levels represents another key participant in the labor relations process. As discussed in Chapters 2 and 3, the government s role in regulating labor relations has gradually increased over time as the importance of labor relations to the effective functioning of the economy has become more apparent. In the public sector, government officials also serve as managers in the labor relations process, representing both taxpayers and the general public s interests (discussed in Chapter 13).

In the private sector, the federal government has traditionally played an indirect role in determining the outcomes of work rule negotiations, preferring to allow union and management representatives to determine such work rules through the bargaining pro- cess. Governments in many other industrialized countries (see Chapter 14) take a much more active role in both regulating and determining the outcomes of specific work rules (e.g., amount of paid vacation time). The federal government s hands-off approach in most private-sector bargaining situations is based on the belief that most management and union officials are better equipped than their government counterparts to assess their needs and limitations and reach a mutually acceptable labor agreement.

Although the federal government does not dictate the terms of a negotiated labor agreement, laws, judicial decisions, and administrative agencies, such as the NLRB, can influence work rules and the ability to exercise legally granted rights. The following three examples illustrate this: First, legislation to deregulate the trucking and airline industries has contributed to reduced union membership and economic gains for employees.12 Sec- ond, the Age Discrimination in Employment Act prohibits union and management offi- cials from negotiating a mandatory retirement age of 60 years. Third, although some coal miners have long believed that females working in mines would be bad luck, union and management officials would be violating sexual discrimination aspects of the Civil Rights Act if they negotiated a provision prohibiting female employees from working in mines.

Third-party neutrals (i.e., mediators and arbitrators) represent a final key partici- pant in the labor relations process. Differences between union and management officials that arise in negotiating the terms of a labor agreement (interest disputes) or administer- ing its provisions (rights disputes) are often resolved with the aid of a third-party neu- tral. Mediators (discussed in Chapters 9 and 13), often supplied by the Federal Mediation and Conciliation Service (FMCS) or a state or private mediation agency, may be used to help resolve interest disputes during contract negotiations. The mediator assists the union and management officials to clarify and resolve their differences, thus promoting a voluntary settlement. The mediator does not possess any binding legal authority to require the parties to settle an interest dispute, but he or she will offer advice to help each party assess its own priorities and the costs or risks associated with failing to reach a voluntary agreement.

12 PART 1 Recognizing Rights and Responsibilities of Unions and Management

An arbitrator is a third-party neutral hired by union and management representa- tives to make a final and binding decision on a disputed issue. While final and binding arbitration may occasionally be used to resolve the terms of a new contract (an interest dispute ) (see Chapter 9), most often it is used to resolve grievances ( rights-type disputes ) arising during the term of a labor agreement over the interpretation or application of the contract s language (see Chapters 11 and 12).

Three Basic Assumptions Underlying U.S. Labor Relations

To better understand the U.S. labor relations system and the actions of its participants, it is helpful to bear in mind certain underlying assumptions that affect the thinking and behavior of most individuals within the system. Whereas the degree of support by some participants for these three basic assumptions has varied over the course of U.S. labor history, these assumptions have been the basis for a majority consensus for many years.

First, the free enterprise (capitalist) economic system in the United States creates an inherent conflict of interest between employers (owners) and employees. Both employees and employers seek to advance their own self-interests. Employers seek to maximize their return on capital invested, while employees seek to advance their pay, working con- ditions, and job security. Most of the interests employees seek to advance through the collective bargaining process represent an increased cost to the employer which, unless offset by cost savings elsewhere or higher productivity, may reduce the investment return desired by ownership. This creates a natural tension within a capitalist economic system between the pursuits of employees and employers legitimate interests. Such conflict should not be viewed in a negative light but rather as simply a reality of business opera- tion which must be managed effectively. The presence of some degree of inherent con- flict between employer and employee interests should also not be viewed as precluding opportunities for cooperation between the parties. Both employees and employers share a common interest in ensuring that the organization is competitive. Maintaining a suffi- cient number of qualified and motivated employees is necessary for an employer to attain desired organizational goals (e.g., productivity, product or service quality). Profits in turn permit an organization to provide competitive wages, benefits, and working con- ditions to help ensure the recruitment and retention of qualified employees. Ideally, employees perceive their own self-interest as best advanced by seeking to advance the interests of the organization as a whole.

A second underlying assumption of the U.S. labor relations system is that employees in a free and democratic society have a right to independently pursue their employment interests using lawful means. Employees should have a right to determine for themselves what is in their best interests and to pursue means of attaining such interests so long as the goals pursued and tactics used are legal. Only by allowing individuals to pursue their legitimate interests can a society foster the necessary support for prevailing economic, social, and political systems used to sustain the country. Employees may choose to pur- sue their legitimate interests on an individual basis or collectively by joining a labor organization. Managers may prefer to work with employees individually and avoid deal- ing with a union, in order to contain any wage disagreements to only a few people and to avoid negotiating widespread workplace rule changes. However, co-workers may see it as unfair when individual employees with unique skills negotiate special work arrange- ments or pay rates (sometimes called idiosyncratic deals). Further, perceived injustice has been shown to predict unionization. Therefore, such idiosyncratic deals can be chal- lenging to negotiate and implement for managers.13

CHAPTER 1 Union Management Relationships in Perspective 13

A third underlying assumption of the U.S. labor relations system is that collective bar- gaining provides a process for meaningful employee participation through independently chosen representatives in the determination of work rules. Employees in the U.S. labor relations system are not required to form or join a labor organization for the purpose of engaging in collective bargaining, but they are permitted to do so when a majority of the employee group expresses such a preference. In the absence of collective bargaining, indi- vidual bargaining may occur between an employer and his or her employee. Labor history suggests that most employees are at a relative bargaining power disadvantage in individual bargaining when confronted with the greater resources of their employer, but each employee is free to determine the degree of satisfaction that his or her own individual bar- gaining experience provides. Many unrepresented employees, for a variety of reasons, do not attempt to engage in individual or collective bargaining, thereby permitting the employer to unilaterally (without bargaining) establish work rules, setting the terms and conditions of employment. In limited cases, employment terms may be mandated by gov- ernment action (e.g., minimum wage law, safety, and health standards).

Exhibit 1.3 presents a list of some basic characteristics of the private-sector U.S. labor rela- tions system. These characteristics will be discussed in further detail throughout the text.

Constraints or Influences Affecting Participants Negotiation and Administration of Work Rules The labor relations participants who affect the development of work rules are influenced by external variables or constraints in their labor relations activities (see the outer circle of Exhibit 1.1). These constraints and influences can sometimes affect one another and may relate to a particular firm, local community, or society in general. The following discussion furnishes a few illustrations of how these constraints and influences can affect the existence and content of work rules.

State of the Economy: National, Industrial, and Firm-Specific Indicators The state of the economy is usually referred to by indicating movement among such quan- titative indicators as inflation, unemployment, and productivity. During the 1980s, the United States witnessed a rising inflation rate, which influenced the negotiation of work rules notably, union insistence that a labor agreement include provisions to increase wages if increases occur in the cost of living (see Chapter 7). In the early 1990s, the focus of negotiations was on wage increases, enhancing employee benefits, and containing rising health care costs. More recently, with slow economic growth, low inflation, and rising job losses, union and management negotiators returned to an emphasis on job security and other job protection issues. Many employers, citing competitive pressures, have successfully negotiated labor cost reductions involving wages, benefits (e.g., pensions, health care), and inefficient work rules (e.g., restrictive job descriptions).

Two economic indicators that can affect work rules are interest and unemployment rates. An increase in interest rates can slow home and industrial construction projects. The Federal Reserve Board voted to raise interest rates 17 times between June 2004 and June 2006 out of concern that too rapid economic growth might trigger an increase in consumer inflation.14 More recently, the Federal Reserve Board has cut interest rates to historically low levels in an effort to spur economic growth by making capital more available at reasonable cost. If employees wage gains do not at least match the rate of increase in consumer prices (inflation rate), the purchasing power of employees declines, adversely affecting employees standard of living. If interest rates are raised to fight

14 PART 1 Recognizing Rights and Responsibilities of Unions and Management

inflation, employees will pay more for consumer debt (e.g., credit cards, auto, or home loans). A union might respond to such a rising interest/inflation rate environment by seeking to negotiate pay improvements that exceed the rate of inflation as well as by offering group discount rates to members on benefits such as credit cards or various types of consumer loans. In a low interest/inflation rate environment, a union might focus more on job security issues knowing members are more likely to be satisfied with moderate wage and benefit improvements that match the low inflation rate.

The unemployment rate affects work rules that provide job protection. Chapter 6 discusses ways in which the unemployment rate can affect the bargaining power of union and management officials. If this and other economic measures pertaining to the gross national product, productivity, cost of living, compensation at all employee levels, and exports and imports are unfavorable, unions will be more likely to accept bargaining concessions. By the same token, strong product sales, economic growth, and low unemployment tend to strengthen union bargaining power as employers have more reason to compromise to avoid any disruption in the production of current products or services.

The National Bureau of Economic Research has determined that the most recent recession affecting the U.S. economy began in December 2007 when the national unem- ployment rate was 4.9 percent. By October 2009, the national unemployment rate had risen to 10.2 percent, representing 15.7 million individuals the highest rate since the recession in the early 1980s. By September 2014, the unemployment rate had declined to 5.9 percent, representing 9.3 million individuals. An additional 698,000 individuals were classified as discouraged workers who had given up searching for a job because they

Exhibit 1.3 Basic Characteristics of the U.S. Private-Sector Labor Relations System

Primarily a bilateral process (union and management) governed by a framework of labor laws. For example, LMRA, Labor Management Reporting and Disclo- sure Act (LMRDA), Railway Labor Act (RLA), OSHA, Family Medical Leave Act (FMLA), ERISA, ADA, Norris-LaGuardia Act, and anti-discrimination laws.

A highly decentralized bargaining structure that results in a large number of labor contracts negotiated most often between a single employer and a spe- cific union to cover a defined group of employees (bargaining unit) at a specific geographic location.

Recognition of the key legal principles of majority rule and exclusive bargaining representation. No union can gain the right to represent a group of employees for purposes of collective bargaining without first demonstrating the majority support (50 percent 1) of the employees in that group. Once recognized, the union is the only legal representative authorized to negotiate work rules with the employer to establish the work group s terms and conditions of employment.

Permits the use of economic pressure (e.g., strike, lockout, picketing, and boy- cott) to aid the parties (union and management) in reaching a voluntary negoti- ated settlement of interest disputes over what the terms and conditions of employment will be.

Encourages the use of final and binding arbitration, if voluntary grievance nego- tiation efforts fail, to resolve rights disputes that arise during the term of a con- tract over the interpretation or application of the labor agreement s terms.

Characterized by significant employer opposition to employee efforts to orga- nize and bargain collectively through representation by an independent labor union chosen by the employees themselves.

CHAPTER 1 Union Management Relationships in Perspective 15

believed no jobs were available for them.15 While unemployment rates are expected to continue to decline as economic recovery occurs, the decline is expected to be gradual, extending over several years, as employers are typically reluctant to add new jobs or fill existing vacancies until the recovery in product and service demand is well established.16

The skills, wage levels, and availability of employees in a relevant labor market can affect negotiated work rules. Management is often concerned with ensuring that an ade- quate supply of labor of the skill levels required to operate is available in a particular com- munity. For example, a firm needing skilled employees from a relatively low-skilled labor market supply would probably wish to negotiate work rules regarding apprenticeship pro- grams or other forms of job training. Management would also consider negotiating a rea- sonable employee probationary period (e.g., 60 120 days) within which it could terminate a union-represented employee who cannot learn the job and perform adequately, with no union right to protest the action through the labor contract s grievance procedure.

One example of a labor management cooperative effort to assist employees in adjust- ing to changes in labor market forces is the Alliance for Employee Growth and Develop- ment, Inc., created in 1986 as a joint enterprise by American Telephone & Telegraph (AT&T), the Communication Workers of America (CWA), and the International Brother- hood of Electrical Workers (IBEW) to help displaced workers. Today, the Alliance also includes employers Alcatel-Lucent, OFS Optical Fiber, and Avaya.17 The Alliance has pro- vided training and development services to more than 175,000 individuals, helping to pre- pare them to handle new technologies, job skills training (e.g., technical, customer service, teamwork), and career transition training. Other outstanding examples include the United Auto Workers (UAW)/General Motors Skills Centers and the joint training programs of Ford Motor Company and the UAW. The Service Employees International Union (SEIU) has partnered with Kaiser-Permanente in California to provide training to upgrade the skills of workers in entry-level jobs, such as housekeeping. Trainees can then move into health care related jobs such as medical assistant and acute care nursing assistant that offer higher pay and more career potential. The vacancies created in entry-level jobs are filled with those transferring from part-time positions and from newly hired unemployed and economically impoverished workers who have also received training. In the building trades, unions have played a major role in training skilled workers. Because workers move from employer to employer on a regular basis, single construction companies have less financial incentive to train employees who may end up working for a competitor. Therefore, the unions, through their training and apprenticeship programs, provide an obvious contribution to the general national welfare. In fact, unions and their contractors outspend their nonunion counterparts by a ratio of 50 to 1 in training investments.18

Both management and union representatives should share an interest in establishing competitive compensation rates for comparably skilled employees within a relevant external labor market and internally within the firm itself. Externally, when wages are increasing, both the firm and the union may want to pay comparable wage rates. Employees generally see this as fair and owners see it as a way to attract and retain good workers. In cases where the employer faces significant labor cost competition from nonunion or foreign employers, a union may have to agree to compensation reduc- tion that will permit a unionized employer to remain competitive in pricing goods or services sold in the firm s product or service markets. Internally, a job with higher skill or responsibility requirements should earn a higher compensation rate than jobs with less skill or job responsibility requirements.

The labor relations process can be affected by the product or service market where the company either sells its product or purchases key elements required for production of its products or services. Management would be more vulnerable if a strike occurred at

16 PART 1 Recognizing Rights and Responsibilities of Unions and Management

a time when major customer sales were anticipated or on-time delivery of promised goods was critical to meet a customer s needs. For example, management at a brewery would prefer to avoid a labor agreement expiring, possibly leading to a strike, during the summer months, when significant beverage sales are anticipated. A public school sys- tem would much prefer a contract expiration date in early summer after the regular school year has ended, rather than risk a possible work stoppage disruption if the con- tract expiration date coincided with the first day of the new school year.

A second dimension of the product market, the source of key elements for product manufacture, can be a factor affecting union members perceptions of job security. For example, the UAW union is concerned over the fact that many of the parts utilized in U.S. automobiles are being manufactured in other countries, creating job opportunities for foreign workers but not for UAW-represented employees.19

Another important consideration in the labor relations process is the financial market, the arena in which the employers (and unions) seek to borrow funds to finance their invest- ment strategies. Companies must consider exchange rate money value differences among countries, which affect the profitability of plant location and sales marketing decisions. Exchange rates between countries (see Chapter 14) can alter companies investment strategies because exchange rates affect comparative wage rates and, consequently, the comparative labor costs of production. As an example, when the peso in Mexico was devalued by as much as 50 percent of the U.S. dollar, the labor costs of production in Mexico declined dramatically and made producing goods in Mexico more attractive and economical for multinational corporations. A strong euro currency valuation in comparison to the U.S. dollar helped drive up labor production costs in European countries such as Germany, encouraging automakers such as Daimler AG (Mercedes) and Bavarian Motor Works (BMW) to build production plants in the United States.

When a company wants to expand its plant capacity and increase jobs, it often has to borrow money in the financial markets at the same time it may request wage conces- sions from a union (see Chapter 7) or request the elimination of work rule restrictions to improve productivity (see Chapter 8). Unions must be able to perform financial valuation analysis to support, for example, an employee stock option plan (ESOP) (see Chapter 7), or anticipate the advantages or disadvantages of the sale or merger of an existing employer s operations with another competitor or private equity fund from the perspective of union-represented employees.

Labor unions have been able to use their financial resources and become active in the financial markets as a source of capital. With U.S. employee pension funds valued in excess of $7 trillion, many unions believe that decisions on how to invest those funds ought to take into consideration the effect of capital investments on the economic and job security interests of union members.20 Thus, one goal of many unions is to invest pen- sion funds in firms that are already unionized. For example, the United Steelworkers have created a regional investment fund of $100 million called the Heartland Labor Capital Project, which has the following objectives: (1) invest in regional business and protect jobs, (2) promote economic awareness as well as training workers and unions and raising the level of influence on economic development, (3) stimulate regional economies, (4) encourage regional business enterprises by involving both labor and its allies to support institutional development, (5) provide capital to enterprises where unions have created more democratic and sustainable practices, and (6) provide prudent returns to investors.21

Other unions, including the American Federation of Labor-Congress of Industrial Organi- zations (AFL-CIO), have similar programs to promote jobs for union members.

Perhaps the most immediate and persistent influence on the creation of work rules is the technology of a particular workplace. Technology has four dimensions: (1) equipment

CHAPTER 1 Union Management Relationships in Perspective 17

used in the operation, (2) the pace and scheduling of work, (3) characteristics of the work environment and tasks to be performed, and (4) information exchange. Consider, for example, the major equipment found at a steel mill blast furnace, which requires a very high temperature for operation. Such a furnace cannot simply be turned on and off like a household oven. Often several days are required for either reaching the high operating temperature or for cooling the furnace for maintenance. This equipment characteristic affects the facility s work rules. In essence, steel mills must operate 24 hours a day, 7 days a week a situation prompting related work rules, such as wage premiums for working the night shift, weekends, or holidays. Other continuous operating organizations like hospitals, hotels, or large retail centers may face similar work rule issues.

In some cases, the introduction of equipment reduces or eliminates employees in a particular job classification. This situation occurs when industrial robots handle tasks formerly performed by employees. A rather common application occurs in the auto industry, where mechanically joined arms perform spot welding, spraying, machine unloading, and assembly. Unions faced with having membership replaced by robots have increased related bargaining demands to protect their members job security such as more paid time off; fewer hours comprising a regular work week (e.g., 35 or 38 hours versus a 40-hour week); or job transfer or retraining rights, enabling displaced workers to fill available vacant employment opportunities.

Technological advances in computer and communications have made many profes- sional jobs (e.g., accounting, engineering, and radiology) capable of being outsourced to workers at outside firms and even in different countries. Some workers benefit from new job opportunities, while others may lose their job as their employer seeks to reduce labor costs by outsourcing work formerly performed by its own employees.

Changes in technology have raised the level and type of skill requirements for many workers. While most competing firms have access to the same technology, the ability to apply that technology using the skills and brainpower of their employees ultimately determines whether any real competitive advantage is achieved. Technology improve- ments have created a greater demand for more highly skilled workers who are able to assume multiple responsibilities, while reducing the demand for strictly manual labor. Although, both profits and productivity growth have improved, average real hourly com- pensation for American workers has not changed significantly over the last 20 years, cre- ating increasing stress on workers seeking to maintain a middle class standard of living.22

Technological change can also result in certain jobs requiring fewer skills to perform. In the supermarket industry, electronic scanners are used to change item prices, record customers purchases, and maintain product inventory counts. Radio Frequency Identifica- tion (RFID) chips combined with smart shelf systems can send electronic signals to notify personnel when store shelves are depleted. These activities result in reduced skill requirements and compensation for cashiers as well as a need for fewer employees. Inter- estingly, self-service checkout stations in grocery stores, which allow one cashier to do the work of up to six, have met with some consumer resistance; many customers simply prefer to have their groceries scanned and bagged by grocery store employees.23

The pace and scheduling of the workday also affect the work rules of certain occupa- tions. For example, bus companies optimizing their productivity and revenue would concen- trate on rush-hour traffic (6:00 9:00 A.M., 3:00 7:00 P.M.) when buses are likely to be filled with passengers. However, problems would remain in scheduling work because many bus drivers might have a daily eight-hour work schedule of three hours on, three hours off, one hour on, two hours off, and four hours on. Because of the nature of the work, most labor agreements in related industries have provisions pertaining to the permissible number, length, and possible compensation of intervals (times off) between daily work assignments.

18 PART 1 Recognizing Rights and Responsibilities of Unions and Management

Computer operations can help both union and management officials in their daily labor relations activities. Union officers can use computer applications to maintain mem- bership and dues records, as well as word processing for communication to the member- ship. Union and management officials can also use computer applications in the areas of contract negotiations (costing the various proposals, writing contract language) and administration (maintenance and research of grievances and arbitration decisions).24

Union officers also use computer applications for communicating with the union s cur- rent and prospective members. E-mail, Internet, weblogs ( blogs ), and social networking Web sites are used to keep union members and the public informed of progress during negotiations. Also, both union and management spokespersons frequently use these commu- nication tools during union-organizing campaigns. (See Chapter 4, which discusses how unions use computer technology.) For example, the United Food and Commercial Workers (UFCW) Local 21 in Washington state has used its own Web site (http://www.ufcw21.org/) and a Facebook page (https://www.facebook.com/2013GroceryBargainingUFCW21) to bring attention to its complaints about nonunion grocers, including Wal-Mart.

One survey of U.S., U.K., Irish, Australian, and New Zealand labor unions finds that 97 percent have a Web site, 78 percent have an e-mail newsletter, and about one-half use Facebook. Less than 10 percent of union leaders use UnionBook, a social media site for union organizations (http://www.unionbook.org/); 13 percent post YouTube videos. The AFL-CIO has an extensive Web site (http://www.aflcio.org/) which enables workers, union members, and students of labor and employment relations to become informed regarding current developments.25 Students needing to research current labor relations topics for a class assignment may find the Labor Relations in Action box in this chapter helpful.

International Forces As participants in the global economy, both labor and management must continuously monitor international developments and trends to determine how their respective inter- ests may be affected and how best to respond. Many U.S. firms are dependent on foreign sales or production to generate profits. The international financial crisis in recent years has affected U.S. and foreign currency values as well as the availability and costs of nec- essary operating capital. Economic cycles have differing effects: a weak U.S. dollar value may make U.S.-produced goods and services cheaper to export but drive up the cost of imported goods and services. A strong U.S. dollar has opposite consequences in that U.S.-produced goods are more expensive overseas and imported goods become cheaper. After several years of decline, the dollar had begun strengthening; at the end of 2014, the U.S. dollar was again considered strong against other currencies. Finally, a recession in other countries may reduce the demand for U.S. goods and services in those countries, thus adversely affecting employment levels at U.S. exporting firms.26

The wars in Iraq and Afghanistan have affected thousands of Americans, including union members called up as reservists. Although companies are required to retain the reservists positions, some companies may be reluctant to hire and train new employees who may have to be laid off upon return of the reservists. Instead, companies may require other employees to work more overtime or temporarily reclassify employees (through pro- motions or transfers) to fill the positions left vacant by the call-up of the reservists.

Unions are concerned about the job security and economic impact of free trade agreements such as the North American Free-Trade Agreement (NAFTA; discussed more in Chapters 2 and 14) involving the United States, Canada, and Mexico. While imports from Mexico have clearly increased the U.S. trade deficit with Mexico since the enactment of NAFTA, the effect of NAFTA on U.S. employment and wages tends to be less clear.27 Unions tend to stress fair trade rather than free trade in discussing ways

CHAPTER 1 Union Management Relationships in Perspective 19

to ensure that domestic companies can compete effectively in global markets. In addition to fostering more cooperation with foreign-based labor organizations, U.S. unions also seek to promote policies aimed at raising pay, working conditions, and environmental and safety standards applicable to workers in foreign countries.28 Not only does such an approach serve to raise the living standards of workers in their own countries, it also serves to reduce the labor cost advantage of moving work done by U.S. workers to those foreign countries, thus enhancing job security for U.S. workers.

International trade is a major influence in the labor relations process. Imports and exports, trade deficits, exchange rates, capital investments, and jobs are interconnected. As an example, the U.S. trade deficit with China increased from $6 million in 1985 to $318 billion in 2013.29 Using trade surplus funds to purchase U.S. Treasury notes, China has become the U.S. government s largest foreign creditor.30 Some economists believe that China s currency is undervalued by 25 to 40 percent.31 Coupled with a low-wage work- force, this provides China with a competitive advantage in trade with the United States.

Major retailers, such as Target, Best Buy, and Wal-Mart, depend on low-priced imports from China. These imports help to keep inflation rates low and have helped the Federal Reserve to keep interest rates in the United States at their lowest levels in four dec- ades.32 A strong U.S. dollar has made imports appear cheap and has contributed to the growing U.S. current account deficit (mainly comprising the trade deficit but including capital income and transfers). With large and persistent external deficits, the United States has swung from being the world s largest creditor nation to its largest debtor, with net for- eign liabilities now at about one-fourth of GDP (gross domestic product). 33

The trend toward globalization has been characterized as free-market capitalism, which places enormous competitive pressures on all firms that become part of the global economy. Multinational firms that sell globally are pressured to produce globally by seg- menting their production chains and outsourcing each segment to the country that can produce cheapest and most efficiently. Newly industrialized countries are able to com- pete in price-conscious markets by paying lower wages, offering fewer benefits, and pro- viding less ideal working conditions than those available in the United States. In addition, due to the diversity and customization made possible by computer-based tech- nology, the cost advantages of American-style mass production have been reduced.34

Labor unions have been active in the international arena since their beginning. American labor unions have a long history of resisting the importation of foreign pro- ducts. Over the last two centuries, organized labor has been one of the more protection- ist institutions in America. This position should not be a surprise because unions are democratic organizations that must reflect the interests and needs of their members, many of whom believe that their jobs are endangered by foreign imports. Most union members have little inclination to accept assurances that they will find another compara- ble job or that, in the long run, everyone will be better off. Organized labor unsuccess- fully opposed trade legislation such as NAFTA and has consistently encouraged Congress to ensure that trade agreements with other countries contain safeguards for workers rights and environmental protections applicable to foreign trading partners. North American unions continue to support positions of the International Labor Orga- nization (ILO), a United Nations-sponsored labor federation headquartered in Geneva, Switzerland, which has adopted core labor standards promoting basic workers rights such as freedom of association, collective bargaining, the right to earn a living wage in a safe workplace, and the prevention of forced child labor.35 Organized labor continues to press the World Trade Organization and the International Monetary Fund to forge links between international trading rights and labor standards.36

20 PART 1 Recognizing Rights and Responsibilities of Unions and Management

LABOR RELATIONS IN ACTION Getting Online with Labor Relations Research

The number of electronic sources for locating informa- tion on collective bargaining and labor relations is con- stantly increasing. The most efficient method for finding reports in journals, magazines, newspapers, and other periodical literature is through the use of online research databases, which are offered by most university and college libraries to their students, faculty, and staff members. You will choose your sources depending on the time period you want to cover, the amount of infor- mation you need, and the availability of resources in your area. Libraries still maintain a collection of print indexes, but most of these are being replaced by online versions, which allow for faster searching and less maintenance by the library.

Online databases have several advantages over print indexes, including currency, the ability to print in a variety of formats, the ability to combine terms and other ways to limit (e.g., date, language, and publication title) to broaden or narrow a search, generate biblio- graphic citations by style, and the ability to e-mail or download articles. Online databases that can be searched from college libraries can also usually be searched from a dorm room, home, or office with appro- priate user authentication. A few disadvantages are the commitment of time to become skilled in their use, the availability of only selected content in some databases, and overlapping titles from database to database.

Subscriptions to online databases that provide access to indexing or the full text of articles on business topics are sold by a number of vendors, including Lex- isNexis, ProQuest (formerly University Microfilms or UMI), OCLC (FirstSearch), Gale (part of Cengage Learn- ing), and EBSCO. Databases specifically devoted to labor relations cases and issues are provided by the Bureau of National Affairs (BNA) and Commerce Clear- ing House (CCH). Most of these databases are provided through the Internet, although there are a few that are available electronically only on CD-ROM.

General business indexes are extremely useful in locating articles on labor relations. Business Periodicals Index, originally published by the H.W. Wilson Com- pany, is a print index that is still found in most libraries and, for many years, was the only business index likely to be found in a small library. The online version of the current index is Wilson Business Abstracts with Full Text; earlier years are accessible via a separate data- base: Business Periodicals Index Retrospective: 1913 1982. Wilson merged with database provider EBSCO in 2011.

Other general business periodical databases that are useful for finding trade publications are ABI/ INFORM Trade & Industry (ProQuest), Business & Industry (Gale Cengage Learning) and the Business News portion of LexisNexis Academic. Both Lexis- Nexis and its competitor, WestLaw Next (Thompson Reuters) publish law-related information and court case summaries. Trade journals such as Automotive News, Supermarket News, Editor & Publisher, and Modern Healthcare can provide related insights into labor issues and unions such as the United Autowor- kers (UAW), UFCW, Newspaper Guild, and American Nurses Association, respectively.

ABI/INFORM Global, produced by ProQuest, was one of the first electronic databases to provide an index to both scholarly journals and practitioner maga- zines pertaining to business. EBSCO Business Source Complete is another comprehensive business periodical database that offers 2,300 journals and general busi- ness periodicals including Business Week, Forbes, For- tune, American Banker, and many others. EBSCO has exclusive rights to the electronic version of Harvard Business Review. Both ABI/INFORM and EBSCO data- bases feature several academic journals in the field of labor and employment relations. Leading academic jour- nals include Industrial Relations, Industrial & Labor Rela- tions Review (ILR Review), Journal of Labor Economics, British Journal of Industrial Relations, Labor Law Jour- nal, Employee Relations, Labor History, Journal of Col- lective Negotiations, and Journal of Labor Research.

Newspapers are an excellent source of business information because of the detailed analysis of events not often found in other periodical literature. Because newspapers are often published daily, they offer the latest news about ongoing labor negotiations or work stoppages. Citations to articles in leading newspapers may be found in print indexes, whereas a rapidly increasing number of electronic indexes provide the complete text and indexing of national and regional newspapers. Many major newspapers maintain online Web sites that offer free access to some stories (e.g., the Washington Post, USA Today, Detroit Free Press, and Los Angeles Times). The text of the Wall Street Journal is offered by several sources, such as Lexis- Nexis Academic and ABI/INFORM Complete.

LexisNexis Academic and Regional Business News (EBSCO) are reliable sources to consult for arti- cles from regional newspapers about a particular event published in the city or region where the event took

21

Public Opinion Public opinion is a factor that also affects the labor relations process. The mass media (television, radio, newspapers, movies, music) represent an important influence within a community, serving as both a generator and conduit of community opinion. Media sources often tend to perpetuate a negative stereotype of unions. When put together, the collective media image portrays unions as greedy and corrupt institutions, eager to strike, protective of unproductive workers, heedless of America s need to compete inter- nationally, and generally outmoded in a society that would have no disruptive class antagonisms were it not for a few self-aggrandizing union hot-heads. 37 The media are profit-making businesses, and at least one prominent union official contends that this orientation biases the reporting of labor relations activities:

The media tend to cover collective bargaining as if it were a pier six brawl. The intri- cate moves and trade-offs that really make up bargaining aren t as newsy as impas- sioned rhetoric or a picket line confrontation. Reporters are given little training in covering collective bargaining. They are told to look for the news the fist fight, the walkout, the heated exchange and, as a result, frequently miss the story, which is the settlement. Every union proposal is a demand, every management proposal is an offer. 38

An analysis of 40 years of New York Times columns concerning labor unions agreed with the preceding quotation, as it found that the newspaper had increasingly concen- trated on strike activities and had exaggerated the frequency of strikes.39 Media coverage of labor issues often treats the subject matter as a consumer issue, focusing on how con- sumer prices or the availability of goods or services may be affected rather than focusing on the concerns of the workers affected by the labor issue.40

From the 1930s through the mid-1970s, the percentage of Americans who approve of unions was 60 percent or higher. Between the mid-1970s and 2008, approval has

place. Regional publications often offer a different per- spective from that of a national newspaper.

The Daily Labor Report, published by BNA in both print and online versions, is extremely useful in research- ing current labor relations topics. Coverage includes leg- islation pending in Congress, discussion of court cases, bargaining settlements, statistical information, and other items relating to labor. BNA also publishes the Labor and Employment Law Resource Center online, providing the full text of labor and employment cases, sample contract clauses, and manuals for answering day-to-day labor and employment law questions.

Government sources and libraries can also prove valuable. NLRB cases and policies can be searched directly from the agency s Web site. FLRA.gov has descriptions of cases involving federal employees who are covered under the Federal Labor Relations Act. Sev- eral states have searchable databases for state public- sector grievance cases; for example, Wisconsin cases

can be found at the Wisconsin Employment Relations Commission Web site. Archived full-text collective bar- gaining agreements can be downloaded at the Institute for Research on Labor and Employment at the Uni- versity of California Berkeley (http://www.irle.berkeley. edu/library/CBA.html). A similar database of collective bargaining agreements is found at the Digital Com- mons of the Industrial & Labor Relations School at Cornell University. The Digital Commons also contains reports from groups such as the Fair Labor Association, an anti-sweatshop group, which monitors production facilities to assess their compliance with the organiza- tion s labor standards.

Exploring the Web Internet exercises at the end of each chapter in this book will give you a chance to use some of these resources. They can be helpful in exploring different labor relations topics further to enhance your understanding of labor and employment relations.

22

hovered between 55 and 65 percent. Public approval of labor unions declined at the start of the recent economic recession to an all-time low of 48 percent in August 2009, down from 59 percent one year prior; however, it has since climbed steadily to 54 percent in 2013.41 These results vary by political party affiliation with a majority of Democrats (75 percent) approving of unions in 2013 compared to 51 percent of Independents and 34 percent of Republicans. Approximately two-thirds of Americans believe that unions are helpful to their members, but less than 50 percent believe unions are helpful to the companies where workers are organized and to the U.S. economy in general. About one- third of those surveyed in 2013 desired to see unions exert the same or more influence in the United States in the future compared to today; 25 percent said that unions should have the same amount of influence and 39 percent said that they should have less influence.

Public opinion of institutions in general is low in the United States, with more than one-third of the public currently expressing confidence in only 5 out of 17 surveyed American institutions: the military (74 percent), small business (62 percent), the police (53 percent), the church or organized religion (45 percent) and the medical system (34 percent). Only 22 percent of the public expressed a lot of confidence in organized labor about the same as big business (21 percent). Confidence in unions did rank ahead of the public s opinion of Congress (7 percent), television news (18 percent), and news on the Internet (19 percent).42 In a separate 2009 Harris Poll, adults surveyed believed that a number of groups exerted too much power and influence over govern- ment in Washington, D.C., including big companies and political action committees (85 percent each), news media (75 percent), entertainment and sports celebrities (70 percent), and labor unions (54 percent).43

Public opinion, like other external influences, can affect one or more phases of the labor relations process, as well as the content of negotiated work rules. After experienc- ing a bitter, well-publicized strike between Caterpillar and the UAW, the mayor of Peoria, Illinois feared employers would not locate in his community: We had worked so hard to make this a city with the image of having a cohesive relationship between labor and management, a place [in which] people should think about expanding their businesses or opening new ones. Now comes this strike, which is going to damage our reputation. In some cases, a community may stress its low union membership level or the anti-union attitudes of citizens as a benefit to encourage business organizations to expand or relocate there. For example, commenting on UAW efforts to organize a Volkswagen plant in Chattanooga (see Chapter 5 for details), Tennessee Senator Bob Corker explained why he spoke against unionization, It was critical that workers knew the potential long-term economic consequences of this decision on the state. If the UAW came into our community, attracting suppliers and other prospective companies would be far more difficult . On Feb. 14, [2014] the workers made their voices heard, with 53% voting against allowing the UAW to represent them. I believe that the workers understood that they were nothing more than dollar signs for the UAW. 44

Union officials are aware of the significant influence that public opinion can have on the labor relations process. Albert Shanker, former president of the American Federation of Teachers, indicated why he wrote the first of 1,000 columns entitled Where We Stand. After strikes were conducted by his union, Shanker reflected,

I became one of the best-known figures in New York City, but people saw me only as a militant union leader urging teachers to strike, refusing to settle, going to jail. In late 1968, I became convinced that I had been dead wrong in believing that the pub- lic s opinion of me didn t matter. Public schools depend on public support. And the public was not likely to support the schools for long if they thought teachers were led

CHAPTER 1 Union Management Relationships in Perspective 23

by a powerful madman . I decided to devote some time and energy to letting the public know that the union s president was someone who read books and had ideals and ideas about how to fix the schools.45

Union officials seek to enhance public opinion in three general ways: (1) monitoring and reacting to negative comments made in the media, (2) getting organized labor s pos- itive message out to the community, and (3) forming alliances with various groups in the community. For example, the AFL-CIO supported a march sponsored by the Rainbow PUSH Coalition in New Orleans, Louisiana, to encourage faster government action to rebuild homes and communities devastated by Hurricanes Katrina and Rita.46 The AFL-CIO has created its own Gulf Coast Revitalization Program, committing $1 billion dollars over seven years to fund housing and economic development initiatives. Another example is the BlueGreen Alliance, which is a national strategic partnership between environmental groups (e.g., Sierra Club) and labor unions (e.g., SEIU, United Steel- workers, CWA, and the American Federation of Teachers).47 The Alliance s goal is to expand the number and quality of jobs in the green economy. Organized labor con- tinues to work with community-based religious, civil rights, and environmental groups on issues of shared interests, such as improving health care access and affordability, immigration reform, and ensuring economic and social justice on the job and within the communities in which workers live.48

Unions have also become more sophisticated in creating their own media campaigns to support union membership and bargaining activities. Some efforts such as WakeUpWalMart.com or WalMartWatch.com target a specific company, while others target a specific issue, such as the Health Care Hustle Web site sponsored by Working America, an affiliate of the AFL-CIO representing 1.5 million employees who currently are not members of an organized bargaining unit.49 Some form alliances with indepen- dent Worker Centers. For information about such alliances, see the appropriate Labor Relations in Action box.

In some cases, organized labor has cultivated alliances with business organizations. A coalition including Wal-Mart, AT&T Inc., Intel Corporation, the SEIU, and the CWA worked to encourage public policy changes that would provide affordable health care coverage to all Americans.50 Other examples include the Public Works Alliance, which involves labor unions and contractors cooperating to obtain federal funds for road and bridge improvements in the Long Island, New York, area and a labor management alliance in Rhode Island seeking to save the funding of a valued job train- ing program.51

Union Membership

Union membership in the United States has shown a steady, gradual decline as a propor- tion of the total labor force (i.e., all employed persons 16 years of age or older). In 2014, union membership was 14.6 million, or 11.1 percent of the 131 million wage and salary employees in the total U.S. labor force.52 In 1945, union membership was about 36 per- cent of the total labor force. One partial explanation of this trend is that while the num- ber of union members has declined slowly (e.g., from 16.1 million in 2002 to 14.6 million in 2014), the number of people in the workforce has risen (e.g., from 122 million in 2002 to 131 million in 2014). Thus, even if union membership had held constant, it would comprise a smaller percentage of an expanding workforce. Union density, the propor- tion of a total group (e.g., national labor force, industry, or geographic region) comprised of union members, is one measure of relative union strength or potential influence.

24 PART 1 Recognizing Rights and Responsibilities of Unions and Management

LABOR RELATIONS IN ACTION Unions and Worker Centers

During the past decade, over 200 Worker Centers have formed. These nonprofit organizations provide ser- vices for groups of workers in their communities or in specific types of low-paying jobs. For example, there are Worker Centers for taxi drivers, day laborers, undocu- mented workers, farm workers, and fast-food employ- ees. They are funded through charitable donations and grants, often obtaining financial support from religious, political, environmental, and civil rights groups.a Worker Centers typically educate low-income and immigrant workers about their legal rights and about social ser- vices; some also advocate that workers join labor unions. Thus, Worker Centers represent a hybrid between social work organizations, political action/advo- cacy groups, and union recruiting centers. As one Worker Center described its activities,

If, for example, we discover that the most common problem in the restaurant sector is employer fail- ure to pay extra for overtime work, we may suggest to the [Worker Center] Board that we make that failure the focal point of a [publicity] campaign. (p. 112) b

Many individual unions support Worker Centers financially, and through joint cooperative actions. In 2006 and again in 2013, the AFL-CIO endorsed the idea of cooperating with Worker Centers. This alliance has produced some notable successes. For example, since the 1980s, many New York taxi firms have reclas- sified their drivers from employees to independent contractors ; this change means that the drivers are unable to join a union. Instead, many of the taxi drivers have formed the New York City Taxi Workers Alliance (NYTWA), a type of Worker Center. In 2006, the group partnered with the AFL-CIO and began securing improved working conditions from individual firms. In 2012, the NYTWA negotiated a fare increase from the New York Taxi and Limousine Commission, with the increase designated for a new type of benefit: health coverage.c

Because Worker Centers do not negotiate labor contracts with businesses or have ongoing relationships with specific employers, legally, they are not labor unions. Therefore, they are free to use tactics that tradi- tional unions cannot use, such as a secondary boy- cott where the group attempts to convince the public to boycott one firm s goods in order to persuade that firm to either not do business with a second company or pressure the second company to change its labor pol- icies. Thus, Worker Centers are not subject to the reg- ulations of the Labor Management Relations Act.d

Neither are they required to abide by the Labor Management Reporting and Disclosure Act (LMRDA; also called the Landrum-Griffin Act); this means that they do not have to disclose financial information to the same degree as labor unions.e They do not even have to garner the support of a majority of workers in a firm. If the leaders of a Worker Center believe that there are, say, safety problems at a particular employer, they can immediately take action.

What sorts of actions do Worker Centers do? A few tactics are common:

(1) Publicizing problems in the media. Protests for higher wages for fast food workers in the summer of 2014 were largely organized by Worker Centers in major U.S. cities.

(2) Boycotts and picketing. Besides drawing the pub- lic s attention to issues of concern, these efforts can hurt a company financially. For example, a four-year boycott of Taco Bell in Florida by the Coa- lition of Immokalee Workers led to Taco Bell restau- rants agreeing to pay more for tomatoes, with the increase going into farm workers pay.

(3) Lobbying for government action. This has resulted in increases in the minimum wage in some cities as well as California and Washington State.

(4) Class-action lawsuits. Lawsuits filed on behalf of employees can sometimes result in out-of-court voluntary settlements that improve wages or work- ing conditions and sometimes these settlements include employer donations to the Worker Center.

(5) Union organizing. Sometimes Worker Centers help organizers get jobs within a nonunion firm with the primary goal of forming a union a tactic that is called salting.

Employers see this set of tactics as a form of harassment, led by outside groups who are not accountable to anyone. A union is accountable to its members who are employees of the company; if a majority of the members want the union to pursue a course of action, then they can encourage its leaders to do so. However, because Worker Centers are not unions, they do not need to have the support of a majority of the employees. Critics complain that the lack of legal regulation, accountability, and officially sanctioned union bargaining rights for Worker Centers means that employers cannot negotiate a compromise settlement. Many employers complain that their profit margins are too thin to afford some of the demands these groups make yet they can t afford to hire

25

One estimate predicts that unions would need to organize 1 million new members annually to increase the union density level in the total labor force by 1 percent.53

Exhibit 1.4 shows union membership data trends since 1975.

Exhibit 1.4 Union Membership Trends, 1975 2014 (in thousands)

Year Total Employment

Union Members

Percentage Union Members

Percentage Represented for Bargaining

1975 75,703.9 16,778 22.2

1980 87,479.5 20,095 23.0 25.7

1985 94,520.5 16,996 18.0 20.5

1990 103,904 16,740 16.1 18.3

1995 110,038.1 16,359 14.9 16.7

2000 110,038.1 16,258 14.9 14.9

2005 125,889.3 15,685 12.5 13.7

2010 124,073 14,715 11.9 13.1

2013 129,110 14,528 11.3 12.4

2014 131,431 14,576 11.1 12.3

Data set is based upon information in the Current Population Survey (CPS) compiled by the Bureau of Labor Statistics, U.S. Department of Labor.

SOURCES: U.S. Department of Labor, Union Members in 2010, News Release, January 21, 2011; U.S. Department of Labor, Union Members in 2013, News Release, January 24, 2014; Barry Hirsch and David Macpherson, Union Membership, Coverage,

Density, and Employment among All Wage and Salary Workers, 1973 2006, Unionstats.com, 2007, p. 1 at http://www.trinity. edu/bhirsch/unionstats/.

attorneys, lobbyists, and advertising agencies to fight these tactics either. Consequently, some owners, managers, and critics (like Worker Center Watch ) view Worker Center tactics with distain, likening them to extortion.f

Even within the labor movement, the alliance between Worker Centers and traditional unions is often tenuous. Some Worker Centers are dominated by activists who are suspicious of both capitalism and of what they see as overly bureaucratic unions. At others, leaders worry about being co-opted by traditional unions. Unions have criticized Worker Centers for refer- ring the unemployed to low-wage nonunion employers. Consequently, while both types of groups cooperate to improve poor workers wages and working conditions, such cooperation has not yet resulted in substantial membership gains for unions.g

It will be interesting to see how this develops over the upcoming years. Will Worker Centers remain a set

of minor players in the labor movement? Or will they grow and redefine the labor movement in the twenty- first century?

aRobert J. Grossman, Leading from Behind? HR Magazine, 58 (12), Dec., 2013, pp. 37 41. bAlice B. Gates, Integrating Social Services and Social Change: Lessons From an Immigrant Worker Center, Journal of Community Practice, 22(1), 2014, pp. 102 129. cAvendaño, Ana, and Jonathan Hiatt, Worker Self-Organization in the New Economy: The AFL-CIO s Experience in Movement Building with Community-Labour Partnerships, Labour, Capital & Society, 45(1), April, 2012, pp. 66 95. dEli Naduris-Weissman, The Worker Center Movement and Traditional Labor Law: A Contextual Analysis, Berkely Journal of Employment & Labor Law, 30(1), 2009, pp. 232 335. eMax Mihelich, Worker Centers Are Center of Attention, Workforce, 92(11), Nov., 2013, pp. 24 25. fRyan Williams, Worker Center Watch calls on Florida Attorney General to Investigate CIW, Worker Center Watch News, Nov., 2013. Accessed Oct. 28, 2014 at: http:// www.workercenterwatch.com/wcw-calls-on-fl-attorney-general-to-investigate-ciw/. gFine =Janice R. Fine, New Forms to Settle Old Scores: Updating the Worker Center Story in the United States, Relations Industrielles/Industrial Relations, 66(4), Fall, 2011, pp. 604 630.

26

Unions typically represent a higher number of employees than are actually union members because a simple majority of employees must support a union in order for that union to gain the legal right to represent the entire employee group (called a bar- gaining unit ) for purposes of collective bargaining. While no employee can legally be required to become a full active member of any union, if that employee is a member of an employee group whose majority has chosen to be represented by a union, then all members of that group would be covered by the labor agreement negotiated by that union and the employee group s employer. In 2014, 1.6 million employees had jobs cov- ered by a collective bargaining agreement (labor contract) but were not union members themselves.54 Almost half of these individuals were government employees.

In 2014, 7.3 million (6.6 percent) of over 111 million private-sector employees were union members, while 7.4 percent of private-sector employees were represented by a union for purposes of collective bargaining.55 A similar number of union members were employed in the public-sector (7.2 million), but the union density was greater, with union members comprising 35.7 percent of total public-sector employment. Approximately 39.2 percent were represented by a union for purposes of collective bargaining. The higher union representation among public-sector employees varies by level of public employment, with 45.5 percent of local government employees, 32.8 percent of state employees and 31.6 percent of federal employees represented by a union for purposes of collective bargaining. Union membership among these groups is 41.9 percent for local government employees, 29.8 percent for state employees, and 27.5 percent for federal employees. Public-sector labor relations issues and trends will be discussed further in Chapter 13.

The gradual decline or stagnation in union membership has been attributed to three broad factors: (1) structural changes in the labor force, (2) improved management prac- tices in business organizations, and (3) political and legal conditions governing the work- place. Of these three explanations, research suggests that changes in the structure of the labor force may be the most important.56 Since 2008, job losses due to the economic recession resulted in the loss of many union members, particularly in the manufacturing and construction industries.57

Structural Changes in the Economy Employment has shifted from traditionally unionized industries (manufacturing, rail- roads, and mining) to professional and service-related industries (e.g., health care, legal, education, food preparation, personal care and service, building and grounds cleaning and maintenance, and protective services).58 Many of the fastest growing occupations are at opposite ends of the level of education and skills continuum required for effective job performance. The problems of defending a shrinking number of high wage manufacturing jobs are different from organizing the growing ranks of lower-wage ser- vice workers. But what they have in common is the need to confront industry with one union that can bargain hard and solve problems. 59

Most business organizations in the United States are small, with 88 percent of firms having fewer than 20 employees and 98 percent of firms having fewer than 100 employ- ees.60 Union membership has traditionally been concentrated in the 2 percent of firms that account for 43 percent of all jobs in the economy. Efforts to increase union membership in small firms is both time consuming and more expensive for labor organizations.

Demographic trends affecting the size and composition of the labor force can also affect union membership trends. The proportion of the labor force comprised of individuals 55 years and older is expected to increase while the proportion of individuals in the 16 24 and 25 54 age groups is expected to decline.61 Over the period from 1992 to 2014, the proportion of the U.S. labor force comprising men declined from 54.6 percent to 51.7 percent, while

CHAPTER 1 Union Management Relationships in Perspective 27

women s proportion increased from 45.4 percent to 48.2 percent. These percentages are expected to remain virtually unchanged through 2022. The percentage of Whites in the work- force changed little, from 77.1 percent in 1992 to 79.2 percent in 2014; yet, it is expected to drop to 60 percent in 2022. In 2014, Black, Asian, and Hispanic workers comprised 12.0 per- cent, 5.7 percent, and 16.4 percent of the workforce. By 2022, groups of Black, Asian, and Hispanic origin groups will increase their representation in the labor force to an estimated 12.4 percent, 6.2 percent, and 19.1 percent of the labor force respectively. Unions will need to be able to attract and retain new members from these groups of employees to maintain or increase current union density levels in the future.

In 2014, 24.7 million part-time workers comprised about 19 percent of the total labor force.62 Unions represented 13.6 percent of full-time workers but only 6.6 percent of part-time workers for purposes of collective bargaining in 2014. Among these, 12.3 percent of full-time workers and 5.8 percent of part-time workers are union members.63

Research demonstrates that growth in part-time employment has a small, but significant, negative impact on union density, although this negative effect declines as the number of hours of work increases to 20 or more per week.64

LABOR RELATIONS IN ACTION Are Unions Still Relevant?

The answer to the provocative question of whether unions are still relevant in today s economy may depend on who you ask. Andrew Stern, past president of the SEIU believes the need for unions today may be greater than at any time in the past 75 years.

I think American workers want a voice on their job. The question is: Will unions change to become better partners with employers to respond to what is now a global economy where more people went to work in the U.S. in retail than in manufacturing? We want to find a 21st century new model that may look more like a European model, that is less focused on individual grievances, more focused on industry needs. We don t see our employers as enemies. We need to build successful employers [and] as a part of that you need to be involved and have a voice, and every- one needs to share in the success of an employer, not just the share-holders and executives.a

The AFL-CIO shares the belief that unions are just as important today as ever and views one important union role as safeguarding workers past gains while seeking a fair share of future prosperity.

Through unions, workers win better wages, bene- fits, and a voice on the job and good union jobs mean stronger communities. Unions have made life better for all working Americans by helping to pass laws ending child labor, establishing the eight-hour day, protecting workers safety and health and helping to create Social Security, unemployment insurance and the minimum wage, for example. Unions are continuing the fight today to improve life for all working families in

America.b A survey of Canadian employees reported the top three advantages of unions were that they made health and safety, job security, and benefits a lot better on the job.c While agreeing that it was important for workers to have a voice on the job, more Canadians preferred an employee association form of representa- tion that would take up problems on behalf of workers with management than the traditional Canadian union model.

Employers, particularly those who currently are non- union, are more likely to argue that unions today are no longer necessary. the protections unions used to seek, such as from unfair dismissal and dangerous work- places, have with labor s ardent support been taken over by government. d What were once considered sig- nificant employee pension and health care benefit gains under union contracts are now referred to as high legacy costs by unionized employers in industries such as air- lines and autos, making those employers less competi- tive and threatening job security.e

Ultimately, what matters is how employees will answer the question of whether unions are still relevant. The issue of why employees join a union will be explored further in Chapter 5.

aKris Maher, Are Unions Relevant? Wall Street Journal, January 22, 2007, p. R-5. bAFL-CIO, A Quick Study of How Unions Help Workers Win a Voice on the Job, Unions, 101 (accessed August 13, 2010), p. 1 at http://www.aflcio.org/joinaunion/ union101.cfm. cUyen Vu, Employees Want a Collective Voice, but Not Necessarily a Union, Survey Says, Canadian HR Reporter, 16(20), 2003, pp. 3, 11. dRobert J. Grossman, Do Unions Pay? HR Magazine, 50(5), May 2005, p. 49. eMichael Barone, Big Labor, RIP, Wall Street Journal, July 28, 2005, p. A-10.

28

Changing Management Practices Another reason often given for stagnant or declining union membership is that more organizations are learning how to operate their businesses on a nonunion basis. Some- times this entails moving some or all operations to less-unionized geographic areas of the United States (e.g., the Southwest and South). More firms are trying to be proactive in recognizing and addressing employee interests and concerns. Managers are also adopting human resource management practices, including aggressive anti-union cam- paigns (see Chapter 5), to keep their firms nonunion.

Some union officials indicate that employers often use labor law loopholes to fore- stall or negate free employee union choice through secret-ballot elections. For example, using pre-election procedural time delays, contesting election results, lengthy appeals, and delays in union attempts to negotiate a first contract settlement once union recogni- tion is granted are possible under the Labor Management Relations Act (LMRA) (see Chapter 3). One analyst makes a comparison with the political process: Suppose U.S. political elections were legally structured so that access to potential voters was denied to one political party (analogous to the union), while it was granted to the other one for eight hours a day at one s place of work. The second political party (analogous to man- agement) could force the electorate to listen to campaign speeches (captive audience meetings), while the opposing party was denied access.65

Changing Legal Environment Employment law changes that have expanded employees rights Passage of the Ameri- cans with Disabilities Act (ADA), Equal Employment Opportunity Act, Occupational Safety and Health Act (OSHA), Employee Retirement and Income Security Act (ERISA), Lilly Ledbetter Fair Pay Act, and other laws have helped employers to argue that unions are less necessary today. Indeed, many unions appear to be committing more of their resources to serving the needs of their current members than to organizing new members.

There is an ongoing debate within the union movement regarding the proportion of resources that ought to be devoted to organizing new members versus providing enhanced services (e.g., negotiating contracts; researching wage, benefit, and working condition issues; processing contract grievances; monitoring political issues) to currently represented members. Each union s membership must decide if organizing new employees is in their best interests when these efforts would require the use of scarce union organization funds earmarked for present members services. Mary Kay Henry, the president of the SEIU, has made union organizing the organization s primary goal, with the union investing $250 mil- lion annually in organizing activities.66 Because unions are political organizations and union leaders are elected by the current membership, the incentive to organize new mem- bers is often less than the incentive to provide services to current members.67

Although union membership has experienced a gradual decline as a percentage of the total labor force, many labor unions have responded by increasing their union- organizing activities. Unions are attempting to improve the ways in which they relate both to their own members and to employers with whom they have bargaining relation- ships.68 The social significance of unions can also be assessed in general terms by consid- ering what the consequences would be if unions were absent from our society. With no organized voice for workers interests to counterbalance the economic interests of employers to reduce labor costs, will the improvements gained over the previous century continue, or will they be subject to erosion and lax enforcement? Labor unions have his- torically functioned in the United States as a countervailing power necessary to maintain some balance between employer and employee rights and responsibilities.

CHAPTER 1 Union Management Relationships in Perspective 29

Summary Although unique to the particular labor management activities, attitudes, and relationships at each organiza- tion (discussed more in Chapter 4), the labor relations process includes three key phases or steps: recognition of the legitimate rights and responsibilities of union and management representatives, negotiation of a labor agreement, and daily administration of the terms of that negotiated labor agreement.

The labor relations process focuses on jointly nego- tiated and administered work rules that pertain to com- pensation and employees and employers rights and responsibilities. The labor relations process is flexible enough to permit negotiated work rules to vary, thus accommodating the unique characteristics of a particular industry, job classification, geographic setting, or exter- nal environmental conditions. The labor relations pro- cess is dynamic, which enables bargaining relationships to adapt to changing competitive conditions.

Union and management officials represent two key participants in the labor relations process along with employees, government, and certain third-party neu- trals such as mediators and arbitrators who aid in resolving interest and rights-type disputes. Employees are particularly important in the labor relations process

because they determine whether a union will be chosen to represent their employment interests. Employees typically demonstrate some degree of dual loyalty to both their union and employer, which helps to deter- mine the organizational effectiveness of each. However, there may be certain critical times in a bargaining relationship when each employee will have to decide which side they are on.

Participants in the labor relations process are influ- enced by several variables such as technology (equip- ment, pace and scheduling of work, the work environment and tasks to be performed, and informa- tion exchange); labor and product markets; international forces such as trade agreements or armed conflicts; public opinion; and prevailing economic conditions.

The current status of labor unions can be assessed from both statistical and general standpoints. A pro- longed decline in the proportion of the total labor force comprised of unionized employees has occurred in the United States. However, this trend and its related general explanations (employment shifts; business organizational practices; and economic, legal, and political conditions) do not indicate that unions have lost their societal significance.

Key Terms labor relations process, p. 5 interest disputes, p. 6 rights disputes, p. 6 work rules, p. 7 managers, p. 10 management consultants, p. 11 union representatives, p. 11 employees, p. 11

dual loyalty, p. 12 government, p. 12 third-party neutrals, p. 12 mediators, p. 12 arbitrator, p. 13 economy, p. 14 discouraged workers, p. 15 labor market, p. 16

product or service market, p. 16 financial market, p. 17 technology, p. 17 international forces, p. 19 public opinion, p. 22 Worker Centers, p. 24 union density, p. 24 employment-at-will, p. 39

Discussion Questions

1. Exhibit 1.1 illustrates the focal point of the labor relations process and many variables that affect the process. Select an academic discipline such as political science, economics, or sociology, and indicate three specific ways the discipline could add insights into the labor relations process.

2. Think about a job you have performed and dis- cuss some of the external variables (see the outer

circle of Exhibit 1.1) that influenced the work rules required on that job.

3. The text outlines three basic assumptions under- lying the labor relations process in the United States. To what extent do you agree or disagree with these assumptions? Does your response dif- fer depending on whether you think about the question from the perspective of an employer or an employee?

30 PART 1 Recognizing Rights and Responsibilities of Unions and Management

4. Discuss your opinion regarding whether unions are still relevant and necessary in today s work environment. What other means might be used to ensure employee voice in the workplace?

5. Can an individual be both pro-union and pro- employer, or does being pro-union mean one has to be anti-employer? Can an individual be anti- union and still legitimately claim to support pro- employee interests?

Exploring the Web

Labor Relations from Several Points of View

1. Public Opinion Polls Chapter 1 discusses the effect that public opinion may have on the labor relations process. Public opinion polls can provide an indication of the back- ing or support by the public during a strike.

The Gallup Organization s Web site provides abstracts of the results of polls the organization has conducted (a subscription is required to read most of the full reports). The abstracts can provide some insight into the attitudes of the public on labor issues. Go to the Gallup home page and determine how employees are reacting to the recent economic recession.

The Harris Poll provides portions of its reports without charge on the Harris Interactive Web page. Search the site for results of a recent poll on American adults attitudes toward gender equality.

2. Reports from Labor and Management Web Sites Good sources of information on labor relations can be found by searching the Web sites of labor unions and management organizations as well as reports from newspapers and newswires. Go to the Web site of the AFL-CIO and under Get Informed click on Health Care to find out what labor unions are thinking and doing to implement health care reform.

Go to the Web site of the U.S. Chamber of Com- merce and find out what the Chamber is doing to help employers implement health care reform legis- lation recently passed by Congress.

3. Newspapers The Library of Congress provides News & Periodical Resources on the Web, a Web page that provides links to online newspapers and news services. You may know of other free news services that you search on a daily basis. Search online news sources to find articles that discuss labor relations involving aircraft mechanics at American Airlines and/or Southwest Airlines in the Dallas Fort Worth, Texas area. For example, mechanics at Southwest are upset with increasing workloads and difficulty in negotiating a new contract. Some members at American have been unhappy with their current union representative, the Transport Workers Union, and are considering joining a new, indepen- dent union (the Association of Maintenance Profes- sionals). Pick one of these airlines and write about the main issues and current developments. For example, what might be the advantages or disadvan- tages of being represented by a smaller independent union versus a larger national union affiliated with the AFL-CIO (an organization discussed further in Chapter 4) at American Airlines? How do mergers or acquisitions affect labor relations? You may also want to consult union and industry weblogs (e.g., Sky Talk ) as you research your topic.

References 1. See, for example, Lance Compa, Workers Free-

dom of Association in the United States, in Workers Rights and Human Rights, ed. by James A. Gross (Ithaca, NY: Cornell University Press, 2003), pp. 23 52; AFL-CIO, The Silent War: The Assault on Workers Freedom to Choose a Union

and Bargain Collectively in the United States (Washington, D.C.: AFL-CIO, June 2002), pp. 1 24; Kate Bronfenbrenner et al., Introduc- tion in Organizing to Win: New Research on Union Strategies (Ithaca, NY: ILR Press, 1998), pp. 1 8; William N. Cooke, The Failure to

CHAPTER 1 Union Management Relationships in Perspective 31

Negotiate First Contracts: Determinants and Policy Implications, Industrial and Labor Rela- tions Review 38(2), January 1985, pp. 163 178.

2. John Dunlop, Industrial Relations Systems, rev. ed. (Boston: Harvard Business School Press, 1993), pp. 13 16.

3. 2010 Employer Bargaining Objectives, Collec- tive Bargaining Bulletin, 15(5), 2010, p. s23; John D. Boyd, Hours Rule Change Pits Railroads against Unions, Journal of Commerce (July 2, 2009), pp. 1 2; VW Wants 35-Hour Workweek, but Union Says No, Wall Street Journal, June 13, 2006, p. A-11.

4. AFA-CWA Applauds Anticipated FCC Decision to Keep Cell Phones Off Aircraft, News Release, March 22, 2007, p. 1 at http://www.afanet.org (accessed April 29, 2011); Nancy Keates, Rising Concern: Falling Luggage Inside Airplanes, Wall Street Journal, November 10, 1997, pp. B-1 & 10.

5. Service Employees International Union, Health- care Workers in Peril: Preparing To Protect Worker Health and Safety During Pandemic Influenza: A Union Survey Report, April 16, 2009, pp. 1 14 at http://www.seiu.org/Healthcare% 20Workers% 20in%20Peril%20April%202009.pdf; Bureau of National Affairs Inc., Daily Labor Report, September 10, 1992, p. A-12.

6. Sandra M. Tomkowicz and Susan K. Lessack, Where There s Smoke: Employer Policies on

Smoking, Employee Relations Law Journal, 32(3), 2006, pp. 48 65; Mollie H. Bowers, What Labor and Management Need to Know about Workplace Smoking Cases, Labor Law Journal 43(1), January 1992, pp. 40 49; Americans for Effective Law Enforcement, AELE Law Library of Case Summaries: Employment & Labor Law for Public Safety Agencies Smoking Rights/Restrictions & Air Quality. November 4, 2014, at http://www. aele.org/law/Digests/empl205.html

7. Dionne Searcey, Currents Labor Journal: Some Courts Raise Bar on Reading Employee E-mail, Companies Face Tougher Tests to Justify Moni- toring Workers Personal Accounts, Rulings Hinge on Expectation of Privacy , Wall Street Journal, November 19, 2009, p. A17; David Halpern, Patrick J. Reville, and Donald Grunewald, Management and Legal Issues Regarding Electronic Surveillance of Employees in the Workplace, Journal of Business Ethics, 80(2), 2008, pp. 175 180; William H. Ross,

Christopher J. Meyer, Jeng-Chung Victor Chen, and Paul Keaton, The Role of Human Resource Management in Protecting Information at Tele- communications Firms, Journal of Information Privacy and Security, 5(2), 2009, pp. 49 77; Donald E. Sanders, John K. Ross, and Patricia Pattison, Electronic Snoops, Spies, and Supervisory Surveil-

lance in the Workplace, The Southern Law Journal, 23(1), 2013, pp. 1 27; Margaret A. Lucero, Robert E. Allen, and Brian Elzweig, Managing Employee Social Networking: Evolving Views from the National Labor Relations Board, Employee Responsibilities and Rights Journal, 25(3), 2013, pp. 143 158.

8. The System for Forming Unions Is Broken, AFL-CIO, 2007, p. 1 at http://www.aflcio.org/ joinaunion/voiceatwork/brokensystem.cfm joinaunion/voiceatwork/brokensystem.cfm; Kris Maher, Unions New Foe: Consultants, Wall Street Journal, August 15, 2005, p. B1.

9. Kate Bronfenbrenner, Raw Power: Plant Closing Threats and the Threat to Union Organizing, Multinational Monitor, December 2000, p. 28.

10. John J. Lawler, The Influence of Management Consultants on the Outcome of Union Certifica- tion Elections, Industrial and Labor Relations Review, 38(1), 1984, pp. 38 51; Bruce E. Kaufman and Paula E. Stephan, The Role of Management Attorneys in Union Organizing Campaigns, Journal of Labor Research, 16(4), 1995, pp. 439 455; Bureau of National Affairs Inc., Special Report, Labor Relations Consultants: Issues, Trends, and Controversies (Washington, D.C.: Bureau of National Affairs Inc., 1985).

11. William A. Ward, Manufacturing Jobs, 2005 2010, Economic Development Journal, 5(1), 2006, pp. 7 15; Louis Uchitelle, A Missing Statistic: U.S. Jobs That Have Moved Overseas, New York Times, October 3, 2003, p. 21. For a more thorough discussion, see Erica L. Groshen and Simon Porter, Has Structural Change Contributed to a Jobless Recovery? Report of the Federal Reserve Bank of New York, 9(8), 2003, pp. 1 7 at http://www.ny.frb.org/research.

12. Therese Jefferson and Alison Preston, Negotiat- ing Fair Pay and Conditions: Low Paid Women s Experience and Perceptions of Labour Market Deregulation and Individual Wage Bargaining, Industrial Relations Journal, 41(4), 2010, pp. 351 366; Kevin E. Henrickson and Wesley

32 PART 1 Recognizing Rights and Responsibilities of Unions and Management

W. Wilson, Compensation, Unionization, and Deregulation in the Motor Carrier Industry, Journal of Law and Economics, 51(1), 2008, pp. 153 177; John Nevile and Peter Kriesler, Minimum Wages, Unions, the Economy and

Society, Economic and Labour Relations Review, 19(1), 2008, pp. 25 38; Pierre-Yves Cremieux, The Effects of Deregulation on Employee Earn-

ings: Pilots, Flight Attendants, and Mechanics, 1959 1992, Industrial and Labor Relations Review, 49(2), 1996, pp. 223 242.

13. Denise Rousseau, I-deals: Idiosyncratic Deals Employees Bargain for Themselves. (Armonk, NY: M. E. Sharpe, 2005); Steven L. Blader, What Leads Organizational Members to Collectivize? Injustice and Identification as Precursors of Union Certification, Organization Science, 18(1), 2007, pp. 108 126.

14. Interest Rates: How Soon and How Far will they Climb? ABA Banking Journal, 102(5), 2010, p. 38; Jon Hilsenrath, Fed Sees Slower Growth, Officials Debate How to Respond if Recovery Falters, Softer 2nd Half Is Seen, Wall Street Journal, July 14, 2010, p. A-1; Barbara Hagen- baugh, Fed Holds Rates Steady Again, USA Today, May 9, 2007, pp. 1 2 at http://www.usa today.com/money/2007-05-09-fed_N.htm.

15. Stephen F. Hipple, The Labor Market in 2009: Recession Drags On, Monthly Labor Review, 133(3), 2010, pp. 3 22; Ian D. Wyatt and Kathryn J. Byun, The U.S. Economy to 2018: From Recession to Recovery, Monthly Labor Review, 132(11), 2009, pp. 11 15; U.S. Department of Labor, The Employment Situation: October, 2009, News Release, November 6, 2009, pp. 1 29 at http://www.bls.gov/news.release/archives/emp- sit_11062009.pdf; U.S. Department of Labor, The Employment Situation: September, 2014,

News Release, October 3, 2014, pp. 1 38 at http:// www.bls.gov/news.release/pdf/empsit.pdf.

16. Catherine Rampell, With Positions to Fill, Employers Wait for Perfection, New York Times [online edition], March 6, 2013 at http://www. nytimes.com/2013/03/07/business/economy/ despite-job-vacancies-employers-shy-away-from- hiring.html?pagewanted=all&_r=0; Gregory W. Brown and Christian Landblad, The U.S. Economic Crisis: Root Causes and the Road to Recovery, Journal of Accountancy, 208(4), 2009, pp. 42 49.

17. The Alliance for Employee Growth and Devel- opment, Inc., About Us, August 5, 2010, pp. 1 2 at http://www.employeegrowth.com/ about_us.htm.

18. Workforce and Economic Development Program of the California Labor Federation, Working Together: Sectoral Lessons from Labor- Management Training Partnerships in Califor- nia, (Berkley, CA: Univ. of California Berkley Labor Center, 2007), pp. 11 16 at http://www. calaborfed.org/userfiles/doc/2011/Working TogetherHighRoadReport112111.pdf; Hoyt N. Wheeler, The Future of the American Labor Movement (Cambridge, U.K.: Cambridge University Press, 2002), pp. 80 81.

19. Laurie Harbour-Felax, Challenges for Industry Decision Makers, Automotive Design & Produc- tion, 120(2), 2008, p. 12; Kathy Jackson, UAW Fights GM Plan to Hire Suppliers to Prepare Parts, Automotive News, June 2, 1997, p. 1; James R. Healey, Tangled Web of Rules Obscures Autos Origins, USA Today, March 2, 1992, pp. B-1, 3.

20. Barry B. Burr, UAW s $45 Billion Vehicle Steers Towards a New Asset Allocation, Pensions & Investments, 38(5), 2010, pp. 2 4; Pensions at Work: Socially Responsible Investment of Union- Based Pension Funds, ed. by Jack Quarter, Isla Carmichael, and Sherida Ryan (Toronto: Univer- sity of Toronto Press, 2008); Jill Andresky Fraser, Capital: State of the Union, Inc. Magazine, July

2002, pp. 1 2 at http://www.heartlandnetwork. org/pressarticles/article9.htm; Emma Blackwell, Asset Managers Launch Labor-Friendly Private

Equity Vehicles, Corporate Financing Week, April 24, 2006, p. 1; Working Capital: The Power of Labor s Pensions, ed. by Archon Fung, Tessa Hebb, and Joel Rogers (Ithaca, NY: Cornell University Press, 2001).

21. Thomas Croft, Up from Wall Street: The Respon- sible Investment Alternative (New York: Cosimo Books, 2009); Wheeler, The Future of the Ameri- can Labor Movement, pp. 176 177; The Heart- land Labor Capital Network, at http://www. heartlandnetwork.org/ (accessed April 29, 2011).

22. Rebecca Keller, How Shifting Occupational Composition Has Affected the Real Average Wage, Monthly Labor Review, 132(6), 2009, pp. 26 38; David Wessel, Politics and Econom- ics, Capital: Fishing Out Facts on the Wealth

CHAPTER 1 Union Management Relationships in Perspective 33

Gap, Wall Street Journal, February 15, 2007, p. A-10; David Wessel, Fed Chief Warns of Widening Inequality, Wall Street Journal, February 7, 2007, p. A-6; Wheeler, The Future of the American Labor Movement, pp. 25 27.

23. Attaran, M. Keeping the promise of efficiency, Industrial Engineer, 41(3), 2009 (March), pp. 45 50. Ming-Hui Huang and Roland T. Rust, Should Your Business Be Less Productive? MIT

Sloan Management Review, 2014 (Spring) [Online edition] at http://sloanreview.mit.edu/article/ should-your-business-be-less-productive/.

24. Christopher M. Lowery, Nicholas A. Beadles II, and Larry H. Faulk II, Assessing the Usability of Union Web Sites, Communications of the IIMA, 8(3), 2008, pp. 49 56; Neil De Clereq, Alec Meiklejohn, and Ken Mericle, The Use of Microcomputers in Local Union Administration, Labor Studies Journal, 10(1), Spring 1985, pp. 3 45.

25. Jessica Miller-Merrell Research Reveals how Labor Unions Use Social Media Blogging4Jobs, [online weblog], Feb. 22, 2012, at http://www. blogging4jobs.com/social-media/labor-union- social-media/; Cynthia G. Wagner, Cyberunions: Organized Labor Goes Online, Futurist, 34(1), 2000, p. 7; Alex Bryson, Rafael Gomez, and Paul Willman, Online Social Networking and Trade Union Membership: What the Facebook Phe- nomenon Truly Means for Labor Organizers, Labor History, 51(1), 2010, pp. 41 53.

26. Charles Forelle, Nick Skrekas, and Bob Davis, Greece Gets Aid, Promises Austerity, Wall

Street Journal (Online), May 1, 2010, pp. 1 2 at http://proquest.umi.com/pdqweb? did=2023352491&sid=3&Fmt=3&client id=1997&RQT=309&VName=PQD; V. K Bhalla, Global Financial Turmoil: Containment and

Resolution, Journal of Management Research, 9(1), 2009, pp. 43 58; Andrew Dollard, The Dollar s Decline Offers Advantages Over Foreign Rivals, Rochester Business Journal, 24(19), 2008, p. 25; Paul R. LaMonica, The U.S. Dollar is Super Strong Now, CNN Money, Sept. 2, 2014, at http://money.cnn.com/2014/09/02/investing/ strong-us-dollar-euro-weak-ecb/

27. Ki Hee Kim and William Paterson, Is Free Trade Good for Working Americans: Lessons from North American Free Trade Agreement, Business Review, Cambridge, 15(1), 2010, pp. 33 38; Mihal

Nica, Ziad Swaidan, and Michael M. Grayson, The Impact of NAFTA on Mexican-American

Trade, International Journal of Commerce and Management, 16(3 4), 2006, pp. 222 233.

28. Marisa von Bulow, Networks of Trade Protest in the Americas: Toward a New Labor Internation- alism? Latin American Politics and Society, 51(2), 2009, pp. 1 27; Andrew Batson, How U.S. Labor Leaders Chart a Global Course, Wall Street Jour- nal, May 23, 2007, p. A-6; Anya Sostek, USW Joins Effort to Form Superunion, Knight Ridder Tribune Business News, April 19, 2007, p. 1.

29. Foreign Trade Division of the U.S. Census Bureau, Trade in Goods (Imports, Exports and Trade

Balance) with China, Foreign Trade Statistics, November 24, 2014, pp. 1 18 at https://www. census.gov/foreign-trade/balance/c5700.html.

30. David M. Dickson, Trade Deficit Cut by Half of 08 Levels in 09, McClatchy Tribune Business News, February 11, 2010, pp. 1 2 at http:// proquest.umi.com/pqdweb?did=1960355591& sid=2&Fmt=3&clientd=1997&RQT=309& VName=PQD.

31. Labeling China s Currency Undervalued Correct: USW Calls for More Action, PR Newswire, July 9, 2010, pp. 1 2 at http://proquest.umi.com/ pqdweb?did=2076839101&sid=1&Fmt= 3&clientid=1997&RQT=309&VName=PQD.

32. Sudeep Reddy, Bernanke Prepared, but Reluc- tant, to Act on Economy; Fed Chief Discusses Limited Options to Boost GDP, Calls Outlook Unusually Uncertain , Wall Street Journal (Online), July 21, 2010, pp. 1 2 at http://proquest. umi.com/pqdweb?did=2087363941&sid=4& Fmt=3&clientid=1997&RQT=309&VName= PQD; Jon Hilsenrath, Fed Sees Slower Growth, Officials Debate How to Respond if Recovery Falters, Softer 2nd Half Is Seen, Wall Street Journal, July 14, 2010, p. A-1.

33. William R Cline, Why the U.S. External Imbalance Matters, Cato Journal, 27(1), 2007, p. 53.

34. Wheeler, The Future of the American Labor Movement, p. 25.

35. Christopher Candland, Core Labour Standards under the Administration of George W. Bush, International Labour Review, 148(1 2), 2009, pp. 169 181; International Labor Organization, ILO Declaration on Fundamental Principles and Rights at Work, 1996 2003, pp. 1 2 at http:// www.ilo.org.

34 PART 1 Recognizing Rights and Responsibilities of Unions and Management

36. Wheeler, The Future of the American Labor Movement, pp. 81 82.

37. David Porreca, Through Jaundiced Eyes: How the Media View Organized Labor, Journal of Communications, 46(3), 1996, p. 198.

38. Lane Kirkland, Labor and the Press, American Federationist, 82, December 1975, p. 3; John A. Grimes, Are the Media Short Changing Orga- nized Labor? Monthly Labor Review, 110(8), August 1987, pp. 53 54.

39. Diane E. Schmidt, Public Opinion and Media Coverage of Labor Unions, Journal of Labor Research, 13(3), Summer 1992, pp. 151 165; William J. Puette, Through Jaundiced Eyes: How the Media View Organized Labor (Ithaca, NY: ILR Press, 1992); Paul Jarley and Sarosh Kuruvilla, American Trade Unions and Public Approval:

Can Unions Please People All of the Time, Journal of Labor Research, 15(2), Spring 1994, pp. 97 117; Geoff Walsh, Trade Unions and the Media, International Labour Review, 127(2), 1988, pp. 205 220.

40. Christopher R. Martin, Framed: Labor and the Corporate Media (Ithaca, NY: Cornell University Press, 1994).

41. Lydia Saad, Labor Unions See Sharp Slide in U.S. Public Support, Gallup Poll, August 6-9, 2009, pp. 1-6 at http://www.galluppoll.com/poll/ 122744/Labor-Unions-Sharp-Slide-Public- Support.aspx?version=print; Costas Panagopoulos and Peter L. Francia, The Polls-Trends: Labor Unions in the United States, Public Opinion Quarterly, 72(1), 2008, pp. 134 159; Andrew Dugan, In the U.S., Majority Approves of Unions but Say They ll Weaken Gallup Poll, August 30, 2013, at http://www.gallup.com/poll/ 164186/majority-approves-unions-say-weaken. aspx.

42. Rebecca Riffkin, Public Faith in Congress Falls Again, Hits Historic Low, Gallup Poll, June 19, 2014, at http://www.gallup.com/poll/171710/ public-faith-congress-falls-again-hits-historic-low. aspx.

43. Very Large Majorities of Americans Believe Big Companies, PACs, Political Lobbyists and the News Media Have Too Much Power and Influ- ence in D.C, Business Wire, March 12, 2009, pp. 1 3 at http://proquest.umi.com/pqdweb? did= 1660004401&sid=2 &Fmt=3&client= 1997&RQT=309&VName=PQD.

44. Jonathan P. Hicks, Dreams and City Image Put at Stake in Strike, New York Times, April 10, 1992, p. A-31; Bob Corker, Bob Corker: Now the Auto Union Wants to Muzzle Public Officials, Wall Street Journal [online edition], March 3, 2014, at http://online.wsj.com/articles/SB100014 24052702304360704579415431328820424.

45. Albert Shanker, Where We Stand, New York Times, December 16, 1990, p. 7; Sandra Feldman, The Big Lie, New York Times, June 7, 1998, p. 7.

46. Statement by AFL-CIO President John Sweeney on Rainbow PUSH Coalition Reclaiming Our Land March in New Orleans, News Release, April 27, 2007, p. 1.

47. About the BlueGreen Alliance, BlueGreen Alli- ance, August 11, 2010, pp. 1 2 at http://www. bluegreenalliance.org/about_us?id=0001.

48. Caroline Preston, Advocacy Groups Work to Strengthen Their Influence on Immigration Laws, Chronicle of Philanthropy, 22(11), 2010, p. 16; Robert Schmidt, Big Bank Nightmare on K Street, Bloomberg Businessweek, May 24, 2010, p. 30; Steve Early and Larry Cohen, Jobs with Justice: Mobilizing Labor Community Coalitions, Working USA, 1(4), 1997, pp. 49 57; James Craft, The Community as a Source of Union Power, Journal of Labor Research, 11(2), Spring 1990, pp. 145 160. For a detailed account of a community effort involving religious institu- tions in an attempt to restore closed steel mills as a community- and employee-owned enterprise, see Thomas G. Fuechtmann, Steeples and Stacks: Religion and Steel Crisis in Youngstown (New York: Cambridge University Press, 1989).

49. Why Wal-Mart Must Change, Wakeup WalMart.Com, August 11, 2010, p. 1 at http:// www.wakeupwalmart.com/change; Wal-Mart s Urban Problem, Wal-Mart Watch, August 8, 2010, pp. 1 9 at http://www.wakeupwalmart. com/change; Wal-Mart s Urban Problem, Wal-Mart Watch, August 8, 2010, pp. 1 9 at http://walmartwatch.com/pages/wal_mart_ urban_problem/.

50. Kris Maher, Politics and Economics: Wal-Mart Joins Health Care Call; Unlikely Coalition of Labor, Business Pushes for Overhaul, Wall Street Journal, February 8, 2007, p. A-6.

51. David Winzelberg, L.I. Labor, Management Forge New Alliance, Long Island Business News, June 9, 2010, p. 1 at http://proquest.umi.com/

CHAPTER 1 Union Management Relationships in Perspective 35

pqdweb?did=2058869961&sid=1&Fmt=3& client=1997&RQT=309&VName=PQD; Cynthia Needham, Diverse Group Rallies for R.I. Job-Training Program, McClatchy Tribune Business News, April 30, 2010, pp. 1 2 at http:// proquest.umi.com/pqdweb?did=2022057401& sid=1&Fmt=3&client=1997&RQT=309& VName=PQD.

52. United States Department of Labor, Union Members in 2014, News Release, January 23, 2015, pp. 1 12, at http://www.bls.gov/news. release/union2.nr0.htm.

53. Gary Chaison, The AFL-CIO Split: Does It Really Matter? Journal of Labor Research, 28(2), 2007, p. 305.

54. United States Department of Labor, Union Members in 2014, News Release, January 23, 2015, pg. 1, at http://www.bls.gov/news.release/ union2.nr0.htm.

55. United States Department of Labor, Union Members in 2014, News Release, January 23, 2015, Table 3, pp. 7 8, at http://www.bls.gov/ news.release/union2.nr0.htm.

56. John Godard, The Exceptional Decline of the American Labor Movement, Industrial and Labor Relations Review, 63(1), 2009, pp. 82 108; Arne L. Kalleberg, Precarious Work, Insecure Workers: Employment Relations in Transition, American Sociological Review, 74(1), 2009, pp. 1 22; Justice on the Job: Perspectives on the Erosion of Collective Bargaining in the United States, ed. by Richard N. Block, Sheldon Fried- man, Michelle Kaminski, and Andy Levin (Kala- mazoo, MI: W. E. Upjohn Institute for Employment Research, 2006); C. Timothy Koel- ler, Union Activity and the Decline in American Trade Union Membership, Journal of Labor Research, 15(1), Winter 1994, pp. 19 31.

57. Union Ranks Down in 2009 as Recession Elim- inated Jobs, BNA s Collective Bargaining Bulletin, January 28, 2010, p. 8.

58. T. Alan Lacey and Benjamin Wright, Occupa- tional Employment Projections to 2018, Monthly Labor Review, 132(11), 2009, pp. 82 99.

59. Rik Kirkland, The New Face of Labor, Fortune, 154(8), October 16, 2006, pp. 122 132.

60. Shail J. Butani, Richard L. Clayton, Vinod Kapani, James R. Spietzer, David M. Talan, and George S. Werking Jr., Business Employment Dynamics:

Tabulations by Employer Size, Monthly Labor Review, 129(2), 2006, p. 4; United States Census Bureau, Statistics about Business Size (Including Small Business), available at http://www.census. gov/econ/smallbus.html.

61. Mitra Toosi, Labor Force Projections to 2022: The Labor Force Participation Rate Continues to Fall, Monthly Labor Review, 136(12), Dec., 2013 [online edition] at http://www.bls.gov/opub/mlr/ 2013/article/labor-force-projections-to-2022-the- labor-force-participation-rate-continues-to-fall-1. htm; also see, U.S. Bureau of Labor Statistics, Employment Projections: Civilian Labor Force

by Age, Sex, Race, and Ethnicity at http://www. bls.gov/emp/ep_table_304.htm.

62. U.S. Department of Labor, Union Members Summary: 2014, News Release, January 23, 2015, Table 1, at http://www.bls.gov/news.release/ union2.t01.htm.

63. U.S. Department of Labor, Union Members Summary: 2014, News Release, January 23, 2015, at http://www.bls.gov/news.release/union2.nr0. htm.

64. Arleen Hernandez, The Impact of Part-Time Employment on Union Density, Journal of Labor Research, 16(4), 1995, pp. 485 491.

65. Bruce Nissen, The Recent Past and Near Future of Private Sector Unionism in the U.S.: An Appraisal, Journal of Labor Research, 26(2), 2001, p. 325.

66. Michelle Amber, Henry Pledges Innovative Organizing Efforts Along With Addressing U.S. Economic Crisis, Daily Labor Report, 93, 2010, pp. C-1 2.

67. Joseph B. Rose and Gary N. Chiason, New Measures of Union Organizing Effectiveness, Industrial Relations, 29(3), Fall 1990, pp. 457 468.

68. Andrew W. Martin, Resources for Success: Social Movements, Strategic Resource Allocation, and Union Organizing Outcomes, Social Problems, 55(4), 2008, pp. 501 524; Peter Fairbrother and Glynne Williams, Unions Facing the Future: Questions and Possibilities, Labor Studies Jour- nal, 31(4), 2007, pp. 31 53; Paul F. Clark and Lois S. Gray, Changing Administrative Practices in American Unions: A Research Note, Industrial Relations, 44(4), 2005, pp. 654 658.

36 PART 1 Recognizing Rights and Responsibilities of Unions and Management

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1- 1 Was a Troublemaker Laid off for Sharing Wage

Information? Or for Business Reasons?

The American Restoration Contractors (ARC), Inc. was hired to reroof and fix cracks in the bricks of several buildings of a regional university. Because it was a large job, several new employees were hired. One was an experienced mason and bricklayer named Bruce Potts.* Potts had completed a four-year union appren- ticeship training program and another four years as a journeyman; subsequently, he had 12 years experience in both union and nonunion settings. ARC was a non- union contractor.

Potts testified before the federal NLRB that he had been led to believe by both his immediate supervisor, Gene Polizzi, and a co-worker who had been hired along with him, that the job would pay $44 per hour. However, upon arriving at the work site, Potts learned that it only paid $35 per hour, which made him angry, given the nature of the work.

He described the work as difficult. It required him to wash the building surface and the roof, removing any dirt. Next, employees inspected the bricks, caulk, and wood for needed repairs. Rotted caulk and other defec- tive building materials had to be removed and replaced. When the new caulk dried, the building was again sprayed with a high pressure hose. After the water dried, final waterproofing chemicals were applied. The caulk work was the most laborious, calling for the great- est expertise and precision. Much of this work took place on a 100° roof under the sweltering summer sun.

In recognition of the excellent work that Potts was doing, Polizzi recommended him for several pay raises: As the summer passed, Potts s pay went from $35 (the first week of June) to $36.13 (second week) to $37 (third week) to $39.21 (last week of June) to $40.13 throughout July and August, until he was laid off on in early September. As a result of these raises, Potts became the highest-paid non-managerial employee on the job site.

Potts often told his co-workers what his current pay rate was and he encouraged them to ask for more money. He said everyone was underpaid and all the workers should all be getting more. He also criticized some of the work methods they were asked to use. One employee quit soon after Potts discussed wage rates with him. The following week, the firm s Human

Resources Manager, Dixie Boxrud, hand-wrote the fol- lowing message on Potts s July 1st pay stub:

Please keep your pay rate to yourself. Thanks, Dixie B.

Further, when he distributed pay envelopes, Polizzi told Potts that he shouldn t be discussing his pay with his co-workers and stirring up trouble by encourag- ing them to complain.

At the end of the summer, Potts was laid off with four other workers, even though three others who did similar work kept their jobs. Potts accused ARC of lay- ing him off in retaliation for his complaining about the wages. Potts testified. I was telling everyone how they were getting short-changed and management was mak- ing a lot of money off of them and how they ought to do something about it threaten to quit or something to get what they deserved. Potts also indi- cated that Polizzi had told him that ARC had bid on another, similar job and that Potts offered to work at that site, even though it was several hours drive away. However, he was never called to work at that site, or any other ARC work sites.

The General Counsel (which often prosecutes cases involving allegations of unfair labor practices under the National Labor Relations Act, as amended by the Labor Management Relations Act [LMRA]), alleged that ARC was retaliating against Potts for his activities. Under federal labor law, employees, have the right to engage in concerted activities for the pur- pose of collective bargaining or other mutual aid or protection (Section 7); it is an unfair labor practice for employers to interfere with, restrain, or coerce employees in the exercise of [their] rights or to dis- criminate in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization (Sections 8 (a) (1) and 8 (a) (3) of the LMRA). The General Counsel argued that ARC s actions were illegal because (1) they interfered with Potts s actions aimed at mutual aid and protection (securing pay raises for all workers) and (2) ARC discriminated against Potts when making layoff and rehiring decisions because of his efforts to organize the workers to com- plain about their pay.

CHAPTER 1 Union Management Relationships in Perspective 37

Polizzi and other company officials denied the charges. They said that from the first day that he showed up at the job site Potts had been a trouble- maker. When he was hired, he had an erroneous impression as to what the pay for the work was worth. He was quite vocal about what he saw as low pay and other subjects, such as how the work should be done. I had to put up with his mouth, always com- plaining and whining, Polizzi said. However, he over- looked it because, he was a good caulker and he was productive. His outstanding productivity and excellent work resulted in several pay raises in the ensuing weeks. Still, his constant complaining bred dissatisfac- tion and caused one co-worker to quit. ARC had an informal (unwritten) policy that people not tell others their pay rate; such complaining leads to workers com- paring themselves to each other, breeding dissatisfac- tion. Potts went against that policy, even after he had been asked politely to keep your pay rate to yourself.

Ms. Boxrud testified that she wrote this on Potts s pay stub because he was causing issues on the job site telling people that, walk off and they will give you a raise. I wanted to keep an atmosphere of calm on the job. We already had one employee quit over it. Talking about pay was causing problems, so I wanted him to stop talking about it.

Managers also denied that their actions violated labor law. The workers had not formed a union, nor were they contemplating forming a union. The word union was never mentioned to ARC managers. Fur-

ther, workers were not bargaining collectively and they were not threatening to strike if wages stayed unchanged. Clearly, they were not joining together for

mutual aid and protection against an exploitive employer, given that they were all earning over $30 per hour. Thus, management at ARC was not interfer- ing with their rights under labor law.

Finally, ARC did not retaliate against Potts for his complaints. He was laid off near the end of the job, along with several other workers. He would have been laid off regardless of his statements to his co-workers: When a job neared completion, fewer workers were needed. Yes, it was true that Potts offered to work at another job site. However, what Polizzi did not know at the time that he mentioned that project was whether ARC would win the contract. It turned out that the firm did not have the low bid and the contract was awarded to another firm. The firm won other bids, but the work was not as difficult; thus, the company did not need to hire a caulker who commanded the high rate of pay that Mr. Potts earned. Consequently, ARC did not need his services. Potts s charges of retaliation are baseless.

* = All company and individual names and some minor facts are changed. This case is adapted from an NLRB case.

Questions 1. Given the facts of the case and the brief description

of the LMRA, did ARC violate labor law by telling Mr. Potts to Please keep your pay rate to yourself ? Explain your reasoning.

2. Did ARC retaliate against Mr. Potts when it laid him off and did not offer him work on other jobs? Did these actions constitute violations of the LMRA? Explain your reasoning.

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1- 2 Discharge for Whistleblower Activity

Janet Broom and Darla Miller were employed as a cer- tified medication aide and cook, respectively, at the employer s residential care facility located in Norman, Oklahoma. Both employees suspected another employee of stealing and using drugs, intended for use by residents of the facility, from the facility s medi- cation room. Broom and Miller decided to report the suspected employee based on their observation that she had falsified medical drug log books to conceal her theft from facility managers.

The facility s Employee Handbook clearly outlined a procedure employees were to follow when making com- plaints involving other employees. The Employee Hand- book called for the initial complaint to be filed with the accused employee s immediate supervisor. Because the two employees making the complaint believed that the immediate supervisor in this case, Sarah Dutton, was a close personal friend of the accused, Broom and Miller chose to make their complaint to another manager, who was the medication consultant at the facility.

38 PART 1 Recognizing Rights and Responsibilities of Unions and Management

Upon learning of the complaint from the medica- tion consultant, supervisor Dutton discharged Broom and Miller for not following the proper chain of com- mand in raising an issue about another employee. Both Broom and Miller are nonunion employees unrepresented by a union. After being discharged, Broom and Miller s only recourse was to file a wrongful discharge state court claim, arguing that they were engaged in internal whistle blowing activity and thus protected from discharge as a matter of Oklahoma public policy.

The employer argued that Broom and Miller were subject to the Oklahoma common law employment- at-will (EAW) doctrine, which permits an employer to discharge an at-will employee at any time for any or no stated reason. The employer sought and received a summary judgment in state district court declaring Broom and Miller s discharge to be lawful under the state s common law, EAW doctrine.

Broom and Miller appealed the state district court s decision to a federal Court of Appeals, seeking to reverse the district court s decision.

In Groce v. Foster, 880 P.2d902 (Okla. 1994), the Oklahoma Supreme Court recognized five types of public policy exceptions to the common law, EAW doctrine. Under Oklahoma law, an at-will employee may not be lawfully discharged for (1) refusing to par- ticipate in an illegal activity; (2) performing an impor- tant public service (e.g., jury duty); (3) exercising a legal right or interest of the employee; (4) exposing some wrongdoing by his or her employer; and (5) perform- ing an act that public policy would encourage or refus- ing to perform an act that public policy would discourage, when the discharge action is coupled with a showing of bad faith, malice, or retaliation.

Broom and Miller argued that their discharge fell under the fifth public policy exception to the EAW doctrine. By reporting to management a co-worker who they honestly believed was engaged in stealing drugs intended for administration to residents of the facility, Broom and Miller believed they were engaging in conduct that Oklahoma public policy encourages.

The Oklahoma Supreme Court mandates that to be recognized and enforced, public policy exceptions must be clearly stated in state constitutional, regula- tory, or case decision law. To that end, Broom and Miller cited three statutory laws that they believed pro- vided a clear statement of public policy supporting their action.

The first law is the Nursing Home Care Act, which governs safeguards and procedures for the storage, safekeeping, monitoring, dispensing, and, when neces- sary, destruction of patient prescription drugs. The employer argued that the act specifically applies only to licensed nursing homes operating within the state. The employer s facility is licensed as a residential care facility and thus is excluded from coverage under the Nursing Home Care Act. The state of Oklahoma grants operating licenses for several different types of elder- care facilities, including nursing homes, assisted living homes, and residential care facilities.

The second law is the Residential Care Act, which the employer admitted does apply to the facility in this case. Broom and Miller noted that the law authorizes the Oklahoma State Department of Health to develop and enforce rules and regulations to implement the provisions of the Residential Care Act. Such rules and regulations shall include but not be limited to govern- ing temperature limits, lighting, ventilation, and other physical conditions which shall protect the health, safety, and welfare of the residents in the home. The employer argued that Broom and Miller did not raise the issue of the Residential Care Act s applicability to their case when the case was before the district court and therefore could not legally raise it as a supporting argument on appeal. It is a well-settled legal principle that issues or arguments not clearly presented and con- sidered at a prior legal proceeding cannot be subse- quently raised as a legal basis for argument on appeal. The employer also noted that the language referred to by Broom and Miller in the Residential Care Act is very general and not specific enough to rise to the level of a clear statement of public policy supporting intent to make an exception to the prevailing Oklahoma EAW doctrine.

The third law cited by Broom and Miller as a basis for their appeal is the Uniform Controlled Dangerous Substances Act. Although this law does make it a crim- inal offense to steal a controlled dangerous substance, Broom and Miller made no specific argument as to how this law established a clear mandate of public pol- icy applicable to their discharge case. The employer argued that Broom and Miller again failed to meet the required showing of a clear and compelling public policy in favor of restricting an employer s right to dis- charge an at-will employee for failing to follow the established procedure for bringing a serious complaint against a co-worker.

CHAPTER 1 Union Management Relationships in Perspective 39

Questions 1. Should the federal appeals court deny Broom and

Miller s appeal and enforce the decision of the state district court finding upholding the discharge of the two whistleblowers? Explain your reasoning.

2. How might this case have been handled differently if Broom and Miller had been members of a bargain- ing unit represented by a union for purposes of collective bargaining?

40 PART 1 Recognizing Rights and Responsibilities of Unions and Management

41

CLASSROOM EXERCISES

1.1 Work Rules

Directions: This activity can be performed as an individual or group assignment using either an oral or written report format. Select a recent (not more than one-year old) news story or article and explain how the information in the story could affect the nego- tiation or administration of a particular work rule. An appropriate news story or article should contain information on one or more of the possible constraints or influences affecting the negotiation or administration of work rules identified in the text (e.g., state of the economy, labor market conditions, product market conditions, financial mar- ket conditions, technology, and international forces or events).

1.2 Union Membership Trend

Directions: This activity can be performed as an individual or group assignment using either an oral or written report format. Select a recent (not more than one-year old) news story or article and explain how the information in the story could affect future union membership growth in a positive or negative manner. Your explanation should clearly indicate why or how you think the information in your story will have the pre- dicted effect on future union membership growth.

1.3 Word Association

Directions: Divide the class into groups of three to five students. Presented below are 25 words or phrases. Each group should classify each listed word or phrase as primarily applicable to UNIONS (U) or MANAGERS (M), BOTH U & M (B), or NEITHER U nor M (N). Groups may compare their results and discuss their reasoning for associating particular words or phrases with the terms Union or Management. Groups may also list additional descriptive terms or phrases that they would strongly associate with the terms Union or Management.

Words or phrases to classify

1. Powerful 2. Educated 3. Democratic 4. Profit-oriented 5. Productive 6. Fair 7. Violence 8. Trustworthy 9. Job security

10. Competitive 11. Political 12. Authority 13. Reasonable 14. Work stoppage 15. Professional 16. Employee compensation 17. Ethical 18. Innovative 19. Flexible 20. Quality improvement 21. Risk taker 22. Necessary 23. Job safety and health 24. Work rules 25. Growth-oriented

42 PART 1 Recognizing Rights and Responsibilities of Unions and Management

CHAPTER 2

The History of Labor Management Relations

UNCLE BOB USED to try and explain to me what it meant to be a labor man. This was generally a part of his usual rant about how workers today, especially young workers, had no under- standing of or appreciation for what it took to achieve some of the working conditions they enjoyed today, such as the eight- hour work day, paid vacations and holidays, protection from unsafe working conditions, and so on. In Uncle Bob s view, every advancement made by American workers over the past 100 years occurred because workers learned to join together and fight for their right to enjoy the American dream. That fight often involved pressuring employers to make more improve- ments at a faster pace than employers would likely be inclined to do in the absence of such pressure. Sometimes it meant pres- suring politicians to support needed change or sometimes other societal institutions (religious, civic, and charitable organizations) as well. A strong union movement helped to ensure that as employers profited from economic growth, so too increased the prosperity of typical workers helping to create a strong middle class in this country. I suspect Uncle Bob s pro-labor views didn t do adequate justice to the history of the positive contribu- tions made by employers or other societal groups strongly sup- portive of a free enterprise system and economic growth. Still I must admit, I knew very little about the history of labor management relations in the United States and how personal- ities, events, environmental factors, and formal organizations interacted to create the type of labor management relations I experienced on the job today.

43

Questions 1. Some would argue that the middle class in America is shrinking

today. Do you agree or disagree and why?

2. To what extent do you think the decline in union membership in the United States has made it more or less difficult for individuals to maintain their standard of living?

3. Should labor history be a subject taught in public/private schools in the United States similar to required study of the free enterprise system and leading entrepreneurs (e.g., John D. Rockefeller, Andrew Carnegie, Bill Gates)?

The American labor movement, as we know it, has adjusted to changing social and eco-nomic events, employers attitudes and actions, and employee preferences for more than 100 years. A historical perspective is necessary to better understand current union behavior and help us predict how most unions might react to sudden and dramatic change.

There is no best way to obtain this perspective.1 Insights from many academic disci- plines (sociology, economics, political science, etc.) have to be considered, and many focal points can be assessed. Our discussion focuses on what has worked and not worked for organized labor through two interrelated historical dimensions: (1) relations between labor and management organizations and (2) organizational characteristics of labor organizations.

This second dimension is important to labor relations students and practitioners because current national union and labor federations have been historically affected by four major labor organizations: the Knights of Labor (KOL), the Industrial Workers of the World (IWW), the American Federation of Labor (AFL), and the Congress of Indus- trial Organizations (CIO).

The strength or likely continued success of any labor organization can be assessed by focusing on four criteria:

A labor organization s structural and financial stability. Its ability to work within the established political and economic system, particularly the wage system. The degree to which the broader social environment, such as laws, media, and pub- lic opinion, is supportive or opposed to a labor organization s goals and tactics. The ability of union leaders to identify and satisfy members goals and interests.

Readers can use these criteria to assess why some labor organizations failed in the past and to predict the likelihood of current unions posing a strong challenge to management. The chapter is organized into three time periods: from 1869 to World War I, World War I to World War II, and World War II to the present.

1869 to World War I

Unions as we know them today did not exist before 1800. There were some small guilds, joint associations of employers, and craftspeople, that pressed for professional standards

44

and restriction of outside competition.2 Such guilds typically pressed concerns that benefited employees and employers alike. By 1820, there had been only a few scattered strikes, usually over wages, because only two industries, shoemaking and printing, had even a semblance of collective bargaining. There was also no general labor philosophy or labor movement in the United States at this time, as labor organizations were princi- pally small groups of craft employees located in major metropolitan areas along the East- ern coast of the United States.3

The 1850s and 1860s saw development of the U.S. factory system (industrial revolu- tion), improved transportation, and increased product mobility, all factors that extended a company s (and potential unionized employees ) organization beyond the local com- munity. For example, an employer could produce shoes at lower wages in Baltimore and ship them to Boston, where they could be sold at a higher price. Negotiating similar terms and employment conditions for labor was viewed as a means to take wages out of competition; but to do so would require labor organizations capable of operating on a national rather than local basis. The Civil War (1861 1865) refined and encouraged mass production techniques, creating large concentrations of semiskilled and low-skilled employees under a single factory roof a situation that created conditions conducive to the organization of labor.

Early Legal Developments Involving Labor Management Relationships (1806 1931) Article I, Section 8, of the U.S. Constitution grants Congress the right to pass laws reg- ulating interstate and international commerce. Labor relation activities can affect inter- state commerce and therefore, since the late 1800s, they have been the focus of many statutory laws to regulate various aspects of the employment relationship. The First Amendment of the U.S. Constitution, which ensures the rights of peaceful assembly, freedom of association, and freedom of speech, usually has been interpreted as allowing employees to form and join unions and has provided the justification for union picketing (to communicate information to possible union members or supporters). The Fifth Amendment contains due process protections, and the Fourteenth Amendment prohibits state laws from depriving citizens of their constitutional rights, providing equal protec- tion under the law. These constitutional provisions play an important role in defining the basic framework of American labor law.

Few statutory labor laws were enacted prior to the late 1800s, so early U.S. history was governed by the application of common law. Common law is used to resolve a legal dispute only when no constitutional or statutory law applies to that dispute. In such situations, judges develop legal principles or procedures to resolve these types of dis- putes. Over time, these principles and procedures are adopted by other judges in similar disputes and come to represent the common law. Early U.S. common law was based upon English common law principles as modified by local custom and practice.

One example of a common law doctrine that is still often used today is the employment- at-will (EAW) doctrine. The EAW doctrine states that employment relationships established for an indefinite duration may be terminated by either the employer or the employee at any time for any or no stated reason. Arising from the English common law governing master servant relationships, employers have historically relied upon this common law doctrine as a basis for terminating employees for a wide variety of reasons without permitting the termi- nated individual to legally challenge whether management s decision or reasoning was correct or justified. Of course, if a group of employees were to join a union that bargained an employ- ment contract with their employer that established terms and conditions of employment, then such employees would no longer be considered employees-at-will, and their job rights

CHAPTER 2 The History of Labor Management Relations 45

and protections would be governed by the jointly negotiated and administered labor agree- ment. Thus for many employers, the question of whether their employees join a union and engage in collective bargaining directly affects the employer s ability to make decisions con- cerning specific employees and whether those decisions will be subjected to legal challenge through a grievance procedure contained in the applicable collective bargaining agreement. Over time the EAW doctrine has been modified by the passage of laws and court interpreta- tions intended to prohibit employers from discharging individuals for certain protected rea- sons (e.g., joining a union or an individual s race, sex, or religion). In many states, the EAW doctrine remains the primary protection of management s right to discharge employees. This doctrine is more thoroughly discussed in Chapter 12.

Early labor unions in the United States had to struggle for existence. The legal sys- tem was primarily focused on protecting employer property rights to advance the eco- nomic growth of the nation, with little importance placed on protecting the rights of employees within the emerging free enterprise economic system. Employer property rights were defined in broad terms to include both tangible property (e.g., right to con- trol plant, equipment, employees) as well as intangible property (e.g., right to engage in normal business, right to make a profit). Due to the absence of statutory laws regulating labor relations, the judicial system exerted great control over conflicts of interests between employers and employees from the early 1800s through the 1930s.

Under English common law, it was illegal for two or more workers to join together for the purpose of pressuring their employer to improve wages or working conditions. In 1806, one of the first major labor law cases in the United States, known as the Cordwai- ners case, occurred when a group of journeymen shoemakers in Philadelphia were indicted, convicted, and fined $8 each for forming an illegal criminal conspiracy. The shoemakers had joined together in an attempt to raise their wages and refused to work with nonmembers or at a wage rate less than they demanded. Twelve jurors (all busi- nessmen) found the shoemakers guilty of forming an illegal combination for the purpose of raising their own wages while injuring those who did not join the coalition.4 The pros- ecutor in the trial stated: Our position is that no man is at liberty to combine, conspire, confederate and unlawfully agree to regulate the whole body of workmen in the city. The defendants are not indicted for regulating their own individual wages but for undertak- ing by a combination, to regulate the price of labor of others as well as their own. It must be known to you, every society of people are affected by such confederacies; they are injurious to the public good and against the public interest. 5

The application of the common law criminal conspiracy doctrine to attempts by employees to organize unions aroused much public protest, not only from employees but also from factory owners who feared the closing of their factories if their employees dissat- isfaction grew too strong. These concerns were undoubtedly a consideration when the Supreme Judicial Court of Massachusetts in Commonwealth v. Hunt (1842) set aside the criminal conspiracy conviction of seven members of the Journeymen Bootmakers Society who had refused to work in shops where nonmembers were employed at less than their scheduled rate of $2 per pair of boots.6 While not rejecting the criminal conspiracy doctrine, the court instituted an ends/means test to be applied on a case-by-case basis to determine if the ends (goals) sought by the combination of workers were legal and if the means (tactics) used by the workers were also lawful. The court concluded it was not illegal for workers to seek to protect their own economic interests in maintaining a desired wage rate, nor was it illegal to refuse to work as a means of encouraging an employer not to hire an individual at a lower wage rate, thus undercutting the current established rate of pay for a particular type of labor. Of course, in order to continue normal business operations, the employer was free to replace any employee who refused to work.

46 PART 1 Recognizing Rights and Responsibilities of Unions and Management

Civil Conspiracy Doctrine The Commonwealth v. Hunt decision virtually ended the use of the common law criminal conspiracy doctrine in labor relations. However, the courts continued to apply the civil conspiracy doctrine, which held that a group involved in concerted activities violated the law if it inflicted harm on other parties outside the disputants (e.g., customers or other employees) even though the workers were pursuing a valid objective in their own interest.7

In Vegelahn v. Guntner (Mass. S.Ct. 1896), an injunction was issued against a union that was picketing its employer to obtain higher wages and shorter hours.8 Although the court agreed that higher wages and shorter work hours were legitimate ends for workers to pur- sue, the court concluded that picketing, accompanied by threats of violence, could unlaw- fully intimidate individuals who desired to continue to work for the employer or customers who sought to do business with the employer and, therefore, was an unlawful means to accomplish an otherwise lawful end. Only where both the workers ends and their means were lawful would the concerted activity be permitted.

Around 1880, many states began loosening restrictions on who could serve on juries (e.g., removing property ownership requirements), which permitted more hourly workers to perform jury duty service. As a consequence, juries became less willing to convict workers of criminal or civil conspiracy charges. Employers turned to the courts for a quicker and more reliable means of restricting employee concerted activities, which the legal system provided in the form of a labor injunction.9 A labor injunction is a court order prohibiting or restricting certain activities in conjunction with a labor dispute. The advantage of a labor injunction over a jury trial was that a preliminary labor injunction could be issued by a judge without a formal jury hearing and was often based solely on statements or evidence provided by the employer to demonstrate the need for the labor injunction. It might be weeks or months before the labor organization enjoined might get a chance to challenge the credibility of the employer s evidence or offer alternative evidence at a hearing to show why a labor injunction was not necessary or appropriate. By that time the employer had often prevailed in ending the labor dispute on terms favorable to the employer s interest aided by the labor injunction s restrictions on work- ers ability to use effective economic pressure tactics against the employer.

The courts long-standing interest in enforcing the terms of contracts led many employ- ers to require their employees to sign a yellow-dog contract, an agreement stating that they would neither join a union nor assist in organizing one.10 Why would an employer use the yellow-dog contract if, under the EAW doctrine, it could already legally fire employees for virtually any reason including organizing a union? While motives varied, we believe that three reasons were predominant. First, asking employees to sign a yellow-dog contract sent a strong signal that a union would not be tolerated at the company. Second, because this contract was a condition of initial or continued employment, any violation would clearly allow the company to discharge the employee. Third, if any outside union organizer attempted to solicit employees to join a union or engage in other concerted activity (such as a strike to improve wages or working conditions), such activity could be enjoined by a judge on the grounds that it was an attempt to interfere with a legal contractual relationship between the employer and its employees. Union organizers who violated the court order could then be charged with contempt of court and fined and/or imprisoned.

Application of Antitrust Legislation to Labor Unions Another legal obstacle confronting labor organizations in the late 1800s was the applica- tion of antitrust law to restrict union-organizing and bargaining activities. Congress passed the Sherman Antitrust Act in 1890 to regulate the increasing power of large

CHAPTER 2 The History of Labor Management Relations 47

corporations to engage in anti-competitive practices (e.g., cutthroat pricing, restricting competitor s access to necessary raw materials), which tended to drive smaller firms out of the market.11 The Sherman Antitrust Act neither explicitly included nor excluded labor unions from coverage as an illegal combination in restraint of interstate commerce. The congressional debate and testimony leading to passage of the bill focused on the business practices of employers, not labor organizations.

The U.S. Supreme Court decided to apply the Sherman Antitrust Act to labor orga- nizations in the 1908 landmark decision Loewe v. Lawlor (better known as the Danbury Hatters case).12 The United Hatters of North America (UHU), having organized 70 of 82 firms in the hat manufacturing industry, wanted to organize Loewe & Co., one of the few remaining nonunion employers located in Danbury, Connecticut. As a part of the UHU s campaign to gain union recognition as the bargaining agent for employees at Loewe & Co., the union organized a nationwide boycott assisted by the AFL and directed at persuading all retailers, wholesalers, and customers not to buy, sell, or handle hats produced by Loewe & Co. The boycott was successful, which prompted Loewe & Co. to sue, alleging that the UHU s boycott interfered with Loewe & Co. s ability to engage in its normal interstate commerce of selling hats. The Supreme Court ruled that unions were covered under the Sherman Act and that the union s boycott did illegally obstruct Loewe & Co. s ability to engage in its normal interstate commerce. The court awarded the employer triple damages ($252,000) as provided for under the Sherman Antitrust Act and ruled that individual union members could be held liable for paying the damage award if the labor organization itself did not have sufficient funds to pay the claim.

The Loewe v. Lawlor decision had several important impacts on labor relations. First, the decision essentially eliminated the use of the boycott, which had previously been an effective union tactic for bringing economic pressure against an employer to persuade it to agree to union proposals. It also raised concerns in the minds of some union leaders as to whether the courts might extend the ruling on boycotts in future legal cases to include other union tactics (e.g., picketing, strikes, or handbilling) also intended to impose economic pressure on an employer s business operations. Second, the court s decision to hold individual union members personally liable for damages resulting from the actions of their labor organization dealt a serious blow to union- organizing efforts. Not only could an employee face discharge for participating in union-organizing activity, but if the organizing activity was declared to be an antitrust violation, the employee might also risk loss of personal assets acquired over the indivi- dual s work career, as some UHU members experienced.

One positive aspect for unions of the Loewe v. Lawlor decision was that it clearly demonstrated to AFL president Samuel Gompers and other labor leaders the need to expand state and local union political efforts to include Congress and other federal branches of government. An aggressive campaign led by the AFL to reverse the court s interpretation of the Sherman Antitrust Act led to the enactment of the Clayton Anti- trust Act in 1914. Included among the Clayton Act s amendments to the Sherman Anti- trust Act were the following provisions:

[The] labor of a human being is not a commodity or article of commerce. Nothing contained in the antitrust laws shall be construed to forbid the existence and opera- tions of labor [unions] nor shall such organizations be held or construed to be illegal combinations or conspiracies in restraint of trade.

No restraining order or injunction shall be granted in any case between an employer and employees growing out of a dispute concerning terms or conditions of employment, unless necessary to prevent irreparable injury to property.

48 PART 1 Recognizing Rights and Responsibilities of Unions and Management

No such restraining order shall prohibit any person or persons from ceasing to perform work recommending, advising, or persuading others by peaceful means so to do peacefully persuading any person to work or abstain from working peacefully assembling in a lawful manner, and for lawful purposes.13

When AFL president Samuel Gompers read the provisions of the Clayton Act, he pro- claimed it U.S. labor s Magna Charta because it would free organized labor from the restraints of antitrust prosecution. Gompers s joy, however, was short-lived. A series of Supreme Court decisions in the 1920s left no doubt that the Clayton Act was not labor s Magna Charta.14 Rather than viewing the Clayton Act as a repudiation of the court s prior interpretation of the Sherman Antitrust Act, the Supreme Court interpreted Congress s intent in passing the Clayton Act as only reaffirming a labor organization s right to exist so long as it sought to achieve lawful ends using lawful means. In fact, the Clayton Act hurt union growth and development more than it helped. Under the Clayton Act employ- ers could directly seek a court order for a labor injunction rather than having to ask a U.S. district attorney to seek such a court order, as had been required under the Sherman Act.

Some states attempted to address perceived labor law deficiencies on their own by enacting state labor legislation to grant legal bargaining rights to employees or restrict the circumstances under which a state court judge could issue a labor injunction to ban employee activity during a labor dispute. For example, in 1921 the U.S. Supreme Court declared a law enacted by the Arizona legislature and upheld by the Arizona Supreme Court unconstitutional in violation of the Fifth and Fourteenth Amendments.15 The Ari- zona law sought to deny a judge the right to issue a labor injunction during a labor dispute to halt peaceful picketing. The Supreme Court majority declared that the Arizona law unlawfully denied the employer being picketed during a wage dispute its due process and equal protection right to obtain a labor injunction to prevent the picketing from damaging normal business operations. The dissenting opinion argued that states such as Arizona ought to be free to determine for themselves whether some restrictions on employer prop- erty rights (e.g., limiting access to injunctive relief) might be imposed if necessary to pro- tect other legitimate rights of employees to participate in bargaining over work conditions.

The 1920s were a difficult period for organized labor. Although this was a period of general economic growth and prosperity, unions confronted an environment where labor injunctions were easier to obtain; the court system strongly supported employer property rights; favorable legislation protecting employees right to organize and bargain collec- tively was absent; and employers commonly used anti-union tactics (such as goon squads, yellow-dog contracts, discharge, and blacklisting). Although the Railway Labor Act (discussed in Chapter 3), passed in 1926, granted bargaining rights to railroad employees, the 1920s was primarily a time of regrouping, self-analysis, and trying to preserve the status quo for most unions.

Emergence of National Labor Organizations During the period of 1869 to World War I, three national labor organizations emerged: the KOL, the AFL, and the IWW. Each of these organizations is discussed in terms of its philosophy and goals, organizational structure, and strategies and tactics. Reasons sug- gested for the demise of the KOL and decline of the IWW are discussed to illustrate the previously mentioned criteria for assessing the strength or success of a labor organi- zation. Three prominent labor episodes of this period are also discussed: the drive for an eight-hour workday (including the Haymarket Riot of 1886), the Homestead strike (1892), and the Pullman strike (1894). The Labor Relations in Action box highlights some of the key events that have helped to shape U.S. labor relations over time.

CHAPTER 2 The History of Labor Management Relations 49

LABOR RELATIONS IN ACTION Labor History Time Line: Selected Events

Year Event

Late 1700s Emergence of local craft unions in large East Coast cities (e.g., New York, Philadelphia). 1842 The Massachusetts Supreme Court in Commonwealth v. Hunt establishes a legal precedent

that workers have a right to combine together for the purpose of pursuing lawful end (goals) using lawful means (tactics).

1850 U.S. economy begins to shift from an agricultural base to a manufacturing (industrial) base. Regional and national product markets emerge with larger firms able to use new technology and improved transportation modes (roads, rail) to mass produce goods.

1869 Noble Order of the Knights of Labor organized. 1880s Use of the labor injunction to prohibit or restrict employees concerted activities replaces reli-

ance on criminal or civil conspiracy trials and emerges as a popular management legal strategy. 1886 Eight-hour day movement gains momentum; Haymarket Square Riot occurs in Chicago, Illinois;

American Federation of Labor (AFL) is organized, electing Samuel Gompers as president. 1892 The Homestead strike involving the Amalgamated Association of Iron, Steel and Tin Workers

and steel mills owned by Andrew Carnegie occurs. 1894 Eugene Debs leads the American Railway Union in a strike against the Pullman Company,

resulting in federal troop intervention in the labor dispute. 1905 The Industrial Workers of the World (IWW) organizes. 1908 U.S. Supreme Court declares a national product boycott by the United Hatters Union to be a

violation of the Sherman Antitrust Act. 1911 Triangle Waist Company fire in New York City leads to the death of 146 clothing workers. This

tragedy focuses national attention on the poor working conditions facing many industrial employees.

1913 Congress creates the U.S. Department of Labor, and the department s head (Secretary of Labor) is designated a member of the president s cabinet.

1926 Railway Labor Act enacted, granting employees in the private-sector railroad industry the right to form unions and bargain collectively.

1932 The Norris-LaGuardia Act enacted, placing restrictions on the issuance of labor injunctions dur- ing labor disputes and making yellow-dog contracts unenforceable in court.

1933 U.S. Secretary of Labor Frances Perkins becomes the first woman to serve as a member of the president s cabinet.

1935 National Labor Relations (Wagner) Act enacted, granting most private-sector employees the right to form unions and bargain collectively. The Committee for Industrial Organization created by several AFL unions to encourage efforts to organize workers in the mass production indus- tries (auto, steel, rubber, etc.).

1936 Railway Labor Act amended to add coverage of the airline industry. 1938 The Committee for Industrial Organization is reorganized as the Congress of Industrial Organi-

zations (CIO), electing John L. Lewis as its first president. Fair Labor Standards Act enacted, establishing a federal minimum wage of 25 cents per hour and requiring time and one-half pay for hours worked in excess of 40 hours in a regular work week.

1947 Labor Management Relations (Taft Hartley) Act enacted over the veto of President Truman. Retains NLRA protections for employee collective activity but adds protection for the right of individual employees not to engage in collective activity and imposed restrictions on union conduct similar to restrictions imposed on management conduct by the NLRA.

1952 Presidents of both the AFL and CIO die of natural causes in the same month, setting the stage for new leadership by AFL president George Meany and CIO president Walter Reuther.

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Year Event

1955 AFL and CIO labor organizations merge to form the AFL-CIO, electing George Meany as presi- dent and Walter Reuther as vice president.

1959 Following Senate hearings on alleged organized crime infiltration of unions, the Labor Manage- ment Reporting and Disclosure (Landrum Griffin) Act enacted to regulate the internal affairs of unions and their relationship with individual union members.

1959 Wisconsin passes the first state law allowing collective bargaining by state and local govern- ment employees.

1962 President John F. Kennedy issues Executive Order 10988, permitting federal employees to organize and engage in collective bargaining.

1963 Equal Pay Act enacted, prohibiting different wage rates based on sex for workers performing the same job who are subject to coverage under the Fair Labor Standards Act.

1964 Civil Rights Act enacted, prohibiting discrimination based upon race, color, religion, sex, or national origin in hiring, apprenticeship, compensation, terms or conditions of employment, and union membership.

1967 Age Discrimination in Employment Act enacted, making it illegal to discriminate against indivi- duals 40 years of age or older in regard to hiring, discharge, or other employment decisions on the basis of the individual s age.

1968 Unrest leads to increased organizing, bargaining, and strikes by public employees (e.g., police, firefighters, and teachers). Martin Luther King Jr. is assassinated while helping to lead a sanita- tion workers strike in Memphis, Tennessee.

1970 Occupational Health and Safety Act enacted to provide a safe and healthy work environment for American workers. Congress passes the Racketeer Influenced and Corrupt Organizations Act (RICO) which allows the prosecution of organizational leaders for racketeering if two or more crimes have been committed by the organization in a ten-year period; used against crime syndicates involved with business firms and labor unions.

1974 Employee Retirement Income Security Act (ERISA) enacted to regulate defined-benefit pension plans; the goal of the law was to protect employee pensions.

1975 Economy begins to transition from industrial-based to service-based. 1978 Civil Service Reform Act enacted, converting previous presidential executive orders establish-

ing bargaining right for federal employees into permanent legislation. 1980 Increasing global competition ushers in a decade in which many U.S. firms are forced to

undergo dramatic change in order to remain competitive. Concession bargaining, flexible work rules, and labor management cooperation become common topics for negotiation.

1981 Members of the Professional Air Traffic Controllers Union (PATCO) engage in an illegal strike and are discharged by the Reagan administration. This act was widely interpreted by practitioners in the private and public sectors as evidence of a new employer get tough policy in labor rela- tions. Union avoidance consultants advised firms on how to become or remain union free.

1988 Worker Adjustment and Retraining Notification Act enacted. Requires employers who employ 100 or more employees to provide 60 days advance notice of any plant closing or major layoff.

1991 Americans with Disabilities Act enacted to protect persons with disabilities from discrimination in regard to hiring, discharge, or other terms and conditions of employment. Civil Rights Act of 1991 amended Title VII of the 1964 Civil Rights Act to permit (1) suits for punitive damages for violations involving intentional discrimination and (2) the use of alternative dispute resolution methods to resolve employment discrimination claims.

(Continues)

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The Knights of Labor (KOL)

Goals and Organization of the KOL Founded by Uriah S. Stephens as a secret society in 1869, the Knights of Labor (KOL) operated in secrecy until 1882 so that the members would not be discharged by their employers for participating in a labor organization. There are two major reasons for dis- cussing the KOL. First, rather than limiting membership to a local geographic area, it was a national union that had a scope larger than any previous union in American his- tory. The KOL enjoyed steady growth in the early 1880s, reaching a membership of more than 100,000 in 1885. Between 1885 and 1886, the organization s membership increased dramatically to 700,000. The KOL achieved more power, prestige, and notoriety than any other previous labor organization.16 However, its goals and strategies also contributed to its demise as an effective organization. Therefore, the KOL served as an important nega- tive example to the AFL and other contemporary labor organizations that followed as they worked to establish goals, policies, and an organizational structure necessary to sur- vive and grow as a labor organization.

The Knights attracted members who were dissatisfied with many features of the new industrial revolution, which dramatically altered work practices and relationships begin- ning at the time of the Civil War. In response to workers concerns, the KOL established two major interrelated goals:

1. Change the existing labor management relationship so that the depersonalized and specialized aspects of mass production could be avoided.

2. Attain moral betterment for employees and society.

The KOL s goals can best be understood through the views of Terence Powderly, its leader and chief spokesman from 1879 to 1883. Powderly felt that mass production reduced employees feelings of pride and personal accomplishment.17 During the Agri- cultural Economy era, prior to 1850, work occurred in relatively small shops where employees often gained satisfaction and pride from their craftsmanship as they created high-quality customized products from beginning to end. The Industrial Economy (1850 1975) utilized mass production techniques and job specialization so that different

Year Event

1992 North American Free Trade Agreement enacted; intended to promote trade between the United States, Canada, and Mexico.

1993 The Family and Medical Leave Act enacted, permitting employees of employers who employ 50 or more employees to take up to 12 weeks of unpaid time off in the event of a birth, adop- tion, or foster care of a child; or to care for a child, parent, spouse, or themselves involving a serious health condition.

2005 Formation of the Change to Win labor federation to focus more resources on organizing unrep- resented employees.

2009 Lilly Ledbetter Fair Pay Act enacted to clarify the time limit within which a pay discrimination claim may be filed but limiting any potential employer liability for damages to a maximum of two years.

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jobs focused only on a relatively few tasks which, when combined with other employees job output, could produce a complete product. Because the time and skill level required to learn and perform, a limited set of job tasks were less than previously required to pro- duce the entire product, less costly labor could be employed, and more easily replaced when necessary. Powderly placed this situation in perspective by considering the shoe- makers situation: The man who was called a shoemaker 30 years ago made shoes; the man who claims to be a shoemaker today makes only part of a shoe. What was once a trade in itself is a multiplicity of trades. Once there were shoemakers, now we have Bea- ters, Binders, Bottomers, Buffers, Burnishers, Channellers, Crimpers, Cutters, Dressers, Edge Setters and several other workers at the shoe trade, and they all consider them- selves shoemakers. 18

Employees working in these specialized classifications often did not obtain meaning or satisfaction from their fragmented work tasks. Powderly also felt that bankers and owners of gold were the villains of industrial society, causing higher taxes for employees and creating monopolies that further depersonalized the individual employee.19

The KOL believed that changing the existing industrial and societal system would help accomplish a second goal, moral betterment, and increased dignity for their mem- bers. Powderly claimed that members must place their concerns on a higher ground than material working conditions, as these physical effects were but stepping stones to a higher cause, of a nobler nature the more exalted and divine nature of man, his

high and noble capabilities for good. 20 The leadership of the KOL were continually con- cerned that its members would devote too much attention to improving working condi- tions and ignore the goal of moral betterment to make every man his own master.21

The moralistic overtones of the Knights guided their membership policies, organiza- tional structure, and strategies and tactics. Because moral betterment affected all mem- bers of society, the KOL adopted a One Big Union approach encouraging people of all job types and skill levels to join the organization except professional gamblers, stock- brokers, lawyers, bankers, and those who lived in whole or in part by the sale or manu- facture of intoxicating liquors.22 Employers were also encouraged to join the KOL, the rationale being that they along with employees were being duped by financiers and law- yers, and once educated to this fact would join hands with their employees to improve society.

The local assembly, the basic unit in the KOL, could consist of employers and employees from several different trades. By 1886, there were 1,100 KOL local assemblies. However, the formal authority and power of the KOL remained centralized in the hands of the General Executive Board headed by Powderly.23 As seen later in this section, the top-down pyramid structure of the KOL later led the AFL to adopt a dramatically differ- ent organizational structure.

Strategies to Accomplish the KOL s Goals The Knights used at least four strategies to accomplish their goals. First, political action was viewed as important, particularly because the Knights felt that previous legislation had led society down the wrong road. The Knights believed that politicians were moti- vated by self-interest and therefore required careful watching. However, the Knights believed in operating through existing political parties. The KOL actively lobbied for leg- islation to restrict the immigration of foreign labor. Employers often encouraged less restrictive immigration policies as a way to expand the labor supply, thereby reducing the cost (value) of labor. The KOL lobbied for increased funding of public school sys- tems to give every individual an opportunity to become better educated.

CHAPTER 2 The History of Labor Management Relations 53

They also lobbied against the use of prison labor. At that time, companies in some states could secure contracts to use prisoners as workers, who were often paid very little in wages. Because of the lower labor costs, firms with prison contracts could expand their market share at the expense of their competitors. Occasionally, prisoners were used as strikebreakers. Thus, labor leaders complained that prisoners were given work even as honest citizens lost their jobs. Some business and religious leaders also believed that the system gave some firms an unfair advantage over others and lobbied for change. Initially resistant, many states eventually passed laws limiting the use of prison labor in the private sector. Consequently, to keep prisoners from becoming idle, penitentiaries gave their prisoners public-sector work to do.24

A second strategy was the encouragement of producer and consumer cooperatives. Unlike the socialists, the Knights did not want the cooperatives to be owned by the state. Instead, the KOL wanted employees to save enough from their wages to either purchase established operations or create their own cooperative ventures. Because factories would then be owned by the employees, KOL leaders reasoned that conflict between employees and employers would cease. Cooperatives would also enable employees to become their own masters, granting them a voice in decision making, including the determination of a fair distribution of profits.

The Knights leadership believed cooperatives would affect the established wage profit system most directly; yet they made little attempt to establish cooperatives or to financially support the approximately 100 cooperatives that were established by KOL local or district assemblies during the mid-1880s. Most of these cooperatives failed because of inefficient managers, squabbles among shareholders, lack of capital, and inju- dicious borrowing of money at high rates of interest. 25

The KOL pursued a third strategy when it actively avoided the use of strikes to obtain its goals. Indeed, the KOL s leadership often actively discouraged strikes and, in some cases, demoralized local assembly members by failing to financially support local assembly strike actions.26 Some leaders viewed strikes as a last resort that could result in labor violence and lessen the common interests of employers and employees, serving to distract members from the major goal of moral betterment. The General Executive Board set up a complicated procedure that local assemblies had to follow before they could obtain strike funds.27 Powderly believed that no employee should be able to enter a strike that would result in other employees losing their jobs; therefore, a procedure was needed to ensure that every employee possibly affected by a strike would have a voice in the strike decision.28 Yet the red tape involved in obtaining strike funds caused great dis- sension between the KOL leaders and members.29 Local assemblies that conducted strikes were often left on their own to financially support work stoppages, or KOL- approved funds arrived too late to effectively support a strike.

The Knights leadership preferred a fourth strategy as an alternative to the strike: namely, the education of its members and general citizens as to the perceived evils of the existing industrial system, as well as the Knights goals for societal improvement. Usually the leaders would meet with members of local assemblies in private sessions to inform them of the organization s goals and objectives. The emphasis on education instead of job action efforts (strikes and boycotts) is further discussed in the next section.

Reasons for the KOL s Failure and Demise Despite tremendous growth, the KOL experienced a sudden demise. One reason for its growth was a successful strike initiated by local assemblies against Jay Gould s railroads in 1885, during which the Knights showed the public that an aggressive, well-disciplined

54 PART 1 Recognizing Rights and Responsibilities of Unions and Management

group could take on one of the most powerful financiers of the day and win. Yet the effect of this strike may have been limited because neither the Knights nor the newspa- pers highly publicized the events. Another reason for the KOL s growth was its identifi- cation with the eight-hour workday, an issue of growing importance to the nation s workforce.30 However, as discussed in the next section, the KOL s actions in support of the eight-hour workday were rather weak.

The KOL s leadership operated under several faulty assumptions. First, the advan- tage of hindsight makes it clear that the KOL s leadership erred in assuming that techno- logical advancement could be halted and possibly reversed. Second, the KOL overestimated the extent to which employers and employees share common interests. Although some common ground exists, each group is motivated by self-interest, which in a profit-oriented economic system makes labor gains a cost factor to be minimized by employers in order to enhance ownership s interest. Employers are concerned about increased operating efficiency, effectiveness, and profitability, whereas employees are more concerned about job security, fair treatment, and improving working conditions.

The KOL s third faulty assumption was that all types of employees shared identical employment interests. The KOL was ahead of its time in its attempt to organize less- skilled employees a goal eventually accomplished by unions within the CIO in the late 1930s. However, employees do not all have the same employment interests, particularly if they have different skills or work classifications, or if they are employed in different industries or occupations. The one big union approach (enrolling nearly anyone who expressed an interest in the Knights) was further complicated by many immigrant mem- bers whose differences in race, language, and religion presented barriers to effective com- munication and achieving consensus regarding goals and tactics.31

Fourth, the KOL s success was further hampered by a lack of legislation protecting the rights of employees to join unions and engage in collective bargaining. Suffice it to say that the Knights, as well as other labor organizations before 1935, did not have a legal right to engage in many of the collective activities necessary for effective represen- tation of workers interests.

Finally, the inability of the KOL s leadership (particularly Powderly) to identify with members goals also presented a problem. The Knights insisted on adopting a middle class program for the American labor force, which they refused to contemplate in indus- trial, working-class terms. Almost all local assembly meetings required the members to dress up after a day s work to engage in intellectual discourse. The preference for intel- lectual deliberation over immediate action is perhaps best illustrated by Powderly s approach to the eight-hour workday movement.

The Eight-Hour Workday Movement and the Haymarket Riot One of the more important reforms desired by many employees in the late 1800s was reduc- ing the prevalent ten-hour workday to eight hours. Samuel Gompers, who was a Knights member and an official of other labor organizations (Federation of Organized Trades and Labor Unions and the Cigar Makers Union), pressed Powderly to support a nationwide gen- eral strike on May 1, 1886, in support of the eight-hour workday. Powderly was receptive to the goal of an eight-hour workday, as it would give employees more leisure time to pursue intellectual activities. However, Powderly did not join Gompers s call to action because he did not believe the length of the workday was the major problem: To talk of reducing the hours of labor without reducing the power of machinery is a waste of energy. 32

Supporters of the eight-hour workday believed that, if instituted, employers would have to hire more employees to perform the current total hours worked, thereby reducing the unemployment problem. On May 3, 1886, some workers striking over this issue in Chicago

CHAPTER 2 The History of Labor Management Relations 55

were involved in a skirmish with the police, and at least four strikers were killed. A leader of this dispute published an inflammatory circular urging Revenge! and Workingmen to Arms! The circular also indicated that a mass rally would be held the next day at Haymarket Square in Chicago. The stage was set for an event (known later as the Haymarket Riot) that virtually eliminated the KOL s effectiveness.

On May 4, 1886, approximately 3,000 people attended the scheduled meeting, which began peacefully. Police who monitored the meeting were ordered by their chief to return to the station. However, Police Captain Bonfield, whom the governor of Illinois later charged as being responsible for the incident, ordered them back to the meeting. During a speech a bomb was thrown into the gathering of police, killing 7 and wounding 60. What happened next is uncertain. The Chicago Tribune reported that anarchists and rioters poured in a shower of bullets before the first action of the police was taken. 33 Yet another report in the same article stated that the police opened fire on the crowd imme- diately after the bomb exploded. Regardless of the order of events, the police did shoot into the crowd, killing several and wounding 200.

Eight individuals allegedly responsible for the incident were arrested. Four of the eight were hanged, one committed suicide in prison, and three were eventually pardoned by the governor of Illinois after serving some of their sentences. The trial of these eight individuals contained a number of irregularities. For example, the hand-picked jury included a relative of one of the bombing victims.34 The trial never did establish who threw the bomb; however, the accused were judged guilty by the Chicago Tribune before the trial took place. More specifically, the paper stressed that the mob was led by two wirey whiskered foreigners, 35 who were Nihilistic Agitators. 36

The Knights were not directly labeled in the immediate press accounts of the strike nor in the subsequent series of unsuccessful strikes over the eight-hour workday, which involved nearly 340,000 employees. However, the strikes contributed to the organization s demise for at least two paradoxical reasons. A substantial body of public opinion did label the Knights as being involved in the strikes. Yet many of the Knights own members criti- cized their leadership for not participating enough in the events during and after the Hay- market Riot.37 Indeed, Powderly strongly discouraged strikes over the eight-hour workday, believing instead that members should write essays on the subject. Thus, the Haymarket Riot dramatically reflected the split between the KOL and the newly formed AFL led by Samuel Gompers, a labor organization that was to flourish and endure.

Origin and Goals of the American Federation of Labor The American Federation of Labor (AFL) was formed in 1886 after some of its member national unions (most notably the Cigar Makers) were expelled from the KOL.38 As pre- viously mentioned, Samuel Gompers, a major founder of the AFL, was a member of the KOL until he became disenchanted with the KOL leadership s long-range social reform philosophy. Gompers was also upset about KOL activities involving his own craft union, the Cigar Makers. In particular, the KOL tried to persuade local cigar makers to join a KOL assembly and sometimes supplied its own members to act as strikebreakers to work for employers who were being struck by the Cigar Makers (Gompers s) union.

Gompers met with KOL leaders in December 1886 to discuss these problems, but the meeting did not resolve the situation. Indeed, Gompers became incensed when a pamphlet was circulated among KOL representatives attacked Gompers personally by indicating the General Executive Board has never had the pleasure of seeing Mr. Gom- pers sober. 39 Also, in retrospect, KOL leaders blundered when they focused on recruit- ing skilled craft employees already members of existing craft unions (e.g., Cigar Makers union), a move that resulted in bitter reactions from those trade unions. The Knights

56 PART 1 Recognizing Rights and Responsibilities of Unions and Management

might have been better off (and still consistent with their goals) if they had devoted more attention to recruiting other, less-skilled employees who were not eligible for member- ship in existing skilled craft unions.40

Unlike the KOL, the AFL was not established as one big union. AFL member unions were organized along skilled craft lines, where only employees who shared a skilled trade (e.g., painters) were in the same union. (The current organizational structure of the AFL- CIO is discussed in detail in Chapter 4.) The AFL represented a federation of national unions cooperating for mutual gain while permitting each national union to maintain independent control over its own identity and operations. Craft unions such as the Cigar Makers, dominated the early stages of the AFL. The AFL influenced its member unions through its services, particularly organizing activities, philosophies, and strategies.

It is impossible to discuss the AFL apart from Gompers because in the early years, the AFL existed only in the person of Gompers and in the annual conventions. 41 With the exception of 1895, Gompers was president of the AFL from its founding in 1886 until his death in 1924. Therefore, much of the discussion of the goals, strategies, and organization of the AFL is from the perspective of Gompers, a point of view that still relates strongly to the thinking of organized labor.

Gompers placed little emphasis on intellectual betterment, and he scorned other union leaders pretensions to show labor union members the course of action they should pursue.42 Gompers criticized the KOL as representing a hodgepodge with no basis for solidarity with the exception of a comparatively few trade assemblies. 43 Gom- pers believed that the goals and organization of unions should flow directly and naturally from the members needs, not from the pronouncements of top leaders who structured unions based on their views of what should have been, rather than what was.

Gompers particularly scorned those union leaders who tried to change the existing social system through revolutionary means.44 Although Gompers was a socialist in his early years, he grew to despise this philosophy, contending that it was economically unsound, socially wrong, and impossible to apply in an industrial setting.45 Gompers believed that union members should work for equitable treatment within industrial soci- ety rather than revolt against it.

Thus, the AFL s major goal was to improve the material conditions of members through the existing capitalistic system. This goal was attacked by critics of the AFL as representing pure and simple unionism. Gompers embraced this intended attack; indeed, he seemed to devote most of his attention to ensuring that the AFL s pure and simple approach to collective bargaining successfully differentiated it from other labor organiza- tions. What can also be called business unionism represented a philosophy that the union was an organization whose business was to represent the employees interests in their dealings with their employers, just as a lawyer s business was to represent the cli- ent s interests in the courtroom.46

Pure and simple unionism had two major objectives. The primary objective was eco- nomic betterment of the organization s members. Gompers believed the truth, or essence, of labor unions should be measured in terms of their economic accomplishments:

Economic betterment today, tomorrow, in home and shop, was the foundation upon which trade unions have been built. Economic power is the base upon which may be devel- oped power in other fields. It is the foundation of organized society. Whoever or whatever controls economic power directs and shapes development for the group or the nation.47

Thus, the AFL s notion of employee dignity equated with measured economic gains. This view differed from the KOL s contention that employee dignity is attained by participation as equals in meaningful work and in other societal concerns.48

CHAPTER 2 The History of Labor Management Relations 57

Gompers also stressed a second objective of pure and simple unionism the enhancement of the capitalistic system, which could benefit both employees and employ- ers. Workers could obtain more only if capitalism continued to flourish. Without capital- ism, neither employees nor employers would receive revenues. The AFL therefore believed labor and management shared some similar interests. However, Gompers did not agree with Powderly that this situation would lead to complete employer employee agreement on all issues. Gompers realized that major differences of opinion would occur over the distribution of revenues and that employees would probably have to pressure employers to receive their fair share.

Strategies and Tactics of the AFL This realization prompted the AFL to rely on using economic pressure tactics when nec- essary to support its collective bargaining efforts. Unlike the KOL, Gompers believed the strike was a viable collective bargaining tactic: A workman must convince his employer that he is entitled to an advance in wages . Why should the wage earner work for less than living wages, which he would have to do if he could not strike? The worker is expected to continue to work at whatever wages his employer is willing to give in order to save the public from inconvenience. 49

A second AFL tactic (particularly after its headquarters moved to Washington, D.C.) was that of involvement in the political arena. Gompers, an aggressive lobbyist, attempted to translate election votes of AFL members into rewards for political friends of labor and punishments for political enemies of labor. However, political efforts dur- ing Gompers s leadership were neither intense nor widespread throughout the AFL.50

AFL political efforts were directed at influencing the existing two-party system instead of forming a third political party. Gompers felt that establishing a third party would divert too much time from fundamental collective bargaining efforts, and he was con- cerned that any new political party might fall under the socialists control.51

A third AFL tactic was to enhance the public status and reputation of organized labor and the collective bargaining process. Gompers devoted much attention to the National Civic Federation (NCF), formed in 1899 to promote industrial peace through collective bargaining. The NCF was composed of prominent labor, management, and political officials and attempted to guide public opinion toward the positive aspects of collective bargaining, including improved wages and working conditions. For example, unionized coal mines tended to have far fewer fatalities than nonunion mines. However, at least one observer of industrial relations has questioned the success of this public rela- tions tactic, believing that the NCF s rhetoric surpassed its performance. 52

Organization of the AFL The AFL s organizational structure was based on two principles. The first principle, exclusive union jurisdiction, had two normative ideas: First, workers should only be members of one union they should not join multiple unions; second, when dealing with a specific employer, one union should represent everyone who worked in that skilled craft. The AFL avoided the concept of one big union, which had proven ineffec- tive for the KOL, and insisted on using the principle of exclusive union jurisdiction. This principle rested on the twofold observation that (1) each craft or trade had unique work- ing conditions and job interests and (2) combining members of different trades into one organization would jeopardize those interests and cause unnecessary dissension. The AFL believed in one union representing each identifiable skilled craft; for example, sepa- rate unions to represent carpenters, painters, and cigar makers. Because membership in the AFL was restricted to established skilled crafts, many semiskilled workers did not meet the qualifications for membership in an AFL-affiliated union.

58 PART 1 Recognizing Rights and Responsibilities of Unions and Management

The second principle was that of decentralized authority. Gompers strongly believed the AFL was a voluntary organization held together by the mutual self- interests of its members. Unlike Powderly, who believed that centralized authority was necessary to achieve the Knights objectives, Gompers viewed the AFL as a rope of sand, dependent entirely on the acceptance of its members. Thus, the real authority rested with the AFL s affiliated national unions and their member locals. As is further discussed in Chapter 4, these principles continue to influence contemporary union organizations.

Gompers was a most active union organizer who claimed to have helped in organiz- ing 28 unions representing different crafts such as painters, papermakers, firefighters, and post office clerks.53 Much of this effort was due to Gompers s view of himself as one of the boys he took pride in his ability to socialize with the members on their

own terms. Despite Gompers s efforts, the AFL s early growth was not spectacular. Its original

membership of 150,000 had increased to only 250,000, six years later. The initial slow growth was due to the counterattack of industry (discussed in the section on World War I to World War II), the generally repressive attitude of the government and the courts toward collective employee activities, and the difficulties created by the depression of 1893. Yet Gompers could view these modest membership gains as a tribute to the AFL s powers of stability and permanency. 54

From its formation until World War I, the AFL was directly or indirectly involved in three prominent events: the Homestead and Pullman incidents and the formation and demise of the IWW.

The Homestead Incident The Carnegie Steel Works, located in Homestead, Pennsylvania, was ironically the scene of one of the more violent episodes in labor history. The founder of the works, Andrew Carnegie, was a renowned philanthropist who gave every indication of being receptive to organized labor. In one article, written before the Homestead Incident, Carnegie stated that a strike or a lockout was a ridiculous affair because it represented only a test of strength instead of determining what was fair and just. 55 Carnegie also believed that labor management problems would occur in large firms run by salaried managers instead of owners because the managers had no permanent interest in the desires of the employees.

Carnegie s remarks proved prophetic in the Homestead Incident of July 6, 1892. Although many have labeled the incident a strike, one labor historian has noted that no-strike vote was ever taken by the membership, and the employer prohibited the employees from working, which would be more consistent with an employer lockout.56

During negotiation between the mill and the Amalgamated Association of Iron, Steel, and Tin Workers (an affiliate of the AFL), a 15-foot-high solid board fence, topped with barbed wire, was constructed around the building. Andrew Carnegie was vacation- ing in Scotland during negotiations and had delegated construction of the fence to a manager named Henry Clay Frick. The union labeled the structure around the steel mill Fort Frick. Union members were undoubtedly aware that Frick was negotiating with Pinkerton detectives as a potential strike intervention force at the same time nego- tiations were being conducted with the union. Frick intended to use Pinkerton detectives inside the facility to protect the company s property and as strikebreakers to perform work should a strike occur.

On June 30, 1892, the company made its last offer, which represented a substantial reduction of previous wages; when it was rejected, the company locked out its 4,000

CHAPTER 2 The History of Labor Management Relations 59

employees.57 Workers then began an around-the-clock surveillance of the plant. One newspaper account indicated, The line of pickets covers the river, roads, and railways so tightly that no stranger can enter the town without being known to the strikers. 58 On the morning of July 5, 300 Pinkertons gathered at Ashtabula, Ohio, and proceeded by rail to Youngstown, Ohio. They then traveled up the Monongahela River by barge. On July 6, word had reached those in Homestead that the Pinkertons would be entering the plant from the river. Six thousand people lined the river banks at 2:00 A.M., and employees pre- pared two small cannons, one on each side of the river, to be used on the Pinkertons.59

The Pinkertons attempted to land by the company s beach at 5:00 A.M.; shots were exchanged, and three Pinkertons were killed. Shooting by both sides continued for 12 hours, with an additional seven townspeople killed and 50 wounded. The Pinkertons sur- rendered to the townspeople and were forced to run a bloody gauntlet before being locked up for their protection. The townspeople had taken weapons from the Pinkertons, a situation that resulted in 8,700 National Guard members being sent to secure the town. There were few further attempts to occupy the mill by Pinkertons or strikebreakers.60

The incident ended for all purposes approximately 5 months later (November 20, 1892) when the Amalgamated lifted its prohibition against returning to work.

Homestead has been labeled the Waterloo of unions in the steel industry. After the Homestead Incident, membership in the national union dropped from 24,000 in 1892 to 8,000 in 1894. On the local level, only 800 of the original Homestead employees were reinstated. Carnegie s mills showed a dramatic increase in profits when the union was eliminated, a fact that encouraged other employers to take an anti-union stance.61

Although Homestead represented a victory for management, the AFL and organized labor did benefit to some extent from the situation. First, Gompers demonstrated to existing and potential union members his very real concern about the Homestead situa- tion.62 The funds contributed by the AFL to help defray the employees legal expenses also demonstrated that the AFL was interested in helping its member unions in a mate- rial sense.63 Finally, the Homestead situation received more sympathetic newspaper cov- erage than did the Haymarket Riot. The press charged Carnegie with provoking the situation. For example, the Chicago Tribune strongly criticized the company s use of Pin- kerton guards and contended that Carnegie s company, as well as any large industrial organization, has duties and obligations toward society which it must not forget, and not the least of them is to do all in its power, and make all of the concessions it can, to preserve civil and industrial peace. 64

The Pullman Strike In the late 1800s and early 1900s strikes were common in the railroad industry. For example, the Great Upheaval of 1877 involved independent railroad employee associa- tions protesting wage cuts. It was a bitter and violent confrontation in which more than 100 employees were killed and several hundred were badly wounded.65

Yet the Pullman Strike of 1894 assumed significance because of the principal per- sonalities involved (Eugene Debs and George Pullman) and an organization (the Ameri- can Railway Union (ARU)) that had the potential to challenge the AFL for union members. It also approached being a revolutionary strike in the United States, progres- sing from a nationwide strike in one industry to nearly involving all industries.

First, some background: George Pullman recognized the need for comfortable rail cars suited to long distance travel and he decided to fill that need. Consequently, Pull- man, who had experience as a carpenter and refurbishing other firm s passenger cars, began making railroad cars. He improved upon existing sleeper cars and offered the first dining car in the late 1860s. However, instead of simply selling railroad cars, he

60 PART 1 Recognizing Rights and Responsibilities of Unions and Management

usually rented them to the railroads, complete with staff. Thus, conductors, cooks, wait- ers, and porters usually were not employed by the client railroads, but were employed by Pullman.66 For more about the African-American employees who worked for Pullman and the Civil Rights movement, see the Labor Relations in Action Box.

As a result of the 1893 depression, the Pullman Palace Car Company laid off 3,000 of its 5,800 employees and cut wages 25 to 40 percent. Both actions were important because they occurred in the milieu of Pullman, Illinois (now a part of Chicago) a company town where the factory was located. This town represented a paternalistic social experiment by George Pullman. The company owned all the buildings, and houses in the town, which were built to provide living space for company employees, who were not allowed to own their own homes in the town.67 After wages were cut, the company did not reduce housing

LABOR RELATIONS IN ACTION Unions and the Civil Rights Movement

When George Pullman sought workers for his passen- ger cars in the mid-to-late 1800s, he found a ready source of labor, already experienced in pleasing others: Former slaves. For these workers, employment at Pull- man was a position of some status, although low wages had to be supplemented with tips and White passengers were sometimes condescending.

Prior to the 1960s, work in many parts of the coun- try was segregated based on race. Some jobs (e.g., train conductors) were generally reserved for Whites, while other jobs were reserved for Blacks and other minorities (e.g., train porters, baggage handlers). Unions often reflected the social norms of their day: Some refused to admit minority-group members. Others established auxiliary unions for Blacks and/or women workers.

Some union leaders, particularly in the CIO, were more open to the idea of admitting minority-group members because they felt that segregating the races only allowed managers to pit one group against another (e.g., threatening White workers with layoff and replace- ment with lower paid Blacks; using minorities as strike- breakers when White unions went on strike). Even when national union leaders embraced the idea of equal opportunity, local unions occasionally thwarted their efforts, as happened with the United Automobile Workers (UAW) in the late 1940s: Whites in a few fac- tories walked off the job rather than allow Blacks to do White work.

One union leader who worked to bring about equal employment opportunity for African-Americans was A. Phillip Randolph. A Socialist in his youth, in 1925 he was elected president of a labor union called the Broth- erhood of Sleeping Car Porters, which consisted of Blacks who worked for the Pullman Co. The following year Congress passed the Railway Labor Act, which regulated labor relations in the railroad industry. How- ever, because Pullman employees technically did not

work for the railroads (who merely rented cars from Pull- man), these porters were not covered under this new law. Randolph lobbied successfully to get the law chan- ged (1934) and then successfully negotiated a contract with Pullman Co. (1937) that provided pay raises and a shorter work week.

By 1940, U.S. defense industries were boosting production out of concerns that the country might be dragged into World War II. Yet Blacks were ineligible for many jobs due to racial segregation, which prompted some protest marches in selected cities. Randolph and other Civil Rights leaders proposed a March on Washington, D.C., where African-Americans would argue for equal employment opportunity. The march was called off, however, because President Roosevelt issued an Executive Order forbidding racial discrimina- tion in defense industries. Later, Randolph and others persuaded President Truman to issue an executive order abolishing racial segregation in the armed ser- vices. In the 1950s, he lobbied to end segregated schools and to promote equal voting rights for all races, forming an alliance with Rev. Martin Luther King, Jr. In 1963, over 20 years after he had first pro- posed it, he helped organize the March on Washington, D.C., which promoted passage of the 1964 Civil Rights Act. This law forbade discrimination in employment, access to job training, union membership, and other aspects of society. Randolph s incessant efforts had finally brought the sweeping legal changes he had sought over a 40-year career.

SOURCES: Cornelius L. Bynum, A. Philip Randolph and the Struggle for Civil Rights (Urbana, IL: University of Illinois Press, 2010); Venus Green, Not your average frater- nal organization: the IBPOEW and labor activism, 1935 1950, Labor History, 53(4), 2012, pp. 471 494; Kevin Boyle, There are no Union Sorrows that the Union Can t Heal : The struggle for racial equality in the United Automobile Workers, 1940 1960, Labor History, 36, 1995, pp. 5 24; Jervis Anderson, A. Philip Randolph: A Biographical Portrait (New York: Harcourt, Brace, Jovanovich, 1973).

61

rents or charges for other services. The wage cuts resulted in some employees having a net two-week pay of $1 to $6 during the winter of 1893 to 1894.

This situation generated much hostility among employees, many of whom were members of the ARU, formed in 1893. The ARU was completely independent from the AFL and competed for members with the AFL-affiliated railway craft unions. The ARU accepted any white employee, regardless of specific job classification, so that railroad employees could present a unified front to the railroad companies.68 The ARU was attractive to many employees because its inclusion of all types of railway workers served to counter employers previously successful strategy of creating dissension among the dif- ferent specialized craft unions by playing one against the other in wage negotiations.

The ARU s local unions had sole authority to call a strike, and the Pullman strike began on May 11, 1894. Eugene Debs, the ARU s leader, came to Chicago fresh from a labor victory: The Great Northern Railroad in Minnesota and North Dakota had tried to impose substantial wage cuts, but Debs led an ARU strike and, in April, 1894, got most of the cuts rescinded. Debs informed the Pullman strikers that the strike should repre- sent a protest against philosophical issues rather than just for mere material betterment: The paternalism of Pullman is the same as the interest of a slave holder in his human

chattels. You are striking to avert slavery and degradation. 69

At first the strikers followed Debs orders not to damage railroad property. The ARU instead adopted a strategy of not operating any train that included a Pullman sleeping car the common practice was to cut these cars from the train and move them to the side tracks. If any employee was discharged for this action, then the entire crew would quit, leaving the train immobilized. This tactic, employed in 27 states and territo- ries, was intended to make railroad carriers put pressure on Pullman to agree with the ARU s bargaining position.

The railroad employers rallied behind Pullman and countered the union s strategy by hiring strikebreakers. Railroad employers also decided to include federal mail on nearly every train as a way of getting support from the federal government to ensure the mail was delivered. Owners were able to obtain a labor injunction on July 2, 1894 (subsequently upheld by the U.S. Supreme Court), to prevent any employee from inter- fering with the delivery of the mail. Employees could no longer engage in their strike strategy of rendering the trains inoperative. Some 16,000 troops, dispatched by President Cleveland to enforce the injunction, either delivered the mail and operated the trains or protected strikebreakers so that food and other perishable items could be delivered throughout the country.

The strike then took a particularly ugly turn when employees burned at least 700 railroad cars in Chicago on July 7, 1894. Management was also criticized for this incident for failing to take minimum security measures, such as guarding or locking the railroad cars, to prevent such damage. There were allegations that some management officials may have even provoked the incident to receive additional support from the government. This possibility is suggested because all the burned cars were old (the newer, more expensive Pullman sleeping cars were not on the property), and very few of the cars were loaded with any product.70

The resulting negative public opinion and increased action by federal troops forced Debs to seek Gompers s cooperation. Debs wanted Gompers to call a national strike to help enforce Debs s last offer to settle the strike, which was simply management s agree- ment to reinstate the striking employees. Gompers refused to support Debs, contending that he did not have the authority to call a general strike. Gompers also believed that the proposed settlement would, in effect, admit to the public that the ARU had failed to win material benefits for its members. Much of Gompers s reluctance was based on his view

62 PART 1 Recognizing Rights and Responsibilities of Unions and Management

of Debs as being a leader of irregular movements and lost causes. 71 However, Gom- pers s inaction might also have been caused by his desire to eliminate a potential rival to the AFL and bolster his reputation in the business community.

Debs was eventually convicted and sentenced to federal prison in Atlanta, Georgia, for failing to abide by the court s labor injunction. In prison, Debs read books on social- ism and began to advocate the election of a government that would be responsive to the working classes by taking control of major industries including railroads. Eventually, Debs ran for the U.S. president as the Socialist Party s candidate. Meanwhile, the ARU, which had grown to 150,000 members in one year, quickly faded from existence. Orga- nized labor did learn an important lesson from the Pullman strike: It would be difficult to alter existing terms and conditions of employment when confronted by a persistent, if not exceptionally stubborn, owner (Pullman), the federal government (troops, injunc- tions, legislation), and negative public opinion (fueled by exaggerated and dramatic newspaper articles).

The Industrial Workers of the World The Industrial Workers of the World (IWW) was formed as an alternative to the AFL on June 27, 1905. William Big Bill Haywood, one of the initial organizers of the IWW, proclaimed the organization s goals in calling the convention of 209 delegates to order with the following remarks:

Fellow Workers . We are here to confederate the workers of this country into a working class movement that shall have for its purpose the emancipation of the work- ing class from the slave bondage of Capitalism. The aims and objects of this organi- zation should be to put the working class in possession of the economic power, the means of life, in control of the machinery of production and distribution without regard to capitalist masters.72

The significance of the IWW as a labor organization is that it represents perhaps the most serious effort in U.S. labor history to organize workers on the basis of a radical political ideology. The initial goal of the IWW was to overthrow the existing capitalistic system by any means necessary, based on the belief that employers and employees had nothing in common. The IWW s radical political ideology was a marked departure from the pure and simple unionism approach advocated by the AFL, which extolled the vir- tues of the capitalist system. While the KOL had also stressed that the existing wage and profit system needed to be reformed, the KOL believed that employees and employers shared similar interests and that change should be peaceful and gradual. The IWW, on the other hand, had no reservations about advocating the use of any method that would result in the quick destruction of capitalism; thus, some IWW leaders saw the union as a stepping stone to a communist society where all private property would be abolished.

The IWW also opposed any group that supported capitalism. This approach placed the IWW in direct opposition to the AFL, not to mention most other established orga- nizations in society. The IWW regarded the AFL as an extension of the capitalist class because it advocated pure and simple unionism, which was dependent on capitalism.73

Haywood believed that Gompers had sold out the ARU when he failed to support Debs in the Pullman strike, and he viewed Gompers as an arrogant, power-hungry leader.74

Thus, the IWW appeared to have two general enemies. One was capitalism. The second was the AFL. Unlike IWW leaders, AFL officers did not divide society into a ruling class and laboring class dichotomy. Thus, the AFL did not embrace the idea of a working-class movement of hourly employees uniting to overthrow capitalism.

CHAPTER 2 The History of Labor Management Relations 63

An analysis of the IWW reveals that establishing goals can be an easier task than accomplishing them. The IWW never did establish an effective organization; in fact, its leaders never made up their minds about precisely what kind of organizational structure it should adopt.75 Most of the IWW officials agreed with Haywood s objective of orga- nizing every man that earns his livelihood either by his brain or his muscle. 76 This was similar to the One Big Union approach previously tried by the KOL. However, major differences arose among IWW leaders over how to organize one big union into an effec- tive organization. Some members felt that the IWW should work slowly, for example, infiltrate the established AFL unions and gradually persuade members that the IWW cause was best. Others felt that this temporary acceptance of collective bargaining with the capitalists made employees only better paid slaves and would hinder the quick and necessary overthrow of the capitalistic system.77 In addition to organizational differ- ences, there were at least four other reasons for the decline of the IWW, reasons that served as negative lessons for contemporary organized labor.

1. Lack of permanent membership and financial base. A large proportion of the IWW consisted of itinerants individuals who either were unemployed or traveled from job to job, particularly in the agriculture, mining, and lumber industries. This contributed to an unstable financial base. Many IWW leaders thought the members dues should not be mandatory but instead should be paid out of a voluntary inner conviction. For example, in 1907 only 10,000 members out of the total 31,000 members paid any dues. The lack of revenues resulted in meager strike funds, and by 1909 the organization was deeply in debt.

2. Inability of the IWW to appeal to members interests. The IWW did not consider the short-run material interests of its members. Its major emphasis on long-term political and philosophical goals and its focus on propaganda as a means to achieve these goals failed to demonstrate tangible signs of success on a continuous basis.78

The average trade unionist, inside or outside the IWW, had no strong desire to help the underdog. Most employees were too focused on trying to survive them- selves. For example, while many men worked full time and were considered family breadwinners, it was sometimes financially necessary for their wives and children to also hold jobs in factories, work at home (e.g., sewing, laundry), or sell produce from gardens. Such families had little time for radical rhetoric.79

3. Identification of the IWW with sabotage and violence. The relationship between the IWW and sabotage and violence was ambiguous. The IWW in 1914 became the only labor organization ever at its convention to officially endorse sabotage as a legitimate labor tactic. Yet no local, state, or federal authority could ever establish legal proof of any IWW-instigated violence. A strike in 1917 closed the logging camps and sawmills of the Pacific Northwest but did not record any violent acts of sabotage by the IWW.80 The IWW often stated that sabotage does not always equal destruction of equipment. For example, employees could sabotage a company by malicious obedience (following the work rules to the letter, thereby creating a

slowdown) and by informing customers that the company s product was of inferior quality. However, at least one article in the IWW s paper, the Industrial Worker, indicated how emery dust and ground-up glass could cause the destruction of machinery. Evidence suggests that the IWW s leadership did not generally advocate physical violence.81 Yet, there are some accounts of incidents in which IWW mem- bers and leaders pledged a life for a life or an eye for an eye. 82 At a minimum, it would appear that the IWW did not actively discourage its link with violence. Given the widespread reputation for violence and inflammatory rhetoric that accompanied many IWW strikes, many workers distanced themselves from the union.

64 PART 1 Recognizing Rights and Responsibilities of Unions and Management

4. Alienation of the news media and government officials. The newspapers enhanced the IWW s reputation for violence by labeling members as desperate villains who set fire to wheat fields, drove spikes into sawmill-bound logs, derailed trains, destroyed industrial machinery, and killed policemen. 83 Part of this negative image was enhanced by leaders of IWW factions who would damn one another in the press. The IWW also engaged in several free speech fights soapbox speeches in local communities. This strategy, which has since been copied by various protest groups, including students, relied upon there being more participants than there were available jail spaces. City officials, faced with such a situation, typically allowed the unlawful demonstration to continue.84 In many of these speeches, members of the IWW would shout anti-social comments such as There is no God. 85

The press, never enthusiastic about unions in general, reserved a special hatred for the IWW. One editorial against the IWW stated: They would be much better dead, for they are absolutely useless in the human economy; they are the waste material of crea- tion and should be drained off into the sewer of oblivion there to rot in cold obstruction like any other excrement. 86

The IWW also remained alienated from the government. It did not actively use the existing political system because many of its transient members could not meet voter registration requirements. The IWW also incurred the wrath of the federal government when it opposed American involvement in World War I, proclaiming instead that the war represented a plot to allow capitalists to profit from the sale of war materials. Mean- while, they said working-class individuals served as soldiers in the armed conflict. IWW- led strikes reduced lumber and copper production for the war effort.

Opposition to the war and the Soviet revolution in Russia in 1917 led to what was called the Red Scare: A general concern that a communist revolution would happen in the United States. Several states passed criminal syndicalism laws. These laws outlawed the promotion or use of organized violence, sabotage, or terrorism to accomplish indus- trial aims or social revolution. Sedition laws such as the federal Espionage Act of 1917 and the Sedition Act of 1918 prohibited interfering with the war effort, spreading false rumors, advocating revolution, or incitement to resist lawful authority. Red Scare fears were also fueled by an anarchist letter-bomb campaign, the Boston police strike and an IWW-led general strike in Seattle in 1919. The government responded to these activities by creating a Federal Bureau of Investigation that aided in the arrest of more than 100 IWW leaders for sedition. Many foreign nationals were deported and hundreds of U.S.-born IWW leaders were sentenced to prison terms ranging from 5 to 20 years. In effect, the IWW ceased to be a major player on labor s stage after World War I. The organization went into a steep decline in the 1920s. The IWW was rejuvenated during the 1960s, but today it has only a few thousand members.87

The onset of World War I found the AFL confronting several challenges. The AFL had been the first national labor organization to withstand a severe economic depression, a hostile press, reluctant or hostile employers, and three rival labor organizations (KOL, ARU, and IWW). Yet the AFL also faced internal pressures from at least three sources: (1) socialists and other related political groups that advocated independent political action and the organization of low-skilled industrial employees, (2) pacifist members who wanted the AFL to remain neutral or take a stand against the war, and (3) member unions that became involved in jurisdictional disputes caused by increased specialization and technological change (e.g., the plumber was no longer responsible for the complete installation of the water and heating system for a building). Perhaps the most lingering concern of the AFL was that the largest proportion of unrepresented workers in the labor force, low- or semiskilled industrial employees, remained essentially outside the ranks of organized labor.88

CHAPTER 2 The History of Labor Management Relations 65

World War I to World War II

The period from World War I to World War II witnessed several important trends:

1. The inability of unions, particularly the AFL, to make substantial membership gains in the 1920s.

2. The further development of employer strategies to minimize union growth. 3. Increased union concern over organizing semiskilled industrial employees, which led

to a bitter rivalry between the AFL and the CIO.

Union Organizing after World War I: Problems and Prospects The AFL overcame its initial reluctance toward participating in World War I and even- tually pledged its cooperation when the United States became directly involved in the war. The government, aware of the need to ensure uninterrupted production of war materials, responded to the AFL by attempting to meet some its concerns. Government agreements with the AFL provided for the enforcement of trade union standards in all government contracts; labor representatives were appointed to all government agencies, including the War Labor Board; and Gompers was made a member of the Advisory Commission of the National Council of Defense. In short, organized labor was elevated to a more prominent status than had ever been witnessed before. Accordingly, the AFL had a sizable growth in membership during this period (an increase from 2.37 million members in 1917 to 3.26 million members in 1919). Legislative gains also occurred. A long-time AFL goal of severely restricting the number of new immigrants entering the country was accomplished.

The rather sharp increase in the cost of living that followed World War I, coupled with the newly recognized status of labor, resulted in an unprecedented number of strikes such as the Seattle General Strike of 1919, along with other strikes by actors, New York waterfront employees, and coal miners. The most widespread strike in 1919 occurred in the steel industry, where some 367,000 employees walked off the job in 70 major cities.

This strike actually resulted in a setback to organized labor in the steel industry. Many possible factors contributed to the setback. Some were notably similar to those found in the Homestead and Pullman incidents, whereas others reflected a typical situa- tion unions faced in the 1920s and early 1930s. Of crucial importance to the outcome of the 1919 steel strike were internal union difficulties: an organizing campaign conducted by 24 unions instead of one common industrial union; improvised leadership rather than a consistent union approach to the issues; and poor financial resources. U.S. Steel was also successful in withstanding the strike by using strikebreakers and maintaining strong ties with other companies and social institutions, such as the press and church leaders. The strike ended without a labor agreement, and another 15 years would elapse before organized labor would make any significant progress in organizing the steel industry.89

Although the steel industry did not reflect all industrial reactions to collective bar- gaining, apparently many other unions were similarly powerless to organize companies such as U.S. Steel, who firmly believed unions were not in the firm s best interests. For example, another 1919 strike almost paralyzed the coal industry when no miners returned to work until President Wilson persuaded them to accept a temporary wage increase and submit all other issues to the newly appointed Bituminous Coal Commis- sion. In 1920, the commission awarded increases ranging from 20 to 30 percent, but this was the last victory for mine employees for several years.

66 PART 1 Recognizing Rights and Responsibilities of Unions and Management

LABOR RELATIONS IN ACTION The American Labor Movement as Portrayed in Fiction

One way to learn about U.S. labor history is through works of fiction: The Labor Novel. While fiction is rarely completely historically accurate, it can give a sense of the problems that working-class families went through and why workers embraced certain solutions (e.g., labor unions, socialism, or violence or all three). A textbook gives the broad sweep of history; a novel can show the rich details of particular historical events as seen through the eyes of the novel s central characters.

It is good to consider the historical setting of a work of fiction as well as the context in which the person created the work; sometimes, a novel says as much about the time in which it was written (e.g., a twenty- first-century feminist viewpoint) as it does about the time in which the novel was set (e.g., early 1900s). Also the use of a particular genre of fiction, such as a detective story, to discuss labor relations may reflect the popularity of the genre at the time it was written.

Works of fiction tend to follow a few broad themes. One theme is the struggle between the impoverished workers and the rich unsympathetic industrialist. Another theme is the conflict within the family of the industrialist, as some family members may sympathize with the working classes. A third common theme is that of the honest union member fighting corruption (or gangsters or communists or all three) within his or her own union. A fourth theme is that of a manager, detective, police officer, or consultant fighting to keep a corrupt union from coming into a business or town. A fifth theme is that violent strikes are either inevitable or futile and that only through reason and compromise can labor management disputes be resolved. Finally, in some novels, there is the rejection of conventional social norms (including the American dream of mar- riage, having employment, and owning one s home) in favor of life as a revolutionary labor leader and the con- sequences that such a decision brings, both profes- sionally and personally. Often works of fiction are thinly disguised descriptions of actual people, unions, or events. If you read one of the following novels, you might do a little research and ask yourself how closely it relates to actual labor events.

Here are a few titles that you may find interesting and informative (some older titles are available as full- text, free e-books at Web sites such as www.books. google.com/, http://onlinebooks.library.upenn.edu/, or http://www.classicreader.com/):

Auch, Mary Jane (2004). Ashes of Roses. Random House.

Bullard, Arthur [Evans, Arthur, pseud.] (1913). Comrade Yetta. New York: Macmillan. Cantwell, Robert (1934). The Land of Plenty. New York: Farrar & Rinehart. Coleman, Louis (1931). Lumber. Boston: Little, Brown. Coleman, Lynn A. (2005). Fighting for Bread and Roses. Kregel. Conroy, Jack (1933). The Disinherited. New York: Covici-Friede Press. Farrell, Mary Cronk (2004). Fire in the Hole! New York: Clarion Books. Fast, Howard (1962). Power. New York: Doubleday. Foote, Mary H. (1894). Coeur d Alene. Boston: Houghton Mifflin. Garland, Hamlin (1903). Hesper. New York: Harper. Gilfillan, Lauren (1934). I Went to Pit College. New York: Viking Press. Grey, Zane (1920). Desert of Wheat. New York: Grossett & Dunlop. Haddix, Margaret P. (2007) Uprising. NY: Simon & Schuster. Kemske, Floyd (2000). Labor Day. Catbird Press. McCardell, Roy L. (1899). The Wage Slaves of New York. New York: G. W. Dillingham Co. McKenney, Ruth (1939). Industrial Valley. New York: Harcourt, Brace. Merwin, Samuel (1901). Calumet K New York: Macmillan. Newell, Arthur (1905). A Knight of the Toilers. Philadel- phia: F. L. Marsh. Perez, Norah A. (1988). Breaker. Houghton Mifflin. Phelps, Elizabeth Stuart (1871). The Silent Partner. Boston: James R. Osgood. Pinkerton, Allan (1877). The Mollie Maguires and the Detectives. Reprint, 1973, New York: Dover. Scott, Leroy (1905). The Walking Delegate. New York: Doubleday. Sinclair, Upton (1917). King Coal. self-published. (396 pages). Steinbeck, John (1936). In Dubious Battle. New York: Covici, Friede. Weber, K. (1996). Triangle: A Novel. Farrar, Straus, & Giroux. Wright, Harold B. (1921). Helen of the Old House. New York: D. Appleton & Co.

For general essays and commentary on labor unions, workers lives, and strikes as portrayed in fic- tion, see one or more of the following books: (1) Andrew Lawson, Class and the Making of American

67

During the early 1920s, there was a series of rail strikes. Railroads played a vital role in society at that time, transporting both passengers and goods; thus, a major railroad strike could significantly harm the economy of a geographic region. Some strikes dealt with economic issues such as wages and pensions, while others were recognition strikes: Strikes undertaken to force management to accept and deal with ( recognize ) a labor union. Because of the importance of railroads to interstate commerce, members of Con- gress decided that a labor law was needed to regulate union-organizing and labor dis- putes. Therefore, representatives from the major railway lines and their unions met to negotiate over the terms of such a law. Consequently, in 1926 Congress passed the Rail- way Labor Act. The provisions of this law are discussed in Chapter 3.

Despite increased status and militancy, something went wrong for organized labor in the 1920s; the Golden Twenties for the majority in the United States was a dreary decade for labor both for hourly employees in terms of real income and for labor unions in terms of membership.90 Between 1920 and 1924, total union membership declined from 5.11 million to 3.6 million; membership in AFL unions dropped from 4.078 million to 2.866 million. By 1930 total union membership had declined to 3.4 mil- lion, and AFL membership dropped to 2.7 million.91 This decline was caused by at least two major factors: (1) aggressive opposition from employers and (2) organized labor s inability to overcome anti-union sentiment among potential union members.92

Opposition from Employers Concerned with the increased status given labor during the war, employers actively engaged in efforts to roll back union membership gains, beginning in the 1920s and con- tinuing through the 1930s. These tactics took the form of either (1) aggressive opposition toward established labor unions or (2) providing an acceptable nonunion alternative to independent unions.

Employers actively opposed unions by supporting the open-shop movement, which is discussed in more detail in Chapter 4. The stated purpose of the open shop was to ensure that each employee had the freedom to determine whether he or she would join a union. Thus, an open-shop arrangement prevents a union from negotiating a contract clause that forces workers to join the labor organization. Another rationale for this movement, also called the American Plan, was employers desire for employees to adhere to the traditional American value of rugged individualism instead of the foreign, subversive, and corrupt principles of labor unions. Many employers

equated the attainment of an open-shop status with the absence of an independent union controlled by employees.

Other tactics were also used by employers to prevent employees from joining or forming an independent union. For example, some employers would hire industrial spies to identify which employees had pro-union sentiments. Once identified, employees would then be discharged and possibly blacklisted, meaning that their names would be

Literature: Created Unequal (New York: Routledge, 2014); (2) Fay M. Blake, The Strike in the American Novel (Metuchen, NJ: Scarecrow Press, 1972); (3) Laura Hapke, Labor s Text: The Worker in American

Fiction (New Brunswick, NJ: Rutgers University Press, 2000); or (4) Eric Schocket, Vanishing Moments: Class and American Literature (Ann Arbor: University of Michi- gan Press, 2006).

68

placed on a list that was circulated to other employers in the area, who would then refuse to hire anyone whose name appeared on the list. Employer violence against participants in union-organizing drives was also a potential strategy to counter unions during this period.93

As employers gained experience using anti-union tactics, a refinement of the open shop or American Plan appeared in the 1930s, called the Mohawk Valley Formula. This approach formulated specific steps that could be used by any employer to defeat an orga- nizing drive or strike action by a union. The Mohawk Valley Formula consisted of the fol- lowing steps: (1) form a citizens committee in the community to support the employer s position in the labor dispute, (2) label the union leaders as outside agitators, (3) stir up violence or the fear of violence, (4) report union leaders and meetings to the police and/ or have a state of emergency declared by public authorities, (5) organize a back-to-work movement encouraging individuals to resume their normal work duties, and (6) have the back-to-work employees march into the plant protected by armed police.94

Employers also countered unions by providing an alternative model to unionism. The 1920s saw widespread employer paternalism, a management style in which the employer was viewed as the wise parent figure and employees were expected to rely upon the employer to know what was in their best interest and trust the employer to protect employees interests. Paternalistic practices implemented by some companies included free lunches, baseball fields, vacations, pensions, and employee counseling.95

Employers felt that employees receiving these benefits would be indebted to the employer and realize that a union would be unnecessary.

An employee representation plan (also called a company union), provided another substitute for an employee-controlled independent union. Employee representation plans (ERPs) covered as many as 1.5 million employees and appeared superficially similar to independent unions in that employee representatives (typically selected by the employer) would discuss working conditions with management officials. ERPs differed from inde- pendent unions in four major respects.

First, the employer typically controlled the type of subjects discussed with ERP leaders. Second, independent unions had more autonomy than ERPs. Employers strongly influenced the decisions of ERPs; provided the funding, space, and time for their operation; and management could veto any decision made by the joint labor management committee. Third, ERPs were usually limited to a single facility, and employees under ERPs could neither press for work rules that would remove unfair competition from other facilities nor push for legislation at the local, state, or federal level. Fourth, ERPs did not engage in economic pressure tactics such as strikes or boycotts to persuade the employer to modify decision outcomes.96

ERPs did provide employees more communication with management than existed in their absence and, most importantly, most employees did not fear discharge for partici- pating in an organization created by their own employer.

Another anti-union weapon used by employers was that of paying employees in company scrip (company-created currency) instead of U.S. currency. Scrip often emerged in isolated locations where one employer (e.g., a coal mining or lumber firm) owned the land and provided the infrastructure and most business services. In a com- pany town the scrip could be used at the employer-owned stores and to pay rent for employer-owned housing. How could scrip serve as an anti-union weapon? Imagine this scenario: managers suspected two employees of being union organizers. These

CHAPTER 2 The History of Labor Management Relations 69

workers received a triple punishment : (1) they lost their jobs, (2) their families had to move from their company-owned houses (leaving town because they were also black- listed), and (3) whatever modest savings they had accumulated in scrip became worth- less, because the company-owned stores would no longer do business with them and stores in other towns would not accept the scrip as legal tender. Thus, in this scenario, the two pro-union workers and their families would be forced to move away, penniless.

Independent merchants lobbied against company scrip and the practice was out- lawed in some states; it came under increasing federal scrutiny and skepticism by regu- lators in the 1930s after the National Industrial Recovery Act (NRA) and the Fair Labor Standards Acts were passed and by the end of the 1940s almost all such practices had ended in the United States.97

Labor s Inability to Overcome Anti-Union Sentiment The lack of organizing gains during the 1920s also has to be attributed to the anti-union sentiment of potential union members and the activities and attitudes of organized labor. The number workers in new types of industries was growing and these workers some of whom were white-collar sales clerks and office workers often felt that unions were irrelevant to their work experience. Part of this problem may have been caused by the relatively good economic conditions that prevailed throughout most of the 1920s: While job insecurity may have deterred some employees from joining unions in the

face of employer opposition, many of them apparently felt that unions were no longer as necessary as they had formerly believed them to be. What profit strikes or other agi- tation for collective bargaining when the pay envelope was automatically growing fatter and a more abundant life seemed to be assured with our rapid approach to the final tri- umph over poverty? 98

There was also a public perception fostered by employers and media accounts that much of organized labor was corrupt and subject to control by socialists and commu- nists, even though many AFL leaders were consistently anti-communist. Racketeering had become a feature of some local union employer relationships. For example, in one incident a union official signed a two-paragraph agreement with three major employers guaranteeing no wage increase for three years and requiring all employees to join the union or be discharged. None of the employees had ever contacted the union about join- ing, nor did they ever see a union official during the life of the contract. This type of sweetheart contract was often coupled with financial kickbacks from the employer to the union official, meaning the employer paid the union official a portion of the labor cost savings achieved by the employer.99

Some labor unions were also accused of harboring political radicals. Many promi- nent union leaders would occasionally accept help from almost any group that would devote time and effort in organizing employees, believing that they could control these political elements once the local union had been established. However, union leaders sometimes overestimated their ability to control such elements. One former president of the Steelworkers Union recalled how communists could dominate local union meetings by using the V technique, whereby the leader would find a seat at the center of the audi- torium in about the second or third row. Then the following would ensue: A few rows back, two of his associates would locate about ten seats apart, and this same pattern would be followed all the way to the rear of the hall. When the chief spokesman opened debate, his line would then be parroted all the way through the V behind him, giving an illusion of widespread strength. The radical groups would also wait until other union members, tired and bored, had gone home before trying to push through their own proposals. 100

70 PART 1 Recognizing Rights and Responsibilities of Unions and Management

Organized labor, particularly the AFL, devoted much of its attention during the 1920s to overcoming its negative public image.101 These efforts detracted from active organizing efforts, particularly because Gompers had lost much of his former physical enthusiasm for this activity. In 1924 Gompers died, and his successor, William Green, did not revive any major organizing activities, as he focused on maintaining the status quo of the AFL s existing organization in an adverse atmosphere.102 The AFL s prefer- ence for simply maintaining the status quo among its member unions rather than seek- ing to actively grow the labor movement eventually led to the formation of the Congress of Industrial Organizations (CIO).

Rise of the CIO and Industrial Unionism Major disagreement occurred within the AFL over organizing the growing number of semiskilled employees in the labor force. Tremendous technological shifts occurred dur- ing and after World War I, reducing the demand for highly skilled employees. This increased the percentage of the labor force comprised of semiskilled or unskilled produc- tion workers. In 1926, for example, 85 percent of the hourly employees at Ford Motor Company required less than two weeks of training.103 Because craft employees no longer dominated the industrial scene, the AFL needed to organize production employees if it wanted to increase membership.

Many of the AFL unions did not want to enroll semiskilled production employees. Some AFL leaders believed these employees were inferior to craft employees and pos- sessed less bargaining power because they were easier to replace than skilled workers if they went on strike. Other AFL leaders thought the inclusion of production workers would confuse and distort the AFL s organization. Recall that AFL member unions were organized along skilled craft lines. William Green himself did not view industrial employees as being compatible with the AFL s organizational principle of exclusive juris- diction by skilled craft.

Some AFL leaders thought that if they were to try to organize semiskilled factory workers, a separate union would be needed for each company s or industry s products. Thus, if General Electric (GE) had 50 different products, then 50 different AFL unions (each having exclusive jurisdiction over its members interests) would be needed for effective collective bargaining. In other words, at least 50 separate collective bargaining agreements could be negotiated by GE and its unions. Both the craft approach and the product line stood in contrast to the industrial unionism approach, where everyone in the same industry could be represented by the same union (e.g., all the employees at GE might be in one electrical workers union). The president of one AFL union urged his members to stamp out the awful serpent of industrial trade unionism that would destroy this International and weaken the entire structure of the Labor Movement. 104

The issue came to a head in 1935 under the direction of John L. Lewis, president of the AFL s United Mine Workers Union. The AFL rejected the concept of industrial unionism at its 1935 convention.105 On November 9, 1935, the Committee for Industrial Organizations was formed. Its purpose was allegedly educational and advisory, but in reality it was intended to promote organizing among unrepresented employees, particu- larly those semiskilled workers in the mass production industries.106

In January 1936, AFL leaders were shocked to find that the Committee for Industrial Organizations had been formed by some AFL unions. AFL President Green thought the industrial unionism issue had been buried once and for all at the 1935 convention. AFL leaders ordered the Committee for Industrial Organizations to disband or get out. Per- sonalities intensified the issue. John L. Lewis, a powerful man in voice and action, sought and obtained power and publicity through his union activities.107 Lewis managed to

CHAPTER 2 The History of Labor Management Relations 71

provoke AFL leaders into a confrontation while at the same time whipping his United Mine Workers members into a lather of rage against the AFL.108 Lewis believed that the future success of the American labor movement was dependent on the ability to organize production workers in the fast growing mass production industries. The split over the industrial unionism issue resulted in seven unions with almost a million mem- bers being expelled from the AFL. These seven unions joined with newly established industrial unions in some of the mass production industries to quickly form a rival and completely independent labor federation, the CIO, electing John L. Lewis (then president of the United Mine Workers union) as the first CIO president.109

The development of the CIO coincided with a significant upsurge in union member- ship. By November 1937, the CIO s affiliated unions had already organized 75 percent of the steel industry, 70 percent of the automobile industry, 65 percent of the rubber indus- try, and about one-third of the maritime and textile industries.110 The AFL also saw rapid growth in membership during the late 1930s and the 1940s. The AFL organized the skilled trade employees in mass production industries into local labor unions and national councils assigned to various craft unions. The steady growth of the AFL during the late 1930s was also aided by employers preference to deal with the more conserva- tive organization instead of taking their chances with the new, unpredictable, and more politically radical CIO.111

Why did union membership increase dramatically in the 1930s and 1940s? At least five factors seem to account for the growth in unionism during this period: strong CIO leadership, the CIO s realistic goals, the CIO s effective use of the sit-down strike tactic, passage of the National Labor Relations (Wagner) Act of 1935, and changes in employ- ees attitudes toward a more favorable view of unions.

Strong CIO Leadership The aggressive and effective CIO leaders (John L. Lewis, Sidney Hillman, and David Dubinsky, among others) infused new life into a union movement previously content with resting on its laurels. Most of the CIO union leaders had extensive organizing expe- rience and prided themselves on keeping in touch with their membership.112 Union lea- ders accomplishments should not be overstated, however, because organizing drives involved the tireless efforts of many individuals who typed up circulars, contacted pro- spective members, and provided routine services that ensured union election victories. One biographer of John L. Lewis indicated he lacked involvement in many routine orga- nizing chores by noting that Lewis preferred arriving only in time for the triumphant finale. 113 Much organizing effort in the steel, mining, automobile, and other industries was effectively directed toward second-generation immigrants. Some 30 percent of the CIO leadership came from a new immigrant background. One historian notes, The success of the CIO was based on the mobilization of ethnic workers and on their willing- ness to join unions. 114

Realistic Goals Although all three unions favored organizing unskilled factory workers, the CIO shared only a superficial similarity with the KOL and IWW. First, the CIO did not embrace the KOL s and IWW s one big union approach to union membership. The CIO believed that grouping all employees by chartering one union for each particular industry (e.g., auto, steel) would still provide sufficient membership similarity to reflect the common interests of employees even though within that industry non-managerial employees of all skill levels were welcome to join. More importantly, the CIO dramatically differed

72 PART 1 Recognizing Rights and Responsibilities of Unions and Management

from the Knights and the IWW in its goal of focusing on short-run economic gains instead of long-range reform, which paralleled the AFL s pure and simple unionism approach, including support for the existing capitalist system. Although in its early years the CIO had some affiliate unions with communist officers, as a federation, the CIO rejected revolutionary goals. John L. Lewis remarked: I think most people have come to realize, that we cannot progress industrially without real cooperation between workers and management, and that this can only be brought about by equality in strength and bargaining power of labor and management. Labor is sincere in its desire to help. It looks forward to an industrial procedure which will increase productive effi- ciency and lower prices to the consumer. 115

The Effective Use of Sit-Down Strikes The CIO used a successful tactic for encouraging employer s to recognize and bargain with its member national unions the sit-down strike, in which employees stayed inside the plant instead of picketing outside. This technique was successful because employers were reluctant to physically remove the employees from the plant for fear that their equipment could be damaged in the confrontation.

The tactic was initially applied by the IWW at a GE facility in 1906, but the most famous use of this strike tactic occurred in December 1936 at a General Motors facility in Flint, Michigan. At one time, 26,000 General Motors employees had belonged to a union, but in early 1936, there were only 122 union members, many of whom were man- agement spies.116 A local grassroots organization was secretly established to build up the union at Flint. The sit-down strike was locally planned by autoworkers as Lewis and the CIO were focused on organizing the steel industry before launching any major effort to organize the automobile industry. The CIO, however, did lend its active support to auto- workers once the strike was under way.

The sit-down strike at Flint lasted 44 days and received widespread community sup- port while hindering GM s efforts to reverse its negative profit situation of previous years.117 The strike resulted in employer recognition of the union, a fact that was noticed by many employees in other trades. Sit down strikes at three tire manufacturers Firestone, Goodyear, and B.F. Goodrich effectively won recognition of the United Rub- ber Workers and better working conditions. During 1936 and 1937, some 500,000 employees in the rubber, glass, and textile industries engaged in sit-down strikes. Although effective, the sit-down strike was short-lived because public opinion eventually frowned on this tactic, and a subsequent decision by the U.S. Supreme Court declared such strikes represented an illegal seizure of the employer s property.118

Passage of the National Labor Relations (Wagner) Act Another (and perhaps the most significant) reason for the increased number of union members was the passage of the National Labor Relations Act (NLRA) of 1935 (dis- cussed more in Chapter 3). The federal government indicated through this law that collective bargaining was a public policy in the national interest. Private-sector employees covered by the law were granted a legal right to form or join unions, bargain collectively, or engage in other concerted acts for mutual aid or protection. Many previously common employer tactics used for preventing union growth became illegal (e.g., blacklisting, spies, discharging workers for union activity, and creating company unions). A supporting law, the Byrnes Act of 1936 prohibited the interstate transportation of strikebreakers for the purpose of using force or threats against union organizers, negotiators, or peaceful picketers as they exercised their rights under the NLRA.119 A new federal agency, the National Labor Relations Board (NLRB), was

CHAPTER 2 The History of Labor Management Relations 73

created to administer union representation elections, define employer unfair labor practices, and enforce the legal rights of employees to join independent unions and bargain collectively.

Changes in Employees Attitudes Many employees previously negative attitudes toward organized labor changed dramati- cally. Employees had experienced the Great Depression of the 1930s and realized that job security could not be achieved solely through hard work and loyalty to the employer. These employees now viewed unions as a mechanism to promote job security and pro- vide other material economic benefits.

By the onset of World War II, organized labor had reversed its membership decline of the 1920s, rising to almost 9 million members in 1940. Yet the rivalry between the CIO and the AFL was intense and sometimes violent as AFL and CIO organizers clashed over the right to represent mass production industry employees. James Hoffa, a former president of the International Brotherhood of Teamsters (then an AFL union), recalled violent organizing drives in 1941 between CIO affiliated unions and his union: Through it all the members wore two pins, putting on a Teamsters button when we were around and switching to a CIO button when those guys showed up. They were waiting to see which union was going to win the battle. You couldn t really blame them. They were scared out of their britches because they didn t want to get caught in the bloody middle. 120 The AFL and CIO rivalry existed in almost every industry and extended to the local level, where it was common for an employer to have both AFL and CIO unions representing the same employees. Even employers with the best intentions had difficulty in building an effective labor management relationship in such an environment.

World War II to the Present

The AFL at first did not want the United States to become involved in World War II; however, this attitude changed after the bombing of Pearl Harbor. Concern over provid- ing for the nation s defense prompted increased union management cooperation. For example, both union and management officials participated on War Production Board subcommittees. Such panels weighed employee suggestions, which saved 31 million work hours and $44 million during World War II.121

The cooperative spirit was not total, particularly when one considers the number of strikes that occurred during wartime. In February 1943, organized labor complained to President Roosevelt that the cost of living during wartime had increased far beyond wage increases permitted by the government under the 1942 government imposed wage con- trols known as the Little Steel Formula.122 In 1943 the United Mine Workers conducted a series of strikes to obtain wage increases of $2 a day. These actions resulted in Presi- dent Roosevelt seizing the mines to ensure continued production, but eventually a com- promise wage settlement was obtained.

The public viewed these and other strikes with anger and alarm, considering them violations of the no-strike pledge announced by organized labor in 1941. Negative public sentiment increased when some unions continued to call strikes. After 1942, the number of strikes increased every year of the war. In perspective, however, the number of employee days lost to strikes was estimated to be the equivalent of no more than one day per year per worker for the four war years.123 Yet, the mere act of participating in a strike was viewed by some as unpatriotic because it interfered with production of mate- rials needed for the war effort.

74 PART 1 Recognizing Rights and Responsibilities of Unions and Management

Labor s collective bargaining concerns shifted at the end of the war to the issues of full employment and further wage increases in order to sustain national purchasing power and thereby create an expanding market for industrial goods. Labor, remembering the reconversion period following World War I, was concerned about employer policies aimed at restricting union growth and wage gains.

Unions backed their postwar concerns with strikes. During no period in the his- tory of the United States did the scope and intensity of labor management conflicts match those recorded in the year following VJ Day, August 14, 1945. 124 In this one- year period, more than 4,600 strikes, involving 5 million employees resulted in almost 120 million workdays of idleness that affected almost every major industry. These strikes were basically nonviolent, representing economic tests of strength and endur- ance. Employers recognized that the many returning soldiers would greatly expand the available supply of labor, thus creating little reason to pay more to obtain the labor needed to continue operations. Generally, both labor and management prefer to be free to resolve their differences through the collective bargaining process without the type of government interference and wage restrictions that were present during the war years.

However, the strikes did raise questions about the abuse of power by labor unions. The National Labor Relations Act (Wagner Act) of 1935 only listed unfair employer practices; it did not address the issue of similar actions by unions. In response, Congress passed the Labor Management Relations Act (Taft Hartley Act) in 1947. This law iden- tified unfair union practices and prohibited certain types of job actions. The law is dis- cussed in detail in Chapter 3.

One provision of the Taft Hartley Act merits mention in this chapter on labor his- tory: Union leaders were required to sign affidavits declaring that they were not commu- nists. This requirement led the CIO leadership to disaffiliate some member unions whose leaders refused sign such affidavits. In the atmosphere of the Cold War between the United States and the communist Soviet Union, the CIO had little difficulty creating rival unions and persuading members to switch their allegiance to the new unions. Con- cerns about communist and organized crime infiltration of organized labor throughout the 1950s also led to the passage of the Labor Management Reporting and Disclosure Act (Landrum Griffin Act) of 1959. This law, which regulates union operations and finances, is discussed in Chapter 3.125

Developments in Organized Labor since World War II Four major developments have occurred in organized labor since World War II: (1) increased concern over new collective bargaining issues; (2) organizing drives aimed at white-collar, service-, and public-sector employees; (3) the merger of the AFL and CIO in 1955; and (4) the formation of the Change to Win labor federation in 2005.

New Collective Bargaining Issues The return to peacetime after World War II and, particularly, the Korean War saw increased efforts to extend the provisions of the labor agreement to include all aspects of the collective bargaining relationship. In the late 1950s and early 1960s, the relative scarcity of jobs coincided with the need for price stability to ease the deficit in interna- tional payments. Unions directed their collective bargaining efforts toward (1) guarantee- ing members job security in the face of possible technological advances, (2) securing new types of benefits, and (3) securing wages that provided adequate compensation in fluctu- ating economic cycles. Organized labor s response toward technological change

CHAPTER 2 The History of Labor Management Relations 75

(discussed in more detail in Chapter 8) brought notable results during this period, including the Automation Fund Agreement between Armour and Company and the Packinghouse Workers and Meat Cutters unions (1959), the Mechanization and Modernization Agreement in the Pacific Coast longshore industry (1960), and the Long-Range Sharing Plan negotiated between Kaiser Steel and the United Steelworkers (1962).

Efforts to expand employer-provided employee benefits represented a second new bargaining area. Before World War II, labor cost was overwhelmingly comprised of straight-time hourly pay for time actually worked. Subsequent bargaining efforts by labor unions (and personnel policies of nonunion firms) have resulted in a substantial increase in the proportion of labor costs comprised of employee benefits (pensions, den- tal care, insurance plans, etc.), which are currently almost 41 percent of payroll costs for unionized employers and 29 percent for nonunionized employers.126 Wage and benefit issues will be discussed further in Chapter 7.

Responding to fluctuations in the economic cycle constituted a third area for bar- gaining. The trend toward multi-year labor agreements after World War II put pressure on union leaders to safeguard wage increases against the possibility of increases in the inflation rate because rising inflation erodes the purchasing power of earned wages. In 1948, General Motors and the United Auto Workers negotiated a long-term agreement with a cost-of-living adjustment (COLA) provision that adjusted wages for inflationary changes during the life of the contract. This contract provision spread to other labor management negotiations. In 1952, almost 3 million employees (approximately 20 per- cent of the employees covered by labor agreements) had cost-of-living provisions in their contracts.127 By contrast, when inflation is low, unions are less likely to have COLAs in their contracts.

Deflation, where wages and prices fall, is less common than inflation in the modern American economy (although deflation did occur during the recent Great Recession). Even in the absence of deflation downward pressure on union wages occurs. Since the mid-1970s, increased global competition from foreign companies and low-wage non- union organizations in the United States have produced periods of concession bargain- ing in some industries (e.g., auto, airline, steel, rubber), in which management seeks to obtain more flexible work-rule modifications or other labor cost reductions (wage rates, pension, or health care benefits). Work rule modifications include scheduling changes, fewer rest breaks, and combining job classifications to give management more flexibility in employee work assignments. Some employers (e.g., United Airlines, Delphi Automo- tive) have declared bankruptcy and sought to use the bankruptcy process as a means to pressure unions representing the firm s employees to agree to significant concessions as a part of management s reorganization plan, resulting in a lower, more competitive labor cost operating structure. Wage concessions represent the most significant organized labor development since World War II. Audrey Freedman of the Conference Board notes that, wages, even under union bargaining pressures, are responsive to economic conditions at the industry and firm level and even the product level . 128 Examples of wage flexibility include:

Two-tiered wage plans, where employees hired after a negotiated labor agreement takes effect receive a lower hourly pay rate (and/or benefits) than their counterparts for performing similar work. Lump-sum bonuses usually associated with a firm s economic performance for a given time period. This wage payment does not necessarily occur in every year of a contract s term and does not alter the employee s hourly wage rate, thus avoiding

76 PART 1 Recognizing Rights and Responsibilities of Unions and Management

any increase in employee benefit costs which use an employee s wage rate to calcu- late the size or amount of the benefit earned (e.g., holiday or vacation pay).

Thus, unions have sought to provide adequate income levels for their member in the face of two different types of economic conditions: inflation, which erodes purchasing power if wages do not increase correspondingly, and downward wage pressures (primar- ily brought about by globalization and nonunion competition) where labor and other costs must decrease for a unionized firm to remain competitive.

Increased Organization of Women, Minorities, Younger Age Employees, and Professionals in the Public-Sector and Private-Sector Service Industries A second major development in organized labor since World War II involves the orga- nization of different types of employees, more specifically, public-sector (government) employees (discussed in Chapter 13) and private-sector service and professional employees (discussed in Chapter 5). The growing number of women, minorities, and younger age workers (18 30 years) has received increased attention from union organizers as key components of recent and future union membership gains.

Merger of the AFL and CIO Perhaps the most dramatic postwar development in organized labor was the merger of the AFL and CIO in 1955. The presence of three influences during the 1950s resulted in the eventual merger of the rival organizations.129 First was the change in the presi- dents of the AFL and CIO. Phillip Murray of the steelworkers union became president of the CIO in 1940 when John L. Lewis resigned, and Murray continued the verbal feud against the AFL and its president, William Green. In November 1952 both Green and Murray died. Walter Reuther from the autoworkers union was elected to head the CIO, and George Meany from the plumbers union was elected president of the AFL. Although neither new leader had any particular fondness for the other, unlike Green and Murray, the new leaders had not previously gone on the record as being opposed to each other. Therefore, a merger could occur without either leader losing face.

Another influence contributing to the AFL-CIO merger was the recognition of the ineffectiveness of union raiding. The two labor organizations investigated employee representation elections in which the AFL tried to organize employees affiliated with CIO unions, and vice versa. During a two-year period (1951 1952), 1,245 such elections involved some 366,740 employees, with only 62,000 employees changing union affilia- tion. This figure overestimates the number affected because it does not consider the off- setting nature of elections. An AFL union could organize a CIO represented factory of 1,000 employees only to have a CIO union organize an AFL factory of 1,000 employees the net change being zero. In fact, the extensive raiding during 1951 and 1952 resulted in a net gain for the AFL of only 8,000 members, or only 2 percent of the total number of employees involved in the elections.130 Both the AFL and CIO finally realized that organized labor would benefit if the energies devoted to raiding each other were spent on organizing unrepresented employees. Accordingly, many of the AFL and CIO unions signed a no-raiding agreement in 1954. Instead of concentrating on differ- ences emphasized in raiding activities, the two major federations could now look at sim- ilar goals that might be more easily attained by a merger.

CHAPTER 2 The History of Labor Management Relations 77

One similar goal was the desire of both organizations to reward their political friends and punish political enemies.131 In many instances, the independent organiza- tions failed to achieve this goal. For example, the AFL and CIO were unable to defeat the re-election of Senator Taft (one of the authors of the Taft Hartley Act, who was per- ceived as being anti-labor) and failed to elect Adlai Stevenson (supporter of organized labor) over Dwight D. Eisenhower for U.S. president. Both organizations believed that a merger might increase their effectiveness in the political arena.

The AFL-CIO merger on December 12, 1955, involved 15.55 million members, mak- ing the new organization the largest trade union federation in the world. George Meany became the president of the merged organization due to the longer history of the AFL as an established organization. Walter Reuther, the former president of the CIO, became the vice president of the merged AFL-CIO. George Meany believed the merger would lead to more employees becoming unionized and to a greater political influence for labor within the American two-party system.132

The merger resulted in the continued reduction of union raiding. It also reduced the influence of union locals within the national unions because they could no longer threaten to affiliate with the rival national organization.133 However, as discussed in the next sec- tion, the AFL-CIO merger has not resulted in a tremendous increase in union membership or political influence. It did reduce the former divisiveness within organized labor, but it cannot be concluded that the merger was a significant impetus for growth and change.

Formation of the Change to Win Federation Reminiscent of the split among AFL unions that led to the formation of the CIO in the late 1930s, several national unions affiliated with the AFL-CIO voluntarily chose to leave in order to form a new federation of national unions called the Change to Win federation (discussed further in Chapter 4). After failing to achieve reforms within the AFL-CIO intended to focus more resources on organizing new union members, seven national unions representing approximately 6.4 million members, many of whom work in service- related industries, formed their own independent federation to foster more emphasis on organizing new union members.134 The Change to Win federation, although less formally structured than the AFL-CIO, still shares many of the same basic principles and philosophies as unions affiliated with the AFL-CIO. Member unions of the Change to Win federation are encouraged to devote 50 percent of their annual operating budget toward union-organizing activities compared to a goal of 30 percent for AFL-CIO affiliated unions. The Change to Win federation also plans to spend less time and money working through the established political parties (principally the Democratic Party) and instead focus more resources on grassroots direct political action by the member unions themselves.

Since its formation in 2005, the Change to Win labor federation has not been able to substantially alter the existing trend toward declining union membership as a percentage of the total U.S. labor force. It could be argued that without the new focus and energy devoted to union organizing since 2005, the decline would likely have been more severe.

There has been some movement in recent years to reunite the labor movement, and indeed some original Change to Win union affiliates (e.g., UNITE-HERE, Laborers International) have rejoined the AFL-CIO.135 Several key Change to Win labor federa- tion leaders have recently retired (e.g., Andrew Stern, former president of the Service Employees International Union). Currently, the Change to Win organization is led by James P. Hoffa of the International Brotherhood of Teamsters. In addition to the Team- sters, other affiliated unions include the Service Employees International Union, the United Food and Commercial Workers, and United Farm Workers of America; together they represent 5.5 million members.136

78 PART 1 Recognizing Rights and Responsibilities of Unions and Management

Aspects of Organized Labor Unchanged since World War II Organized labor as it existed at the end of World War II compared with its present state appears to have more similarities than differences:137

Exclusive union representation, in which one union is selected by a majority of the employees to represent their employment interests. Collective bargaining agreements that embody a sharp distinction between the negotiation and contract administration phases of the labor relations process. Once the contract is negotiated, the no-strike, no-lockout, and grievance procedure clauses ensure that the parties will use an arbitrator instead of job action (e.g., strikes or boycotts) to resolve disputes that may arise over the interpretation or application of the labor agreement. Government policies that favor a basically hands-off or nonintervention role in the conduct of labor relations based on the principle that the parties involved, not gov- ernment, should decide bargaining outcomes for themselves.

Additional major labor relations similarities from World War II to the present are organized labor s continued effort to advance workers interests through the political process; difficulty in achieving consensus on key issues among unions and union mem- bers; and continued emphasis on economic gains and increased job security-related bar- gaining goals. Each of these topics will be briefly discussed.

Unions and Politics Samuel Gompers s political dictum of reward your friends and punish your enemies still conveys the political philosophy of organized labor today. Politicians or political parties that support the issues and outcomes favored by unions will be rewarded with support, while those who oppose union preferences will be denied such support. Historically the Democratic Party and its candidates have been more supportive of labor s agenda and have thus garnered the majority of union support.

Difficulty in Achieving Consensus among Unions and among Members Whether the subject is politics or bargaining issues, there has always been a diversity of opinions and responses within the U.S. labor movement. While many unions share some basic organizational and philosophical similarities, each union has its own unique history and membership characteristics that help to shape the organization s response to specific issues. Understandably, complete agreement among the diverse national unions within the AFL-CIO or Change to Win labor federations and among all members within a par- ticular national or local union is rare. This problem occurs in any large organization, particularly one that grants a large amount of autonomy to its members. A labor federa- tion is always subject to national unions withdrawing from it if they become dissatisfied. The federation also realizes that many national unions are strong enough to get along quite well without its support. For example, the expulsion of the Teamsters in the 1950s (for alleged mafia infiltration) and the disaffiliation of the United Auto Workers (UAW) from the federation in 1968 (over national policy and federation governance dis- agreements) did not hinder these organizations ability to increase their membership, grow in influence, and engage in collective bargaining. (Both the Teamsters and the UAW subsequently re-affiliated with the AFL-CIO, with the Teamsters voluntarily with- drawing in 2005 to participate in the Change to Win federation.)138

CHAPTER 2 The History of Labor Management Relations 79

Lack of consensus is also found at the local union level, especially when younger employees become members. Most labor unions have a long tradition of struggle and sacrifice; their leaders have risked physical hardships merely to gain employer recogni- tion of their union. However, many of the younger members have little appreciation for labor history and are more likely to be asking local leaders, What have you done for me lately?

Pursuit of Short-Range Economic and Job Security Goals Instead of Long-Range Reform The KOL and IWW likely taught organized labor a permanent lesson that goals should relate to members needs instead of being abstract attempts to change the existing socie- tal system. The period since World War II has witnessed tremendous economic growth and technological change; therefore, union leaders believe these issues deserve more attention than other societal concerns. Even when unions make bargaining concessions due to recessionary economic conditions, the concessions are viewed as short-term and economically related lower wages in exchange for enhanced job security, for example.

Summary To understand contemporary labor relations or make reasonably accurate predictions about the future, one must be aware of the changing nature of labor management relationships and the various labor orga- nizations, conditions, and events which have shaped those relationships. Current labor organizations are the product of the experiences of their historical coun- terparts. An assessment of any labor organization s effectiveness can be made by evaluating a union s struc- tural and financial stability; its ability to work within the established political and economic system; the pres- ence of supportive or disruptive features in the social environment, such as the public image portrayed by the mass media or the presence or lack of supportive labor legislation; and the ability of union leaders to identify and satisfy members goals and interests.

Organized labor did not exert much influence in the United States prior to 1869, although employees became increasingly concerned with working and mar- ket conditions associated with technological and prod- uct changes. The active years of organized labor can be grouped into three time periods: 1869 to World War I, World War I to World War II, and World War II to the present. Three major labor organizations developed in the period from 1869 to World War I: the KOL, the AFL under Gompers, and the IWW. These organiza- tions had different goals, strategies, organizational characteristics, which in part furnished reasons for the demise of the KOL and IWW. Events such as the

Haymarket Riot, the Homestead Incident, and the Pull- man Strike hurt organized labor, although AFL Presi- dent Gompers managed to derive some benefit from each of these events.

The period immediately following World War I saw limited growth in union membership. Factors con- tributing to this situation included several strategies used by employers to counter union-organizing cam- paigns. Internal differences occurred within the AFL s national union members regarding the advantages of organizing the heretofore unrepresented semiskilled employees increasingly employed in the nation s mass production industries. This disagreement led to the for- mation of a rival labor federation, the CIO, whose major objective was to organize industrial employees. The CIO achieved substantial membership gains in the late 1930s and 1940s, aided by the passage of key labor legislation protecting the right of employees to join unions and bargain collectively.

Three major developments have occurred in orga- nized labor since World War II. Concern has increased over new collective bargaining issues; organizing drives have targeted areas of employment growth such as public-sector employees, service and professional employees, women, minorities, and younger age work- ers; and the AFL and CIO labor federations merged and a new labor federation (Change to Win) resulted from differing views among national unions about the best strategy for attracting and retaining union members. It

80 PART 1 Recognizing Rights and Responsibilities of Unions and Management

is still too early to tell what lasting impact the Change to Win federation will have on union membership levels, but labor has enjoyed a stronger voice in the political process in recent years. More similarities than differ- ences are apparent when comparing the state of orga- nized labor at the end of World War II with its present

state. Despite representing a relatively small proportion of the total labor force, organized labor remains an influ- ential economic and social movement in U.S. society. The emphasis on advancing employees short-term eco- nomic and job security interests have remained the focus of organized labor since World War II.

Key Terms U.S. Constitution, p. 45 common law, p. 45 employment-at-will (EAW) doctrine,

p. 45 criminal conspiracy doctrine, p. 46 Commonwealth v. Hunt (1842), p. 46 civil conspiracy doctrine, p. 47 labor injunction, p. 47 yellow-dog contract, p. 47 Sherman Antitrust Act, p. 47 Loewe v. Lawlor, p. 48 Danbury Hatters, p. 48 Clayton Antitrust Act, p. 48 Knights of Labor (KOL), p. 52 Terence Powderly, p. 52 One Big Union, p. 53 Haymarket Riot, p. 56 American Federation of Labor (AFL),

p. 56

Samuel Gompers, p. 56 Pure and simple unionism, p. 57 exclusive union jurisdiction, p. 58 decentralized authority, p. 59 Homestead Incident, p. 59 Pullman Strike, p. 60 socialism, p. 63 Industrial Workers of the World

(IWW), p. 63 William Big Bill Haywood, p. 63 communist society, p. 63 Red Scare, p. 65 criminal syndicalism laws, p. 65 sedition laws, p. 65 recognition strikes, p. 68 open-shop movement, p. 68 American Plan, p. 68 industrial spies, p. 68 blacklisted, p. 68

Mohawk Valley Formula, p. 69 paternalism, p. 69 employee representation plan, p. 69 company union, p. 69 scrip, p. 69 sweetheart contract, p. 70 V technique, p. 70 Congress of Industrial Organizations

(CIO), p. 71 John L. Lewis, p. 72 sit-down strike, p. 73 National Labor Relations Act (NLRA)

of 1935, p. 73 Byrnes Act of 1936, p. 73 concession bargaining, p. 76 AFL-CIO, p. 77 Change to Win federation, p. 78

Discussion Questions

1. Discuss the similarities and differences between the Knights of Labor (KOL) and the Industrial Workers of the World (IWW).

2. Select an existing national union and use the four criteria mentioned in the introduction of this chapter for evaluating the strengths of that labor organization. Using the same criteria, discuss why the AFL survived and the IWW faded into obscurity.

3. Explain how the Haymarket Riot, Homestead Strike, and Pullman Strike helped as well as hurt the AFL.

4. Discuss some employer tactics used to prevent or minimize union membership growth prior to the passage of the National Labor Relations (Wagner)

Act in 1935. Which, if any, of these tactics would be lawful today? What anti-union tactics are used today?

5. Discuss some key similarities and differences between the AFL and the CIO.

6. In your opinion, does having two different exist- ing labor federations (AFL-CIO and Change to Win) strengthen or weaken the ability of orga- nized labor to represent the interests of employees today? Support your position.

7. Some experts predict that in the future there are likely to be fewer but larger labor organizations. Discuss some advantages and disadvantages of the so-called One Big Union approach to representing employees interests.

CHAPTER 2 The History of Labor Management Relations 81

Exploring the Web

History of the Labor Movement

1. Who am I? Using Google or some other search engine, select three of the names in the following list and find out what role each person played in the history of American labor management relations: Mary Harris Mother Jones, Sidney Hillman, George Meany,

Frances Perkins, Terence V. Powderly, Pearl Bergoff, Rose Schneiderman, Walter Reuther, Andrew Stern, Liz Shuler, William Tony Boyle, Esther Eggertson Peterson, Luisa Moreno, Cesar Chavez, Adolph Stras- ser, Leonora O Reilly, Harry Bridges, Richard L. Trumpka, William H. Sylvis, and Anna Burger.

2. IWW. Visit the official Web site of the Industrial Workers of the World to learn more about this labor organization and its activities today at http:// www.iww.org/.

3. The Pinkertons. Using search engines, explore the role that the Pinkerton Detective Agency played in labor history, including the Molly Maguires, the Homestead strike, the Great Hocking Valley Coal Strike, and the death of IWW leader Frank Little.

4. Pullman Strike. For a brief account of the Pullman Strike involving the American Railway Union (ARU), view the Ohio State University eHistory site at http://ehistory.osu.edu/exhibitions/1912/con- tent/pullman. For a somewhat different viewpoint on the strike, consult the Stan Iverson Memorial library at http://recollectionbooks.com/siml/library/ PullmanStrike.htm. Why was Eugene Debs ARU successful in reversing wage cuts with the Great Northern Railroad in April, 1894, and unsuccessful in reversing wage cuts with Pullman just a few weeks later?

5. Haymarket Riot. The Chicago Historical Society offers the Haymarket Digital Collection, composed of photographs and narrative related to the Hay- market Riot that occurred in Chicago on May 4, 1886. Enter the Dramas of Haymarket at http:// www.chicagohs.org/dramas/ and read about the sequence of events that ignited the Haymarket

bomb. Who were August Vincent Spies and Albert Parsons, and what part did they play in the events leading up to the riot?

References 1. Robert Ozanne, Trends in American Labor His-

tory, Labor History (Fall 1980), p. 521. See also Barry Goldberg, A New Look at Labor History, Social Policy, 12, Winter 1982, pp. 54 63; Robert H. Zieger, Industrial Relations and Labor His- tory in the Eighties, Industrial Relations, 22, Winter 1983, pp. 58 70.

2. Henry Pelling, American Labor (Chicago: Uni- versity of Chicago Press, 1960), pp. 12 13.

3. Edward B. Mittelman, Trade Unionism 1833 1839, in History of Labor in the United States, John R. Commons et al., eds. (1918; reprinted. New York: Augustus M. Kelly, Publishers, 1966), vol. 1, p. 430.

4. John R. Commons, and Eugene A. Gilmore, A Documentary History of American Industrial Society (Cleveland, OH: A. H. Clark, 1910), p. 68; Brian Greenberg, Class Conflict and the Demise of the Artisan Order: The Cordwainers 1805 Strike and 1806 Conspiracy Trial, Pennsylvania Legacies 14(1), 2014, pp. 6 11.

5. Quoted by John Fanning in The Balance of Labor Management Economic Power under Taft- Hartley, Proceedings of the 40th Annual Meeting of the Industrial Relations Research Association, ed. Barbara D. Dennis (Madison, WI: IRRA, 1988), p. 70.

6. Commonwealth v. Hunt, 45 Mass. 111 (1842). 7. E. E. Herman and G. S. Skinner, Labor Law (New

York: Random House, 1972), p. 21. 8. Vegelahn v. Guntner, 44 N.E. 1077(1896). Also

see Herbert L. Sherman, Jr., and William P. Murphy, Unionization and Collective Bargaining, 3rd ed. (Washington, D.C.: Bureau of National Affairs Inc., 1975), p. 3.

9. John R. Commons, History of Labour in the United States, vol. 2 (New York: The Macmillan Company, 1946), p. 504. See also Sherry v. Perkins, 147 Mass. 212 (1888).

10. Hitchman Coal & Coke Company v. Mitchell, 245 U.S. 229 (1917); Robert E. Weir, Workers in America: A Historical Encyclopedia, Revised

82 PART 1 Recognizing Rights and Responsibilities of Unions and Management

Edition, Vol. 2 (Santa Barbara, CA: ABC-CLIO, 2013), pp. 872 873.

11. Sherman Antitrust Act, 26 Stat. 209 (1890). 12. Loewe v. Lawlor, 208 U.S. 274 (1908). 13. Clayton Anti trust Act, 38 Stat. 731 (1914). 14. Duplex Printing Press Co. v. Deering, 254 U.S. 443

(1921). 15. Truax v. Corrigan, 257 U.S. 312 (1921). 16. William C. Birdsall, The Problems of Structure

in the Knights of Labor, Industrial and Labor Relations Review, 6, July 1953, p. 546.

17. For a discussion of how the expansion of the markets affected unionization among the shoe- makers, see John R. Commons, Labor and Administration (New York: Macmillan, 1913), pp. 210 264.

18. T. V. Powderly, Thirty Years of Labor: 1859 1889 (Columbus, OH: Excelsior Publishing House, 1889), p. 21.

19. Ibid., pp. 58 59. 20. Ibid., p. 163. 21. Philip Taft, Organized Labor in American History

(New York: Harper and Row, 1964), p. 90. 22. Gerald N. Grob, Workers and Utopia (Evanston,

IL: Northwestern University Press, 1961), p. 35. Powderly was most concerned about the evils of drinking; for example, he spent almost 50 pages of his autobiography, Thirty Years of Labor, dis- cussing this issue.

23. Birdsall, The Problems of Structure, p. 533. 24. Terence V. Powderly, Thirty Years of Labor, 1859

to 1889 (Philadelphia: Terence Powderly, 1890), pp. 128 130; Rebecca M. McLennan, The Crisis of Imprisonment (New York: Cambridge University Press, 2008), pp. 150 161.

25. Joseph G. Rayback, A History of American Labor (New York: Macmillan, 1968), p. 174; Also see Melton Alonza McLaurin, The Knights of Labor in the South (Westport, CT: Greenwood Press, 1978), p. 39; John Curl, For All the People: Uncovering the Hidden History of Cooperation, Cooperative Movements, and Communalism in America, Second Edition (Oakland, CA: PM Press, 2012), pp. 86 110.

26. Joseph R. Buchanan, The Story of a Labor Agita- tor (1903; reprinted. Westport, CT: Greenwood Press, 1970), pp. 318 323.

27. For details of these procedures, see Taft, Orga- nized Labor, p. 91.

28. Powderly, Thirty Years of Labor, pp. 151 157.

29. It should be noted that local assemblies were somewhat responsible for this situation as they contributed only $600 to the General Assembly s strike funds in 1885 1886 (McLaurin, The Knights of Labor, p. 54). For more details of KOL strike activities, see Norman J. Ware, The Labor Movement in the United States, 1860 1895 (1929; reprinted. Gloucester, MA: Peter Smith, 1959), pp. 117 154. It should be further noted that the Knights made more effective use of boycotts than any previous union. However, as was true with strikes, the boycotts were instigated by the local assemblies and forced on the Knights national leaders (Grob, Workers and Utopia, p. 61).

30. Donald L. Kemmerer and Edward D. Wicker- sham, Reasons for the Growth of the Knights of Labor in 1885 1886, Industrial and Labor Rela- tions Review, 3, January 1950, pp. 213 220.

31. Foster Rhea Dulles, Labor in America: A History, 3rd ed. (New York: Thomas Y. Crowell, 1966), p. 127.

32. Powderly, Thirty Years of Labor, p. 514. It should also be noted that Powderly believed Gompers misled employees by advocating the eight-hour workday without telling them that their wages would be proportionately reduced. Most workers thought they would receive ten hours payment for eight hours of work.

33. A Hellish Deed! Chicago Tribune, May 5, 1886, p. 1.

34. For additional details of the rigged nature of the trial, see Samuel Yellen, American Labor Struggles (1936; reprinted. New York: Arno Press, 1969), pp. 60 65 or Philip Dray, There Is Power in a Union: The Epic Story of Labor in America (New York: Anchor Books, 2011).

35. A Hellish Deed! Chicago Tribune, May 5, 1886, p. 1.

36. Their Records, Chicago Tribune, May 5, 1886, p. 1. See also Paul Avrich, The Haymarket Trag- edy (Princeton, NJ: Princeton University Press, 1984).

37. Sidney Lens, The Labor Wars: From the Molly Maguires to the Sitdowns (Garden City, NY: Doubleday, 1973), p. 67.

38. The origination of the AFL was changed between 1881 and 1889 to include activities under the Federation of Organized Trade and Labor Unions. At least one historian has claimed that the revised date is regrettable because the organization (Fed- eration of Organized Trades and Labor Unions)

CHAPTER 2 The History of Labor Management Relations 83

had little similarity to the AFL in terms of effective organization and broad-based support (Ware, The Labor Movement, p. 251). See also Glen A. Gilde- meister, The Founding of the American Federa- tion of Labor, Labor History, 22, Spring 1981; Harold C. Livesay, Samuel Gompers and Organized Labor in America (Boston: Little, Brown and Company, 1978), pp. 75 86.

39. Samuel Gompers, Seventy Years of Life and Labor (New York: E. P. Dutton, 1925), p. 266.

40. Ware, The Labor Movement, pp. 70 71. 41. Norman J. Ware, Labor in Modern Industrial

Society (1935; reprinted. New York: Russell and Russell, 1968), p. 262.

42. Dulles, Labor in America, p. 155. 43. Gompers, Seventy Years of Life and Labor, p. 245. 44. Samuel Gompers, Labor and the Employer (1920;

reprinted. New York: Arno Press, 1971), pp. 33 34. 45. Stuart Bruce Kaufman, Samuel Gompers and the

Origins of the American Federation of Labor: 1848 1896 (Westport, CT: Greenwood Press, 1973), p. 173. For details of this relationship, see Gompers, Seventy Years of Life and Labor, pp. 381 427.

46. Louis Reed, The Labor Philosophy of Samuel Gompers (1930; reprinted. Port Washington, D.C., NY: Kennikat Press, 1966), p. 20. See also an editorial by Gompers in the American Fed- erationist, June 1924, p. 481; Sarah Lyon Watts, Order Against Chaos: Business Culture and Labor Ideology in America 1880 1915 (New York: Greenwood Press, 1991), pp. 9 10; William E. Forbath, Law and the Shaping of the American Labor Movement (Cambridge, MA: Harvard University Press, 1991).

47. Gompers, Seventy Years of Life and Labor, pp. 286 287, 381 427.

48. Alice Kessler-Harris, Trade Unions Mirror Society in Conflict between Collectivism and Individualism, Monthly Labor Review, 110, August 1987, p. 33.

49. Gompers, Labor and the Employer, p. 202. 50. Marc Karson, American Labor Unions and Politics:

1900 1918 (Carbondale, IL: Southern Illinois Uni- versity Press, 1968), p. 29; Julia Green, Strike at the Ballot Box: The American Federation of Labor s Entrance into Election Politics, 1906 1909, Labor History, 32, Spring 1991, pp. 165 192.

51. Reed, The Labor Philosophy of Samuel Gompers, pp. 106 110.

52. Milton Derber, The American Idea of Industrial Democracy: 1865 1965 (Urbana, IL: University of Illinois Press, 1970), p. 117; also see Christopher J. Cyphers, The National Civic Federation and the Making of a New Liberalism, 1900 1915 (West- port, CT: Praeger, 2002); William M. Boal, The Effect of Unionism on Accidents in U.S. Coal Mining, 1897 1929, Industrial Relations, 48(1), 2009, pp. 97 120.

53. Gompers, Seventy Years of Life and Labor, p. 342. For additional details regarding early AFL orga- nizing, see Philip Taft, The AF of L in the Time of Gompers (1957; reprinted. New York: Octagon Books, 1970), pp. 95 122.

54. Dulles, Labor in America, pp. 163 164. 55. Andrew Carnegie, An Employer s View of the

Labor Question, in Labor: Its Rights and Wrongs (1886; reprinted. Westport, CT: Hyperion Press, 1975), pp. 91 95. For a recent collection and analysis of material pertaining to the situation, see David P. Demarest Jr., ed., The River Ran Red (Pittsburgh: University of Pittsburgh Press, 1992).

56. Yellen, American Labor Struggles, p. 81. 57. For details of the wage package, see ibid., pp. 77 80.

See also E. W. Bemis, The Homestead Strike, Journal of Political Economy, 2, 1894, pp. 369 396; Linda Schneider, The Citizen Striker: Workers Ideology in the Homestead Strike of 1892, Labor History, 23, Winter 1982, pp. 47 66. For some additional insights into Frick s background, see Carol Aymowitz, Frick s Homey Mansion, Wall Street Journal, September 24, 1990, p. A-12.

58. Surrounded by Pickets, New York Times, July 4, 1892, p. 1.

59. Mob Law at Homestead, New York Times, July 7, 1892, p. 1.

60. Leader O Donnell Is Glad, New York Times, July 12, 1892, p. 2; and Bayonet Rule in Force, New York Times, July 13, 1892, p. 1.

61. Lens, The Labor Wars, p. 77. 62. A Talk with Gompers, New York Times, July 7,

1892, p. 2; Provoked by Carnegie, New York Times, July 7, 1892, pp. 2, 5.

63. Taft, The AF of L in the Time of Gompers, p. 136. 64. Arbitrate the Homestead Strike, Chicago Tri-

bune, July 8, 1892, p. 4. See also The Origin of the Trouble, New York Times, July 8, 1892, p. 2.

65. Yellen, American Labor Struggles, p. 3. 66. Lens, The Labor Wars, p. 81; Richard Schneirov,

George M. Pullman and the Sleeping Car Business,

84 PART 1 Recognizing Rights and Responsibilities of Unions and Management

2007 at http://dig.lib.niu.edu/gildedage/pullman/ events1.html. Liston E. Leyendecker, Palace Car Prince: A Biography of George Mortimer Pullman, Niwot: University Press of Colorado, 1992; Larry Tye, Rising From the Rails: Pullman Porters and the Making of the Black Middle Class, New York: Henry Holt, 2004, p. 3.

67. For additional details about the town, see Almont Lindsay, The Pullman Strike (Chicago: University of Chicago Press, 1967), pp. 38 60.

68. For more details regarding ARU s organization, see Philip S. Foner, History of the Labor Move- ment in the United States, vol. 2 (New York: International Publishers, 1955), p. 256.

69. Lindsay, The Pullman Strike, p. 124; Nick Salva- tore, Eugene Debs: Citizen and Socialist (Urbana, IL: University of Illinois Press, 1982).

70. Ibid., p. 215. 71. Gompers, Seventy Years of Life and Labor, p. 403. 72. Proceedings of the First Convention of the Indus-

trial Workers of the World (New York: Labor News Company, 1905), p. 1.

73. Ibid., p. 143. 74. Bill Haywood, Bill Haywood s Book: The Autobi-

ography of William D. Haywood (New York: International Publishers, 1929), p. 73.

75. Melvyn Dubofsky, We Shall Be All: A History of the Industrial Workers of the World (Chicago: Quadrangle Books, 1969), p. 481.

76. Haywood, Bill Haywood s Book, p. 181. 77. For additional details pertaining to these differences,

see Dubofsky, We Shall Be All, pp. 105 119; Joseph Robert Conlin, Bread and Roses Too (Westport, CT: Greenwood Publishing, 1969), pp. 97 117; and Lens, The Labor Wars, pp. 154 155.

78. David J. Saposs, Left-Wing Unionism (1926; rep- rinted. New York: Russell and Russell, 1967), p. 148.

79. Louis Adamic, Dynamite: The Story of Class Vio- lence in America (1934; reprinted. Gloucester, MA: Peter Smith, 1963), p. 174; Eileen DeVault, Family wages: The roles of wives and mothers

in U.S. working-class survival strategies, 1880 1930, Labor History, 54(1), 2013, pp. 1 20.

80. Robert E. Ficken, The Wobbly Horrors, Pacific Northwest Lumbermen, and the Industrial Workers of the World, 1917 1918, Labor His- tory, 24, Summer 1983, p. 329.

81. Conlin, Bread and Roses Too, pp. 97 117. See also Fred Thompson, The IWW: Its First Fifty Years

(Chicago: Industrial Workers of the World, 1955), pp. 80 87 or Eric Thomas Chester, The Wobblies in Their Heyday: The Rise and Destruction of the Industrial Workers of the World During the World War I Era (Santa Barbara, CA: ABC-CLIO, 2014).

82. Adamic, Dynamite, pp. 163 164. 83. Conlin, Bread and Roses Too, p. 96. 84. Philip S. Foner, ed., Fellow Workers and Friends: I.

W. W. Free Speech Fights as Told by Participants (Westport, CT: Greenwood Press, 1981), p. 15.

85. Foner, History of the Labor Movement, vol. 3, p. 465.

86. Conlin, Bread and Roses Too, p. 68. 87. Robert C. Sims, Idaho s Criminal Syndicalism

Act: One State s Response to Radical Labor, Labor History, 15(4), 1974, pp. 511 527; Melvin Dubofsky, We Shall Be All: A History of the Industrial Workers of the World (Urbana, IL: University of Illinois Press), p. 228; Nick Shepley, The Palmer Raids and the Red Scare, 1918 1920 (London: Andrews UK Limited, 2011); Kenneth D. Ackerman, Young J. Edgar Hoover and the Red Scare, 1919 1920 (Falls Church, VA: Viral His- tory Press, 2011).

88. For additional details, see Frank L. Grubbs, Jr., The Struggle for Labor Loyalty: Gompers, the AFL, and the Pacifists, 1917 1920 (Durham, NC: Duke University Press, 1968); James O. Morris, Conflict within the AFL: A Study of Craft versus Industrial Unionism, 1901 1938 (1958; reprinted. Westport, CT: Greenwood Press, 1974), pp. 9 10.

89. Taft, Organized Labor, pp. 355 358; Francis Fox Piven and Richard A. Cloward, Poor People s Movements (New York: Pantheon Books, 1977), p. 104. For details of this strike, see Lens, The Labor Wars, pp. 196 219.

90. Frank Stricker, Affluence for Whom? Another Look at Prosperity and the Working Classes in the 1920s, Labor History, 24, Winter 1983, pp. 5 34.

91. Lens, The Labor Wars, pp. 222, 296, 312. 92. Derber, The American Idea, p. 246. For an appli-

cation of these reasons to a specific industrial situation during this time period, see Stephen L. Shapiro, The Growth of the Cotton Textile Industry in South Carolina: 1919 1930 (Ph.D., diss., University of South Carolina, 1971), pp. 168 171.

93. For additional details regarding the use of com- pany spies, see Clinch Calkins, Spy Overhead: The Story of Industrial Espionage (1937; reprinted.

CHAPTER 2 The History of Labor Management Relations 85

New York: Arno Press, 1971). Violence was lim- ited neither to this time period nor to the employer. One of the more publicized episodes of employer violence was the Ludlow Massacre of 1914. The mining camps in Colorado were involved in a strike for union recognition when, on April 20, militiamen opened fire on a tent colony, killing two strikers and one boy. They then set fire to the tents, killing two women and eleven children. For details of this event, see Leon Stein, ed., Massacre at Ludlow: Four Reports (New York: Arno Press, 1971). Perhaps one of the more vivid examples of union violence occurred in Herrin, Illinois (1922), where miners tortured and killed at least 26 management officials and stri- kebreakers. For details of this episode, see Saul Alinsky, John L. Lewis: An Unauthorized Biogra- phy (New York: Vintage Books, 1970), pp. 43 50.

94. Richard C. Wilcock, Industrial Management s Policies toward Unionism, in Milton Derber and Edwin Young, eds., Labor and the New Deal (Madison: University of Wisconsin Press, 1957), p. 293.

95. For a case study of paternalism, see Welfare Work in Company Towns, Monthly Labor Review, 25, August 1927, pp. 314 321. For a more thorough discussion of employer counteractions during this time period, see Larry J. Griffin, Michael E. Wallace, and Beth A. Rubin, Capi- talist Resistance to the Organization of Labor before the New Deal: Why? How? Success? American Sociological Review (April 1986), pp. 147 167.

96. Derber, The American Idea, pp. 220 221; and Morris, Conflict within the AFL, pp. 40 41. For more details on ERPs, see Ware, Labor in Modern Industrial Society, pp. 414 435. For a contempo- rary assessment of the problems and prospects facing the single-firm, independent union, see Arthur B. Shostak, America s Forgotten Labor Organization (Princeton: Industrial Relations Section, Department of Economics, Princeton University, 1962).

97. Loren Gatch, Local Money in the United States During the Great Depression, Essays in Eco- nomic & Business History, 26(1), 2008, pp. 47 61; James P. Johnson, Drafting the NRA Code of Fair Competition for the Bituminous Coal Industry, Journal of American History, 53(3), 1966, pp. 521 541; Sean M. McGivern and Joseph

A. Schremmer The Fair Labor Standards Act: A Tool for Those Who Represent Employees, Clai- mants, and Plaintiffs, Journal of the Kansas Association for Justice, Jan. 2014, pp. 18 21.

98. Dulles, Labor in America, p. 245; also see Mark W. Robbins, Transitioning labor to the lean years : the middle class and employer repression of organized labor in post-World War I Chicago, Labor History, 54(3), 2013, pp. 321 342.

99. This example was drawn from a more detailed account of racketeering during this period found in Sidney Lens, Left, Right, and Center: Conflicting Forces in American Labor (Hinsdale, IL: Henry Regnery, 1949), pp. 86 108; also see Jennifer Luff, Commonsense Anticommunism: Labor and Civil Liberties Between the World Wars (Chapel Hill, NC: University of North Carolina Press, 2012).

100. David J. McDonald, Union Man (New York: E. P. Dutton, 1969), p. 185. See also Max Gordan, The Communists and the Drive to Organize Steel, 1936, Labor History, 23, Spring 1982, pp. 226 245. For further historical insights into the relation- ship between organized labor and communism, see Harvey A. Levenstein, Communism, Anticommunism and the CIO (Westport, CT: Greenwood Press, 1981).

101. James O. Morris, The AFL in the 1920s: A Strategy of Defense, Industrial and Labor Rela- tions Review, 11, July 1958, pp. 572 590.

102. See, for example, William Green: Guardian of the Middle Years, American Federationist, 88, February 1981, pp. 24 25.

103. Bruce Minton and John Stuart, Men Who Lead Labor (New York: Modern Age Books, 1937), pp. 14 15.

104. Morris, Conflict within the AFL, p. 216. 105. For additional details pertaining to the back-

ground of this historic convention, see Herbert Harris, Labor s Civil War (New York: Greenwood Press, 1969).

106. Lens, The Labor Wars, p. 284. 107. Cecil Carnes, John L. Lewis: Leader of Labor (New

York: Robert Speller Publishing, 1936), p. 299. 108. David Dubinsky and A. H. Raskin, David

Dubinsky: A Life with Labor (New York: Simon and Schuster, 1977), p. 226.

109. The seven unions were the United Mine Workers; the Amalgamated Clothing Workers; the Inter- national Ladies Garment Workers Union; United Hatters; Cap and Millinery Workers; Oil Field,

86 PART 1 Recognizing Rights and Responsibilities of Unions and Management

Gas Well and Refinery Workers; and the Inter- national Union of Mine, Mill, and Smelter Workers.

110. Benjamin Stolberg, The Story of the CIO (1938; reprinted. New York: Arno Press, 1971), p. 28.

111. Milton Derber, Growth and Expansion, in Derber and Young, Labor and the New Deal, p. 13 and Steve Rosswurm, ed., The CIO s Left-Led Unions (New Brunswick, NJ: Rutgers University Press, 1992).

112. See, for example, John Hutchinson, John L. Lewis: To the Presidency of the UMWA, Labor History, 19, Spring 1978, pp. 185 203; Steven Fraser, Sidney Hillman and the Rise of American Labor (New York: The Free Press, 1991).

113. James Arthur Wechsler, Labor Baron: A Portrait of John L. Lewis (New York: William Morrow, 1944), p. 71; and Robert H. Zieger, Leadership and Bureaucracy in the Late CIO, Labor History, 31(3), 1990, pp. 253 270.

114. Thomas Gobel, Becoming American: Ethnic Workers and the Rise of the CIO, Labor History, 29, Spring 1988, p. 174.

115. S. J. Woolf, John L. Lewis and His Plan, in Melvyn Dubofsky, ed., American Labor since the New Deal (Chicago: Quadrangle Books, 1971), pp. 110 111.

116. Lens, The Labor Wars, p. 295. 117. Sidney Fine, Sit-Down: The General Motors Strike

of 1936 1937 (Ann Arbor: The University of Michigan Press, 1969), pp. 156 177. For another perspective of the sit-down strike, see Daniel Nelson, Origins of the Sit-Down Era: Worker Militancy and Innovation in the Rubber Industry, 1934 1938, Labor History, 23, Winter 1982, pp. 198 225.

118. National Labor Relations Board v. Fansteel Metal- lurgical Corporation, 306 U.S. 240 (1939); for a legal review, see Ahmed A. White, The Depression-Era Sit-Down Strikes and the Limits of Liberal Labor Law, Seaton Hall Law Review, 40, 2010, pp. 1 78; Maliha Safri, The economics of occupation, Economists Voice, 9(3), 2012, pp. 1 3.

119. Theodore J. St. Antoine, Charles B. Craver, Marion G. Crain, Labor Relations Law: Cases and Materials, 12th Edition (New York: Matthew Bender/LexisNexis, 2011).

120. James R. Hoffa and Oscar Fraley, Hoffa: The Real Story (New York: Stein and Day Publishers, 1975), p. 65. For a detailed account of the

AFL-CIO rivalries in several industries, see Walter Galenson, The CIO Challenge to the AFL (Cambridge, MA: Harvard University Press, 1960).

121. Richard B. Morris, ed., The U.S. Department of Labor Bicentennial History of the American Worker (Washington, D.C.: U.S. Government Printing Office, 1976), p. 236.

122. For details of this formula and the extent that cost-of-living estimates exceeded this formula, see Taft, Organized Labor in American History, pp. 549 553 and 557 559.

123. Dulles, Labor in America: A History, p. 334. 124. Arthur F. McClure, The Truman Administration

and the Problems of Postwar Labor, 1945 1948 (Cranburry, NJ: Associated University Press, 1969), p. 45.

125. Katherine G. Aiken, When I Realized how Close Communism was to Kellogg, I was Willing to Devote Day and Night : Anti-Communism, Women, Community Values, and the Bunker Hill Strike of 1960, Labor History, 36, 1995, pp. 165 186; Will Cooley, Communism, the Cold War, and a Company Town: The Rise and Fall of UE Local 709, Labor History, 55(1), 2014, pp. 67 96.

126. For historical information pertaining to compen- sation in the World War II era, see: George H. Hildebrand, American Unionism: An Historical and Analytical Survey (Reading: Addison-Wesley, 1979), pp. 36 37; for current information on the allocation of compensation among wages and benefits, see: U.S. Department of Labor, Employer Costs for Employee Compensation:

June, 2014, News Release, Sept. 10, 2014, Table 5 at http://www.bls.gov/news.release/ecec.t05.htm.

127. Robert M. MacDonald, Collective Bargaining in the Postwar Period, Industrial and Labor Rela- tions Review, 20, July 1967, p. 568.

128. Audrey Freedman, How the 1980s Have Chan- ged Industrial Relations, Monthly Labor Review, May 1988, p. 37.

129. For a more detailed discussion of historical attempts at the merger of the AFL and CIO, see Joel Seidman, Efforts toward Merger 1935 1955, Industrial and Labor Relations Review, 9, April 1956, pp. 353 370.

130. Document: AFL-CIO No-Raiding Agreement, Industrial and Labor Relations Review, 8, October 1954, p. 103.

131. A Short History of American Labor, American Federationist, 88, March 1981, p. 14.

CHAPTER 2 The History of Labor Management Relations 87

132. George Meany, Merger and the National Wel- fare, Industrial and Labor Relations Review, 9, April 1956, p. 349.

133. Richard A. Lester, As Unions Mature (Princeton, NJ: Princeton University Press, 1958), p. 25.

134. Aaron Bernstein, Is Labor Headed for Splits- ville? BusinessWeek, May 30, 2005, p. 32.

135. Kris Maher, U.S. News: AFL-CIO, Breakaway Unions Discuss Reuniting, Wall Street Journal, January 9, 2009, p. A-4; Michelle Amber, UNITE HERE Rejoins AFL-CIO, Wilhelm Gets Seat on Governing Bodies, Daily Labor Report, No. 179, September 18, 2009, pp. C1 2; Richard L. Trumpka, Statement by AFL-CIO President Richard L. Trumpka on LIUNA Reaffiliation with the AFL-CIO, Press Release, August 16, 2010, p. 1

at http://www.aflcio.org/mediacenter/prsptm/pr081 62010.cfm.

136. Holly Rosenkrantz, What Andy Stern Leaves Behind, Business Week, April 25, 2010, p. 23; About us Change to Win at http://www.

changetowin.org/about. 137. John T. Dunlop, Have the 1980s Changed

Industrial Relations? Monthly Labor Review, 111, May 1988, pp. 29 33.

138. Lichtenstein, Nelson, The Most Dangerous Man in Detroit: Walter Reuther and the Fate of American Labor. (Urbana, IL: University of Illi- nois Press, 1995); James B. Jacobs, Mobsters, Unions and Feds: The Mafia in the American Labor Movement (New York: New York Univer- sity Press, 2006).

88 PART 1 Recognizing Rights and Responsibilities of Unions and Management

CHAPTER 3

Legal Influences

GRANTING EMPLOYEES a legal right to decide for themselves whether to form or join a labor organization and engage in col- lective bargaining over wages, hours, or other terms and condi- tions of employment has been described as a grand experiment in industrial democracy. It hasn t always been this way in U.S. history, as the discussion in Chapter 2 made clear. Because statutory laws are the product of a political process involving compromise wording and trade-offs among the competing interests of the parties affected, there will inevitably be differences of opinion over how the wording of a law is interpreted and applied to everyday decisions affecting the rights of employers, employees, labor organizations, and the general public. For legal rights to be meaningful, there must also be an effective process for enforcing those legal rights.

Susan pondered these words as she sat at her desk in the human resources (HR) department. As an HR manager at a resort, Susan rarely had time to ponder the big picture because she was always responding to situations and putting out fires. Often, these situations had legal implications for the firm. Just last week a female employee filed a discrimination complaint against the resort s hotel restaurant where she has been employed as a costumed storyteller for the past two years, entertaining children. The employee, a Muslim woman, had requested management to allow her to wear a head scarf (hijab) during work time. After consulting with higher manage- ment authority, her supervisor informed the employee that she could wear a head scarf but it would have to be one designed by the resort s costume department and in the interim period she could not wear her own head scarf. Two months later, after hearing no further word from her supervisor about the

89

issue, the employee chose to wear her own head scarf to work. Upon seeing the employee wearing her head scarf, her supervisor told her that she would have to remove it, change to a job which did not require direct customer contact, or go home. She refused to remove it and she refused to change jobs, asserting that she was protected by federal equal employ- ment opportunity law. So the manager suspended her. Typically, some- body in an on-stage position like hers wouldn t wear something like that, that s not part of the costume, the manager explained. We were trying to accommodate her with a backstage position that would allow her to work. We gave her a couple of different options and she chose not to take those and to go home. 1 The woman has not worked for the firm for the past week. The employee s union supported her decision to file a legal discrimination claim against the company and indicated it would be willing to file a contract grievance discrimination claim if she wanted to do so.

Susan, as the HR manager, was confident that the company had a good antidiscrimination policy in place. Susan thought that requiring every aspect of the employee s costume to conform to the resort s intended image was important to maintaining good customer relations. The accom- modations offered by the employer (e.g., transfer to a behind-the-scenes job, wearing a company-designed head scarf) were reasonable in Susan s view. Still it did concern her that two months had elapsed since the employee s initial request to wear a head scarf at work and while the com- pany had indicated she could do so if the scarf conformed to the com- pany s costume concept, no suitable scarf had yet been provided to the employee. Could the company be liable for reinstatement and back pay if the delay were found to be unreasonable, and the employee continued to refuse the transfer to a noncustomer contact job? Even if the company prevailed in getting the federal discrimination complaint dismissed, would the employee then file a contractual grievance seeking a similar remedy for lost time from work? Would an arbitrator likely take the same view as a court? What effect could the publicity surrounding the claim have on the company s business operations or the ongoing contract negotiations with the employee s union?

90

Questions 1. Could the company be liable for reinstatement and back pay if the delay

were found to be unreasonable and the employee continued to refuse a transfer to a noncustomer contact job?

2. Even if the company prevailed in getting the federal discrimination complaint dismissed, do you think the employee would then file a con- tractual grievance seeking a similar remedy for lost time from work?

3. What effect could the publicity surrounding the discrimination claim have on the company s business operations or future contract negotia- tions with the employee s union?

4. In your opinion, is it the responsibility of government to pass laws designed to establish the working conditions of American workers? Or is the purpose of U.S. labor law to establish a framework whereby employees can group together to negotiate their own working condi- tions, tailoring them to the conditions that are important to the work- ers? Explain your reasoning.

Labor relations law provides a framework for defining the legal rights and responsibil-ities of the parties engaged in the labor relations process. This chapter introduces the basic legal foundation regulating the major phases of the labor relations process: organiz- ing unions, negotiating labor agreements, and ensuring employee rights in contract administration. It is essential today not only to know the law but to understand and appreciate the interrelationships between the law and the labor relations process. Practi- tioners should be aware that having a legal right to act does not always mean it is in one s practical best interest to exercise that legal right.

Chapter 3 logically follows the chapter on historical development of unions in the United States because labor relations law and union development go hand in hand. As unions grew in strength, they successfully lobbied to get labor laws passed by the U.S. Congress. This chapter focuses on key labor laws that pertain to most private firms today: the Norris La Guardia, Wagner, Taft Hartley, and Landrum Griffin Acts. Because these acts cover the major por- tion of private-sector U.S. industries and businesses, a substantial amount of space in this chapter is devoted to their content. The Railway Labor Act (RLA), which principally covers railroads and airlines, is also explained and assessed. A final section briefly considers several other employment laws that can affect the labor relations process.

Origin of Labor Relations Law

Modern U.S. labor relations law relies primarily on federal and state statutory laws or local government ordinances; judicial decisions interpreting and applying statutory laws and local ordinances; and decisions by administrative agencies (e.g., National Labor Relations Board [NLRB], U.S. Department of Labor [USDOL], Occupational Safety and Health Administration [OSHA]) responsible for administering specific labor laws. Congress has enacted numerous labor relations laws in the interest of employees and employers, public

91

welfare, and the furtherance of interstate commerce. Three major laws the Norris La Guardia Act, the Labor Management Relations Act (LMRA), as amended, and the RLA are discussed at length later in this chapter. Under the preemption doctrine, federal law takes precedent over state law or local ordinances whenever both seek to regulate the same conduct and there is a conflict between them.2 The preemption doctrine underscores the importance of labor relations as an area that affects the national economy and therefore benefits from the uniformity and stability that federal regulation of issues can provide. State legislatures may pass laws and local municipalities may enact ordinances to fill voids in federal laws or to extend regulation to issues not regulated by federal laws, such as the right of state and local public employees to engage in collective bargaining.

The judicial branch of government, with its court system at the federal, state, and local levels, functions to determine a law s constitutionality and conformity to legal stan- dards; to assess the accuracy of interpretations by administrative agencies; and to issue injunctions that restrict or require certain activities. In addition, the courts must decide issues not covered by existing laws and make rulings under the general guide of equity. These decisions constitute case law, which has developed over the years, establishing pre- cedents and providing guidance for future legal decisions.

The executive branch of government includes various administrative agencies cre- ated by Congress to interpret and administer some labor laws. These government agen- cies establish policies and make rules to guide the administration of specific labor laws. Although administrative agency decisions may be appealed to federal courts, the courts are encouraged by Congress to give great deference to the expertise of agencies in inter- preting and applying an applicable labor law. Some of the more important administrative agencies mentioned include the following:

National Labor Relations Board (NLRB): Administers the National Labor Relations (Wagner) Act as amended by the LMRA and certain aspects of the Labor Management Reporting and Disclosure (Landrum Griffin) Act; the NLRB is involved in the supervision of union representation elections and determination of unfair labor practice (ULP) charges. Note that ULP charges can be pressed against either employers or labor unions. Federal Mediation and Conciliation Service (FMCS): Provides mediation services to unions and employers engaged in collective bargaining. (A mediator is a third party who helps the negotiators find a voluntary resolution to their dispute). The FMCS also assists these parties in selecting arbitrators (third parties who issue binding decisions) in grievance administration. Finally, the FMCS provides training programs to encourage more cooperative labor management relations. U.S. Department of Labor (USDOL): Performs many employment-related services, such as research and data collection functions; administers federal wage and safety laws; and enforces federal contract compliance under equal employment opportunity requirements. In addition, the Secretary of Labor who heads the USDOL serves as a member of the president s cabinet, responsible for employment-related matters. National Mediation Board (NMB): Handles union representation issues under the RLA; provides mediation services to parties in negotiations; assists in resolving disputes over contract interpretation; and in cases involving emergency disputes, proposes arbitration and certifies to the president that a dispute does constitute an emergency. National Railroad Adjustment Board (NRAB): Hears and attempts to resolve railroad labor disputes growing out of grievances and interpretation or application of labor agreements. State and local administrative agencies: Are responsible for the enforcement and administration of state laws and local ordinances involving labor relations topics.

92 PART 1 Recognizing Rights and Responsibilities of Unions and Management

The Norris La Guardia Act

The 1929 stock market crash and ensuing economic depression forced a reassessment of the extent to which private-sector employers should be trusted to manage the economic welfare of the country. As unemployment rose and individuals savings declined, political pressure mounted on Congress to take a more active role in regulating the economy, including providing more protection for basic workers rights. In 1932, Congress passed the Norris La Guardia Act (also called the Federal Anti-Injunction Act) to accomplish four public policy goals.3

First, to allow employees a greater voice in seeking to advance and protect their legitimate job interests, Congress limited the power of federal courts to issue labor injunc- tions. Activities that previously had been routinely enjoined (prohibited) by judges were now protected by law (e.g., peaceful picketing or publicity; encouraging employees to join a union; a union s provision of economic or legal aid to employees during a labor dispute). Under the Norris La Guardia Act, a temporary restraining order (TRO) obtained solely on the basis of an employer s statements to restrict some alleged unlawful employee conduct was limited in duration to only five days. During that time period, the judge was required to conduct a hearing at which both sides could present basic argu- ments and evidence as to whether the TRO should be converted to a temporary labor injunction after the initial five-day period expired. An employer seeking to have the court issue a labor injunction had the burden of proving that the following conditions existed: (1) Unlawful acts have been threatened or committed; (2) substantial and irrep- arable injury to the employer s property has or will likely occur as a result of such unlaw- ful acts; (3) greater injury would be inflicted on the employer by denial of an injunction than on the union (employees) by granting an injunction; (4) the employer had no other adequate legal remedy; (5) public safety officers were either unable or unwilling to ade- quately protect the employer s property; and (6) the employer had satisfied any existing legal duty to bargain in good faith in an effort to settle the labor dispute (including the offer of mediation) before going to court. Any labor injunction issued by a court was required to describe the specific conduct being enjoined, eliminating the previous abuse of general or vaguely worded blanket injunctions. 4

Second, the Norris La Guardia Act declared that a yellow-dog contract (previously discussed in Chapter 2) would be unenforceable in federal court and thus no longer valid as a basis for obtaining a labor injunction to prevent conduct which might breach such an employment contract.5 However, many employers continued to discharge or otherwise discriminate against employees for engaging in union activities.

A third public policy goal of the Norris La Guardia Act was to encourage the courts to adopt a more impartial or neutral role in seeking to protect and enforce the legitimate rights of employers and employees. Courts were encouraged to balance the legitimate rights of employers and employees, a difficult task in an economic system where the par- ties interests inevitably conflict to some extent. Acts for which a labor injunction was not obtainable under the Norris La Guardia Act were no longer considered to be anti- trust violations under the Clayton Antitrust Act.6 Rejecting the Supreme Court s inter- pretation and application of the antitrust laws during the 1920s, Congress reinstated the use of the economic boycott as a legitimate means of worker protest so long as it was used to pursue a lawful purpose in a lawful manner.

A fourth public policy goal of the Norris La Guardia Act was to express congressio- nal support for the process of collective bargaining as an appropriate means for employees to improve and protect their employment interests. Through the collective bargaining process, both labor and management could voice their concerns and present evidence

CHAPTER 3 Legal Influences 93

to support the adoption of reasonable work rules which fit the particular circumstances and resources of each bargaining relationship. While the potential for conflict was part of such a bargaining process, the presumption was that in most cases the parties would see it to be in their own self-interests to peacefully resolve disputes over what the terms and conditions of employment would be.

Although the passage of the Norris La Guardia Act signaled a change in U.S. labor relations policy, the act did not establish an independent administrative agency to enforce the act s provisions. This meant that organized labor had to pursue enforcement through the judicial system, which historically had not been responsive to labor s needs and interests. Another deficiency of the Norris La Guardia Act was that no specific employer ULPs were identified and prohibited. These deficiencies were not resolved until three years later.

The National Industrial Recovery Act of 1933

Franklin D. Roosevelt, who was backed strongly by labor unions, was elected president in 1932 along with a new Congress receptive to labor legislation as a means of ending a long economic depression. President Roosevelt promised Americans a new deal based upon a belief that market forces alone were incapable of putting the public s interests ahead of private ownership s interests. He argued that dire economic conditions created a need for more active government involvement in managing the economic welfare of the country. The historical debate over the proper and necessary role of government in helping to manage the economy has been a prominent part of efforts to address eco- nomic recessions ever since including the latest one.

One of the first acts of the Roosevelt administration was to encourage Congress to pass the National Industrial Recovery Act (NIRA, also abbreviated NRA), a law designed to stabilize economic activity by allowing businesses to form associations that would draw up codes of fair competition to standardize marketing, pricing, financial, and other practices. Upon approval of the codes by the National Recovery Administration, firms could display the Blue Eagle symbol that supposedly signified compliance and identified firms from which customers should purchase their goods and services.

Section 7 of the NIRA required the codes to guarantee employees the right to union- ize without employer interference, and a National Labor Board (NLB) was later estab- lished to help settle disputes and to determine violations under Section 7. Meanwhile, textile workers were dissatisfied with declining wages and miserable working conditions as the Great Depression (which began in 1929) continued. Encouraged by the legal pro- mises of the NIRA, between 300,000 and 400,000 textile workers, mostly in the South, went on strike. However, the strike was a failure: The union did not have the financial resources to feed or pay strike benefits to so many people. The industry board did not address employee grievances. A separate federally appointed mediation board merely issued a report calling for further study of industry and working conditions. Employers did not recognize textile unions, raise wages, or improve working conditions. Strike lea- ders were blacklisted and unions got a bad name in the South where union organizing has remained difficult.7

Because the NIRA did not require employers to bargain with unions, and the NLB could not enforce its orders effectively, the law was not very effective in protecting employees rights to organize and bargain collectively. In 1934, Congress issued a joint resolution calling for the president to establish an NLRB to investigate violations under Section 7, NIRA and to conduct elections to determine whether employees wanted

94 PART 1 Recognizing Rights and Responsibilities of Unions and Management

independent union representation.8 The new board, created like its predecessor by exec- utive order of the president, had trouble enforcing its orders and determining appropri- ate employee organizational units for conducting elections. In 1935, the Supreme Court ruled the NIRA unconstitutional when one of its codes of fair competition was applied to an employer engaged in intrastate commerce going beyond Congresses authority to reg- ulate interstate commerce.9

The National Labor Relations (Wagner) Act of 1935

One month after the NIRA was declared unconstitutional, Senator Robert Wagner, the chairman of the NLRB and an active participant in labor law matters, steered through Congress a separate labor relations law the National Labor Relations (Wagner) Act (NLRA).10 The NLRA established a new national labor policy that sought to ensure the free flow of commerce, labor peace and stability, and protection of the public s interests by encouraging the process of collective bargaining and preventing employer interference with the exercise of employee rights defined in the act. The NLRB was authorized to investigate and decide ULP charges and conduct representation elections (other provi- sions are covered later in the chapter).

This law provides the basic framework for private-sector labor relations for most employees in the United States. Congress perceived that without legal protection for employee rights, the economic power of employers far exceeded that of individual employees and inevitably led to labor unrest, which had a detrimental effect on eco- nomic growth and the public s interests. The Wagner Act is premised on an industrial relations model that there are two classes in the industrial world, labor and management, and that these two classes have very different, in fact opposing interests. 11

Section 7 Rights Perhaps the key provision of the NLRA was Section 7, which listed the rights of employ- ees under the law. These included the right to form or join a union, bargain collectively, and engage in other concerted activity for mutual aid and protection (see Exhibit 3.1). Note that while it takes at least two people to have a union, an individual can make statements or take actions that are protected under the law if it is done on behalf of a group of employees.

Unfair Labor Practices by Employers Section 8 of the Wagner Act specified that it was a ULP for employers to interfere with, restrain, or coerce employees as they exercised their Section 7 rights. Subsequent inter- pretation of this provision determined that the Wagner Act outlawed many employer tactics designed to discourage union activity such as

Exhibit 3.1 Rights of Employees Section 7 Employees shall have the right to self-organization, to form, join, or

assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8(a)(3).

SOURCE: Labor-Management Relations Act, 1947, as amended.

CHAPTER 3 Legal Influences 95

discharging or refusing to hire union supporters, threatening pro-union workers with poor job assignments or termination, using company spies to learn who was organizing a union, blacklisting pro-union employees, creating company unions, bargaining in bad faith (discussed in Chapter 6), requiring applicants to sign yellow-dog contracts.

All of these were declared to be ULPs under the NLRA.

The Supreme Court Challenge Many employers believed the NLRA would be ruled unconstitutional like the NIRA.12

However, the Supreme Court declared the NLRA constitutional in 1937, recognizing the important impact labor relations can have on interstate commerce and endorsing Congress s right to regulate labor relations.13 With Supreme Court approval of the NLRA and improved economic conditions in the United States, unions experienced tre- mendous growth, almost tripling union membership to 8.4 million members by 1941.14

Employer Criticisms of the Wagner Act Union activities in the decade following passage of the NLRA caused many to believe that the labor relations pendulum had swung too far in favor of unions. Examples of union actions that precipitated much public concern were strikes over union representa- tion rights between competing AFL and CIO unions, union strikes or boycotts over bar- gaining issues, a union refusal in some cases to negotiate in good faith with an employer, and pressure on job applicants to become union members at companies where the employer and union negotiated a closed shop union security clause under which an employer agreed to hire only job applicants who were already members of a union repre- senting the firm s workers.

Changes under the Labor Management Relations (Taft Hartley) Act As a reaction to employer criticisms of the NLRA and growing public concern over orga- nized labor s actions, particularly during a wave of strikes that followed the end of World War II, in 1947 Congress amended the NLRA by enacting the LMRA.15 Leaving the original language of the NLRA virtually unchanged, the LMRA added language intended to address certain identified deficiencies and direct more attention to the legitimate rights of individual employees and employers involved in the labor relations process. Thus, the law protected anti-union individuals from retaliation by pro-union workers and union organizers. It also clearly gave owners and managers the right to speak in opposition to unionization by employees. However, the law did not universally expand free-speech rights. As noted in Chapter 2, the law required union officers to sign affidavits swearing that they were not communists (this last provision was declared unconstitutional by the U.S. Supreme Court in 1965). Calling it a slave labor act, labor groups immediately mounted a successful campaign to have President Truman veto the bill; however, Congress easily overrode Truman s veto.

Unfair Labor Practices by Unions To emphasize Congress s intent to fairly balance labor relations policy, the National Labor Relations Act (NLRA) was renamed the Labor Management Relations Act (LMRA). Similar to employer prohibitions included in the NLRA, a section of unfair

96 PART 1 Recognizing Rights and Responsibilities of Unions and Management

union labor practices was added to the LMRA, making it illegal for a union to engage in actions that discriminated against any employee s exercise of rights protected under Sec- tion 7 of the LMRA. Language was added to Section 7 granting individual employees a right to refrain from engaging in most forms of otherwise protected concerted activity.

Some union actions that have subsequently been determined to be illegal under the LMRA include the following:

threatening workers who refuse to join or support a labor union, paying people to support or vote for a union, pressuring an employer to discriminate against hiring an anti-union applicant, bargaining in bad faith, jurisdictional strikes, strikes against employers who are not involved in the labor dispute, political strikes striking in support of a political cause or candidate.

The Closed Shop vs. the Union Shop. Congress agreed that membership in a particu- lar labor organization should not be a precondition for employment and therefore made the closed shop union security clause illegal. However, Congress recognized that some level of union security was necessary to ensure that employees who desired union repre- sentation could achieve a reasonably permanent and effective voice in protecting their workplace interests. Employers and unions were permitted under the LMRA to negotiate certain types of voluntary union security clauses. One form was a union shop union security clause requiring a new employee join a union within 30 days after hire. A sec- ond form was an agency shop clause where the new employee did not have to join the union, but, because the union is the bargaining agent for everyone in certain unionized jobs, the employee had to pay a fee equivalent to regular union dues and initiation fees. Either of these clauses typically required payment for as long as the employee held a job in a bargaining unit represented by the union.

Some members of Congress supported legislation allowing labor contracts to contain union security clauses; others opposed such clauses. As a political compromise, Congress allowed individual states to ban union security agreements in their state (so-called right- to-work laws). Essentially, a right-to-work law allows only the open shop, where work- ers can choose to join a union or can choose not to; those who choose not to join the union do not pay anything to the union. Union security issues will be discussed further in Chapter 4.

Employer Opposition to Unionization The LMRA addressed employer criticism of an NLRB policy that severely restricted an employer s right to speak out on the question of union representation during an organiz- ing campaign. In 1941, the Supreme Court declared that NLRB policy to be an unconsti- tutional prohibition of employers First Amendment free-speech rights.16 Six years later, Congress essentially incorporated the court s decision into the language of Section 8(c), LMRA, which protects the expressing of any opinions or arguments about labor relations issues so long as such expression contains no threat of reprisal or promise of benefit.

Right to File a Lawsuit To encourage unions and employers to live up to negotiated contract terms, Section 301, LMRA permitted the parties to a collective bargaining agreement to sue in court for breach of contract if necessary to obtain the other party s compliance with the terms of the labor agreement. Prior to this change, an employer was forced to sue individual union members separately for violating a contractual no-strike agreement, which was

CHAPTER 3 Legal Influences 97

both time consuming and expensive. While permitting an employer to sue a union directly for economic damages under Section 301, LMRA, Congress removed the right to sue individual union members to recover economic damages for a breach of a labor contract s terms.

Managers and Unionization The Taft Hartley Act also clarified that managers did not have a legal right to unionize. Nor did managers have a right to keep their job if they publicly spoke out against an employer s labor policy or bargaining position. The law codified the assumption that managers acted as the agents for their employers when dealing with labor relations issues.

Since 1959, there have been two successful legislative attempts to expand employee coverage under the LMRA. The LMRA was first extended to cover the U.S. Postal Service in 1970 (see Chapter 13) and then to cover private-sector profit and nonprofit health care institutions in 1974.

Labor Management Reporting and Disclosure (Landrum Griffin) Act

In the late 1950s, a special Senate committee headed by Senator John McClellan vigor- ously pursued the abuses of power and corruption by some union leaders, particularly those of the Teamsters and specifically of Dave Beck and Jimmy Hoffa.17 Exposing shocking examples of union corruption and abuses of power, Congress reacted in 1959 by passing the Labor Management Reporting and Disclosure (Landrum Griffin) Act (LMRDA).18 The LMRDA is primarily designed to protect the rights of individual union members in their relations with their own union and to ensure that labor organi- zations operate in a democratic and financially responsible manner. Unlike the LMRA, which applies to both union and nonunion employees, the LMRDA covers only indivi- duals who are members of a labor organization.

For example, the LMRDA requires all local union officers to be elected by secret- ballot vote of union members at least once every three years and national union officers at least once every five years. Union members must approve any increase or decrease in the amount charged for union membership dues, initiation fees, or other special assess- ments. A union s constitution and by-laws approved by a vote of the membership is con- sidered to be a binding contract between the union and its members, enforceable in court. Unions are required to file annual reports with the USDOL available to the public containing information on union assets and liabilities, union officer salaries, and current union operating rules. Labor organizations are among the most regulated organizations in U.S. society today.

The Landrum Griffin Act also contains provisions that enhance and protect the rights of individual members. The law provides for equal voting rights in officer elections for all members, regardless of their position in the union or how long they have been in the union. The law grants members the right to run for union office, to nominate others for office, and to make speeches for candidates. Members also have the right to own a copy of their collective bargaining agreement.

Title VII of the LMRDA also contained some amendments to the LMRA. Most important was the addition of Section 303 to the LMRA, which granted neutral, second- ary employers harmed by unlawful secondary strike, boycott, or picket activity a right to sue a labor organization to recover economic damages.

98 PART 1 Recognizing Rights and Responsibilities of Unions and Management

National Labor Relations Board

One weakness of the 1933 1935 NIRA had been the lack of any effective enforcement mechanism. Confronted with a prior history of relatively weak court enforcement of employee rights, Congress took the extraordinary step of designating an independent federal administrative agency, the NLRB, to be the primary interpreter and administrator of the newly created NLRA. To ensure the constitutionality of the NLRA, Congress pro- vided that ULP decisions of the NLRB could be appealed for review to an appropriate federal circuit court of appeals. The courts were instructed by Congress to pay great def- erence to the policies of the NLRB in interpreting what Congress intended the law to accomplish.

The NLRB is headquartered in Washington, D.C., and headed by a five-member panel termed the Board.19 Board members are nominated by the president to serve a five-year term and must be confirmed by the U.S. Senate. Terms of Board members are staggered to ensure that not all vacancies occur at the same time, although due to delays in the nomination and confirmation process there have been periods where several Board seats were vacant at the same time, affecting the ability of the NLRB to function effectively.

As political appointees, Board members generally reflect the basic labor relations philosophy of the president who nominated them. The nomination process is subject to intense lobbying by employers, unions, and other outside interest groups (e.g., National Right to Work Committee) who recognize the important role the Board serves in deter- mining the balance between protection for employer and employee interests, particularly on legal issues where such interests may conflict. Interpretations of the facts and law governing union management relations is dependent in part on the makeup of the board. 20 One study reported finding an apparent pro-employer or pro-union bias in only 20 percent of Board case decisions.21

Increased political partisanship in the selection and confirmation of Board members has been a real problem in recent years. Frequent legal interpretation shifts among Board members makes it difficult for labor and management practitioners and covered employ- ees to know with some reasonable degree of certainty that lawful acts taken today will continue to be lawful in the future.22 Significant periods of time when the Board has fewer than its full five-member complement results in case delays and prevents signifi- cant legal questions regarding the LMRA s interpretation from being addressed. Since 1988 over 25 percent of Board nominees have failed to win Senate confirmation.23

From January 2008 through March 27, 2010, the Board functioned with only two members. The two Board members continued to render almost 600 ULP case decisions on the theory that two members constituted a majority quorum of a three-member panel. In a 5 4 decision in New Process Steel, L.P. v. NLRB (2010), the Supreme Court ruled that the LMRA requires that at least three Board members participate in every case decision in order to be lawful.24 At the time of the court s decision, there were 96 cases on appeal before the federal courts. The Board subsequently requested that all of these cases be remanded to the Board for further consideration by a three- member panel of Board members. (Most cases were re-heard with a proper quorum and resolved with a similar Board decision.) However, that was not the end of the political drama. Because the Senate would not confirm some of President Obama s nominees to the Board, in 2012 the president made three recess appointments while Congress was out of town during Christmas Break; the only problem was that the Sen- ate was technically not recessed, leaders held cursory sessions to prevent just such recess appointments. In 2014, the Supreme Court ruled in Noel Canning v. NLRB that

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the recess appointments were invalid. This decision meant that over 1000 NLRB decisions had to be reconsidered.25

The Board has two primary responsibilities. One responsibility is to prevent employer and union ULPs as defined by the LMRA, as amended, which interfere with the exercise of employee rights protected by the act. This responsibility is carried out primarily through the investigation, prosecution, and remedy of ULPs. The second responsibility is to determine if employees covered under the LMRA desire representation by an independent labor organi- zation for purposes of collective bargaining. The Board establishes and conducts certifica- tion procedures to determine if a majority of eligible employees desires a specific labor organization to represent them for purposes of collective bargaining. These secret-ballot elections are called union representation elections or certification elections. In FY 2012, of 24,275 total cases filed with the NLRB, 89 percent were ULP; the remainder of the cases involved union representation elections. Many were resolved by Administrative Law Judges (described below), but some were appealed to the Board. Typically, between 65 and 75 percent of the Board s case load involves ULP cases and 25 and 35 percent involves repre- sentation election cases.26 The Board exercises final administrative decision-making author- ity in all ULP and representation cases, although ULP decisions may be appealed for review by a federal court. Some recent decisions, shown in the Labor Relations in Action box, demonstrate the importance of Board decisions to workers and their employers.

The Board delegates authority to the General Counsel and staff attorneys to prosecute ULP charges. The General Counsel is nominated by the president to serve a four-year term and must be confirmed by the U.S. Senate. As with Board members, the General Counsel s nomination and confirmation process is subject to interest group politics.

A major responsibility of the General Counsel s office is to conduct a preliminary investigation of each ULP charge to determine if sufficient (prima facie) evidence exists to conclude a ULP may have occurred. If insufficient evidence of a violation is found, the General Counsel has the authority to dismiss a ULP charge, and there is no appeal of that decision. This gives the General Counsel tremendous influence in helping to deter- mine the policy making agenda of the Board because the Board announces new policies or alters existing policies through the issuance of ULP case decisions. The only cases in which the Board will have an opportunity to render a ULP decision are those cases in which the General Counsel s investigation concluded that evidence of a ULP existed.

The General Counsel is also responsible for representing the NLRB whenever a Board decision or order is appealed to a federal court or when the Board seeks a court order to enforce its decision. The General Counsel also serves as a legal advisor to Board members on matters pertaining to the interpretation or application of the LMRA or how past Board policies and procedures have fared upon review by the federal courts. The General Counsel relies upon staff attorneys located at the NLRB s headquarters in Washington, D.C., as well as each regional NLRB office to help carry out the responsibil- ities of the General Counsel s office.

For employees, a union, or management practitioner, contact with the NLRB typi- cally occurs at the regional or resident office level. The NLRB maintains 26 regional offices, with 25 additional satellite offices located throughout the country to handle ULP and union representation election cases. Each regional office is headed by a regional director, who also manages any sub regional or resident offices located within the regional office s geographic jurisdiction. The regional director and staff work with the General Counsel to investigate ULP charges and are delegated authority by the Board to administer all representation election procedures. Most meritorious ULP cases get resolved at the regional office level with the settlement rate ranging between 91.5 and 99.5 percent over the previous ten-year period. Among the cases that are litigated before

100 PART 1 Recognizing Rights and Responsibilities of Unions and Management

LABOR RELATIONS IN ACTION Selected Labor Relations Cases Decided by the U.S. Supreme Court and the NLRB

Back-Pay Remedy One remedy available to employees who have been ille- gally discharged (in violation of the LMRA) is that they can receive back pay for the period of time they were unemployed. However, what if the employee is an ille- gal immigrant? In a 5 4 decision, the U.S. Supreme Court ruled that the Immigration Reform and Control Act prevents the NLRB from awarding a back-pay rem- edy to an undocumented immigrant (a.k.a., illegal alien). This is so, even though an employer can be found guilty of committing an unfair labor practice in violation of the undocumented alien s employee rights under the LMRA. Requiring back pay is inappropriate, the Court reasoned, because the illegal immigrant is not allowed to work in the United States. However, the NLRB can impose other remedies for the employer s unfair labor practice such as a cease-and-desist order and an order to post notices admitting the unlawful conduct and informing company employees of their basic employee rights under the LMRA. Hoffman Plastic Compounds, Inc. v. NLRB, 122 S.Ct. 1275 (2002).

Determination of Supervisory Status Supervisors are excluded from coverage under the LMRA. However, it is not always obvious whether an employee is a supervisor. The party asserting that an employee is a supervisor bears the burden of proving the employee s supervisory status. To be a supervisor under the LMRA, an individual must (1) perform at least one of the 12 specified supervisory functions (e.g., hir- ing, performance evaluation); (2) use independent judg- ment that is not merely routine or clerical in nature; and (3) exercise authority in the interests of the employer. Supervisory status must be determined on a case- by-case basis. See: Oakwood Healthcare, Inc. and United Auto Workers of America, 348 NLRB 686 (2006); Beverly Enterprises-Minnesota, Inc. d/b/a Golden Crest Healthcare Center and United Steelwor- kers of America, 348 NLRB 727 (2006); Croft Metals, Inc. and International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, 348 NLRB 717 (2006); and NLRB v. Kentucky River Community Care, Inc., 121 S.Ct. 1861 (2001).

Unilateral Employer Withdrawal of Union Recognition Applying legal principles established by the U.S. Supreme Court in Allentown Mack Sales & Service v. NLRB, 522 U.S. 359 (1998), the Board held that an employer may unilaterally withdraw union recognition of the exclusive bargaining unit representative only if

the employer can prove the union has lost majority employee support as of the date of the employer s uni- lateral withdrawal of recognition. Alternatively, an employer may obtain an NLRB-supervised election to determine if the majority of bargaining unit employees supports the incumbent union if the employer can dem- onstrate a good faith reasonable uncertainty regarding the union s continued majority support. The Board would prefer employees directly express their desire for or against union representation through a secret- ballot representation election rather than have an employer act unilaterally to withdraw union recognition. Levitz Furniture Company of the Pacific, Inc., 333 NLRB 717 (2001)

Union Recognition What if an employer believes that a majority of the workers in the bargaining unit no longer support their union? Can the employer refuse to deal with that union? The U.S. Supreme Court unanimously held that an employer may not refuse to bargain with an incum- bent union on the grounds that the employer believed that the union had lost the support from a majority of the workers in the bargaining unit. Interestingly, the employer had made this determination shortly after entering into a contract with the union. Auciello Iron Works, Inc. v. NLRB, 116 S. Ct 1754 (1996).

Definition of Employees under LMRA Agricultural workers are not covered under the LMRA. Are the people who work as members of a live chicken catching crew considered agricultural workers? Most of their work was performed at chicken farms. They caught chickens for farmers who subcontracted with a chicken processing plant to raise the chickens to a mar- ketable age and size. The NLRB ruled that crew mem- bers were employees of the chicken processing plant and not excluded from coverage under the LMRA as agricultural laborers. Holly Farms Corp. v. NLRB, 116 S. Ct. 1396 (1996)

Union Organizers The Court unanimously upheld the NLRB s decision that paid union organizers are employees within the meaning of the LMRA when applying for a job or after being hired by the employer. Therefore, individuals act- ing as union salts (undercover union organizers) are protected against employer retaliation in the form of dis- charge or discipline for participating in any protected activity under Section 7 of the act, such as attempting to organize a union among employees. NLRB v. Town & Country, 116 S. Ct. 450 (1995)

101

Partial Lockout What happens to employees who strike but then abandon their strike? Can their employer lock them out? That was the situation at one employer: Employ- ees had initiated a lawful economic strike on June 28, but abandoned that strike on August 31 and sought immediate reinstatement to their bargaining unit jobs. Still without a negotiated collective bargaining agree- ment, the employer initiated a lockout applicable to striking workers who had not abandoned the strike prior to August 31 in order to put pressure on those employees to agree to the employer s proposed contract terms. The 7th U.S. Circuit Court of Appeals prohibited the employer from locking out those employees. The court found no evidence supporting a legitimate business reason for the lockout and fur- ther found the lockout to be an unfair labor practice under the LMRA. Why? Because the lockout discrimi- nated against employees who had exercised their law- ful right to engage in an economic strike in furtherance of their bargaining interests. Local 15, International Brotherhood of Electrical Workers v. NLRB, 429 F.3d 651 (7th Cir. 2005)

Failure to Pay Required Union Dues Employees covered by a valid union security clause (e.g., a union shop clause) are subject to discharge for failing to pay the amount of union dues owed after proper notification by the union and a reason- able opportunity to meet the employee s dues obliga- tion. If employees do not pay their dues, must the employer fire them? Yes. A refusal by an employer to honor a union s request to discharge bargaining unit employees who have failed to meet their lawful union dues obligation represents an employer unfair labor practice violation under the LMRA. St. John s Health Systems v. NLRB, 436 F.3d 843 (8th Cir. 2006)

Successor Employer Bargaining Overruling a 1999 Board policy, the Board returned to the previous policy, which holds that an incumbent union in a successor employer situation is entitled to a presumption of continuing majority support. This policy also permits the following: (1) employees can file a valid decertification petition (to schedule a vote to get rid of the union), (2) another union can file a valid representa- tion petition (to try to replace the incumbent union), or (3) a successor employer can file an employer election petition challenging the union s presumption of continu- ing majority support. A successor employer s duty to

bargain with an incumbent union continues until the date on which a lack of majority employee support for the union can be established. MV Transportation, 337 NLRB 770 (2002)

Inclusion of Leased Employees in a Bargaining Unit with Regular Employees On a 3 2 vote, the Board held that it was not permis- sible to combine an employer s own employees in the same bargaining unit with employees performing similar job tasks obtained from another employer (e.g., company supplying leased labor) without the consent of both the user employer and the supplier employer. This will make it more difficult for leased or temporary agency employees to gain union repre- sentation rights at the firm where they actually per- form their job duties. Oakwood Care Center, 343 NLRB 659 (2004)

Duty to Bargain When an employer has been found guilty of bad faith bargaining and issued a remedial order to bargain in good faith, such bargaining must occur for a rea- sonable time before the union s majority status as bargaining representative can be challenged. Rea- sonable time refers to a period no less than six months nor longer than one year. The exact length time good faith bargaining would be required is deter- mined on a case-by-case basis based on several fac- tors including: whether the negotiations are for an initial contract or seek to amend an existing agree- ment, the complexity of the issues being negotiated and the parties bargaining procedures, the total amount of time elapsed since the start of bargaining and the number of bargaining meetings held, the amount of progress the parties have made and how close the parties appear to be to reaching a settle- ment, and whether the parties have reached a good- faith bargaining impasse. Lee Lumber and Building Material Corp., 334 NLRB 399 (2001)

Employer Use of Employees in Pro-Company Union Representation Election Campaign Videos Suppose an employer wants to make a video to show to employees as part of an anti-union campaign prior to a representation vote. Can the employer ask employees to appear in an anti-union video? The Board established four clear conditions which if met, would permit employers to solicit employees to appear in an anti- union election campaign video. To be lawful: (1) the

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solicitation to participate in the campaign video must be in the form of a general announcement, which discloses the purpose of filming and assures employees that par- ticipation is voluntary; no retaliation can occur against employees who do not voluntarily choose to participate and no rewards or benefits will be provided to those employees who do participate; (2) employees may not be pressured to make a decision regarding their partici- pation in the presence of a supervisor; (3) there can be no unlawful conduct connected with the employer s solicitation for voluntary participants; and (4) the solicita- tion cannot occur in a coercive atmosphere created by the employer s commission of other unfair labor practices. Allegheny Ludlum Corporation, 333 NLRB 734 (2001).

Coverage of Teaching and Research Graduate Assistants Graduate students take classes, but also work in laboratories and teach classes at many private univer- sities. Are they employees and thus eligible to unionize? The Board ruled that graduate student assistants do not meet the definition of employee and thus are not entitled to exercise protected employee rights under the LMRA. This reversed, by a 3 2 vote, a 2000 Board decision that had extended coverage to teaching and research graduate assis- tants at a private university. Compare Brown Univer- sity, 342 NLRB 483 (2004) to New York University, 332 NLRB 1205 (2000).

Coverage of Medical Interns, Residents, and Fellows (House Staff) Reversing previous policy, the Board ruled that hospital interns and residents in a private hospital are employees covered by the LMRA even though they are students. Therefore, these employees have the right to organize and join a union and participate in other protected concerted activities. Boston Medical Center Corp., 330 NLRB 152 (1999). (Note: If the Board follows its reason- ing in Brown University discussed previously, then the Boston Medical Center Corp. decision could be reversed in the future.)

Weingarten Rights Applied to Unrepresented Employees In 1975, the U.S. Supreme Court ruled that if a union- ized employee anticipates being disciplined by manage- ment, he or she has a right to have a union official present at the meeting. The right to obtain union coun- sel at such meetings is called Weingarten Rights. But

what about nonunion employees? Can a nonunion worker bring a co-worker to such a meeting? No. Con- tinuing a long running dispute over the interpretation of what constitutes protected activity for mutual aid or pro- tection, by a 3 2 vote, the Board reinstated a previous policy denying nonunion (unrepresented) employees covered by the LMRA a right to have a co-worker pres- ent during an investigatory interview with management where the employee had reason to believe that he or she might be subject to disciplinary or discharge. Exer- cise of such a right is viewed as a form of concerted activity for mutual aid or protection when exercised by union-represented employees but not when exercised by unrepresented employees. So-called Weingarten rights also permit a union-represented employee to know the general nature of the alleged violation being investigated and a reasonable opportunity to meet with his or her union representative prior to any investigatory meeting with management. Compare IBM Corporation, 341 NLRB 1288 (2004) to Epilepsy Foundation of North- east Ohio, 331 NLRB 676 (2000) enforced in part, Epi- lepsy Foundation of Northeast Ohio v. NLRB, 268 F.3d 1095 (D.C. Cir. 2002). See also NLRB v. Weingarten, 420 U.S. 251 (1975).

Enforcement of Agreement to Arbitrate Employment Discrimination Claim An arbitration clause in a collective bargaining agree- ment that clearly and unmistakably requires a bargaining unit member to submit employment discrimination claims covered by a federal antidiscrimination statute to arbitration is enforceable. The bargaining unit mem- ber may not submit a legal claim under the applicable antidiscrimination law through the court system. The contractual arbitration procedure is the bargaining unit member s exclusive remedy for his or her employment discrimination claim. 14 Penn Plaza, LLC v. Pyett, 129 S. Ct. 1456 (2009).

Minimum Number of NLRB Board Members Required to Make a Case Decision Section 3(b) of the LMRA requires the Board to have at least three of five members participating in order to exercise the delegated authority of the board. New Pro- cess Steel, L.P. v. National Labor Relations Board, 130 S. Ct. 2635 (2010).

Voluntary Employer Recognition Does Not Create an Election Bar If an employer grants voluntary recognition of a labor union, can workers who support a rival union still file a

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an ALJ or the Board, the General Counsel and prosecutorial staff typically win, in whole or in part, 75 90 percent of the time.27

Employer and Employee Coverage under the LMRA, as Amended To promote the public policy goals of the LMRA, as amended, Congress sought to include as many employers and employees as possible under the statute s coverage. The U.S. Constitution permits Congress to regulate private-sector employers whose operations have the potential to vitally affect interstate commerce. If an employer is subject to coverage under the statute, the employer s employees are also covered (protected) by the statute unless they fall into an employee category specifically excluded from coverage (e.g., agricultural workers). The term NLRB jurisdiction refers to those employers and employees to whom the NLRB can apply the language of the LMRA.

The NLRB may refuse to assert jurisdiction in cases where it believes the effect on interstate commerce is minor (de minimus). For example, the NLRB has refused to hear cases from state-regulated industries such as real estate, horse and dog racing. Individual states may assert jurisdiction over any case where the NLRB has declined to do so.28

From 1935 to 1950 the Board relied upon the judgment of individual regional direc- tors to determine an employer s ability to affect interstate commerce on a case-by-case basis. To reduce the inconsistencies inherent in this approach and improve the objectiv- ity of decisions, the Board adopted a set of monetary standards (guidelines) applicable to different types of employer operations (see Exhibit 3.2). In 1959 as part of the LMRDA, Congress prohibited the Board from refusing to apply or altering the monetary standards then in effect without congressional approval.

The standards measure the total dollar volume of an employer s operations (gross rev- enue) and the dollar value of products or services sold (outflow) or purchased (inflow) over a 12-month period (e.g., most recent calendar or business tax year or 12 months immedi- ately preceding the filing of a ULP charge or representation election petition). Meeting the specified dollar threshold using any one of the available measurements is sufficient to per- mit the NLRB to assert jurisdiction over the case and apply the terms of the LMRA.

Congress excluded some individuals from the definition of an employee subject to coverage under the LMRA, as amended. Specifically excluded by statutory language are as follows:

Agricultural laborers are employees whose primary duties involve ordinary farming operations performed prior to a product s readiness for initial sale.29 Some states (e.g., AZ, CA, HI, ID, KS, MA, WI) have enacted a collective bargaining law to cover agricultural laborers.

petition asking the NLRB to hold a representation elec- tion? In a 3 2 decision, the Board ruled that an employ- er s granting of a union s request for voluntary recognition as the exclusive bargaining representative of an employee group does not bar the filing of a rival union petition within 45 days of the date notice is

provided that voluntary employer recognition has been granted. The policy appears aimed at weakening the credibility of voluntary employer recognition based upon a showing of significant employee support for a rival union. Dana Corporation, 351 NLRB 434 (2007).

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Exhibit 3.2 NLRB Jurisdictional Standards Determining Employer Coverage under the LMRA

Nonretail Business Direct or indirect sales through others of goods to consu- mers in other states (called outflow) of at least $50,000 a year; or direct or indi- rect purchases through others of goods from suppliers in other states (called inflow) of at least $50,000 a year.

Retail Business At least $500,000 total annual volume of business.

Office Building Total annual revenue of $100,000, $25,000, or more of which is derived from organizations which meet any of the standards except the indi- rect outflow and indirect inflow standards for nonretail firms.

Public Utility At least $250,000 total annual volume of business, or $50,000 direct or indirect outflow or inflow.

Newspaper At least $200,000 total annual volume of business.

Radio, Telegraph, Television, and Telephone Firms At least $100,000 total annual volume of business.

Private Health Care Institutions (e.g., hospital, HMO, clinic, nursing home) At least $250,000 total annual volume of business for hospitals; at least $100,000 for nursing homes, visiting nurses associations, and related facilities; at least $250,000 for all other types of private health care institutions.

Hotel, Motel, Residential Apartment Houses At least $500,000 total annual volume of business.

Transportation Enterprises, Links, and Channels of Interstate Commerce (e.g., interstate bus, truck) At least $50,000 total annual income from furnish- ing interstate passenger and freight transportation services OR performing ser- vices valued at $50,000 or more for businesses which meet any of the jurisdictional standards except the indirect outflow and inflow standards estab- lished for nonretail firms. [NOTE: Airline and Railroad operations are covered under the Railway Labor Act (RLA), not the LMRA and thus are not subject to NLRB jurisdiction.]

Transit Systems At least $250,000 total annual volume of business.

Taxicab Companies At least $500,000 total annual volume of business.

Associations The annual business of each association member is totaled to determine whether any of the standards apply.

Private Universities and Colleges At least $1 million gross annual revenue from all sources (excluding contributions not available for operating expenses due to limitations imposed by the donor).

Any Firm with a Substantial Impact on National Defense.

U.S. Postal Service by enactment of the Postal Reorganization Act of 1970.

Symphony Orchestras At least $1 million gross annual revenue from all sources (excluding contributions not available for operating expenses due to limitations imposed by the donor).

Social Service Organizations Not Covered under Any Other Standard At least $250,000 gross annual revenue.

SOURCE: Office of the General Counsel, NLRB, A Guide to Basic Law and Procedures under the National Labor Relations Act (Washington, D.C.: U.S. Government Printing Office, 1997), pp. 33 35 at http://www.nlrb.gov/shared_files/brochures/basicguide.pdf.

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Individuals employed by an employer covered under the RLA (rail and airline industries). Individuals employed as a domestic by a private household (e.g., cook, nanny, butler, chauffeur, gardener, personal assistant). Individuals employed by a parent or spouse are excluded from coverage under the LMRA. On a case-by-case basis, other individuals may be excluded from a particular bargaining unit because evidence demonstrates their self-interests to be more closely aligned with that of ownership rather than other employees included in a bargaining unit. Individuals employed by a public-sector employer (federal, state, or local). Public- sector labor relations issues are discussed further in Chapter 13. U.S. Postal Service employees are the only exception to the public employee exclusion rule. As part of a settlement to end an illegal strike by postal workers, Congress enacted the Postal Reorganization Act of 1970, which placed postal workers under coverage of the LMRA, greatly expanding the number and types of issues over which workers could legally bargain. Unlike other private-sector employees covered by the LMRA, postal workers have no legal right to strike. However, if the negotiation process does not successfully produce a labor agreement they may invoke final and binding interest arbitration as a means of resolving the terms of the new contract. Interest arbitration will be discussed further in Chapter 9. Independent contractors are considered self-employed and thus are treated as an employer, not an employee under the LMRA. Thus, independent contractors cannot unionize. Merely calling someone an independent contractor is not sufficient evi- dence to establish their employment status. The Department of Labor has estab- lished some guidelines for whether someone is an independent contractor. In general, an independent contractor is an individual who offers a service for a fixed fee to provide a specified result. The wages of an independent contractor are at risk in the sense that any profit is dependent upon the contractor s ability to deliver the agreed-upon work product at a cost below the fixed fee agreed upon in advance. An independent contractor controls the manner in which work is performed and gen- erally furnishes his own training, tools, or other work materials. Supervisors were not originally excluded from coverage under the 1935 NLRA, but Congress added the exclusion as part of the LMRA (Taft Hartley) amendments in 1947. Section 2(11), LMRA defines a supervisor as any individual delegated man- agement authority to perform or effectively recommend one or more of the follow- ing functions affecting employees: to hire, transfer, suspend, lay off, recall, promote, discipline, discharge, adjust grievances, assign work, or reward employees so long as the exercise of such authority requires the use of independent judgment which is not merely routine or clerical in nature. 30 To be a supervisor the evidence must show that the individual (1) performs at least one of the specified supervisory functions, (2) has been delegated authority to perform such supervisory functions in the inter- ests of the employer (as opposed to performance as a routine part of the individual s professional responsibilities), and (3) exercises independent judgment when per- forming his or her supervisory duties (as opposed to merely carrying out the deci- sions of some other manager or applying established policies). The supervisory exclusion has since been extended to include any manager who participates in the formulation or execution of management policies and procedures so long as such activity involves the exercise of independent judgment or discretion.31

The mere fact that a professional employee (e.g., nurse, teacher, or engineer) exer- cises some independent judgment or discretion in performing their job duties does not

106 PART 1 Recognizing Rights and Responsibilities of Unions and Management

automatically exclude that individual from coverage under the LMRA. In Oakwood Healthcare Inc. (NLRB 2006), cited in the Labor Relations in Action section earlier in this chapter, the Board ruled that 12 permanent charge nurses met the definition of a supervisor, whereas 169 other registered nurses whom the employer had sought to exclude from a bargaining unit as supervisors were not supervisors even though on some occasions they were labeled as charge nurses by the employer.32

Concerted and Protected Employee Activity Concerted activity implies some action taken by or on behalf of two or more employees to express a complaint or grievance relating to conditions of employment under the employer s control, for example, work procedures, staffing levels, pay or benefits, safety conditions, hours of work, discipline or other matters affecting wages, hours, or other terms and conditions of employment. The LMRA does not protect complaints or grie- vances of a purely personal nature (i.e., of concern to a single employee). Nor does it protect concerns unrelated to employment, such as financial concerns an employee might have as owner of a firm s stock.

To be protected under the LMRA, the concerted activity must be for a protected purpose (described in Section 7 of the act) and engaged in using lawful means. For example, tactics used to form or join a union or engage in collective bargaining or other mutual aid or protection cannot involve violence, sabotage, or a disproportionate loss or disruption to the employer relative to the seriousness or importance of the employees complaint or grievance. On a case-by-case basis, the NLRB must decide if the act is taken on behalf of multiple employees and if so, is the act for a lawful purpose using lawful means?

Employees are not required to provide management with an opportunity to resolve a complaint or grievance prior to engaging in some form of concerted and protected activity to express a complaint or grievance.33 Nor are employees required to accept any management proposal for resolving a complaint or grievance even though manage- ment believes the proposed settlement terms are fair and appropriate. Although unrepre- sented (nonunion) employees covered under the LMRA have a right to engage in concerted and protected activity, they do not have a right to require their employer to engage in collective bargaining with them over a solution to the grievance dispute. The duty to bargain cannot be lawfully imposed until a labor organization has been legally certified as the exclusive bargaining representative of an employee group. The union rec- ognition (certification) step is discussed further in Chapter 5, and the duty to bargain in good faith is discussed in Chapter 6.

The Interboro doctrine represents an exception to the requirement that an employee be able to prove that he or she acted with or on the express authorization of one or more other employees in order to be considered engaged in concerted activity.34 A single bar- gaining unit member can be implied to be acting in concert with other bargaining unit members covered under the same contract terms whenever the individual acts alone to enforce a term or condition of a collective bargaining agreement. Even if an employee has not previously discussed the issue (e.g., safety concern, denial of pay, or promotion) with other employees or no other employee is present at the time when the employee expresses the grievance complaint to a member of management, no adverse action can be taken against the individual merely for expressing the grievance so long as the com- plaint concerned a term or condition of an existing collective bargaining agreement.

The exercise of Section 7 rights through concerted activities is not unlimited. For example, reasonable restrictions on the right to strike can occur based upon a strike s objective, its timing, or the conduct of the strikers. If a strike s purpose was to achieve

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a closed shop contract provision forcing the hiring of only union members, its purpose would be illegal; therefore, the strike would be illegal. If a strike occurs in violation of a no-strike provision in the contract, the timing of the strike is inappropriate, and all strik- ing employees may be disciplined. Further, strikers do not have the right to threaten or engage in acts of violence. Neither sit-down strikes nor refusals to leave a plant are pro- tected strike activities. Strikers also exceed their rights when they physically block per- sons from entering or exiting a struck plant or when threats of violence are directed against employees not on strike. Strike issues are further explained in Chapter 9.

NLRB Unfair Labor Practice Procedure The procedure for a ULP charge (Exhibit 3.3) starts when an employee, employer, labor union, or individual files a charge with an NLRB office within six months of the date the alleged violation occurred. The party filing the charge is termed the Charging Party and the party accused of committing the violation is termed the Respondent. Typically, a union files charges on behalf of one or more employees and the workers employer is named as Respondent. A refusal to bargain in good faith is typically the most common alleged employer ULP (accounting for about half of ULP cases) followed by alleged ille- gal discharge or other discrimination against employees (about 40 percent of cases). Of the ULP charges filed against unions, the two most common allegations were illegal restraint or coercion of employees (79 percent of cases in FY 2009).35

The General Counsel s office with the aid of the NLRB regional office staff will investigate the ULP charge to determine if sufficient evidence exists to believe a ULP vio- lation may have occurred. The investigation may involve interviews with potential wit- nesses, examination of documents, or other necessary steps. A ULP charge may be settled or withdrawn at any point in the ULP procedure prior to a final Board decision. If insufficient evidence to support the charge is found during the preliminary investiga- tion, the General Counsel will dismiss the ULP charge, and there is no further appeal of this decision. In cases alleging an unlawful boycott or strike, the NLRB must request a federal district court to issue a temporary restraining order while the case is investigated. The NLRB may seek a court injunction in other cases to limit the amount of damages a charging party might suffer if required to wait until a final ULP decision is reached. However, the Board has been reluctant to use this authority in most ULP cases.

If the General Counsel s investigation confirms the ULP charge has merit (i.e., there is sufficient evidence found to believe a ULP appears to have been committed), a reason- able effort will be made to get the Respondent to agree to a voluntary settlement of the charge. If no voluntary settlement is reached, a formal ULP complaint and notice to appear for a formal hearing before an Administrative Law Judge (ALJ) will be issued.

In a typical year, 20,000 25,000 ULP charges are filed (e.g., in FY 2014, there were 20,492 ULP charges); of these, 30 40% are typically found to have merit.36 Approximately 90 percent of ULP complaints issued involve alleged employer ULP. Of approximately 21,000 ULP cases closed in FY 2013, 34 percent were settled and closed before the issuance of an ALJ s decision, 35 percent were withdrawn voluntarily before a formal complaint was issued, and 28 percent were dismissed administratively by the General Counsel. The volun- tary settlement rate for ULP charges with merit has ranged between 91.5 and 99.5 percent each year over the past decade. The percentage of filed ULP charges that have been found to have merit has ranged from 32 to 40 percent since 1980.37

The ALJ presides over a formal ULP hearing conducted under federal court rules of evidence during which the General Counsel (representing the Charging Party) has the initial burden of proving by a preponderance of the evidence that a ULP was committed. The Respondent (typically an employer) would have an opportunity during the hearing

108 PART 1 Recognizing Rights and Responsibilities of Unions and Management

Exhibit 3.3 Unfair Labor Practice Procedure

SOURCE: National Labor Relations Board.

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to present evidence and arguments attempting to prove that no ULP violation occurred. Based upon the evidence presented at the hearing, the ALJ sends a written report to the Board containing findings of fact regarding the alleged ULP charge and recommenda- tions on an appropriate remedy for any ULP violations found to have occurred.

The Board has final agency authority to decide all ULP charges. The ALJ s written report is sent to all parties involved in the case as well as the Board. The Board rarely hears oral arguments or testimony from any of the parties in a ULP case and therefore places a great deal of importance on the ALJ s findings regarding key issues such as the credibility and demeanor of witnesses who testified during the hearing.

ULP cases can be classified into two broad categories or types: routine or lead cases. A routine ULP case involves charges that do not raise any new or novel issues of labor law and can be determined by application of existing relevant Board policies and legal principles. Such cases are typically decided by a three-member panel of Board members and comprise 80 to 90 percent of all Board decisions. What are we to make of the high percentage of routine cases? From one perspective, this is evidence that the Board s cur- rent remedial powers are not adequate to prevent typical discriminatory acts involving supposedly protected employee rights under the Act; employers are allegedly willing to break the law because the penalties under the NLRA are so weak. A second perspective posits that sometimes unions file frivolous charges (that are subsequently withdrawn) as a way to harass and distract managers during elections or times of collective bargaining. A third perspective is that the NLRB needs to do a better job of informing managers about the law so that managers do not commit ULPs out of ignorance. Finally, one can argue that this is consistent with the base rate: Most alleged violations of a labor law that has been on the books for approximately 80 years would be expected to deal with issues that have been addressed in previous cases.38

A lead ULP case involves a charge that either raises a new or novel labor law issue or presents the Board with an opportunity to initiate a new policy or significantly change an established policy interpreting the LMRA, as amended. Because of the precedent- setting nature of lead cases, a decision requires the participation of all Board members. The Board adopts the recommended decision and order of the ALJ in approximately 85 percent of ULP cases but has the authority to reject or alter the ALJ s recommendations in every ULP case.

Unfair Labor Practice Remedies Section 10 (c), LMRA grants the Board broad authority to fashion an appropriate rem- edy for ULP violations.39 At a minimum, the Board will issue a cease-and-desist order, instructing the Respondent to stop committing the ULP violations immediately and in the future. It is common for the Board to order a Respondent to post written notices at places where employees will see them to inform employees about the ULP violations that have occurred, the Respondent s pledge not to commit such violations in the future, and the basic rights of employees protected by Section 7 of the LMRA. The Board has recently added the requirement that ULP remedy notices also be posted electronically (e.g., e-mail, text message) where the Charging Party normally uses such communication channels to disseminate information to employees.40 Posted notices must remain on dis- play for a period of time ranging from six weeks to six months.

Additional remedies fall under the heading of affirmative action necessary to pro- vide a make-whole type remedy to individuals adversely affected by the occurrence of a ULP. The goal is to restore the workers situation to what it was prior to the ULP occur- ring. Depending upon the specific type of ULP committed, affirmative action could include one or more of the following types of actions: reinstatement, back pay,

110 PART 1 Recognizing Rights and Responsibilities of Unions and Management

promotion, restoration of seniority rights, or other benefits to which the individual should have been entitled had the ULP not occurred, expunging any reference to the ille- gal action from an individual s personnel file, an order to bargain in good faith, an order to reopen an illegally closed plant or return illegally relocated work, decertification or disestablishment of a union as the employees exclusive bargaining representative, or union repayment of illegally withheld or overcharged dues or fines.

The Board has no authority to award punitive damages in any case no matter how many separate or intentional ULP violations were committed by a Respondent. An employee alleging unlawful discharge is under an affirmative duty to seek comparable employment to mitigate the Respondent s potential back-pay liability while awaiting a final determination of the merit of the ULP charge. Although the Board can order a party to bargain in good faith, the Board has no authority to order either union or man- agement representatives to accept any specific change in a term or condition of employ- ment. The Board could rule that a current employment policy or practice is unlawful and cannot continue to be enforced but could not order the guilty party to change the policy or practice in a way to make it lawful.

Parties may appeal a Board ULP decision to an appropriate federal appeals court as shown in Exhibit 3.3. While the Board relies primarily on voluntary compliance by Respondents with its ordered remedies, when necessary the Board may also petition an appropriate federal appeals court for an order enforcing the Board s ULP decision. A ULP decision can be appealed to either (1) the District of Columbia Circuit Court of Appeals, which has jurisdiction over the headquarters of the Board; an appeals court having jurisdiction over the location where the ULP occurred; or (2) an appeals court having jurisdiction over the location of the appealing party s principal residence or busi- ness headquarters. If the appealing party is aware of a difference of opinion among the federal courts having jurisdiction in the ULP case, this provides an opportunity to engage in so-called forum shopping whereby the party would choose to file the appeal under the court s jurisdiction whose prior interpretations would likely be most favorable to the appealing party s position in the current case.

Upon review of the Board s ULP decision, a court of appeals may enforce the order as written, modify the decision, remand the case back to the Board for further con- sideration, or refuse to enforce the Board s decision. Approximately 50 percent of final ULP Board decisions (or approximately 1 percent of all ULP charges filed) are appealed annually to federal courts, making the NLRB one of the most active federal agencies involved in federal court litigation.

A federal court must enforce the Board s ULP decision if (1) the decision is a rea- sonable interpretation of congressional intent as expressed in the language of the LMRA, as amended and (2) the decision is supported by substantial evidence (facts and reason- ing) contained in the case record.41 It is the lack of substantial evidence in the case record to support the Board s decision which is cited most frequently when a court refuses to enforce all or part of a Board ULP decision. The courts were encouraged by Congress to pay deference to the Board s interpretations of the LMRA and to witness credibility determinations by an ALJ during the ULP hearing. On balance, the NLRB has a successful track record of having its decisions enforced by federal appeals courts. In FY 2012, U.S. courts of appeal decided 73 ULP cases, of which 85 percent of Board decisions were enforced entirely; 10 percent were enforced in part; 4 percent were remanded to the Board for further consideration; and 1 percent of Board ULP case decisions were denied enforcement.42

A court of appeals decision in a ULP case can be appealed for possible review by the U.S. Supreme Court (petition for certiorari). To be reviewed, four of the nine Supreme

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Court justices must agree to hear a case. Cases most likely to be accepted for review are those that raise a new or novel labor law question not previously addressed by the court or which raise an issue on which lower courts of appeal having rendered different inter- pretations, thus creating a so-called legal split among the courts of appeal. Agreeing to hear such a case on appeal would allow the Supreme Court to resolve the legal question and establish a binding precedent which lower courts and administrative agencies (e.g., NLRB) would have to follow in deciding future similar cases. The Supreme Court agrees to review less than 1 percent of all petitions for certiorari it receives.

Assessment of the LMRA, as amended, and NLRB Administration The LMRA and its administration have critics in the academic community. Professor James Gross, an authority on the LMRA, has stated: The current national labor policy favors and protects the powerful at the expense of the powerless. In the essential moral sense, therefore, the current national labor policy is a failure. 43 Professor Janice Bellace has suggested that most labor commentators find the current application of labor laws has actually discouraged unionism:

Current labor law tolerates long delays in getting to an election and in having the election results certified. Labor supporters will also point out that even when there is a union at a work place, labor law permits the threatened and actual replacement of strikers from the first day of the strike. They will decry this, particularly because rules on the labor contract do not maintain the status quo when the contract expires, thus enabling employers demanding concessions to take back in a flash those contract items gained by the union over the years. Finally, labor supporters deride a statute with remedies so weak they do not deserve the label remedy .44

Because the U.S. President appoints members of the Board, labor relations policy can be thought of like a pendulum, swinging somewhat toward management when a Republican President is in office and somewhat toward labor unions when a Democrat is in the oval office. For example, while admitting that the Bush Board favored employer interest in decisions, management attorney Kenneth Dolin viewed policy changes as returning the Board to the mainstream and correcting the excesses of the Clinton-era Board. More recently, some observers have claimed that there is a pro-labor tilt to the Board under the Obama administration.45 Other commentators express concern that such frequent policy interpretation shifts may eventually cause the courts to pay less def- erence to the Board s interpretation of the LMRA, viewing the opinions as more reflec- tive of changing economic and political climates than a consistent view of congressional intent in passing the law.46

The language of the LMRA has remained relatively unchanged by congressional action since 1959, even though the labor relations environment has undergone substan- tial change over the same time period. The labor force has become substantially more diverse with increased labor force participation by women, and racial and ethnic minori- ties. The economy has transformed from a manufacturing base to a service-information technology base, creating a truly global economy where products, information, and mon- etary resources are easily transported across national boundaries, expanding product/ser- vice markets and increasing competitive pressures on both employers and employees. Emphasis by Congress and the legal system on protecting individual employees right to equal treatment and the establishment of minimum employment standards has also deemphasized the role of collective bargaining as a means of providing employees a voice in determining employment interests.47

112 PART 1 Recognizing Rights and Responsibilities of Unions and Management

The lack of congressional action to address labor law reforms has been attributed to the fact that for many decades, both organized labor and especially employers have had enough support in Congress to block any significant amendment that either group strongly opposes. Enough support does not mean a majority; it means a minority that is big enough, well organized enough, and committed enough to tie up a bill through the arcane supermajority requirements of the Senate for example through filibuster or to sustain a presidential veto. 48

Labor union advocates would like to see several reforms of the LMRA enacted. Among desired reforms are the following:

Greater access by nonemployee union organizers to communicate with employees during organizing campaigns. Currently, employers can make anti-union speeches to employees, as long as they are paying them, while limiting access to union organi- zers. Labor advocates want to counter these so-called captive audience speeches (discussed further in Chapter 5). Stronger penalties for ULPs committed by employers against union supporters. For example, current Board policy states that if an employee has been unlawfully dis- charged for union activity, he or she is to be awarded back pay, minus any interim earnings from other jobs while unemployed (called an offset ); labor advocates want the policy changed so that employees get back pay without any reduction due to offsets. Union advocates have also sought unsuccessfully to eliminate management s right to permanently replace otherwise lawful economic strikers during a labor dispute.49

Some employer advocates seek changes also. Many favor an expansion of an employer s right to create work teams and have those teams deal with a wide range of employment issues involving work processes, compensation, productivity, safety, and other work rules. Currently, the LMRA contains Section 8(a)(2), which prohibits employer creation, domination, or interference with the operation of a labor organiza- tion. This prevents company unions, but some argue that it stifles nonunion employer attempts to create forums for improving productivity and employee involvement in work decisions.50 Employers also want to expand the application of so-called Beck rights; In the Beck case, the U.S. Supreme Court established the basic right of an employee not to be forced to pay for a union s political lobbying activities and to pay only for those regular charges associated with the duties of representing the bargaining unit. However, the specific procedures for implementing that right (e.g., opting in vs. opting out of political participation) are set by individual unions, who usually want plenty of funds available for lobbying purposes.51 Thus, employers argue that the procedure should be set by the government. Beck rights will be discussed further in Chapter 4.

The NLRB also has its critics among government officials. One area of concern over the years has been the amount of time required to complete ULP case decisions by the Board. Both ALJs and Board members share the responsibility for administrative delays which have occurred.52 The problem reached a crisis point in 1991 when the General Accounting Office (GAO) released a damaging report to Congress entitled Action Needed to Improve Case-Processing Time at Headquarters. This report revealed that between 1984 and 1989 only about 67 percent of the 5,000 cases appealed to the Board were decided within one year, and ten percent took 3 7 years.53 To its credit, the NLRB has worked to reduce the amount of time for ULP cases to be heard. In FY 2014, the NLRB processed almost 84 percent of cases within one year of charges being docketed and 72 percent were resolved within 120 days.54

A number of labor law reform proposals have been made over the past 50 years intended to correct perceived deficiencies in the current statutory language, alter Board

CHAPTER 3 Legal Influences 113

procedures, or affect the scope of employees covered by the statute. For example, under the Obama administration, the NLRB has pursued changes aimed at reducing the amount of time that elapses between (a) when a valid petition is filed, requesting a union certification election, and (b) when the representation election vote actually occurs.55 Among other suggested changes are the following: strengthening the remedies for ULPs; making greater use of administrative rule-making to reduce shifts in Board policies; permitting voluntary union authorization card signatures to be used to establish proof of employee majority support for union representation; and ensuring that first contract negotiations do result in a labor agreement either through voluntary bargaining, mediation, or if necessary, final and binding interest arbitration.56 New forms of employee representation along the lines of European works councils to involve employ- ees who are not union members in decisions affecting their work lives have also been advocated and a plan to establish a works council has been explored by the United Auto Workers and Volkswagen in Chattanooga, Tennessee.57 Whether some or any of these proposed reforms will actually become reality remains to be seen but history would suggest that the road to meaningful reform is difficult and slow.

Transportation-Related Labor Relations Law (Railway and Airlines)

Because of the vital role that railroads played in interstate commerce, and because of the violence that characterized both the Great Railroad Strike of 1877 and the Pullman Strike of 1894, courts have historically given the federal government great latitude in regulating labor management relations in this industry. Congress tried to prevent disruption to the economy from rail disputes, but early legislation (e.g., the Arbitration Act of 1888 which allowed for nonbinding arbitration) proved ineffective. After a series of strikes in the early 1920s, the major rail lines and their employees unions negotiated a draft law that Congress enacted as the RLA in 1926.

Even today, rail and air transportation labor relations are covered by the Railway Labor Act (RLA) of 1926. Enacted with bipartisan labor and management support to apply only to the railway industry, the RLA was actually the first comprehensive collec- tive bargaining law. In 1936, the RLA was amended to extend coverage to a new and developing transportation industry airlines. The railroad and airline industries have the highest union density level of any private-sector U.S. industries, approximately 84 and 60 percent respectively.58 Similar to other labor laws, the RLA did not develop over- night; it resulted from years of employee efforts to gain union recognition and engage in collective bargaining, often resulting in disruptions in normal rail transportation opera- tions.59 The primary goal of the RLA is the avoidance of disruption in transportation services by encouraging collective bargaining.

Under the RLA, if a union and employer are unable to resolve their differences over negotiating terms of a labor agreement (termed a major dispute under the RLA), the dispute is subject to mandatory mediation through the NMB. If mediation does not suc- ceed, the parties have the option of proceeding to final and binding interest arbitration. If either party declines to submit the dispute to arbitration, there is a 30-day status quo period invoked during which the president may appoint an emergency board to investi- gate the dispute and make recommendations on a settlement.

Since the enactment of the RLA, over 97 percent of the collective bargaining disputes mediated by the NMB have been resolved without a strike or other form of interruptions of commerce. Historically, about 85 percent of presidential-appointed

114 PART 1 Recognizing Rights and Responsibilities of Unions and Management

emergency boards (PEB) established have dealt with disputes in the railroad industry. In recent years, there has been a dramatic drop in both strikes and in the use of emer- gency boards. Only two airline strikes occurred between 2008 and 2012; the last rail- road strike occurred in 1994. The most recent PEB in the airline industry convened in 2002. In the five-year period from FY 2008 FY 2012, only two presidential emer- gency boards were established for railroad labor disputes. No PEBs were established in either industry in FY 2013.60

The National Railroad Adjustment Board (NRAB), a bipartisan group of 17 union and 17 management representatives, was established to assist in resolving grievances arising during the term of a labor agreement over the interpretation or application of the contract s terms (termed a minor dispute under the RLA). Where the board cannot agree to a settle- ment, the grievance may be settled by an arbitrator selected by the parties.61

In FY 2013, the parties brought 6,576 grievances before the NMB for arbitration; 35 representation cases were filed and 35 more were resolved.62 The NMB is empowered to conduct representation elections and to help resolve interest disputes that develop during negotiations between union and management representatives over what the terms and conditions of employment will be as stated by contract language. Under the RLA, labor agreements never expire but do become amenable for negotiation of proposed changes as of a specified date.

There are several differences between the RLA and the LMRA:

1. The RLA covers the railway and airline industries, whereas the LMRA covers most other private-sector employers engaged in interstate commerce.

2. Because railroad and airline workers were geographically dispersed, NMB ballots for union certification elections were mailed to employees homes (employees completed them and mailed them back); by contrast, voting was done in-person via secret bal- lot at NLRB-supervised election sites within factories or office complexes. In 2002, the NMB began using Telephone Electronic Voting (TEV) for representation elec- tions, and in 2007 it began using Internet Voting. The NMB believes the system is very secure and will save the agency substantial time and expense in conducting representation elections; in most elections, it no longer uses mailed ballots.

3. Historically, union representation under the RLA required a showing of support from the majority of all employees in the particular craft or class who were eligible to vote, whereas the NLRB required only support from the majority of employees who actually voted. The NMB rule had the effect of requiring a larger number of yes union votes to gain bargaining rights because the rule treated eligible voters

who did not to vote as if they had voted no. If there were 100 eligible voters and 68 cast a valid ballot, historically under the RLA a union would need 51 yes votes for a union to be certified as the exclusive bargaining representative for the 100 employees. Under the LMRA, if 68 workers voted, a union would require only 35 yes union votes to be certified.

In May, 2010, the NMB adopted the same certification election voting rule for the RLA as that used under the LMRA. The NMB members believe that the rule change will provide a more reliable measure of employees preference on the ques- tion of union representation. As with other democratic election procedures used in U.S. society, eligible voters who choose not to cast a ballot are presumed to have no preference regarding the outcome of the election but are still bound by the resulting majority vote of those eligible voters who do choose to express their preference by casting a valid ballot. One study concludes that the NMB s procedural change has not resulted in a significant increase in union victories in certification elections.63

CHAPTER 3 Legal Influences 115

4. A significantly higher percentage of employees in the railway and airline industries are organized by unions under the RLA compared to other private-sector employees covered under the LMRA. For example, approximately 85 percent of Class I (major railroad) employees are unionized and 60 percent of other railroad employees are unionized.64

5. Under the RLA, a union cannot strike and an employer cannot lock out until they have exhausted the impasse resolution procedures required by the NMB. Under the LMRA, the parties can engage in these self-help actions if (a) the dispute involves a mandatory subject of bargaining; (b) there is no current contract language barring the action; and (c) good-faith bargaining responsibilities have been met.

6. Under the RLA, arbitration of minor disputes (grievances) in the railway industry is mandatory, and the government pays the arbitrator s fee and expenses. Under the LMRA, grievance arbitration procedures are negotiated by the parties, and the par- ties pay for the arbitration (airline grievance arbitration is similar to arbitration under the LMRA).65

7. The LMRA, as amended, severely limits certain union activities, including feather- bedding (where minimum crew sizes that are mandated in the labor agreement far exceed those needed to do the work) and secondary strikes or boycotts where unions who have a dispute with one employer embroil a neutral, uninvolved employer in the dispute. The RLA does not contain the same limitations.

8. Both the LMRA and the RLA allow unions to negotiate union shop contract clauses, requiring new hires to join the union that represents them (or pay financial core sta- tus fees). However, the LMRA also allows states to prohibit union shops. The RLA does not give individual states the same leeway, and federal laws supersede state laws. Thus, if a railroad workers union negotiates a union shop clause under the RLA, and the railroad goes through a state with a law prohibiting union shops, then the contract clause remains in effect for those railroad workers, despite the state law.

Assessment of the RLA Faced with such problems as changing markets for freight transportation, severe compe- tition, increased merger activity, government regulation, and public interest in uninter- rupted rail and air service, labor relations in the railway and airline industries are somewhat unique. Complicating the situation further are the chronic financial instability of the numerous independent railroads; the presence of strong, competing craft unions; and tradition-bound work rules. These factors can affect labor relations in the following ways. First, because the public depends on rail transportation for many essential goods, much effort has been made to avoid strikes (including interventions by Congress). Sec- ond, due to different craft unions involved, the labor relations process takes much time and creates many opportunities for disputes. However, because of union mergers since 1970 there are now only 13 major freight-related rail unions. Finally, the tradition- bound work rules of the operating crafts strictly control not only how a particular job will be performed, but also which craft will be assigned the job. These work rules slow the introduction of new technology and magnify the problems of this industry.66

Any assessment of the RLA must be kept in proper perspective. There are thousands of labor agreements in the railroad and airline industries, with hundreds of agreements (mostly local) in negotiations during any given year. Further, any measure of the RLA s effectiveness must be made with reference to its objectives to promote free collective bargaining and pro- tect the public from interrupted flows of commerce which it has done effectively.

Regarding negotiations, mediation has been the most important method of interven- tion under the RLA; however, few nationwide railroad wage cases have been settled by

116 PART 1 Recognizing Rights and Responsibilities of Unions and Management

mediation since 1936. Its greatest success has been in settling minor controversies after the major issues have been resolved. This does not mean that mediation is unimportant minor disputes left unresolved could easily lead to major strikes in future negotiations.67

Deregulation Legislation in Railroads and Airlines Prior to 1978, the federal Civil Aeronautics Board tightly regulated which airlines could fly specific routes and it guaranteed a 12 percent return on flights that were 55 percent full. To insure that this threshold was met, competition was limited and airlines often had to wait years to add a new route. The Airline Deregulation Act of 1978 ended government con- trols of fares and routes, and the Motor Carrier Act of 1980 reduced the amount of eco- nomic regulation of the industry by the Interstate Commerce Commission. The Staggers Rail Act of 1980 gave railroads more flexibility in setting rates and service levels.68 Concerns that deregulation might result in only a relatively few large carriers, thereby reducing competition within the industry, initially proved unfounded. Prior to 1978, ten major air carriers controlled 90 percent of the market. Airline deregulation prompted the introduc- tion of 128 nonunion carriers, but by 1987 only 37 had survived. This was not unexpected: There is a high failure rate for start-ups in almost every industry.

Since the 1980s, there has been increased merger activity by the major airlines. This accelerated in the last ten years, to the point that now four major airlines control 85 per- cent of the market, prompting some to call for government intervention to prevent regional monopolies. Other developments include ticketing agreements between major carriers and regional and commuter airlines, hub-and-spoke airports, and frequent flier programs to promote airline customer loyalty.69 Deregulation also initially encour- aged price competition, with 90 percent of passengers traveling at discount prices aver- aging 60 percent below the coach price; however, airlines have attempted to make up lost revenue with ancillary fees. During the same time, accident rates have not increased, and service to many small communities has not deteriorated; however, there have been increased congestion at airports and in the airways, delays in departures and arrivals, price fluctuations due to volatile jet fuel prices, and a general decline in the quality of air service.70 Profitability in both the railroad and airline industry has been reduced by the slow pace of economic recovery, although large (Class 1) railroad operators appear to be making a faster recovery than most major airlines.

Most airlines have adopted a variety of cost cutting strategies, including significant employee layoffs, postponement or cancelation of equipment orders, reduced flight sche- dules, and negotiated economic concessions from employees. This has led to increasing ten- sions and employee complaints at many carriers.71 A study by the GAO reported that since airline industry deregulation in 1978, the average length of time to negotiate new contracts has increased, the number of strikes has declined, but the frequency of nonstrike work actions (e.g., employees all calling in sick on the same day) have increased.72

Promising Developments Regarding the RLA Despite problems, several events and developments provide the basis for some optimism:

Recent negotiations in railroads have been characterized by greater union management cooperation, resulting in fewer conflicts and outside interventions. Emergency board procedures have been drastically improved, and the ritualism and legalism so prevalent in the 1960s have been reduced. Encouraging progress has been made on some long-standing manning and workrule issues, such as combined road and yard service, and eliminating contract

CHAPTER 3 Legal Influences 117

requirements that firemen (whose job originally involved shoveling coal into the fire box on steam engines) also work on diesel trains. New leadership has had a positive influence on both management and unions, and neutrals and government officials have provided capable assistance in the bargaining and dispute-resolution processes. With railroad industry consolidation, major Class I freight carriers have formed the National Railway Labor Conference. This group now negotiates national contracts with representatives of groups of unions, setting minimum wage and benefits. These are supplemented by company contracts addressing specific working conditions and other issues.

Critical issues remain to be resolved, including secondary picketing, bargaining sta- lemates, restrictive work rules in some agreements, crew size disputes (e.g., some carriers are seeking one-person rail crews), and the use of bankruptcy law to force labor cost concessions from employees, including the abandonment of traditional defined pension benefit plans.73

On balance, even in a deregulated environment, the RLA appears to have accom- plished its primary goal of facilitating cooperative labor relations in the airline and rail- road industries and avoidance of significant service disruptions. Whereas both labor and management might create their own wish list of labor law reforms, as a joint airline labor management committee concluded the potential for disruption far outweighs the marginal gain that any legislative refinements might provide. 74

Additional Laws That Affect Labor Relations Other statutes and executive orders, more narrow in scope, influence labor relations either directly or indirectly. The following section highlights only their major provisions; however, practitioners find that detailed knowledge of them is essential to most business operations. (Related legislation is summarized here, but its specific implications for labor relations activities and unions are discussed in the appropriate chapters.)

Employee Retirement Income Security Act of 1974 The Employee Retirement Income Security Act (ERISA) establishes minimum stan- dards for the operation of voluntarily established private-sector defined benefit pension (which specifies a retiree s benefit levels) and health benefit plans (covered further in Chapter 7). Standards define plan participation, vesting rights, benefit accrual and funding, fiduciary responsibilities of plan administrators, and guaranteed payments of benefits accrued under a defined benefit plan through a federally chartered corporation called the Pension Benefit Guaranty Corporation (PBGC), should the private plan be terminated. There are approximately 40 million U.S. employees currently enrolled in more than 26,000 defined benefit plans. There is a maximum monthly pension benefit adjusted by law each year, which the PBGC is allowed to pay to a beneficiary. This means that some private-sector employees covered under a generous defined benefit plan (e.g., airline pilots) may lose some portion of their expected benefits if their private employer-sponsored plan is terminated and their benefits are determined by the PBGC s mandated benefit cap. The PBGC is currently responsible for paying the pension benefits of 887,000 retirees previously covered under 4,500 terminated private- sector-defined benefit plans.75 The PBGC receives its funding from insurance premiums paid by employers whose plans are covered, investment revenues, and the remaining assets of pension plans, which are terminated and taken over by the PBGC.

118 PART 1 Recognizing Rights and Responsibilities of Unions and Management

The Americans with Disabilities Act of 1990 The Americans with Disabilities Act (ADA) of 1990, which covers an estimated 40 mil- lion disabled Americans, went into effect in January 1992. Considered a Bill of Rights for Americans with a wide variety of disabilities, the act applies to employment, public accommodations, transportation, and telecommunications. The employment provisions cover virtually every aspect of the employment process. The act prohibits discrimination in advancement, discharge, compensation, training, and other terms and conditions of employment which are usually included in collective bargaining agreements. The act requires employers to make reasonable accommodations for disabled employees, except when doing so would subject the employer to undue hardship. This subject will be addressed more fully in Chapter 8.

Bankruptcy Act The Bankruptcy Act of 1984 includes standards for the rejection of collective bargaining agreements by companies seeking to alter terms of a current labor agreement. It requires companies to provide relevant information to unions and engage in good-faith efforts to reach an agreement, which could avoid the necessity to declare bankruptcy. In cases where no agreement can be reached, the act specifies the requirements for terminating or altering provisions of an existing labor agreement. (See Chapter 6 for more details.) Most importantly, a business cannot use bankruptcy to easily change from union to nonunion status.

Worker Adjustment and Retraining Notification Act In response to negative public opinion triggered by major plant closings without any advance notice to employees or community leaders, the Worker Adjustment and Retrain- ing Notification Act (WARN) was passed in 1988. WARN requires employers with 100 or more employees to give 60 days advance notice to employees (excluding those employed less than 20 hours per week) who will be affected by a plant closing or major layoff. Also, the union, the chief elected local government official, and the state government must be notified. The law permits a union and employer to negotiate language in their collective bar- gaining agreement that could require more than 60 days of advance notice be provided.

Situations where WARN Act notice requirements would apply include the following:

A plant closing resulting in an employment loss for 50 or more workers at one site within a 30-day period. A mass layoff of at least 33 percent of the workforce (minimum of 50 employees) within any 30-day period. A mass layoff involving at least 500 employees within any 30-day period (even if this is less than 33 percent of the workforce).

Remedies available to affected employees for employer violations include back pay and benefits for up to 60 days and payments (maximum of $500 per day) to local com- munities for a period of up to 60 days. One criticism of the statute is that no government agency will file a lawsuit on behalf of the workers if a violation occurs. The WARN Act requires the injured party to bear the economic cost of initiating enforcement action by hiring their own attorney and filing a lawsuit in a federal district court.

WARN ties in closely with the workforce innovation and opportunity Act of 1998, as amended, which provides funds to state and local governments for training and retraining. In cases of plant closing and mass layoff, state rapid response teams are available to work with labor and management officials to set up retraining and reemployment programs for the affected workers.

CHAPTER 3 Legal Influences 119

Racketeer Influenced and Corrupt Organizations Act of 1970 The Racketeer Influenced and Corrupt Organizations Act (RICO), part of the Orga- nized Crime Control Act of 1970, forbids anyone involved in racketeering from investing in or controlling through racketeering activity any enterprise (business or labor union) engaged in interstate commerce. The law provides for penalties of up to $25,000, 20 years of imprisonment, and forfeiture of all relevant property. A person found guilty of a RICO violation may be required to divest himself of all interests in the organization and may be restricted from any future activities in that or a related organization. In addi- tion, any persons who suffered damages from the prohibited activities are entitled to recover triple the amount of damages.

Employment Discrimination Laws and Executive Orders Title VII of the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991 prohibits any form of employment discrimination by companies, labor unions, and employment agencies on the basis of race, color, religion, sex, or national origin. The Equal Employment Opportunity Commission is a federal administrative agency created to enforce the statute through investigating complaints, attempts at conciliation, and law suits filed on behalf of the complainant.

The Age Discrimination in Employment Act of 1967, as amended in 1978, 1984, and 1986, prohibits employment discrimination against those over the age of 40; permits compulsory retirement for executives who are entitled to pensions of $44,000 per year or more; and authorizes jury trials in covered cases.

The Equal Pay Act of 1963 requires that men and women doing the same work receive the same rate of pay. However, pay differences are allowed based upon differ- ences in qualifications, seniority, and quality of job performance.

The Lilly Ledbetter Fair Pay Act of 2009 (FPA) is an amendment to Title VII of the 1964 Civil Rights Act and also applies to claims arising under the Age Discrimina- tion in Employment Act of 1967 and the Americans with Disabilities Act of 1990.76

Passed by Congress in response to a U.S. Supreme Court decision limiting the amount of time a victim had to bring a legal claim for alleged pay discrimination, the FPA states that each incidence of pay discrimination starts anew the time limit for filing a valid claim under the applicable statute. Thus, if an employer illegally discriminated against, say, women employees by giving them lower pay, and the employer paid them monthly, then each new paycheck would reset the clock for the 180-day statute of limitations for filing a discrimination claim.

Executive Order 11246, as amended by Executive Order 11375, prohibits employ- ment discrimination in the federal government and by federal government contractors and subcontractors receiving $50,000 or more. Those having contracts of $50,000 or more and employing 50 people or more are required to establish affirmative action plans that prescribe specific goals and procedures for increasing the percentage of minor- ity employees. Firms that fail to comply could lose part or all of their contracts.

The Vocational Rehabilitation Act of 1973 (Section 503) requires holders of federal government contracts in excess of $2,500 to take affirmative action to employ and advance in employment qualified physically and mentally disabled individuals. Further, if any disabled individual believes that a federal contractor has failed or refused to comply with the act, he or she may file a complaint with the Department of Labor, which will investigate the complaint and take any warranted action. In addition, Section 504 extends coverage to organizations receiving federal financial assistance and is enforced by the Department of Health and Human Services.

120 PART 1 Recognizing Rights and Responsibilities of Unions and Management

Other Related Labor Relations Laws The Uniformed Services Employment and Reemployment Rights Act (USERRA) of 1994 clarifies and extends the Veterans Reemployment Rights Act of 1940 to protect the job rights of individuals called to perform military service on behalf of the United States. Also, the Vietnam Era Veteran Readjustment Assistance Act requires employers with government contracts of $10,000 or more to take affirmative action to employ and advance disabled veterans and qualified veterans of the Vietnam War.

The Social Security Act of 1935, as amended, established two national systems of social security for protection against loss of income resulting from unemployment, old age, disability, and death: (1) retirement, survivors, and disability insurance, and health insurance for persons over age 65; and (2) unemployment insurance, which operates under a state-administered, federal-state plan whose operating costs are paid by the fed- eral government. The Fair Labor Standards Act of 1938 administered by the USDOL covers a variety of employment issues including minimum wage and overtime pay requirements, child labor, and migrant and seasonal agricultural worker protections.

Other important laws include state wage laws, the federal Occupational Safety and Health Act of 1970 designed to promote workplace safety and prevent injuries (covered in Chapter 8), the Family and Medical Leave Act of 1993 that allows workers to take unpaid leave for the birth or adoption of children or for family medical reasons (covered in Chapter 7). There are also state laws and local ordinances that pertain to public-sector labor relations and equal employment opportunity.

Summary This chapter has presented the major provisions of fed- eral labor relations laws in the United States. These legal influences must be understood to fully appreciate the remaining chapters in this book because nearly all issues in labor relations are either directly or indirectly influenced by labor law. The legal question of whether one has a right to act is separate and distinct from the practical question of whether it is in one s best interest to exercise such a right under the prevailing circum- stances. Union and management practitioners should give consideration to the legal and practical costs, ben- efits, and risks of actions in making operational decisions.

Although many think of law in terms of statutes passed by the U.S. Congress or state legislatures, labor relations, and other types of law proceed not only from statutes but also from the U.S. Constitution, judicial decisions, and administrative decisions of government agencies. Similarly, case law and administrative law develop at the state and local government levels.

The 1930s, a decade during which the country confronted a severe economic depression, brought about major labor law changes. The enactment of the Norris La Guardia Act removed many legal

restrictions on the types of employee concerted activity that could be used to peacefully pressure employers to grant favorable employment improvements. Federal courts began to take a more neutral stance in labor disputes attempting to balance the legitimate exercise of employee and employer rights.

Congress passed the NLRA in 1935, which covered most private-sector employees, to control employer ULPs. It established the NLRB to enforce the right of employees to form and join unions, bargain collec- tively, and engage in other concerted activities for mutual aid or protection. Then, in 1947 and again in 1959, Congress amended the NLRA with passage of the LMRA and the Labor Management Reporting and Dis- closure (Landrum Griffin) Act, respectively. The LMRA s amendments added union ULPs and restric- tions on union security clauses. The LMRDA added regulations governing the internal operations of unions and restrictions on secondary strike, picketing, and boycott activities.

Starting in 1863, union activity in the railroad industry played a key role in the legislative arena. The RLA of 1926, whose major purpose is to provide for stable and effective labor relations without major

CHAPTER 3 Legal Influences 121

interruptions in commerce, established procedures for resolving labor disputes and created the NMB and NRAB to accomplish the act s purposes. The airline industry was added to coverage under the RLA in 1936.

While the legal rights of employers and employees to pursue their respective interests in a free enterprise system will inevitably create certain conflicts and stress, on balance the legal environment has provided

reasonable stability in U.S. labor relations, encouraging economic growth. The acceptance of collective bargain- ing, widespread use of no-strike or lockout clauses, final and binding arbitration of rights disputes, improved employer union cooperation on important issues, and infrequent need to use national emergency dispute procedures provide support for progress in protecting the legitimate rights of both employers and employees.

Key Terms Preemption doctrine, p. 92 National Labor Relations Board

(NLRB), p. 92 Labor Management Reporting and

Disclosure (Landrum Griffin) Act, p. 92

Federal Mediation and Conciliation Service (FMCS), p. 92

U.S. Department of Labor (USDOL), p. 92

National Railroad Adjustment Board (NRAB), p. 92

National Mediation Board (NMB), p. 92

Norris La Guardia Act, p. 93 closed shop union security clause, p. 96 National Labor Relations Act (NLRA),

p. 96 Labor Management Relations Act

(LMRA), p. 96 Union shop union security clause, p. 97 Agency shop union security clause, p. 97 right-to-work law, p. 97 The Board, p. 99 union salts, p. 101 Weingarten Rights, p. 103

NLRB jurisdiction, p. 104 Postal Reorganization Act of 1970,

p. 106 concerted and protected activity, p. 107 Interboro doctrine, p. 107 Charging Party, p. 108 Respondent, p. 108 merit, p. 108 Administrative Law Judge (ALJ), p. 108 routine ULP case, p. 110 lead ULP case, p. 110 cease-and-desist order, p. 110 post written notices, p. 110 affirmative action, p. 110 forum shopping, p. 111 petition for certiorari, p. 111 Railway Labor Act (RLA) of 1926,

p. 114 major dispute under the RLA, p. 114 minor dispute under the RLA, p. 115 Employee Retirement Income Security

Act (ERISA), p. 118 Pension Benefit Guaranty Corporation

(PBGC), p. 118 Americans with Disabilities Act

(ADA), p. 119

Bankruptcy Act of 1984, p. 119 Worker Adjustment and Retraining

Notification Act (WARN), p. 119 Racketeer Influenced and Corrupt

Organizations Act (RICO), p. 120 Civil Rights Act of 1964, p. 120 Civil Rights Act of 1991, p. 120 Age Discrimination in Employment

Act of 1967, p. 120 Equal Pay Act of 1963, p. 120 Lilly Ledbetter Fair Pay Act of 2009

(FPA), p. 120 Executive Order 11246, p. 120 Executive Order 11375, p. 120 Vocational Rehabilitation Act of 1973,

p. 120 Uniformed Services Employment and

Reemployment Rights Act (USERRA) of 1994, p. 121

Social Security Act of 1935, p. 121 Fair Labor Standards Act of 1938,

p. 121 Occupational Safety and Health Act of

1970, p. 121 Family and Medical Leave Act of 1993,

p. 121

Discussion Questions

1. Some union advocates have suggested that NLRB certification procedures are so cumbersome that unions would be better off if the LMRA was repealed. If labor laws discussed in this chapter were repealed, how might this affect (a) the for- mation of unions and (b) the terms and condi- tions of employment for employees? Discuss.

2. How were yellow-dog contracts and labor injunctions used to limit the activities of union organizers or slow union growth?

3. What was the intent or purpose of Congress in passing (a) the 1932 Norris La Guardia Act, (b) the 1935 National Labor Relations (Wagner) Act, (c) the 1947 Labor Management Relations

122 PART 1 Recognizing Rights and Responsibilities of Unions and Management

(Taft Hartley) Act, and (d) the Landrum Griffin Act of 1959?

4. Although the National Labor Relations Act gives employees certain rights, these rights are not unlimited. Discuss.

5. Is the selection process for determining members of the National Labor Relations Board too politi- cized? Does the current selection process lead to instability in interpretations of the LMRA and if so, is this a positive or negative for employers and employees covered by the law?

6. Why is there still a separate labor relations law for the railway and airline industries?

7. Should the LMRA be amended to cover agricul- tural laborers?

8. Should the NLRB s current jurisdictional stan- dards (i.e., monetary threshold for affecting interstate commerce) be adjusted to take into account the effects of inflation (which would have the effect of removing employees currently cov- ered by the law under existing jurisdictional standards)?

Exploring the Web

Labor Relations and the Law

1. Case Law. Find a recent Supreme Court or U.S. Court of Appeals decision concerning a labor law issue. What legal principles does the court rely upon in determining the case decision? Suggestions for searching: Cornell University s Law School offers the Supreme Court Collection through their Legal Information Institute. Findlaw Legal Information Center is a good commercial site. You may also use electronic databases offered by your university s library, for example, LexisNexis or Westlaw.

2. National Labor Relations Board. Go to the Web site for the National Labor Relations Board at http://www.nlrb.gov/ to see the NLRB s current organization, rules and regulations, decisions, and man- uals. Read the section that describes the National Labor Relations Act. Included also on the site are press

releases, public notices, and a weekly summary of cur- rent events. Who is the current chairman of the NLRB? What are three current activities of the NLRB and/or three recently decided cases?

3. U.S. Code. When legislation becomes law, it is incorporated into the U.S. Code in the appropriate sections. Identify sections of the Code affected by these acts related to labor relations: Railway Labor Act, Norris La Guardia Act, LMRA (Taft Hartley), and Labor Management Reporting and Disclosure Act (Landrum Griffin). Searching hints: Search by Popular Names of Acts in Cornell University s Law School U.S. Code Collection or the U.S. Code search provided by the U.S. House of Representatives. You may also use electronic databases offered by your university s library, for example, LexisNexis or Westlaw.

References 1. Muslim employee claims Disneyland banned her

from wearing head scarf in front of customers, Fox News [Online], August 18, 2010, at http:// www.foxnews.com/us/2010/08/18/muslim- employee-claims-disneyland-banned-wearing- head-scarf-customers/; Gilliam Flaccus, Muslim Employee: Disney Banned Her Head Scarf, FindLaw Legal News, August 19, 2010, pp. 1 2 at http://news.findlaw.com/; Deanne Katz, Disney- land Banned Muslim Woman s Head Scarf: Law- suit FindLaw Legal News Blog, August 15, 2012, pp. 1 2 at http://blogs.findlaw.com/injured/2012/

08/disneyland-banned-muslim-womans-head- scarf-lawsuit.html.

2. Walter E. Oberer, Kurt L. Hanslowe, and Timothy J. Heinsz, Labor Law: Collective Bargaining in a Free Society, 4th ed. (St. Paul, MN: West Publishing Co., 1994), pp. 358 359.

3. 47 Stat. 70 (1932). 4. A labor dispute was defined as any controversy

concerning terms or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or

CHAPTER 3 Legal Influences 123

conditions of employment regardless of whether the disputants stand in the proximate relation of employer and employee. 47 Stat. 70 (1932).

5. United States v. Hutcheson, 312 U.S. 219 (1941). 6. Ibid. 7. Irving Bernstein, Turbulent Years: A History of

the American Worker, 1933 1941 (Boston: Houghton Mifflin, 1971), pp. 1 36. See also Bruce Nelson, Give Us Roosevelt: Workers and the New Deal Coalition, History Today, 40(1), 1990, pp. 40 48. Janet Irons, Testing the New Deal: The General Textile Strike of 1934 in the American South (Urbana: University of Illinois Press, 2000). John A. Salmond, The General Textile Strike of 1934: From Maine to Alabama (Columbia, MO: University of Missouri Press, 2002).

8. Alvin L. Goldman, The Supreme Court and Labor-Management Relations Law (Lexington, MA: D.C. Heath, 1976), pp. 22 28; Herbert L. Sherman, Jr., and William P. Murphy, Unioniza- tion and Collective Bargaining (Washington, D.C.: Bureau of National Affairs, Inc., 1975), pp. 7 9.

9. Schecter Poultry Corporation v. United States, 295 U.S. 495 (1935).

10. National Labor Relations Act, 49 Stat. 449 (1935). 11. Janice R. Bellace, The Future of Employee

Representation in America: Enabling Freedom of Association in the Workplace in Changing Times through Statutory Reform, University of Penn- sylvania Journal of Labor & Employment Law,5, Fall 2002, p. 5 at http://web.lexis-nexis.com. See also Bruce E. Kaufman and David Lewin, Is the NLRA Still Relevant to Today s Economy and Workplace? Labor Law Journal, 49, September 1998, pp. 1113 1126.

12. Goldman, The Supreme Court, pp. 28 31. 13. NLRB v. Jones & Laughlin Steel Corporation, 301

U.S. 1 (1937). 14. Bernstein, Turbulent Years, pp. 769 771. 15. Labor Management Relations Act, 61 Stat. 136

(1947). 16. NLRB v. Virginia Electric & Power Company, 314

U.S. 469 (1941). 17. Goldman, The Supreme Court, pp. 31 39. 18. Labor Management Reporting and Disclosure Act,

73 Stat. 519 (1959). 19. Fact Sheet on the National Labor Relations Board

(Washington, D.C.: NLRB Division of Informa- tion, 2010), pp. 1 2.

20. William N. Cooke and Frederick H. Gautschi III, Political Bias in NLRB Unfair Labor Practice

Decisions, Industrial and Labor Relations Review, 35, July 1982, p. 549.

21. William N. Cooke, Aneil K. Mishra, Gretchen M. Spreitzer, and Mary Tschirhart, The Determi- nants of NLRB Decision-Making Revisited, Industrial and Labor Relations Review, 48, Janu- ary 1995, pp. 254 256.

22. See, for example, the discussion of Board policy changes comparing the Clinton Board with the Bush II Board in Catherine L. Fisk and Deborah C. Malamud, Thirty-Ninth Annual Administra- tive Law Issue: Administrative Law Under the George W. Bush Administration: Looking Back and Looking Forward: Article: The NLRB in Administrative Law Exile: Problems with Its Structure and Function and Suggestions for Reform, Duke Law Journal, 58, May 2009, pp. 2013 2085.

23. Professor/Arbitrator Calls NLRA Pretty Sick, Recommends Fixes, Collective Bargaining Bulletin, 14, July 2, 2009, p. 83.

24. Howard S. Lavin and Elizabeth E. DiMichele, Circuits Split on Whether Two-Member NLRB

Decisions Are Binding, Employee Relations Law Journal, 35(3), 2009, pp. 82 87; New Process Steel, L.P. v. National Labor Relations Board, 130 S. Ct. 2635 (2010).

25. Amanda Becker, U.S. Supreme Court ruling seen unlikely to alter past NLRB decisions, Chicago Tribune [online edition], June 26, 2014, at http:// articles.chicagotribune.com/2014-06-26/news/ sns-rt-us-usa-courts-appointments-nlrb- 20140626_1_noel-canning-nlrb-national-labor- relations-board; Pamela C. Corley, Recess Appointments: National Labor Relations Board v. Noel Canning. Justice System Journal, 35(4), 2014, pp. 410 412.

26. Office of the General Counsel of the National Labor Relations Board, Summary of Operations, 2012, pp. 2 5 at http://www.nlrb.gov/reports- guidance/reports/summary-operations; NLRB Board Decisions Issued, at http://www.nlrb.gov/ news-outreach/graphs-data/decisions/board- decisions-issued.

27. Ibid., Office of General Counsel, pp. 4 5. 28. Bruce S. Feldacker, Labor Guide to Labor Law,

4th ed. (Upper Saddle River, NJ: Prentice-Hall, 2000), pp. 12 14.

124 PART 1 Recognizing Rights and Responsibilities of Unions and Management

29. Holly Farms Corporation v. NLRB, 116 S.Ct. 1396 (1996).

30. Section 2(11), LMRA 61 Stat. 136 (1947). See also NLRB v. Kentucky River Community Care, Inc., 532 U.S. 706 (2001).

31. NLRB v. Bell Aerospace Company, 416 U.S. 267 (1974).

32. Oakwood Healthcare Inc. and United Automobile Workers International Union, 348 NLRB No. 37 (2006).

33. NLRB v. City Disposal Systems, Inc., 465 U.S. 822 (1984); NLRB v. Washington Aluminum Com- pany, 370 U.S. 9 (1962).

34. NLRB v. City Disposal Systems, Inc., 465 U.S. 822 (1984).

35. Seventy-Fourth Annual Report of the National Labor Relations Board for the Fiscal Year Ended September 30, 2009 (Washington, D.C.: U.S. Government Printing Office, 2009), pp. 4 5.

36. National Labor Relations Board, Performance and Accountability Report, FY 2014, at http://www. nlrb.gov/reports-guidance/reports/performance- and-accountability.

37. Office of the General Counsel of the National Labor Relations Board, Summary of Operations, 2012, pp. 4 5; also see, National Labor Relations Board, Disposition of Unfair Labor Practice Charges, at http://www.nlrb.gov/news-outreach/ graphs-data/charges-and-complaints/disposition- unfair-labor-practice-charges.

38. Leonard R. Page, The NLRA at 70: Perspectives from the Office of the General Counsel, Labor Law Journal, 56(3), 2005, pp. 188 189; Fredrick L. Feinstein, The NLRA at 70: Perspectives from the Office of the General Counsel, Labor Law Journal, 56(3), 2005, pp. 192 195; Risa L. Lieberwitz, Labor Law in the United States: The Continuing Need for Reform, Managerial Law, 46(4/5), 2004, pp. 53 70.

39. H.K. Porter Company v. NLRB, 397 U.S. 99 (1970). See also BE & K Construction Company v. NLRB, 536 U.S. 516 (2002) and Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002).

40. Lawrence E. Dube, NLRB Rules 3 1 for Elec- tronic Posting of Notices to Remedy Unfair Labor Practice, Daily Labor Report, No. 205, October 25, 2010, pp. AA2 3.

41. Ford Motor Company v. NLRB, 441 U.S. 488 (1979); Charles D. Bonanno Linen Service v. NLRB, 454 U.S. 404 (1982).

42. Office of the General Counsel of the National Labor Relations Board, Summary of Operations, 2012, January 11, 2013, p. 6 at http://www.nlrb. gov/reports-guidance/reports/summary- operations.

43. James A. Gross, The Demise of the National Labor Policy: A Question of Social Justice, in Restoring the Promise of American Labor Law, ed. Sheldon Friedman et al. (Ithaca, NY: ILR Press, 1994), pp. 57 58.

44. Janice R. Bellace, Labor Law Reform for the Post Industrial Workplace, Labor Law Journal, 45, August 1994, p. 460.

45. Kenneth R. Dolin, Analyzing Recent Devel- opments at the National Labor Relations Board, Labor Law Journal, 56(2), 2005, pp. 120 138; James Gray Pope, Class Conflicts of Law II: Solidarity, Entrepreneurship, and the Deep Agenda of the Obama NLRB, Buffalo Law Review, 57, 2009, p. 653; Anonymous, Employers beware: Senate has confirmed pro-labor majority to NLRB, Management Report for Nonunion Organizations, 36(9), 2013, p. 1

46. Bush Labor Board Decisions: Pendulum Shift or Permanent Changes? Labor Law Journal, 56(3), 2005, p. 222.

47. James J. Brudney, The Changing Workplace: Reflections on Group Action and the Law of the Workplace, Texas Law Review, 74, June 1996, pp. 1563 1599.

48. Cynthia L. Estlund, The Ossification of American Labor Law, Columbia Law Review, 102, October 2002, p. 1540.

49. Estlund, The Ossification of American Labor Law, pp. 1536 1158. See also William B. Gould, Agenda for Reform: The Future of Employment Relationships and the Law (Cambridge, MA: MIT Press, 1993) and Paul C. Weiler, Governing the Workplace: The Future of Labor and Employment Law (Cambridge, MA: Harvard University Press, 1990).

50. Michael C. Harper, The Continuing Relevance of Section 8(a)(2) to the Contemporary Workplace, Michigan Law Review, 96(8), 1998, pp. 2322 2383.

51. Jeff Canfield, Note: What a Shame: The Broken Beck Rights System in the Real World Workplace, Wayne Law Review, 47, Fall 2001, 1049 1074; Peter Capelli, Old Laws Hobble the

CHAPTER 3 Legal Influences 125

New Economy Workplace, Sloan Management Review, 42(2), 2001, pp. 110 111.

52. Samuel Estreicher and Matthew T. Bodie, Review Essay: Administrative Delay at the NLRB: Some Modest Proposals, Journal of Labor Research, 23(1), 2002, pp. 87 105. See also Edward B. Miller, An Administrative Appraisal of the NLRB, 4th ed. (Fairfax, VA: John M. Olin Institute for Employment Practice and Policy at George Mason University, 1999).

53. U.S. General Accounting Office, National Labor Relations Board: Action Needed to Improve Case Processing Time at Headquarters (Washington, D.C.: Superintendent of Documents, 1991), pp. 1 7.

54. National Labor Relations Board, Performance and Accountability Report, FY 2014, pp. 46 47, at http://www.nlrb.gov/reports-guidance/reports/ performance-and-accountability.

55. Samuel Estreicher, Improving the Administra- tion of the National Labor Relations Act without Statutory Change, ABA Journal of Labor and Employment Law, 25(1), 2009, pp. 1 24; Melanie Trottman & Kris Maher. Plan to Ease Way for Unions Labor Board Proposes Speeding Up Organizing Votes; Employers, GOP Cry Foul. Wall Street Journal (Eastern Edition), June 22, 2011, p. A.1; Tim Devaney, Labor Board Speeds Up Union Elections, The Hill [Online edition], December 12, 2014, at http://thehill.com/ regulation/finance/226935-nlrb-speeds-up- union-elections.

56. William B. Gould IV, New Labor Law Reform Variations on Old Theme: Is the Employee Free Choice Act the Answer? Fall 2009, pp. 1 46.

57. Charles B. Craver, The National Labor Relations Act at 75: In Need of a Heart Transplant, Hofstra Labor and Employment Law Journal, 27, Spring 2010, pp. 311 356; Mike Pare, U.S. Secretary of Labor Thomas Perez cites Chattanooga s Volks- wagen plant in touting new approach, Chatta- nooga Times Free Press [online edition], October 23, 2014, at http://www.timesfreepress.com/news/ business/aroundregion/story/2014/oct/23/labor- secretary-supports-works-council/270231/.

58. National Mediation Board, Annual Performance and Accountability Report FY 2009 (Washington, D.C.: National Mediation Board, 2009), p. 2.

59. Lisa Catherine Tulk, Comment: The 1926 Rail- way Labor Act and the Modern American Airline

Industry: Changes and Chaos Outline the Need for Revised Legislation, Journal of Air Law and Commerce, 69, Summer 2004, pp. 615 645; Nancy Brown Johnson, Airlines: Can Collective Bargaining Weather the Storm? in Collective Bargaining in the Private Sector, ed. by Paul F. Clark, John T. Delaney, and Ann C. Frost (Champaign, IL: Industrial Relations Research Association, 2002), pp. 16 20; Charles M. Rehmus, Evolution of Legislation Affecting Collective Bargaining in the Railroad and Airline Industries, in The Railway Labor Act at Fifty, ed. Charles M. Rehmus (Washington, D.C.: U.S. Government Printing Office, 1977), p. 4.

60. National Mediation Board, Annual Performance and Accountability Report FY 2009, p. 34; National Mediation Board, NMB and RLA Fact Sheet, Sept. 30, 2012, at http://www.nmb.gov/ documents/mediation/Fact-Sheet_FY-2012.pdf; National Mediation Board, Annual Report FY 2013, at https://storage.googleapis.com/dakota- dev-content/2013annual-report/index.htm.

61. National Mediation Board, NRAB Board Members: FY 2010 February 4, 2010, p. 1, at http://www.nmb. gov/arbitration/nrab-board-members_fy-2010.pdf; Rehmus, Collective Bargaining, in The Railway Labor Act at Fifty, pp. 14 15.

62. National Mediation Board, Annual Performance and Accountability Report FY 2009, pp. 40, 45; National Mediation Board, Arbitration Highlights, FY 2013, at https://storage.googleapis.com/ dakota-dev-content/2013annual-report/mda/ arbitration.html; National Mediation Board, Representation Highlights, at https://storage. googleapis.com/dakota-dev-content/2013annual- report/rep/representation.html.

63. Larry Swisher, NMB Ends Longstanding Policy, Adopts Rule for Majority Vote in Representation Elections, Daily Labor Report, No. 89, May 11, 2010, pp. AA1 3; Jennifer Michels, Precedent Setting Case, Aviation Week and Space Technol- ogy, 172(20), 2010, p. 43; Seth Borden, National Mediation Board (NMB) Changes Union Election Rules, Easing Unionization Process, Labor Rela- tions Today [online edition], May 12, 2010, at http://www.laborrelationstoday.com/2010/05/arti- cles/rla/national-mediation-board-nmb-changes- union-election-rules-easing-unionization-process/; also see Doug Hall, NMB Announces Internet Voting, Venulex Legal Summaries, Q1, January,

126 PART 1 Recognizing Rights and Responsibilities of Unions and Management

2007, pg. 1 at http://connection.ebscohost.com/c/ articles/25046749/nmb-announces-internet-vot- ing; Michael Elsenrath, “Effect of NMB Voting Change on Airline Unionization.” The Journal of Aviation/Aerospace Education & Research 23(2), 2014, pp. 41 56.

64. Association for American Railroads, Collective Bargaining in the Rail Industry, April, 2014, p. 1, at https://www.aar.org/BackgroundPapers/ Collective%20Bargaining.pdf.

65. Fact Finding Report, Commission on the Future of Worker-Management Relations (Washington, D.C.: U.S. Departments of Labor and Commerce, May 1994), pp. 99 100.

66. Charles M. Rehmus, Emergency Strikes Revis- ited, Industrial and Labor Relations Review, 43(2), 1990, pp. 175 190; Douglas M. McCabe, The Railroad Industry s Labor Relations Envi-

ronment: Implications for Railroad Managers, ICC Practitioners Journal, 49, September October 1982, pp. 592 602; Railroad Workers United, U.S. Unions in National Rail Bargaining, Updated July 25, 2012, at http://railroadworkersunited.org/us- unions-in-national-bargaining#.

67. Charles M. Rehmus, The First Fifty Years: And Then, in The Railway Labor Act at Fifty, ed. Rehmus, p. 246; Beatrice M. Burgoon, Mediation under the Railway Labor Act, in The Railway Labor Act at Fifty, ed. Rehmus, p. 23.

68. Deregulation in Three Transport Industries Has Produced Widely Diverse Labor Market Results, Daily Labor Report, May 13, 1986, p. A-13.

69. Mark Kahn, Introduction, in Cleared for Take- off: Airline Labor Relations since Deregulation, ed. Jean T. McKelvey (Ithaca, NY: ILR Press, 1988), p. 3; David Morris, Airline Deregulation: A Tri- umph of Ideology Over Evidence, The Huffing- ton Post [online edition], December 13, 2013, at http://www.huffingtonpost.com/david-morris/air- line-deregulation-ideology-over-evidence_b_ 4399150.html.

70. Alfred Kahn, In Defense of Deregulation, in Cleared for Takeoff: Airline Labor Relations since Deregulation, ed. Jean T. McKelvey (Ithaca, NY: ILR Press, 1988), pp. 344 345. Jan K. Brueckner, Darin Lee, & Ethan S. Singer, Airline Competi- tion and Domestic US airfares: A Comprehensive Reappraisal, Economics of Transportation, 2(1), 2013, pp. 1 17. For a legal analysis, see Beth

Adler, Comment: Deregulation in the Airline Industry: Toward a New Judicial Interpretation of the Railway Labor Act, Northwestern University Law Journal, 80, Winter 1986, pp. 1003 1006.

71. Greg J. Bamber, Jody Hoffer Gittell, Thomas A. Kochan, & Andrew Von Nordenflycht. Up in the air: How airlines can improve performance by engaging their employees. (Ithaca, NY: Cornell University/ILR Press, 2009); Bruce E. Kaufman, Keeping the Commitment Model in the Air

during Turbulent Times: Employee Involvement at Delta Air Lines, Industrial Relations, 52(Supplement 1), 2013, pp. 343 377.

72. U.S. General Accounting Office, Airline Labor Relations: Information on Trends and Impact of Labor Actions (Washington, D.C.: Government Accounting Office, 2003), pp. 3 4; Andrew von Nordenflycht and Thomas A. Kochan, Labor Contract Negotiations in the Airline Industry, Monthly Labor Review, 126 (7), 2003, pp. 18 28.

73. Johnathan E. Collins, Comment: Airlines Jettison Their Pension Plans: Congress Must Act to Save the PBGC and Protect Plan Beneficiaries, Journal of Air Law and Commerce, 70, Spring 2005, pp. 289 317; Daniel P. Rollman, Comment: Flying Low: Chapter 11 s Contribution to the Self-Destructive Nature of Airline Industry Economics, Emory Bankruptcy Developments Journal, 21, 2004, pp. 381 418; and Donald E. Cullen, Emergency Boards under the Railway Labor Act, in The Railway Labor Act at Fifty, ed. Rehmus, pp. 176 183; Alexandra Bradbury, Rail Workers Vote Down Single-Person Crews,

Labor Notes [online edition], September 11, 2014, at http://www.labornotes.org/2014/09/rail-workers- vote-down-single-person-crews.

74. Nancy Brown Johnson, Airlines: Can Collective Bargaining Weather the Storm? in Collective Bargaining in the Private Sector, eds. Clark, Delaney, and Frost, 2002, p. 20.

75. Pension Benefit Guaranty Corporation, Who We Are, 2014, pp. 1 2 at http://www.pbgc.gov/ about/who-we-are.html; U.S. Department of Labor, Retirement Plans, Benefits and Savings, 2014, p. 1 at http://www.dol.gov/dol/topic/ retirement/typesofplans.htm.

76. David A. Drachsler, Notes On: Year One of the Lilly Ledbetter Fair Pay Act, Labor Law Journal, 61(2), 2010, pp. 102 106.

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3- 1 The Great Temperature Debate

The employer is a small, nonunion furniture manufacturer with 15 employees engaged in interstate commerce. Both of the employees involved in this case worked in the machine shop building as band-saw operators. Because the band saws were located near the shop s large overhead door, to facilitate the disposal of sawdust, the band-saw operators were often subject to lower temperatures and drafts on cool or cold days, whereas other employees farther from the overhead door often felt too warm. To resolve this long-standing problem, the plant manager established a rule that stated: The overhead door will remain open when the temperature in the shop exceeds 68 degrees and closed when the temperature is at or below 68 degrees.

On the day in question, employees Drake and Keeler, who were both band-saw operators, complained to the shop supervisor that they were too cold and requested that the overhead door be closed. When questioned by the shop supervisor, the majority of the other shop employees present responded that they thought the door should be left open. The thermometer on the wall of the shop supervisor s office, located in approximately the center of the machine shop building, read 72 degrees.

On this day, employee Drake was wearing a sleeve- less shirt and shorts. Employee Keeler was dressed in blue jeans, a short-sleeved shirt, a flannel shirt, and a heavy sweater. Both Keeler and Drake claimed it was too cold and drafty at their workstation near the open overhead door. The shop supervisor refused to close the overhead door because the majority of employees wanted it left open. During a scheduled lunch break,

Drake and Keeler discussed their problem and decided to walk off the job for the remainder of the day to protest the cold temperature at their workstation.

Upon returning to work the following morning, Drake and Keeler were informed by the plant manager that they had been fired for leaving work the previous day without management s permission. Drake and Kee- ler subsequently filed an unfair labor practice charge with the NLRB alleging their discharge represented unlawful discrimination of their right to engage in con- certed and protected activity under Section 7 of the LMRA. Drake and Keeler requested a remedy to include reinstatement with full back pay and restora- tion of any lost privileges.

Questions 1. Because Drake and Keeler s employer meets the

standard for coverage under the LMRA by engaging in interstate commerce, which specific employee right protected by Section 7 of the LMRA could Drake and Keeler argue they were engaged in which at least partially motivated the employer s decision to discharge them?

2. On what grounds might the employer try to argue that the discharge of Drake and Keeler was an appropriate (legal) exercise of management s rights?

3. Was the employer s discharge of Drake and Keeler an unfair labor practice under the LMRA, as amended? If so, what should be the appropriate remedy?

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3- 2 Independent Contractors? Or Employees?

The employer publishes the South Texas Clarion daily newspaper, employing 726 carriers on 780 routes throughout the rural Rio Grande river valley. In addi- tion to the Clarion, the carriers also deliver seven other newspapers (e.g., The Wall Street Journal). The employer operates four distribution centers (ware- houses) where carriers pick up the papers to take on their routes. Each distribution center has a general

manager and several District Managers who super- vise the work of 30 50 carriers. A few carriers work multiple routes.

In order to become a carrier, an individual must submit proof from the state that they are a safe and licensed driver. They also sign a Contractor s Agree- ment and put down a $300 security deposit. Either party can terminate the Agreement with a 21-day

128 PART 1 Recognizing Rights and Responsibilities of Unions and Management

notice. District Managers usually show new carriers their routes, although sometimes the previous carrier trains his/her replacement.

District managers leave messages for carriers via dry- erase boards in the warehouse and small read-only com- puters, which carriers rent for $2 per week. These computers are updated daily at the distribution center with information about new/ending subscriptions, route suggestions, and special requests from subscribers.

Because most sections of the newspaper have been pre-printed, they are delivered to the Distribution Cen- ters when the facilities open at 1:00 A.M. each day. The front two sections, with the most current news, arrive by truck an hour later. Carriers arrive at 2:00 A.M. and assemble the papers at route tables, although they are free to assemble them in their vehicles or even at home. The employer provides free plastic bags on Sun- days and on mornings where rain is imminent. Carriers must purchase bags and/or rubber bands on other days (the carriers are free to choose which to use). Once assembled, the carriers deliver the newspapers. By contract, all papers must be delivered to residences by 6:00 A.M, and to organizations by 8:00 A.M.

Many carriers occasionally use helpers (e.g., to assemble papers) or substitute drivers (e.g., if a carrier goes on vacation). These workers are paid by the carriers, not by the newspaper; the newspaper only requires that substitutes have a valid driver s license and vehicle insur- ance. Carriers are paid weekly from the Accounts Pay- able department, whereas Clarion employees are paid from the Payroll Department. Both types of paychecks originate from the same office. Carriers are paid 30 cent per delivery of the Clarion plus 5 cent for each full-sized advertising supplement. For other papers, the rate is 10 cent per delivery. The newspaper does not deduct payroll taxes or workmen s compensation for carriers and at the end of the year, they are issued a 1099 form rather than a W-2 form. They receive no health insurance or other fringe benefits from the employer.

The question before the ALJ is whether the carriers are employees of the publisher of the South Texas Clar- ion newspaper or whether the carriers are independent contractors. Section 2(3) of the National Labor Relations Act (also called the Labor Management Relations Act or the Act ) indicates that, the term employee shall not

include any individual having the status of independent contractor. [for full text, see http://www.nlrb.gov/ resources/national-labor-relations-act]. If carriers are employees they are free to unionize if they wish; if

they are independent contractors then they are not.

The employer maintains that the carriers are inde- pendent contractors and not employees and that a sim- ilar newspaper case, St. Joseph News-Press (2005) supports this position. The employer argues that case differs from a superficially similar case the Roadway

Package System, 326 NLRB 842 [159 LRRM 1153] (1998), and is similar to the Dial-A-Mattress Operating System, 326 NLRB 884 [159 LRRM 1166] (1998) case where workers were found to be independent contrac- tors. The employer concedes that a few factors raised in the St. Joseph New-Press case may suggest employee status for the Clarion carriers (e.g., the work is unskilled, yet is essential to the operation of the newspaper). How- ever, the majority of the factors indicate that the carriers at the Clarion are independent contractors. These include the following reasons:

1. Control of work. As independent contractors, car- riers maintain great control over the details of how they complete their work. For example, while the District Managers can suggest routes, the carriers are free to deviate from those suggestions. Carriers can also decide whether to use rubber bands or bags and where to assemble newspapers.

2. Supervision. The newspaper does not subject car- riers to any sort of progressive discipline system for problems with deliveries. It is true that the employer relays customer complaints to its carriers and may follow a carrier on his or her route if complaints persist. But the employer does not take any adverse action against a carrier for failure to adequately perform his or her duties, other than terminating the contract. Moreover, although the carriers are subject to Safety Standards rules, the employer disagrees with the union s character- ization of these as employee work rules. The standards apply to anyone who enters the distribu- tion center, including carriers, employees, and visi- tors. The rules state that no alcohol, drugs, or weapons are allowed on employer property; also closed-toed shoes must be worn. The Safety Stan- dards do contain some carrier-specific rules. How- ever, these rules simply ensure the safe operation of the distribution center; they do not dictate how the carrier is to perform his or her duties.

3. Entrepreneurial potential. Carriers have more than a paycheck; they are, in essence, small business owners. They are free to hire full-time substitutes, hold multiple routes, and deliver other papers in addition to those distributed by the employer.

CHAPTER 3 Legal Influences 129

They can work as substitutes for other carriers. Many also hold other day jobs.

4. Provision of tools, supplies, and a place to work. Carriers own, control, and maintain their own vehicles. They buy supplies and are free to work anywhere.

5. Parties intent. The parties intend to have a contractor client relationship. The parties Con- tractor s Agreement clearly states the type of agreement that the carrier and newspaper are forming. Also, the carriers are not subject to employee pay and benefits, but are paid in the same manner as other outside vendors.

By contrast, the union calls attention to the work relationship of the carriers and the employer. Based on their economic dependence on the newspaper, together with other relevant factors, we submit that the carriers are statutory employees, and not indepen- dent contractors. But even considering only the factors management listed in the common-law test, we would reach the conclusion that the carriers are employees.

The union argues that four of the nine factors mentioned in the St. Joseph News-Press case indisput- ably weigh in favor of finding employee status :

1. The distribution of newspapers is an integral part of the Employer s business.

2. The carriers are performing unskilled work 3. Carriers are hired for an indefinite period (inde-

pendent contractors, such as construction contrac- tors, usually have a deadline whereby a project must be completed; these carriers have no such deadline)

4. Other employees perform work that is similar to the work performed by the carriers (it is not uncom- mon for newspaper employees or District Managers to deliver newspapers if a carrier is ill or no carrier has been hired to serve a particular route)

The further union contends that the remain- ing factors tip the balance in favor of finding that the carriers are employees:

5. Control of Work. The employer exercises more control over the carriers details of work than did the employer in News-Press. The Clarion requires carriers to deliver to all subscribers on their routes. Unlike New-Press carriers, Clarion carriers, more- over, do not issue bills, extend credit, or collect payments. Instead, the Clarion s circulation depart- ment bills subscribers. Clarion carriers have been subjected to discipline that went beyond merely

threatening to terminate the contract (e.g., two- week suspensions). Carriers are subject to a list of work rules specified in their employment agree- ment and to ad hoc rules developed by District Managers. One District Manager prohibits pets in carrier vehicles during delivery and even pre- approves carriers Christmas cards.

6. Supervision. District managers relay customer complaints to carriers and sometimes terminate contracts if complaints are excessive. But District Managers will sometimes take the additional step of following carriers on their routes. District Man- agers will also call carriers if they are late arriving at the distribution center. Two carriers in the pres- ent case have testified that carriers will be offi- cially reprimanded if they receive too many customer complaints. Thus, a formal progressive discipline system for carriers exists.

7. Provision of tools, supplies, and a place to work. It is also clear that the employer provides supplies and a place of work. The employer furnishes compu- ters, albeit it charges the carriers a nominal weekly rental fee. The employer also maintains distribu- tion centers complete with route tables, cubby holes, and downloading facilities for the compu- ters. The carriers must report to a distribution cen- ter to obtain newspapers.

8. Entrepreneurial potential. The employer requires carriers to deliver newspapers at a nonnegotiable piece rate. This inability to negotiate rates limits entrepreneurial potential. Although carriers also can hire substitutes, Clarion managers control sub- stitutes terms and conditions of employment. Some District Managers will not give more routes to carriers whom they believe do not have time for another route. Together, these facts suggest Clarion carriers are employees and not entrepreneurs.

9. Parties intent. Finally, the parties contract implies an independent contractor client agreement. But the carriers have no choice in whether they are considered independent contractors or employees; rather, the employer simply labels them contractors. To say that this contract reflects

the carriers intent is therefore dubious. Further, in the Rio Grande valley, many carriers speak Spanish, but the contract is written in English! Such a contract is not negotiated by two inde- pendent equals; it is simply is the dictation of terms by one side and is not reflective of mutual interests.

130 PART 1 Recognizing Rights and Responsibilities of Unions and Management

Questions 1. Go to www.NLRB.gov/ and search for the precedent

cases (Roadway, Dial-a-mattress, and St. Joseph News-Press. How does this case parallel and differ from those cases?

2. Which of the company s arguments for indepen- dent contractor status are most compelling?

3. Which of the union s arguments for employee status are most compelling?

4. Is this simply a case of who wins more of the nine factors? Or are some factors inherently more important than others? If so, which ones in this case are more important?

5. If you were an Administrative Law Judge working for the NLRB, how would you rule in this case and why?

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3- 3 NLRB Jurisdiction over a Private Charter School

The key issue in this case is whether the employer, a private for profit corporation that contracted with a government entity to operate a school, is exempt from Board jurisdiction as a political subdivision of the state of Michigan within the meaning of Section 2(2) of the LMRA. Section 2(2) of the LMRA excludes from the definition of a covered employer any state or political subdivision thereof.

This case began when the Michigan Education Association filed a representation election petition with the NLRB seeking to become the representative for a proposed bargaining unit consisting of teachers and counselors employed at the Academy of Waterford (the Academy), a public charter school under the pro- visions of the Michigan Revised School Code. To deter- mine if the representation petition was valid, one question the NLRB must determine is whether the employer (Charter Schools Professional Management Inc.) meets the definition of a covered employer under the LMRA as noted previously.

The Academy was first created as a public charter school by the Blue Springs Community College (BSCC) under provisions of the Michigan revised School Code. BSCC retains oversight authority of the Academy and is responsible to the Michigan Department of Educa- tion for ensuring the operation and performance of the Academy complies with its charter and all applica- ble laws. BSCC appoints a board of directors to oversee the Academy and disburses funds received from the state of Michigan to the Academy to fund its opera- tions. In return for administering oversight authority, BSCC receives a fee equal to 3 percent of all funds the Academy receives from the state of Michigan. The

Academy was incorporated as a nonstock, nonprofit, tax exempt corporation under Michigan s Non-Profit Corporation Act. The Academy is considered a govern- ment agency under the Michigan revised School Code and board members, officers, and employees have gov- ernment immunity from lawsuits. As a government agency, the Academy must comply with Michigan s Open Meetings Act, Freedom of Information Act, and Public Employment Relations Act in addition to sub- mitting numerous reports regarding educational, finan- cial, and operating matters to BSCC annually.

The Academy s Board of Directors decided to enter into a services contract with Charter Schools Professional Management Inc. (CSPMI) to operate the Academy. CSPMI is a private, for profit organization incorporated under the Michigan Business Corporation Act to provide educational management services to public charter schools. CSPMI as a private corporation is not subject to Michigan s Open Meetings Act or Freedom of Informa- tion Act. CSPMI is controlled by a board of directors that is elected by the ownership of the corporation. The cor- poration s financial records are not available to the public nor is there any state requirement that the corporation s financial transactions be subjected to any audit. CSPMI receives an annual fee of 12 percent of all state and federal funds received by the Academy as payment for the man- agement services it provides.

CSPMI (the employer) is solely responsible for hir- ing, training, and disciplining all teachers or other staff employees of the Academy. The employer solely deter- mines the rates of pay or other benefits employees receive, performs all performance evaluations, and determines disciplinary or discharge actions to be

CHAPTER 3 Legal Influences 131

taken against employees. The day-to-day operations of the Academy are the responsibility of the principal and staff, who are each employed by CSPMI. Neither the Academy s board of directors nor anyone affiliated with BSCC has any involvement in personnel matters affecting Academy employees. The Academy s teachers as employees of a private corporation are not eligible to participate in the Michigan Public School Retirement System. The employer is responsible for the operation and maintenance of the Academy s school building and all aspects of the Academy s business administration including reports the Academy is required to submit to the state and an annual operating budget submitted to the Academy s board of directors.

The NLRB has formulated a standard test to deter- mine if an entity such as the employer in this case is a political subdivision of the state and thus exempt from coverage under the definition of an employer contained in Section 2(2), LMRA. To be exempt from NLRB jurisdiction as a political subdivision of a state, the

employer must either (1) be created directly by the state so as to constitute a department or administrative arm of the government, or (2) administered by indivi- duals who are responsible to public officials or to the general electorate.

Questions 1. Applying the standard test outlined previously, does

the employer (CSPMI) meet the definition of an employer as stated in Section 2(2), LMRA and therefore, the board may assert jurisdiction and conduct a representation election? Explain your reasoning.

2. In the debate over whether charter public schools should be created, are the potential bargaining rights of charter school employees a relevant issue which should be part of the public debate over whether charter schools are more advantageous than existing public schools? Explain your reasoning.

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3- 4 Determination of Supervisory Status

The union sought to become the exclusive bargaining representative for a group of five harbor pilots employed by Pacific Coast Docking Pilots (the employer). The union won a National Labor Relations Board (NLRB) supervised secret-ballot election by a vote of 5 0. The employer refused to recognize and bargain with the union in an effort to force a federal court to determine if the five harbor pilots who com- posed the bargaining unit were supervisors or employ- ees. The union filed an unfair labor practice against the employer for a refusal to bargain in good faith. The Board granted summary judgment in favor of the union, which the employer then appealed to a federal court of appeals for review.

The employer argued that the harbor pilots should be classified as supervisors and therefore excluded from the definition of an employee covered under the LMRA, as amended. The burden of proving the supervisory status of an employee is on the party asserting such a status. Section 2(11), LMRA defines a supervisor as any individual having authority, in the interests of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or

discipline other employees, or responsible to direct them, or to adjust their grievances, or effectively to rec- ommend such action, if in conjunction with the fore- going the exercise of such authority is not of a merely routine or clerical nature, but requires the use of inde- pendent judgment.

The Supreme Court has established a three-part test for determining the supervisory status of an indi- vidual under the LMRA, as amended (NLRB v. Health Care & Retirement Corp., 511 U.S. 571 [1994]). First, an employee must perform at least one of the 12 spe- cific functions outlined in the statutory definition of a supervisor under Section 2(11) of the LMRA. Second, in performing one of the 12 specified supervisory func- tions, the individual must be required to exercise inde- pendent judgment. Third, the exercise of independent judgment in performing one or more of the 12 listed supervisory functions must be in the interest of the employer. The third test is typically the easiest to prove because virtually any action related to the attain- ment of a legitimate business goal or purpose of the firm will be considered an act in the interest of the employer. Most cases involving the determination of

132 PART 1 Recognizing Rights and Responsibilities of Unions and Management

supervisory status will rest on an analysis of the evi- dence related to parts one and two of the three-part supervisory status test.

The employer maintains that the docking pilots make recommendations on hiring and promotion deci- sions, assign work to employees, and are responsible for directing employees work during the docking process. More specifically, the employer states that the advice of docking pilots is almost always followed in making deci- sions regarding who to hire or promote into a docking pilot position or relief docking pilot position. U.S. Coast Guard regulations require that docking pilot trainees make trips with licensed docking pilots before becoming eligible to obtain a docking pilot s license. Docking pilots are required to evaluate the performance of trainees on such trips and provide a recommendation as to the suit- ability of each trainee for the job position of docking pilot. Docking pilots do not discipline other employees, adjust employee grievances, or evaluate the job perfor- mance of nontrainee pilots. The final authority for all hiring and promotion decisions rest with the president and vice president of the employer.

When a large ship enters a port, it requires the assis- tance of tugboats to maneuver into a position to dock or undock. The docking pilot receives from the employer a list of the ships scheduled to arrive or depart the port on a given day. The information provided by the employer includes such items as the current location and dimen- sions of each ship. The docking pilot uses this informa- tion together with current information on other factors (e.g., current wind speed, water current speed, existing navigation hazards in the channel) to determine the number of tugboats required to accomplish the docking procedure. Once a ship s captain has entered the port, a tugboat delivers the docking pilot to the ship. The dock- ing pilot then assumes command of the ship from the ship s captain and directs the docking procedure. The docking pilot communicates directly with the captain of each tugboat involved to ensure that each tugboat will render the necessary assistance to ensure a safe and accurate docking experience. Essentially, the docking pilot communicates what must be accomplished to each tugboat captain, who then determines what actions his tugboat crew must take to accomplish the defined objective. Each tugboat captain is responsible for direct- ing his or her own boat crew to carry out the instructions of the docking pilot. Tugboat captains have been previ- ously determined by the NLRB to be supervisors under

the LMRA. Once the docking procedure is completed, the docking pilot returns control of the ship to the ship s captain and reboards one of the tugboats to pre- pare for the arrival or departure of the next ship on the daily schedule.

The employer argued that the docking pilot s determination of how many tugboats will be required to perform a particular docking operation constitutes an assignment of work using independent judgment, which is a supervisory function under the LMRA s def- inition of a supervisor. The employer also notes that a docking pilot responsibly directs others during the docking procedure by giving orders to the tugboat cap- tains regarding the number and placement of towing lines to ensure a safe and efficient docking procedure.

The union argued that the five docking pilots were professional employees covered by the LMRA, not supervisors. The docking pilots have no authority to hire anyone, although they may be asked to give a pro- fessional opinion regarding the qualifications of an applicant for a vacant docking pilot position. Compli- ance with Coast Guard regulations, which require less- experienced pilots to ride along with a more experi- enced pilot to learn information about a particular port before assuming responsibility for docking proce- dures in that port, represents a discharge of profes- sional responsibility, which is a job duty of being a docking pilot. The docking pilots do not discipline other employees, handle grievances, or formally evalu- ate other employees job performance.

The union further argued that instructions given by docking pilots to other tugboat captains (who are supervisors) during docking procedures are part of the job duties of a professional docking pilot. The docking pilot has no authority to order members of a tugboat captain s crew to perform any specific job duties. The determination of the number of tugboats required to perform docking procedures is a function of the size of the ship to be docked and prevailing sea and weather conditions. This determination does not require the exercise of significant independent judg- ment on the part of the docking pilot.

Question 1. Should the docking pilots be classified as supervisors

and thus excluded from participating in a bargain- ing unit for purposes of collective bargaining? Explain your reasoning.

CHAPTER 3 Legal Influences 133

CHAPTER 4

Unions and Management: Key Participants in the Labor Relations Process

YESTERDAY, BOB BOYCE, my department s Shop Steward, came up to me and told me that I ought to join the union like so many of my fellow employees. My hunting buddies, David Hunt, Jim McBride, Larry Tate, and Bill Ikerd, have already joined and are taking an active role in the union by going to meetings. I realize that a lot of folks put it on the line to get the union in during the organizing campaign and during the negotiations. After several months of negotiations, the union finally got a huge contract that gave employees a nice pay raise, a pension program, and guaranteed health insurance. Also, gone are the days where the supervisors can simply make favorable work assignments and offer overtime to their cronies; they now have to go by provisions in the labor agree- ment. I have been thinking about joining, but I get all the bene- fits that union members get and I don t have to pay anything to receive these benefits.

Questions 1. Why should he join? Are there other benefits?

2. How similar is this situation to others in American society?

3. What would you do? Why?

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As noted in Chapter 1, two key participants in the labor relations process are the union,which as the exclusive bargaining agent represents employees in the bargaining units, and management, which represents the owners or stockholders of the company. This chapter first provides a general explanation of the goals, strategies, and organizational structure of the company and the union for labor relations purposes. Because companies and unions are organized differently to meet different purposes, basic goals, strategies, and organizational structures will be presented that may be adjusted to meet respective differences. The second part of the chapter focuses on union governance and structure by describing the characteristics of unions, union government at the various levels, organizational structure, and problems with corruption and misuse of power within a few unions. The final section covers union security, a subject vital to the union s role in gaining bargaining strength and meeting members expectations.

Goals and Strategies: Management and Unions

Unions and management of companies have goals that are similar; they also have goals which at times conflict. These goals provide direction and serve as the basis for the orga- nization s strategies, plans, and organizational structure. Exhibit 4.1 displays some major goals for both companies and unions, which in several cases are similar and consistent, and in other cases, the goals have potential for conflict. The areas of potential conflict cre- ate possibilities for an adversarial relationship, and the areas of agreement create possibilities for cooperation and labor peace. As will be noted, most of the time unions and management are able to settle their differences without resorting to a work stoppage (0.0002 of total man- days per year are lost due to work stoppages). The collective bargaining process itself is a

Exhibit 4.1 Goals of the Company and the Union

The Company Wants The Union Wants

To survive and remain competitive The company to survive and remain competitive as well as for the union to survive and remain secure

To grow and prosper The company, as well as the union, to grow and prosper

To achieve a favorable return on its investment

The company to achieve a favorable return on its investment and return fair wages to employees

To effectively use human resources The company to effectively use human resources within the rules and policies of the agreement and to achieve job security and employment opportunities for members

To attract, retain, and motivate employees

The company to attract, retain, and motivate employees within the rules and policies of the agreement

To protect management s rights to make decisions and retain flexibility

To protect union and employee rights that were negotiated and included in the labor agreement

To obtain a commitment from the union that there will be no strike for the duration of the agreement

To obtain a commitment from the company that there will be no lockout for the duration of the agreement

CHAPTER 4 Unions and Management: Key Participants in the Labor Relations Process 135

mechanism designed by the parties and adopted by the U.S. Congress as the preferred method for resolving differences between unions and management.

Both the company and the union want the company to survive and remain compet- itive. Union agreement with this goal is logical because the employees would lose their jobs and the union would not survive without the company. Likewise, the union wants to survive as the representative of the employees of the company and will take steps to retain this designation. When a company wishes to remain nonunion or to have the union decertified, an inevitable conflict occurs.

The company wants to grow and prosper a sign of its management s success. The union agrees with this goal and supports it because it creates more opportunities and ben- efits for employees, adds union members, allows more funds for union activities, and strengthens the union as an institution. Likewise, both the company and the union want the company to achieve a favorable return on its investment. Although they may disagree on what is meant by favorable, both parties understand the mechanics of the financial side of the business. However, the union also wants to achieve a favorable or fair return for the employees efforts, input, and contribution. Here, there may be a disagreement over what is a favorable return to the investors and a fair return to the employees.

Two related goals of the company are to achieve the effective use of its human resources and to attract, retain, and motivate employees. The union accepts these com- pany goals as long as the company abides by the provisions that were negotiated and included in the collective bargaining agreement. For example, the company may wish to have the most productive employee work on an overtime assignment to be able to ship a rush order; however, the agreement may require that overtime be offered on a rotating basis. The presence of the union does not prevent making overtime assignments to the most productive employee; however, the overtime provision is a negotiable subject, and the parties must live by the provisions that they agree on.

The company wants to protect its rights to make decisions and retain the flexibility to operate the business. The union accepts the philosophy that some decisions are best made by management, including the type of products, the price of products, financial policies, customer relations, advertising and promotion decisions, product design, and plant layout. At the same time, the union represents the interests of employees and attempts to provide job protection and guarantee job opportunities for them by negoti- ating provisions in the labor agreement, such as limits on contracting out work and use of seniority in layoff decisions to provide job security.1

The company wants a union commitment to have no work stoppage for a specified period; this guarantees a stable workforce and allows the company to make production promises to customers. This commitment comes in the form of a no-strike clause in the labor agreement. The union may want a commitment from the company that employees have the right to have their grievances heard by management and may appeal them to a third-party neutral (arbitrator) when necessary to resolve differences.

Once the union and the company decide on their respective goals, they determine the appropriate strategies to reach these goals. Companies have been involved in strategic planning much longer than unions, and their strategic plans are usually more detailed and sophisticated. Only in recent times have unions started to think and operate in terms of strategic planning.

Company Strategic Planning A company s strategy in labor relations is determined by its managerial philosophy, the ethics of its management, its economic condition, the composition of the workforce, competition in the industry, the time in the life of the company, and the capabilities of

136 PART 1 Recognizing Rights and Responsibilities of Unions and Management

management. Management has choices about its strategy. It may believe that the com- pany is better off remaining nonunion and may devote much time and effort to ensuring positive human resources management. Some employers resist unions bitterly to ward off the large wage gap between union and nonunion employees (weekly earnings aver- aged $907 for union members versus $753 for nonunion workers in 2014, according to the Bureau of Labor Statistics). Management members who are in a highly competitive industry may be willing to do almost anything to keep unions out. Management at other companies may choose to change from a hard-bargaining approach to one of labor management cooperation after it finally accepts the philosophy that both parties would gain more by cooperating than by conflicting. Exhibit 4.2 shows the range of company strategies in labor relations, from union suppression to labor management cooperation.2

Nonunion Companies Strategies Some authorities believe that profound changes in labor relations began in the 1980s and were brought on by forces external to union management relationships. These forces include competition from abroad, deregulation, and competition from nonunion compa- nies. More and more companies are finding that their labor relations strategies are driven by economic choices and their need to adapt to new, more competitive business conditions. Because union-suppression, union-avoidance, and union-substitution strate- gies have existed in different forms since the Industrial Revolution, a company may choose to attempt to maintain its nonunion status by preventing or supplanting unions. Another company may choose one of the nonunion strategies as a legitimate response that has been forced on it to cut costs, innovate, enter new markets, and devise flexible labor force strategies. This latter approach focuses on costs and productivity of human resources and the management of human resources.3

A company may use a more aggressive approach, called the union-suppression strat- egy, to maintain its nonunion status or to destroy the union. Human Rights Watch con- ducted research on Wal-Mart labor relations by interviewing 41 former employees; meeting with labor lawyers and union organizers; analyzing cases against Wal-Mart, which charged the company with violating U.S. labor laws; and reviewing company publications that addressed working conditions at the company. Human Rights Watch concluded: Wal-Mart employs a sophisticated and multifaceted strategy to prevent union

Exhibit 4.2 Company Strategies in Labor Relations

Nonunion Companies Strategies Union Companies Strategies

Union Suppression

Union Avoidance Union Substitution

Codified Businesslike

Accommodation or Labor-Management Cooperation

Union busting Illegal acts Refusal to Bargain Decertification

Positive human resources management

Double-breasting

Company paternalism Company-Sponsored

employee organizations

Forms of employee participation and employee involvement

Neutral in union campaign

Straight-forward approach

Union involvement Employee

Empowerment

CHAPTER 4 Unions and Management: Key Participants in the Labor Relations Process 137

activity at its U.S. stores and, when that strategy fails, quashes organizing wherever it starts. 4

Another company, Smithfield Packing Company in Wilson, North Carolina, was found by the NLRB to have committed multiple unfair labor practices in its attempt to keep the United Food and Commercial Workers from representing its employees. See Exhibit 4.3.5

In 2014, the NLRB ordered the Southern Bakeries, LLC, to recognize the Bakery, Confectionery, Tobacco Workers and Grain Millers International Union and bargain with the union after it found multiple unfair labor practices. These included:

1. Making unilateral changes in employees wages, hours, and other terms of employment 2. Refusing to allow union representatives access to the company s facility 3. Interrogating employees about their union activities 4. Threatening employees with discharge, job loss, and plant closure 5. Making disparaging comments about the union 6. Creating the impression that the union is under surveillance.6

Other extreme and in some cases illegal tactics used by some companies to avoid unionization include the following:

Developing a spy network (tattletales) to identify union supporters Refusing to hire former employees of unionized companies (but giving the applicant a reason other than prior union affiliation for employment denial) Establishing a case for discharge (including documentation) of known union advocates Seeking to determine prospective employees attitudes toward unions from inter- views, references, and so on, and then refusing to hire them (again giving another reason) if they appear to be supportive of unions Giving psychological tests (job-interest questionnaires) to determine the likelihood that an applicant will be interested in a union Locating new plants in areas where union membership is low and expanding the company s nonunion plants Using a standard application of a State Employment Service that asks applicants whether they have been a member of a union and using the application as part of the preemployment inquiry7

Some employers facing union-organizing campaigns have committed unfair labor prac- tices deliberately, with the expectation of economic returns to them.8 When illegal practices yield economic returns to the violators, ethical questions are raised as to the fairness of the law and its application. One study of employers led to this disappointing conclusion:

[I]n the past, the compliance system [of the National Labor Relations Act] has been inadequate to the extent that some employers have found it profitable to commit

Exhibit 4.3 Unfair Labor Practices of Smithfield Packing Company, Wilson, North Carolina

1. Threats of plant closures by company president and plant manager. 2. Directing video security cameras to record employees and union organizers pass-

ing out union information. 3. Interrogating employees about support for the union by supervisors. 4. Unlawful loss of benefits by announcing that employees would lose their 401(k)

program if they voted for the union. 5. Threats of a pay cut if employees signed union authorization cards that

supported the union. 6. Discharge of employees because of their union activities.

SOURCE: Decisions and Order of the National Labor Relations Board, 347 NLRB No. 109, August 21, 2006. (The company has since changed ownership.)

138 PART 1 Recognizing Rights and Responsibilities of Unions and Management

unfair labor practices in order to forestall unionization. Those employers obeying the law because it s the law have faced a greater probability of incurring costs of union- ization and may have been at a competitive disadvantage to employers who violated the law. Such inequities do not encourage compliance with the law and provide evi- dence of the need for labor law reform.9

Union Avoidance. Some companies that select a union-avoidance strategy take a strong stance against union representation, even in facilities where unions already exist. They open nonunion facilities and attempt to keep them nonunion. They shift their capital investments away from the unionized facilities and make plant improvements in the nonunion plants. Where a union represents its employees, the company attempts to reduce the labor costs by lowering wages and benefits, modifying traditional work prac- tices, and encouraging decertification to the point of committing illegal actions. In these situations, the labor relations environment is highly adversarial, and union management collaboration is not considered an option.10

Some firms do not aggressively seek to crush union organization. They simply take steps to prevent unions from forming. Top managers may reason that if the con- ditions are not encouraging of unionization, then the workers are unlikely to organize. Consequently, it is not uncommon to see the following types of union avoidance tactics:

Locating new plants in areas where union membership is already low. Locating new facilities in rural areas in the South, where support for unions has historically been weak and anti-union attitudes have predominated. Having several small facilities in several nearby communities rather than one large facility; this helps employees feel like they are not just a number to management and it probably means that union organizers will have to organize each facility separately for union organizers, the payoff in new members may not be worth the effort. If a firm has both union and nonunion plants, expanding only the company s nonunion plants. Subcontracting work that is typically unionized so that union work is not in-house ; for example, if managers believe that printers are more likely to unionize than other employees, then the firm may hire a print shop to do its printing rather than have its own printing department.

Positive Human Resource Management. Some companies adopting the union- avoidance strategy practice positive human resources management or operate double- breasted. Company officials who adopt positive human resources management recognize the importance and necessity of maximizing employee voice. Moreover, such firms implement the claim that people are the most important asset of the organization. Such organizations involve their employees in the decision-making processes of their organizations. These efforts are included under the general umbrella of participative management, total quality management, and total quality control programs.11 In unionized organizations, the union is sometimes involved; those efforts are covered in Chapter 7.

Companies such as IBM, Texas Instruments, Publix, and Eastman Chemicals have essentially adopted this strategy. Positive human resources management programs include the following elements:

The absence of symbols of rank and status, such as designated parking spaces, company cars, or country club memberships for managers

CHAPTER 4 Unions and Management: Key Participants in the Labor Relations Process 139

Carefully considered surroundings locating near good schools and universities in order to give employees a high quality of life Overall corporate strength high profits, fast growth, high technology, or dominant market position Programs to promote employment security, such as work sharing or overall reduction in pay to avoid layoffs during hard times Promotion from within job posting, career development, and training and education programs Influential human resources management programs, for example, having the human resources manager report directly to top management Competitive pay and benefits, especially having compensation that is equitable externally and internally and comparable to the pay at unionized companies Management that listens using systematic approaches such as attitude surveys, open-door policies, and appeal procedures. This is based on the idea that dissat- isfied employees are more likely to unionize; if management can respond to worker concerns and alleviate dissatisfaction, they will be content and remain nonunion. Employee stock option plans that contribute stock to employees at no cost with opportunity to buy more Careful grooming of managers focusing on long-term results, using assessment centers, and emphasizing competence and employee relationships12

Double-breasting. Double-breasting exists when one company has two or more subsidiaries, one unionized and the others nonunion or open shop. These arrangements take several forms: (1) A holding company has financial control of one or more operat- ing subsidiaries, (2) a unionized company buys a nonunion firm and continues to oper- ate it as nonunion subsidiary, and (3) a nonunion company buys a unionized subsidiary and continues to operate it unionized.

In some cases, double-breasting appears to be a deliberate strategy designed to max- imize company opportunities and minimize pay dissatisfaction. In construction, govern- ment projects often require that firms pay a prevailing local wage rate (designed to prevent migrant construction workers and their firms from underbidding local firms); these wage rates are similar to union-scale rates and typically higher than nonunion wages. So some construction holding companies will set up one contractor firm to bid only on government jobs (paying union-scale wages) and a second contractor firm to bid only on nongovernment work (paying lower wages). Implicit in this arrangement is an assumption about wage satisfaction: Workers who get low wages and are unaware that they could get higher wages will be more satisfied than workers whose wages fluctu- ate based on the type of project.

At present, the law requires the open shop and unionized units of a holding com- pany to be separately managed and operated as distinct entities. Conversely, the National Labor Relations Board (NLRB) determines whether two seemingly separate companies should be treated as one by considering the following guidelines: interrelation of opera- tions, centralization of control of labor relations, common management, and common ownership or financial control.13 The Board stated:

Similarly, in 2015, the NLRB addressed situations joint employer status. The Board ruled that where there are two or more employers at a single work site (like in fran- chising) and one employer has sufficient control over the employees, a joint employer status may exist.14

140 PART 1 Recognizing Rights and Responsibilities of Unions and Management

Union Substitution. A third company strategy to maintain nonunion status is the union substitute strategy. Some firms seek to avoid or ward off unionization of their employees by providing a substitute for unionism. Two companies, Northrup-Grumman Corporation (which has only 3 percent of its employees in unions) and Federal Express (whose pilots are the only group in unions) explicitly state that their adoption of nonunion employment dispute resolution procedures was due in large part to their desire to avoid additional employees in unions. In addition to union avoidance, nonunion employers have adopted formal workplace dispute procedures primarily for strategic reasons, such as avoidance of legal suits, identification of workplace problems, generation of information about these problems, diagnosis of the underlying reasons for these problems, and specifi- cation of solution to these problems. In fact, about 45 million employees in nonunion companies are covered by individual employment contracts, and about 80 percent of these contracts contain a formal dispute resolution procedure (employment arbitration as the final step in one half). In comparison, about 17 million employees are covered by grievance procedures in collective bargaining agreements (nearly all have arbitration as the final step).15

Many nonunion companies have initiated employee involvement programs to restore the sense of working in a small business, to gain employee commitment to the enterprise, to dissuade union organizing, and to provide feedback to enhance motivation and productivity. Most companies have a system for giving nonunion employees infor- mation about the competitive conditions or economic circumstances of their company. The majority have employee participation programs, such as quality circles and small- group discussions of production and quality of work, and have provided formal com- plaint and grievance systems.16

Employees must be careful of violating Section 8(a)(2) of the NLRA which prohibits an employer from dominating or interfering with the formation or administration of any labor organization or from contributing financial or other support to it. In the well-publicized Electromation decision, the NLRB developed tests to determine the legality of labor- management joint efforts. Electromation, a nonunion manufacturer of electrical components, set up action committees of employees in response to a unionization campaign. These committees were established to discuss (1) absenteeism/infractions, (2) no-smoking policy, (3) communication network, (4) pay progression for premium positions, and (5) attendance bonuses during working hours. The union afterwards requested recognition, contended that the action committees were labor organizations, and filed an unfair labor practice charge, which alleged that the company had violated Section 8(a)(2) of the NLRA by its domination of the committees and assistance given to those committees. The NLRB ruled that the action committees were dominated by the company. As a result of the unfair labor practice, the company was directed to disband the action committees. The tests developed by the NLRB address the topics discussed, the representational nature of the group, and the authority of the group. See Labor Relations in Action for these tests.

The most common system for resolving employee grievances is the open-door pol- icy, wherein employees may present their grievances to management representatives. The success of this system depends on how conscientious managers at all levels are in fulfill- ing this policy and whether employees fear that presenting their grievances to managers above their immediate supervisor will have undesirable consequences.

Other forms of nonunion grievance procedures include grievance appeal boards, appeal steps up to top management, and peer review committees.17 The grievance appeal board allows employees to present their grievances to a board for a final decision. In this system, three management members and two employees might hear the grievance and decide the outcome. Although the system is sometimes called a jury of one s peers,

CHAPTER 4 Unions and Management: Key Participants in the Labor Relations Process 141

management representation is usually greater than that of employees and can outvote employee board members if necessary.18

Unionized Companies Strategies The labor relations function in unionized companies differs from that in nonunion com- panies in several ways. First, in the unionized setting, two parties, the union and manage- ment, are involved. Instead of decisions being made by management unilaterally, many decisions, such as wages, hours, promotion, layoffs, and other terms and conditions of employment, are made bilaterally through negotiations. Second, the presence of the union formalizes the employee-representation activities because employees may file a grievance if they believe that the company has violated terms of the negotiated agreement. Third, the negotiated rules and policies that govern the employment relationship for those employees covered under the collective bargaining agreement essentially become company policy because both parties have to abide by the terms that they have negotiated.19

LABOR RELATIONS IN ACTION Post-Electromation: Tests to Determine Whether Teams and their

Activities Are in Violation of 8(a)(2) of NLRA

1. Is the work team discussing Section 2(5) topics, such as grievances, labor disputes, wages, rates of pay, benefits, hours of employment, safety, or work- ing conditions? If so, the chances are increased that the company is violating Section 8(a)(2) of the NLRA.

2. Are work team members acting in an individual or representative capacity? If the team members are addressing issues that affect nonteam employees or are addressing issues on behalf of other employ- ees, the chances are increased that the company is violating Section 8(a)(2) of the NLRA. In considering the question of representation, the following factors will be investigated:

Function of the work team: Presenting employee views, making recommendations to manage- ment, and presenting other employees grie- vances are indicators of representation. Form of the plan under which work team exists: Consider the number of team members, how they were selected, and the formal organization of the team: the more formal a team s organization, the more a representative purpose is inferred. Con- sider collection of dues, defined electoral grouping, existence of a governing written instrument. Employer s intent in forming the work team: Was the team formed in response to an attempted union organizing drive? Is the team a substitute for a legitimate and independent rep- resentational union? Employee s perception of the work team: Do the employees consider the committee to resemble a labor organization or to represent anyone?

3. Is the authority of the work team limited to making recommendations to management, or does the team have delegated management authority to make deci- sions? If the work team only has power to make recommendations, this is an indicator of labor orga- nization status; however, if the work team has the power to make decisions, the presence of manage- rial decision-making authority is an indicator that the work team is not a labor organization.

4. Does the employer retain veto power over any action of the work team and who will serve on each team? Does the employer have power to abolish the team at will? Retention of discretionary veto power and power to abolish the team at will is an indication of management s unlawful domination.

5. Did the company create the work team or decide what it would do and how it would function? In other words, does the company dominate the work team? If the company establishes the work team, then selects the members, supports the work team financially, gives direction and assigns projects to the team, and so on, the chances are increased that a legal violation has occurred.

SOURCES: Michael S. Beaver, Are Worker Participation Plans Labor Organizations within the Meaning of Section 2(5)? A Proposed Framework of Analysis, Labor Law Journal 36 (August 1985), pp. 226 237; Aaron Bernstein, Making Teamwork Work Appeasing Uncle Sam, Business Week, January 25, 1993, p. 101; Electromation, Inc. and International Brotherhood of Teamsters, Local Union No. 1049, 309 NLRB NO. 163, December 16, 1992; E.I. DuPont de Nemours SG, 311 NLRB No. 88, May 28, 1993 in Daily Labor Report, June 8, 1993, pp. AA-1 AA-2, and D-1-D-10; Raymond L. Hogler, Employee Involvement and Electromation, Inc.: An Analysis and a Proposal for

Statutory Change, Labor Law Journal 44 (May 1993, June 1998), pp. 1055 1061.

142

Codified Businesslike Strategy. One strategy adopted by unionized companies is the codified, businesslike, strategy. These companies accept unions as the legitimate rep- resentative of the employees and conclude that if the employees want a union, manage- ment will deal with it. The managers do not attempt to have the union decertified, do not commit flagrant unfair labor practices, and do not try to substitute participative groups for unions. Company managers respect and trust their union counterparts and expect the same in return. For the relationship to last, both parties must realize that respect and trust are fundamental to both their futures. The approach of these compa- nies is to deal directly and bargain with the union over wages, hours, and terms and con- ditions of employment at the appropriate times. When the labor agreement negotiations are complete, managers of these companies administer the agreement as they interpret it. In other words, they go by the book. Although General Electric was known in the 1950s for its take-it-or-leave-it approach to labor negotiations (called Boulwarism), its strategy today can be categorized as a businesslike approach. The remaining chapters explain this approach to labor relations. Also, as noted previously, strategies of compa- nies and unions change during their lifetimes and with economic conditions, changes in leadership, and personalities of participants.

Accommodation or Labor-Management Cooperation. The fifth strategy shown in Exhibit 4.2 is one of accommodation or labor management cooperation. This strategy entails the union cooperating with management, rather than the parties having an adver- sarial relationship. Management and unions actively work together to create an organiza- tional climate and a way of operating that will allow employees to participate directly in decisions in their work areas as members of task teams and as members of problem- solving groups. Unions represent their members in decision making and in collective bargaining.20

Over 1,000 collective bargaining agreements have contract clauses that provide for cooperation between unions and management. Some agreements establish joint commit- tees, such as safety committees that focus on an interest to both parties, improving safety in the workplace. More extensive cooperative arrangements include joint decision mak- ing to improve quality and productivity. An even further degree of cooperation includes a partnership between the union and management about all or most decisions in the production process.21

Unions can contribute to companies strategic planning and implementation activities. For example, a union can provide input from a clearly defined group of employees, as well as transfer information about corporate plans and direction to those represented employ- ees. The union leaders can help the rank-and-file employees better understand the business plan and lend credibility to the plan. Although these contributions are clearly positive, union involvement in strategic planning takes more time because the union leadership must meet with the membership to explain planned actions. Also, to retain a competitive edge, upper management often does not want to reveal new directions and planned actions. As a result, unions typically have a greater opportunity to have a role in strategy implementation rather than in strategy formulation. For example, if a company is facing increasing losses because of foreign competition, the company may enlist the assistance of the union in finding ways to reduce costs. Alternatives include cooperative approaches to job design or developing a new reward system, such as gain-sharing, to encourage labor management cooperation. Another possibility is the introduction of new technology to improve productivity, which may include restructuring existing jobs.22

For organizations and unions to achieve a more collaborative relationship, man- agers, unions, and employees must overcome their resistance to change. Managers must develop a more open, less authoritarian managerial style; unions must abolish their

CHAPTER 4 Unions and Management: Key Participants in the Labor Relations Process 143

traditional us versus them approach and adopt the team concept; and employees must agree to greater worker commitment and more involvement in determining how to get the job done and how to get it done right.23

Employee empowerment is reflected in employee involvement and participation programs, which include quality circles, quality-of-work-life efforts, labor management participation teams, and autonomous work units. These efforts address such issues as product quality, work-unit performance, new technology, safety and health, and supervi- sion. Here, union leaders and members accept responsibility for success of the organiza- tion. Unions demonstrate their capacity to confer value to their members and create wealth for all of the organization s stakeholders.24

This relationship ensures that unions and management focus on common goals, which include the health of the business in a changing economic environment, and new issues, such as adopting new technology to ensure competitiveness and business survival. Management accepts unions as stakeholders in an ongoing complex, multi-stakeholder organization designed to ensure survival and provide an equitable return for all involved in the process. Several companies and unions have already proceeded in this direction. Harley-Davidson and its two unions co-manage the Kansas City plant. The parties have created a concept called relationship management, which places a high value on worker empowerment and interaction between employees, unions, and their suppliers. Managers at the plant have a strong, partnering relationship with the steelworkers and machinists. Team members are empowered to make key production decisions and have accountabil- ity for the results of their work without traditional supervision. Each work team has rotating representation in the plant s decision-making process. The plant manager shares office space with representatives from the steelworkers and machinists unions.

To achieve this new union role, management and union leaders must develop differ- ent skills. Union leaders need business decision-making skills; they must understand the business and the problem-solving process. At the same time, union leaders must main- tain contact with the membership to better represent members interests. Management must take steps to reorient its views from seeing unions and labor agreements as con- straints to recognizing a more cooperative union management relationship. Manage- ment must provide the union and its leadership with a secure position as the legitimate, permanent representative of the bargaining unit employees. This means aban- doning efforts to decertify the union or to reduce the union s importance at the work- place. It means developing a mutual trust between parties at every level of the organization.25

At the General Motors Lansing Grand River Assembly plant, the local management and the UAW Local 652 established a joint responsibility system of collective bargaining that encourages employees represented by the UAW to reduce production costs and increase profitability by accepting responsibilities traditionally held by management. Building on a trusting relationship and employment security, front line workers receive expanded job responsibilities and are involved in production and business decisions. An hourly team coordinator leads the work teams, reducing the number of supervisors, and shifting the supervisors role toward coaching and facilitating. More information on the company financial position and competitiveness is shared with the local UAW. The UAW local has become involved in issues, such as outsourcing, work quality, and scrap reduction, which had previously been management s responsibilities.

Because General Motors operates multiple plants, it can assign production work to those plants which have the greater productivity and efficiency records. Therefore, the motivation to continuously improve is present. Manufacturing firms in steel, aluminum, rubber, paper, food processing, and parts supply have the same opportunities. As well,

144 PART 1 Recognizing Rights and Responsibilities of Unions and Management

telecommunications and banking services have multiple call centers which could use the same model to lower costs, improve productivity and profitability, and guarantee employment security.26

Companies may choose a mixed strategy, which can encompass union avoidance, union substitution, or labor management cooperation, at various sites in a multi-plant operation. For example, a company may operate double-breasted and strongly oppose the union at one of its nonunion plants while engaging in labor management coopera- tion at another plant. Such strategic choices are made at the highest levels of the organi- zation, and the advantages and disadvantages of each strategy are seriously debated and deliberated before any strategy is adopted by the company.

Upper management considers the market pressures, operational and financial fac- tors, and collective bargaining relationships in its deliberations. If market pressures are intense as a result of import penetration, management may be inclined to choose union avoidance in the nonunion sector. However, if a high proportion of the plants are union- ized, management may choose the labor management cooperation strategy. Researchers continue to examine which factors lead to certain strategies.27

Union Strategic Planning Labor unions, like other organizations, define their operational goals, determine their organizational strategies and plans, develop policies and procedures, and manage their resources to reach their goals and maximize their performance. Unions also are involved in long-range planning, establishing procedures for budgeting, attracting able staff mem- bers, communicating with members to provide information and to obtain reliable feed- back, and establishing controls for financial accountability.28

Labor unions in the United States have been involved in strategic planning for only a short time. For years, unions as a rule reacted to managerial decisions with little con- cern for long-range implications. Today, more and more unions are finding it essential to become involved in strategic planning. Several unions, such as the Communications Workers (CWA), the Auto Workers (UAW), and the Steelworkers (USW), have recog- nized the need for long-range strategic planning and created strategic planning commit- tees. To survive, all unions must develop such plans. A typical union s strategic plan includes (1) a mission statement, (2) analysis of the external environment, (3) internal analysis of the union s strengths and weaknesses, (4) long-term and short-term objec- tives, and (5) strategy development. A survey of American Federation of Labor Congress of Industrial Organizations (AFL-CIO) unions found the following:

1. Typical mission statements are: To organize workers for the purpose of collective bargaining; to foster legislation of interest to the working class; and to disseminate economic, social, and political information affecting workers lives and welfare. As an example, see Exhibit 4.4 for the AFL-CIO s mission statement.

2. The analysis of the external environment includes an examination of the changing demographics of the workforce (toward more worker diversity), appraisal of current and future political and legislative concerns, consideration of labor s image, and analysis of employer practices and industry trends.

3. The internal analysis includes an examination of the union s internal functioning, such as union governance, openness for discussion of diverse opinions, and appraisal of the professional staff whose jobs are to provide representational services to the members.

4. Organizational objectives are set for short-term and long-term activities. Short-term objectives may include meeting membership needs through collective bargaining,

CHAPTER 4 Unions and Management: Key Participants in the Labor Relations Process 145

reducing substance abuse, improving pensions, and enhancing job security. The most common long-term objective is simply the survival of the labor organization.

5. Further work is needed to define strategies for addressing labor unions long-term concerns for continued survival and growth as institutions.29

Some unions, like the UAW, have established internal commissions to participate in strategic planning. The report of the Commission on the Future of the UAW, entitled A Strong Union in a Changing World, addressed the union s major economic concern about the erosion of the nation s industrial base and related problems of corporate flight and disinvestment. It also urged more effective use of the media in presenting the union s public positions on tax policy and fairness, dislocated employees, the changing workforce, issues of sexism and racism, and rapid change in technology and methods of work.

The Communications Workers of America (CWA) is one union that has effectively instituted strategic planning for its success. Over the last two decades, the CWA has faced serious challenges as a result of product market deregulation and technological

Exhibit 4.4 AFL-CIO s Mission Statement What We Stand for: Mission and Goals of the AFL-CIO

The mission of the AFL-CIO is to improve the lives of working families to bring economic justice to the workplace and social justice to our nation. To accomplish this mission we will build and change the American labor movement.

We will build a broad movement of American workers by organizing workers into unions. We will recruit and train the next generation of organizers, mass the resources needed to organize and create the strategies to win organizing campaigns and union contracts. We will create a broad understanding of the need to organize among our members, our leadership and among unorganized workers. We will lead the labor movement in these efforts.

We will build a strong political voice for workers in our nation. We will fight for an agenda for working families at all levels of government. We will empower state federations. We will build a broad progressive coalition that speaks out for social and economic justice. We will create a political force within the labor movement that will empower workers and speak forcefully on the public issues that affect our lives.

We will change our unions to provide a new voice to workers in a changing economy. We will speak for working people in the global economy, in the industries in which we are employed, in the firms where we work, and on the job every day. We will transform the role of the union from an organization that focuses on a member s contract to one that gives workers a say in all the decisions that affect our working lives from capital investments, to the quality of our products and services, to how we organize our work.

We will change our labor movement by creating a new voice for workers in our communities. We will make the voices of working families heard across our nation and in our neighborhoods. We will create vibrant community labor councils that reach out to workers at the local level. We will strengthen the ties of labor to our allies. We will speak out in effective and creative ways on behalf of all working Americans.

SOURCE: AFL-CIO s Mission Statement. Used with permission. Copyright © 2011 AFL-CIO. www.aflcio.org

146 PART 1 Recognizing Rights and Responsibilities of Unions and Management

change: union density declining, downsizing by the regional Bell companies, reclassifying jobs from technical and professional to managerial (resulting in those employees being ineligible for union membership), and creation and growth in mostly nonunion compa- nies. The CWA was faced with organizational uncertainty and complexities, with a mem- bership accustomed to easy contract victories and predictable, paternalistic labor relations. The CWA decided to transform itself from a telephone workers union to the union of the information age, which would focus on information services. Instead of

being a union predominantly of telephone employees, the CWA expanded to printing and publishing, radio broadcasting, journalists, computer programmers, airlines employ- ees, software specialists, and others. The CWA made adjustments at the bargaining table; it began negotiating retraining provisions for its members, pension enhancements, and early retirement bonuses. However, to ward off health insurance concessions, it had to mobilize its members for contract fights. Mobilizations included one-on-one postcard messages, work-to-rule (following rules and instructions in excessive detail) campaigns, wearing common colors or armbands on certain days of the week to show solidarity, public rallies, and campaigns of letter writing to state and local politicians. The CWA negotiated company neutrality pledges (where the company promises not to oppose efforts to organize nonunion facilities), expedited elections, and card checks for union recognition; through these efforts the CWA gained over 30,000 members. Through mer- gers with eight smaller national unions, the CWA has gained an additional 227,000 new members. The CWA agreed to support regulatory changes by use of its political influ- ence in exchange for explicit benefits guarantees and job security. Thus, over the last 20 years, the CWA has taken strategic steps to transform itself from a telephone workers

Exhibit 4.5 Excerpts from CWA s Strategic Plan: 2006 2011

Strategic Intent: Member Development Develop CWA membership to enable the organization to be self-sufficient. Develop a compelling set of member benefits. Broaden efforts to identify new member seg- ments within the scope of CWA s vision and mission, and attract and recruit new members. Maintain efforts to retain existing members.

Strategic Intent: Identity/Branding The intent is to establish the CWA as a well-known, recognized, and reputable organi- zation in the North American climbing community and with the public. Increase recog- nition of the CWA, and continue to differentiate the CWA from preceding organizations. Position the CWA as the primary source of information regarding risk management, insurance, education, and standards for the climbing wall industry and the public. Define, promote, and deliver functional, tangible, features and benefits to our members, and the public, that promote competence in practice, quality in pro- ducts and services, and a positive image for the manufactured climbing wall industry.

Strategic Intent: Standards Development The intention is for the CWA to be the leader in standards development for the manufactured climbing wall industry. The CWA will develop widely adopted, consensus-based standards, with a high degree of cooperation with other standard- setting organizations. The CWA will advocate for the adoption of sound standards and will promote the interoperability of standards by working with national and international standard-setting organizations such as ANSI. The CWA will develop and implement both engineering standards for the construction of manufactured climbing structures, and practice standards for the management and operation of manufactured climbing structures.

(Continued)

CHAPTER 4 Unions and Management: Key Participants in the Labor Relations Process 147

union to a union of the information age and has intertwined its collective bargaining, political, and organizing activities to make it one of America s most effective and suc- cessful unions.30

Several other international unions, such as the Air Line Pilots Association; Steel- workers; Service Employees International Union; American Federation of Teachers; and the Bakery, Confectionery, and Tobacco Workers, have undertaken strategic plan- ning efforts. These international unions have added new terms to their operational language, such as strategy development, organizational assessment and planning, and implementation. Unions have used surveys, interviews, and focus groups for building participation and consensus. The results have been mission statements, goals and pri- orities, assignment of responsibilities, funding activities and budget allocations, dues split between the local and international unions, and measures for evaluating success.31

With the decline of union membership as a percentage of the total labor force and subsequent reduction in dues income, unions at every level have attempted

Exhibit 4.5 (Continued) Strategic Intent: Government Affairs/Public Policy

The CWA s intention is to protect and expand the recreational use of climbing facili- ties in North America. The CWA will attempt to influence government actions, pol icy development, and legislation to achieve either neutral or positive outcomes for the industry. By marshalling the industry s resources, involving industry members, maintaining reliable relationships, and using effective advocacy techniques, the CWA can position itself to effectively represent the manufactured climbing wall industry. CWA will employ an effective issues management process that will focus its resources on advocacy at the state and, to certain extent, federal levels. Advo- cacy on the state level will attempt to achieve the best results for CWA membership.

Publications/Communications/Information Systems Development The development, organization, and distribution of information pertaining to the industry is vital to its continued growth and success. The intention is to develop CWA into the central source of information and communication regarding the man- ufactured climbing wall industry to become the industry s information broker. The CWA will identify information of interest to members and the public and will determine cost-effective ways to distribute this information.

Strategic Intent: Program Development The CWA s intention is to define and develop programs of interest to our members and to the general public that promote responsible recreational use of manufac- tured climbing facilities. CWA programs will be focused on the professional devel- opment of members and the improvement climbing related knowledge and information.

Strategic Intent: CWA Conference and Events The CWA s intention is to develop and promote a constructive and collegial com- munity within the manufactured wall industry. Community building can best be done face-to-face. The conference will bring together a critical mass of members to discuss industry-wide concerns and initiatives, promote information sharing, and improve opportunities networking. The conference will offer an opportunity to con- duct CWA business cost effectively and will provide opportunities for member train- ing, education, and professional development.

SOURCE: Reprinted with permission by Communications Workers of America, website: http://www.cwa.org

148 PART 1 Recognizing Rights and Responsibilities of Unions and Management

revitalization efforts. The Service Employees International Union (SEIU) and the United Brotherhood of Carpenters (UBC) have taken a mission-driven strategic approach, which includes a strategic plan with time-bound goals promoted aggressively by their national union leaders. The SEIU allocated 50 percent of its national budget to organizing new members; engineered mergers among locals, which were deemed too small to pursue an effective organizing agenda independently; and removed old-line, heavy-handed local leaders who resisted change. The UBC cut the national office staff by half, eliminated departments, outsourced some work, rented out a substantial part of its national headquarters, eliminated many small locals, and shifted control of resources to regional councils. These cost-cutting efforts helped to fund a shift of 50 percent of the union s resources to union organizing. While most of the national and international unions experienced a decline in overall membership, the SEIU and UBC experienced growth over the last 20 years.32 Items from the Strategic Plan of Change to Win are included in Exhibit 4.6.

Company Organization for Labor Relations Activities

There are many organizational structures for labor relations activities in U.S. companies. The following discussion introduces some of the basic organizational considerations, although different company characteristics will alter these designs.33

In larger corporations, the labor relations function is usually highly centralized, with policy, strategic planning, and bargaining decisions made at the corporate level. In fact, the final economic decisions are usually made by the chief operating executive with the advice of corporate-level labor relations managers. In smaller companies with only one

Exhibit 4.6 Items from Win s Strategic Plans

To emphasize organizing by reallocating resources on a grand scale away from other union activities and devoting 75 percent of the CTW budget to organizing.

To rebate one-half of union affiliates per capita dues if they adopt aggressive orga- nizing programs and to create a $25 million Strategic Center that will target nota- ble anti-union employers.

To target for organizing those industries that will remain in the United States. These include the health care, hospitality, retail, building services, transportation, and construction industries.

To conduct joint campaigns to recruit new members. As examples, SEIU and the Teamsters are partnering to recruit school bus drivers; UFCW and UNITE-HERE are developing a retail apparel and distribution initiative; all unions are joining the Wake Up Wal-Mart campaign, a public awareness offensive to provide informa- tion about the world s largest retailer.

To build global partnerships with unions in other countries in support of organizing multinational corporations. Andy Stern, president of the SEIU, has established informal global alliances with key union leaders in at least a dozen countries.

To cooperate with the AFL-CIO in national election campaigns. In addition, to oper- ate field offices in several states in hopes of electing labor-friendly governors and elect legislators who are committed to take actions that will facilitate organizing.

SOURCE: Richard W. Hurd, U.S. Labor 2006: Strategic Developments across the Divide, Journal of Labor Research, 38 (2) (2007), pp. 313 324; Marick F. Masters, Ray Gibney, and Tom Zagenczyk, The AFL-CIO v. CTW: the Competing Visions, Strategies, and Structures, Journal of Labor Research, 27(4) (2006), pp. 473 503.

CHAPTER 4 Unions and Management: Key Participants in the Labor Relations Process 149

or a few facilities, these decisions are made at the plant level and shared by plant man- agement with the plant labor relations manager, who offers advice.

In larger companies, at the operations or plant level, the plant manager and plant labor relations manager or human resource manager play the key roles in certain labor relations activities, such as contract administration, grievance handling, and monitoring labor relations activities. In smaller companies, activities at the plant level also include bargaining, strategic planning, and policy formulation.34

The duties and responsibilities of all labor relations managers and specialists are determined in large part by the organizational structure and its degree of centralization or decentralization of authority. The duties typically include corporate-wide responsibil- ity for policies, procedures, and programs ranging from union-organizing drives at non- union facilities to negotiations with the union at other facilities.

Exhibit 4.7 shows the organizational chart for the labor relations function in a large, complex company. As shown in the organizational chart, the vice president of personnel and industrial relations reports directly to the president and has the director of labor relations reporting to him or her. Each of the company s six product lines has its own labor relations organization.

A large, diversified company with several divisions or product lines will typically have a vice president of industrial relations, which includes human resources and labor relations activities, who reports directly to the president and has the director of labor relations reporting to him or her.

Labor relations managers at the plant level also typically have responsibilities for both human resources and labor relations activities. They help implement related corpo- rate and divisional policies, participate in contract negotiations, and resolve employee grievances over daily labor agreement administration. They typically are accountable both to the plant manager for daily labor relations activities and to divisional or corpo- rate industrial relations officials for approval of negotiated labor agreements.

Exhibit 4.8 shows relationships between labor relations managers and other man- agers at the plant level (for the sake of brevity, operations, B, C, and D are not delin- eated in detail). The facility s operations can be grouped in one or more of the following ways: by location (e.g., furnace room one versus furnace room two at a steel mill), by product (e.g., manufactured valves versus gaskets), by function (e.g., maintenance), or by technology (e.g., electroplated and chemical-plated processes).

The labor relations manager is on the same level as managers of the operations, but neither individual has authority over the other. Instead, plant labor relations managers have line-staff relationships with other managers. Line-staff relationships occur when two or more organizational members from different lines of authority work together on a particular policy (e.g., a no-smoking policy) or activity (e.g., grievances). Typically, the operations manager is responsible for the output of the facility (e.g., assembly line ) whereas the labor relations manager is responsible for employment relations with the workforce (the staff ). Neither has authority over the other; therefore, resolution or out- put of this relationship is often determined by past perceived benefits each has derived from the other.

Relationships between labor relations managers and other management officials at the plant level can be tension laden. Consider, for example, the attitude a shift supervisor might have toward a labor relations manager who has awarded to the union a grievance against him or her for performing bargaining unit work (Chapter 10) or who has over- turned a discharge decision made by the supervisor (Chapter 12).

150 PART 1 Recognizing Rights and Responsibilities of Unions and Management

Union Governance and Structure

After the union is recognized, the ordinary functioning of the union requires members to hold offices, serve on staff committees, monitor contract compliance, and perform numer- ous other duties. Even though no immediate or explicit monetary rewards are associated with this work, there are potentially personal, political and self-actualization rewards. Employees who have positive attitudes toward unions are the ones who are most likely to be the volunteers who do this type of work toward building a successful union.35

Exhibit 4.7 Labor Relations Organization: Dotted-Line Relationships

NOTE: Each respective group personnel and industrial relations manager has a direct reporting relationship to his or her respective group management while maintaining a dotted-line relationship to the corporate staff, who has the responsibility for formulation of corporate-wide labor relations policies and procedures.

As each group is dependent upon the corporate function as the formulator of this policy, the lines of communication and working relationships are strong, and the level of communication is very high. Their function is to administer corporate policies and procedures as formulated by the vice president of personnel and industrial relations and his or her staff.

SOURCE: Audrey Freedman, Managing Labor Relations (New York: The Conference Board, 1979), p. 28.

CHAPTER 4 Unions and Management: Key Participants in the Labor Relations Process 151

Unions as organizations are fundamentally different from business organizations. Business organizations are built on the assumption that power, authority, and legitimacy flow downward from the owner or stockholders through management. Union organiza- tions, on the other hand, have mechanisms such as a written constitution and by-laws that ensure an opportunity for members to participate in the governance of the organization hold office, attend meetings, vote in elections, or express dissatisfaction with the leadership. Thus, in the democratic organization of a union, power, authority, and legitimacy ultimately flow upward from the consent of the governed. If the leader- ship of a union wishes to move in a new direction, such as toward greater union management cooperation, the new direction ultimately depends on the approval of the membership. If elected leaders do not consider new initiatives in terms of the political realities, they will be rejected by the vote of the members. For example, in cases where the members do not trust management s actions in a joint cooperative effort, the leader- ship must put forth the appropriate effort to build a trusting relationship before develop- ing the joint effort.36

Nearly a hundred different international (an international union has local unions outside the United States, such as Canada. National unions have locals only in the United States) unions and over 60,000 local unions exist in the United States. Their gov- ernance is discussed in this chapter following a brief description of their organizational structure. As with companies, unions organizational structures reflect their activities. Exhibit 4.9 shows the organizational chart of an international union, which includes the various officers, operational departments and staff, regions, and local unions. In this case, the basic functions include financial activities handled by the secretary-treasurer, research, administration, education, organizing, political action, and international affairs. These activities are usually carried out at the union s national headquarters, with some headquarters staff members possibly working in the field. The regional offices are headed by a vice president, who has an advisory relationship with the local unions in the region. Regional offices are established in locations to better serve the needs of the local unions and to represent the national office in the region.

Exhibit 4.8 Management Organization at the Plant Level (Approximately 1,100 Hourly Employees)

152 PART 1 Recognizing Rights and Responsibilities of Unions and Management

At the local union level, the organizational structure is fairly simple, as illustrated by Exhibit 4.10. In most small unions, officer and shop steward positions are part-time; only in larger unions do the financial resources allow full-time union leaders. Most local unions have a president, at least one vice president, a secretary, and a treasurer. The addition of any other officer, such as the sergeant-at-arms in Exhibit 4.10, depends on the needs of the union. Shop stewards are usually elected by the members in depart- ments (or on a particular shift) to represent the membership in their respective depart- ments. The following section explains how unions are governed at the different levels and presents some of the major problems in the governing process.

To understand union governance, one can compare the union with a unit of state or federal government. The executive, legislative, and judicial activities occur at various levels. The local union meetings and national conventions are the legislative bodies; the officers and executive boards comprise the executive bodies; and the various appeal pro- cedures serve the judicial function. A union can also be compared with a private organi- zation because it is a specialized institution having a primary purpose of improving the economic conditions and working lives of its members.

Unions claim the democratic ideal, but realistically, they must rely on a representa- tive form of government. On the whole, they seem to be as democratic as local, state, and federal governments. In fact, a union s membership has more of a say in the way the union operates than most citizens have in their governments or most stockholders have in their corporations.37

To appreciate unions as organizations, one must recognize their wide diversity, the organizational relationships of the various levels, the functions of the officers, and the varying degrees of control. The next section explores the characteristics of craft and industrial unions, the functions of local union officers, and the government and opera- tions of local unions. The national or international union, which is composed of the local unions within a craft or industry, is explained in a similar framework. Not to be over- looked are the various intermediate levels of union organizations that provide specific functions for their affiliated unions. A fourth level for many union organizations is the

Exhibit 4.9 Organizational Chart of an International Union

CHAPTER 4 Unions and Management: Key Participants in the Labor Relations Process 153

federation. The AFL-CIO s organizational structure, functions, and officer responsibilities are discussed.

The Local Union Although there are generally four levels of unions local, national (or international), intermediate, and the federation of unions the local union is the main point of contact for the individual employee. The typical union member often identifies more closely with the local union than with the other union levels. He or she attends and sees local officers at the local meetings and workplace. When the union member has a grievance, the local union officers are the first to assist. During negotiations, the local union officers keep the members informed of the progress of the negotiations. Although the national union may negotiate the master labor agreement under which the local union members work and the AFL-CIO may deal with the U.S. president and Congress on certain issues facing the nation, the local union serves as the vital link between the individual union members and the national union, which in turn might link with the AFL-CIO.

Organizationally, the local union is a branch of the national union. It receives its char- ter from the national union and operates under the national union s constitution, by-laws, and rules. The constitution of the national union prescribes the number and types of offi- cers, their duties and responsibilities, and the limits of their authority. Although union constitutions vary in length and content, they often mandate certain financial reports and require that a certain number of meetings be held, that the local labor agreement conform to the master labor agreement negotiated by the national union if there is companywide bargaining, and that approval to call a strike be obtained by the local union beforehand. With the trend toward greater centralization of authority by the national union, the local union over the years has lost much of its operational flexibility.

Exhibit 4.10 Organizational Chart for a Local Union

154 PART 1 Recognizing Rights and Responsibilities of Unions and Management

Differences between Local Craft and Industrial Unions The operation of the local union in large part depends upon the type of employees mak- ing up its membership. Although there is not a clear-cut division between them, unions can be divided generally into two groups: craft and industrial. The craft unions are com- posed of members who have been organized in accordance with their craft or skill, for example, actors, bricklayers, electricians, carpenters, pilots, or ironworkers. Industrial unions have been organized on an industry basis, for example, the Steelworkers, Auto Workers, Chemical Workers, and Mine Workers. This, of course, does not mean that there are no skilled employees in the steel, auto, or rubber industries; but it does mean, for example, that the electricians in a steel plant would likely be members of the Steelworkers.

Many unions today are neither pure craft unions nor pure industrial unions. Instead, they are general unions (or multi-jurisdictional), which means the union is composed of members from multiple industries and multiple crafts. In fact, there has been a trend toward general unions, even among the largest international unions. One of the reasons is due to mergers, but the primary reason is the existence of opportunity to organize and to increase membership. Over the last 30 years, six unions have con- ducted election campaigns in a greater number of jurisdictions. These unions include the United Food and Commercial Workers (UFCW), the United Steelworkers (USW), the Hotel Employees and Restaurant Employees (HERE), the CWA, the Retail, Whole- sale Department Store Union (RWDSU), and the Office and Professional Employees International Union (OPEIU).38

Differing Scope of the Labor Agreement The craft and industrial unions differ in other ways that have an effect on their opera- tions. First, the craft unions, which frequently represent the building trades, usually negotiate short labor agreements (supplemented by detailed agreements on special topics, such as apprenticeship programs and safety) that cover a defined geographical region, and each has considerable independence from the national union compared with indus- trial unions. Because of the nature of their construction work, craft union members may work on several job sites for several employers in a given year under the same labor agreement. The labor agreement typically covers several construction companies and a number of building trades unions in the particular geographical area.

The industrial union, on the other hand, may be covered by a national labor agree- ment (a master agreement) negotiated between the company and the national union, which covers all of the company s unionized plants. For example, GM plants in Detroit and Los Angeles are covered by the same master agreement. Well over 100 pages long, the agreement explains in detail the wage plan, transfers, pensions, layoffs, and so on. A separate local supplement agreement is negotiated to cover matters of concern to the specific local plant and its employees, which must be consistent with the master agree- ment. For example, the local agreements may address rotating overtime assignments, use of plant bulletin boards, visits by international union representatives, and other issues applicable to the local plant. In plants having no national labor agreement, a plant-wide agreement covering production and maintenance employees is typically negotiated.

Differing Skills Types of skills help demonstrate another difference in local union operations. The craft members are highly skilled artisans who have completed formal training, usually in a formal apprenticeship program. Many employees in industrial unions, on the other hand, are semiskilled and do not require much prior specialized job training. Therefore,

CHAPTER 4 Unions and Management: Key Participants in the Labor Relations Process 155

the craft union members often feel that they have higher status than most of their indus- trial union counterparts. The training programs available for the industrial union mem- bers are usually offered by the company, whereas the training received by members of craft unions is organized and operated by the unions. Therefore, craft unions select those who will be offered the apprenticeship training, whereas companies alone select the trainees in the plants. Such an arrangement has allowed the craft unions to keep wages high by limiting the numbers in the craft, sometimes giving preference to their families and friends.

Differing Job Characteristics The nature of their work creates a unique opportunity for craft unions. Because many of the work assignments last only a short period, the craft members, such as electricians work on a construction project, return to the union hiring hall for their next assignment after their work is complete on a project. Upon receiving the assignment, the union members could report to another job site and work, possibly for another company. Usu- ally, these arrangements are worked out in advance by the business agent of the craft union and the companies who agree to operate under the existing regional labor agree- ment. In fact, at the time that a building contractor signs a union contract, it may have no union members in its employ (e.g., January in a northern state in the United States when construction is slow); later, the union will supply labor as needed. This type of contract is called a prehire agreement. It is similar to the closed shop (discussed later in this chapter) which is illegal in most industries but is allowed in construction under sec- tion 8(f) of the LMRA due to the unique characteristics of the industry.

The union hiring hall serves as a clearinghouse or placement office for the construc- tion companies as well as the union members. Because the hiring hall must be operated in a nondiscriminatory manner, nonunion employees may also use its services; however, use by nonunion employees is still quite rare. Typically, the union will offer work within specific job categories to the most senior workers on the hiring hall list who are available to work.

In comparison, the typical member of the industrial union is hired by the company and will work for the same employer usually at the same facility until retirement or until the employee resigns or is terminated. Thus, industrial unions do not utilize either prehire agreements or hiring halls.

Differing Leadership Roles Another difference between craft and industrial unions is the roles of the business agent and shop stewards of the craft unions and the local union officials of industrial unions. The business agent, the full-time administrator of the local craft union, provides many of the same services as the local union president of a large industrial union. Both are considered the key administrative official of their respective local union halls, and they lead the local union negotiations and play a key role in grievance administration. How- ever, the business agent has additional duties, such as administering the union hiring hall, serving as the chief watchdog over the agreement at the various work sites, and appointing an employee on each job site to serve as the shop steward.

Because the business agents of local craft unions have authority to assign members to jobs, such as in the construction industry, they can accumulate power which could lead to corruption, especially with assistance of cooperative employers. More impor- tantly, with this authority to assign workers to jobs, business agents can play favorites and members will be reluctant to challenge the business agent because they could be dis- ciplined by losing job assignments. However, in at least one case, an African-American

156 PART 1 Recognizing Rights and Responsibilities of Unions and Management

worker sued and proved that the union hiring hall had been operated in a racially dis- criminatory way for several years. The court appointed a special master to oversee the hiring hall to insure it operated fairly.39

The shop steward in a craft union, who may be the first person on the job or the most senior employee, handles employee grievances, represents the business agent on the job, and contacts the business agent if anything goes wrong. By contrast, the shop stew- ard in an industrial union is elected by the group of employees he/she will represent (like the members in a department or shift).

The shop steward is the personification of the union to the members; the impressions of the steward greatly influence the members perceptions of the union. Where impressions of the steward are positive, members also have positive views of grievance procedures and have greater union commitment. Stewards spend about 12 hours per week on labor rela- tions matters; between 50 and 80 percent of this time is spent on grievance handling. Therefore, training of shop stewards in grievance handling is important because it helps in reducing the time required to process grievances, an increased likelihood that the shop steward will seek reelection, and the ability of the steward to devote more time to improv- ing relations between the union and management.40 Most unions have ongoing steward training programs, which include such subjects as compliance with the labor agreement, filing grievances, and monitoring health and safety violations.

In local industrial unions, the local president may serve full-time if the local union can afford it. If the position is full-time, the salary comes from union dues. If the posi- tion is part-time, the president is compensated from the union treasury only for the time taken off his or her company job (at the regular rate of pay). Since much of the work is done outside the regular work hours, the presidents devote much more than the typical 40-hour week. Presidential duties include participating in local negotiations, maintaining the local union office, chairing local union meetings, assisting in grievance administra- tion, and ensuring that management abides by the agreement. Union officers who are involved in the day-to-day administration of the collective bargaining agreement may be granted preference in shift assignment and protected from layoffs. They may be granted super-seniority, which means they go to the top of the seniority list on layoff determinations.

Another position which is important to the operations of the local union is the international union representative, a staff member of the international union, who assists local officers in negotiations and in administering the labor agreement. He or she also ensures that the local s activities conform to the national constitution and direc- tives and any local agreements are consistent with a master agreement where applicable. They also have responsibilities in leadership roles in conducting union organizing cam- paigns at unrepresented sites.41

Involvement in union leadership depends upon individuals being convinced of the importance of the cause of the union. This is necessary because the union leadership, whether a shop steward or a local union president, will be devoting a certain number of hours each month without pay to provide services and benefits to co-workers. Employees who take on the role of union officer tend to do so because they are con- cerned about the well-being of their co-workers and have received encouragement from these peers. They are more likely to have been employed for a longer period but gain less satisfaction from their jobs.42

Government and Operation of the Local Union There are several common ways for union members to participate in union activities: attending meetings, holding office, attending conventions, voting (officer elections,

CHAPTER 4 Unions and Management: Key Participants in the Labor Relations Process 157

ratification of a negotiated agreement, and strike vote), and helping with the monthly newsletter.

Union members whose growth needs are not fulfilled on their job are usually more willing to become involved in union administration. Also, individuals are usually more willing to participate in union administration when their values are closely aligned with their role in the union.43

Participation in Meetings Attendance at local union meetings frequently varies between 5 and 10 percent of the total membership; however, attendance is higher among union members who perceive a potential payoff for participation.44 When a union is confronted with important busi- ness, such as during local union officer elections, taking a strike vote, negotiations, or ratifying a negotiated agreement, attendance rises.

When the meeting location and time of the meeting are convenient to the member- ship, attendance tends to rise. For example, if the meeting is held at or near the work- place immediately after work, attendance will likely increase. Craft union members, higher skilled, higher seniority, and better-educated members are more likely to attend. Union members are more likely to attend if they know they will be able participate in the meetings and if they receive a personal invitation from their shop steward. Most interest- ing, when the union members do attend, they leave the meeting fairly satisfied with how the meetings are run.45

Local unions are now using survey methods and interviewing techniques to gather information about such issues as safety and health, contract provisions, promotional opportunities, job stress, perception of the union, and recruitment of new members, not only to prepare for negotiations but also to improve the operations of the union and assess membership attitudes.46

Unions have much potential for increasing participation of local union members. For example, unions may make full use of electronic information services, like the Inter- net, Web sites, and e-mail, to communicate and pursue union objectives; and find new ways to involve the rank-and-file members in organizing, bargaining, and political activ- ities.47 Interestingly, union participation does not mean that employees are not satisfied with their jobs.48

The union leaders almost always attend local union meetings, as do departmental representatives, hard-core members, pressure groups, social groups, and aspirants to union leadership positions. Union stewards are expected to attend local union meetings and represent the interests of those in their work unit. Although direct votes occur only on major issues, the union steward can usually reflect the membership views at the union meetings.49

Locals have tried numerous ways to increase attendance of regular members, such as providing beer, sandwiches, movies, and door prizes; fining members who miss a specified number of meetings; or refusing to let members who have missed too many meetings seek an elected office. Although some gimmicks may increase attendance in the short run, many members still feel the meetings are long, boring, and frustrating affairs. 50

The average length is about two hours and much of the time is devoted to presenta- tion of reports from the treasurer, project leaders, and committee chairpersons. Oppor- tunities are provided for members to discuss these reports, but this procedure itself takes time, especially when a grievance involving someone in attendance is presented or when a controversial issue is raised before the meeting as a whole. Although the meetings may stray from the ideal, the business of the local is generally accomplished.

158 PART 1 Recognizing Rights and Responsibilities of Unions and Management

Functions of the Meeting The local union meeting may seem boring and not well attended; however, it serves sev- eral vital functions in the local union government. First, the meeting is the union s single most important governmental activity, and all authority at the local level is derived from it. Second, the meeting provides an opportunity for members to communicate with union leaders, express gripes directly, and call attention to their concerns. Likewise, it is an opportunity for leaders to provide information to members, present results of activi- ties, seek union support, and give direction to the membership. Finally, since the meeting is the supreme legislative body, this is where important decisions are made on such items as approval of appeals of grievance to arbitration, approval of expenses and constitu- tional changes, proposals for contract negotiations, election of officers, and ratification of the contract.51

Unions exist not only to better workers economic conditions, but to give employees a voice. Democratic unions provide that voice. A democratic union provides members an opportunity to exert influence over their workplace environment and to participate in decisions which affect them at work through such activities as attending local union meetings, voicing their opinions, participating in ratification and strike votes, running for office, and voting in local and national union elections. The processes in democratic unions, such as officer elections, make the union leaders more responsive to the membership.

Research has shown that positive union management relations lead to members voting in line with the political objectives of the union leaders, such as contract ratifica- tion and reelection of the incumbent union leaders. In local union officer elections, greater effectiveness in processing grievances increases the likelihood that an incumbent union leader will be reelected. Confidence in using the grievance procedure to resolve problems and the fairness of the collective bargaining agreement lead to increased sup- port for the local union leader s political goals and reelection of the incumbent. Interest- ingly, more senior members have been found more likely to have voted against the incumbent union leaders. Thus, it must be concluded that the more senior union mem- bers might not believe that the union officers are doing as much for them as they are for the more junior members.52

Because elections are so important to the democratic process, the U.S. Department of Labor has been authorized by Congress to develop rules governing union elections. (These rules are shown in the following Labor Relations in Action box on page 162.)

The National or International Union The national or international (these terms are used interchangeably in this chapter) union in the United States occupies the kingpin position in organized labor because of its influence in collective bargaining the core function of American unions. Size alone (Exhibit 4.11) indicates the magnitude of the influence of national unions millions of members work under labor agreements that are directly or indirectly the result of national union actions. The local union operates under its constitution and directives, and the federation (AFL-CIO) derives its influence, prestige, and power from the affiliated national unions.

The national union operates under a constitution adopted in a convention by representatives from locals. These constitutions have changed over time through three stages: first, in an era of independent local unions, the locals were initially careful to restrict the power of the national union. Second, as national businesses, larger regional railroads, and chain stores rose to prominence, national unions became more active in collective bargaining and political action. Local officers realized the need for a unified

CHAPTER 4 Unions and Management: Key Participants in the Labor Relations Process 159

approach toward these large corporations and the need for national laws protecting their interests. Consequently, the union locals became subordinate bodies. Third and currently, after scandals involving undemocratic and corrupt union leaders (and the passage of the Landrum-Griffin Act), most union constitutions added provisions that not only authorize the major national union functions but also protect union members individual rights and the rights of local unions in relation to the national union.53

The Convention The supreme governing body of the national union is its convention, which is usually held annually or biennially.54 The convention serves the national union in many ways: as the constitutional assembly, the legislature of the national union, the final court for union deci- sions, and the means for nominating officers (and the election in many cases). The con- vention provides the time and place for national officers to report to the members their accomplishments and failures. It provides the agenda for policy formulation, program planning, and rule making. It represents the time in which the voice of the membership holds leaders accountable for their actions. However, not all activities are official; the con- vention provides a reward for drudgery work at the local, an opportunity for politicking and public relations, and a time and place for the members to let their hair down.

The convention makes use of the delegate system, in which the number of delegates allowed depends on the number of members in the local. Because even the smallest union is allowed one delegate, the number of delegates is not exactly in direct proportion to the size of the local, although larger locals have more delegates. The convention con- ducts its business similarly to Congress and various state legislatures in that much com- mittee work (including the possible holding of hearings) is performed before debate and vote on the convention floor. However, much discussion also takes place in the conven- tion hotel bars and in meeting rooms.55

Exhibit 4.11 Twelve Largest National and International Unions

Organization Members (in thousands)

National Education Association* 2,963

Service Employees International Union** 1,867

American Federation of Teachers*** 1,597

American Federation of State, County and Municipal Employees***

1,379

United Food and Commercial Workers** 1,274

International Brotherhood of Teamsters** 1,258

International Brotherhood of Electrical Workers*** 750

United Steelworkers*** 659

Communication Workers of America*** 623

International Association of Machinists*** 570

Laborer International Union of North America*** 558

United Auto Workers*** 391

*Independent Union **Affiliated with Change to Win ***Affiliated with AFL-CIO

SOURCE: 2013-2014-2015 LM-2 Reports by U.S. labor unions, which may be found at http://www.olms.dol-esa.gov, the home page of the U.S. Department of Labor.

160 PART 1 Recognizing Rights and Responsibilities of Unions and Management

Although many subjects may go before the convention, several continue to emerge year after year, such as the following:

Internal government: dues, financial matters; and authority of the president, execu- tive board, and locals Collective bargaining: problems with current agreements, membership requests for future negotiations, establishment of bargaining priorities, determination of strategy for future negotiations Resolutions in support of or against domestic and international public policies: labor law reform, inflation, interest rates, unemployment, international balance of pay- ments, loss of jobs to foreign countries.56

Leadership and Democracy Between conventions, the national union is led by its executive board, whose members are elected by the membership. In some cases, executive board members are elected on a regional basis, and they are responsible for regional intermediate organizations that main- tain contact between the locals in the regional and the national unions. The relationship between the executive board and the national union president is usually specified in the constitution. For example, some national union presidents primarily carry out the policies of the executive board; others direct the affairs of the national union, subject to the approval of the board. However, the largest group of presidents has virtually unrestricted authority to appoint staff and direct the activities of the national union. The rationale for allowing such great authority to be vested in the chief executive is that the union often finds itself in struggles with employers or in other situations where it must act decisively and quickly. Thus, a strong executive is needed, and a single spokesperson for the union is required. This concentration of power creates opportunities for misuse of power, and an internal system of checks and balances must be devised to ensure democracy and adequate representation. Experiences that led to the passage of Titles I to VI of the Landrum Griffin Act (covered later in this chapter) have shown that internal control may not work effec- tively, making that government regulation essential. Members rights to participate in union elections and governance include the right to nominate candidates in elections, vote in elections, attend membership meetings, participate in the deliberations, and vote on the business at these meetings, such as setting dues and assessments.57

Democracy within the union can improve its overall efficiency and effectiveness. Union leaders will better represent the members because they will know what the mem- bers want. Democracy will make it easier to eliminate corrupt and ineffective officers who do not represent the members interests. Furthermore, paid union officials cannot perform all the tasks needed within a union and have to rely on the efforts of volunteer unpaid leaders and members. These volunteer leaders will have a greater commitment to the union if they are involved. The components of democracy should include (1) shared sovereignty in decision making; (2) opportunities to participate in decision making; (3) access to complete information necessary for decision making; (4) guaranteed equal rights for individuals and respect for individual dignity.58

One indication of union democracy and active participation by members has been the turnover rates of national union presidents. Some former international union leaders maintained their positions for extended periods (e.g., Dan Tobin, Teamsters, 45 years; John L. Lewis, Mine Workers, 39 years). In the 1950s and 1960s, the turnover rate for union presidents was about 20 percent, rising to 25 percent in the 1970s. Then, in the late 1980s, the turnover rate reversed to 10 percent. Although turnover is not the necessary prerequisite for union democracy, the general rule is that to remain in office a union leader

CHAPTER 4 Unions and Management: Key Participants in the Labor Relations Process 161

must be responsive to the membership and satisfy the membership s objectives.59 The pre- sident s tenure in office tends to be longer in larger unions, which have formalized com- munication networks, centralized bargaining, and heterogeneous rank-and-file members.60

Profile of Union Leaders Most union leaders come from working-class families; the majority of their fathers were hourly employees. Union leaders have an average of 14.1 years of formal education. Over 70 percent of union leaders have some college experience; 17 percent have postgraduate edu- cation; and 27 percent are college graduates. They first joined a union for the same reasons most union members do today: 40 percent joined because it was a condition of employment, 33 percent joined because they believed in the goals of organized labor, and 25 percent wanted better pay and working conditions. Their reasons for pursuing union leadership posi- tions include the following: challenging work, interesting work, extended their range of abili- ties, opportunity to learn new things, achieve something personally valued, believed in the goals of the union, and opportunity to improve working conditions of fellow employees.61

A survey of national union leaders revealed some new directions, which included the following:

Centralizing some of the national union s functions, such as supporting federal leg- islation, while pushing other decisions closer to the membership, such as taking a local union member s grievance to arbitration

LABOR RELATIONS IN ACTION Rules Governing Union Officer Elections (U.S. Department of Labor)

1. All local unions must elect officers at least once every three years; international unions every five years.

2. Local unions are required to have direct elections by manual or mail ballots; international unions are per- mitted to elect officers by delegates.

3. Proper safeguards must be prepared for mail ballot- ing, for example, insurance that all members received a ballot and have sufficient time to vote and return the ballot. With manual balloting, proce- dures for voter secrecy (private voting booths, a pri- vate table where the view is blocked by cardboard or a private room), and voter identification (driver s license or company badge) must be established.

4. The location, date, and time of the election must be convenient for all of the members.

5. Notice of the election which contains the date, time, place, and so on must be mailed to every member 15 days prior to the election.

6. There must be reasonable notice of the rules gov- erning nominations mailed to or posted for the membership. Nominations may be done orally at a union meeting or by mail, but every member must have a reasonable opportunity to nominate.

7. Requirements for voter eligibility are the same as the requirements for membership. Voter eligibility must be verified.

8. After the ballot is marked, it should be placed in a nearby ballot box by the voter, and the voter should leave the area by a door different from the entrance of members who have not voted.

9. Neutral persons should conduct the elections and count the ballots.

10. Observers are a necessary part of the election pro- cess, and each candidate is entitled to one or more observers (depending on the polling hours, polling sites, and size of the election).

11. Each candidate has a right to have campaign mate- rials mailed. Some unions do the mailing at the can- didate s expense; some unions provide computer printouts of the membership lists or mailing labels of membership addresses.

12. The use of union or employer funds to support a candidate is prohibited. This ban applies to copying machines, campaigning in a union publication, use of union or employer cars, any property of the union or an employer, assistance by any employer or a relative who owns a business and just wants to help a family member get elected, and others.

SOURCE: Helen Boetticher, How to Hold a Union Election and Stay Out of Trouble, Labor Law Journal, 51 (4) (2000), pp. 219 224.

162

Broadening the scope of bargaining to include a more holistic approach, such as negotiating child-care and elder-care issues and member education Studying and learning from business organizations on subjects like strategic planning, clear objectives, a clear chain of command, and established rules and procedures Improving union and member effectiveness through goal setting, team building, and member surveys Improving communication with members by use of information technology, such as video conferences, Web sites, and e-mail.62

Administration The operational departments of international unions vary in kind and number, but the typical international union will have at least the following departments: (1) executive and administration; (2) financial and auditing; (3) organizing, (4) negotiating, grievance han- dling, and arbitration services; and (5) technical staff, which includes research, education, economics, law, publications, and public relations.

The executive and administrative group includes the president, vice president(s), secretary-treasurer, and their assistants. This group is chiefly responsible for the activities of the overall union. In some cases, the vice president may concentrate on organizing or collective bargaining, whereas the secretary-treasurer will focus on financial matters.

Presidents of U.S. national and international unions are paid well. Presidents of the three largest unions earn over $250,000 per year.63 These salaries do not approach the average earnings of CEOs. The salaries of the top 100 highest-paid CEOs ranged from $20.6 million to $156.1 million in 2014. CEOs now earn 373.1 times the earnings of an average worker in the United States who made $35,239.64

Thousands of union members, union stewards, and local union officials receive no compensation for their union work and are reimbursed only for time lost from their jobs when involved in union business.

Professional Staff Members Unions have two kinds of professional staffs. The first group is either appointed or elected and holds such titles as international union representative, staff representative, business agent, or organizer. These staff members work away from the international union headquarters and assist local unions in bargaining, contract administration, and organizing. The second group performs more technical, specialized functions at the union headquarters. This group includes such professionals as industrial hygienists; phy- sicians; economists; attorneys; accountants; computer operators; and specialists in educa- tion, media, public relations, and so forth. Interestingly, the staff members have formed staff unions, mostly to promote their job security and equitable salary schedules. Most staff unions are independent, but some have affiliated with a national labor union, such as the CWA, the Steelworkers, or the Newspaper Guild.

Unions have been criticized for making their personnel decisions based on internal politics and limiting selections only to internal candidates. There has always been a union tradition of protecting workers against unfair discharge; thus, this tradition has been a bar- rier to disciplinary action of its own employees with union staff members being fired only in the most serious cases of incompetence or abuse. Unions have also been criticized because few unions have written job descriptions or provided training programs and ori- entation for staff members. In recent years, these criticisms have been addressed and union s human resource practices have become more standardized. These changes have been addressed because unions are facing more and more complex challenges in all of

CHAPTER 4 Unions and Management: Key Participants in the Labor Relations Process 163

the areas in which they operate – economics, financial, political, legal, and organizational. Today, unions are likely to have written policies in five areas: sexual harassment, discipline and discharge, ethics, equal opportunity/affirmative action, and hiring.

Unions today are establishing more modern human resource policies and practices. The unions response has been caused by shrinking resources, growing employer resis- tance to unions, and government regulations.65

The types of skills, knowledge, and experience required of staff members to address these challenges have changed. When unions place a higher priority on servicing the membership (assisting the local in contract negotiations, resolving grievances, presenting an arbitration, etc.), the institutional knowledge and nuts and bolts of bargaining and political and leadership skills gained from being a local union officer are valuable for a staff job. While these qualities are important for some staff jobs, they may not be essen- tial for conducting organizing drives or working in political campaigns. In fact, many staff jobs today require greater technical skills, such as data assessment, communications, financial and economic analysis, which are not gained through experience in local unions. Unions now look outside their own membership to find the professionals needed to assist in meeting the needs of the unions and their members. Requiring a college degree for some staff jobs has become commonplace.

Unions are not unlike many organizations, such as local government, a public orga- nization, even student organizations. Within these organizations, change is difficult, even with visionary union leaders with smart plans for preparing their members to meet pres- ent and future challenges. One impediment to advancement of unions is resistance from the unions own staff. One reason is that unions are democratic organizations. Some of the staff members may have been placed in their positions because they helped get some- one elected. Some staff members may even do an end run to higher authorities to get a lower level supervisor off their backs. When a staff member has friends in high places, it is difficult to modify their behaviors.66

Today, most national unions provide in-house training for their professional staff. Numerous universities have labor education programs that offer professional develop- ment for union members. The George Meany Center for Labor Studies in Silver Springs, Maryland, offered courses on arbitration, organizing, negotiating, leadership development, etc. and has an annual enrollment of several thousands. Its National Labor College offers accredited undergraduate and graduate programs designed for union staff since 1997, and several hundred union officials have college degrees by par- ticipating in this program.67

Services to and Control of Locals As indicated earlier, the locals are constitutionally subordinated to the national union, but the degree of subordination varies with the union. The national union provides services to the local union in several ways while at the same time controlling local union leaders. For example, when the company produces a mobile product, such as automobiles and a national or international product market exists, a master labor agreement with one firm might be negotiated to cover all its facilities (such agreements have been negotiated in the steel, auto, rubber, aircraft, and electrical appliance industries). Also, a union such as the UAW may negotiate an agreement with a company like GM at the national level, and this agreement may establish a pattern for negotiating with other auto companies such as Ford and Chrysler. Following the negotiations of the master agreement between the national union and each company, the local union will negotiate a local agreement with company officials at each plant, covering local rules, policies, and benefits. Any deviations from the master agreement must be approved by the national union. When the product is not

164 PART 1 Recognizing Rights and Responsibilities of Unions and Management

mobile, such as in construction, the negotiations and the labor agreement cover a smaller geographic area. (See Chapter 6 for further coverage of this issue.)

The national union through the international union representative assists locals in collective bargaining, grievance administration, strike activities, and internal financial administration. These services also provide an opportunity for national union staff mem- bers to ensure that the local unions are conforming to national policies.

The national union supports the local union in strike situations, but the local union must get approval to qualify for strike benefits. The national union provides counseling and consultation for internal financial administration (bookkeeping, dues collection, pur- chases, financing union lodges, etc.), but trusteeship (receivership) procedures are avail- able whereby the national union can suspend local union control for abuses such as malfeasance, corruption, and misuse of funds. The national union could replace local lea- ders with a trustee appointed by the national union.

Dues, Fees, and Distribution of Funds Although all union members pay dues or fees to their national unions, the amount and form vary considerably. Such dues are the chief source of revenue for unions. The monthly dues are typically between $20 and $30, and the initiation fee is about $40. Some unions set a single rate, but most allow the local union some flexibility in making the final determination. Typically, dues are collected via a dues check off system wherein the member agrees to a payroll deduction of union dues, which are collected by the employer and paid them directly to the union.

The local unions forward a portion of the monthly dues for each member to the national union. The national unions use these funds for various purposes beneficial to the membership. Although the largest percentage of funds goes to the general fund, which covers administrative and operational costs and salary expenses, allocations are also made to accounts, such as a strike fund, a convention fund, union publications, edu- cational activities, and a retirement fund.68

The use of union dues for political purposes has been a combative political issue for many years. Unions spend on average only 4.27 percent of the dues income for political purposes. Advocates (which include the National Right-to-Work committee, the Heritage Foundation, and the Christian Coalition) for worker paycheck protection support state and federal legislation claim they which would give nonunion bargaining unit employees, who are required to pay dues under a union-security arrangement, the right to opt-out to the union using of any portion of their payments for political purposes. Those who opt-out may then apply for a rebate of the portion of their dues used by the union for political purposes. A more extensive approach is the opt-in provision which would require nonunion employee dues-payers to explicitly grant the union per- mission to use a portion of their dues for political purposes.69 Recent court decisions have caused several unions, such as the Machinists; Auto Workers; Communications Workers; and American Federation of State, County, and Municipal Employees, to adopt dues rebate plans. These plans allow a rebate of a portion of member dues spent on political activities if the member requests it in advance (usually annually).

The U.S. Supreme Court has ruled that if a union uses dues and fees of protesting employees for non-collective bargaining activities and purposes, it breaches its fidu- ciary duty of fair representation.70 Unions can continue to solicit volunteer contribu- tions through such units as the AFL-CIO Committee on Political Education (COPE), the UAW s Community Action Program (CAP), and the United Mine Workers (UMW s) Coal Miners Political Committee (COMPAC), but collections may be more difficult.

CHAPTER 4 Unions and Management: Key Participants in the Labor Relations Process 165

Finances of unions are considerably decentralized across union levels, with a few local unions having more wealth and income than their national unions. Likewise, union finances are highly concentrated across unions, with a few unions dominating the scene. For example, the National Education Association receives $385 million in annual revenue, and the UAW has assets of nearly $1.0 billion.71

Unions financial performance has improved considerably in the last few years. In fact, some unions have a collective capacity to fund nearly a full year of services without the infusion of any new income. Organized labor s decline in bargaining power and strike activity over the past two decades has not been due to any diminished financial capacity of unions to withstand strikes.72

Mergers of National Unions Mergers of national unions have occurred at a quickening pace in recent years. These have been spurred by rising operating costs. Several additional reasons have prompted such mergers, including the following: (1) the AFL-CIO merger set an example for its member unions, (2) the need for stronger bargaining positions, (3) a desire to avoid expensive jurisdictional disputes between unions, (4) the decline for some U.S. industries, (5) economics of scale, (6) avoidance of external controls, and (7) the need for self- preservation. Obviously, some mergers reflect a combination of these motivations.

Union mergers are either amalgamations or absorptions. Amalgamations occur when two or more unions of roughly similar size join together to form a new union. Absorptions occur when a small union is absorbed by a larger one. The smaller one loses its separate identity, and the size and structure of the larger one is minimally affected.73 Since there were 146 national union mergers from 1955 to 2007, about three per year. Amalgamations accounted for about 15 percent and, since 2000, there have only been two. One of these amalgamations, the merger of UNITE (primarily clothing and textiles workers) and HERE (primarily hotel and restaurant workers) in 2004 lasted only five years. (The UNITE group split and formed Workers United; in 2010 Workers United affiliated with the Service Employees International Union). Amalgamation mer- gers are difficult because they join together different traditions, organizational structures, and administrative practices of two separate unions in creating a new union. Amalgama- tions essentially disband the existing unions and create a new one. Merger committees must agree on new governing structures and administrative practices, such as election of officers, changes in the constitutions, retention, layoffs, and retirement of staff mem- bers; officer positions and authority of these officers; location of the union headquarters; and continuation and/or elimination of separate union newspapers.

Absorptions are easier because the smaller unions merge into the larger union and the smaller union becomes part of the larger one. The smaller unions may retain a divi- sion or section within the larger union and may even retain their own officers, locals, bargaining councils, and most of their constitutions. As a result, the absorption may entail little more than printing new union stationery.

Often overlooked in union mergers are the behavioral dimensions. These dimen- sions include how the union merger affects the behavior of union members and how the union members are affected by the merger. Members tend to evaluate the merger in practical terms, that is, types and quality of service to be received, job protections they receive, effect on member dues, level of democracy, opportunities to participate in union governance, and so on. Successful mergers require issuing union bulletins and having special meetings to explain the benefits of the mergers. If the merger occurs without member support, the merger will fail. The leaders must convince enough members that the membership will benefit from the merger. If the members become disaffected and

166 PART 1 Recognizing Rights and Responsibilities of Unions and Management

withdraw their participation, the merged union will possibly disintegrate like the UNITE HERE merger in 2009.74

Five unions have dominated the merging activity. These unions are the Service Employees International Union (SEIU), the United Food and Commercial Workers Union (UFCW), the Communication Workers of America (CWA), the International Brotherhood of Teamsters (IBT), and the United Steelworkers of America (USWA). These five unions have over 5 million members. While some of their growth has occurred through organizing new members, most growth has occurred through mergers. While these unions are multi- jurisdictional, they have their roots in certain industries: SEIU in hospitals and nursing facil- ities; IBT in trucking; UFCW in grocery stores and meat products; USWA in aluminum, steel, petroleum refining, paper, and tires; and CWA in telecommunications.75

Intermediate Organizational Units Structurally, between national headquarters and the locals lie the intermediate organiza- tional units regional or district offices, trade conferences, conference boards, and joint councils. These units usually operate under the guidance of their various national unions, but their activities are important to the union members and employers in their areas.

The regional, or district, offices house the regional or district officers, the staff, and the international union representatives for the geographical area served. For example, Michigan has a number of Auto Workers district offices; the Steelworkers have district offices in Pittsburgh, Birmingham, and elsewhere. The offices are established to help national unions better serve their respective locals.

Trade conferences are set up within national unions to represent a variety of indus- trial groups. For example, the Teamsters have established 11 trade conferences for groups such as freight, laundry, airlines, and moving and storage. These groups meet to discuss various mutual problems and topics of interest.

Conference boards are organized within national unions in accordance with the company affiliation to discuss issues that pertain to the union and the particular com- pany. For instance, each of the national unions within the steel, auto, rubber, and electric industries has established conference boards that meet to discuss negotiations and related problems. Delegates are chosen from the local unions to represent the interests of their constituents at meetings, to plan the next negotiations, and then to relay these plans to the local union members. For example, when the United Rubber Workers were absorbed into the United Steel Workers of America in the mid-1990s, the USWA set up a Rubber & Plastics Industry Conference group led by former URW national officers; subgroups within that conference focused on each of the major tire manufacturers.

Joint councils involve groupings of local unions that have common goals, employ- ers, and interests. Examples are the building trades councils established in most metro- politan areas in the United States. Joint councils negotiate with the association of construction employers in the area, coordinate their activities, and assist in resolving jurisdictional disputes between unions.

Independent Unions There are 41 independent unions (not affiliated with the AFL-CIO or Change to Win). These unions represent mostly service and health care providers. The largest union in the United States, the National Education Association (about 3.0 million members), is among these independent unions. Other independent unions include the American Nurses Association, American Physicians and Dentists, Life Insurance Agents, National Labor Relations Board Union, Professional Engineering Association, and International

CHAPTER 4 Unions and Management: Key Participants in the Labor Relations Process 167

Union, Security, Police, and Fire Professionals.76 There are also approximately 1,500 independent local unions that have nearly half a million members. Independent local unions are found in a few large organizations such as DuPont, Texaco, Exxon, AT&T, and Procter & Gamble; in several medium-sized firms such as Dow-Jones, Weirton Steel, and Zenith; and in numerous small companies in a variety of industries.77

Employee Associations Unions are supporting new employee associations that provide a wide range of services to their members. In Cleveland, The Association for Working Women, an affiliate of the Service Employees International Union, provides a toll-free hotline, offers courses on sexual harassment and carpal tunnel syndrome injuries, and lobbies on workplace issues. In New York, AIM (Associate ILGWU Members), an affiliate of the International Ladies Garment Workers Union (now part of the SEIU), provides English classes for its mem- bers; graduate-equivalency diploma classes; skills training; and legal assistance with immigration, minimum wage, safety and health, sexual harassment, disability, and pen- sions laws. In Montana, the Montana Family Union is sponsored by the AFL-CIO and is made up of government employees, small-business owners, and even priests. It offers its members major medical benefits at less than 50 percent of their individual rates. Although critics refer to these employee associations as watered-down unions, they are serving important social functions, and their membership has grown nationally while total membership in unions has declined.78

Managerial and Professional Organizations Even though 43 percent of the total U.S. labor force is classified as managers, supervisors, or professional employees (Managers and supervisors are not eligible for coverage under the National Labor Relations Act), these groups are interested in having a greater voice at work. Sidney and Beatrice Webb recognized in their classic book Methods of Trade Union- ism, published in 1902, that there were three methods of unionism: (1) collective bargain- ing, (2) mutual aid and insurance, and (3) legal enactment. Many managers, supervisors, and professional employees have joined organizations to represent their work-related inter- ests, that is, for their mutual aid and insurance. There are 37 of these types of organiza- tions and many use union-like tactics, such as collective action, mutual aid, skill certification, and political activity, to achieve their goals. They provide group insurance and discounts and special rates for university courses, books, video tapes, and products; assist members in their career development; and engage in legal-enactment strategies. However, these organizations do not engage in collective bargaining.79

The American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) The AFL-CIO, while not including all U.S. labor unions, is composed of 55 national and international unions that have 60,000 local unions and about 10 million members. Mem- bers represent a diversity of occupations, such as actors, construction workers, barbers and hairdressers, steelworkers, bus drivers, doctors, nurses, athletes, railroad workers, telephone operators, newspaper reporters, sales clerks, garment workers, engineers, schoolteachers, and police. These unions affiliated with the AFL-CIO maintain day- to-day relationships with several thousand employers and administer about 150,000 labor agreements. Most (over 99 percent) of these agreements are negotiated without strikes or other forms of conflict and serve as the basis of employment conditions under which many work.

168 PART 1 Recognizing Rights and Responsibilities of Unions and Management

Established in 1955 when the American Federation of Labor and the Congress of Industrial Organizations merged, the AFL-CIO recognized the principle that both craft and industrial unions are appropriate, equal, and necessary parts of U.S. organized labor. The federation accepts the principle of autonomy each affiliated union conducts its own affairs; has its own headquarters, offices, and staff; decides its own economic pol- icies; sets its own dues; carries out its own contract negotiations; and provides its own services to members.

No national union is required to affiliate with the AFL-CIO. About 40 unions remain outside the AFL-CIO. Member unions are free to withdraw at any time; however, their voluntary participation plays an essential role that advances the interest of every union. National unions continue their membership in the AFL-CIO because they believe that joining together of unions into a federation of unions serves purposes their own individual unions cannot serve as well, especially involving politics and lobbying.

Examples of AFL-CIO services include the following:

Representing for organized labor before Congress and other branches of government Speaking for U.S. labor in world affairs and keeping in direct contact with labor unions throughout the free world Coordinating activities such as community services, political education, lobbying, and voter registration with greater effectiveness Helping to coordinate efforts to organize unrepresented employees throughout the United States Conducting economic and legal research on important legislative topics.

Another vital service enhances the integrity and prestige of AFL-CIO unions they must operate under established ethical practice codes covering union democracy and financial integrity. The federation also assists in minimizing conflicts between national unions that cause work interruptions by mediating and resolving disputes, such as orga- nizing disputes and conflicts over work assignments.

Organizational Structure The AFL-CIO organizational structure, shown in Exhibit 4.12, illustrates the importance of the convention. Meeting every two years and at times of particular need, delegates decide on policies, programs, and direction for AFL-CIO activities. Each national or international union is authorized to send delegates to the convention. Each union s representation of delegates at the convention is determined by the number of dues- paying members. In addition, other affiliated organizations, such as state labor councils, are represented by one delegate each.

At the last AFL-CIO convention, delegates elected Richard Trumka to be president, Tefere Gebre to be executive vice president, and Elizabeth Shuler to be secretary- treasurer. Trumpka, a coal miner s son, went to work in the mines in 1968, received his bachelor of science in 1971 from Pennsylvania State University, and received his law degree from Villanova University in 1974. Gebre was born in Ethiopia and emigrated to the United States as a teenager. Gebre received his B.S. from University of California Poly Pomana and an MBA from the University of Southern California. While in college, he worked his first union job as a night shift loader at UPS. Shuler became the youngest secretary-treasurer ever and the first female secretary-treasurer. She received her bache- lor s degree in journalism from the University of Oregon. Shuler held numerous posi- tions within the International Brotherhood of Electrical Workers prior to being chosen as Trumka s running mate in the 2009 election.

CHAPTER 4 Unions and Management: Key Participants in the Labor Relations Process 169

Between conventions, the governing body is the Executive Council, composed of the president, secretary-treasurer, and 55 vice presidents. The other members of the Execu- tive Council are likely to be current or previous presidents of international unions affili- ated with the AFL-CIO. The Executive Council meets at least three times a year and handles operational duties involving legislative matters, union corruption, charters of new international unions, and judicial appeals from member unions.

Between meetings of the Executive Council, the president, who is the chief executive officer, has authority to supervise the affairs of the federation and to direct its staff, and the secretary-treasurer handles all financial matters. To assist his administration, the president has appointed 11 programmatic departments on various subjects, which, with the assistance of the AFL-CIO staff, provide related services to member unions. The staff, located at headquarters in Washington, D.C., corresponds closely with these program- matic departments in order to better serve the member unions. (See Exhibit 4.12 for a listing of programmatic departments.) The General Board, composed of the Executive Council and one officer from each member union, is available to act on matters referred to it by the Executive Council.

Exhibit 4.12 Organization Chart of AFL-CIO

SOURCE: http://www.aflcio.org

170 PART 1 Recognizing Rights and Responsibilities of Unions and Management

The AFL-CIO has established 51 state federations (plus one in Puerto Rico) to advance the statewide interests of labor through political, lobbying, and organizing activ- ities, which involve attempts to elect friends of labor, to have favorable legislation passed, and to organize unrepresented workers, respectively. Each local union of the AFL- CIO affiliated unions in a particular state may join the state organization and participate in and support its activities. In addition, 580 local central bodies have been formed by local unions of the national affiliates to deal with civic and community problems and other matters of local concern.

To accommodate and serve the interests and needs of various trade and industrial unions, the AFL-CIO has established seven trade and industrial departments. The Build- ing and Construction Trades Department represents the interests of craft unions, mostly members of the former AFL. Another department, the Union Label and Service Trades Department, promotes the purchase and sale of union-made goods and services. The remaining departments represent the interests of such union groups as the food and bev- erage trades, maritime employees, metal trades, transportation employees, and profes- sional employees. In addition, throughout the United States where there is sufficient interest and support, 976 local department councils have been organized.80

These local central bodies have become more active in recent years, particularly in the northeastern states. As an example, 60 percent of the councils in the northeast region have adopted the Union Cities program, which contains eight steps toward rebuilding the labor movement from the bottom up and helping to improve the lives of working families. These steps include mobilizing against anti-union employers, organizing grass- roots lobbying/political action committees, creating strategies to create jobs and improve economic growth, sponsoring economic education, persuading city and county officials to pass resolutions supporting worker rights, and increasing union membership.81

The AFL-CIO established a no-raiding clause for its affiliated unions in 1962 to keep one affiliated union from attempting to draw members from another or seeking to represent a group of employees at a work site where a union already exists. The AFL-CIO also set up an Internal Dispute Plan to adjudicate conflicts among its affiliated unions.82

The AFL-CIO s operations are financed through regular member dues, called per capita taxes, which are paid by affiliated unions on behalf of their members. Currently, the per capita tax is $0.75 month, or $9.00 per year, for each member. Thus, the AFL- CIO s operating budget is around $190 million, which covers nearly all regular operating expenses. A major portion of the budget goes to the salaries of the staff. The detailed financial report of the AFL-CIO is submitted to the delegates at each convention.

The AFL-CIO offers Internet access to 17 million union members, retirees, and asso- ciate members and offers computers at low cost. This new service is an extension of the Union Privilege Benefit Program (see Exhibit 4.13), which has been offered since the 1980s. The benefits include reduced attorney fees, lower-cost life and accident insurance, participation in a motor club, car repair discounts, travel club services, a Walt Disney discount, reduced prices for educational books and software, mortgage and real estate advice, and a dental program.

The AFL-CIO recently recognized the potential of maintaining contact with employ- ees who are not members of unions by establishing an associate membership program. Those eligible for associate membership includes those who voted for the union in elec- tions where the union did not win, employees in nonunion companies who would vote for the union if given a choice, and employees who are represented by the union but have not joined it.

The AFL-CIO has formed partnerships with worker centers of working people who do not have the legal right to collective bargaining. Some, like taxi drivers, have been

CHAPTER 4 Unions and Management: Key Participants in the Labor Relations Process 171

Exhibit 4.13 Union Plus Benefits from Union Privilege

Union Plus Benefits from Union Privilege Benefits for Life Union Plus benefits stand for quality and service, with prices working families can live with. Best of all, Union Plus programs are designed specifically for working families. Our benefits have added features that are especially helpful in cases of disability or layoffs.

Who can use these benefits? You don t have to join Union Plus or Union Privilege; as a member of an AFL-CIO union, you and your family are automatically eligible for our benefits. Most unions participate in most Union Plus benefits, but some international unions elect not to offer all the pro- grams. Click here to find out which Union Plus benefits your union participates in.

Our Secret? Union Power. Just as unions provide strength in the workplace, Union Privilege provides strength in the marketplace. We deliver the best benefits through the collective buying power of over 10 million AFL-CIO union members. And we do so without using union member dues.

Programs available outside the United States

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Money & Credit Credit Card Loans Mortgage & Real Estate Union-Made Checks Credit Educational Information Your Credit Score

Insurance Deals Accident Insurance Life Insurance Auto Insurance Pet Insurance

Health & Well Being Health Savings Health Club Discounts

Education Services Union Plus Scholarship Union Plus National Labor College Scholarship Education Loan Program Go to College Process

Entertainment Discounts Theme Park Discounts Movie Ticket Discounts

Auto Advantages Care Rentals Auto Insurance Auto Buying Service Goodyear Tire & Service Discounts

Member Satisfaction & Advocacy To guarantee the quality of our benefits, we only work with industry-leading providers.

Our relationships don t stop after the Initial provider selection. We continuously update programs and monitor performance closely to ensure that they satisfy union members needs time and time again.

Our member advocates also use the collective strength of union consumers to ensure members get prompt, courteous service and high-quality benefits as well as help resolve any problems. With Union Plus programs, union members can rest assured their needs will be addressed and their voice will be heard.

CONSUMER CORNER

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For other benefits, visit the links below. Union Plus products and services help save money and headaches.

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Computers & Tech Cingular Wireless Discount IBM Computer Discount Dell Computer Discount

Union-Made Auto Buying Cingular Wireless Discounts Goodyear Tire 7 Service Discounts Disney Hotel Savings Powell s unionized bookstore Union-Made Checks

Note: Visit www.unionplus.org for updated information.SOURCE: http://www.unionplus.com/benefits/.

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172 PART 1 Recognizing Rights and Responsibilities of Unions and Management

classified as independent contractors. Others include domestic workers and day laborers who are excluded from coverage by U.S. labor laws.

Other AFL-CIO activities are educational and informational, presenting the federation s stance on a variety of issues. For example, the AFL-CIO has a Web site that keeps members up to date on current events that pertain to them and presents various reports on problems and policies of organized labor. The AFL-CIO has its aflcioblognews@aflcio.org to send out e-mail messages to interested persons. The AFL-CIO maintains the George Meany Center for Labor Studies, which offers short courses in union leader- ship development, and a speaker s bureau to provide labor speakers for high school and college classes. They also make educational films available to interested groups for a nominal fee.83

In 2003, the AFL-CIO launched the Working America program which reaches out to unrepresented workers and their families. Registration is free and members receive e- mail alerts on topics such as health care, social security, and wages, and they have access to the Union Privilege benefits. As of 2015, the AFL-CIO has enlisted three million members. Contacts are made with legislators and members engage in community- organizing activities. The AFL-CIO also offers the Union Summer program in which col- lege students or recent graduates spend nine weeks working on various workers rights campaigns.84

In the political arena, the AFL-CIO receives much attention. As a representative of organized labor, it serves as the focal point of political activities. Not only does it lobby aggressively for favorable legislation, but it publishes the voting records of each senator and representative at both federal and state levels. It attempts to influence appointments of Supreme Court judges, the Secretary of Labor, and NLRB members, who are important to organized labor. Its policy of reward your friends, punish your enemies has not changed much since Samuel Gompers s day. The AFL-CIO s COPE has a network in each state and in most large communities. COPE seeks voluntary contributions to provide funds for its activities, which include voter registration, get-out-the-vote campaigns, preparation of leaflets and posters, and research on

behalf of its candidates. Although the Federal Election Campaign Act of 1971, amended in 1974, has

restricted financial contributions to federal candidates, the AFL-CIO, COPE, and state and local bodies can still amass amazing support to help their candidates for office, espe- cially when the candidate is clearly the choice of organized labor. Organized labor and corporations have become major players in the funding of political campaigns at the fed- eral level, primarily through political action committees.

However, business groups outspend organized labor by 10 to 1. Although organized labor has played a major role in U.S. politics, it remains independent of a national polit- ical party. Over the years it has been more closely aligned with the Democratic Party, both philosophically and politically. It has become perhaps the single most important political force that has supported government programs to help the socially and econom- ically disadvantaged. It has supported consumer and environmental protection and safety and health legislation that has benefited all employees, union and nonunion alike.

Organized labor has accumulated much power and influence through its own estab- lished network and has also been instrumental in organizing other politically active groups with socially oriented objectives, such as minorities and senior citizens. However, organized labor s overall political strength and effectiveness should not be exaggerated. In some states and municipalities, union membership is so negligible that its influence is inconsequential. In areas where union membership is high, its influence is significant, and political candidates must actively solicit its support.85 Obviously, the AFL-CIO does

CHAPTER 4 Unions and Management: Key Participants in the Labor Relations Process 173

not control the membership s votes, and members frequently have multiple reasons for voting for a particular candidates.

Use of Information Technology by Unions Every international union in the United States uses the Internet and other information technologies in the major areas of union activity:

1. Internal communications between union officers, staff, and members, particularly when they are geographically dispersed. Within every union, there are international union representatives who are employed throughout the country and represent members in organizing and representational activities. E-mail communication serves as an immediate means of communication throughout the organization. Other unions provide an e-mail alert system that gives weekly updates to union members and their representatives.

2. External communications, such as to inform the public about union issues poten- tially affecting the public, workers, and unions. The AFL-CIO Web site (http:// www.aflcio.org/) gives members and nonmembers valuable information on matters dealing with worker rights, pensions, and benefits during layoffs; provides useful links to other resources; and provides a system that allows interested persons to receive e-mail updates about labor events from across the United States and the world. The AFL-CIO database over 600,000 e-mail addresses in and it is anticipated to reach several million.

3. Facilitation of bargaining activities, such as in negotiations, and informing members about employer practices. Members of the CWA were informed of the AT&T s pur- chase of BellSouth via CWA s home page. Members receive daily reports from nego- tiating teams.

4. Contract administration, such as communicating grievances and tracking decisions of arbitrators. Unions are better able to communicate with members in preparation for grievance meetings and arbitration hearings via e-mail communication. The American Postal Workers Union has a database of thousands of arbitrator decisions readily accessible to its arbitration advocates.

5. Union organizing, such as making contact with potential union members and pro- viding a means for interested employees to communicate with the union. The United Food and Commercial Workers (UFCW) is currently using the Internet in its attempt to organize employees at Wal-Mart. Its Web site (http://www.ufcw.com) keeps up-to-date information on the UFCW campaign activities.

6. Political action, such as informing potential voters about union views and those held by organized labor s friends and adversaries. Nearly every union Web site has politi- cal messages for the reader.

Union leaders see the Web as an important avenue for modernizing unionism and for bridging the gap between an increasingly heterogeneous workforce and collective activity and solidarity.86 Across the globe, unions are using information technology (IT) to expand their interactive communications. For example, LabourStart is a new social network. Unionbook, LaborNet, and LaborTech.net have sponsored annual conferences since 1990 on how to use digital communication for organized labor s advancement. The AFL-CIO uses the Web to build to mobilize the grassroots in the U.S. elections.87

The use of e-mail and the Internet has caused some concerns among organized labor. Among the concerns are the erosion of face-to-face contact, worry about loud- mouths and troublemakers monopolizing the communications, the generation gap between older precomputer leaders and the younger computer techies, loss of

174 PART 1 Recognizing Rights and Responsibilities of Unions and Management

confidentiality by computer hackers and snoops, and worry that e-mail messages will overload the system and consume an extraordinary amount of time that could be used more effectively elsewhere.88

One of organized labor s greatest concerns is use of company intranets (computerized e-mail and Web site systems within a company). These add new communication possibili- ties to employers union-substitution strategies by linking workers to their supervisors and human resource specialists who are able to quickly disseminate company information and focus attention on resolving employee grievances. Employers use of intranet is already widespread and has among its explicit objectives improved communication between work- ers and human resource departments and closer identification with the company.

One research study reports that over three-fourths of the union population has access to a computer at home. However, a third of this group did not use the Internet for e-mail or instant messaging, and nearly half did not use the Internet to receive news, weather, or sports information. Just 40 percent of the union members accessed the Inter- net at least once a day.

These researchers made several recommendations. First, unions should invest in promot- ing accessibility, educating rank-and-file about the potential benefits of IT, and training mem- bers on how to use relevant applications. Unions may also exercise their bargaining power to negotiate contracts which provide computer-based training for members. Unions may also negotiate discounted access rates through their Union Privilege program to spur members to adopt higher speed connections. Unions could identify and mobilize their high-intensity IT user members to develop networks to improve communications within and across unions, build connections with other progressive organizations, and wage grassroots campaigns in organizing and politics. Still, even with the use of IT, there can never be a substitute for the most traditional means of communication person-to-person, face-to-face contacts.89

Union Corruption and the Landrum Griffin Act

Like some business executives, a few union officials have encountered problems with law enforcement officials. Unethical and illegal practices, including corruption, racketeering, and embezzlement, have been discovered in some local and national unions. Union abuses of power were exposed by the McClellan hearings of the late 1950s. Large amounts from Teamsters pension funds had been misused. In other cases, union officials have been indicted for conspiracy to bribe a U.S. senator and for embezzlement. Indict- ments have been rendered where ghost workers were maintained on payrolls even though no services were performed. Although union corruption cannot be condoned, its magnitude is diminished when one considers the billions of dollars lost to share- holders and retirees from the corporate corruption scandals perpetuated by Enron, HealthSouth, Tyco International, WorldCom, and Bernie Madoff.

In January 2015, the federal government and the Teamsters agreed to phase out over the next five years the court s supervision of its activities. The new agreement would leave in place the election reforms contained in the 1989 consent decree and the ban on officials associating with organized crime. The new agreement struck a bal- ance that recognized both the significant progress made by the Teamsters in ridding itself of corrupt influence and providing avenue for the union to demonstrate these gains through its own independent disciplinary and electoral system. These reforms replaced national officer elections by convention delegates with secret-ballot elections by all Teamster members. It also continues a ban on officials associating with orga- nized crime figures. The new agreement struck a balance that recognized both rid- ding itself of corruption and providing an avenue for the union to demonstrate gains.

CHAPTER 4 Unions and Management: Key Participants in the Labor Relations Process 175

In five years, the federal government will have no role in Teamsters affairs.90 Team- sters president James P. Hoffa is quoted as saying: After decades of hard work and millions of dollars spent we can finally say that corrupt elements have been driven from the Teamsters and that the government oversight can come to an end. 91

An accurate assessment of union corruption is reflected by the following conclusion:

Union corruption stories are front-page news. They create images that tend to linger and are reinforced each time new allegations are raised. Certainly, Jimmy Hoffa s last- ing notoriety is evidence of this phenomenon. In fact, the level of corruption among unions and union leaders is negligible. The Labor-Management Reporting and Disclo- sure Act insures this. Very few institutions in American society are as closely regu- lated or as open to scrutiny as are American unions . The evidence is clear that all but a minute fraction of American union leaders are honest and dedicated in the per- formance of their duties. Supporting this conclusion is an investigation by a former Attorney General that found serious problems of corruption in less than one-half of one percent of all local unions.92

The AFL-CIO established the Ethical Practices Committee in its efforts to control corrupt practices and racketeering of its member unions, and its executive council was given the authority to suspend any affiliated union with corrupt practices. In 1959, the U.S. Congress showed its concern with union abuse and the potential misuse of union power through passage of the Landrum Griffin Act (the Labor-Management Reporting and Disclosure Act), which has several provisions governing union operations and gov- ernment. For example, it governs the following:

Disclosure by union officers and employees (and employers and their agents) about financial dealings, trusteeships, and any private arrangements made with any employers. Regulation of union trusteeships, including rules for their establishment and main- tenance, and the protection of the rights of members of unions under trusteeship. Fiduciary responsibilities of union officers and representatives. It also disqualifies criminals and former communists from holding union offices, and it requires certain union officers to be bonded to ensure the faithful discharge of their duties and responsibilities. Rights to participate in union elections and governance, such as the right to nomi- nate candidates in elections, vote in elections, to attend membership meetings, par- ticipate in the deliberations, and vote on union business, such as setting dues and assessments.

The law was intended to promote union democracy and financial integrity. Success in the administration of the law requires initiative on the part of union members and availability of necessary information to union members.

The Landrum Griffin Act requires unions to report and file financial information (LM-2 Reports) with the Department of Labor and to make these reports available to members. The act s intent was to allow rank-and-file union members to hold union offi- cials accountable by letting members know how their union leaders were spending their dues. For many years after the passage of the act, these LM-2 reports were not readily accessible to union members and the general public. In the summer of 2002, the U.S. Department of Labor began addressing this problem about union financial reporting and began making these LM-2 reports available online via its Web site (http://www.dol .gov). Still, there has been criticism that even when accurately reported information fully

176 PART 1 Recognizing Rights and Responsibilities of Unions and Management

complies with the law, it is hard to obtain, too complicated to understand, and difficult for members to use. 93

In 1984, the Comprehensive Crime Control Act, containing the Labor Racketeering Amendments, was passed. These amendments, backed by the AFL-CIO, closed the loop- holes in the existing laws against labor malfeasance. Convicted labor officials cannot hold any union position for up to 13 years; the previous law allowed for elongated appeals during which the officials might remain in office. Any convicted management official must be transferred outside the labor relations function and cannot serve as a consultant or advisor in labor relations.

Union Security

A union security clause in the labor agreement makes it easier for the union to enroll and retain members. Such clauses must be bargained for just like bargaining over wages, hours, seniority, and others. A reasonable level of union security is necessary for a labor organiza- tion to survive and effectively represent the interests of bargaining unit members. After the union wins representation rights under a National Labor Relations Board (NLRB) union certification election, the union is granted an irrebuttable presumption of majority status sup- port for one year. This provides the certified union a reasonable time in which to negotiate a first labor agreement with the employer without being concerned that it might be replaced by a rival union or removed by a decertification election. Any additional form of union secu- rity (e.g., union shop or dues checkoff clause) must be obtained by a union through negotia- tions with the employer. This means that the employer must agree to include these forms of union security in the labor agreement. For example, the employer may gain a benefit, such as less cleanup time, fewer vacation days, in exchange for a union security clause.

Union security provisions strengthen the union s financial resources by increasing the number of dues-paying members. Union leaders believe they are morally justified in asking all bargaining unit members to help pay for services provided by the union because they are legally obligated to represent all bargaining unit employees and all bargaining unit employees receive any benefits gained by the union. Union security provisions can offer benefits to the employer and the union. Many might contend that employers prefer dealing with a weak rather than a strong union. A weak union can aid an employer s effort to terminate a union management relationship, but it can frustrate an employer who earnestly tries to resolve working condition disputes through an established union management relationship. It is commonly the union, not the employer, who sells the collective bargaining agreement to the membership. A union has difficulty in accomplishing this objective when there are non- union member factions within the bargaining unit that seek to undermine support for nego- tiated policies. The union leaders are often asked by management to deal with employees with problems, such as high absenteeism and low production.

Union officials contend that union security provisions also offer other advantages to the employer, such as less time spent recruiting new members and collecting dues of existing members during the workday. However, management officials counter that this time savings might not result in more production because union officials might use the extra time to police the labor agreement and formulate additional grievances. Unions also maintain that morale can be improved if all employees are union members. Tensions arise when some employees do not pay for the services shared by all (the so- called free rider issue). However, a counterargument could be made that tensions are not reduced by union security, merely redirected. The possible anger of union members working with nonunion employees is replaced by the anger of nonunion bargaining unit members who feel forced to pay for unwanted union services.

CHAPTER 4 Unions and Management: Key Participants in the Labor Relations Process 177

Union Security Provisions In view of their potential advantages and disadvantages, union security provisions have taken one or more of the following forms.

Closed Shop For an employee to obtain a job in a closed shop, the employee must first become a member of a union prior to or upon employment. The closed shop was made unlawful by the LMRA in 1947.

Union Shop The most common form of union security clause, the union shop clause, is found in about 64 percent of private-sector labor agreements.94 Under a union shop contract pro- vision, the employee does not have to be a union member to be hired by the company. However, after being hired, the employee must become a union member within a period of not less than 30 days (seven days in the construction industry) to remain employed by the company. This period is considered a probationary period.

An example of a union shop clause is found in Exhibit 4.14. Can a union spend a portion of its members dues for political purposes? Does it

matter if there is a union shop and everyone is required to join the union? What if a member in a union shop doesn t want his or her money spent on political causes or dis- agrees with the positions that the union leaders take on the issues? The U.S. Supreme Court addressed these questions in Communications Workers v. Beck (487 U.S. 735 [1988]). The court held that a union shop clause requires a bargaining unit member to become only a financial core union member. This term refers to an individual who meets the minimum (core) union membership requirement of paying regular union dues and initiation fees. A union may impose additional lawful conditions for obtaining full union membership status (e.g., individual must be willing to comply with the union s constitution and bylaws). Under a union shop provision, an employer does not always have to honor a union request to discharge an employee who is not a union member if (1) the employer believes union membership was not offered to the employee on the same terms as other employees or (2) membership was denied for any reason other than the failure to tender dues.95

The Beck decision created a group of so-called Beck rights for bargaining unit employees. These Beck rights cover (1) notices to employees, (2) accounting of funds by

Exhibit 4.14 An Example of a Union Shop Clause

All present employees who are members of the union of the effective date of the execution of this Agreement shall remain members of the Union in good standing as a condition of employment. All present employees who are not members of the Local Union and all employees who are hired hereafter shall become and remain members in good standing of the Union as a condition of employment within thirty (30) calendar days following the beginning of their employment, or within sixty (60) calendar days following the effective date of this Agreement. An employee who has failed to acquire, or thereafter maintain, membership in the Union, as herein provided, shall be terminated seventy-two (72) hours after the Employer has received written notice from the Principal Officer of the Local Union certifying that member has been and is continuing to be offered to such employees on the same basis as all other members, and further that the employee has had notice and an opportunity to make all dues or initiation fee payments.

178 PART 1 Recognizing Rights and Responsibilities of Unions and Management

unions, and (3) procedure for implementation. Unions are required to notify current members annually of their Beck rights. For example, this notice requirement may be met with a notice in the December edition of the union s monthly magazine. Newly hired employees receive notice at the time the union seeks to have the employees pay dues. An employee may choose between being a nonmember agency fee payer (a financial core employee) or a union member in good standing who will become a full union member. The union is required to maintain an accounting system (subject to audit) that determines the percentage of employees dues used for collective bargaining purposes (known as charge- able fees) and those used for other activities not related to collective bargaining (known as nonchargeable fees). The union notifies employees that those who wish to exercise their Beck rights must do so annually, and the union then provides a window period (a certain time period each year) for application for a refund of a portion of dues (nonchargeable fees) for employees who exercise their Beck rights. In other words, employees who exercise their Beck rights must file once per year during a specific period designated by the union.96

In addition to appointments to heads of federal agencies, such as the National Labor Relations Board and other federal agencies, presidents are authorized to issue executive orders to cover those doing business with the federal government. On February 17, 2001, then-President George W. Bush issued Executive Order 13201 entitled Notification of Employee Rights Concerning Payment of Union Dues or Fees.

The Executive Order require federal government contractors to post notices to employees informing them of their Beck rights. The Executive Order 13201 stated:

If you do not want to pay the portion of dues or fees used to support activities not related to collective bargaining, contract administration, or grievance adjustment, you are entitled to an appropriate reduction in your payment. If you believe that you have been required to pay dues or fees used in part to support activities not related to collective bargaining, contract administration, or grievance adjustment, you may be entitled to a refund and to an appropriate reduction in future payment.

On January 2, 2002, the U.S. District Court for the District of Columbia held that the new rules would regulate a core labor management area that is already regulated by the National Labor Relations Act and would impose a duty on employers that the National Labor Relations Act does not impose. Therefore, the Court ruled that the new rules were preempted by the National Labor Relations Act and were unenforceable. This ruling was appealed and the Court of Appeals overturned the lower court s decision. Subsequently, the Labor Department began the regulatory process to implement Executive Order 13201.

On January 30, 2009, President Obama issued Executive Order 13496, which required federal government contractors and subcontractors to post a notice in the work- places informing employees of their rights under Federal labor laws (see Exhibit 4.15). Executive Order 13496 also precludes federal contractors from being reimbursed for expenses incurred to influence employees decisions to join or form a union or otherwise engage in protected collective bargaining. Nonreimbursable expenses include preparing and distributing printed materials, hiring legal and labor consultants, and holding meet- ings with employees (including paying wages for attending the meetings). Reimbursable expenses include expenses for maintaining good relations with employees and costs related to labor-management committee meetings and certain employee publications.

Agency Shop More commonly found in public-sector labor agreements, an agency shop clause does not require an employee to join the union but does require the employee to pay the union a sum equal to membership dues to remain employed. This provision assumes

CHAPTER 4 Unions and Management: Key Participants in the Labor Relations Process 179

that employees should not be forced to join a union but nonetheless should help defray the bargaining and grievance processing costs. The U.S. Supreme Court has determined that the minimum legal requirements for union membership imposed by a union or agency shop clause are essentially the same.97

Before seeking to impose an agency shop provision on a bargaining unit member, the union must inform the employee of his or her right to become a financial core rather than full union member.98 Under the agency shop, the union officers are not limited in the ways bargaining unit employee s dues are spent unless the employee exercises his or her Beck rights and becomes a financial core member. Then, the union may not charge a financial core member for the cost of union expenditures which are not related to collective bargaining, contract administration, or grievance resolution activities.99

Exhibit 4.15 Executive Order 13496: Notification of Employee Rights under Federal Labor Laws

Federal contractors and subcontractors are required to inform employees of their rights under the National Labor Relations Act (NLRA), the primary law governing rela- tions between unions and employers in the private sector. See 29 CFR Part 471. The notice, prescribed in the Department of Labor s regulations, informs employees of Federal contractors and subcontractors of their rights under the NLRA to organize and bargain collectively with their employers and to engage in other protected con- certed activity. Additionally, the notice provides examples of illegal conduct by employers and unions, and it provides contact information to the National Labor Rela- tions Board (http://www.nlrb.gov), the agency responsible for enforcing the NLRA. Federal contractors and subcontractors are required to post the prescribed employee notice conspicuously in plants and offices where employees covered by the NLRA perform contract-related activity, including all places where notices to employees are customarily posted both physically and electronically.

Federal Government contracting departments and agencies must include provi- sions requiring contractors to post the prescribed notice in every Government con- tract, except collective bargaining agreements entered into by a Federal agency, contracts for purchases under the Simplified Acquisition Threshold, and in those cases where the Secretary exempts a contracting department or agency pursuant to the Executive Order. Government contractors must also include provisions requiring posting of the prescribed notice in all subcontracts.

Enforcement responsibilities for the notice requirements are shared by two Department of Labor agencies. The Office of Federal Contract Compliance Programs (OFCCP) is responsible for investigation of complaints, compliance evaluations, and conciliation, and that agency will refer violations to the Office of Labor-Management Standards (OLMS) for enforcement. The sanctions, penalties, and remedies for non-compliance with the notice requirements include the suspen- sion or cancellation of the contract and the debarring of Federal contractors from future Federal contracts.

The Department of Labor s regulations implement Executive Order (E.O.) 13496 signed by President Barack Obama on January 30, 2009 (74 FR 6107, February 4, 2009). E.O. 13496 advances the Administration s goal of promoting economy and efficiency of Federal government procurement by ensuring that workers employed in the private sector and engaged in activity related to the performance of Federal gov- ernment contracts are informed of their rights to form, join, or assist a union and bar- gain collectively with their employer. Knowledge of such basic statutory rights promotes stable labor-management relations, thus reducing costs to the Federal government.

SOURCE: http://www.dol.gov/olms/regs/compliance/EO13496.htm

180 PART 1 Recognizing Rights and Responsibilities of Unions and Management

A union must notify all financial core members annually of the percentage of union dues assessments spent on nonchargeable activities, as well as the reasonable procedure by which the financial core member can object to such expenditures. If the financial core member objects, the union must reduce the amount of the financial core member s dues obligation by the percentage amount spent on nonchargeable activities. A financial core member who disagrees with the union s calculation of chargeable and nonchargeable expenditures may either appeal the dispute to final and binding arbitra- tion or file an unfair labor practice charge with the NLRB. Some examples of charge- able union activities are the costs of conducting contract negotiations, investigating and resolving grievances, conducting union business meetings, union publications such as newsletters intended to inform the union s membership about contract issues or griev- ance disputes, litigation costs incurred in the course of representational activities, social events or member benefits available to all bargaining unit members, and attendance at national or state union conventions. The NLRB recently ruled that the cost associated with union organizing is a chargeable expense as long as the employees being orga- nized work for an employer in the same competitive markets as bargaining unit mem- bers already represented by the union.100 Examples of nonchargeable union activities are the cost of legislative lobbying, union benefits not available to financial core mem- bers, and charitable contributions such as a donation to the local United Way campaign.

The U.S. Supreme Court in another decision also applied Beck guidelines to similar expenses paid by public-sector employees union dues.101 The Court stated that public employees did not have to pay the portion of union dues that paid for any union activi- ties that were not oriented toward the ratification or implementation of the dissenters collective bargaining agreement. This decision was not clear cut, however, as it indicated, for example, that dues payments can properly go toward a teacher union s strike prepa- ration activities even if a strike is illegal under state law. In essence, the Court agreed with the public-sector union that a strike threat represented a reasonable, albeit illegal, bargaining tactic in pursuit of legitimate bargaining unit objectives.

Contingency Union Shop Some labor agreements in right-to-work states (covered in Exhibit 4.16) have a contin- gency union shop provision stating that the union shop provision would automatically go into effect if the state s right-to-work law is eliminated. Also, some master labor agreements (covering multiple plants in several states) have quasi-union shops. These agreements provide for union shops in plants located in states that allow them, but exempt plants in states that prohibit union shop clauses. If the right-to-work law is elim- inated, the union shop clause will already be in the labor agreement.

Union Hiring Hall According to a union hiring hall provision, employers hire employees referred by the union if the union can supply a sufficient number of qualified applicants. This provi- sion is found in about 23 percent of all labor agreements but is much more common in certain industries such as construction (90 percent) and maritime (88 percent).102

Unions are required to operate hiring halls in a nondiscriminatory manner, making them equally available to union members and nonunion employees. In reality, most nonunion individuals do not choose to seek employment through union-operated hir- ing halls. A hiring hall provision helps to strengthen union security by encouraging current union members to associate their union more closely with the provision of job opportunities.

CHAPTER 4 Unions and Management: Key Participants in the Labor Relations Process 181

Preferential Treatment Clause A negotiated labor agreement provision that indicates current employees who may be union members will be given employment preference over nonemployees when a new facility is opened is called a preferential treatment clause. This arrangement was negoti- ated between the United Auto Workers and General Motors for the Saturn manufactur- ing plant located in Spring Hill, Tennessee, and was upheld by the NLRB. Such an arrangement permitted General Motors to take advantage of the skilled labor pool repre- sented by employees already on the payroll, some of whom were laid off for lack of work at the time the new plant was seeking to fill employment positions.

Dues Checkoff A provision commonly used in conjunction with one of the previously cited union security provisions, a dues checkoff makes the collection of union dues more convenient for both the union and union members. It is not a union security clause in the strict sense of the word because it does not guarantee that some or all employees will become union mem- bers. However, a dues checkoff clause in the labor agreement allows a union member to have dues automatically taken out of his or her paycheck (similar to any other payroll deduction) and transferred to the union. In addition to the dues checkoff clause agreed to by the employer and union in the labor agreement, each individual union member must sign a separate document authorizing the deduction to be made before any union dues can be automatically deducted from the employee s paycheck. This provision is important to the union because it assures the union of an uninterrupted flow of income. Without a systematic dues deduction, union officers would have to spend a great deal of time contacting recalcitrant members who kept delaying their dues payments. Why would an employer agree to a dues checkoff clause? There are several reasons. In many cases, the employer automatically agrees to this provision agreement contains it. If the union also secures a union shop clause, then a member may be fined for not paying dues. Employers do not want to lose good employees; a company may agree to deduct union dues automat- ically to avoid having to fire a good worker for such a reason. The employer may charge a reasonable administrative fee to the union for the cost of dues collection and other paper- work associated with administering this contract provision. In negotiations, astute manage- ment officials usually bargain for something in return for this provision, such as flexibility in making work assignments, subcontracting, or writing job descriptions.

Right-to-Work Laws: Controversy and Effects Employers, some employees, and the courts have long been concerned with union secu- rity provisions.103 Efforts to have Congress impose a national ban on union security agreements as part of the LMRA (Taft-Hartley Act) in 1947 were unsuccessful. Congress believed that providing a reasonable opportunity to achieve union security aided in the effective representation of employees interests in collective bargaining between their union representative and the employer. As a political compromise, Congress did enact Section 14(b) of the LMRA, which states:

Nothing in this Act shall be construed as authorizing the execution or application of agreements requiring membership in a labor organization as a condition of employ- ment in any State or Territory in which such execution of application is prohibited by State or Territorial law.

This section is unique to the United States; there is none similar to it in any other developed country in the world. Under this provision, a state may initiate legislation

182 PART 1 Recognizing Rights and Responsibilities of Unions and Management

prohibiting union membership as a condition of employment (Exhibit 4.16). Presently there are 25 states that have passed legislation (so-called right to work laws) that prohi- bits union security clauses in collective bargaining agreements.104

As noted in Exhibit 4.16, workers in the 19 of the 26 states that allow the parties to negotiate union shop agreements have average weekly pay greater than the U.S. average; 10 states which do not allow the parties to negotiate union shop agreements, have aver- age weekly pay above the U.S. ($904) weekly average.

In 2001, Oklahoma became the 22nd right-to-work state. During the political campaign, proponents of the change argued that Oklahoma would become more com- petitively positioned to create jobs if the state adopted the labor policies of neighboring states and argued for liberty, free choice, and individual initiative. Unions promoted the

Exhibit 4.16 Private Sector Average Weekly Pay by State and Right-to-Work Status, 2014

Right-to-Work States Average Weekly Pay Non-Right-to-Work States Average Weekly Pay

Alabama $881 Alaska $1,063

Arizona $926 California $1,209

Arkansas $807 Colorado $1,066

Florida $911 Connecticut $1,278

Georgia $958 Delaware $1,048

Idaho $782 District of Columbia $1,696

Indiana 846 Hawaii $908

Iowa $870 Illinois $1,089

Kansas $855 Kentucky $836

Louisiana $923 Maine $826

Michigan 984 Maryland $1,113

Mississippi $747 Massachusetts $1,315

Nebraska $837 Minnesota $1,024

Nevada $899 Missouri $891

North Carolina $890 Montana $794

North Dakota $1,050 New Hampshire $1,081

Oklahoma $876 New Jersey $1,211

South Carolina $817 New Mexico $850

South Dakota $792 New York $1,321

Tennessee $927 Ohio $922

Texas $1,070 Oregon $928

Utah $872 Pennsylvania $1,013

Virginia $1,057 Rhode Island $1,003

Wisconsin 894 Vermont $882

Wyoming $952 Washington $1,082

West Virginia $868

US Average Weekly Pay: $904

SOURCE: http://www.bls.gov/cew/ (U.S. Bureau of Labor Statistics). June 17, 2015.

CHAPTER 4 Unions and Management: Key Participants in the Labor Relations Process 183

principle of majority rule as essential to workplace democracy and urged allowing parties to negotiate the union security issue without intervention from the state. Unions also claimed that the other Sunbelt states offered lower wages, tax relief, and other subsidies in order to attract jobs.105

Unfortunately, one study found that Oklahoma residents were uninformed or misin- formed about their rights under the law. Similar results had been found in studies of residents of Virginia and Idaho.106 Then, again, after the Montana legislature considered right-to-work legislation, a study of Montana residents revealed that a large percentage of the residents were uninformed or misinformed about provisions of their labor laws.107

With Republicans having the largest number of state lawmakers since 1920, empha- sis will be placed on passing right-to-work laws which allows workers to opt out of joining unions and paying dues, even though the union is required by law to represent them. In the past three years, three states, Michigan in 2012, Indiana in 2012, and Wisconsin in 2015, passed right-to-work laws. The states of New Mexico, Maine, and Missouri considered proposed legislation in 2015.108

Exhibit 4.16 (Continued)

Airline and railway industries are covered under the Railway Labor Act, and Union Security clauses are allowed to be negotiated by the parties.

184 PART 1 Recognizing Rights and Responsibilities of Unions and Management

Efforts to promote so-called state right-to-work laws are mainly conducted by the National Right to Work Committee, founded in 1955, whose stated purpose is to protect an employee s right to determine whether to join a union. Funded principally by employer contributions, the committee does not regard itself as being against unions but merely against union security provisions that compel employees to become members. However, allegedly, the committee s pro-union, antiunion security stance has been modified to a flat anti-union approach in recent years. A related but separate organiza- tion, the National Right to Work Legal Defense Foundation provides legal representation in right-to-work cases.

There has been a long-running debate on the effects of right-to-work laws on wages and union membership. Because there is no single explanation for wage rates or union density rates and no cause-and-effect relationship has been identified, one cannot con- clude that right-to-work laws cause lower wages or low union density rates. However, Exhibit 4.16, which compares the average pay of employees in right-to-work states with that of employees in non-right-to-work states, certainly shows a wage disparity in favor of employees who work in states that allow the union and employers to negotiate and decide themselves.

There is conflicting academic research on the effects of right-to-work laws on eco- nomic development. While politicians claim that the presence of right-to-work laws attract new industries, the facts are unclear. The states which have right-to-work laws have been able to attract new industries with low taxes, tax credits, aggressive subsidies from the states and cities, and even lax environmental regulations. Therefore, a single identifiable factor such as the existence of a right-to-work law is not conclusive as the attraction of new industry. On the other hand, there is evidence that the existence of right-to-work laws leads to lower numbers of union members, less bargaining power, and lower wages to workers.109

More impressive is the comparison of union density rates between right-to-work states and non-right-to-work states (see Exhibit 4.17). Only five of the 25 (Alabama, Indiana, Michigan, Iowa, and Wisconsin) right-to-work states have union density rates above 10 percent, whereas 20 of non-right-to-work states (those states that allow the union and management to negotiate union security clauses) have union density rates of 10 percent or more.

Arguments for Right to Work Laws There are at least three primary arguments opposed to union security and in favor of right-to-work laws. First, union security clauses are considered an illegitimate restriction on employees free choice. It is argued that employees not only have the right to select a union of their choice, but also retain the right to refrain from participating in any and all union activities. Required union membership conflicts with their free choice and the requirement to join a union and/or pay union dues is undemocratic.

Second, requiring union membership violates the employees constitutional rights of free speech and association if their union dues are used to support activities not sup- ported by the nonmembers, such as backing a political candidate. Inherent in the right of free association is the employees right to choose not to participate in union activities.

Third, required union membership concedes too much power to union officials. Since employees must pay dues to retain their employment, it is plausible that the

union leaders may disregard the interests of portions of the workforce, such as nonmem- bers, women, and minorities. Requiring union membership could create a union bureau- cracy where the officers interest and the member interest collide and irresponsible union officials use the union s financial resources to achieve their own agenda, rather than meet

CHAPTER 4 Unions and Management: Key Participants in the Labor Relations Process 185

the needs of the membership. Allowing members to vote with their feet and leave the labor union forces union leaders to be more responsive to their members.110

Arguments for Abolishing Right-to-Work Laws There are three principal arguments in defense of union security clauses and abolishment of right-to-work laws. First, union security eliminates free riders those employees who receive the benefits from the union, but who pay no dues. Since the law requires

Exhibit 4.17 Employees Who Are Union Members and Who Are Represented by Unions by State and Right-to-Work Status, 2014

Employed Right- to-Work States

Employed Union Members (%)

Represented by Unions (%)

Non-Right-to- Work States

Union Members (%)

Represented by Unions (%)

Alabama 10.8 12.1 Alaska 22.8 24.4

Arizona 5.3 6.7 California 16.3 17.5

Arkansas 4.7 5.4 Colorado 9.5 10.7

Florida 5.7 7.0 Connecticut 14.8 15.7

Georgia 4.3 4.9 Delaware 9.9 11.3

Idaho 5.3 6.7 District of Columbia

8.6 10.7

Indiana 10.7 12.0 Hawaii 21.8 22.9

Iowa 10.7 12.6 Illinois 15.1 16.0

Kansas 7.4 9.0 Kentucky 11.0 12.8

Louisiana 5.2 6.4 Maine 11.0 12.5

Michigan 14.5 15.7 Maryland 11.9 13.3

Mississippi 3.7 4.2 Massachusetts 13.7 14.7

Nebraska 7.3 9.0 Minnesota 14.2 15.0

Nevada 14.4 16.4 Missouri 8.4 9.7

North Carolina 1.9 3.2 Montana 12.7 13.8

North Dakota 5.0 6.9 New Hampshire 9.9 11.5

Oklahoma 6.0 7.2 New Jersey 16.5 17.2

South Carolina 2.2 3.2 New Mexico 5.7 7.4

South Dakota 4.9 6.0 New York 24.6 25.8

Tennessee 5.0 5.6 Ohio 12.4 13.9

Texas 4.8 6.2 Oregon 15.6 17.0

Utah 3.7 4.6 Pennsylvania 12.7 13.7

Virginia 4.9 6.2 Rhode Island 15.1 15.8

Wisconsin 11.7 12.5 Vermont 11.1 13.1

Wyoming 6.7 7.5 Washington 16.8 18.4

West Virginia 10.6 11.6

U.S. Average 11.1 12.3

SOURCE: Bureau of Labor Statistics, U.S. Department of Labor, Union Affiliation of Employed Wage and Salary Workers by State, January 23, 2015, at http://stats. bls.gov/news.release/union2.t05.htm

186 PART 1 Recognizing Rights and Responsibilities of Unions and Management

the union to represent all bargaining unit employees (union s fair representation obliga- tion covered in Chapter 10) and are legally precluded from negotiating superior employment terms for union members only, it is reasonable that all employees pay dues to the union for services rendered. Therefore, it is not fair for union members to pay additional funds to the union to support employees who are free riders.

Second, where a union exists, the union was selected by a majority vote of the bar- gaining unit. The Union membership makes a democratic decision on union security clauses, that is, union shop or agency shop clauses are implemented only upon ratifica- tion of the collective bargaining by a majority of the union members and only after the union security clause has been agreed to by management. Moreover, if employees are against bargaining for different forms of union security clauses, Section 9(e) (1) of the National Labor Relations Act permits employees to conduct a secret ballot de- authorization election, administered by the National Labor Relations Board, to rescind the union s right to negotiate a union security clause in the agreement. These de- authorization elections make up only 2.5 percent of the NLRB elections and unions lose approximately 60 percent.

Third, union security clause keeps the employers from weakening employees sup- port for the union because all employees will be paying dues. There will be no incentive for employers to replace union members with nonmembers who opposed the union. This allows the democratically elected union to allocate its resources to providing repre- sentational services to members rather than being forced to defend itself against contin- uous assaults from the employer.111

Recent U.S. Supreme Court Decision In June 2014, the U.S. Supreme Court ruled that an agency fee provision in collective bar- gaining agreement under the Illinois Public Labor Relations Act violated employees free speech under the first amendment of the U.S. Constitution. The employees involved were personal assistants (PAs) who provided home care services. Customers controlled most aspects of the employment relationship, such as hiring, firing, training, supervising, and disciplining of PAs. The State of Illinois paid their salary. The Court ruled that these employees were much different from full-fledged public employees and did not enjoy the rights and benefits of state employees. Illinois law required all PAs to receive the same rate of pay and unions had no authority with respect to a PAs grievances against a customer.112

Summary This chapter discussed two of the major participants in the labor relations process: unions and manage- ment. First, the goals of unions and management were presented, with emphasis on where the goals are the same and where they have potential for con- flict. Companies labor relations strategies, ranging from union suppression to labor management coop- eration, were explained.

Union strategic plans, which are at the embryonic stage in most unions, were discussed, and examples from the AFL-CIO and CTW were presented. Compa- nies and unions are structured according to their goals;

typical examples of company labor relations organiza- tions and organizations at various levels of unions were displayed.

The chapter also discussed union governance. First, general characteristics of craft and industrial unions were explained. Then, the government and organizational activities of the local union, the national or international union, the intermediate bodies, and the federation (the AFL-CIO) were discussed. Because unions, like businesses and government, have experi- enced corruption and misuse of power and authority, examples of these problems and of steps that have been

CHAPTER 4 Unions and Management: Key Participants in the Labor Relations Process 187

taken to seek a resolution were provided. Unions show concern for the long-term survival and growth of their organizations when they attempt to negotiate a union security provision (e.g., union shop, union hiring hall, or agency shop) into the labor agreement. However,

certain union security provisions cannot be negotiated in states having right-to-work laws, permitted under Section 14(b) of the LMRA. Controversy occurs over the meaning, morality, and impact on union organiza- tions of a right-to-work law.

Key Terms Affiliation, p. 138 Craft unions, p. 155 Industrial unions, p. 155 General unions, p. 155 Business agent, p. 156 Shop steward, p. 157 International union representative,

p. 157 Constitution, p. 159

Convention, p. 160 Master labor agreement, p. 164 Dues check off system, p. 165 Absorptions, p. 166 Amalgamations, p. 166 Conference boards, p. 167 Joint councils, p. 167 Associate membership program, p. 171 Union security clause, p. 177

Closed shop, p. 178 Union shop, p. 178 Financial core union member, p. 178 Full union membership, p. 178 Agency shop, p. 179 Union hiring hall, p. 181 Preferential treatment clause, p. 182 Dues checkoff, p. 182

Discussion Questions

1. Compare the steps companies may take to implement a positive human resources manage- ment program with principles of effective management.

2. Identify the common goals of companies and unions as opposed to their conflicting goals?

3. Assess the strategic plans of the AFL-CIO and CTW, and determine whether these plans provide direction for growth.

4. Locate a local union and a local plant, and draw an organizational chart for each.

5. Select a craft union and an industrial union. Point out the characteristics of these two types of unions.

6. Compare the government of the local union with student governments and municipal governments, paying special attention to participation by members.

7. Explain why and how national unions presidents have been able to accumulate so much authority and power.

8. Differentiate among the business agent of a local union, a shop steward, and an international union representative. How do their roles differ?

9. Because the AFL-CIO does not negotiate labor agreements on behalf of national unions, why is it claimed to be the spokesperson for organized labor in the United States?

10. Compare the requirements for union democracy to any student organization with which you are familiar.

11. Formulate a one- or two-sentence argument for or against the right-to-work philosophy. Fully defend your statement from arguments that could be made against your position.

Exploring the Web

Labor Unions, Mergers, and Union Security

1. AFL-CIO Determine the names of the current leadership, the mission, the unions in the AFL-CIO, membership benefits, and summer student programs. Find out

how one who is interested can become a union member. (http://www.aflcio.org)

2. LaborNet This is a source for current information about the labor movement. It is designed to promote a democratic

188 PART 1 Recognizing Rights and Responsibilities of Unions and Management

independent labor movement. Included are references and handbooks, YouTube videos, a current blog, and the latest labor news in the United States and links to other countries. (http://labornet.org)

3. Bureau of Labor Statistics and Current Union Membership The Bureau of Labor Statistics publishes an annual report on union membership. Find and read the sum- mary for the 2015 report to discover more about the current status of labor unions. What percentage of the total employees in protective services were members of labor unions in 2015? (http://www.dol.gov) Look up the dues, assets, and officer salaries, membership of U.S. unions in LM-2 Reports.

4. Society for Human Resource Management (SHRM) As the world s largest association devoted to human resource management (275,000 members with more

than 575 affiliated chapters), the Web site for this organization provides resources, global best prac- tices, and a network of valuable contacts to more than 5,000 members in over 160 countries. SHRM has recently opened offices in China and India to establish a two-way relationship, provide education, and facilitate the advancement of human resource management. Anyone interested may sign up for e-mail alerts on human resource management topics. (http://www.shrm.org)

5. Union Security and Beck Rights For information on Union Security and Beck Rights, go to http://www.NLRB.org. Type in Beck Rights in Search Key Word ; you will find Guide- lines for Response to Beck-Related Inquiries and Advice Response memos.

References 1. Audrey Freedman, How the 1980s Have Chan-

ged Industrial Relations, Monthly Labor Review, 111, May 1988, pp. 35 39.

2. Joel Cuthcher-Gershenfeld and Saengdow Prasitti- suk, Beyond Gridlock: Advancing the American Dream in a Global Knowledge Economy via Dis- tinct Models for Labor and Employment Relations Policy, Proceedings of the 63rd Annual Meeting of the Labor and Employment Relations Association, 2011, pp. 104 129.

3. Martin M. Perline and David J. Poynter, Union Orientation and Perception of Managerial Prero- gatives, Labor Law Journal, 40, December 1989, p. 781.

4. http://hrw.org/english/docs/2007/05/01usdom 1597. Human Rights Watch, 350 Fifth Avenue 34th Floor, New York, NY 10118-3299.

5. Decisions and Order of the National Labor Rela- tions Board, 347 NLRB No. 109, August 21, 2006.

6. NLRB v. Southern Bakeries, LLC, Case 4- 14-cv04037-SOH Document 41 8/14/14.

7. Alan Balfour, The Unenforceability of the UAW s Neutrality Pledge from General Motors, paper presented at the Second Annual Meeting of the Southern Industrial Relations Association, 1981.

8. Charles R. Greer and Stanley A. Martin, Calcu- lative Strategy Decisions during Organization

Campaigns, Sloan Management Review, 19, Winter 1978, p. 73.

9. Ibid. 10. William N. Cooke and David G. Meyer,

Structural and Market Predictors of Corporate Labor Relations Strategies, Industrial and Labor Relations Review, 43, January 1990, pp. 280 282.

11. Douglas M. McCabe and David Lewin, Employee Voice: A Human Resource Manage-

ment Perspective, California Management Review, 34, Spring 1992, pp. 112 114.

12. Fred K. Foulkes, How Top Nonunion Companies Manage Employees, Harvard Business Review, 59, September October 1981, pp. 121 125.

13. Herbert R. Northrup, Construction Double- breasted Operations and Pre-Hire Agreements: Assessing the Issues, Journal of Labor Research, 10, Spring 1989, pp. 219 227.

14. Twenty-First Annual Report of the NLRB (Washington, D.C.: U.S. Government Printing Office, 1956), pp. 14 15.

15. David Lewin, Workplace ADR: What s New and What Matters, Workplace Justice for A Changing Environment, Proceedings of the 60th Annual Meeting of the National Academy of Arbitrators. 2008. pp. 1 6.

CHAPTER 4 Unions and Management: Key Participants in the Labor Relations Process 189

16. Audrey Freedman, The New Look in Wage Policy and Employer Relations (New York: The Confer- ence Board, Inc., 1985), pp. 16 18.

17. Richard B. Peterson and Douglas M. McCabe, The Nonunion Grievance System in High Per-

forming Firms, Proceedings of the 1994 Spring Meeting, Industrial Relations Research Associa- tion, Paula B. Voos, ed. (Madison, WI: Industrial Relations Research Association, 1994), p. 529.

18. Douglas M. McCabe, Corporate Nonunion Grievance Arbitration Systems: A Procedural Analysis, Labor Law Journal, 40, July 1989, pp. 432 438.

19. John E. Butler, Gerald Ferris, and Nancy K. Napier, Strategy and Human Resources Manage- ment (Cincinnati, OH: South-Western, 1991), pp. 147 158.

20. William N. Cooke and David G. Meyer, Struc- tural and Market Predictors, Industrial and Labor Relations Review, 43(2), pp. 280 282.

21. Barbara Haskew, A New Model for Labor- Management Relations, Tennessee Business, 13(2), 2004, p. 8.

22. Butler, Ferris, Napier, pp. 147 158. 23. Francis A. O Connell, Jr., The Changing Char-

acter of Industrial Relations: Comment, Journal of Labor Research, 12, Fall 1991, p. 323.

24. Robert T. Thompson, The Changing Character of Employee Relations, Journal of Labor Research, 12, Fall 1991, pp. 316 317.

25. Edward E. Lawler III and Susan A. Mohrman, Unions and the New Management, Academy of

Management Executive, 1(3), 1987, pp. 293 300. 26. Richard N. Block and Peter Berg, Joint Responsi-

bility Unionism: A Multi-Plant Model of Collective Bargaining Under Employment Security, Indus- trial & Labor Relations Review, 61, 2009, p. 60.

27. William N. Cooke and David G. Meyer, Struc- tural and Market Predictors, Industrial and Labor Relations Review, 43(2), pp. 292 294.

28. John T. Dunlop, The Management of Labor Unions (Lexington, MA: Lexington Books, 1989), pp. xii 7.

29. Christine L. Scheck and George W. Bohlander, The Planning Practices of Labor Organizations:

A National Study, Labor Studies Journal, 15, Winter 1990, pp. 69 84.

30. Harry C. Katz, Rosemary Batt, and Jeffrey H. Keefe, The Revitalization of the CWA: Integrat- ing Collective Bargaining, Political Action, and

Organizing, Industrial and Labor Relations Review, 56(4), July 2003, pp. 573 589.

31. Tracy Fitzpatrick and Weezy Waldsteing, Chal- lenges to Strategic Planning in International Unions, Proceedings of the 46th Annual Meeting of the Industrial Relations Research Association, Paula B. Voos, ed. (Madison, WI: IRRA, 1994), pp. 73 84.

32. Richard Hurd and Martin Behrens, Structural Change and Union Transformation, Proceedings of the 55th Annual Meeting of the Industrial Relations Research Association, Adrienne E. Eaton, ed., 2003, pp. 113 121.

33. John T. Dunlop, Have the 1980s Changed U.S. Industrial Relations? Monthly Labor Review, 111, May 1988, p. 33.

34. Audrey Freedman, Managing Labor Relations (New York: The Conference Board, Inc., 1979), pp. 7 33.

35. Jack Fiorito, Gregor Gall, and Arthur D. Marti- nez, Activism and Willingness to Help Organiz- ing: Who Are the Activists? Journal of Labor Research, 31, Summer 2010, pp. 363 380.

36. Bert Spector, Transformational Leadership: The New Challenge for U.S. Unions, Human Resource Management, 26, Spring 1987, pp. 3 11.

37. Alice H. Cook, Union Democracy: Practice and Ideal (Ithaca, NY: Cornell University, 1963), pp. 19 26.

38. Victor G. Devinatz, Union Organizing Trends and the Question of Post-Industrial Unionism in the Early 21st Century, Labor Law Journal, 59(3), 2008, pp. 265 270.

39. Michael Alexander McCarthy, Why Should the Business Agents Be Bigger Than the Organiza- tion? Labor Studies Journal, 35(3), September 2010, pp. 322 342. Also see: http://scholarship. law.upenn.edu/cgi/viewcontent.cgi?article=1243& context=jbl

40. James E. Martin, John Christopher, and John M. Magenau, A Longitudinal Examination of Union Steward Behaviors and Behavioral Intentions, Proceedings of the 46th Annual Meeting of the Industrial Relations Research Association, In Paula B. Voos, ed. (Madison, WI: IRRA, 1994), pp. 422 431; Paul F. Clark, Daniel G. Gallagher, and Thomas J. Pavlak, Member Commitment in an American Union: The Role of the Grievance Procedure, Industrial Relations Journal, 21, 1990, pp. 147 157.

190 PART 1 Recognizing Rights and Responsibilities of Unions and Management

41. Allan Nash, The Union Steward: Duties, Rights, and Status (Ithaca, NY: New York State School of Industrial and Labor Relations, 1977), pp. 20 22.

42. Renaud Paquet and Isabelle Roy, Why Do Peo- ple Get Involved in Local Union Office? Journal of Collective Negotiations in the Public Sector, 27(1), 1998, pp. 73 75.

43. Steven L. McShane, A Path Analysis of Partici- pation in Union Administration, Industrial Relations, 25, Winter 1986, pp. 72 78.

44. John C. Anderson, Local Union Participation: A Reexamination, Industrial Relations, 18, Winter 1979, p. 30.

45. John Lund and Don Taylor, Labor Studies Jour- nal, 35(4), 2010, pp. 566 572.

46. John Lund, Using Surveys to Learn More about Membership Attitudes, Labor Studies Forum, 4(4), 1991, pp. 1 4.

47. John T. Delaney, Paul Jarley, and Jack Fiorito, Planning for Change: Determinants of Innova-

tion in U.S. National Unions, Industrial and Labor Relations Review, 49, July 1996, p. 612.

48. J. Bryan Fuller and Kim Hester, The Effect of Labor Relations Climate on the Union Participa- tion Process, Journal of Labor Research, 19, Winter 1998, pp. 184 185.

49. James E. Martin and John M. Magenau, An Analysis of Factors Related to the Accuracy of Steward Predictions of Membership Views, Labor Law Journal, 35, August 1985, pp. 490 494.

50. Leonard R. Sayles and George Strauss, The Local Union, rev. ed. (New York: Harcourt, Brace World, 1967), pp. 96 100.

51. Ibid., pp. 93 105. 52. James E. Martin and Michael P. Sherman, Vot-

ing in an Office Election: Testing a Model in a Multi-Site Local, Journal of Labor Research, 26(2), 2005, pp. 281 294.

53. Jack Barbash, American Unions (New York: Random House, 1967), pp. 69 72.

54. The Landrum Griffin Act requires a convention at least every five years, and some unions, such as the Teamsters, take the limit of five years.

55. George Strauss, Union Government in the U.S.: Research Past and Future, Industrial Relations, 16, Winter 1977, p. 234.

56. Barbash, American Unions, pp. 76 80. 57. Marick F. Masters, Robert S. Atkin, and Gary W.

Florkowski, An Analysis of Union Reporting Requirements Under Title II of the Landrum

Griffin Act, Labor Law Journal, 40, November 1989, pp. 713 722.

58. Susan J. Schurman and Adrienne E. Eaton, Labor and Workplace Democracy: Past, Present and Future, Labor Studies Journal, 21, Summer 1996, p. 8.

59. Shulamit Kahn, Kevin Long, and Donna Kadev, National Union Leader Performance and Turn-

over in Building Trades, Industrial Relations, 25, Fall 1986, pp. 276 289.

60. Lawrence French, David A. Gray, and Robert W. Brobst, Political Structure and Presidential Tenure in International Unions: A Study of Union Democracy, paper presented at the annual meet- ing of the Academy of Management, Detroit, 1980, 16.

61. Phillip L. Quaglieri, The New People of Power: The Backgrounds and Careers of Top Labor Lea- ders, Journal of Labor Research, 9, Summer 1988, pp. 271 283.

62. Jack Fiorito, Lee P. Stepina, Paul Jarley, John Thomas Delaney, and Mike Knudstrup, Visions of Success: National Leaders Views on Union Effectiveness, Labor Studies Journal, 22, Spring 1997, pp. 14 16.

63. Current salaries may be obtained from the Forms LM-2 Reports by U.S. labor unions, found at http://www.dol.gov/esa, the home page of the U.S. Department of Labor.

64. http://www.aflcio.org/corporatewatch/paywatch/. 65. Paul F. Clark, Lois S. Gray, and Paul Whitehead,

Adapting Internal Administrative Practices of American Unions to External Challenges: A Longitudinal Study, Proceedings of 63rd Annual Meeting of the Labor and Employment Relations Association, 2011, pp. 171 177.

66. Ken Margolies, The Challenge Union Leaders Face When The Assume the Role of Managers within a Labor Organization, Proceedings of 63rd Annual Meeting of the Labor and Employment Relations Association, 2011, pp. 178 183.

67. Paul F. Clark and Lois S. Gray, Union Adminis- tration, in The State of Unions, eds. George Strauss, Daniel G. Gallagher, and Jack Fiorito (Madison, WI: Industrial Relations Research Association, 1992), pp. 179 193.

68. Charles W. Hickman, Labor Organizations, Fees and Dues, Monthly Labor Review, 100, May 1977, pp. 19 24. Also see: http://blogs.wsj.com/

CHAPTER 4 Unions and Management: Key Participants in the Labor Relations Process 191

economics/2012/12/17/closer-look-at-union-vs- nonunion-workers-wages/

69. Marick F. Masters, Raymond Gibney, and Thomas J. Zagenczyk, Workers Pay Protection: Implications for Labor s Political Spending and Voice, Industrial Relations, 48, October 2009, pp. 557 577.

70. Ibid., pp. 117 118. 71. Marick F. Masters and Robert S. Atkin, The

Finances of Major U.S. Unions, Industrial Rela- tions, 36, October 1997, pp. 502 503. Updated by LM-2 Reports.

72. Marick F. Masters, Union Wealth: The Bargain- ing Power, Journal of Labor Research, 18, Winter 1997, pp. 106 107.

73. Gary Chaison, Union Mergers: The New Interest and Some Old Questions, Employee Responsibil- ity and Rights Journal, 20, 2010, pp. 149 152.

74. Ibid., pp. 152 156. 75. Kim Moody, The Direction of Union Mergers in

the United States: The Rise of Conglomerate Unionism, British Journal of Industrial Relations, December 2009, pp. 676 700.

76. James W. Robinson, Structural Characteristics of the Independent Union in America Revisited, Labor Law Journal, 43, September 1992, pp. 567 575.

77. Sanford M. Jacoby and Anil Verma, Enterprise Unions in the United States, Industrial Relations, 31, Winter 1992, p. 140.

78. Dana Milbank, Labor Broadens Its Appeal by Set- ting Up Associations to Lobby and Offer Services, Wall Street Journal, January 13, 1993, pp. B-1, B-5.

79. Adrienne E. Eaton and Paula B. Voos, Manage- rial Unionism: Prospects and Forms, Labor Studies Journal, 29(3), 2004, pp. 25 56.

80. This is the AFL-CIO (Washington, D.C: American Federation of Labor and Congress of Industrial Organizations, 1992), pp. 1 10.

81. Jill Kriesky, Structural Change in the AFL-CIO: A Regional Study of Union Cities Impact, in Rekindling the Movement: Labor s Quest for Rele- vance in the 21st Century, eds. Lowell Turner, Harry C. Katz, and Richard W. Hurd (Ithaca, NY: ILR Press, 2001), pp. 129 154.

82. Joseph Krislov, The AFL-CIO Effort to Minimize Union Membership Conflicts: 1962 1987, Labor Studies Journal, 16, Summer 1991, pp. 3 5.

83. This Is the AFL-CIO, pp. 8 10.

84. John Budd, When Do U.S. Workers First Expe- rience Unionization? Implications for Revitalizing the Labor Movement, Industrial Relations, 49(2), 2010, pp. 209 225.

85. David Greenstone, Labor in American Politics (Chicago: University of Chicago Press, 1977), pp. xiii xxix.

86. Charles R. Greer, E-Voice: How Information Technology is Shaping Life within Unions, Journal of Labor Research, 23(2), 2002, pp. 215 235; Richard Freeman, Can the Internet Help Unions Rebound? Perspectives on Work, 7(1), 2003, pp. 43 49.

87. Marick F. Masters, Ray Gibney, Thomas J. Zagenczyk, and Irna Shevchenko, Union Mem- bers Usage of IT, Industrial Relations, 49(1), 2010, pp. 83 90.

88. Arthur B. Shostak, Today s Unions as Tomor- row s CyberUnion: Labor Newest Hope, Journal of Labor Research, 23(2), 2001, pp. 242 243.

89. Marick F. Masters, Ray Gibney, Thomas J. Zagenczyk, and Iryna Shevchuk, Union Mem- bers Usage of IT, Industrial Relations, 49(1), 2010, pp. 83 90.

90. Benjamin Weiser, Under New Agreement, U.S. Will End Oversight of the Teamsters in Five Years, The New York Times, January 15, 2015, p. A22.

91. Kris Maher, Oversight of Teamsters to End, The Wall Street Journal, January 15, 2015, p. A6.

92. Paul F. Clark, Union Image-Building at the Local Level, Labor Studies Journal, 15, Fall 1990, p. 55.

93. Phillip B. Wilson, Conquering the Enemy Within: The Case for Reform of the Landrum Griffin Act, Journal of Labor Research, 26(1), 2005, pp. 135 150.

94. Bureau of National Affairs, Inc., Basic Patterns in Union Contracts (Washington, D.C: Bureau of National Affairs, Inc., 1995), p. 97.

95. Billie Ann Brotman and Thomas J. McDonagh, Union Security Clauses as Viewed by the

National Labor Relations Board, Labor Law Journal, 37, February 1986, pp. 104 115.

96. Jeff Canfield, Note: What a Sham(e): The Broken Rights System in the Real World Workplace, Wayne Law Review, 47, Fall 2001, pp. 1049 1055.

97. NLRB v. General Motors, 373 U.S. 734 (1963); Retail Clerks International Association Local 1625 AFL-CIO v. Schermerhorn et al., 373 U.S. 746

192 PART 1 Recognizing Rights and Responsibilities of Unions and Management

(1963); and D. Louis Abood et al v. Detroit Board of Education, 431 U.S. 209 (1977).

98. California Saw and Knife Works, 320 NLRB 224 (1995), enf d. 133 F.3d 1012 (7th Cir. 1998). See also: Guidelines Concerning Processing of Beck Cases, Memorandum from the Office of the General Counsel, August 17, 1998.

99. For further discussion of this issue, see Kenneth A. Kovach and Peter Millspaugh, Implementing the Beck and Lehnert Union Security Agreement Decisions: A Study in Frustration, Business Horizons, 39, May/June 1995, pp. 57 65; Jan W. Henkel and Norman J. Wood, Limitations on the Uses of Union Shop Funds after Ellis: What Activities Are Germane to Collective Bargaining? Labor Law Journal, 35, December 1984, pp. 736 746; Peter Florey, Fair Share Proceedings: A Case for Common Sense, Arbitration Journal, 44, March 1989, pp. 35 44; David A. Lebowitz, Limits on the Use of Agency Fees: The Revival of

Communications Workers of America v. Beck, Employee Relations Law Journal, 18, Winter 1992 1993, pp. 437 461.

100. UFCW, Locals 951, 7, & 1036 (Meijer, Inc.) and Various Individuals, 329 NLRB No. 69(1999).

101. Lehnert v. Ferris Faculty Association, 500 U.S. 507 (1991).

102. Bureau of National Affairs, Inc., Basic Patterns in Union Contracts, p. 99.

103. For further historical insights into the right- to-work issue, see Gilbert J. Gall, The Politics of Right to Work (New York: Greenwood Press, 1988); William Canak and Berkeley Miller, Gumbo Politics: Unions, Business, and Louisiana

Right-to-Work Legislation, Industrial and Labor Relations Review, 43, January 1990, pp. 258 271. For a classification system of right-to-work laws various dimensions and related bibliography, see Thomas R. Haggard, Union Security and the Right to Work: A Comprehensive Bibliography,

Journal of Labor Research, 11, Winter 1990, pp. 81 106.

104. Raymond L. Hogler, The 2008 Defeat of Right to Work in Colorado: Is It the End of Section 14(b)? Labor Law Journal, 60(1), 2009, p. 5; see also Raymond L. Hogler, Right to Work and the Col- orado Labor Peace Act: How Politics Trumped Policy, Labor Law Journal, 58(2), 2007, pp. 85 95.

105. Raymond L. Hogler and Robert LaJeunesse, Oklahoma s Right to Work Initiative: Labor

Policy and Political Ideology, Labor Law Journal, 53(2), 2002, pp. 109 113. See also Stan Greer and Charles W. Baird, Reply to Hogler and LaJeu- nesse s Oklahoma s Right to Work Initiative: Labor Policy and Political Ideology, Labor Law Journal, 54(2), 2003, pp. 89 100.

106. Marc Singer, Knowledge of the Right-to-Work Law among Residents of the State of Oklahoma, Journal of Collective Negotiations in the Public Sector, 31(1), 2006, p. 85 99.

107. Marc G. Singer and Katie L. Valentine, Monta- na s Right-To-Work Legislation: Do Residents Know Their Labor Laws? Journal of Collective Negotiations in the Public Sector, 32(3), 2008, pp. 189 201.

108. Mark Peters, Opting Out of Unions Gets Boost in States, The Wall Street Journal, January 18, 2015, p. A3.

109. Raymond L. Hogler, How the Right to Work is Destroying the American Labor Movement: From the Ku Klux Klan to the Tea Party, Employee Responsibilities and Rights Journal, 23, 2011, pp. 295 304.

110. Victor G. Devinatz, The Continuing Controversy over Right-to-Work Laws in the Early Twenty- First Century, Employee Responsibilities and Rights Journal, 23, 2011.

111. Ibid., pp. 287 293. 112. Harris et. al. v. Quinn, Governor of Illinois, et. al.

Slip Opinion, October Term 2013.

CHAPTER 4 Unions and Management: Key Participants in the Labor Relations Process 193

CA SE

ST UD

Y

4- 1 Employee Rights under the Landrum Griffin Act

Paul Sanchez, a member of Local 1 of the Bartenders Union, speaks Spanish and is not sufficiently bilingual to understand the English language in either written or spoken form. Local 1 has 16,500 members, 48 percent of whom understand Spanish only.

For several years Local 1 has had its collective bar- gaining agreements, monthly newsletters, and various notices printed in Spanish to accommodate its Spanish- speaking members. At meetings held to nominate union officers and contract ratification meetings, which occur once every three years, English and Span- ish translations are provided for the discussion that takes place. Monthly union meetings are conducted primarily in English and are attended by 50 75 mem- bers (less than 1 percent of the union s total member- ship). Subjects debated during local union meetings include such topics as union expenditures, salaries of officers, general complaints with particular employers, and various other operational matters. Such debate is commonly referred to as shop talk.

Spanish translation at monthly meetings is pro- vided whenever union officer nominations take place or whenever Spanish-speaking members request their comments or those of others be translated for the ben- efit of other members attending the meeting. Such translation duties are typically performed by a bilingual local union officer, rather than hiring an outside, pro- fessional translator to be present at each monthly meeting.

Paul Sanchez, along with several other employees, petitioned Local 1 s officers to provide a qualified translator who was not a member of the union at all monthly membership meetings. This person would simultaneously translate all meetings proceedings and discussion into Spanish and English. The union officers brought the petition request before the members at the next monthly meeting. With the union members in attendance acting as a legislative body in accordance with the union s constitution and by-laws, Sanchez s proposal to hire a full-time outside translator for the monthly meetings was debated and defeated by a majority vote of those members in attendance. The majority of the members in attendance felt that the cost of hiring an outside translator for every monthly meeting was not justified based on the number of

members who typically attended and the availability of bilingual union members who could perform the necessary translation duties upon request.

Union member Sanchez then filed a civil suit in fed- eral court. Sanchez alleged the union s failure to provide simultaneous translation at the regular monthly union meetings by an independent professional translator was a violation of his equal participation and freedom of speech rights under Title I of the Landrum Griffin Act.

Relevant Statutory Language Title I, Sec. 101(a), Landrum Griffin Act

(1) Equal Rights Every member of a labor organi- zation shall have equal rights and privileges within such organization to nominate candidates, to vote in elections or referendums of the labor organiza- tion, to attend membership meetings, and to partic- ipate in the deliberations and voting upon the business of such meetings, subject to reasonable rules and regulations in such organization s consti- tution and by-laws.

(2) Freedom of Speech and Assembly Every member of any labor organization shall have the right to meet and assemble freely with other mem- bers; and to express any views, arguments, or opi- nions; and to express at meetings of the labor organizations his views, upon candidates in an elec- tion of the labor organization or upon any business properly before the meeting, subject to the organiza- tion s established and reasonable rules pertaining to the conduct of meetings: Provided, that nothing herein shall be construed to impair the right of a labor organization to adopt and enforce reasonable rules as to the responsibility of every member toward the organization as an institution and to his refrain- ing from conduct that would interfere with its per- formance of its legal or contractual obligations.

Title IV, Section 401(e), Landrum Griffin Act states in relevant part, In any election a reasonable oppor- tunity shall be given for the nomination of candidates and every member in good standing shall be eligible to be a candidate and to hold office ( subject to reason- able qualifications uniformly imposed).

194 PART 1 Recognizing Rights and Responsibilities of Unions and Management

Questions 1. Did the union violate Title I, Section 101(a) of the

Landrum Griffin Act in this case? If so, what should be the appropriate remedy?

2. Would it be legal under Title IV of the Landrum Griffin Act for the union in this case to adopt a rule that required all candidates for union office to be proficient in both Spanish and English? Why or why not?

CA SE

ST UD

Y

4- 2 Financial Core Membership Rights under the

Beck Decision

The company and union are parties to a collective bar- gaining agreement that contains the following valid union security clause:

It shall be a condition of employment that all employees of the company covered by this agree- ment who are members of the union in good stand- ing on the date of this agreement shall remain members in good standing, and those who are not members on the effective date of this agreement shall, on the ninety-first (91st) day following the effective date of this agreement, become and remain members in good standing in the union.

For purposes of this Agreement, an employee shall lose his good standing in the Union only for failure to tender periodic dues and initiation fees uniformly required of all members. The Business Manager of the Union shall notify the Company by certified mail of any employees the union deems to have lost good standing within the meaning of this Article.

On July 6, an employee named Budnik sent a letter to the union informing the union officers that he was resigning his union membership and claiming financial core member status. Budnik requested the union to begin charging him the new appropriate amount of dues in compliance with Beck (1988). Budnik did not pay any dues money to the union after he mailed the July 6 letter.

On July 28, the company sent a letter to all bar- gaining unit members informing them that financial core membership status was available to them and that full union membership was not a legal require- ment under the parties current union security contract language. The union sent a letter to Budnik on or about August 5 acknowledging receipt of Budnik s resigna- tion letter. The union informed Budnik that his

insistence on financial core membership status would result in the loss of valuable membership privileges and benefits and that, as a financial core member, he would still be required to pay the financial obligations of mem- bership germane to the costs of collective bargaining, con- tract administration, and grievance adjustment. The union encouraged Budnik to reconsider his decision to resign his union membership. The union s letter closed with the disclosure that the union was currently undergo- ing its annual financial audit and that, when that process was completed, all the expenses germane to collective bar- gaining duties would be identified.

The following February 23, the union sent a letter to Budnik and advised him that, despite his resignation from the union, he was still required to comply with the terms of the current union security clause. The union offered to let Budnik pay a sum equal to current monthly union dues to a mutually agreed upon charity. The union listed three charitable funds acceptable to it. Budnik did not agree to the union s proposal and, instead, quit his job at the company and filed an unfair labor practice against the union, alleging a violation of Section 8(b)(1)(A) of the Labor-Management Relations Act (LMRA). Specifically, Budnik alleged that the union failed to meet the require- ments set forth in Beck regarding a union s duty to furnish information about the amount of dues money spent for legitimate collective bargaining purposes or to provide a procedure by which employees like himself could chal- lenge the amount charged or the basis for calculating such charges.

In Communications Workers v. Beck, 487 U.S. 735 (1988), the Court upheld an interpretation that the LMRA does not permit a union, over the objection of a dues-paying nonmember, to expend funds collected from them under a union security agreement on activ- ities not related to collective bargaining, contract administration, or grievance adjustment. In California Saw & Knife Works, 320 NLRB 222 (1995), the Board

CHAPTER 4 Unions and Management: Key Participants in the Labor Relations Process 195

held that if a nonmember employee chooses to file a Beck objection to the payment of full union dues, the employee must be informed by the union of the follow- ing information: the percentage of the reduction in fees for objecting nonmembers, the basis for the union s calculation, and the right to challenge these figures. Any union-provided procedure for challenging the amount or method of dues calculation is appropriate so long as the procedure is not shown to be arbitrary, discriminatory, or in bad faith.

The union cited the NLRB decision Laborers Local 265 and Fred A. Newmann Co., in which the Board held that a union did not breach its duty of fair repre- sentation by failing to provide a Beck objector with Beck-related financial information, where the union expressly waived the objector s obligations under the union security clause and informed the objector that he would not be required to pay any dues or fees. The union noted that Budnik is the only employee, out of the 300 bargaining unit members the union represents, to request financial core membership status. The union believed that the cost burden of gathering Beck-related financial information for use by a single

employee would be prohibitive and detrimental to the union s obligation to use resources wisely to represent the bargaining interest of all bargaining unit members. The union believed that it had offered Budnik a reason- able accommodation that did not require him to pay any dues money to the union, thus ensuring that none of the objecting member s funds would be used for union expenditures. At the same time, the reasonable accommodation offered by the union avoided the necessity of spending union funds to gather Beck- related financial information for only one employee. The union requested that the unfair labor practice charge be dismissed.

Questions 1. What are the union s legal obligations? 2. Does Budnik have a burden of proof? Or, does the

union have the burden to prove that it has complied with the law?

3. Did the union commit an Unfair Labor Practice in this case? If so, what should be the appropriate remedy?

196 PART 1 Recognizing Rights and Responsibilities of Unions and Management

CHAPTER 5

Why and How Unions Are Organized

I JUST RECEIVED another message on my office desktop computer from Jane Morgan that she had posted a message on Facebook. Since we are Facebook friends, Jane sends me a lot of interesting and helpful information. Jane and I have been friends for 15 years and have worked together for at least that long.

I went to Jane s Facebook posting and it had the following message: We need more pay. We need a pension plan and health insurance. And we don t want to be fired at the whim of our supervisors. Let s all meet at the community center at 7:00 P.M. tonight and hear what the union folks have to offer. I noticed that 25 of our 75 employees had already clicked on Like and several have added comments.

I have worked in a unionized plant before. We had a good pension plan, good health insurance, and job protection through the grievance and arbitration procedure. Then the plant closed and the jobs went to Mexico. I certainly believe in what Jane and the others are doing, but I don t know whether I should click Like and be identified by Management as one of Jane s supporters. I surely don t know what protection I have if I click Like and/or make a comment supporting Jane and the others.

Questions 1. What are my options? Evaluate the consequences of each

option.

2. Should I respond on my personal IPhone or on my office desktop computer?

3. What are my legal rights?

4. What legal protections will I have if I click on Like, make a comment, or attend the meeting?

197

This chapter focuses on the essential elements of unionization: why unions are formed,the procedures for organizing employees into unions, new union strategies for obtaining union recognition, and union decertification.

This chapter attempts to identify the many factors that are involved in the forma- tion of unions Employees have choices: (1) whether to become involved in union for- mation where there is no union and (2) whether to vote for or against union representation if and when there is a representation election. Although an employee s choices to assist in the formation of a union, to vote for a union, and to join a union are highly interrelated, they are separate decisions. Employees may join unions volun- tarily or be required to join. The circumstances in which an employee may be required to join a union were covered in Chapter 4. Employees who vote for union representa- tion in an election in which the union does not receive a majority vote are nevertheless left without union representation. However, they may be interested in becoming an associate member.

Why Unions Are Formed

Unions are not present in every organization; in many instances, employees have chosen to remain nonunion. This section provides explanations of why a group of employees collectively may choose to form a union. The following section explains what motivates employees at a particular facility to vote for a union.

Work and Job Conditions

Alienation Theory The alienation theory is based on the belief that employees might seek collective action to relieve their feelings of alienation. Employees feel alienated from their work because of the following reasons:1

They lost contact with their own labor when the products they created were taken away from them; thereby they cannot take pride in their work. They lost involvement in their work when the machine dominated, separating the work of the hand from the work of the brain. They became estranged from fellow employees when their work made them so tired and competitive that they were incapable of having authentic relationships.

As a result, employees might become aware of their common plight, and class con- sciousness could compel them to join together in a union or to engage in collective activities to improve their working situation. Unions can and do address a possible aspect of employee alienation, namely the employees desire to speak their minds with- out fear of management reprisal. In other words, intertwined with the motives for union membership is the almost universal desire to tell the boss to go to hell. 2

A union typically indicates to its potential members that the employees rights to voice their opinions on a managerial action are protected by negotiated grievance pro- cedures and disciplinary policies (see Chapters 10 and 12).

Unions provide employees a voice which gives them an alternative to quitting their jobs and leaving their employer if they are not satisfied with their jobs. It is difficult to find new jobs in today s economy, and it is costly for management to hire and train new employees. Lower employee turnover which is associated with union membership bene- fits not only the employees but also management.3

198 PART 1 Recognizing Rights and Responsibilities of Unions and Management

Employees might be dissatisfied with some aspect of their jobs while not being alien- ated from their work. Some research has shown that employees might join unions if they (1) are dissatisfied with physical characteristics of the workplace, low wages, or lack of benefits and (2) believe that a union will help them achieve the job-related conditions important to them.4

Employees who are not satisfied with their pay, supervision, and/or work may view the union as the instrument to satisfy their job needs. Some researchers have argued that job dissatisfaction is the initiator of employees efforts to start a union formation cam- paign. They argue that job dissatisfaction sets in motion a search to end the uncomfort- able dissonance between what is desired (good pay, effective supervision, etc.) and what they are experiencing. Job dissatisfaction results in the formation of a coalition of employees designed to bring about changes in economic and working conditions.5

Employees who are less satisfied with the companies for which they work have greater desire to join a union. There is a negative relationship between work attitudes, such as company commitment, and desire to join a union.6

In a nationwide survey, workers voiced approval of unions and a majority said they definitely or probably would vote in favor of union representation in their workplace. Union members were more likely to receive benefits at their job, such as health insur- ance and paid time and a half for overtime than nonunion workers.7

Scarcity Consciousness Theory The Need for Job Security In his classic book A Theory of the Labor Movement, Selig Perlman theorized that employees are attracted to unions because unions will protect their jobs. Many employ- ees, particularly manual workers, strongly believe they live in a country of limited oppor- tunity and become scarcity conscious the employees collectively believe that jobs are difficult to obtain and retain. This belief is particularly true today for some industries, such as auto, steel, coal, and the public sector. Thus, employees turn to unions for job protection.8

Unions therefore are attractive to the many employees concerned about job security, regardless of their skill or occupational level. Few employees, including white-collar employees and managers, are currently immune from the possibility of a layoff. Also, unions do offer several ways of strengthening employees job security. For example, a union can negotiate work rules which prescribe procedures for performing a job, thereby ensuring that a certain number of employees will be assigned work. Unions can negotiate apprenticeship programs, which ensure that eligible employees are trained available for certain skilled jobs, or negotiate seniority and layoff provisions, which require the com- pany to lay off employees in order of their seniority (most senior laid off last) and to recall the most senior employees first. A union can negotiate grievance procedures, which include a final step of arbitration to protect them against unjust discharges, unfair treatment, and violations of the labor agreement. Unions can also lobby for legislation protecting employees job rights in regard to such issues as plant closings and employ- ment discrimination. Legislation or administrative policies can restrict employer access to cheap labor, strengthen job security by pressing for restrictions for example, foreign citizens, child labor, and prison labor; impose quotas or restrictions against imported products such as steel, automobiles, and textiles; and provide adjustment assistance to employees who are displaced as a result of free trade agreements.

Wheeler Model of Union Formation Hoyt Wheeler has provided a theoretical model for union formation that entails a two- stage process. The first stage consists of the worker s readiness to take some form of

CHAPTER 5 Why and How Unions Are Organized 199

aggressive action; the second stage represents that worker coming together with other workers as a group and deciding to take some form of collective action. A single employee usually begins to move toward unionization when he or she experiences feel- ings of deprivation about pay, security, and/or respect. The individual employee s thought process can be viewed as taking the individual along one or more possible paths toward readiness to take some form of aggressive action to demonstrate anger with the employer. The employee may take the path toward collective action and sup- porting the union under certain conditions.

Deprivation at work may occur when there is a gap between what employees expect from their work and what they actually receive in return. Three paths connect depriva- tion and readiness to take action. The first path is a threat or an attack, which results when the employer takes away or threatens to take away something the workers already have. The second path is frustration, which results when workers try to act on their own behalf, their action is blocked or ignored, and they feel they have no voice and see no way of achieving effective voice as individuals. The third path is rational calculation, a path by which, rather than show anger, the workers become convinced that the bene- fits of unionization outweigh the costs.

Even though workers may mobilize along one of these paths, they may not choose unionization. Instead, they may choose some form of withdrawal, such as quitting their job, or revenge behavior, such as sabotaging the company s products. The conditions that promote collective action or unionization are love, hope, and saliency. Love is essentially the cohesion and solidarity wherein workers care enough for each other to act together and share good relationships. Hope prevails when workers believe that the union can do what is necessary to bring an end to their deprivation and frustrations. Saliency is recog- nition that problems exist and workers perceive that dramatic events and good leader- ship would contribute to facilitating action toward resolution.

Along with each of these conditions, which promote the union option, there are inhibiting conditions. One such condition is the fear of punishment for supporting the union, such as being fired from one s job or being laid off. Another is the general belief that unions are wrong in principle. Either of these beliefs may dissuade a worker or a group of workers from taking action. The interaction of the workers beliefs, their chosen paths, and the existing conditions may determine whether a group of workers pursue collective action and unionization.9

Employees Backgrounds and Needs Employees previous experiences with unions can strongly affect their attitudes toward unions and their decision to join a union. Eighty-seven percent of those who have had experience with unions, usually as members, said they would vote for a union if given a choice; of those who have had no experience with unions, only 27 percent indicated they would vote for the union if given the choice.10

Many employees are influenced by parental attitudes and family experiences with unions. One active union member stated, I attended union meetings with my father before I was ever inside a church. Another commented, My dad was a great union man and that s where I got it if it wasn t union, it wasn t no good. 11 Of course, paren- tal comments about unions may be unfavorable as well.

Unions, like all formal organizations, potentially satisfy the members needs by pro- viding a means of enhancing a sense of identity and maintaining self-esteem. Thus, unions can appeal to three interrelated social needs of members: the need for affiliation, or belonging; the need for status; and the need to belong to something purposeful, useful, and creative that is on a higher level than improved wages and working conditions.

200 PART 1 Recognizing Rights and Responsibilities of Unions and Management

Feelings about unions are a dominant predictor of union voting intent; those who have positive feelings toward unions typically intend to vote for forming a union. Those who have negative feelings toward unions tend to vote against forming a union. Researchers suggest that unions should spend their time and resources on iden- tifying what causes a nonunion employee to feel negatively or positively about unions and take steps to rectify the causes that make a nonunion employee feel negatively toward unions.12

The union s possible benefit of social affiliation is strengthened or weakened by the degree of prestige or self-esteem it offers its members. Some employees join a union for the same reason they would join any social organization, namely, to enjoy the responsi- bility and status associated with being a member of that organization. This feature can be particularly attractive to employees whose jobs are basically interchangeable and carry few elements of prestige or room for advancement.

Employees who become union officers can often attain prestige or self-esteem in their dealings with management officials:

As a shop steward or union officer or member of the grievance committee, a worker can become a fellow your buddies look to. Such positions give him the opportunity to win other workers approval by being a fellow who stands up to the boss with impunity. The role of a fellow who stands up to the boss is made more significant because the definition of the boss has been enlarged to include not merely the foreman but the head office in Pittsburgh. He can win prestige as a guy that gets results in such matters as the distribution of work, assignment to jobs, seniority policy, and pro- tection from discrimination.13

Chapter 10 discusses the notion that union officers and management officials are equals in their day-to-day administration of the labor agreement. However, as the pre- ceding quotation suggests, the union steward can often emphatically disagree with a management official six levels above the steward on the organizational chart. This ability to challenge without fear of reprisal is not afforded nonunion employees or even man- agement officials when they deal with their organizational superiors.

Studies of employee characteristics associated with employee votes have been mixed. Some have shown that characteristics such as age, gender, and education are not closely associated with favorable union votes or attitudes.14 Race appears to be the one exception several studies have suggested that more black employees have positive atti- tudes toward potential union advantages than their white counterparts.15 Other studies indicate that young people are more likely to support unions and women are less likely to support unions.16

Influences on Employees Votes for and against Unions In forming and joining a union, employees mainly consider whether they believe the union will improve their personal situations in terms of wages and benefits, promotional opportunities, and job security. Can the employees expect to satisfy their job-related goals and needs by supporting a union? Will the union provide the means for achieving these goals? If employees perceive that a union will help them attain their goals, they will likely support the union organizing campaign, vote for it in a representation election, and support its activities afterward. If they are not convinced, they will not get involved, vote for the union, or support its activities.

The union s campaign to secure employee support may contribute to a union vote, especially among those who are familiar with the union s positions and who attend union campaign meetings. Employees who are satisfied with working conditions are

CHAPTER 5 Why and How Unions Are Organized 201

less likely to attend union campaign meetings, but if they ever attend the meetings, they often feel more favorably toward the union.

The company s campaign can affect the vote because it affects employees belief in the anticipated influence of the union. If the company campaigns hard, some employees will believe that the employer has seen the light and will now improve conditions with- out the union. A strong anti-union campaign may convince some employees that the employer is so anti-union that the union cannot improve working conditions.17

Although there may be many reasons why a particular group of employees votes for or against the union in a specific election, several influences have been identified that affect employee votes generally. Exhibit 5.1 shows the relationships among the general influences on employees.

Researchers have argued that social pressure influences employee votes. When employ- ees know a number of union supporters within a work group, this knowledge helps to form group cohesion. When this group of employees is regularly blocked by employer actions, they respond as a group, and their actions can lead to union formation. As union suppor- ters, they are better able to convince others that the union has the power to bring about changes in the workplace and are more convincing in influencing other employees votes.

General beliefs about unions mean that an employee believes, for example, that a union will improve wages, benefits, and working conditions; provide a return to the employee for the dues paid; and secure pro-employee legislation. On the other hand, these general beliefs also include whether an employee believes unions are autocratic, increase the risks of a plant closing, stifle individual initiatives, or ignore the members in strike decisions. To influence employees positive general beliefs about unions, union orga- nizers must put more effort into national campaigns, such as the Union Yes campaign of the American Federation of Labor-Congress of Industrial Organizations (AFL-CIO).

Specific beliefs about unions are more related to an individual s job and workplace. To influence employees specific beliefs about unions, union organizers must focus atten- tion on communicating the union s unique characteristics and its impact at the work place. Specific beliefs that can be focused on include expectations about improvement in pay, benefits, and job security that should result from unionization.18 Other beliefs include expected improvement in recognition, job advancement, worker participation, treatment by supervisors, and reduction in sexual and racial discrimination on the job.

Exhibit 5.1 Influences on Employees on Whether to Vote for or against a Union

202 PART 1 Recognizing Rights and Responsibilities of Unions and Management

In an organizing campaign, unions must show employees that significant positive results will occur at their workplace if they vote for and join a union. Unions must pro- mote the union s ability not only to improve wages and benefits but to help make work more meaningful and increase employee participation. At the same time, the employer will attempt to show that it has acted reasonably toward employees and has been fair and sincere in dealings with employees.19

Social pressure, job dissatisfaction, and general and specific beliefs about unions interact with union instrumentality, which is the employees perception of whether the union will be effective in attaining desired outcomes, such as higher wages, improved working conditions, job security, and protection from arbitrary treatment by manage- ment.20 In general, if these interactions are positive, the employee will vote for the union;21 if not, the employee will not vote for the union. For the individual employee, any one of the influences may cause the employee to vote a certain way. For example, if an employee believes his or her supervisor is considerate and supportive, this belief may be enough to cause the employee to vote against union representation.22

Finally, an individual s decision on whether to vote for union representation depends on his or her subjective assessment of the benefits to be obtained as weighed against the sub- jective assessment of the costs. These costs include the direct costs of union dues as well as possible indirect costs, such as managerial retaliation against individual union supporters, plant closure, or simply the hassles of a more bureaucratic workplace. If the expected ben- efits are higher than the costs, the employee will vote for the union. Otherwise, the employ- ee s vote will be to remain without union representation. If employees have a good chance of promotion, can expect a higher wage based on their present level of effort, and are pleased with their supervisor, they probably will vote to remain without representation.

The Union s Challenge of Organizing the Diverse Workforce Unions recognize that some occupations, such as retail sales, registered nursing, security services, janitorial services, and food services, are expected to expand in numbers. In addition, one-fourth of all workers in the United States are part-time employees; these employees are hired on a temporary basis (referred to by many as contingent workers ), are independent contractors, and are hired as subcontractors or leased workers. As noted earlier, minorities and skilled employees will also become a larger percentage of the work force. In fact, currently, over one-fourth of the work force are minorities, and the great- est percentage increases has come from the Hispanic and Asian populations. Unions must design organizing strategies to attract these employees.23

Organizing Professional Employees Professional employees provide a challenge to unions and an opportunity to increase union membership. Unions have already made significant inroads in many professions, such as acting, professional sports, writing, music, health care, and teaching; however, the debate continues over the compatibility of unionism with professionalism. Unions must address this compatibility issue if they will be able to increase the memberships of professional employee unions. On one side is the argument that the selection of a union entails the rejection of key professional values, such as collegial participation in organi- zational decision making, professional independence, and a merit-based performance and reward system. On the other side is the argument that collective bargaining is often the most effective method of achieving and maintaining these same professional values.24

Consider, for example, nurses, who tend to base their vote in a union representation election on the degree to which they believe the union can give them a greater voice in

CHAPTER 5 Why and How Unions Are Organized 203

how patient care is delivered. Nurses unions increasingly focus on strategies to use col- lective bargaining to address the core challenges that acute-care hospitals face. Approxi- mately 75 percent of the nurses in one survey reported that both their working conditions and the quality of nursing care had declined in recent years. In this same study, 34 percent of the nurses reported that they felt exhausted and discouraged upon leaving work; 34 percent were discouraged and saddened by what they could not provide their patients; and 29 percent felt powerless to affect change.

Nurses recognize that they can use their collective power to make their voices heard and be recognized as a full partner with other professionals, such as doctors and phar- macists, in the American health care system. Nurses have willingly assumed the role of patient advocate to ensure quality care. When a hospital cuts costs by reducing the num- ber of nurses, it employs, understaffing becomes a problem. In response, a nurses union has negotiated staffing levels to assure adequate staffing to enhance patient care. Nurses unions have negotiated restrictions on mandatory overtime, except during emergency situations, to ensure that nurses are adequately rested to provide the necessary patient care. They have negotiated provisions that prohibit nurse assignments to areas of the hospital in which the nurses are not trained or experienced. Also, nurses unions have negotiated consultative/cooperative arrangements in which the nurses have a voice in decisions involving patient care, such as forming professional practice committees or patient care committees in hospitals.25

Professional employees provide a fertile ground for increased unionization because professional employment has been growing rapidly. A survey of 2,014 members of the American Pharmacists Association revealed that general beliefs about unions have a stronger direct effect on union voting intentions among professionals than specific beliefs. An example of a general belief is, Unions improve wages and working condi- tions of workers, and an example of a specific belief is My job security will improve if my workplace becomes unionized. Among non-professional employees, both general and specific beliefs are important in predicting how an individual will vote in a union election; however, specific beliefs have a stronger effect. In addition, the researchers found that co-worker support among professionals had a large impact on union voting behavior. This supports the notion that unions must focus their organizing efforts on cultivating support among incumbent employees and developing a stronger positive presence within a profession (such as the union s involvement in the leadership and gov- ernance in the profession and the union actively advocating for the profession).26

Evidence drawn from a study of collective bargaining agreements covering profes- sional employees reveals that the overwhelming majority of contract provisions include subjects quite similar to those traditionally included in industrial sector agreements. These provisions include wages, fringe benefits, grievance arbitration procedures, and so on. In addition to these traditional subjects, these professionals collective bargaining agreements also address professional issues. These issues can be categorized into six groups: (1) professional standards, (2) mechanisms for professional participation in pol- icy making, (3) regulation of professional work, (4) training and professional develop- ment, (5) commitment of organizational resources to professional goals, and (6) criteria for personnel decisions and the role of professionals in making these decisions. The study showed that although there is variation in the collective bargaining agreements among professional employee unions, unionism and professionalism are not inherently incompatible. Moreover, professional values and interests can be incorporated into the bargaining process along with the economic and job security issues of professional employees. With concrete evidence of compatibility between professionalism and union- ism, the opportunity is present for unions to promote their services.27

204 PART 1 Recognizing Rights and Responsibilities of Unions and Management

Mary Kay Henry, a graduate of Michigan State University and the recently elected president of the Service Employees International Union (SEIU, which has approximately 2 million members), has vowed to turn the SEIU into even more of an organizing and political powerhouse and plans to increase membership by 150,000 per year. The SEIU plans to spend $250 million a year on organizing activities and expand membership to 3 million by 2020.28

Activities of the Union in Organizing Employees Employees initial interest in unionization is usually based on their present dissatisfaction with some work-related situation coupled with a belief that each employee acting alone cannot change the current situation. The union does not create this dissatisfaction with working conditions among employees; instead, it is in the union s interest to improve job satisfaction among employees by negotiating to improve working conditions. Therefore, during an organizing campaign, the union advertises the benefits that would flow from a negotiated collective bargaining agreement and successful handling of grievances.29

Most managers of nonunion companies incorrectly believe that labor unions initiate union organization drives; instead it is usually the employees themselves who begin the process by contacting the union. This contact with union organizers usually occurs fol- lowing the emergence of employees belief that there is sufficient support for the union and that the union s expertise and representation will help them.30

Union organizers enter the campaign by playing three general roles that influence employees decisions on whether to vote for unionization. First, organizers try to educate the workers on the benefits of the union, labor movement traditions, and protections afforded by union representation and the present laws. Next, union organizers attempt to persuade workers to vote for unionization and respond to statements and allegations made by management during the organizing campaign. Third, organizers try to support workers in their individual and collective actions.31 To ensure that these roles are carried out capably, unions recruit and select union organizers with the appropriate education, competencies, and personality characteristics.

Today, unions, especially those in the service industries, are hiring union organi- zers who have different characteristics from traditional union organizers in manufacturing. Service union organizers are almost 15 years younger on average, ten times more likely to be female, average almost 4 more years of higher education, and have an average of about 7 fewer years of union-organizing experience. They are six times less likely to have held elected positions in local unions and are less than half as likely to have served in appointed positions in local or national unions. Although nearly all of the union organizers in manufacturing were rank-and-file members early in their careers, only about half of the union organizers in the service industries were rank-and-file members.32

Union organizers must recognize that the workforce has changed significantly and has become more complex. Employees do not typically have a homogeneous set of pro- blems. As well, the growth industry sectors and occupations are different from those that were traditional strongholds for unions, such as manufacturing, mining, trucking, ship- ping, railroads, and construction. As a result, the selection of staff members to work as union organizers has changed. Instead of appointing staff members based upon political rewards, unions are selecting organizers not only from the rank-and-file members but also from colleges, law schools, Volunteers in Service to America (Americorps, VISTA), and other sources. Unions are then investing funds in training union organizers at the AFL-CIO s George Meany Center and improving their organizing capability through training at the AFL-CIO s Organizing Institute (see Exhibit 5.2).33

CHAPTER 5 Why and How Unions Are Organized 205

The union organizer assists in convincing employees that they can achieve more job-related benefits through collective action than by each individual s attempts to improve his/her job situation, they tailor the organizing approach to employee concerns and problems and focuses on the special needs of various groups, such as older workers, female or minority workers, or white-collar workers. The organizer tries to sell the idea that group action via the union provides the instrument through which employee con- cerns and dissatisfaction can be most effectively addressed.34

When a union organizer considers when and where to commit time and resources in organizing a group of unrepresented workers at a particular location, the union orga- nizer tries to anticipate the voting propensities of the workers. For example, workers who hold bad jobs which are defined by low pay, poor job quality, and arbitrary employer practices are usually more receptive to unionization. Other factors which are considered include the absence of job autonomy, presence of high levels of teamwork, especially self- directed teams, presence of high levels of coercion, stress, work fatigue, job insecurity, and low levels of task complexity and influence, and absence of contingent pay systems and less than 40 hours of work per week.35

Exhibit 5.2 AFL-CIO Organizing Institute Informational Flier

About the Organizing Institute

The Organizing Institute s (OI s) mission is to develop and promote the craft of organizing. Founded in 1989, the Organizing Institute highlights the importance of organizing within the labor movement. We recruit and train new organizers; col- laborate across the labor movement with community allies; and share successful approaches to support organizing and strategic campaigns.

Three-Day Training for New Organizers: Our first three-day training was launched in November 1989. Twenty-five years and hundreds of trainings later, thousands of alumni of the OI three-day union staff and members alike are orga- nizing, advocating and leading the fight for social change in unions and allied organi- zations. Check out our current training schedule.

Apprentice Program: Following the three-day training, the OI assists qualified applicants with field placement in organizing campaigns underway among affiliate unions. Trainees sharpen their one-on-one communication skills with help from a lead organizer and mentoring from OI staff. Successful graduates of this paid intern- ship are in high-demand for entry-level union and community organizing jobs. Click here to apply.

Union Summer: This six-to-eight week summer internship offers students and others interested in social justice on-the-ground campaign experience while on summer break from school or work. Field work is matched with orientation and training, so participants emerge with a broad understanding of issues facing America s working families.

Advanced Organizer Training: The OI advanced organizing workshop supports experienced organizers who are taking on large-scale and long-term organizing, non- collective bargaining environments, engagement with immigrant workers and other key organizing challenges.

National Organizing Workshop: In March 2015, the OI is bringing together the best organizers from all over the country to talk shop and dream big. We ll look forward, together, as we build a dynamic movement that wins real victories for workers and communities. Sign up here (http://www.organizinginstitute.org/#!/contact) for updates about this can t-miss event for working-class organizers.

SOURCE: http://www.aflcio.org/Get-Involved/Become-a-Union-Organizer/Organizing-Institute/About-the-Organizing-Institute

206 PART 1 Recognizing Rights and Responsibilities of Unions and Management

Union organizers need to focus on the interests of the potential union members and determine what the union can provide to meet the needs of potential members and pro- vide an incentive for them to support and vote for the union. Researchers have found that union members feel positive about the union s ability to improve working conditions and job security. Also, workers who have been exposed to unions and unionized workplaces hold a more positive view of unions. Women who are not yet union members hold a pos- itive view of the union s ability to secure job security for their members. As a general rule, women have been more exposed to various forms of workplace discrimination. This dis- crimination creates a greater need for different kinds of protection which can be provided by the union. Union organizers should incorporate these interests and views into their strategies in attempting to gain the right to represent these employees.36

The influence of union organizers should never be underestimated by a company. The union organizers may be first seen distributing handbills to employees as they leave the company parking lots. Union organizers dress like the target employee group so that the employees will identify with them. Although their dress may be misleading, management should realize that union organizers are professionals. Like their counter- parts in management, contemporary union organizers must understand the psychology of the workplace and the labor relations climate in which employees work. Union orga- nizers must be able to (1) sort out these complex factors for the employees on a group or individual basis and (2) communicate in the employees language how the union can assist in fulfilling their needs in the specific work environment.

As an example, Exhibit 5.3 lists a number of work-related concerns and pro- blems. To the right of each is a possible course of action the union could take to satisfy the concern or to alleviate the problem. The union organizer would bring to

Exhibit 5.3 Union Strategy and Courses of Action to Achieve Employee Goals and Resolve Job-Related Concerns

Examples of Work-Related Pro- blems and Employee Concerns

Actions by Unions to Encourage Employees to Join Union

Relations between employees and management are poor.

Union will represent the interests of employees to management.

Employees do not trust their employ- er s promises.

Union will negotiate a contract requiring management to abide by its agreements.

Employees prefer to deal with man- agement as a group.

Union provides an opportunity for individual employees to deal as a group with the employer.

Employees want to have more influ- ence in workplace decisions.

Union provides a mechanism for influence by collective bargaining and administering the agreement.

Employees feel that productivity improvement would be more effective if employees had more say in how programs are run.

Union provides a mechanism in which employees can provide input into those issues that affect the workplace.

Employees question the effectiveness of the company s system for resolving employee problems and grievances.

Unions typically negotiate a grievance pro- cedure that provides representation for employees at each step and hearings before an outside, neutral arbitrator.

SOURCE: Richard B. Freeman and Joel Rogers, Worker Representation and Participation Survey (Princeton, NJ: Princeton Survey Research Associates, 1994).

CHAPTER 5 Why and How Unions Are Organized 207

the employees attention outcomes that could result from such activities by the union on their behalf.

The union enters the organizing campaign knowing that it must convince the uncommitted employees that the union is composed not of outsiders but of concerned fellow employees, that the changes the union proposes are worth fighting for, that the union will be able to protect employees against reprisals, and that union officials can be trusted. The union realizes that its success depends on the development of a strong inside organizing committee to convey the message directly to employees who do not attend union meetings, and on the ability of the union organizer to convey his or her own personal commitment and concern, get to know the employees, listen to employees about their job concerns, and have employees themselves speak at public meetings to express their feelings and their commitment to the cause.

Researcher Kate Bronfenbrenner has identified union campaign tactics characterized as the rank-and-file intensive strategy, which yields a higher union win rate than other tactics. This strategy focuses on representative leadership, personal contact, dignity and justice, and building an active union presence in the workplace. This strategy generates the worker participation and commitment necessary to withstand aggressive employer anti-union campaigns and to counteract any anti-union aspects of the economic, politi- cal, and legal climate. The components of the strategy are associated with union win rates, which are 12 to 26 percent higher than win rates for unions that do not employ this strategy (Exhibit 5.4).37

With Elizabeth Shuler, the youngest AFL-CIO secretary-treasurer ever and first female secretary-treasurer ever, taking the lead, unions are emphasizing organizing young workers between the ages of 18 to 34. A report from AFL-CIO s Working America found these young workers are worse off than young workers 10 years ago were. The report found that while it is hard for young people to find any job, it is even harder to find a good job. Only 31 percent make enough money to pay their bills and put some money aside in savings; this is 33 percentage points fewer than in 1999. Twenty-four percent make less than they need to cover their monthly bills, and 31 percent have no health insurance, up from 24 percent in 1999. Only 47 percent have retirement plans at work, down from 53 percent 10 years ago. Nearly 40 percent

Exhibit 5.4 Components of Rank- and-File Intensive Strategy That Are Associated with Higher Union Win Rates

1. Use of representative committees to be more in touch with concerns of the bar- gaining unit as a whole, to have better access to employees at the work place, and to demonstrate to the employees that the union is a democratic and inclu- sive organization

2. Person-to-person contact, house calls, and small-group meetings 3. Conducting union bargaining surveys, selection of the bargaining committee, and

working with rank and file to develop proposals before election 4. Focus on issues, such as dignity, justice, discrimination, fairness, or service quality 5. Serious commitment of staff and financial resources to organizing, involvement

of the international in union local campaigns, and training, recruitment, and effec- tive utilization of rank-and-file volunteers from already organized bargaining units

6. Use of solidarity days (designated days to wear union buttons, hats, T-shirts, arm bands, etc.)

SOURCE: Kate Bronfenbrenner, The Role of Union Strategies in NLRB Elections, Industrial and Labor Relations Review, 50 (January 1997), pp. 195 211; Kate Bronfenbrenner and Tom Juravich, It Takes More Than House Calls: Organizing to Win with a Comprehensive Union-Building Strategy, Organizing to Win, Kate Bronfenbrenner et al. eds. (Ithaca, NY: Cornell University Press, 1999), pp. 33 34.

208 PART 1 Recognizing Rights and Responsibilities of Unions and Management

have put off further education or professional training, and over a third of the youn- ger workers are living at home with their parents because they can t make it finan- cially on their own.38

Activities of the Company in Union Organizing Many employers, preferring the flexibility of remaining nonunion, resist efforts of a labor union to organize the employees. The employer realizes that the keys to its suc- cess in remaining nonunion are twofold: First, uncertainty and change are naturally stressful for workers; employers often try to magnify employees natural concerns about how the workplace might change if they unionize. Second, employers attempt to convince employees that the employer s past record shows that it deserves their sup- port or at least a second chance.

Positive human resource management practices, such as job enrichment/enlarge- ment, internal promotions, learning opportunities, bonus and merit pay, and employee involvement programs, seem to reduce nonunion workers desire to vote for a union in a representation election.39 The employer enters the campaign with three advantages: (1) It has instant and prolonged access to the employees; (2) although it can make no promises of higher wages and benefits during the election campaign, it is able to inform employees of the possibility of improvement without any cost to them and without the creation of a new bureaucracy; and (3) it can take advantage of the fact that most people find the thought of substantial change in their lives frightening.40

Employers presently have favorable positions during the pre-election campaign. Not only do employers control employees jobs and their livelihoods, but they may also require employees to attend meetings on the job wherein the employer talks about employer employee relations. Unions are denied equal access to employees. Employers may commit an unfair labor practice by firing an employee for engaging in union activities. If they do, the remedial process of the NLRB often takes years. Unfortunately, some employers view breaking the law (and any associated costs with that) as simply a price to pay to say union free. 41

Employer campaign tactics attempt to persuade employees to vote against unionization. Usually more than one campaign activity must be used. The most commonly used employer tactics are hiring a labor lawyer or consultant, spreading rumors about loss of jobs, and spreading rumors about store or plant closings. In terms of making a difference in the outcome of the election, employees are more likely not to choose the union when the employer spreads rumors about a store or plant closing. On the other hand, employees are more likely to choose the union when the employer intentionally delays the election and when the unions work closely with community leaders to facilitate acceptance of the union by citizens in the community. Two employer tactics that have backfired and are associated with employees vote for the union are shifting work and jobs to other facilities and test- ing applicants to identify union sympathizers.42

Employers frequently use the second chance strategy. When the employer s past record has not been good for employees and problems clearly exist, the second chance strategy encourages the employer to admit that conditions could have been better and request employees to give the employer a second chance to do better. Often, employees are inclined to give management another chance when management indicates that it is listening. This is a one-time-use only strategy. If the employees vote no union and the employer does not make necessary changes, then another election will probably fol- low after 12 months and the second time employees won t be as responsive to manage- ment s message.

CHAPTER 5 Why and How Unions Are Organized 209

Other employer practices may affect the outcome of the election. For example, the employer can influence the election outcome by changing the election unit composi- tion and the date of the election. They may influence the election outcome modestly by such activities as publicizing the disadvantages of the union, displaying posters, and making campaign speeches. Companies must be cautious in election campaigns because they may overdo their resistance and cause a negative reaction from employ- ees, especially when both attorneys and management consultants are used.43 For exam- ple, in one election, union organizers said things like, The owners would rather pay a consultant tens of thousands of dollars than pay you a decent wage! Thus, overreac- tion to a union s campaign with vigorous tactics may create a more favorable climate for unionization.44

The use of consultants in organizational campaigns has increased dramatically. One study reports that most elections are directed by consultants. In these campaigns, consul- tants advise employers how to persuade employees not to vote for a union. According to this research, almost all companies actively resist the union by making captive audience speeches (employer speeches to employees on the job) and writing letters to employees. Employer unfair labor practices were committed in over half of these elections.45 Use of consultants to advise employers how to persuade employees not to vote for a union requires reports to be filed with the secretary of labor, even though the consultants usu- ally have no direct contact with employees.46

Attorneys who specialize in union avoidance campaigns are often employed either to offer advice on questions of labor law or to devise strategy and conduct the union avoidance campaign. In addition, attorneys may interview supervisors to identify sources of employee discontent and to ameliorate the discontent that led to the orga- nizing campaign; raise the perceived costs of union representation by such tactics as publicizing possible major layoffs and closings at unionized plants; train supervisors in how to effectively present the employer s position to the employees; prepare and edit campaign literature and speeches for company officials; and build support and sympathy for the employer in the local community. An inexpensive campaign in a small to medium-sized firm with one attorney could cost up to $30,000 in legal fees. An all-out campaign with several attorneys using the latest campaign tools, such as slick DVDs and visits by prominent politicians and civil rights leaders, could easily exceed $100,000. The cost of a campaign in a large, multi-plant firm involving a dozen attorneys could exceed $1 million. These costs are incurred at the rate up to $400 per hour for attorneys from specialized labor law firms ($500 per hour or more for prominent attorneys from specialized labor law firms).47

A leading management lawyer who promoted his ability to keep unions out of the workplace has an interesting approach when a union wins the right to represent employees in an election he encourages management to use Surface Bargaining, where the company goes through the motions of negotiating a contract but actually has no intention of reach-

ing an agreement. Management negotiators keep the first collective bargaining agreement from being negotiated by making only small concessions and using delay tactics. He suggests that while management delays bargaining, union support will eventually wane. Then, after the first year passes, a decertification election can take place.48

Illegal discharges and other forms of discrimination against union activists, used by employers to affect the outcome of the election, have increased dramatically in the past several years. Such discrimination reduces the probability of an organizing success by 17 percent and cuts nearly in half the likelihood of a first contract being obtained. Nearly all these illegal activities occur during an organizing drive, just before an election, or

210 PART 1 Recognizing Rights and Responsibilities of Unions and Management

during the first contract negotiations. Such violations generally occur when employers perceive the financial gains of keeping unions out are far greater than the cost of back- pay awards and reinstatement of union advocates, and such is often the case. One study reported that less than half of illegally discharged workers were offered reinstatement, and only 69 percent of those ever returned to work. Because it takes so long to adjudi- cate a case, and reinstatement comes so long after the organizing drive, some employers have been able to frustrate the legal process and use it against the union and employees interested in the union.49

One way in which some employers deny employees their legal rights is through worker misclassification, for example, classifying employees as independent contrac-

tors, self-employed, or leased workers. By this worker misclassification, the employer not only denies employees their legal rights, such as the right to form and join a union, but the employer does not pay its share of Social Security and Medicare obliga- tions, unemployment compensation, or state worker insurance. A representative of the Mason Contractors Association of America estimated that the worker misclassifi- cation reduces labor costs by as much as 30 percent; however, law abiding companies have to make up the difference and are placed at a competitive disadvantage. A Coop- ers and Lybrand study estimated that worker misclassifications cost the federal gov- ernment nearly $35 billion in lost taxes; other studies estimate between $3 and $4 billion per year. An Ohio attorney general s report revealed that worker misclassi- fications cost the state $30 million in payments for unemployment compensation, $103 million in workers compensation premiums, and over $36 million in forgone state income tax revenue.50

In a 2014 decision, the NLRB ruled that it would consider the following factors in determining whether one is an employee or an independent contractor and indicated that no single factor was determinative:

(a) The extent of control which, by the agreement, the master may exercise over the details of the work.

(b) Whether or not the one employed is engaged in a distinct occupation or business. (c) The kind of occupation, which reference to whether, in the locality, the work is usu-

ally done under the direction of the employer or by a specialist without supervision. (d) The skill required in the particular occupation. (e) Whether the employer or the workman supplies the instrumentalities, tools, and the

place of work for the person doing the work. (f) The length of time for which the person is employed. (g) The method of payment, whether by the time or by the job. (h) Whether or not the work is part of the regular business of the employer. (i) Whether or not the parties believe they are creating the relation of master and

servant. (j) Whether the principal is or is not in the business.51

Two relevant questions are: How do employers reconcile their personal ethics when either they or their representatives knowingly commit illegal practices by dis- charging an employee or a group of employees for exercising their legal right to sup- port a union? Moreover, why does the U.S. Congress continue to tolerate such an imbalance in the legal procedures governing the exercise of statutory rights that have existed in the United States since 1935? In an effort to make employees aware of their rights under the NLRA, the NLRB requires federal contractors to post a notice of employee rights under the NLRA.

CHAPTER 5 Why and How Unions Are Organized 211

Unintended Consequences of Anti-union Behavior Fear among employees of reprisal for disclosing interest in the union in the work envi- ronment can make fear a central experience for the nonunion employees even though they have not disclosed their interest in union representation. This concealment has the potential of causing a sense of anxiety that comes with living with this conceal- ment. A work environment wherein employees experience this fear of reprisal for dis- closing an interest in unions becomes a stressful work environment which can be detrimental to the health of employees. These stress effects of employees who are asso- ciated with fear in the workplace can extend to cardiovascular disorders, for example, hypertension, to musculoskeletal disorders, for example, chronic fatigue, to gastroen- terological disorders, for example, ulcers and to psychological disorders, for example, clinical depression. As a result, the costs incurred by employers of keeping the unions out may result in the untended consequences of employers paying for higher health care expenses for the employees.52

Methods for Organizing Unions The three basic ways for organizing unions are: (1) voluntary recognition, (2) NLRB directives, and (3) secret-ballot elections (Exhibit 5.5).

Voluntary Recognition By far the simplest and least confrontational path to union recognition is voluntary employer recognition often based on union authorization cards (see Exhibit 5.6). Gener- ally, a union officer approaches a management official and asserts that a majority of the employees in a particular bargaining unit have signed cards authorizing the union to be their bargaining representative. The union officer typically does not show the individual signed cards to the manager, to prevent retaliation. If the manager agrees to voluntarily recognize the union, a neutral third party will often compare the cards against the names of employees in that department to verify that a majority of employees want a union. This is called a Card Check Procedure.

Why do managers agree to voluntarily recognize unions? There are several possi- ble motives. First, they may feel that fighting the union is futile. If an organizer claims that an overwhelming majority (say, 89 percent) of the workers signed cards, manage- ment may feel that even if they decide to try to persuade the workers to remain non- union, a majority will continue to support the union. Second, they may feel that they may get a better deal in future contract negotiation if they appear conciliatory and accept the workers decision to unionize. Third, the union may have a reputation for violence and the managers may feel too intimidated to resist. Fourth, managers may have heard that a different, more militant union is trying to organize the workers, and it comes as a relief to find a more moderate and reasonable union claims to have a majority support; recognizing the moderate union may forestall dealing with the mil- itant alternative.

For employers who have some unionized facilities and other nonunion facilities, neutrality agreements are often used in conjunction with card check procedures. A neu- trality agreement is basically a joint memorandum between the union and management where management agrees not to oppose unionization efforts in its nonunion facilities. Technically, the employer remains neutral while employees who are union supporters contend with employees who oppose unionization on both sides seek to persuade unde- cided workers. The reality is that supporters usually have their international union sup- plying professionally developed campaign literature and DVSs, while opponents must

212 PART 1 Recognizing Rights and Responsibilities of Unions and Management

Exhibit 5.5 Basic Union Representation Procedures

CHAPTER 5 Why and How Unions Are Organized 213

rely upon home-made materials. Not surprisingly, unions win more representation elections when a neutrality agreements in place.

Several unions, particularly the SEIU and UNITE/HERE, have been successful in organizing tens of thousands of employees under these neutrality/card check agree- ments. To summarize, these agreements require the employer to take a neutral posi- tion on whether or not employees chose a union and to allow signatures on union authorization cards to count as a vote for the union. The current agreements between the Big Three automakers and the UAW contain provisions for employer neutrality and card check. With such success, opposition groups, such the National Right to Work Committee and other groups, are challenging these agreements in court and before the NLRB.53

In December 2010, the NLRB found that Dana, an auto parts manufacturer, and the United Auto Workers had not violated labor laws when they agreed to certain grounds by which the union would be recognized if a majority of employees signed cards in favor of union representation and by creating a framework for any future collective bargaining agreements. The agreement between Dana and the UAW stated:

We both believe that membership in a union is a matter of personal choice and acknowledge that if a majority of employees wish to be represented by a union, Dana will recognize that choice.

The parties also agreed that any labor agreements that resulted from the agreement would be at least four years long and would incorporate team-based approaches, keep health care costs at competitive levels, and allow for mandatory overtime when necessary.54

Exhibit 5.6 Example of a Union Authorization Card

SOURCE: Courtesy of the United Food and Commercial Workers International Union.

214 PART 1 Recognizing Rights and Responsibilities of Unions and Management

Proponents of the card check procedure argue that it substantially diminishes the employer s opportunity for coercive campaigning and reduces conflict between the par- ties, thereby leading to more positive labor relations. Opponents emphasize that peer pressure makes it difficult for employees to express their genuine feelings about the union. In addition, opponents say card checks are subject to misinterpretation of the card s meaning, even outright forgery of worker signatures. They argue that without a campaign, workers hear only one side and are thereby insufficiently informed. A study of NLRB elections by Getman and associates reports that approximately 75 percent of the people who sign cards actually vote for the union. This suggests that while cards are a reasonable surrogate for ballots, they are not perfect, and perhaps a higher thresh- old than 50 percent should be used (mathematically, it would be 67 percent) if cards are to be true indicators of a majority support for unionization.

Research that included interviews from workers in 48 union campaigns revealed the following:

Pressure on workers from employers to oppose unionization was significantly greater than pressure from co-workers or union organizers to support unions in both card check campaigns and NLRB elections. There was a reduction of labor law violations by employers under the card check procedure. Ninety-four percent of the workers who signed cards in the presence of union organizers did not report feeling pressured into signing the cards. There was reduced flow of information under the card check procedure; however, workers who did not feel they had sufficient information did not sign the cards, which is essentially voting no union. Card check procedures reduced intimidation and other pressures on workers who were faced with the unionization decision.55

Neutrality agreements typically contain language stating that the employer will nei- ther help nor hinder a union s organizing efforts, will not communicate opposition to the union, will not refer to the union as a third party, will not attack or demean the union or its representatives, and other similar provisions. The language in card check agree- ments typically calls for a third-party neutral to validate the cards to determine whether a majority of the bargaining unit employees want the union to represent them. Most of these agreements allow union access to the physical property of the employer and set limits on the union s behavior, most commonly not to attack management. In over 90 percent of the agreements, some form of dispute resolution, most frequently arbitration, is set up to resolve alleged violations or disputes that may occur during the term of the agreement. An example of a dispute is disagreement over the composition of the bar- gaining unit and eligibility of employees to sign union authorization cards.

Most employers still refuse to voluntarily recognize a union even when union orga- nizers present signed authorization cards (see Exhibit 5.6) from a majority of employees. Management might be concerned that these cards were obtained through inappropriate means (e.g., after drinking parties, under threats of violence, or through forgeries). Employers also realize that authorization cards are not always accurate predictors of union success in representation elections.

If a union is voluntarily recognized, its status as bargaining representative cannot be challenged during reasonable period for bargaining (not less than six months and not more than one year). Although the Board did not directly address the legality of employer neutrality or card check agreements, the new rule potentially alters how and when employers or unions may choose to enter neutrality and card check agreements.56

CHAPTER 5 Why and How Unions Are Organized 215

Since 1966, if an employer voluntarily recognized the union based on a card check agreement, the recognition bar applied. Any filing for decertification by a group of employees or a rival union during the year after the recognition would have been untimely. In addition, the one year time limit could be extended for up to three years if and when the parties nego- tiated and included such agreements in their collective bargaining agreement.57

In an interesting chain of events which actually ended in the voluntary recognition of two groups of employees (even after the union did not receive a majority of the votes in favor of the union), Volkswagen recognized the UAW as well as an independent employee group. See the Labor Relations in Action on the above.

NLRB Directive In rare and very controversial cases, the NLRB may direct the employer to recognize and bargain with the union. Although the NLRB considers secret-ballot elections superior, it

LABOR RELATIONS IN ACTION Volkswagen and the United Auto Workers Chattanooga, Tennessee

2008 Volkswagen announced its intention of building a $1 billion (with $577 of local, state and federal govern- ment incentives) assembly plant in Chattanooga, Ten- nessee. The plant was projected to employ 2,000 workers and produce 150,000 cars per year. Volkswa- gen has over 100 plants worldwide; the Chattanooga plant is the only one which is nonunion.

2011 The first Passat rolls off the assembly line. January 27, 2014 the UAW and Volkswagen

signed an agreement to have the NLRB conduct a representation election of the production and mainte- nance employees at the Chattanooga TN plant.

February 19, 2014 the Volkswagen workers voted 712 to 626 against union representation. UAW presi- dent Bob King blamed the defeat on the outside inter- ference from U.S. Senator Bob Corker, formerly Mayor of the City of Chattanooga and Tennessee Governor Bill Haslam. Both Corker and Haslam predicted that unioniz- ing the plant would hurt the state s economy and Corker warned that VW would move production of its new mid- sized SUV to Mexico. It was reported that the adminis- tration of Governor Bill Haslam offered VW $300 mil- lion in incentives to expand in Chattanooga as long as the UAW was not part of the picture.

October 2014 A group called the American Council of Employees began competing with the UAW to serve as the voice of workers with Volkswagen management.

November 19, 2014 VW s Juergen Stumpf, a mem- ber of VW s global works council, is quoted as saying his colleagues back in Germany were puzzled about what had happened in Chattanooga with the fierce politics surrounding unionization, it was hard to understand … I would understand it being in North Korea.

December 2014 Volkswagen management announ- ced that an audit showed that at least 45 percent of the

workers supported the UAW. Under the Volkswagen Com- munity Organization Engagement policy, VW stated it has recognized the UAW as the collective bargaining agent for the 1,500 workers at the plant and would hold bi-weekly and monthly meetings to talk about issues.

January 2015 Tennessee Senate Speaker Pro Tempore Bo Watson was quoted as criticizing VW s support for the UAW and saying that VW conducted a labor campaign that s unfair, unbalanced and quite frankly un-American.

February 2015 Volkswagen announced that it had recognized the American Council of Employees (ACE), an independent employee council which repre- sents hourly and salaried employees, and will meet with them to discuss safety, productivity, efficiency, and other areas of concern. Sean Moss, interim ACE president, announced that its next step was to develop a works council similar to the German Model of employee representation which exists at other VW s plants.

November, 2015 Volkwagen objected to a request from a small group of maintenance workers at its Chatta- nooga plant to hold a vote on representation by the United Auto Workers. The Volkswagen instead re- quested a full vote by all maintenance and production employees at the plant. The Company remains neutral in regards to our employees rights to representation and an election, but the company believes that the main- tenance-only unit requested in the petition is not consis- tent with its One Team approach.

SOURCES: Lydia DePillis, The Strange Case of the Anti-Union Union at Volkswagen s Plant in Tennessee, Washington Post, November 19, 2014; http://www.wsj.com/arti- cles/uaw-to-begin-bargaining-for-volkswagen-plant-in-tennessee-1418143882?; http:// www.detroitnews.com/story/business/autos/foreign/2014/12/09/Volkswagen-decision; http://www.americancouncilofemployees.com

216

has discretionary authority to use alternative means to determine the majority interests of employees. In the landmark Gissel case, the NLRB decided (and the Supreme Court agreed) that a company may be ordered to recognize and bargain with a union under the following conditions:

1. Evidence reveals that a fair, impartial election would be impossible because of seri- ous or numerous employer unfair labor practices.

2. Wording on the authorization cards is clear and unambiguous (Exhibit 5.6). 3. Employee signatures on the cards were obtained without threat or coercion. 4. A majority of employees in the bargaining unit had indicated their interest in

having the union represent them by signing the authorization cards.58 (Card sig- natures are valid for 12 months unless voluntarily withdrawn by the employee who signed the card prior to a union s use of that card as evidence of employee support.)

In essence, the NLRB and the courts sometimes conclude that an employer has com- mitted flagrant and usually numerous violations of the law. In such situations, the employer has typically intimidated workers with the LMRA violations. Holding another election in these situations is not a realistic remedy because the workers will not vote their true desires. Under such conditions, the next best alternative for measuring union support is the workers willingness to sign union authorization cards (occurring before the campaign period and typically occurring before many of the flagrant viola- tions). Thus, in these instances, if a majority of the workers signed union authorization cards, the NLRB will forgo ordering an election and instead order the union to be certi- fied and management to negotiate with that union.

NLRB does not issue Gissel bargaining orders frequently. During a ten-year span from 1987 to 1996, the NLRB issued an average of ten per year. Then, if appealed by the company to the U.S. Circuit Court of Appeals, only about 50 percent of the bar- gaining orders were enforced.59 (The NLRB does not currently keep records on Gissel orders.)

An analysis of NLRB opinions issued since 1969 reveals a measure of predictability in deciding whether the NLRB will issue a Gissel bargaining order. The NLRB is more likely to issue a Gissel bargaining order:

When it believes that an employer s illegal acts are deliberate or calculated. If the employer s conduct threatens the employees economic interests. If the employer s actions are characterized as vengeful and the NLRB does not believe the actions can be remedied without a bargaining order. When the employer engages in a series of unfair labor practices rather than a single incident.

An NLRB-ordered bargaining order has little value without federal judicial enforce- ment (see Chapter 3) through the U.S. Circuit Courts of Appeals, which tend to rely on a case-by-case analysis. Before enforcing the NLRB s bargaining order, the courts require the NLRB to provide a reasoned explanation of why a rerun election would be futile. In general, if an employer s unfair labor practices seem reprehensible or egregious, the courts will be more likely to enforce the NLRB s bargaining order. For example, if a com- pany takes unlawful actions, such as terminating employees because of their union activ- ities or making threats about the consequences of unionization, the courts will likely enforce the bargaining order.60 Threats of an actual plant closing to deny employees an opportunity to exercise their Section 7 rights is also considered a serious unfair labor practice which could justify a Gissel doctrine bargaining order from the NLRB.

CHAPTER 5 Why and How Unions Are Organized 217

NLRB Secret Ballot Election Pre-NLRB-Election Union Campaigns. The union pre-election campaign is not simply a process of exchanging letters and handbills and then holding an election. The cam- paign usually goes through several stages:61

1. Contacting employees as a result of either employee requests for help or distribu- tion of union literature (handbilling) at the workplace by the union.

2. Determining interests by calling meetings, visiting homes, and counting responses to handbills. (See the previous Labor Relations in Action feature for an array of responses received by union organizers who were seeking support from employees.)

3. Setting up an organizing committee by identifying leaders and educating them about the benefits and procedures of the union, the law, and the issues likely to be raised by management.

4. Building interests by soliciting signatures on authorization cards (see Exhibit 5.6 on p. 214). (Most organizers will wait to announce that the union represents a majority until over 50 percent, and usually 60 to 80 percent, have signed cards.)

During this time the union discovers and highlights employees problems, compares wages at their facility to wages at unionized facilities, and explains the role of the union in helping to satisfy job-related needs. In other words, the union will attempt to convince workers that they need a union and then that they should sign union authorization cards and support the forthcoming organizing campaign by wearing union buttons, attending meetings, and signing up members. Although various means are available to gain sup- port, research indicates that one-to-one contact; peer contact and persuasion; and high quality, professionally designed written communications are most effective.62 Other efforts used by unions include television and radio advertising, hotline telephone num- bers, group meetings, and handbilling.

Organizing new locals is costly. Evidence shows that the cost of each additional union member is about $600.63 These costs include direct, out-of-pocket expenditures for such items as the printing and mailing of leaflets and other literature, rent for office

LABOR RELATIONS IN ACTION Objections to Joining the Union

Why should I join the union when I get exactly the same wages and benefits without joining?

I can t afford to join. I ve got a family to support, and my check just isn t big enough [to cover union dues].

I don t believe in unions. They are too strong and powerful now to suit me.

I don t need a union. My employer is fair and will take care of me. What could the union get for me that I wouldn t have gotten anyway?

My husband (or other relative) doesn t like unions.

The union does not do anything for you [grie- vances are not settled satisfactorily]. I don t like the peo- ple who are running things in the union.

I can handle my own affairs. I can take care of myself. I ll make my own decisions. I do not intend to stay on this job forever; I m looking for a promotion.

My religion doesn t permit me to belong to any outside organizations.

My boss doesn t believe in unions. I ve seen what happens to union members.

I don t want anything to do with unions. They are all corrupt.

I don t know enough about the local or the union movement.

I m not interested. I just don t want to join. I ll think about it. Maybe I ll join someday.

SOURCE: Organizing Committee, AFSCME Council 24, WSEU, 5 Odana Court, Madison, Wisconsin.

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space, salaries for staff hired, and legal fees. These efforts take time from the union staff that could have been devoted to providing services to present union members (handling grievances, arbitration, and negotiations).

The costs of organizing new members must be compared with the returns:

Extra compensation made possible by increased bargaining power Additional dues and fees paid by new members Enhanced political influence Social benefits and satisfaction derived from extending membership to others64

Companies often learn of union-organizing attempts from supervisors or rank- and-file employees and through observing handbilling at the work site before they receive official notification (by letter or telegram) from the union demanding recognition. Some companies react vigorously, whereas others do little to acknowledge any union s attempt to organize the employees. Some employers tell their employees about their opposition and urge them not to sign union authorization cards. Because the cards may specifically state that the signee wants union representation, any employee signature assists the union in establishing itself within the company. See the Labor Relations in Action feature on page 220 for typical employer messages during a union campaign.

Filing a Petition for the Election. Before 1935, to obtain recognition, the union usually had to show its strength and employee interest in representation by such actions as strikes. The Wagner Act and the NLRB changed this situation by developing procedures and guide- lines for peacefully determining the majority interests of employees through representation elections or some other comparable demonstration. The NLRB procedure is initiated when the potential bargaining representative for the employees files a petition for an election.

The NLRB is authorized to conduct a representation election only when a valid petition has been filed by an employee, a group of employees, an individual or labor organization, or an employer. Usually the petition is filed by the union after it has requested union recogni- tion from the employer and the request is denied. The petition must be supported by evi- dence (usually authorization cards) that a substantial interest in union representation (at least 30 percent of the anticipated bargaining unit) exists. An employer cannot petition for an election until the union seeks recognition. If the employer could, it would petition at the time when the union s support was weakest. After receiving a petition, the NLRB will first determine whether it has jurisdiction and the petition is valid. If so, it will promptly notify the company and request a listing of employees. Companies are not required to submit this list but usually comply with the request as an act of good faith. Next, the NLRB will arrange a conference with the company and union to discuss the possibility of a consent election. Here, if both sides agree to the appropriate bargaining unit, voter eligibility, ballot; and date, time, and place for the election, a consent election will be held. If either party refuses to agree on any one of these items, a formal hearing to settle these matters will be conducted.

Election Investigation and Hearing. In the event that the union and management offi- cials cannot agree to a consent election, the NLRB will investigate the petition and hold a hearing. If it finds that there is substantial interest in union representation, the NLRB will. direct an election (directed elections) This investigation will secure answers to the following questions:

1. What is the anticipated appropriate bargaining unit? 2. Does substantial interest in representation (30 percent) exist among employees in

the unit? 3. Are there any barriers to an election in the form of existing unions, prior elections,

or current labor agreements?

CHAPTER 5 Why and How Unions Are Organized 219

The formal hearing permits both parties to present evidence on issues in dispute, for example, composition of the bargaining unit, date of election, voter eligibility, and so on. Based on the evidence presented, the NLRB regional director will issue a directed elec- tion order which includes his or her decision on disputed issues at the hearing and prior voluntary agreements between the parties about other election issues.

Appropriate Bargaining Unit. An appropriate bargaining unit is a grouping of jobs or positions in which two or more employees share common employment interests and conditions (community of interests) and which may reasonably be grouped together for collective bargaining purposes. Determination of an appropriate bargaining unit is left to the discretion of the NLRB, which decides in each representation case how employee rights can best be protected under the act. The Board s decision has, however, been lim- ited by law in several ways. The statute includes the following:

Professional employees cannot be included in a unit composed of both professional and nonprofessional employees unless a majority of the professional employees vote to be included in a mixed unit. A proposed craft unit cannot be ruled inappropriate simply because a different unit has been previously approved by the NLRB unless a majority of employees in the proposed craft union vote against being represented separately. Plant guards cannot be included in any bargaining unit that has nonguard employ- ees in the unit because of the potential conflict of interest, such as searching a fellow union member s locker for stolen property. Supervisors and managers are not considered employees covered under the act and may not be in any bargaining unit. A supervisor is defined as 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 responsibility to direct them, or to adjust their grievances, or effectively to recom- mend 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 Board does not focus on job titles; instead, the Board focuses on whether the supervisor in question does in fact exercise independent judgment in making decisions. 65

LABOR RELATIONS IN ACTION Examples of Employer Messages during a Representation Election Campaign

Tell employees that union contracts often contain wage cuts or givebacks. Mention that the union does not provide jobs and give examples of companies that have laid off employees who were union members. Explain that if the workers choose the union, the employer will be obligated to bargain with the union in good faith, but the employer cannot be forced to agree to contract provisions that are not in its best interests. Tell employees that a company must remain com- petitive and has a right to try to make a profit. If its

labor costs are so high that it cannot sell its product at a profit, it cannot remain in business. Advise employees that they can revoke the autho- rization card and explain the procedure to do so. Indicate that the union dues vary but can be as much as $600 per year. Tell employees that the employer has the legal right to hire permanent replacements for strikers.

SOURCE: Maintain a Union-Free Status, by Paul S. McDonough, Personnel Journal 69 (April 1990): 108 114.

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Excluded are agricultural laborers, public employees (except postal employees), and independent contractors, although some of these may be covered in separate state statutes. Confidential employees (individuals with access to confidential information, such as management s bargaining strategies) and some family members (e.g., the confiden- tial employees son, daughter, and spouse) are excluded, even if they work in bar- gaining unit jobs. Similarly, an owner s family members who work in bargaining unit jobs are typically excluded.

The interplay between a professional employee and a supervisor becomes more com- plicated when the professional employee exercises some supervisory responsibility over less-skilled employees. For example, nurses often direct the work of less-skilled aides and others in clinics and hospitals. In 1994, the Supreme Court made it more difficult for nurses in nursing homes to organize when it ruled that licensed practical nurses (LPNs) were not employees under the NLRA because they attended to the needs of nursing home patients and therefore acted in the interests of their employer. Then, in 2001, the Supreme Court ruled that six registered nurses were not employees under the NLRA because these nurses exercised a sufficient degree of discretion when they directed less- skilled employees to provide services to patients.66 In 2006, the Board spelled out the sev- eral standards for determining the inclusion or exclusion of nurses in the appropriate bar- gaining unit: responsible direction, assignment, independent judgment, and rotating of charge nurses. The Board concluded that in order to direct employees responsibly, a super- vising nurse must be held accountable for the performance of the task and must have authority to correct errors. In order to meet the assignment test, a supervising nurse must have authority to designate another nurse to a place, time, or type of work. In order words, a nurse who is determined to be a supervisor must have the necessary discre- tion to make an assignment which requires independent judgment.

In a later case, the Golden Crest Healthcare Center, the Board determined that nurses were employees, not supervisors, even though they executed supervisory authority in assigning nurse assistants. The Board found that the charge nurses directed nurse assistants and their performance was evaluated on that criteria; however, there was no evidence that adverse consequences, e.g. discipline, would have resulted if the charge nurse failed to adequately perform these duties.

The Board has since applied these standards in non-nursing cases. The Board deter- mined that lead persons in a company were not supervisors even though they had a role in hiring, disciplining, discharging, and evaluating employees. The Board determined that these lead persons did not have authority to assign employees and that their discre- tion was not greater than routine or clerical. Therefore, the Board determined the lead persons authority did not require independent judgment.67

On occasion, the NLRB has to decide who the employer is. During the nationwide fast food workers campaign involving employees of McDonalds, USA, LLC, and numerous McDonald s franchises over protests to improve working conditions and wages, 310 unfair labor practices charges were filed. Of those cases, 149 were settled, but 109 cases were found to have merit. Approximately 10 cases involved solely corporate-owned McDonald s facilities. However, in 2015, the NLRB found that McDonald s through its franchise relationship was a joint employer with its franchises. The NLRB found that McDonald s through its use of tools, resources, and technology engaged in sufficient control over a franchisees operations shared liability for viola- tions of the National Labor Relations Act.68

On occasion, the NLRB has to determine whether employee status exists. In a con- troversial decision, the Northwestern University football players were determined by an

CHAPTER 5 Why and How Unions Are Organized 221

administrative law judge within the NLRB to be employees within the meaning of the National Labor Relations Act and the NLRB conducted a representation election. How- ever, on appeal, the Board ruled that the football players were not employees and did not count the ballots,thereby voiding the election. In 1999, the Board had previously deter- mined that interns, residents, and fellows at Boston Medical Center were employees. Northwestern University argued that its relationship with student-athletes was primarily education, not economic. The NLRB conducted the election in April of 2014 and the ballots were impounded. The ballots would have been counted if the Board had decided that the football players were in fact employees. In the meantime, the NCAA has pledged greater scholarship protection and better health care for student-athletes and are offering an increase in student-athlete monetary stipends.69

The determination of the appropriate bargaining unit and the jurisdiction of the federal agency can also play an important role in determining whether a union will be successful in its organizing effort. An interesting comparison between United Parcel Ser- vice (UPS) and FedEx is highlighted in the Labor Relations in Action.

This NLRB s determination of the appropriate bargaining unit influences whether the union will win the election, who will vote in the election, whether one union will prevail in an interunion contest, whether craft employees will have their own union or be included in a plant-wide unit, who the union must represent, who will be covered by the collective bargaining agreement, or whether the union will include key employees who could give direction and leadership for the bargaining unit employees.

Analysis of NLRB representation elections indicates that the success of a union cam- paign depends on the composition of the appropriate bargaining unit. When the appro- priate bargaining unit is composed of similarly skilled groups, the union will likely succeed. This may be because decisions within unions are made through a democratic process, and a degree of consensus is necessary to facilitate decision making and to win the support of the majority. However, when different skill groups comprise the bargain- ing unit, achieving consensus is more difficult, and majority support for the union like- wise is harder to achieve and maintain. Thus, the NLRB s policy of including in a bargaining unit all production and maintenance employees within a plant (which would include a diversity of skills) may have contributed to the decline in union mem- bership as a percentage of the total labor force. A more narrowly defined bargaining unit composed only of employees of similar skills (such as electricians) would favor the union winning the representation election and sustaining the continuation of the union.70

Suppose that the union wins and is successful in negotiating a union shop clause. Recall that a union shop clause requires new employees to join the union within 30 days after employment commences. The appropriate bargaining unit may determine which employees will be required to join the union. Therefore, the composition of the bargain- ing unit is important to the employer, the union, and the public.

Some companies pay attention to these considerations and take preventive steps regarding management structure, employee interactions, and personnel policies and practices. For example, if the company prefers a large multi-unit bargaining unit, it will retain centralized control on management practices and decisions. If it prefers smaller, independent units, it will decentralize decision making in these independent units. Because the union has no control over management structure and the authority responsibility relationship, it can try to convince the NLRB that the bargaining unit should be composed only of those employees in specific job groupings where the major- ity support the union.71

Should a plant have several small bargaining units, the employer may face different unions in negotiations several times throughout the year, thereby potentially causing

222 PART 1 Recognizing Rights and Responsibilities of Unions and Management

continuous instability in labor relations and production. Separate units concerned with similar jobs may cause disputes over rights to jobs, leading to grievances, strikes or slow- downs. Should a small bargaining unit be merged with a nationwide bargaining unit, any confrontation that resulted in a strike could cause a nationwide shutdown and complica- tions for customers in need of the companies products. Chapter 6 covers the various bargaining structures and their implications.

The appropriate bargaining unit itself usually covers employees in one plant, but may cover two or more facilities of the same employer. The NLRB considers the com- munity of interests in determining the composition of an appropriate bargaining unit. It evaluates the following factors:

Interests of employees and employers Commonality of wages, working conditions, training, and skill History of collective bargaining either at the location in question or another facility owned by the company Transfers of employees among various facilities Geography and physical proximity of the workplaces Employer s administrative or territorial divisions Degree of separation (or distinctiveness) of work or integration (or interrelatedness) of work72

When the relevant factors do not give a clear indication for the composition of an appropriate bargaining unit, an election (commonly called a Globe election, from the original NLRB case) may be held to determine employee interests. For example, one group of electricians in a steel plant might wish to be represented by the International Brotherhood of Electrical Workers (IBEW) instead of the United Steelworkers of Amer- ica (USWA). The USWA wants to include all electricians in a bargaining unit composed of all production and maintenance employees in the plant. Under such circumstances, the electricians vote will determine whether they will be members of USWA, a separate electricians union (IBEW), or no union.

The U.S. Supreme Court supported the NLRB s first rule-making effort to determine appropriate bargaining units for private acute-care hospitals. Eight standard bargaining units were established for approximately 4,000 acute-care hospitals: (1) all registered nurses, (2) all physicians, (3) all professionals except registered nurses and physicians, (4) all technical employees, (5) all skilled maintenance employees, (6) all business office clericals, (7) all guards, and (8) all other nonprofessional employees. Such rule-making practices reduce the number of cases in which employers are able to contest the number and composition of the appropriate bargaining unit. Previously, employers had some- times intentionally challenged the composition of the bargaining unit in order to delay the election and thereby increase the chances that the union would not win representa- tional rights.73

In 2000, the Board ruled that, under the National Labor Relations Act, a group of medical interns, residents, and fellows were employees and formed a proper bargain- ing unit, even though they were students. This ruling overruled a previous ruling that had excluded such individuals from bargaining units of employees. The Board rea- soned that the interns, residents, and fellows were similar to apprentices, who had been considered statutory employees for a long time. Later in 2000, the Board extended its ruling and found that a group of graduate assistants (including teaching and research assistants) at New York University were employees. The Board rejected the university s contention that the graduate assistants were predominately students, not employees.74

CHAPTER 5 Why and How Unions Are Organized 223

In 2004, with a Bush-appointed majority, the Board made a significant reversal and ruled that graduate students were students, not employees, under the National Labor Relations Act. This reversal came at a time when graduate student unionization was on the rise in the United States. Over the previous decade, the number of graduate student unions had grown from 10 to 30. New graduate student unions existed at several major universities such as Temple, Michigan State University, University of Rhode Island, and Columbia. It is estimated that 20 percent of all graduate students are now covered under collective bargaining agreements.75 Most of these graduate student unions were orga- nized and recognized in the public sector, which is governed by state labor relations laws (covered in Chapter 13).

Eligibility of Voters. Before an election is conducted, voter eligibility must be deter- mined. An employee is eligible to vote in a representational election if he or she is (1) employed in a bargaining unit job; (2) employed during the eligibility period, which is usually the payroll period immediately preceding the date a consent agreement is signed or a directed election order is issued; and (3) employed on the date of the election. How- ever, employees who are on sick leave, vacation, temporary layoff, or temporary leave, such as military duty, may vote in the election. In addition, the NLRB will occasionally consider irregularity of employment, such as in the construction, food processing, and longshoring industries. Economic strikers who have been replaced by permanent employees are allowed to vote in any election within 12 months after the strike begins. This policy ensures that management does not provoke a strike and hire replacements who could vote out the union. Employees hired after the union files its petition but before the election may be challenged for their eligibility by the union.

Untimely Petitions. Several rules make a petition for a representation election untimely. The election bar doctrine is a legal requirement that prohibits any NLRB

LABOR RELATIONS IN ACTION Interesting Comparison: FedEx and UPS (United Parcel Service)

FedEx began operations in 1971 as an overnight air car- rier of freight and mail. Because FedEx was an air carrier and subject to airline regulations, it was covered under the Railway Labor Act. The 4,500 to 5,000 pilots of FedEx are now represented by the Air Line Pilots Asso- ciation (ALPA), which is an AFL-CIO affiliate. Due to expansion and its purchase of other companies, FedEx employs about 100,000 truck drivers, package handlers, dispatchers, and other FedEx Express ground transpor- tation employees who remain nonunion.

UPS began in 1907 as a ground transportation car- rier and is covered under the National Labor Relations Act. UPS ground transportation employs over 200,000 employees, most of whom are represented by the Teamsters. The 2,800 UPS pilots are represented by the Independent Pilots Association (IPA), which remains an independent union.

Under the National Labor Relations Act, employ- ees can be organized on a location-by-location basis.

In other words, employees of a particular facility of a nationwide company may organize a union to repre- sent them at that one facility. Under the Railway Labor Act, a union must organize employees through- out the entire company who do similar work. For example, if package handlers of FedEx Express wanted to be represented by a union, a union must organize these package handlers at all of the company facilities, not at a single location or transportation hub.

Today, both companies are competitors, offer basi- cally the same services, and are structured similarly. However, any union that attempted to organize one or more groups of the 100,000 FedEx employees would be required to organize on a national basis, not at a sin- gle location or facility.

SOURCE: Railroaded Out of Their Rights: How a Labor Law Prevents FedEx Express Employees from Being Represented by a Union (Washington, D.C.: The Leadership Conference on Civil and Human Rights, June 2010).

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representation election where one has been held in the last 12 months or where a peti- tion for election covers a group of employees who are already covered by an existing contract and already members of a legally certified union.

The second rule and potential barrier to elections is an administrative determination that was made in the interest of stable and effective labor relations. The NLRB rule, called the contract bar doctrine, specifies that a valid, signed agreement for a fixed period of three years or less will bar any representation election for the life of the agreement. Thus, the contract bar doctrine could extend the 12-month statutory limitation on elec- tions to three years. To do otherwise would be unfair to union and management officials who have negotiated a multiyear labor agreement in good faith.76

Names and Addresses (Excelsior Rule). Within two business days after the regional director of the NLRB has approved a consent election or after an election has been directed, the employer must file with the regional director a list of names, mailing and e-mail addresses, and phone numbers of all eligible voters. This information is then made available to the union. Refusal to comply could be identified as an act of bad faith on the part of the employer and cause the election to be set aside or require the NLRB to seek the names and addresses by subpoena. The purpose of this disclosure rule is to give the unions involved in an election access to employees contact informa- tion that management already possesses.77 If there is a pre-election hearing, the employer must now provide the employee list to the NLRB and union in one business day before the hearing.

The Election. The representation election, acclaimed as one of the great innovations of American labor law, is conducted by NLRB officials and is typically held within 38 days (median) of the initial request.

In December 2015, the NLRB issued the new rules and procedures which will gov- ern union representation elections. The NLRB stated that these new rules and proce- dures are designed to remove unnecessary barriers to the fair and expeditious resolution of representation questions, streamline litigation, eliminate duplication and delay, increase transparency, and update NLRB procedures using modern communica- tion technology. See Exhibit 5.7 for a comparison of the pre-2015 procedures and the new procedures.

NLRB data show that about 90 percent of the eligible voters usually vote in NLRB elections, as compared with about 50 percent in major political elections. The high voter turnout in union representation elections might be due to the convenient voting procedure (usually carried out on company property) and the belief of many employees that their vote more directly affects their lives (at least their working lives) than do political elections. Finally, both unions and management realize that an employee could express union preference to a union representative in a face-to-face meeting and an opposite preference to the management representative to avoid a confrontation during the election campaign. Neither side is certain of employee voting preferences when faced with a secret ballot; therefore, both union and management officials work to get out the vote.

In March 2013, the National Mediation Board (NMB) changed its rules that govern union representation elections for the airline and railroad industries. For 75 years, the NMB required that in the absence of substantial employer interference, a majority of an entire craft or class must affirmatively vote in favor of union representation before the union would be certified as the bargaining representative for a group of employees. Under the previous rule, if there were 100 employees in the bargaining unit, 51 must actually vote for the union. If only 50 of the 100 voted for the union, the employees

CHAPTER 5 Why and How Unions Are Organized 225

Exhibit 5.7 Comparison of Pre-2015 and New Procedures

Pre-2015 procedures New procedures

Parties cannot electronically file election petitions.

Election petitions, election notices and voter lists can be transmitted electronically

The parties and prospective voters receive limited information.

Parties will receive a more detailed description of the Agency s represen- tation case procedures, as well as a Statement of Position form, help parties identify the issues they may want to raise at the pre-election hearing.

The parties cannot predict when a pre- or post-election hearing will be held.

The Regional Director will generally set a pre-election hearing to begin 8 days after a hearing notice is served and a post-election hearing 21 days after the tally of ballots.

There is no mechanism for requiring par- ties to identify issues in dispute.

Non petitioning parties are required to identify any issues they have with the petition, in their Statements of Posi- tions, generally one business day before the pre-election hearing opens.

The employer is not required to share a list of prospective voters with the NLRB s regional office or the other parties until after the regional director directs an elec- tion or approves an election agreement.

The employer must provide a list of prospective voters with their job classi- fications, shifts and work locations, to the NLRB s regional office and the other parties, generally one business day before the pre-election hearing opens.

Parties may insist on litigating voter eligi- bility and inclusion issues that do not have to be resolved in order to determine whether an election should be held.

The purpose of the pre-election hearing is clearly defined and parties will gen- erally litigate only those issues that are necessary to determine whether it is appropriate to conduct an election.

Parties may file a brief within 7 days of the closing of the pre-election hearing.

Parties will be provided with an oppor- tunity to argue orally before the close of the hearing and written briefs will be allowed only if they are necessary.

Elections are delayed 25 30 days to allow the Board to consider any request for review of the regional director s decision that may be filed.

There will be no automatic stay of an election.

The voter list provided to non-employer parties to enable them to communicate with voters about the election includes only names and home addresses. The employer must submit the list within 7 days of the approval of an election agreement or the regional director s decision directing an election.

The voter list will also include personal phone numbers and email addresses (if available to the employer). The employer must submit the list within 2 business days of the regional director s approval of an election agreement or decision directing an election.

SOURCE: http://www.nlrb.gov/news-outreach/fact-sheets/nlrb-representation-case-procedures-fact-sheet

226 PART 1 Recognizing Rights and Responsibilities of Unions and Management

would continue to be unrepresented. The new rule requires a simple majority of those who actually vote in the union representation election (similar to NLRB elections). Now, if there are 100 employees in the bargaining unit and 80 employees actually vote in the election, 41 of the employees must vote for union representation. The NMB also changed another representation election rule. The NMB now requires not less than 50 percent (up from 35 percent) of the employees or class to have signed union authori- zation cards before the NMB will hold a representation election.

Voter participation tends to decline the longer it takes for the NLRB to conduct the election. Thus, some employers are motivated to refuse to consent to an election in hopes of increasing the chances of the union losing the election. Because most single-unit elections are close, the number of nonparticipants may affect the outcome of many elections.78 A small number of votes greatly influences the outcome of the election; research shows that a switch of eight votes would have changed the outcomes of half the elections.79 Furthermore, small increases in the time to process cases are important; a delay of ten days has proven to be a significant factor in differentiating employer wins from employer losses. The number of pre-election days has also been linked to union losses. During the first six months of delay, there is an average drop- off in union victories of 2.5 percent per month. Consent elections have the highest victory rate.80

The size of the election unit has tended to be negatively related to union victories. The larger election unit is closely related to delay because it takes longer to process and is more likely to result in a hearing than in a voluntary settlement.81 Success in union organizing has been influenced positively by the size of the union and democracy within the union and influenced negatively by the union s propensity to strike and centraliza- tion of the union s decision making.82

Using a ballot with the appropriate company and union designations (Exhibit 5.8), a secret-ballot election is conducted under NLRB supervision, usually during working hours on payday at the employer s location. However, the NLRB has discretionary authority to conduct it by mail ballot. The Board has encouraged the use of mail ballots in representation elections under any of the following conditions: (1) eligible voters were widely dispersed geographically; (2) eligible voters worked differing schedules and were not present at common locations at common times; or (3) where there was strike, lock- out, or picketing.83

The NLRB must determine whether the majority of employees in an appropriate bargaining unit want to be represented by a union for collective bargaining purposes. It defines majority as the simple majority rule generally accepted in democratic elections, which means that those choosing not to vote in the election have decided to assent to the wishes of the majority who did vote. Therefore, a majority of the employees who vote (50 percent plus one of those casting valid ballots in the election) must favor repre- sentation before a union will be certified by the NLRB.

If two or more choices are placed on the ballot, a runoff election may be necessary between the choices receiving the two highest numbers of votes in the initial election. If the majority votes no union, no representation election can be held for 12 months. If a union receives the majority of the votes, the NLRB will certify it as the exclusive bargaining agent of the employees in the bargaining unit. Interestingly, where more than one union has vied for representation rights in the same election, unions have fared extremely well.

Although only 4 percent of representation elections are multi-union elections (i.e., there is a choice between two unions), one of the competing unions is more likely to win representation rights than in a single-union election. Also, multi-union elections

CHAPTER 5 Why and How Unions Are Organized 227

bring out a substantially high number of voters.84 The major reason for this positive vote is that two unions would have to gain support from a sufficient number of the bargain- ing unit s employees to be placed on the ballot. Such support usually indicates that the employees have already decided to vote for a union; the election is conducted to deter- mine which union will receive the majority vote.

After the votes have been counted, either party has seven calendar days to file objec- tions alleging misconduct or to challenge the ballots of voters whom one party believes should not have voted in the election. This part of the representation process receives

Exhibit 5.8 Examples of Secret Ballots for Union Representation Election

228 PART 1 Recognizing Rights and Responsibilities of Unions and Management

considerable criticism because of the delay in assessing ballot challenges, and objections concerning misconduct often seem excessive.

In 2014, the NLRB conducted 1,260 representation elections. Unions won 68.0 percent, compared with 63.8 percent in 2009. In every year since 2002, unions have won more than 50 percent of the NLRB-conducted representation elections. While the unions have won a higher percent of representation elections, there are fewer elec- tions, e.g. in the 1970s between 7,000 and 8,000 elections per year with the union win- ning between 40 to 55 percent. The most active unions involved in representation elections have been the Teamsters, the United Food and Commercial Workers (UFCW), and the SEIU. The SEIU was the most successful union.85

In a study of 1,004 NLRB elections, employers threatened to close the plant in 57 percent of the elections, discharged workers in 34 percent, and threatened to cut wages and benefits in 47 percent. Eighty-nine percent of employers required their workers to attend captive-audience meetings during working hours. In 77 percent of the elections, supervisors regularly talked to workers one-on-one about the union campaign with a focus on threats of plant closings, wage and benefits cuts, and job losses. More than 60 percent used the one-on-one meetings to interrogate and harass workers about their sup- port for the union.

Employers are less likely to make promises (offering carrots ), such as granting unscheduled pay increases, making positive personnel changes, having special social events, and proposing various forms of employee involvement programs.

Employers appeal most decisions by administrative law judges of the NLRB, especially Gissel-type bargaining orders in hopes of having another election. The most egregious employers use the appeals available to ensure that the case is delayed by three to five years. The worst penalty an employer who is found guilty of unfair labor practices has to pay is backpay to employees who were illegally terminated; the amount of backpay, averages a few thousand dollars per employee.86

After the Election As noted in Chapter 1, the first step of the labor relations process, the recognition of legitimate rights and responsibilities of unions and management representatives, includes more than the representation election. After unions win bargaining rights in a represen- tation election, they attempt to negotiate their first labor agreement; however, they fail to secure a first contract 25 to 30 percent of the time. Several factors increase the likelihood of reaching agreement: existence of relatively high wages already at the company, pres- ence of other bargaining units within the company, large election victories, and active participation of international union representatives. Factors that reduce the chances of attaining a first contract include location in a southern state with right-to-work laws, the national union having to approve the local union s contract, presence of outside labor management consultants hired by the company,87 NLRB delays in resolving employer objections and challenges to election results, employer refusal to bargain in good faith, and discrimination against employees after the election.88

Delays associated with filing objections to campaign conduct have increased threefold over the last 20 years, and the median amount of delay time is now about 210 days. Employers fail or refuse to bargain in good faith 13 percent of the time. This unfair labor practice adds approximately 140 days. Additional delay can occur if appeals are made to the full Board in Washington, D.C., or to a federal court of appeals or the Supreme Court.

In addition to the delays, there has been a sixfold increase in the number of unfair labor practice charges for firing union supporters and an elevenfold increase in the number of backpay awards. Employers discharge union activists or union

CHAPTER 5 Why and How Unions Are Organized 229

supporters for two main reasons: (1) to get the key union organizers out of the facil- ity and (2) to send a chilling message to the rest of the workforce. With such statis- tics, it does not appear that ethical considerations prevent all employers from breaking the law.

Duties of the Exclusive Bargaining Agent and Employer The exclusive bargaining representative (the union) chosen by the majority of the employees in an appropriate unit has the duty to represent equitably and fairly all employees in the unit regardless of their union membership and to bargain in good faith with the employer. The employer has a comparable obligation; that is, to bargain in good faith with the exclusive bargaining agent and to refuse to bargain with either individual employees or any other union seeking to represent the employees. Further, any negotiated labor agreement will cover all employees in the bargaining unit, regard- less of their union membership status.

After Election Loss by the Union After losing a representation election, typically the union reduces its activities because there can be only one election every 12 months. However, there are some creative ways in which the union can maintain contact with employees, particularly those who sup- ported it during the campaign, and provide a representational service to those included in the bargaining unit. Exhibit 5.9 shows alternative activities that could increase the chances of success of any future unionization drive.

Proposed Mandatory Secret Ballot Elections versus Employee Free Choice Act (EFCA) The Secret Ballot Protection Act was introduced in the U.S. Congress in 2007 (and every year since) to require secret ballot elections for union certification. If passed, this bill would have made it an unfair labor practice for an employer to recognize or bargain with a union that has not been selected by a majority of employees in a secret ballot election conducted by the NLRB. It would have made it an unfair labor practice for a union to cause or attempt to cause an employer to recognize or bargain with a union that had not been chosen by a majority of employees in a secret ballot election. In other words, voluntary union recognition by card check would have been prohibited. This proposal legislation has, to date, failed to pass.

The bipartisan Employee Free Choice Act that was passed by the U.S. House of Representatives (244 to 185) in 2007 contained three major provisions:

The NLRB would be required to certify a union if a majority of employees signed union authorization cards which stated that the employee wants the union to rep- resent him or her (see Exhibit 5.6 on p. 214). A procedure for reaching the first collective bargaining agreement could be invoked by either party if the two parties have not reached an agreement within 90 days (or longer if both parties agreed) to request mediation by the Federal Mediation and Conciliation Service. If mediation is not successful, after 120 days a first contract would be subject to binding arbitration, resulting in a first contract in effect for a two-year period. Penalties for employer violations of certain unfair labor practices committed during the union organizing campaign or the negotiation of the first contract would be increased.89

For example, a wrongfully discharged employee could receive triple backpay.

230 PART 1 Recognizing Rights and Responsibilities of Unions and Management

There are several arguments from the proponents of union recognition via card check as well as proponents of mandatory secret ballot elections (see Exhibit 5.10 for the common arguments).

The card check procedure for union recognition has a history in other countries. A system of card check union recognition has operated successfully in the United Kingdom under the Employment Relations Act since 2000. The United Kingdom s equivalent to the NLRB will certify a union when over 50 percent of the workers sign union membership cards, or it may call for an election if it believes the election would be in the interest of good industrial relations. However, the practice has been that the Board rarely requires an election when a majority of workers has signed the union membership cards.90

Exhibit 5.9 Possible Activities for Unions after Losing a Representation Election

1. Maintain in-plant committees, designate employees as union stewards, identify them with steward buttons, and through them, maintain contact with member and nonmember employees.

2. Distribute employment-related union literature in the plant during nonworking time and serve as the voice of employees on all matters of common employment-related matters of concern.

3. Union stewards can present employee grievances to management. If manage- ment refuses to meet with the union committee, employees may leave their work as a group to request a discussion of their employment-related problems directly with management. If the response is unsatisfactory, the union may engage in a work stoppage; however, striker replacement rules apply.

4. A non majority union can provide a shield of concerted activity for an individual employee who refuses to drive a faulty truck, reports Occupational Safety and Health Administration (OSHA) violations, refuses to act in violation of personal ethics or morality, or sues for unpaid overtime.

5. Help employees know and enforce their individual employment rights concerning workers compensation, third-party tort claims, wage and hour violations, and so on.

6. In-plant committees help employees know and receive their entitlements, such as medical benefits, sick leave, severance pay, pensions, unemployment com- pensation, disability pay, and social security.

7. Inform employees of rights under common-law doctrines and exceptions to employment-at-will doctrine, including employee manuals, employment con- tracts, public policy exceptions, good faith exceptions, and tort suits involving outrageous conduct, defamation, and invasion of privacy.

8. Reinforce OSHA statutory procedures: (1) establish in-plant safety committees; (2) file complaints through the union; (3) serve as representative of employees to accompany compliance officer on plant walk-around, discuss claims, and participate in conferences; (4) act as representative of employees in the proceed- ings before the OSHA; (5) enforce the Hazard Communication Standard by filing complaints if employer fails to provide toxic training to employees and has not prepared a written communication program; and (6) petition for information con- tained on Material Safety Data Sheets.

9. Represent employees under plant closure laws, pregnancy leave acts, poly graph and privacy acts, and whistle-blowing statutes.

10. Represent employees under unjust discharge procedures modeled after labor arbitration.

SOURCE: Clyde W. Summers, Unions without Majorities: The Potentials of the NLRA, Proceedings of the 43rd Meeting of the Industrial Relations Research Association (Madison, WI: IRRA, 1991), pp. 154 162.

CHAPTER 5 Why and How Unions Are Organized 231

In Canada, five provinces require secret ballot elections, and five provinces allow card check union recognition. The province of British Columbia allowed card checks until 1984; then from 1984 to 1992, secret ballot elections were required. In 1992, card checks were allowed again. During the period when card checks were allowed, the union success rate was 91 percent; when secret ballot elections were required, the success rate was 73 percent. Also, during the period when card checks were allowed, there was an average of 531 union-organizing drives per year; during the period when secret ballot elections were required, the average was only 242.

In June 2007, the Senate failed to end a Republican filibuster by a vote of 51 to 48, thereby preventing a vote on the merits on the Employee Free Choice Act. Although a majority of senators would have voted for the act, 60 votes were needed to end the filibuster.91

Exhibit 5.10 Most Common Arguments Made by Proponents of Union Recognition via Card Check and Proponents of Mandatory Secret Ballot Elections

Proponents of Card Check Recognition

Proponents of Mandatory Secret Ballots

Card check recognition requires signa- tures from over 50 percent of bargaining unit employees (subject to verification by the NLRB). A secret ballot election is decided by a majority of workers voting.

Casting a secret ballot is private and confidential. A secret ballot election is conducted by the NLRB. Under card check recognition, authorization cards are controlled by the union.

During a secret ballot campaign, the employer has greater access to employees.

Under card check recognition, employ- ees may only hear the union s point of view.

Because of potential employer pressure or intimidation during a secret ballot election, some workers may feel coerced into voting against a union.

Because of potential union pressure or intimidation, some workers may feel coerced into signing authorization cards.

Employer objections can delay a secret ballot election.

Most secret ballot elections are held within two months after a petition is filed.

Allegations against a union for unfair labor practices can be addressed under existing law. Existing remedies do not deter employer violations of unfair labor practices.

Allegations against an employer for unfair labor practices can be addressed under existing law. Existing remedies do not deter union violations of unfair labor practices.

Card check recognition is less costly for both the union and employer. If only secret ballot elections were required, the NLRB would have to devote more resources to conducting elections.

Unionization may cost workers union dues; higher union wages may result in fewer union jobs.

Card check and neutrality agreements may lead to more cooperative labor management relations.

An employer may be pressured by a corporate campaign into accepting a card check or neutrality agreement. If an employer accepts a neutrality agreement, employees who do not want a union may hesitate to speak out.

SOURCE: E. Gerald Mayer, Labor Union Recognition Procedures: Use of Secret Ballots and Card Checks, Congressional Research Service, The Library of Congress, 2005, Table 3, http://digitalcommons.ilr.cornell.edu/keyworkplace/237.

232 PART 1 Recognizing Rights and Responsibilities of Unions and Management

In 2008, with President Obama, a Democrat, and a Democratic majority in the U.S. House and Senate, it appeared promising that the EFCA would pass. However, with the death of Senator Ted Kennedy and election of Scott Brown, a Republican, in Massachu- setts, the chances of ending a definite Republican filibuster were slim. Then, in 2010, the Republicans gained a majority in the House, and the chances of passing EFCA grew even slimmer.

Conduct of the Representation Election Campaign

Successful union recognition campaigns are dependent upon volunteers who help per- suade employee-voters to vote for the union. Much of the work behind a successful cam- paign involves such activities as arranging meetings and creating and distributing information, and most of this work is done by volunteers. Even though there are no immediate or explicit monetary rewards associated with this work, there are potentially personal, political, and self-actualization rewards. Employees who have positive attitudes toward unions are most likely volunteer to work on behalf of the union.92

All representation elections are conducted according to NLRB standards, which are designed to ensure that employees in the bargaining unit can indicate freely whether they want to be represented by a union for collective bargaining purposes. However, election campaigns differ substantially, and the strategies of individual unions and employers vary widely. For example, handbills similar to those in Exhibit 5.11 are often used in addition to speeches, informal talks, interviews, and films. Thus, the election campaign, one of the most interesting and controversial activities in labor relations, has led to a body of doctrines and rules. Because Board members are appointed by the U.S. presi- dent, the NLRB philosophy, doctrines, and rules are subject to change with changing administrations.

Campaign Doctrines and NLRB Policies The totality of conduct doctrine guides the NLRB interpretations of unfair labor prac- tice behavior. This doctrine essentially means that isolated incidents such as campaign speeches must be considered within the whole of the general circumstances of the cam- paign and with the possibility that other specific violations have occurred.

Employer statements to employees may seem harmless on the surface, but under the circumstances that exist at the time of the statements, they may carry implied threats. For example, if an employer stated that a third-party intervention could make it eco- nomically impossible for the company to continue in business, it would be making an illegal statement during a union election campaign. However, if the employer made the same statement during an attempted leveraged buyout, there would be no legal violation.

The NLRB concluded that it would no longer probe into the truth or falsity of the parties campaign statements but would intervene in cases where a party had used forged documents that render voters unable to recognize propaganda for what it is. The Board concluded that today s voters (employees) are more educated and sophisticated than their historical counterparts and can analyze materials more accurately. This assessment was influenced by a research study involving over 1,000 employees in 31 elections in 5 states. This study cast doubt on the previously held assumption that employees are unsophisti- cated about labor relations and are swayed easily by campaign propaganda. In fact, votes of 81 percent of the employees could have been predicted from their pre campaign intent

CHAPTER 5 Why and How Unions Are Organized 233

and their attitudes toward working conditions and unions in general. The study concluded that employees votes appeared to be the product of attitudes that resulted from their everyday experiences in the industrial world and not from the campaign itself.93

The data used in the study were later re-analyzed, and the following additional (some different) conclusions were made:94

Employee predisposition favoring the union is an important determinant of voting behavior. Written communications distributed later in the campaign and meetings held early in the campaign most probably have an effect. Threats and actions taken against union supporters are effective in discouraging support for the union.

Thus far, these later analyses have not influenced the Board s position on election campaigns.

Captive Audience 24-Hour Rule One legal approach used by employers to discourage union support includes presenting captive audience speeches, which are delivered to employees during working hours on

the employer s site, and employees are required to attend. The speeches, authorized by the Taft-Hartley amendments in 1947, must not be presented within 24 hours of an election, and the speech content must not include threats of reprisal or promises of ben- efits. However, if the union has no acceptable means of communicating with the employees, as in the mining, shipping, mountain resorts, and logging industries, where employees live on company property, or if the employer s unfair labor practices have created a serious election campaign imbalance, the NLRB and the courts may grant the union access to plant bulletin boards, parking lots, and entrances so that it may communicate with the employees. Still, it is extremely difficult for the union to respond effectively by using its traditional means of contacting employees, such as plant employee solicitations, distribution of literature before or after work, house calls, and union meetings.95

Polling or Questioning Employees Polling employees or asking questions about their interest in unions was considered unlawful interference with employee rights in early days. In 1984, the NLRB announced that it would no longer automatically consider an employer interrogation about an employee s union sentiment an unlawful inquiry in violation of Section 8(a)(1). It announced that it would examine the totality of the circumstances surrounding such interrogations in light of the following:

1. The background of the interrogation 2. The nature of the information sought 3. The identity of the questioner 4. The place and method of the interrogation

Therefore, an employer s questioning of open and active union supporters and other employees about their union sentiments in the absence of threats or promises does not necessarily violate the law. However, NLRB decisions since 1984 reveal that employers are still at great risk with these interrogations because it is necessary only to establish that the questions asked may reasonably be said to have a tendency to interfere with the free exercise of an employee s rights under the act.96

234 PART 1 Recognizing Rights and Responsibilities of Unions and Management

Distribution of Union Literature and Solicitation by Employees on Company Property97

Distribution of union literature can be banned in work areas at all times. Union solicita- tion can be banned only during work time, for example, the time when the employee is expected to be engaged in performance of regular job duties.

The NLRB and the courts have long held that except in special circumstances, employees may not be prohibited from distributing union-organizing materials or solicit- ing union support in nonworking areas during nonworking time98 unless the employer can show that such activity would disrupt production, employee work, and plant disci- pline. For example, employees of restaurants and retail establishments cannot distribute union materials in customer areas, but they can solicit in employee-only break rooms.99

Courts allowed no-solicitation rules that permit exceptions for beneficial acts that may reasonably promote employee morale. These include collecting money to buy a cake for an employee who is leaving, asking for contributions to purchase a blazer as a gift for an employee who is leaving, asking for contributions to buy a gift for the Chef s wife who is expecting a baby, and collecting money to buy a gift for an employee who is leaving or is having a birthday.100

No-solicitation rules in health care facilities are allowed when the rules are applied to patient s rooms, sitting rooms, operating rooms, and any other place patients receive treatment which affects the patient s recovery. No-solicitation rules are prohibitive when applied to cafeterias, coffee shops, gift shops, and lobbies, which are areas that have no effect on patient care and may be visited by the general public.

In addition, the employer cannot prohibit distribution of union materials if the basis for the prohibition is that part of its content includes political issues, such as right- to-work laws and minimum wages.101 Nor can the employer prohibit employees from wearing buttons, hats, or T-shirts promoting the union.

Some employers publish no solicitation rules that prevent employees from discuss- ing union organizing on working time. However, to be enforceable, these no-solicitation rules must be posted in advance of the organizing drive, and these rules must prohibit all types of solicitation by employees with limited exceptions for broad-based community charities such as the United Way.

The employer may limit the type of information distributed to employees by classi- fying company data as confidential. The NLRB has upheld the discharge of five employees who distributed wage data comparing the company s wage scale with that of other plants in the area. The NLRB found that the company had declared this wage information to be confidential and that it had not been obtained in the normal course of employment.

Showing Films during Election Campaigns Films presented to discourage workers from joining unions have taken on new dimen- sions, especially since the 1950s, when the movie And Women Must Weep was produced by the National Right-to-Work Committee. This docudrama movie portrays union vio- lence, strikes, vandalism, phone threats, a house bombing, and even the shooting of a baby of a dissident union member. Frequent use of the film by employers prompted the International Association of Machinists to produce a rebuttal film, entitled Anatomy of a Lie, which claims no evidence exists of a connection between violence and the union s activities. On-site interviews with persons involved in the strike are shown to reveal an opposite view of the employer film, and the president of the union is filmed,

CHAPTER 5 Why and How Unions Are Organized 235

stating that nearly 99 percent of the union members voted to strike. The NLRB s position on the showing of these films has varied; its current position is that their showing alone does not constitute an unfair labor practice and is not sufficient cause to have the results of an election set aside, it is the totality of the employer s conduct that is important.102

Use of E-Mail, Internet, and Social Media Technology is transforming the way in which unions are able to communicate with employees during organizing campaigns. In 2015, there were 1.35 billion Facebook users and 288 million twitter users. The AFL-CIO has its own Internet provider. Workingfamilies.org allows it to contact 13 million people who are interested in legisla- tive and political campaigns, organizing drives, and product/consumer boycotts. Unions are creating recruiting videos and testimonials for posting on YouTube. Social network- ing via MySpace and Facebook is used as part of the union s organizing efforts. In addi- tion, workers are increasingly seeking information on how to organize by contacting unions via e-mail and connecting to unions Web sites.103 The AFL-CIO allows indivi- duals to sign up for e-mail messages from the AFL-CIO and has a link to the AFL-CIO s Organizing Institute with information, such as How to Join a Union, Find Your Union, and State and Local Labor Contacts. Change to Win (CTW) allows individuals to sign up for e-mail messages about organizing campaigns and also to Join the Movement. 104

During a union organizing campaign when social media is involved, the NLRB is required to determine whether the actions by an employee or employees is a group activity which is a protected concerted activity under Section 7 of the National Labor Relations Act. For example, if an employee posts on Facebook

We need a union here. We got no pension and no job security. My supervisors can fire me whenever he wants to.

Other employees who use Facebook review the content and clicks on the button which looks like a thumbs up. Other employees click on Like. (Or with Twitter, there is a favorite tweet that can be retweeted to others.) Questions arise:

Are other employees indicating they like the message? Are the other employees joining the group? Are these actions considered a group activity that is protected?

Further, what happens if an employee not only clicks on Like, but adds in the com- ment section., I agree. We need a union here!!! If any of the employees who clicked on Like and/or added comments are disciplined as a result of their actions, are they pro-

tected under Section 7? To add complications, what if the employees used company equip- ment and sent their message on Facebook during their working hours.105

Employees use of e-mail and employer e-mail policies have been an issue before the NLRB. In a controversial 3 2 decision in 2007, the Board majority upheld an employer policy that banned employees from using the company s e-mail system to urge support for groups or organizations (e.g., a union) while permitting employees to send personal e-mails during nonwork time (e.g., for sale notices, wedding announcements). The e-mail system was viewed as employer property which employees have no statutory right to use under Section 7, LMRA.106

However, after an appeal to the Circuit Court of Appeals of the District of Colum- bia, the court reversed part of the Board s decision. The court held that an employer vio- lates the National Labor Relations Act when it disciplines an employee who disseminates

236 PART 1 Recognizing Rights and Responsibilities of Unions and Management

union-related solicitations under an employer s e-mail policy (prohibiting all e-mails for non-job-related solicitations) but allows other types of solicitations such as hawking bikini lotion, organizing charitable or social functions, sending e-mails with jokes, births, lunches, poker games, sending mass solicitations of sports events, party invitations, requests for dog walking services, etc. 107

In December 2014, the NLRB found that employees have a presumptive right to use their employer s email system to engage in communication relating to concerted activities protected by Section 7 of the National Labor Relations Act including union organizing during nonworking time. The employer may rebut this presumption by demonstrating that there are special circumstances necessary to maintain production and/or discipline which would restrict employee rights; however, the NLRB stated that such circumstances will be rare. The Board reiterated that employees did not have Section 7 rights to use employer property such as bulletin boards, telephones, fax and copy machines, and public address systems. The Board noted that employee email use rarely interferes with others use of the email system and email use rarely adds significant usage costs. In addition, the Board acknowledged that an email system function is an ongoing and interactive means of employee communication which is conducted in a way that other older types of commu- nication equipment clearly do not.108

New Union Strategies In response to employers strategies to maintain nonunion status, unions have had to be creative in their actions. Some well-publicized strategies by unions include (1) instituting cyberspace organizing with the Internet, whereby employees can simply enter the search words how to organize and receive on-line information on union organizing; and (2) hir- ing union salts, whereby a union organizer applies for a job within a targeted company, goes to work, and solicits for union membership as an employee (see the Labor Relations in Action feature on p. 239).

Some recent union successes have come from corporate campaigns such as Justice for Janitors, which mobilized over 200,000 janitors across the United States, many of whom were immigrants. In Los Angeles, the campaign relied on tactics such as marches and civil disobedience, which required extensive participation by the membership. Through boycotts, mobilization of immigrant community organizations, public awareness cam- paigns, and support from the Department of Labor, UNITE-HERE was able to organize immigrant workers employed by contractors who provided supplies to fashion designers. After the traditional NLRB procedure was a completely ineffective approach.109

Other campaigns include the Fight for 15, http://www.fightfor15.com/, which launched a major campaign for $15.00 per hour on April 15, 2015, and for the right to join a union without retaliation. Aimed primarily at Walmart and McDonald s, Fight for 15 is also directed toward all fast food employers and retailers who pay their workers less than $15.00 per hour. Fight for 15 claim to have hundreds of thousands supporters in 35 countries.110 The AFL-CIO established a Strategic Organizing Fund and provided a plan to rebate $15 million to affiliated unions that met high standards in union organizing.111

Also, there have been suggestions that new forms of unions be created. Richard Freeman has proposed a new form of unionism open source unionism wherein union membership does not depend on unions proving that they have majority support of employees and negotiating collective bargaining agreements. Open source unionism builds a common collaborative platform, language, and practice among workers who may operate at some distance from each other and at different work sites. Union mem- bership would be defined more in terms of shared values and actions than collective bar- gaining with an employer. Representation would be extended to individual workers

CHAPTER 5 Why and How Unions Are Organized 237

rather than members of a bargaining unit and would continue to extend to the members as they move from employer to employer. Using the Internet, unions would be able to connect with this diverse and dispersed membership. This form of open unionism could appeal to a tremendous source of untapped union members who may be organized away from their workplace and away from their employer s opposition. Forty-two million workers have expressed a need for some form of representation, and open source union- ism could appeal to professional workers and others who need assistance with their employment contracts, overtime regulations, pensions, and health care benefits, but who believe that the traditional form of union representation through collective bargain- ing may not be appropriate for them.112

Removing a Labor Union

An employer may raise a good faith doubt as to whether its union represents the majority of employees. The NLRB and the courts have developed presumptions and rules related to determining good faith doubt. First, there is a presumption of majority status for one year following certification by the Board. The second presumption is that majority status continues for up to three years if the collective bar gaining agreement extends for three years. At the end of the certification year or the expiration of the three-year collective bargaining agreement, the employer may rebut the presumption of the union s majority status by presenting objective evidence that the union does not continue to represent the majority of bargaining unit employees. Examples of this good faith doubt evidence include (1) a reduction in dues-paying members, (2) a high percentage of employees crossing a union picket line during a strike,

Exhibit 5.11 Examples of Handbills Distributed During Representation Election Campaigns

MISLEADING PICTURES NEWSPAPERS

238 PART 1 Recognizing Rights and Responsibilities of Unions and Management

LABOR RELATIONS IN ACTION Union Salting: A New Union-Organizing Tactic

Town & Country Electric, a nonunion electrical con- tractor, needed to hire several licensed Minnesota electricians for construction work within Minnesota and advertised the positions through an employment agency. Eleven union applicants, including two profes- sional union staff members, applied for jobs. Only one union applicant was interviewed; he was hired but was subsequently dismissed after only a few days on the job.

The IBEW filed a complaint with the NLRB against Town & Country. The complaint was that the company refused to interview applicants and refused to retain union members because of their union membership, which was in violation of the National Labor Relations Act (NLRA).

An administrative law judge and the Board deter- mined that all of the union applicants were employ- ees under the language of the NLRA. Although the applicants had not been hired, applicants are covered under the prohibition of discrimination in regard to hire under the NLRA. The board found it immaterial that the union applicants intended to try to organize Town & Country employees upon securing employ- ment, as well as the fact that the union would be paying these employees to organize a union.

The U.S. Court of Appeals for the Eighth Circuit reversed the NLRB and held that the board had incor- rectly interpreted the definition of employee in the NLRA. The Court ruled that the NLRB did not protect employees who were working for a company while simultaneously being paid by the union to attempt to organize employees of the company.

The U.S. Supreme Court determined that the NLRA sought to improve labor management relations by granting employees the right to organize, form unions, join unions, and assist in organizing unions. The high Court ruled that the meaning of the word employee was critical and that the language and defi- nition of employee includes paid union organizers. The Court noted that the NLRB was created to administer the NLRA and will be upheld when its rulings are rea- sonably defensible. The Court indicated that it relied on the NLRB s expertise and congressional intent in its rulings. Furthermore, the Court ruled that Congress had delegated the primary responsibility for developing and applying national labor policy and that the Board s views are entitled to the greatest deference by the courts. The principal difference between salting and the traditional organizing is that salting is a

top-down approach and traditional organizing is a bottom-up approach. Union salting may be called

covert or overt. Covert salting is like a Trojan horse in that a full-time union organizer applies to a help- wanted ad placed by non-union businesses. The union organizer does not reveal that he or she is employed by the union. The employer does not con- duct a background or reference check, and the union organizer is hired by the employer. Once employed, the union organizer initiates an organizing campaign. Overt salting occurs when the union organizer reveals in the application process that he is employed by the union. If he is denied employment due to his union affiliation, he files a charge of an unfair labor practice against the employer for discriminating against him because of his union membership.

Refusal-to-hire cases have three criteria by which cases are analyzed. First, there must be evidence that the employer was hiring or had concrete plans to hire at the time of the unlawful conduct. Second, the applicant must have been qualified for the job. Third, there must be anti-union reason that contributed to the decision not to hire the applicants.

Once these criteria are met, the burden shifts to the employer to show that it would not have hired the appli- cant even in the absence of his/her union activity or affiliation.

Since the Town & Country Decision Since the Town & Country decision, there has been a 53 percent increase in overt salting activities and a 47 percent increase in covert salting. By 2001, there were 55 union salting unfair labor practices cases before the NLRB. Of the 55 cases, 6 were dismissed and 3 were remanded to the administrative law judge. In 43 cases, the charges were upheld by the NLRB. These charges were associated with monetary penalties of back pay. These charges included unlawful discharge, unlawful layoff, refusal to consider for employment, refusal to recall from layoff, unlawful suspension, and refusal to reinstate strikers. Interestingly, nonunion contractors may join the Associated Builders and Contractors and take out salting insurance, which pays legal fees and up to 90 percent of back pay awards issued by the NLRB.

The appellate courts have cut back on some union salting activities by finding that an employer may fire a union salt if he or she falsified his or her employment

application to obtain a job or the union salt violated a

239

(3) resignations from the union, or (4) a petition by employees without company involvement.113 (See Exhibit 5.12 for other examples of objective evidence.)

From 1951 to 2001, an employer could lawfully withdraw recognition from an incumbent union if it could show that the union no longer had the support of a majority of the bargaining unit or had a good-faith doubt, based on objective evidence, of the union s majority status. The Board has indicated that it is entirely appropriate to place the burden of proof on the employer to show that there is an actual loss of major- ity support for the union. In 2001, the NLRB ruled that where there have been no unfair labor practices that tended to undermine the employees support for the union, loss of majority would be the sole legal basis for withdrawing recognition from an incumbent union. The Board eliminated the good-faith doubt requirement and now provides for the employer to seek a new representation election if the employer can show a reason- able uncertainty that a majority of employees still support the union. The logical conclu- sion is that employers should not be allowed to withdraw recognition of the union short of a new representation election.114

lawful moonlighting policy that does not allow employees to hold two jobs at the same time. In other words, the court found that the dual employment rule was lawful if applied in a nondiscriminatory manner.

SOURCES: Jeffrey A. Mello, The Enemy Within: When Paid Union Organizers Become Employees, Labor Law Journal, 47 (October 1996): 677 679; NLRB v. Town & Country Electric, Inc., 116 S. Ct. 450 (1995); NLRB has developed

guidelines in FES (a Division of Thermo Power) 331 N.L.R.B. No. 20, May 5, 2000. See also Cory R. Fine, Union Salting: Reactions and Rulings since Town and Country, Journal of Labor Research, 23 (Summer 2002): 475 483; Jeffrey A. Mello, Putting a Big Chill on a Big Hurt : Genuine Interest in Employment of Salts in Assessing Protection under the National Labor Relations Act, Employee Rights and Responsibilities Journal, 21 (2009): 40. Also see NLRB v. FES (a Division of Thermo Power), 301 F.3d. 83, 3rd Cir., 2002; Oil Capitol Sheet Metal, Inc., 349 NLRB No. 118, May 31, 2007; Jeffrey A. Mello, Putting a Big Chill, Employee Rights and Responsibilities Journal, 21 (2009): 37 49.

Exhibit 5.12 Examples of Objective Evidence* of Union s Lack of Majority Status

1. Unsolicited communications from employees expressing a desire to become unrepresented

2. Any material change in the size or composition of the unit, such as a reduction in the number of employees

3. Date of union certification 4. Failure of the union to appoint a shop steward or committee 5. Failure of the union to process grievances 6. Failure of the union to actively represent employees on matters arising under the

contract 7. Failure of the union to hold meetings that could be attended by the employees 8. Failure of the employees to attend union meetings 9. Failure of a majority of employees to authorize a dues check off if the contract

provides for one 10. Whether the union has communicated a lack of interest in representation to

either the company or the employees 11. Whether employees have filed or attempted to file a decertification petition of

their own.

* Objective evidence is defined as reasonable grounds to believe that an incumbent union no longer represents a majority of bar- gaining unit employees.

SOURCE: Clyde Scott, Kim Hester, and Edwin Arnold, Employer-Initiated Elections, 1968 1992, Journal of Labor Research, 18, Spring 1997, p. 317.

240

Whenever employees believe that the union is not representing their interests, they may turn to a decertification procedure. Researchers have identified a variety of reasons for such a shift:

Fair treatment of employees by employers Poor job by unions (especially smaller unions) of providing services to members Inability of unions to negotiate an effective first contract after winning bargaining rights Striking employees having skills that can be easily replaced115 so that when a strike occurs, the employer hires replacements

Any employee, group of employees, or employee representative may file a petition for a decertification election 12 months after the union has been certified or upon expi- ration of the labor agreement (see the contract bar doctrine discussion earlier in this chapter). This petition must be supported by at least 30 percent of the bargaining unit employees.

If the employees choose to decertify their union, another representation election cannot be held for 12 months. However, after a valid petition is filed with the NLRB, but before the election, the employer must still bargain with the union until the question of union representation is resolved.

Although employers must be careful of their role in the decertification process, they have exhibited growing interest in it. For example, a one-day seminar, The Process of Decertification by Executive Enterprises, is designed to teach management representa- tives about the entire process of decertification. Many employers have concluded that they should become more involved, especially because they are becoming aware that they do not necessarily have to play a passive role in the decertification process.

Employers may become active participants in the decertification efforts after the petition is filed; however, they should do so only after analyzing the costs and benefits of such a strategy. For example, if the company actively campaigns against the present union and the union wins the election and continues to represent employees, the long- term relationship with the union may be irreparably damaged. Moreover, if the com- pany s relationship with the present union is reasonable and productive, it might be wiser to retain it than chance a later replacement by a more militant union.

If the employer chooses to become engaged in the decertification campaign, similar representation election rules and policies apply. For instance, after the petition is filed with the NLRB, the employer may communicate with employees and forcefully state its opposition to the present union, lawfully respond to employee questions, and inform them about the decertification election process. The employer may conduct captive audi- ence speeches, send letters to employees, and conduct small group discussions during the decertification election campaign. Management may tell employees about the employer s perception of the disadvantages of the union and that the employer prefers to deal directly with individual employees instead of through a third party and wants to build a trusting, team-oriented relationship with employees, not an adversarial one. At the same time, employers must be careful not to plant the idea of decertification in the minds of employees by offering unsolicited advice, distributing booklets that explain how to decertify the union, or circulating a decertification petition. During the union decertification campaign, union officials obviously will attempt to convince employees of the benefits of continued union representation.116

Decertification campaigns are conducted by unions and management in a manner similar to certification campaigns. Decertification elections are usually initiated by a group of employees who are not satisfied with the working conditions and economic provisions achieved by the union through collective bargaining. During the campaign

CHAPTER 5 Why and How Unions Are Organized 241

period, the union officials prefer to use handbills, conduct personal visits, and make special pleas with members to refuse signing any decertification petition. Management prefers to rely on legal counsel and small group meetings with employees. Researchers have found both management and the unions have been successful in their campaigns when they emphasize personal contacts with employees and listen genuinely to their concerns, instead of mailing letters and giving out handbills.117

Employers must be aware of related unlawful activities, such as the following:

Obtaining NLRB forms for employees who may be interested in union decertification Providing services such as typing, assistance in phrasing the petition for decertifica- tion, and use of company stationery by employees who are interested in launching a decertification campaign Initiating discussions on how or whether to decertify the union118

Unions respond to any challenge to their existence as the certified representative of the bargaining unit employees by attempting to convince the employees that there are reasons to continue their union membership and representation and not to seek decerti- fication. Unions do this by improving the level of services to the employees and by attempting to gain improvements in benefits through negotiation.

The number of decertification elections and the percentage of elections lost by unions have remained steady over the last five years. The number of elections was 180, and 33 percent of the elections were won by unions.119

Researchers have identified several explanations for union decertification. First, the affiliation status of the local union involved in the union decertification election with an international union is important because affiliated unions have greater resources avail- able to hold membership support and ultimately to retain union representation. Where employees face income and employment opportunities that are limited to part-time and low-wage employment, support for union retention is significantly lower. For those employees whose income from part-time employment is relatively small, the expense of continuing to support the union is reduced. These reasons may help to explain such cor- porate strategies as moving to small southern towns where alternative employment is relatively sparse and there is a proportional high percentage of part-time employees.

Employees, like employers, must be aware of possible consequences of their activities related to attempting to decertify the union. Decertification advocates must be prepared for pressure from union officials and isolation from fellow employees who are pleased with the union. The NLRB has upheld the union s right to discipline union members who actively participate in the campaign to decertify the union, as long as the disciplin- ary action does not affect the employee s employment status.120

Summary This chapter provides insights into reasons unions are formed. It discusses the most important theories and explanations ranging from alienation and class consciousness to the employees backgrounds and personal desires. The role of a union is to fulfill employees perceived needs and answer job-related concerns. Unionization efforts progress from first contacts with employees to signing the authorization

cards, petition for election, hearings, determination of the appropriate bargaining unit, and the eventual representation election. Within this framework numerous rules, regulations, and legal requirements govern the union certification process. The proce- dures by which employees can be formed into unions through voluntary recognition, NLRB directives, and secret-ballot elections are explained.

242 PART 1 Recognizing Rights and Responsibilities of Unions and Management

The chapter presents the arguments for and against the proposed Employee Free Choice Act and the Manda- tory Secret Ballot Protection Act. The Employee Free Choice Act was passed by the U.S. House of Representa- tive. A majority of senators supported its passage, but there was not enough support to bring the act to a vote. Even if the act had passed, President George W. Bush would have vetoed it. After subsequent elections, the prospects for passing the Employee Free Choice Act appear dim.

Unions have launched new strategies to organize unrepresented employees, such as internet and social media. The AFL-CIO and CTW have introduced sev- eral new programs.

When the union is judged by employees as not representing their interests, a decertification procedure is available through the election process. Generally, only a few employees and only small bargaining units have been involved in decertification elections.

Key Terms alienation theory, p. 198 Scarcity Consciousness Theory, p. 199 union instrumentality, p. 203

Consent election, p. 219 Directed elections, p. 219 contract bar doctrine, p. 225

totality of conduct doctrine, p. 233

Discussion Questions

1. Refer to the reasons employees become members of unions to assess the means used by union organizers to meet these needs.

2. Select an organization with which you are famil- iar, and determine the number of bargaining units that would be appropriate.

3. Explain the contract bar doctrine. How would it influence the negotiation of the first labor agreement?

4. Appraise the shifting positions of the NLRB on representation election campaigning.

5. Prescribe a do and don t list for supervisors involved in unionization campaigns so that they will not commit any unfair labor practices.

6. Why do you believe employers are becoming more interested in decertification elections?

7. Explain the following statement: It is not the union that organizes the employees; it is management.

8. What would be a good response from a union organizer for each statement in the Labor Rela- tions in Action feature on page 239?

9. Review the arguments for and against the Employee Free Choice Act and the Mandatory Secret Ballot Protection Act. How would you vote? Give your reasons.

Exploring the Web

1. AFL-CIO Organizing Institute (http://www.afl-cio.org/aboutus/oi) The mission of AFL-CIO s Organizing Institute is to identify, train, and develop union organizers. This Web site has a schedule of training classes, frequently asked questions about the institute, information about a union organizer, and testimonies of graduates.

2. Union Organizing Delta Airlines. Type Union Organizing Delta Air- lines in a search engine (e.g., Bing, Google, Yahoo) for articles and commentary related to the 2010

union campaign and the continuing efforts by Delta Airlines and unions. Wal-Mart. Type Union Organizing Wal-Mart in a search engine for the latest on the United Food and Commercial Workers Union campaign to organize Wal-Mart employees in the United States and Wal- Mart s recognition of unions in Canada (Quebec) and China (All-China Federation of Trade Unions).

3. Role of Supervisors in Unionization Campaign To learn about the role of supervisors in a unionization campaign, type Union Organizing Role of Supervisors

CHAPTER 5 Why and How Unions Are Organized 243

in a search engine. You will find multiple sources, articles, books, advising comments from law firms, and so on.

4. Union Salts For up-to-date information and a review of NLRB decisions, review Michael C. Duff, Union Salts on Administrative Private Attorney General, Berkeley Journal of Employment and Labor Law, 32 (Spring 2011) (http://www.boalt.org/BJELL/).

5. Employer Positions of Labor Laws and Labor Relations Go to http://www.nam.org (National Association of Manufacturers) and http://www.uschamber.com/ issues/labor (U.S. Chamber of Commerce) for the latest positions of proposed labor legislation and related matters.

6. For NLRB Updates http:www.NLRB.org/

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244 PART 1 Recognizing Rights and Responsibilities of Unions and Management

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CHAPTER 5 Why and How Unions Are Organized 245

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246 PART 1 Recognizing Rights and Responsibilities of Unions and Management

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An authorization card signifies that the employee desires to be represented by the union in collec- tive bargaining. The employee thereby authorizes the union to represent him or her with his employer. The signed card may be used later by the union as proof of majority representation, as support to demand recognition, and as evidence that there is substantial interest among the bargaining unit to support a petition to the NLRB for representation election. Schlossberg and Sherman, Organizing and the Law, p. 50.

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CHAPTER 5 Why and How Unions Are Organized 247

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94. William T. Dickens, The Effect of Company Campaigns on Certification Elections: Law and Reality Once Again, Industrial and Labor Rela- tions Review, 36, July 1983, pp. 574 576.

95. Richard N. Block, Benjamin W. Wolkinson, and James W. Kuhn, Some Are More Equal Than Others: The Relative Status of Employers, Unions, and Employees in the Law of Union Organizing, Industrial Relations Law Journal, 10(2), 1989, p. 220.

96. David P. Brenskelle, Questioning Employees Concerning Union Sentiment Remains a Risky Proposition, Employee Relations Law Journal, 13, Summer 1987, pp. 141 147.

97. For a comprehensive review of union s solicita- tion decisions and policies, see: Henry Findley, Lee Vardaman, and Sebrena Moten, The Rules of

248 PART 1 Recognizing Rights and Responsibilities of Unions and Management

the Game: Union Solicitation in the Twenty-First Century Workplace, Employee Responsibility and Rights Journal, 22, 2010, pp. 33 44.

98. Republican Aviation Corp. v. NLRB, 324 U.S. 793 (1945).

99. Justices Twice Back Right to Distribute Union Literature on Company Property, Wall Street Journal, June 23, 1978, p. 6; Peter G Kilgore, No-Solicitation/No-Distribution Rules: The Word

Battle of Time Versus Hours Continues, Labor Law Journal, 35, November 1984, pp. 671 672.

100. Henry Findley, Lee Vardaman, and Sebrena Moten, The Rules of the Game: Union Solicita- tion in the Twenty-First Century Workplace, Employee Responsibility and Rights Journal, 22, 2010, pp. 34 41.

101. Eastex, Inc. v. NLRB, 46 U.S.L.W. 4783 (June 22, 1978).

102. Joseph A. Pichler and H. Gordon Fitch, And Women Must Weep: The NLRB as Film Critic, Industrial and Labor Relations Review, 28, April 1975, pp. 395 410.

103. Henry Findley, Lee Vardaman, and Sebrena Moten, The Rules of the Game: Union Solicita- tion in the Twenty-First Century Workplace, Employee Responsibility and Rights Journal, 22, 2010, p. 41.

104. Anthony M. Townsend, Samuel M. Demarie, and Anthony R Hendrickson, Information Technol- ogy, Unions, and the New Organization: Chal- lenges and Opportunities for Union Survival, Journal of Labor Research, 22(2), 2001, p. 285.

105. David Scher and R. Scott Oswald, Notes On: As You Like It: Ascribing Legal Significance

to Social Media Labor Law Journal, 2014, pp. 104 106.

106. The Guard Publishing Company, d/b/a/ The Register-Guard, 351 NLRB No. 70 (December 16, 2007).

107. Christine Neylon O Brien, Employer E-Mail Policies and the National Labor Relations Act: D.C. Circuit Bounces Back to the Obama Board on Discriminatory Enforcement Issue, Labor Law Journal, 61(1), 2010, pp. 5 14.

108. Purple Communications, Inc. and the Commu- nications Workers of America, AFL-CIO, 36

NLRB No. 126 (2014); For a review of case law on Use of Social Media as a Protected Concerted Activity, see: Wesley Kennedy and Angie Cowan Hamada, Protected Activity and the NLRA in the Age of Social Media, Proceedings of the Annual Meeting of the Labor and Employment Relations Association, pp. 40 49.

109. Andrew W. Martin, Why Does the New Labor Movement Look So Much Like the Old One? Putting the 1990s Revitalization Project in His- torical Context, Journal of Labor Research, 27(2), 2006, p. 176.

110. http://www.fightfor15.com/. 111. Richard W. Hurd, U.S. Labor 2006: Strategic

Developments across the Divide, Journal of Labor Research, 38(2), 2007, pp. 313 324; Marick F. Masters, Ray Gibney, and Tom Zagenczyk, The AFL-CIO v. CTW: the Competing Visions,

Strategies, and Structures, Journal of Labor Research, 27(4), 2006, pp. 473 503.

112. Gary Chaison, The Changing Role of Unions: A Review Essay, Journal of Labor Economics, 27(3), 2006, pp. 423 424.

113. Robert W. Schupp, When Is a Union Not a Union? Good Faith Doubt and Its Limitations in Collective Bargaining, Labor Law Journal, 48, June 1997, pp. 369 370; Clyde Scott, Kim Hester, and Edwin Arnold, Decertification Elections: An Analysis of Recent Activity, Labor Law Journal, 46, February 1995, pp. 67 74.

114. David M. Savino and Nealia S. Bruning, Decer- tification Strategies and Tactics: Management and Union Perspectives, Labor Law Journal, 43, April 1992, pp. 201 208.

115. James B. Dworkin and Marian Extejt, Why Workers Decertify Their Unions: A Preliminary Investigation, paper presented at the Annual Meeting of the Academy of Management, August 1979.

116. William A. Krupman and Gregory I. Rasin, Decertification: Removing the Shroud, Labor

Law Journal, 30, April 1979, pp. 234 235. 117. Trevor Bain, Clyde Scott, and Edwin Arnold,

Deauthorization Elections: An Early Warning Signal to Decertification? Labor Law Journal, 39, July 1988, pp. 432 436.

CHAPTER 5 Why and How Unions Are Organized 249

118. Seventieth Annual Report of the National Labor Relations Board, for the Fiscal Year ended Sep- tember 30, 2005, at http://www.nlrb.gov.

119. David Meyer and Trevor Bain, Union Decertifi- cation Election Outcomes: Bargaining-unit Char- acteristics and Union Resources, Journal of Labor Research, 15, Spring 1994, pp. 117 136.

120. Edwin Arnold, Clyde Scott, and John Rasp, The Determinants of Incumbent Union Victory in

Raid Elections, Labor Law Journal, 43, April 1992, pp. 221 228; Clyde Scott and Edwin Arnold, Raid Elections: An Analysis of Employer Campaigns, Labor Law Journal, 41, September 1990, pp. 641 648. See also Robert W. Schupp, When Is a Union Not a Union? Good Faith

Doubt by an Employer, Labor Law Journal, 42, June 1991, pp. 357 364.

250 PART 1 Recognizing Rights and Responsibilities of Unions and Management

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5- 1 Are These Employees Engaged in a Protected

Concerted Activity?

Marianna Cole and Lydia Moore were coworkers employed by the ACE, Inc. to assist victims of domestic violence. The two employees frequently communicated with each other by phone and text message during the workday and after hours. According to Cole s credited testimony, Moore often criticized other employees dur- ing these communications, particularly housing depart- ment employees who, Moore asserted, did not provide timely and adequate assistance to clients. Other employ- ees similarly testified and Moore spoke critically to them about their work habits and those of other employees.

This criticism issue escalated on Saturday, Octo- ber 9, 2010, a nonworkday, when Cole received a text message from Moore stating that the latter intended to discuss her concerns regarding employee performance with Executive Director Lour Iglesias. Cole sent Moore a responsive text questioning whether she really wanted you to know how u feel we don t do our

job From her home, and using her own personal computer, Cole then posted the following message on her Facebook page:

Lydia Moore, a coworker feels that we don t help our clients enough at ACE. I about had it! My fellow coworkers how do u feel?

Four off-duty employees Dame Rodriguez, Ludi Rodriguez, Yaritza Campos and Carlos Ortiz responded by posting messages, via their personal com- puters, on Cole s Facebook page; the employees responses generally objected to the assertion that their work performance was substandard.

Moore also responded, demanding that Cole stop with ur lies about me. She then complained to Iglesias about the Facebook comments, stating that she had been slandered and defamed. At Iglesias request, Moore printed all the Facebook postings, Iglesias dis- charged Cole and her four coworkers, stating that their remarks constituted bullying and harassment of a coworker and violated the ACE s zero tolerance pol- icy prohibiting such conduct.

Questions 1. Are these employees engaged in a protected con-

certed activity? 2. If ACE had terminated Moore also, would a pro-

tected concerted activity be involved? 3. Does it matter that a union was not involved? 4. How should the NLRA rule? Why?

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5- 2 Are the Employees Involved in Activities That

Are Legal?

The representation election was conducted pursuant to a Stipulated Election Agreement. The tally of ballots showed 38 ballots for and 28 against the Union with 5 challenged ballots, an insufficient number to affect the results.

The Employer contended that the Union distrib- uted a flyer during the critical period containing state- ments purportedly made by employees that they did not, in fact, either make or authorize.

The Union explained to employees that it was mak- ing a campaign flyer. The Union obtained signed release forms from employees willing to be photographed and/ or videotaped and to provide statements of support for

the Union. Employees who signed the release forms authorized the Union to use pictures made of me and comments made by me on this date in video tapes, printed material, digital and online media, advertisements, and any other materials. Two questions on the release form asked employees how having a union would (1) improve your life and/or the life of your family and (2) help you provide better care [for your patients].

After collecting signed releases from approxi- mately 49 employees in a proposed bargaining unit of 73, the Union published a campaign flyer containing statements based on the answers in the release forms and on the prior statements employees made in

CHAPTER 5 Why and How Unions Are Organized 251

campaign videos expressing their desire for a union. The cover of the flyer displayed the words We re Vot- ing Yes for United 1199! between two group photo- graphs of employees. These words were repeated on the back of the flyer, surrounded by individual photo- graphs and employee statements. The flyer included statements from approximately 48 individual employ- ees, and approximately 25 of the statements included the words I m voting yes, although none of the employees expressly authorized the Union to use those specific words.

The Employer objected to the Union s use of the words I m/We re voting yes in quotes on the flyer. It claimed that the voting yes quotes were unauthorized misrepresentations that deceived voters and that should require a second election.

Under the well-established standard for evaluating misrepresentation in campaign propaganda, an election can be set aside on the basis of misleading campaign statements only if a party has used forged documents which render the voters unable to recognize propa- ganda for what it is. Under the broader rule, an elec- tion may be set aside where no forgery can be proved, but where the misrepresentation is so pervasive and the deception so artful that employees will be unable to separate truth from untruth and where their right to a free and fair choice will be affected. The Union claimed that it had received sufficient evidence of the employees support that its insertion of the words I m voting yes into employees statements expressing their desire for a union did not amount to misrepresenta- tion, regardless of whether employees expressly autho- rized attribution of those specific words to them.

The Union made an effort to verify the information. The Union asked all the employees to state their reasons for supporting union representation and for permission to use their names, images, and statements in campaign literature. The campaign flyer included statements

received in the answers supplied in the signed release forms. And many of the employees quoted in the flyer also appeared in a campaign video sincerely stating their desire for a union. Based on these interactions, the Union reasonably believed that each of the named employees was planning to vote yes for representation. To suggest that by including the phrase we re voting yes or I m voting yes in quotes the Union engaged in pervasive misrepresentation, artful deception, or

even misrepresentation at all is not supported by these facts. The Union did exactly what each of the employees who signed the release form would have understood the Union was going to do it used the employees names, images, and words in an effort to create a persuasive piece of campaign literature.

In turn, no reasonable employee reading the Union s flyer would think that all the listed employees actually got together and literally said, We re voting yes. That language appears on the cover and back of the flyer and is not attributed to any specific employee. A reasonable reader would have understood those words, as well as the repeated phrase, I m voting yes, as characterizing the pro-union sentiments of the named employees as a whole. There was no artful deception of the reader: that characterization was accurate and was verified by the Union. Surely, readers could recognize the propaganda for what it is. There was no misrepresentation.

Questions 1. Were the Union actions sufficient to cause the

election results to be overturned? 2. Did the Union misrepresent employees who signed

the release forms? 3. If the NLRB agreed with the Employer, what action

would the NLRB take? 4. How should the NLRB rule? Why?

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5- 3 Are the Field Supervisors Supervisors Under the

National Labor Relations Act (NLRA)?

The election was conducted pursuant to a Stipulated Election Agreement. The tally of ballots shows 85 bal- lots cast for, and 80 ballots cast against, the Union, with 2 challenged ballots, a number of insufficient to affect the outcome of the election.

The Employer provides digital television services to residential and commercial customers. At its Ran- cho, AZ facility, the Employer employs approximately 215 employees in the following classifications: field technicians, warehouse employees, and dispatchers.

252 PART 1 Recognizing Rights and Responsibilities of Unions and Management

The vast majority of these employees are field techni- cians, who install or repair digital equipment at custo- mers locations. In addition, the Employer employs a site manager, 3 operations managers, and 22 field supervisors. Of the 22 field supervisors, 13 are designed field supervisors with a team [hereinafter referred to

as field supervisors ], and 9 are designated field supervisors without a team. Each field supervisor oversees a team of approximately 10 to 15 field techni- cians. In contrast, field supervisors without a team do not oversee anyone; rather, they primarily perform installation and repair work on complex jobs or jobs for important customers.

Field supervisors respond to their team members telephone calls seeking answers to technical questions, requesting additional equipment, or reporting pro- blems with particular job assignments (e.g., a cus- tomer is unavailable or a site is inaccessible). Field supervisors monitor the productivity of the field tech- nicians on their team, examine their work, and inspect their vehicles. Field supervisors have the authority to give verbal warnings to technicians for performance issues or for tardiness, such as being late to a team meeting. Such verbal counselings are documented by field supervisors in manager notes, which are not reviewed by management and not retained in employ- ees personnel files.

If a field supervisor determines that a technician s performance or infraction warrants more than a ver- bal counseling, he has the authority to initiate the dis- ciplinary process associated with an employee consultation form (ECF). Field supervisors do not have the authority to prepare and issue ECFs directly to technicians; rather, ECFs are subject to manage- ment review. More specifically after a field supervisor prepares a draft ECF, the ECF is reviewed, first, by the

operations manager to whom the field supervisor reports; next, by the site manager, and, finally, by the human resources department. At each stage of review, the reviewer may alter the language of the ECF, change the proposed level of discipline, or decide that the ECF should not be issued. Following that review, the field supervisor meets with the technician to present and explain the ECF. The field supervisor thereafter affords the technician the opportunity to set forth his version of events, or add other comments, on the ECF form. Finally, the field supervisor asks the technician to sign the ECF form and then signs it himself, after which the ECF is placed in the employ- ee s personnel file.

Section 2(11) of the Act defines a supervisor as 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 responsibility to direct them, or to adjust their grievances, or effectively to recom- mend such action, if in connection with the foregoing the exercise of such authority is not of a merely rou- tine or clerical nature, but requires the use of inde- pendent judgment.

Questions 1. If the NLRB decides that the field supervisors are

supervisors under the National Labor Relations Act, what does the NLRB do about the representa- tion election?

2. Are the field supervisors supervisors under the NLRA?

3. How should the NLRB rule on the field supervisors? 4. How should the NLRB rule in the case of the elec-

tion? Why?

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5- 4 Are These Employees Activities Legally Protected

under the National Labor Relations Act?

Accurate Communications (AC) provides sign- language interpretation services. Its employees, known as video relay interpreters, provide two-way, real-time interpretation of telephone communications between deaf or hard-of-hearing individuals and hearing

individuals. The interpreters typically use an audio headset to communicate orally with the hearing partic- ipant on a call, leaving their hands free to communicate in sign language, via video, with the deaf participant. The interpreters work at 16 call centers that process

CHAPTER 5 Why and How Unions Are Organized 253

calls on a nationwide, around-the-clock, first come, first served basis.

Since June 2012, AC has maintained an employee handbook that contains its electronic communications policy. That policy states:

INTERNET, INTRANET, VOICEMAIL, AND ELECTRONIC COMMUNICATION POLICY

Computers, laptops, internet access, voicemail, electronic mail (email), Blackberry, I Phone, cellu- lar telephones and/or other Company equipment are provided and maintained by AC to facilitate Company business. All information and messages stored, sent, and received on these systems are the sole and exclusive property of the Company, regardless of the author or recipient. All such equipment and access should be used for business purposes only.

Prohibited activities Employees are strictly prohibited from using the

computer, internet, voicemail and email systems, and other Company equipment in connection with any of the following activities:

2. Engaging in activities on behalf of organizations or persons with no professional or business affil- iation with the Company.

. . . .

5. Sending uninvited email of a personal nature.

AC assigns its interpreters individual email accounts on its email system, and they use those accounts every day that they are at work. They are able to access their company email accounts on the computers at their workstations, as well as computers on the call centers break areas and on their personal computers and smartphones. The interpreters have access to the internet on the break-area computers but very limited access at their workstations.

In the fall of 2012, the Union filed petitions to represent the interpreters that resulted in Board elec- tions at seven of the AC call centers. The Union asserted that the electronic communications policy interfered with the employees freedom of choice in the election.

The Union argued that the Board should adopt a presumption that employees may access employer email or other communications systems to communi- cate about Section 7 matters if their employer generally allows them access to the system and uses it to

communicate with them about wages, hours, or work- ing conditions. The Union would allow an employer to rebut the presumption by showing that it expressly lim- its use of the email system to specific and defined busi- ness purposes.

The Union argued that previous Board decisions to recognize that the Board s equipment cases, by hold- ing that employers could not preclude employee use for Section 7 reasons if they allowed other uses.

The Union contends that the Board should take account of the fact that email communications is often less time consuming or disruptive to work of the recipient than face-to-face discussion, less likely to crowd out production-related matter than bulletin board postings, and less likely than other technologies to involve incremental usage costs. Employers controls over their communications system that have a clearly stated business purpose and are strictly enforced and nondiscriminatory would be permissible under the Union s proposal. The Union argued that the availabil- ity of alternative means of communication among employees is not relevant to assessing the nature and strength of the employees (as opposed to nonemploy- ees ) Section 7 rights.

AC encouraged the Board to rule that its elec- tronic communications policy was neither unlawful nor objectionable. AC maintains that Board prece- dents regarding the use of other types of equipment establish a strong property interest that outweighs employees interest in using their employer s email to engage in Section 7 communications. Employees need for such has weakened because the availability of personal email accounts and smart phones has greatly expanded their ability to communicate with one another. AC disputes the various points that characterization of email as the new water cooler.

AC describes various ways in which personal email use could interfere with employees work and undermine an employer s solicitation and distribution policies. AC rejects limited restrictions and other measures as inadequate substitutes for a broad ban on personal use of email; those measures would not effectively address employers interests in maintaining production and discipline, protecting confidential information, preventing computer viruses, and ensur- ing that worktime is used for work. AC also raised potential practical considerations, including how it can exercise its right to keep nonemployees off its communications systems if employees contact them.

254 PART 1 Recognizing Rights and Responsibilities of Unions and Management

Finally, AC downplayed the evidence noted that employees did, in fact, use its email system for non- work communications.

Questions 1. Does it matter that the email equipment is owned by

the employee?

Assess the potential of a favorable ruling for the Union

2. How should the NLRB rule? Why?

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5- 5 Did the Company Violate the Section 8(a)(1) of the

LMRA When It Discharged the Employee?

DCP manufactures data collection products. The chief operational officer is Barry Marks. Larry Leiner is one of 23 employees located in two buildings and was hired in April 2005 as a software engineer who prepared computer programs.

On December 1, Marks sent a message to all employees by e-mail about proposed plans for an incentive-based bonus system. Employees were told to reply with your comments or stop by to see me. A

response to this is required. Changes in vacation policy were also mentioned ( Your comments are welcome, but not required ). The incorporated memorandum on the proposed vacation policy changes stated, Please give me your comments (send me an e-mail or stop in and talk to me) by Tuesday, 12/5. The suggested policy changes were to close the offices on December 23 and reopen on January 2 and to adjust the number of paid days off over a five-year period, the effect of which, Marks asserted, was that the employees actually get more days off each year, compared to our present system.

Marks received a number of employee responses on his vacation proposals, including one on December 1, by e-mail, from Larry Leiner. Leiner s response demon- strated that, in fact, the change referred to by Marks would result in the same number of vacation days per year and less flexibility as to their use. Marks conceded to the accuracy of Leiner s correction and claimed that he had inadvertently erred and had not intended to deceive the employees. On December 4, Leiner, having checked his calculations over the weekend, discovered another minor error and notified Marks by e-mail.

Marks did not reply to Leiner s communications. On December 5, Tom Dunn, a member of the

engineering team, sent an e-mail to Marks, with copies to other engineering team members (which would include Leiner), which stated: In response to the pro- posed vacation plan, I have only one word, GREAT! Promptly, Leiner sent an e-mail to Dunn telling him that the proposed policy did not, in fact, work to the advantage of the employees.

Also, on December 5, Leiner sent a lengthy e-mail message to all employees, including Marks. The mes- sage spelled out in detail Leiner s calculations on the result of the proposed vacation policy change. It con- tained, as well, some flippant and rather grating language.

The salutation was Greetings Fellow Travelers. In his initial remarks, Leiner wrote, the closing state- ment in Barry s memo: The effect of this is that you actually get more days off each year, compared to our present system, will be proven false. This declaration was reiterated in the final thought of the memo: Thus, the closing statement in Barry s memo is proven false. The paragraph pre ceding that statement read: Assuming anyone actually cares about the company

and being productive on the job, if Christmas falls on Tuesday or Wednesday as it did in 1996 and 1997, respectively, two work weeks of one and two days each produced by the proposed plan will replace the fragmented weeks. In closing, Leiner asked that the recipient please send errata to Larry.

Also on December 5, after reading the e-mail mes- sage from Leiner, Dunn e-mailed again Marks and also the engineering team (as shown on the e-mail address). Dunn said in part, After reading Larry s E-mail(s) of this date[,] I realized I had made a mistake in calculat- ing the vacation days and wish to change my comment

CHAPTER 5 Why and How Unions Are Organized 255

from GREAT to Not so Great on the proposed vaca- tion policy. Dunn also noted in his message that the proposals had generated more E-mail than any other plan in the company.

Marks became angry that Mr. Leiner sent his e-mail messages to all employees. He prepared a Decem- ber 5 memorandum to Leiner. The memo stated that Marks was saddened and disappointed by Leiner s e-mail, which was inappropriate and intentionally provocative and beneath someone as talented and intelligent as you are. Marks then wrote:

Our employment manual states: Certain actions or types of behavior may result in immediate dis- missal. These include, but are not limited to:

Failure to treat others with courtesy and respect.

Marks went on to direct Leiner to write him by 5 P.M. that day: In light of the above, why this e-mail message was inappropriate; how sending an e-mail message like this hurts the company; how this matter should have been handled.

Marks continued:

If your response is acceptable to me, you will post it by e-mail today to those who received your other messages.

If you decline to do so, or if your response is unacceptable to me, your employment will be ter- minated immediately. Otherwise, your employ- ment will continue on a probationary basis for six months, during which time your employment may be terminated at any time and for any reason.

Larry, I am very disappointed in you. Barry.

Marks stated that what upset him about the e-mail messages was their tone : it was a slap in the face of employees with good attitudes and a personal attack upon him.

At least twice in the afternoon on December 5, Leiner approached Marks. In Marks s words, Leiner wanted Marks to tell him what to write. In Marks s view, Leiner was profess[ing] not to understand what was wrong with the e-mail message, the confusion of which Marks seriously doubted. He nonetheless tried to give Leiner some appropriate suggestions. Leiner gave a different version of these conversations, portray- ing himself as admitting to an honest mistake after

Marks told him that Leiner should have contacted him, not the other employees, because it was up to him to decide what to say to other people ; Leiner described Marks as refusing to offer any assistance in preparing the requested memo and stated that Marks had branded Leiner a troublemaker.

Marks admonished Leiner for having contacted employees; his December 6 e-mail to the employees picked up the theme that the right way for Leiner to have proceeded was to approach management. Marks stated that, on December 5, he may have told Leiner that he should have pursued the matter privately.

Leiner said that in his last meeting with Marks on December 5, they agreed to extend the memo deadline to 8 A.M. the next day. Leiner further stated that he stayed up well into the morning as he attempted to compose an appropriate letter, but he was unable to come up with anything he deemed satisfactory. When the two men met at 8 A.M., and Marks asked if Leiner had produced a memo, Leiner said, No, I couldn t really write anything incriminating because it could be used against me later. Marks wished him luck in his future endeavors and bade him farewell.

Later that day, Leiner called his supervisor and asked for a discharge letter. The December 9 letter received by Leiner citing as the Reason [sic] for termi- nation two of the grounds for dismissal given in the employee manual:

Failure to treat others with courtesy and respect Failure to follow instructions or to perform

assigned work Early on December 6, Marks e-mailed all the

employees. After discussing the vacation proposal, he turned to Larry s memo and how to address our grievances. He wrote of the impropriety of using sar- casm or disrespect ; he pointed out that the long or provocative e-mail messages had taken up everyone s time; that reading, printing, discussing, and dealing with these messages had unnecessarily cost our com- pany time and money. Marks noted that the right way to handle a grievance, or a question, or a com- ment, or a complaint was to discuss it with a team leader or Marks. Marks admitted that he had erred in explaining the proposed vacation policy, and he asked employees to inform him if that had changed their minds. He closed by saying that, while he welcomed disagreement, he also demanded that everybody be

256 PART 1 Recognizing Rights and Responsibilities of Unions and Management

treated with courtesy. No specific mention was made of Leiner s discharge.

The records showed that in September 2005, Marks had sent a memo to the members of the engi- neering team requiring them to work at least 50 hours per week because of production necessities. Leiner sent a two-word reply: I refuse. Leiner said that he expected this to lead to a dialogue with Marks, which it did. Leiner explained to Marks that his free time was important to him and that he would rather accept a cut in pay than work additional hours. Marks eventually agreed that Leiner need not work the extra time, but Marks told Leiner don t tell anybody. Marks said that he spoke to Leiner and asked him simply to do what he can.

Marks stressed that it was the tone of Leiner s e-mail, and the ramifications of that tone, which played a dominant role in the discharge. This is reflect