Labor Relations

Please see the attached files

PLEASE READ CAREFULLY

– Please cite your work in your responses

– Please use APA (7th edition) formatting 

– All questions and each part of the question should be answered in detail (Go into depth)

– Response to questions must demonstrate understanding and application of concepts covered in class, 

– Use in-text citations and at LEAST 2 resources per discussion from the school materials that I provided to support all answers. 

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Union Representation Memo (Paper/Memo)

Questions:

Assignment 2: Union Representation Memo (Paper/Memo)
(25 points) 3-4 pages, not including cover or References pages

You have recently joined an organization in an entry level HR position. The organization is now subject to union representation. You have been asked by your supervisor to write a brief memo for your HR colleagues that provides an overview of the expectations for managing human resources in a unionized environment. Your memo must address the following:

a. The differences, from the organization’s perspective, in operating in a union-free environment versus a unionized environment

b. The rights of the union, management, and employees

c. The impacts of the union on human resource functions, including

· Work restructuring  

· Performance Management

· Employee Discipline and Job Security

· Wages and Benefits

· Health and Safety

d. Any costs the organization may expect based upon these impacts

Use headings to separate the sections of the paper, double-space, and Times New Roman font, cover page, page numbers, and APA format.

Support your answers! In responding, you must use five references including three from the course materials. They should be from a scholarly journal or credible news source from within the past three years. At least three should be from course materials.
 

232

9

IMPASSE RESOLUTION

When labor and management fail to reach agreement on a labor contract through
a negotiated settlement, they may turn to a procedural technique to resolve the
impasse . This chapter, which covers issues in the middle (functional) level of
Figure 1.1 , describes various dispute resolution techniques, shows how these
techniques affect the negotiations process, and assesses how well the techniques
perform in settling impasses.

The chapter fi rst describes mediation, a process by which a third party tries to
lead labor and management to a negotiated settlement through improving com-
munication and making recommendations. The discussion then turns to fact
fi nding, a more constraining procedure in which the third party makes their
recommendations in a formal report. The next dispute procedure we consider is
interest arbitration, where the parties are constrained to adhere to the decision
of an arbitrator. 1

As with other aspects of collective bargaining, new techniques and roles are
emerging in the area of dispute resolution. Some mediators are now using interest-
based techniques to facilitate labor-management negotiations. These techniques
are consistent with the principles of interested-based bargaining (described in
Chapter 8 ). We will describe this approach and contrast it to the mediation of
more traditional negotiations. This chapter fi nishes by discussing how new third-
party roles are emerging to better respond to the environmental pressures that
the parties confront and to improve labor-management relations.

MEDIATION

Mediation is the most widely used type of third-party intervention in collective
bargaining. In mediation, a neutral party helps union and management negotiators
reach a labor agreement. A mediator has no power to impose a settlement. Instead,
he or she acts as a facilitator for the bargaining parties.

Dispute Resolution Procedures

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EBSCO Publishing : eBook Collection (EBSCOhost) – printed on 2/7/2022 9:19 PM via UNIVERSITY OF MARYLAND GLOBAL CAMPUS
AN: 1589152 ; Harry C. Katz, Thomas A. Kochan, Alexander J. S. Colvin.; An Introduction to U.S. Collective Bargaining and Labor Relations
Account: s4264928.main.eds

Dispute Resolution Procedures 233

Mediators keep the parties talking, they carry messages between the parties,
and they make suggestions. Mediators must rely on persuasion and their com-
munication skills to convince the parties to reach a voluntary agreement. A
mediator ’ s power is limited by the fact that he or she is an invited guest; either
side can ask a mediator to leave.

The Federal Mediation and Conciliation Service

The National Labor Relations Act specifi es that the party proposing changes in
a contract (usually the union) must notify the Federal Mediation and Concili-
ation Service (FMCS) at least thirty days before the start of a strike. While the
law does not require the parties to use mediation if they reach an impasse,
the FMCS includes a staff of experienced mediators who are always ready to
assist the negotiating parties if they are invited to do so. Most states have state
mediation and conciliation agencies that also make mediators available to
negotiating parties. Both federal and state mediators are typically available free of
charge.

The FMCS, the U.S. secretary of labor, other members of the president ’ s
cabinet, or the president is sometimes brought into the mediation process in
important disputes or disputes that designated as national emergencies as defi ned
by Title II of the Taft-Hartley Act. Mediation also is frequently used in hospital
collective bargaining. The 1974 amendments to the NLRA, which extended the
act ’ s coverage to private, nonprofi t hospitals, specify that in those hospitals, mediation
has to take place before a legal strike can occur.

Mediation under the Railway Labor Act

The Railway Labor Act contains provisions for a mediation phase before a dispute
can go to the next step of the impasse process. The staff mediators of the National
Mediation Board, the administrative agency for the Railway Labor Act, serve as
mediators in bargaining that takes place under the coverage of the Railway Labor
Act.

Mediation in the Public Sector

Mediation is more commonly used in the public sector than in the private
sector. Almost all of the bargaining statutes that cover state and local government
employees call for mediation as the fi rst phase of the impasse resolution process.
In the state of New York, for example, on average, about 30 percent of all
public sector negotiations reach an impasse and required mediation. Other states
have reported somewhat lower rates of reliance on mediation, but all states
report rates that exceed the average the FMCS reported reports for the private
sector.

In the public sector, staff mediators are employed by the various state agencies
that administer the public employment bargaining statutes. In some states, mediation
is the province of ad hoc, part-time mediators. These ad hoc mediators generally
hold full-time posts as college professors, lawyers, or members of the clergy or
in some occupation related to labor-management relations.

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234 Part III. The Functional Level of Labor Relations

Types of Disputes That Can Be Settled by Mediation

Mediation is most successful in addressing confl icts that arise from poor com-
munication and misunderstandings that take place when one party or both parties
become overcommitted to their bargaining positions or because of a lack of
experience on the part of the negotiators. Mediation is least successful in resolving
confl icts caused by the economic context of the dispute, such as the employer ’ s
inability to pay or major differences in the parties’ expectations.

Where there is a wide divergence in the demands of labor and management,
the mediation process is limited because some form of outside pressure is necessary
to induce the parties to make major changes in their bottom-line positions. Thus,
the mediation process is best suited to helping the parties move marginally beyond
their initial positions. Only in conjunction with some external pressure can
mediation be expected to succeed in getting the parties to adjust their bottom
lines and reach agreement when a large gap exists between them.

Disputes that arise from of intraorganizational confl icts are also diffi cult to
resolve through mediation. Consider again the example of the teacher dispute
described in Box 8.1 , which involved major internal confl icts within a school
board ’ s management. In that case, one mediation session was held before the
internal split was resolved but little progress was made. After the session ended,
the mediator was informed that the superintendent was going to try to get the
board negotiator dismissed. For the next two months, an internal power struggle
ensued. The mediator kept in touch by telephone with all the parties, but no
formal mediation session took place until the superintendent emerged as the victor
of the internal battle and the board negotiator was replaced. Obviously, the
mediator in this case had to walk a fi ne line in trying to convince management
to resolve its internal confl icts so that negotiations could proceed.

The less the mediator becomes involved in trying to mediate disputes in one
of the parties’ organizations, the greater the likelihood that the mediator will be
accepted by both parties and the more open the parties will be to the mediator.
The diffi culty for mediators is that a failure to resolve this sort of internal dispute
can make it impossible to resolve the union-management dispute.

WHAT MEDIATORS DO

The ultimate objective of a mediator is to help the bargaining parties reach a
settlement. Yet there is more to mediation than the fi nal step that settles the
contract. Mediation follows a continuously narrowing course as the mediator
seeks to whittle away at the various issues in the dispute. Progress toward a settle-
ment is sometimes possible without necessarily completely resolving any of the
issues. In other words, progress has been made if the parties have succeeded in
narrowing their differences over the open issues.

Mediation is also a device designed to help the parties “come clean without
prejudice”—that is, to explore informally or off the record what would happen
if they were to move away from their bottom-line positions. Mediators commonly
undertake this exploratory effort to prevent the parties from miscalculating. Thus,

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Dispute Resolution Procedures 235

one major function of mediation is to allow informal bargaining to take place,
either directly between the parties or indirectly when both parties share confi dential
bargaining information with the mediator. 2

Mediators also try to prevent the parties from holding back information about
which concessions they are willing to make to avoid a strike in tripartite meetings.
It is by no means an easy task for a mediator to identify where the point of
resistance is for the parties, since in most instances negotiators are extremely wary
about sharing this information openly with a mediator. Instead, mediators must
guess at the parties’ positions from the statements they make and then try to get
the parties to put their best offer on the table.

What mediators do is infl uenced by whether the parties use traditional or
interest-based strategies in negotiations. When negotiators use interest-based
techniques, they expect mediators to be skilled facilitators of this type of process.
Mediators must be good at generating options through brainstorming and at
knowing when to suggest that negotiators form subcommittee or use some other
device for gathering additional information. They must also be able to offer
suggestions that are more than simple compromises of existing positions—mediators
must help invent new options that satisfy the interests of both parties. Most of
all, mediators need to watch for statements or actions by one party or the other
that might indicate that the process is reverting to traditional positional bargaining
and coach the parties about how to avoid this tendency. Finally, mediators must
also be skilled teachers of these new approaches to negotiations and must have a
keen sense of when to recommend that parties try interest-based techniques. This
must be done well before the start of a negotiations process since, as we indicated
in Chapter 8 , most negotiators need to be trained in these techniques before they
can use them successfully in actual bargaining.

The Traits of Successful Mediators

What are the traits of a good mediator? Perhaps the most critical requirement is
that the mediator be viewed as trustworthy by the parties. Because this type of
intervention is voluntary, no mediator can function well without the trust of the
parties.

Trustworthiness is also important because the mediator must obtain confi dential
bargaining information from the parties. If this information is used indiscriminately,
it could destroy a party ’ s bargaining strategy. Although trust can be achieved by
reputation, most experienced negotiators will be hesitant to divulge confi dential
bargaining information merely because the mediator has a good reputation. Thus,
the early stages of most mediation efforts (when the mediator is not personally
known to the parties) is often taken up with the mediator ’ s attempts to establish
his or her trustworthiness

Trust can be lost as the process unfolds. When this occurs, a mediator may
voluntarily withdraw from the case or the parties may seek other way of resolving
the dispute.

The litany of desirable mediator traits often reads like a modifi ed Boy or Girl
Scout oath: A good mediator is trustworthy, helpful, friendly, intelligent, funny,

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236 Part III. The Functional Level of Labor Relations

and knowledgeable about the substantive issues in question. Evidence suggests
that nothing substitutes for experience as a quality that helps a mediator gain the
trust of negotiators and in other ways promotes successful mediation. Mediation
is an art that one must learn by trial and error through on-the-job training.

THE DYNAMICS OF MEDIATION IN
TRADITIONAL BARGAINING

Mediation and the strategies of a mediator in a traditional bargaining process
often proceed through a cycle of different stages. 3

The Initial Stage: Gaining Trust

During the initial stages of mediation, the mediator is primarily concerned with
gaining the trust of the parties and identifying the issues in the dispute, the
emotional climate between the parties, and the distribution of power on each
negotiating team. During the initial stages of mediation, the role of the mediator
is to ask questions and listen. Normally the mediator will shuttle between the
two negotiating teams to explore issues. Separate sessions with the mediator also
give the parties an outlet for their pent-up emotions and frustrations.

In these stages the parties will often lash out at each other, exaggerate their
differences, and try to convince the mediator of their own rationality and the
unreasonableness of their opponent. It is in these early sessions that bonds of trust
and credibility can be established between the mediator and the parties.

In short, in the early stage of mediation the parties are testing the mediator.
Some of the same grandstanding that occurs in the early stages of the negotiating
cycle is repeated at this point in mediation for the benefi t of the newest entrant
into the process.

The biggest challenges for the mediator at this stage are (1) to accurately
diagnose the nature of the dispute and the obstacles to a settlement; and (2) to
get something started that will produce movement toward a fi nal resolution. The
mediator often hears from one party that “we made the last move, so the next
move is up to them,” only to proceed to the other side and hear the same thing.
The mediator cannot let either party ’ s hesitance to move fi rst halt the process
before it is given a chance. Neither party, in all likelihood, wants this to happen,
or the mediator would not have been called in the fi rst place.

The Middle Stage: Probing for Potential Compromises

Once the mediator overcomes this stalemate, the next step is to begin an exchange
of proposals and test for potential areas of compromise. At this point, it is crucial
that the mediator ’ s diagnosis of the underlying sources of confl ict is accurate.
The mediator is now beginning to intervene more actively by trying to establish
a framework for moving toward a settlement. If the mediator has misjudged the
underlying diffi culties and tries to push the parties toward a settlement prematurely
or in a way that does not overcome some of the major obstacles, his or her
credibility can be lost.

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Dispute Resolution Procedures 237

During this second stage of the mediation process, the mediator continues to
ask questions to identify the priorities and bottom-line positions of the two parties.
The mediator actively probes for possible acceptable solutions to the outstanding
issues. Once the parties have begun to discuss specifi c proposals, the mediator
attempts to determine whether their bottom-line positions are close enough. If
they are, then the mediator presses for modifi cations that would yield an
agreement.

The mediator ’ s ability to estimate the parties’ bottom-line positions is crucial
at this stage, as is the timing. When the mediator judges the bottom-line positions
to be close enough to push toward a settlement, he or she takes a more assertive
role. The mediator can suggest compromises, push the parties to make compromises
that they earlier stated they would be unwilling to make, and, in general, try to
close the gap between the parties. Engaging in such active tactics prematurely
(that is, when the parties are still too far apart) will damage the mediator ’ s credibility
and acceptability.

When conditions are not right for settlement, the mediator must hold back
from overly aggressive tactics. When the situation is ripe, however, the mediator
must take action or risk losing the opportunity to forge a settlement. The mediator ’ s
prior experience helps guide him or her in judging timing. At this point in the
process, the art element of mediation comes to the fore.

The Final Stage: The Push to Compromise

As the pressure to reach a settlement builds and the mediator senses that the time
for the fi nal push toward resolution is at hand, the mediator becomes more
aggressive. No longer passively listening to the parties’ arguments and rationaliza-
tions, the mediator tries to get the parties to face reality and adjust their expectations.
The mediator may push compromise solutions while at the same time being
careful to avoid becoming identifi ed with a specifi c settlement point.

Overidentifi cation with a solution that one or both party rejects can limit the
continued usefulness of the mediator. Thus, any compromises the mediator proposes
must be presented as merely recommendations.

The dynamics in each of the negotiating teams often change at this point as
well. Frequently, team members will differ on the substantive issues. The mediator
will often look to the professional negotiators on each team for help in dealing
with the more militant team members. Sometimes the reverse is true: the negotiator
will look to the mediator for help in calming a militant faction on the bargaining
team.

These fi nal-hour sessions often require that someone—the mediator, the profes-
sional negotiator, or both—convince the hard-liners that the best deal is at hand
and that the fi nal compromises necessary to reach a settlement should now be
made. Again, the parties’ confi dence in the mediator is critical to the success of
these fi nal dynamics.

Sometimes the mediator is called on in these fi nal stages to make what are
called mediator proposals. Mediator proposals are riskier and more formal ventures
than the many other suggestions a mediator makes during the course of an

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238 Part III. The Functional Level of Labor Relations

intervention. A mediator proposal is normally made only when both parties are
close to a settlement and the mediator believes that by making the proposal the
parties will come to agreement.

In some cases, the mediator may make a proposal that the parties have already
tacitly agreed to but for political or other reasons prefer not to offer themselves.
Some mediators believe that a proposal should never be made unless the mediator
is sure it will be acceptable to both parties.

The preceding description of the dynamics of mediation points out that mediators
must be aggressive in pushing the parties toward a settlement—when the climate,
the timing, and the pressures on the parties are right. The parties often prefer
aggressive mediators, and the aggressiveness of a mediator has been shown to be
related to the effectiveness of the mediation process. 4

Mediation in Interest-Based Bargaining

We have already noted that the role of the mediator in interest-based processes
takes on more of the role of an active facilitator, teacher, and coach than is the
case in a traditional bargaining process. The cycle of negotiations is likely to be
different as well, with less focus on the contract or the strike deadline as the
defi ning moment. Since it is necessary to train negotiators in this method, the
mediation process may begin well before the negotiations process starts. The
FMCS offers training in interest-based bargaining to parties as part of what it
refers to as “preventive mediation.”

In Box 9.1 , George Buckingham, one of the most experienced and successful
interest-based mediators in the FMCS, describes how and when he uses interest-
based techniques to facilitate the bargaining process.

BOX 9.1
How Interest-Based Mediation Works

Well before negotiations are scheduled to begin, I provide parties who
express an interest or who we believe might be good candidates for an
interest-based approach with a one-and-a-half-hour informational briefi ng.
We discuss factors to think about in deciding whether or not to use this
approach. In the process of this discussion, I probe to see if there are any
factors that would lead me to recommend against using the process, such
as no evidence of cooperation in the relationship or a history of contract
rejections by one side or the other.

If the parties agree to take the next step, we then hold a two-day required
training session for all members of the union and employer negotiating
committees. At the end of the training, we make a trilateral (union, employer,
and mediator) decision on whether or not to go forward with the process.

The next step is to hold a prenegotiations meeting to agree on two sets
of ground rules. The fi rst set are transitional ground rules that outline what

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Dispute Resolution Procedures 239

will happen if at some stage the interest-based process breaks down and the
parties need to return to a more traditional process. This serves as a “road
map” back to the traditional process and provides a safety valve for the
parties. The second set are process ground rules. Here we deal with rules
such as how we defi ne consensus decision making, how we will deal with
press releases, how and when information will be communicated to con-
stituents, and so on.

Then we are ready for an exchange of issues using an interest-based
format. This exchange takes the place of a traditional exchange of proposals,
or the laundry list of demands. Each issue is framed as a question that cannot
be answered in a yes or no fashion. For example, an issue might be framed
as: “How can we accommodate employee needs to have greater time off
for funerals and handle staffi ng needs effectively?” We also agree at this
stage on the order we will take up issues and on any information that needs
to be obtained in order to discuss them. Bargaining dates are set at this
time, after giving adequate consideration to the time needed to collect the
necessary data.

For the actual bargaining, we commit to participating in the fi rst two
sessions or until the fi rst issue is settled, to returning when the economic
issues are taken up, and to being present as the process is coming to an end.

What do I do in these sessions? My basic role is to facilitate the process,
to keep the process on a problem-solving track, and to make sure they lay
out all the issues and problems and don ’ t stray into a general discussion
mode that will take them back to traditional positional bargaining. If, in
the rare instance, I feel the need to make a substantive suggestion, I indicate
that I am stepping out of my facilitating role to do so.

One of the hardest tasks the parties have is to agree on standards for
evaluating options. I suggest three simple standards, but the parties are
encouraged to develop their own as well. The three I use are: (1) Can we
do it? (2) Does it convey benefi ts (related to their interests)? (3) Is it acceptable
to the constituents?

The parties take up noneconomic issues fi rst. Then, in perhaps about 35
to 40 percent of the cases, I fi nd us using more traditional approaches to
resolve the deep-gut economic issues. But even here, when the interest-based
process has been successful on the earlier issues, we generally fi nd more of
a problem-solving focus and willingness to listen to each other that is often
absent in the fi nal stages of a traditional negotiation. The parties are more
apt to stay in an interest-based bargaining frame of mind.

Two big differences in my experience with this approach are that the
contract deadline and the strike threat are not major factors. In only three
out of 60 cases I ’ ve mediated in this way has a strike notice been issued,
and then it was done to satisfy constituency needs rather than as a serious
threat across the table. The overwhelming majority of cases have settled
prior to the contract expiration date, while some have gone beyond the

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240 Part III. The Functional Level of Labor Relations

When is this approach likely to be most successful? FMCS commissioner
Buckingham suggests that it is most likely to succeed in one of two situations:
(1) when the parties already have other elements of a cooperative relationship in
place and want to take the next step by carrying problem solving into the bargaining
process; or (2) when there will be serious adverse consequences if the parties
don ’ t solve a set of problems they face. In either case, the key is to have some
strong motivating factor that helps keep the process on course when the going
gets tough.

THE POTENTIAL TENSION BETWEEN WHAT IS
RIGHT AND WHAT WILL BRING A SETTLEMENT

In theory, a mediator is not supposed to be concerned with the substance of the
outcome. Instead, the traditional view is that mediation works because the job
of the mediator is simply to bring the parties to agreement. Yet there are times
when mediators have trouble accepting this principle. Consider, for example, the
mediator in the case described in Box 9.2 . Here, the mediator could not let his
personal views of management ’ s negotiating style get in the way of a settlement.

All mediators must struggle from time to time with the moral question of how
far to compromise their personal values or perceptions of equity in attempting
to fashion a contract settlement. The traditional answer to this question has been
that the mediator ’ s primary responsibility is to help the parties reach an agreement
and to keep his or her values and preferences, or the values and preferences of
the larger society, out of the process. According to this view, the mediator should
not attempt to create a settlement that would be most consistent with the public
interest. The traditional view is that the way the mediator can best represent the
public interest is by helping prevent or ending an impasse. 5

The moral dilemma is even more diffi cult to resolve if questions of individual
rights are part of the settlement package one of the parties prefers. Mediators will
continue to struggle with this moral dilemma and decide how high a priority
they are willing to put on the singular goal of achieving a settlement. 6

expiration with no serious repercussions. In only one occasion did I hold
a mediation session beyond 8 p.m.

I like to use two criteria to judge whether the interest-based approach
has been successful. The fi rst is whether the parties use it again the next
time. About 80 percent do so. The second is whether the number of relation-
ship or noneconomic issues brought to negotiations decrease the second
time around. If interest-based bargaining is able to really solve problems,
the number of “relationship” or noneconomic” issues should go down.

Source : Interview with FMCS commissioner George Buckingham, July 1997.

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Dispute Resolution Procedures 241

BOX 9.2
Report of a Frustrated Mediator

This dispute was resolved after one long night of mediation. The parties
had been negotiating for over a year. A fact-fi nding report had been issued,
and considerable progress had been made on economic issues. The major
remaining unresolved issue was whether these employees [janitors, bus
drivers, and cafeteria workers in a school district] would have binding
grievance arbitration in their contract. . . . It was clear that the [school] board
was adamantly opposed to binding arbitration. . . . The [mediation] process
was made more frustrating by the condescending attitude that the district
administrators took toward the members of the bargaining unit. Unfortunately,
my role at this fi nal step of the process was simply to get the union negotiators
to face the reality that there was no way they could get an agreement
containing binding arbitration. . . .

If I had let my own feelings toward the board negotiating team surface
during mediation, the process would have not only broken down but it
would have been even harder for the parties to put this long and frustrating
case behind them. Consequently, one walks away from this type of dispute
with a lot of pent-up anger and frustration.

Some mediators, especially those who favor the use of interest-based techniques,
reject the traditional view. Instead, they argue that an effective mediator will help
the parties articulate their basic interests and then help steer the process to results
that best serve their interests. In this view, the substantive terms of the settlement
are as important to the success of mediation as a settlement is.

FACT FINDING

When fact fi nding takes place, a third party (a fact fi nder) is called in to study
the issues that are in dispute between labor and management negotiators who
have reached an impasse in their negotiations. After gathering facts, the fact fi nder
then makes a report or an announcement that may be made public. The fact
fi nder ’ s report often includes recommendations about what the fact fi nder believes
is an appropriate settlement of the impasse. Fact-fi nding is premised on the hope
that the recommendations and a neutral report will bring suffi cient pressure to
bear on the parties to induce them to accept the recommendations of the fact
fi nder or to use them as the basis for a negotiated settlement.

Fact fi nding is rarely used in the private sector (like mediation, the NLRA
does not require it), but it is commonly used in the public sector. 7 Fact fi nding
also has been frequently used in negotiations that are covered under the Railway
Labor Act (the Railroad Mediation Board can call for it). The national emergency

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242 Part III. The Functional Level of Labor Relations

dispute procedures of the NLRA also authorize fact fi nding as part of the process
by which the president can call into action an emergency impasse resolution board.

A Case of Fact Finding

The following describes the use of fact fi nding in a dispute between a teachers’
union and a school district.

A neutral [person] fi rst attempted to mediate the dispute but was discouraged by the
professional negotiators for each side. They explained that they knew what their
differences were and that if it was up to them alone they could settle the dispute
without the help of a neutral party. The problems were that the school board was
unwilling to accept what both negotiators agreed was a reasonable salary settlement
and one faction in the union was unwilling to compromise on a contract-language
issue. The mediator therefore agreed to proceed directly to fact fi nding. In the course
of the hearing, the two negotiators presented their cases in ways that made it clear to
the fact fi nder what they would agree to and thus what they wanted the fact fi nder
to recommend. The fact fi nder ’ s recommendations closely followed these tacit admissions.
Both negotiators used the “neutral ’ s recommendations” in selling the tacit agreement
to their constituents.

INTEREST ARBITRATION

Interest arbitration involves the use of a third party (an arbitrator) who is
empowered to impose a settlement in a contract dispute. In interest arbitration,
the arbitrator sets the terms of the contract. Thus, interest arbitration is different
from grievance (or rights) arbitration, in which an arbitrator is used to settle a
dispute during the term or about the implementation of an existing contract (see
Chapter 12 ).

Interest arbitration is not used very often in the private sector in the United
States. The few exceptions in the private sector have been major league baseball
(see Box 9.3 ), national emergency disputes under the Taft-Hartley or Railway
Labor Acts or cases where the parties voluntarily submitted their disputes to
arbitration. Interest arbitration has been used more frequently to settle impasses
in public sector bargaining.

The NLRA gives labor and management the right to strike over impasses and
this leads to limited use of interest arbitration. Many proponents of collective
bargaining in the private sector have long argued that the right to strike (and
thus the absence of interest arbitration) was essential for the preservation of free
collective bargaining .

As one scholar put it over 35 years ago:

In the case against compulsory arbitration there are distinguished prosecutors galore,
and the catalog of inevitable disasters runs the gamut from simple bad decisions to
dislocation of the economic foundations of free enterprise. The division is not liberal/
conservative, nor labor/management—there is no division. All the principal authorities
are in agreement. 8

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Dispute Resolution Procedures 243

BOX 9.3
Major League Baseball Salary Arbitration Procedure

Eligibility

Any Player or Club may submit to salary arbitration with the consent of
the other party. However, a player [with] between three and six years of
Major League service may submit to salary arbitration without the consent
of the other party.

Selection of Arbitrator

The Players Association and the Player Relations Committee shall annually
select the arbitrators.

Procedure

Within three days of salary arbitration submission, the Players Association
and the Players Relations Committee exchange salary fi gures. The Player
has the option of withdrawing within 7 days of the receipt of the Club ’ s
salary fi gure. And in the event the Club or Player reach a salary agreement
before the arbitrator reaches his decision, the matter shall be withdrawn
from arbitration.

Timetable and Decision

The Player and the Club submit the salary fi gures to the arbitrator at the
hearing. The arbitration hearing is held as soon as possible after submission and
scheduled between February 1 and February 20. The arbitrator may render his
decision on the day of the hearing, and shall make every effort to decide no
later than 24 hours following the close of the hearing. Finally, the arbitrator
is limited to awarding only one or the other of the two fi gures submitted.

Conduct of Hearings

Each party is limited to one hour for initial presentation and a half-hour
for rebuttal and submission. There are no continuances or adjournments.

Criteria

The criteria used in determining the Player ’ s worth include the quality of
the Player ’ s contribution to his Club during the past season (including his
overall performance, special qualities of leadership and public appeal), the
length and consistency of his career contribution, the record of the Player ’ s
past compensation, comparative baseball salaries, the existence of any physical
or mental defects on the part of the Player, and the recent performance
record of the Club. In addition, any evidence relevant to these criteria may
be submitted as evidence.

Source : Basic Agreement between the American and National League of Professional
Baseball Clubs and the Major League Baseball Players Association, January 1, 1986.

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244 Part III. The Functional Level of Labor Relations

In this view, interest arbitration should be limited to cases of dire national
emergency or to disputes in which the parties themselves decide it is in their
interest to submit their dispute to a procedural substitute for a strike.

The Use of Interest Arbitration in the Public Sector

As the demand for public sector bargaining became more vocal in the late 1960s
and early 1970s policy makers had to make a diffi cult choice: unions were calling
for collective bargaining rights, while elected offi cials were reluctant to grant
public employees the right to strike. Because both unions and management had
little experience with interest arbitration and doubted its effectiveness, most states
initially turned to fact fi nding as a compromise between the right to strike and
interest arbitration. By the late 1970s, about half the states that had endorsed
collective bargaining for public employees turned to some form of arbitration for
resolving disputes between city governments and their police and fi refi ghters.

Since interest arbitration has been used primarily in the public sector, the public
sector record reveals how well it works. This record is discussed below along
with occasional references to experience with arbitration in the private sector.

Types of Interest Arbitration

There are many different forms of interest arbitration. One key difference is
whether the procedure is voluntary or compulsory. Voluntary arbitration is a
dispute resolution system in which the parties agree to submit their differences
to arbitration. Compulsory arbitration is a system in which law requires the
parties to submit their unresolved differences to arbitration if they cannot reach
a negotiated settlement on their own.

Another important distinction is the difference between conventional arbitration
and fi nal-offer arbitration. Conventional arbitration (which can be either
voluntary or compulsory) is a dispute resolution process in which the arbitrator
is free to fashion any award he or she deems appropriate. Although the conventional
arbitration award may be a compromise between the proposals of the employer
and those of the union, the arbitrator is also free to accept either party ’ s proposals
or, for that matter, to go below the employer ’ s offer or above the union ’ s offer
(although that rarely happens).

Terminology Used in Final-Offer Interest Arbitration

In fi nal-offer arbitration , the arbitrator must choose either the employer ’ s
proposal or the union ’ s; the arbitrator may not fashion his or her own compromise.
As a further distinction, fi nal-offer arbitration may be handled on a total package
basis—that is, the arbitrator must choose the complete offer of the employer or
the complete offer of the union on all issues. Final-offer arbitration can also be
handled on an issue-by-issue basis. The arbitrator, for example, might choose the
employer ’ s wage offer, the union ’ s offer on health insurance, and the employer ’ s
offer on vacation days. 9

There is yet another complication. The arbitrator can be an individual or a
panel of individuals. Panels can either be composed of all neutrals or they can be

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Dispute Resolution Procedures 245

tripartite. Tripartite panels are composed of one or more representatives of the
employer, one or more representatives of the union, and one or more neutrals.

Debates over the Performance and Effects of
Interest Arbitration

What does the use of interest arbitration do to the parties’ ability to negotiate
on their own? What kinds of settlements do arbitrators impose and how do the
arbitrators’ settlements compare with the settlements labor and management reach
on their own? Does interest arbitration prevent strikes? These questions are part
of the controversy that surrounds the use of interest arbitration. The evidence
on these issues is only summarized here because public sector experience with
interest arbitration is examined in detail in Chapter 13 .

Interest arbitration in the public sector has had a better record of preventing
strikes than fact fi nding or bargaining without any impasse procedure has. Although
no dispute resolution procedure, including interest arbitration, can prevent all
strikes, interest arbitration appears to reduce the probability of strikes more than
fact fi nding does.

To date there is little evidence that interest arbitration has been overused where
it is available. The vast majority of disputes tend to be settled without resort to
interest arbitration. Even in states where that have used interest arbitration for
thirty years, the rate of cases going to interest arbitration rarely exceeds 25 percent. 10

The evidence of the effect of arbitration on contract terms is that arbitrators
tend to impose settlements that are not very different from the settlements that
parties who bargain reach where arbitration is not available as an impasse resolution
procedure. The use of interest arbitration across a state to settle public sector
disputes does appear to narrow the range of settlements by eliminating extremely
high and extremely low settlements. The effect of interest arbitration on contract
terms such as wage levels appears to be modest. Where an effect has been measured,
arbitration tends to lead to wage levels that are 5–10 percent higher than wages
in jurisdictions where arbitration is not available.

Voluntary Interest Arbitration in the Private Sector

Voluntary interest arbitration schemes have been used in the private sector in
electrical construction, large construction projects (such as the Cape Canaveral
space center and the Alaska pipeline project), and newspapers.

The only signifi cant private sector use of interest arbitration now occurs in
major league baseball. As noted earlier, major league players and baseball club
owners have negotiated a master collective bargaining agreement for thirty years.
That master contract stipulates that the salaries of individual players are determined
through negotiations between each player and his respective club owner.

As Box 9.3 shows, the master agreement requires that a player ’ s salary be set
by an arbitrator if an impasse is reached between the player and the club owner
in salary negotiations. The arbitrator is restricted to choosing the fi nal offer of the
player or the fi nal offer of the owner. The terms and conditions of employment
for baseball players other than salary are not subject to interest arbitration. Club

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246 Part III. The Functional Level of Labor Relations

owners became very dissatisfi ed with the use of arbitration in the 1990s and tried
to eliminate it in negotiations and during the strike of 1994, but they were not
successful on this point. Instead, the parties modifi ed the procedure by agreeing to
phase in the use of three neutral arbitrators per case rather than a single arbitrator.

Voluntary interest arbitration has also been used on an ad hoc basis as a confl ict
resolution device of last resort. From time to time diffi cult strikes, such as disputes
between the United States Postal Service and postal worker unions, have been
resolved with an agreement to arbitrate (see Chapter 8 ).

BOX 9.4
Interest Arbitration in the California Agriculture Industry

As one of the most essential industries in California, the agriculture industry
had been under intense pressure to fi nd a solution to a subpar collective
bargaining system. Because of this, in 2002, the California legislature passed
a law that created mandatory interest arbitration for cases where employers
and unions in the agricultural industry were unable to come to a consensus
while bargaining for an initial collective bargaining agreement. The law
was quickly subject to legal challenge, although the courts ultimately denied
the challenge.

Hess Collection Winery, an agricultural employer in the Napa Valley,
fi led an appeal claiming that the legislature had no authority to pass a law
mandating interest arbitration. In fact, it went as far as to say that mandating
interest arbitration only in the agricultural sector of the state ’ s economy
seriously violated equal protection guarantees in the state constitution. As
a result of this appeal, the law was brought to the California Court of
Appeals.

On July 5, 2006, because of the need to effi ciently reach an agreement
in collective bargaining contracts in the industry and because the statute
only applies to the initial bargaining offer, the California Court of Appeals
upheld the previous decision and deemed mandatory interest arbitration
lawful because the court believed it to be constitutionally accurate. Justice
Richard Sims of the appeals court stated that the law “bears a rational and
conceivable relationship to a legitimate state purpose,” and as such, it passes
the constitutionality test and should therefore be allowed. Sims went on to
say that “agricultural employees are in an especially unequal bargaining
position with respect to their employers and that their health, safety, and
welfare require special protection.” Therefore, Judge Sims concluded that
extra security must be awarded to them and the law mandating interest
arbitration would help “protect the industry by promoting stability in
agricultural employment.”

Source : “California Court Upholds Constitutionality of State ’ s Mandatory Interest
Arbitration Law,” Daily Labor Report , July 7, 2006, AA-1.

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Dispute Resolution Procedures 247

In voluntary interest arbitration schemes, the parties normally limit the
discretion of the arbitrator. In baseball, the arbitrator rules only on player salary
(although other parts of the master baseball contract are subject to grievance
arbitration).

The key to the negotiation of voluntary interest arbitration plans is that both
parties must perceive benefi ts in agreeing to set aside the right to strike. Labor
and management generally voluntarily accept interest arbitration only when strike
costs are high.

The Structure and Process of Interest Arbitration

A wide array of choices is available for designing the structure of interest arbitration
systems. These structural options determine the nature of the decision-making
process in interest arbitration in important ways. In fact, the structure the parties
choose is a refl ection of their fundamental views on the appropriate functions of
an interest arbitration system. This section describes two types of decision-making
processes in interest arbitration and suggests how these are infl uenced by the
structural design of the system.

A Combined Mediation-Arbitration Approach

The two decision-making processes available are (1) a mediation-arbitration process;
and (2) a judicial decision-making process. Advocates of the mediation-arbitration
process view interest arbitration as an extension of the collective bargaining process
in which the neutral arbitrator seeks to shape an award that is acceptable to the
parties. Mediation-arbitration places a premium on using the interest arbitration
proceeding as a forum for continued negotiations or mediation, albeit with the
arbitrator holding the ultimate authority to decide on the contract.

Those who advocate the mediation-arbitration approach claim that no system
of interest arbitration can hope to survive for long unless it produces outcomes
that are acceptable to the parties.

A Judicial Approach

The countervailing view of interest arbitration holds that the arbitrator should
focus on the “facts” of the case. In this judicial approach, the arbitrator adheres
strictly to predetermined criteria and is not infl uenced by the bargaining power
or preferences of the parties.

NONTRADITIONAL DISPUTE RESOLUTION

The need for skilled third parties in confl ict resolution and problem solving is
not limited to the formal negotiations process. Indeed, in recent years a variety
of new dispute resolution roles have emerged in settings where labor and
management have been attempting to achieve fundamental changes in their bargain-
ing relationships.

For example, neutrals, for example, are increasingly being called on to chair
or facilitate labor-management committees, to serve as consultants to labor and

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248 Part III. The Functional Level of Labor Relations

management in quality-of-working-life programs, to facilitate the joint planning
or joint design of a new plant or work system, or to work on other experimental
projects designed to solve long-standing problems in a bargaining relationship.
All of these roles require the skills of a labor mediator. In addition, these roles
differ from traditional mediation or arbitration roles in several important ways.

First, most require that problems be addressed on an ongoing basis. 11 Often
this requires that the parties fi rst undergo a team-building effort to change their
attitudes and to increase the level of trust they have in each other.

Second, these third parties must have specialized knowledge of the substantive
problems the parties face. The third party is expected to be a consultant who
brings technical expertise to discussions of the problem and is sensitive to the
needs of both labor and management.

Third, the time horizon of the process tends to be very long. Whereas the
traditional mediator is mainly concerned with achieving a settlement of the
immediate impasse, third parties involved in these new roles must focus on the
effects of any decision on the quality of the longer-term relationship.

The behavior of the parties to these new processes is also signifi cantly different
from traditional labor-management behavior. For example, to be successful,
long-term problem solving requires the parties to share information more readily
than they do in traditional collective bargaining.

In response to this growing demand, the FMCS has increased its emphasis on
what it calls “preventive mediation”; that is, programs designed to train the parties
in state-of-the-art labor-management practices or to facilitate more directly efforts
to improve relations in particular industries or particular companies and unions.

At the same time, however, the parties may still need to turn to the traditional
mediation and arbitration processes. In short, both effective confl ict resolution
and longer-term problem solving are critical to the success of contemporary
collective bargaining relationships.

KEY ORGANIZATIONS AND AGENCIES INVOLVED IN
IMPASSE RESOLUTION

The key organizations and agencies that are involved in the resolution of impasses
are summarized below.

American Arbitration Association (AAA): A private nonprofi t organization that
facilitates the process of arbitration. The AAA maintains lists of arbitrators and makes
facilities available that can be used for arbitration hearings. The AAA offers seminars
to train young arbitrators and to keep experienced arbitrators informed about emerging
developments. Much of the arbitration work AAA perform arbitrators is grievance
arbitration, but AAA arbitrators also become involved in interest arbitration.

Federal Mediation and Conciliation Service (FMCS): An agency of the federal
government mandated by the National Labor Relations Act. The NLRA requires
labor and management to notify the FMCS at least thirty days before a strike. The
FMCS includes a staff of 250 mediators who offer their services to labor and management
involved in impasses.

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Dispute Resolution Procedures 249

National Academy of Arbitrators (NAA): A professional society of experienced
arbitrators. Most of the cases NAA arbitrators hear are grievance arbitrations, although
NAA members are also involved in interest arbitration.

National Mediation Board (NMB): An administrative agency created by the
Railway Labor Act. One of the functions of the board is to mediate disputes between
labor and management that arise in the transportation industries covered by the Railway
Labor Act.

State mediation and conciliation agencies: A variety of agencies exist at the
state level to facilitate the mediation of labor impasses. In states that grant public
employees bargaining rights, a separate agency concerned with public sector bargaining
impasses frequently exists. In New York, for example, the Public Employment Relations
Board (PERB) provides mediation assistance among its many functions.

Summary

This chapter described the three major impasse resolution procedures—mediation,
fact fi nding, and interest arbitration. The use of these procedures has varied
extensively. Mediation has been commonly used in both the private and public
sectors. Fact fi nding and interest arbitration, in contrast, have been used in the
public sector with only a few exceptions.

The procedures also vary in the degree to which they constrain the actions of
labor and management. At one extreme is mediation, where the parties can, and
sometimes do, dismiss the mediator or ignore the advice given. At the other
extreme is binding interest arbitration, where the parties must follow the decision
of the arbitrator.

The purpose of any impasse resolution procedure is to help the parties achieve
a contract settlement that both labor and management fi nd acceptable and that
helps sustain a successful labor-management relationship. Good mediators, fact
fi nders, and arbitrators understand the issues that divide labor and management
and have the ability to offer creative solutions to these problems.

Discussion Questions

1. Describe the objectives of mediation.
2. What are the three stages that typically occur in a mediation?
3. Discuss some of the criticisms of interest arbitration.
4. Contrast mediation-arbitration and judicial arbitration.

Related Web Sites

Federal Mediation and Conciliation Service (FMCS):
http://www.fmcs.gov

National Mediation Board (NMB):
http://www.usa.gov/federal-agencies/national-mediation-board

Alternative Dispute Resolution Forum:
https://www.adrforum.com/

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http://www.fmcs.gov

http://www.usa.gov/federal-agencies/national-mediation-board

https://www.adrforum.com/

250 Part III. The Functional Level of Labor Relations

Suggested Supplemental Readings

Cullen , Donald E. National Emergency Disputes . Ithaca, N.Y. : New York State School of
Industrial and Labor Relations, Cornell University , 1968 .

Goldberg , Stephen B. , Eric D. Green , and Frank E. A. Sander . Dispute Resolution . Boston :
Little, Brown , 1985 .

Kolb , Deborah . The Mediators . Cambridge, Mass. : MIT Press , 1982 .
Pruitt , Dean G. , and Jeffrey Z. Rubin . Social Confl ict: Escalation, Stalemate, and Settlement . New

York : Random House , 1986 .
Rubin , Jeffrey Z. Dynamics of Third-Party Intervention . New York : Praeger , 1981 .

Notes

1. The parties are constrained to adhere to the decision in a binding arbitration procedure. As
discussed below, occasionally parties will choose nonbinding arbitration.

2. Carl M. Steven, Strategy and Collective Bargaining Negotiation (New York: McGraw-Hill, 1963),
142–146.

3. For analysis of mediation strategies, see Kenneth Kressel, Mediation: An Exploratory Survey
(Albany, N.Y.: Association of Labor Mediation Agencies, 1972); and Deborah Kolb, The Mediators
(Cambridge, Mass.: MIT Press, 1982).

4. One study shows a positive effect for mediator aggressiveness and noted that the more intense
or diffi cult the dispute, the more aggressive the mediator tended to be. See Paul F. Gerhart and
John E. Drotning, “Dispute Settlement and the Intensity of the Mediator,” Industrial Relations 19,
no. 3 (1980): 352–59.

5. Eva Robbins, A Guide for Labor Mediators (Honolulu: Industrial Relations Center, University
of Hawaii, 1976).

6. For a good discussion of this dilemma, see William E. Simkin, Mediation and the Dynamics of
Collective Bargaining (Washington, D.C.: Bureau of National Affairs, 1971), 34–40.

7. Fact fi nding is the most common form of dispute resolution for occupations other than police
and fi refi ghters in the public sector (for these two occupations, interest arbitration is most common).

8. Orme Phelps, “Compulsory Arbitration: Some Perspectives,” Industrial and Labor Relations
Review 18 (October 1964): 8.

9. Some fi nal-offer procedures allow the arbitrator to choose the recommendation of a fact fi nder
involved in an earlier step of the process.

10. Mark Thompson and James Cairnie, “Compulsory Arbitration: The Case of British Columbia
Teachers,” Industrial and Labor Relations Review 27 (October 1973): 3–17.

11. Stephen B. Goldberg, Jeanne M. Brett, and William Ury, “A Study in Metamediation,”
unpublished manuscript, School of Law, Northwestern University, Evanston, Illinois, 1987.

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157

7

UNION ORGANIZING

Chapters 7, 8 , 9 , and 10 examine the middle (functional) level of labor relations
activity. The focus in this chapter is the processes that create, or organizes labor
into, new unions and the bargaining structures that determine which employees
are covered by a collective bargaining contract.

In some ways, the representation election is the most important step in collective
bargaining: if unorganized workers vote not to be represented by a union, collective
bargaining cannot proceed. In contrast, positive expression of worker interest in
representation opens the way for subsequent bargaining.

Various factors in the external environment shape the power and preferences
of the parties in the organizing process. The law, for example, plays a prominent
role in union-organizing drives and representation elections. Environmental factors
also exert an important infl uence on the determination of the formal bargaining
structures a union and management will use in the bargaining process. Strike
leverage and the economic environment, for example, are prominent not only
because of their effects on organizing success but also because they shape the
parties’ preferences for particular bargaining structures.

Negotiations cannot take place until a bargaining representative has been duly
certifi ed as the exclusive representative of the employees. Normally, this requires
that a union win a representation election (although an employer may voluntarily
recognize a union if the union can demonstrate that it represents a majority of
the employees involved). 1 The events and regulations that surround representation
elections are described below.

The Organizing Process

The key steps in the organizing and representation election process are described
in Box 7.1 . Note that before the NLRB will schedule an election, at least 30
percent of the election unit must have signed an authorization card indicating
they would like an election to be held. In actual practice, most unions will not
request an election unless they have already signed up a signifi cant majority of
potential voters.

Union Organizing and Bargaining
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AN: 1589152 ; Harry C. Katz, Thomas A. Kochan, Alexander J. S. Colvin.; An Introduction to U.S. Collective Bargaining and Labor Relations
Account: s4264928.main.eds

158 Part III. The Functional Level of Labor Relations

BOX 7.1
Steps in Organizing a Union and Holding a Representation
Election

1. Interested employees seek out a union to learn their rights and gain help in
organizing, or a union seeks out a group of employees in order to explain
their rights to them and explore their interest in organizing.

2. The union builds support for organizing among the employees and solicits
their signatures on authorization cards.

3. When suffi cient cards are signed to indicate substantial employee support,
the union asks for recognition as the bargaining agent for the employees. If
at least 30 percent of the employees have signed cards, the union can petition
for an NLRB certifi cation election. If over 50 percent of the employees
have signed cards, the union can ask the employer for recognition, or, if
this is refused and serious unfair labor practices are committed by the employer,
the union can ask the NLRB for certifi cation. If the employer does not
voluntarily recognize the union, either party can petition for an NLRB
certifi cation election to determine whether the union has majority support.

4. The NLRB investigates to determine whether an election should be held.
The board considers whether it has jurisdiction, whether there is suffi cient
interest among the workers, and whether there is already a bargaining agent,
and whether an election has been held in the past twelve months. Most
important, the NLRB determines the appropriate bargaining unit.

5. If the NLRB fi nds that the conditions for an election have been met, it
orders that one be held. Procedures of varying formality are used, depending
on the level of disagreement between the parties. Expedited procedures can
be used if the union has engaged in picketing to organize workers or to
obtain union recognition from the employer.

6. Once an election date is set, campaigning on both sides intensifi es. Restrictions
apply to both union and management behavior during this period. This is
because both sides need to maintain laboratory conditions; that is, an environ-
ment in which workers can make free, uncoerced choices.

7. Representatives of the NLRB conduct an election by secret ballot. The
union, management, or the NLRB can challenge an individual ’ s right to
vote. For example, a claim might be made that an employee does not work
within the designated bargaining unit or that he or she is a supervisor and
thus is excluded from coverage. If there are more than two choices on the
ballot and no option receives a majority vote, a runoff election will be held
between the two choices that received the most votes.

8. If the union wins the election, then, after any objections or appeals, the
NLRB certifi es the union as the exclusive bargaining agent for the employees.
The employer has the obligation to begin negotiating a fi rst contract. If the
employer wins the election, there can be no further election for twelve
months.

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Union Organizing and Bargaining Structures 159

Why Workers Might Want Union Representation

To understand how the organizing process works, it is useful to fi rst ask why an
individual might seek union representation. Evidence shows that for workers to
express a preference for unionizing, they must (1) be deeply dissatisfi ed with their
current job and employment conditions; (2) believe that unionization can be
helpful in improving those job conditions; and (3) be willing to overcome the
generally negative stereotype of unions in the U.S. population.

Workers might turn to unions because of their concerns with employment
conditions or because they are unsatisfi ed with the process by which decisions
are made at their workplace. Thus, workers might, for example, vote in favor of
the union in the hope that subsequent contractual negotiations will improve
wages. Or a worker might be angered by a recent managerial decision, such as
a layoff or a disappointing performance appraisal . In these cases, the worker
might turn to the union with the hope that the union will either improve future
management decisions or, at a minimum, give employees a greater voice in future
decision making.

The evidence Richard Freeman and Joel Rogers collected on why employees
vote in favor of union representation is provided in Box 7.2 . Their survey evidence
shows that a very signifi cant factor in employees’ decision to unionize is their
confi dence and trust in management and employees’ feelings about whether they
are being treated fairly by management.

Union Campaign Practices

Unions commonly rely on organizers to rally employee support during election
campaigns. These organizers often include paid full-time staff from existing unions
who travel from campaign to campaign. The union also often enlists some of the
work force to assist as organizers. Organizers and union supporters use a variety
of mechanisms to promote a pro-union message. They often hold group meetings

BOX 7.2
Employee Motives for Voting to Unionize

Nonunion employees are more likely to say they would vote for a union
when they also say that:

1. Relations between employees and management are bad.
2. They do not trust management.
3. They believe that management shows little concern for employees.
4. They dislike their job.
5. They are dissatisfi ed with their infl uence and with the workplace.
6. They believe management is unwilling to share power.

Source : Survey evidence reported in Richard B. Freeman and Joel Rogers, What Do
Workers Want? (Ithaca, N.Y.: Cornell University Press, 1999).

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160 Part III. The Functional Level of Labor Relations

after work hours in a local church or community meeting room. Union supporters
who have the opportunity to move around the work site often spread the message
during work hours. 2

Management ’ s Campaign Practices

Management is rarely a passive observer in the election process. Managers often
try to design personnel and other corporate policies far in advance of any repre-
sentation election to dissuade employees from favoring union representation.
These tactics can be as important to the election outcome as the tactics management
might use during an election campaign.

Common strategies managers use before the onset of organizing campaigns to
reduce the incentive to unionize include most, if not all, of the following:

1. Wages and fringe benefi ts equal to or greater than those paid to comparable
workers in the local labor market.

2. A high rate of investment per worker in such employee programs as training
and career development.

3. Extensive efforts to stabilize employment and avoid layoffs as much as
possible.

4. Advanced systems of communications and information sharing in the company.
5. Informal mechanisms for or encouragement of participation in decision

making about the way work is to be performed.
6. Development of a psychological climate that fosters and rewards loyalty and

commitment to the company.
7. Rational administration of wages and salaries, performance appraisal, and

promotion systems that reward merit but also recognize seniority.
8. A nonunion grievance procedure (usually without binding arbitration).
9. Locating new production or service facilities in southern states or rural areas

or areas that are only sparsely unionized.

Management does not always have the will or foresight to put all these policies
in place, and election campaigns can arise even when some of them are in place.
When managers face a representation election, they typically will attempt to
convince employees to vote against union representation. They will call meetings
with employees (these might be individual or group meetings) to make their case.
Under the NLRA, management is allowed to hold these meetings on company
time and in company facilities (the law allows captive-audience speeches up to
twenty-four hours before the vote). During such a meeting, a management
spokesperson (such as the company president) might remind the employees of
the direct costs of union membership (dues) or the potential losses in income to
employees during any strikes that ensue.

Under the NLRA, employers may not threaten to punish workers if they join
or vote for a union. The NLRA also forbids employers from making promises
to workers that might encourage them to reject the union. But an employer may
make a prediction about the future if the prediction is based on fact. An employer
may say that workers could be laid off if the union wins the election and successfully

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Union Organizing and Bargaining Structures 161

negotiates for a 50-cent raise, provided the employer has the evidence that a
50-cent raise would lead to layoffs.

The NLRA gives the NLRB two ways to require an employer to recognize
and bargain with a union if it fi nds that an employer has committed egregious
violations of the labor law during a representation campaign. One option is to
issue a direct order certifying the union as the bargaining agent and requiring the
employer to bargain with it, and the other is to go directly to a federal court to
obtain an injunction requiring the employer to stop its illegal actions and to
bargain with the union. In recent years, the NLRB has made greater use of the
court injunction option because it takes less time to implement. Box 7.3 describes
a recent case where the Board acted directly by issuing a bargaining order.

The Election Unit

The election unit is the group of employees that the NLRB (or the appropriate
state agency with jurisdiction over the employees involved) determines is covered
under the appropriate statute and is eligible to vote in the representation election.

BOX 7.3
A Rare Case Where the NLRB Ordered Union Recognition

Although the NLRB rarely exercises its authority to order management to
recognize a union, this does sometimes happen in the face of egregious
employer violations of the nation ’ s labor laws. A case occurred at a New
York branch of Hogan Transports Company, which provides trucking
services exclusively for the Save-A-Lot supermarket chain. The Teamsters
union began attempting to unionize the employees in June 2013. The union
alleged that the employer had committed several violations of fair labor
practices after the petition for an election, including threats of job loss,
coercive pay raises, and a biased termination.

The NLRB issued a bargaining order in this case by ruling that while
the violations did not constitute “exceptional” or “outrageous” violations
(two criteria that justify issuing a bargaining order), the employer ’ s actions
met the third criteria of signifi cantly diminishing the chance that a fair
election could take place. In the Hogan Transports case, supervisors held
multiple captive-audience meetings at which they claimed to have received
strong indications from their sole supplier, Save-A-Lot, that it might terminate
its contract if the shop unionized. This claim was uncorroborated in the
investigation. Also, Hogan Transports put a pay raise into effect when it
learned of the union campaign, with no evidence that this would have
happened if no election was to be held. Finally, a vocally pro-union employee
was terminated under suspicious conditions.

Source : Hogan Transports, Inc., 363 NLRB No. 196 (May 19, 2016)

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162 Part III. The Functional Level of Labor Relations

Two main decisions must be made to defi ne the appropriate election unit.
First, the range of employees to be included must be decided. This may involve
choosing between a craft election unit structure (covering only workers in a
single occupation), an industrial election unit structure (for example, all the
blue-collar production and maintenance workers in a plant), or between
employees at one plant or location and employees at multiple plants or job
sites. Second, the issue of who functions as a supervisor or manager must be
decided, because since the passage in 1947 of the Taft-Hartley amendments to the
National Labor Relations Act, supervisors have been excluded from coverage of
the act.

The Scope of the Unit—The NLRB ’ s Criteria

Since the composition of the electorate can infl uence the outcome of the
election, the scope of the election unit is often a hotly contested issue. The union
typically will seek an election unit that maximizes its ability to win the election
and the employer will seek a unit that minimizes the union ’ s chances of winning.
The NLRA states that the fundamental objective in choosing an election unit
should be to ensure that employees have “the full freedom in exercising the rights
guaranteed by this act.”

The NLRB and the state and local boards normally consider the following
general criteria in deciding on the appropriate election unit:

1. The community of interests among the employees
2. The potential effects of alternative units on stability in the labor-management

relationship
3. The need to provide suffi cient freedom of choice to professional and skilled

employees
4. The history of bargaining or the employer ’ s decision-making structure with

similar units

This fourth criterion is useful in resolving disputes between the parties over
whether certain employees should be excluded because they perform supervisory
or managerial functions.

Whether craft workers are put into the same election unit as production workers
in the same plant (or company) is a diffi cult part of the process of determining
an election unit. Although Section 9(b)(2) of the Taft-Hartley Act was designed
to limit the NLRB ’ s ability to put craft workers into industrial election units,
the board has consistently rejected petitions to exclude craft workers from the
large industrial units. Indeed, the board has argued that the interdependence
between craft workers and production workers warrants a single comprehensive
unit.

The NLRB has been somewhat more willing to grant professional employees
a separate bargaining unit. Section 9(b) of Taft-Hartley prohibits the NLRB from
including professional employees in a bargaining unit with nonprofessional employees
unless the professionals decide by a majority vote to be included in a larger, more
comprehensive unit.

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Union Organizing and Bargaining Structures 163

Union Organizing Success Rates

In 2015, labor unions won 69.5 percent (1,128 out of 1,628) of the representation
elections conducted. 3 This fi gure declined steadily from the 1960s to the mid-1990s
but has risen steadily since then. However, the number of workers organized
through the election process continues to be very small relative to the size of the
nonunion labor force. In any given year since at least the 1990s, unions have
organized less new members than the number of new entrants to the labor force.
In 2015, unions organized some 61,650 workers through NLRB elections, down
slightly from 64,000 in the previous year. In 2015, unions won 73 percent of
elections held for units of less than 50 employees, compared to a win rate of 61
percent for units with 50–99 employees and 58 percent in units with 100–499
employees. 4 In large multi-establishment companies, unions have had trouble
even securing enough signed authorization cards to certify to the NLRB that an
election should be held. 5 These data make it clear that unions are not going to
reverse their long-term decline by using the established procedures of the NLRA
unless they make efforts to substantially increase the number of organizing drives
they conduct.

Union involvement in representation elections and win rates in those elections
vary somewhat by union. The Teamsters are the most active union in representation
elections. They participated in 384 representation elections in 2015, accounting
for approximately 20 percent of all NLRB representation elections. The union
involved in the second highest number of representation elections was the SEIU,
with 152 elections in 2015. SEIU, the Laborers International Union of North
America and the International Association of Machinists and Aerospace Workers
were the most successful unions in representation elections; each won about
three-fourths of NLRB elections in which they participated.

At the same time, the low level of recent union organizing success and the
fact that only 11 percent of the work force is now unionized should not be taken
to mean that only a small fraction of the American work force desires union
representation. 6 The most complete survey of how workers would respond to
union organizing efforts on their jobs and how they would expect their employer
to respond was carried out in the mid-1990s by Professors Richard Freeman and
Joel Rogers. The results showed that a sizable number of nonunion employees
desire union representation. Just under one-third of nonunion private sector
employees indicated that they would vote for union representation if given the
chance to do so. That was essentially the same percentage who gave this response
in the fi rst national survey of this kind in 1976.

More recent polls (the most recent was in 2004) indicate interest in union
representation has increased to just under 50 percent of the nonunion workers
who participated in nationally representative surveys. Thus, the interest of nonunion
workers in joining a union has increased substantially over the past several decades
even as union membership has decreased, leading Freeman and Rogers and others
to conclude that there is a large representation gap in the United States.

In response to declining unionization, American unions have adopted new
organizing strategies (described later in this chapter). One aspect of the new

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164 Part III. The Functional Level of Labor Relations

organizing approaches of American unions is intensifi ed efforts to organize profes-
sional employees. As Box 7.4 describes, this includes organizing campaigns among
university professors and graduate assistants.

Even if a union wins a majority vote in a representation election, this does
not ensure that a fi rst contract will be negotiated. The NLRA requires that
employers (and the union) bargain in good faith, but the law does not require
that the parties reach agreement. In fact, fi rst contracts are won in only about
two-thirds of newly designated units.

Does the Election Campaign Infl uence How
Workers Vote?

Research has shown that workers tend to become less inclined to vote for union
representation when an election is delayed. 7 Studies also show that illegal employer
behavior during the election campaign (a signal of aggressive employer opposition
to bargaining) further reduces the probability that a fi rst contract will be settled. 8
The effects of employer resistance is quite substantial; as we noted in Chapter 6 ,
the most comprehensive study of this issue found that only about 10 percent of
bargaining units where a majority of workers sign authorization cards are successful
in achieving a fi rst contract if the employer resists to the point that an unfair
labor practice charge is fi led. 9 Evidence also shows that fi rms with previously
poor worker-supervisor relations and low wages are more likely to commit violations
of fair labor practices during election campaigns. 10

The results of these studies further reinforce a conclusion most unions have
come to: investments in organizing through the procedures the NLRA has
established have to be made very carefully, given the low probability of success
and the high costs involved. Most union leaders today look for other ways to
gain neutrality from employers in organizing or fi nd ways to attract members
without having to use these processes. The evidence also indicates why most
labor law and policy experts recognize that this feature of labor law is in need
of fundamental reform. We will discuss options for reform in Chapter 16 .

In 2015, the NLRB announced some changes in how it would administer
representation election processes and adjudicate claims that an employer or union
was violating the rules governing these processes. Specifi cally, it indicated that it
would speed up the process by no longer hearing evidence on unfair labor practice
charges until after the election, by requiring employers to provide unions with
the e-mail addresses of those eligible to vote (in the past, only mailing addresses
were required), and requiring employers to post notices of the right of workers
to form a union. These new administrative processes have been in effect only a
short time and it is too early to tell whether they will make any difference in the
outcomes of elections.

Union Decertifi cation

Unions lose members through decertifi cation elections . The 1947 Taft-Hartley
amendments to the NLRA prescribed the election procedures for decertifying a
union.

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Union Organizing and Bargaining Structures 165

BOX 7.4
The Unionization of University Professors and Graduate
Students

Working in higher education has become increasingly precarious as universities
have shifted from staffi ng full-time, tenure-track professors to relying sig-
nifi cantly more on part-time adjunct professors and graduate assistants. Though
these changes have made unionization necessary by lowering the standards
of working conditions, they have also created greater opportunity for successful
unionization efforts.

This apparent paradox can be resolved by looking at one of the major
historic roadblocks to university unionization. In 1980, a conservative Supreme
Court ruled in NLRB v. Yeshiva University that tenure-track professors in
private universities were ineligible for unionization because they had signifi cant
managerial authority in the university. However, the growth of the admin-
istrative bureaucracy that enabled the transition to a contingent work force
led the NLRB to decide in 2014 that “colleges and universities are increasingly
run by administrators” and that therefore professors are for the most part
nonsupervisory employees.

While the NLRB has recently begun to open the door for unionization
for private institutions, professors in public universities not covered by the
board ’ s jurisdiction have, as with other industries, unionized at a far more
rapid pace than their counterparts in private universities. Of the estimated
386,000 unionized university faculty in the United States, 344,762 work
in public universities.

Those who have been most affected by the changes in academia are the
ones who have fought the hardest for unionization. Graduate, teaching,
and research assistants have borne an increased workload as universities staff
less full-time professors. These educators also face bleaker job prospects after
earning their degree. Their efforts were stunted in 2004, when the NLRB
ruled in a case concerning Brown University students that because graduate
students were “primarily students,” they were ineligible for unionization.
However, an NLRB ruling in August 2016 in favor of Columbia University
students has practically overturned the 2004 ruling by stating that despite
their broader relationship with the university, graduate students are still
protected under the NLRA and can form a union based on the work they
perform under the direction of the school. This may prove to be a watershed
event in the struggle for university student unions.

Source : Noam Scheiber, “Grad Students Win Right to Unionize in an Ivy League Case,”
New York Times , August 23, 2016; and David Ludwig, “Why Graduate Students of
America Are Uniting,” The Atlantic , April 15, 2015.

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166 Part III. The Functional Level of Labor Relations

The decertifi cation elections held since Taft-Hartley have been far fewer than
the representation elections, but in recent years their number has been increasing
and unions have been losing an increasing percentage of these contests. The fi rst
year after Taft-Hartley passed, for example, 97 decertifi cation elections were
held, or only 3 percent of the 3,822 representation elections held that year. That
ratio held steady throughout the 1950s and 1960s but began creeping upward in
the 1970s. In 2015, 185 decertifi cation elections were held and unions retained
representation rights in 72 (or 39 percent) of them. 11

Most union members appear to be satisfi ed with their unions and union leaders.
A recent survey fi nds that union members are generally very satisfi ed with their
personal experiences with the unions at their workplaces. Survey data shows that
90 percent of union members would vote to keep their union if given the chance
to directly vote on the issue.

THE DEBATE OVER LABOR LAW REFORM

The diffi culties workers and unions have experienced in navigating through the
representation process in the face of employer resistance has led to much debate
over whether the endorsement of collective bargaining that the NLRA provided
is being fulfi lled. Remember that the original objective of the law was to ensure
that employees would be able to exercise free choice regarding union representation,
untrammeled by an employer ’ s (or a union ’ s) false promises or false information,
threats of reprisals or promises of benefi ts, or misuse of economic power. To
reach this objective, the NLRB (and most state labor boards) attempted to establish
laboratory conditions for the election process. The notion was that workers
should be free to judge whether they wanted union representation in an environ-
ment free of coercion and misinformation.

Advocates of labor law reform often argue that the penalties imposed on
employers who commit unlawful acts during an election campaign are too weak.
They also claim that the procedures for remedying unfair labor practices and or
holding representation elections are too protracted and that too often employers
merely move or close operations as part of union avoidance strategies. As we will
discuss in more detail in Chapter 16 , a major congressional debate over labor law
reform occurred in 1977 and 1978. The labor law reform bills introduced then
would have imposed harsher penalties on labor law violators, required stricter
time limits on the election process, and provided stronger remedies for victims
of unfair labor practices. The bills were not passed (one bill passed the House of
Representatives but died in a fi libuster in the Senate in 1978). In 1991, Congress
debated labor law amendments that would limit the ability of employers to hire
permanent replacements during a strike. In 1994, a presidential commission, the
so-called Dunlop Commission, recommended several changes in labor laws
and the application of laws to overcome delays and other tactics employers have
been using to oppose union organizing. However, in the end, the Dunlop Com-
mission ’ s recommendations were ignored. In 2009, after the election of Barack
Obama, the labor movement mounted another effort to reform labor law with

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Union Organizing and Bargaining Structures 167

the Employee Free Choice bill. That bill stated that a union could be certifi ed
if it could demonstrate that a majority of eligible workers had signed cards
authorizing the union to represent them (instead of requiring an election),
strengthened the penalties for violating the law, and provided for arbitration of
the fi rst contract if the parties were not successful in negotiating an agreement.
This bill passed in the House of Representatives but again could not overcome
a fi libuster in the Senate. These efforts and what they imply for the future of
labor law reform will be discussed again in Chapter 16 . For now, it is suffi cient
to note that the debate continues over the performance of the nation ’ s labor
policies.

Box 7.5 summarizes some the recommendations advocates of labor law reform
have made with little success. In the absence of legal reforms, many unionists
and analysts suggest that aggressive employer union avoidance has become more
common in recent years. This has led union activists to increase union organizing
efforts and to turn to nontraditional union organizing tactics.

BOX 7.5
Selected Proposals for Reforming Representation Processes

1. Require employers to recognize a union when a majority of workers have
signed cards authorizing the union to serve as their bargaining
representative.

2. Give unions the right of access to employees for campaign purposes equal
to the access employers have.

3. Stop attempting to regulate statements employers or unions make as part of
election campaigns.

4. Speed up the enforcement of current rules governing elections and strengthen
the penalties imposed on violators of the law by
a. making it easier to obtain or requiring court injunctions to stop and/or

remedy serious violations of the law, such as discriminatory discharges
during campaigns;

b. deferring hearings and decisions on unfair labor practice claims until after
an election is held;*

c. reinstating employees quickly, in time to allow union supporters to return
to employment before the campaign is over and the vote is held;

d. allowing employees or the union to sue for civil damages in cases where
an employer willfully violates of an employee ’ s rights; and

e. lifting the constraint on the amount of the settlement an employee can
receive in cases where employer conduct exhibits a consistent pattern of
illegal behavior.**

5. Conduct speedy elections, with a very short time allowed for campaigning.*

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168 Part III. The Functional Level of Labor Relations

6. Strengthen the ability of a union to strike to achieve a fi rst contract by
eliminating the ability of an employer to permanently replace strikers and
by allowing other workers to boycott the goods of an employer involved
in a strike.

7. Require arbitration of fi rst contracts if an impasse occurs.

*The NRLB took steps in this direction in 2015 with administrative rule changes.
**Under current law, a court can only award a settlement equal to the wages lost by
an employee since the time of discharge.
Sources : Paul C. Weiler, “Milestone or Millstone: The Wagner Act at Fifty,” in Arbitration
1985: Law and Practice , ed. Walter J. Gershenfeld (Washington, D.C.: Bureau of National
Affairs, 1986), 37–67; and Charles J. Morris, American Labor Policy: A Critical Appraisal
of the National Labor Relations Act (Washington, D.C.: Bureau of National Affairs, 1987).

Nontraditional Union Organizing Tactics Such as
Corporate Campaigns

Given the great diffi culties they have faced using traditional election campaign
tactics, several unions have adopted more aggressive corporate campaigns and
other tactics designed to increase the chances of organizing new workers. Corporate
campaigns involve a variety of efforts to bring public, fi nancial, or political pressures
to bear on top management.

The fi rst large-scale corporate campaign was carried out against the J. P. Stevens
Company in the late 1970s. The Amalgamated Clothing and Textile Workers
Union (ACTWU) waged a successful national boycott of Stevens products,
threatened to withdraw the union pension funds from banks that had offi cers on
Stevens ’ s board, and, eventually, after almost a decade of effort, negotiated its
fi rst contract with the company. Since then, similar efforts have been mounted
in attempts to organize the operations of nursing homes, hospitals, and a variety
of other private sector fi rms. 12

Most of the union corporate campaigns have been accompanied by strategies
designed to infl uence the employer involved in the election indirectly by putting
pressure on individuals or other fi rms that do business with or have interlocking
directorates with it. These efforts attest to the unfairness labor leaders perceive
and the frustrations they have experienced with the election process as it has been
administered by the NLRB.

Since the late 1980s, the SEIU has led a campaign to organize janitors in several
regions of the country using nontraditional tactics that in some cases seek to go
outside the NLRA and NLRB procedures to gain union representation. Its Justice
for Janitors campaign tries to organize on a multiemployer (regional) basis and
often avoids normal NLRB-style representation elections by inducing employers
to voluntarily recognize the union. The janitors’ campaign often puts pressure
on the primary employers that typically rely on subcontractors to provide janitorial
services in their buildings, such as Apple (see Box 7.6 ). The Justice for Janitors

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Union Organizing and Bargaining Structures 169

BOX 7.6
The Justice for Janitors Campaign

In 1985, the Service Employee International Union (SEIU) launched its
Justice for Janitors campaign in response to a strike by cleaning workers at
Mellon Bank in Pittsburgh. The nationwide campaign to organize cleaning
service workers targeted high-profi le companies that contract out their
cleaning services to nonunion cleaning companies. The SEIU targeted the
large fi rms that use these nonunion cleaning companies rather than targeting
the nonunion employers directly because it claims that the large fi rms set
the standard for wages in the industry by determining the amount of money
paid to the contractors. The union claimed that the nonunion cleaning
companies committed frequent wage and hour violations and gave poor
wages and benefi ts (an estimated $12,000 a year with no health care benefi ts).
The same type of campaign that began in Pittsburgh has now been used in
other cities.

In its Justice for Janitors campaigns the SEIU has used tactics such as
picketing, demonstrations, coalitions with commercial groups, and negative
publicity about the corporations that exploit cleaning workers to put pressure
on both the large fi rms and the nonunion cleaning companies. The campaign
targeted large companies such as Apple, Hewlett-Packard, and Toyota.

However, in the spring of 1997, SEIU president Andrew Stern publicly
acknowledged that the noisy demonstrations, traffi c tie-ups, and civil disobedi-
ence against Washington, D.C., employers had produced too much antago-
nism. He pledged to end the strikes and pickets and the involvement of
third parties in the dispute. Stern also emphasized that while it was necessary
to change tactics, the union ’ s goal continued to be the achievement of
decent working conditions for janitors.

In the 1990s and 2000s, SEIU successfully organized the cleaning industries
in many major cities, using less dramatic tactics. Then, beginning in 2014,
possibly spurred by the Occupy Wall Street movement, the SEIU funded
major walkouts in the fast-food industries of several large cities, beginning
with Fast Food Forward in New York. These movements coalesced under
the banner of the motto Fight for $15 and used many of the strategies that
Justice for Janitors had proved to be viable.

The SEIU received some criticism from members who felt that it was
using valuable resources to help a nonunionized work force, but the rapid
success of the movement eventually led to widespread praise. Many states
and major cities responded to the civil disobedience and lobbying by passing
new minimum wage increases. This nationwide success may be somewhat
attributable to the attention given to the movement by two major Democratic
candidates for the presidency in the 2016 election.

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170 Part III. The Functional Level of Labor Relations

The movement has also given back, in a way, to its roots. In June 2016,
janitors in Denver successfully negotiated for a wage increase to $15 an
hour. This is at least in part a result of the fact that the Fight for $15
campaign has normalized this previously unattainable fi gure. With these
campaigns, the SEIU has proven that a broad-based approach can be effective
in changing industry practices and that despite the waning infl uence of
unions, they need not tread lightly to be successful.

Sources : “100,000 Janitors Covered in the SEIU Pacts Bargained During 2000 in Two
Dozen Cities,” Daily Labor Report , November 28, 2000, C-1.; Kelsey Ray, “Denver
Janitors Sign ‘Historic’ $15 Minimum Wage Agreement,” Colorado Independent, June
30, 2016; Josh Eidelson, “The Lessons Unions Learned from the ‘Justice for Janitors’
Protests,” Bloomberg Politics , June 16, 2015.; Steven Greenhouse, “Fast-Food Workers
Seeking $15 Wage Are Planning Civil Disobedience,” New York Times, September 1,
2014.

campaign also tries to make alliances with community groups such as churches
to gain public support for union-organizing efforts.

The AFL-CIO Organizing Institute and the AFL-CIO
Organizing Department

The AFL-CIO has long admitted that unions have diffi culty organizing workers.
In response, it created the AFL-CIO Organizing Institute . The Organizing
Institute focuses exclusively on organizing and providing programs that train new
organizers. The AFL-CIO gave its Organizing Department a sizable budget and
the task of extending the types of activities that the Organizing Institute begins.
In addition to recruiting and training new organizers, the Organizing Department
provides affi liated unions with strategic planning and analysis for organizing
campaigns. The AFL-CIO ’ s Union Summer program funds college interns engaged
in summer union-organizing projects.

The Rank-and-File Organizing Approach

In recent years, unions have focused on reaching workers by employing young,
well-educated organizers and reaching out to engage the support of community
groups such as churches, immigrant groups, and other social activist organizations.
This approach to organizing is called the rank-and-fi le style and contrasts with
the top-down, traditional organizing style that relied on appointed organizers and
formal communication strategies. Rank-and-fi le organizing also tries to modernize
and broaden the issues that attract employees to unions by addressing child care,
equal pay, and other issues that are of concern to the current work force. Research
conducted by Kate Bronfenbrenner suggests that this rank-and-fi le method of
union organizing has been more successful than traditional methods in the private
sector. 13

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Union Organizing and Bargaining Structures 171

Employer Neutrality during Representation Elections

In recent years, some unions have negotiated rules governing the organizing of
new bargaining units with an employer. 14 Often included in such language is the
employer ’ s agreement to remain neutral during the organizing process. In the
agreements of the Communications Workers of America (CWA), the United
Auto Workers (UAW), and the United Steelworkers (USW), for example, neutrality
is defi ned as “neither helping nor hindering” the union ’ s organizing effort, but
the contracts allow managers to communicate “facts” to workers, in some cases
only in response to inquiries. A different approach is language that makes clear
that the employer will not communicate opposition to union representation. 15
In a few cases, employers have gone so far as to agree to inform employees that
management welcomes union representation.

Union leaders argue that management should give unions the opportunity to
represent employees in new establishments of the company they work for. In
some cases, management has agreed and has accepted unions in new establishments
if the union demonstrates fl exibility and a commitment to labor-management
cooperation .

One of the key strategic choices management faces is whether to contest
unionism during a representation election or to voluntarily recognize the union
in return for a more cooperative union-management relationship. Recent experience
suggests that the parties can create a more positive working relationship by avoiding
hostility during a campaign election and thus start the union-management relation-
ship off on a good footing. Unions have pushed management in recent years to
use card check recognition, discussed more fully below, which goes even further
than neutrality in assisting union organizing.

Voluntary Recognition

The NLRA allows employers to voluntarily recognize a union. The law, of
course, also allows employers to remain neutral during a representation election
campaign. In the 1940s and 1950s, it was not uncommon for employers to either
adopt voluntary recognition or maintain employer neutrality during election
campaigns. Employers’ voluntary recognition of a union and employer neutrality
in representation elections have declined since the 1940s and 1950s. Nonetheless,
there are some important exceptions to this trend.

The Southwest Airlines Case

Southwest Airlines was fi rst formed as a regional carrier in Texas. Its founder
and CEO until his retirement in 2002, Herb Kelleher, viewed cooperative and
fl exible relations with the work force as a key competitive advantage for a service-
oriented business. He did not oppose unionization at Southwest, and today it is
one of the most highly unionized airlines in the country. The strategy has paid
off well for Southwest over the years. It has grown to become the fourth largest
carrier in terms of numbers of employees, it has been the most consistently
profi table airline in the industry, and it has consistently ranked at or near the top

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172 Part III. The Functional Level of Labor Relations

of the industry in customer satisfaction. Part of Southwest ’ s success has been
attributed to fl exible labor contracts, cooperative relationships, and the high levels
of coordination achieved among workers doing different jobs. 16 Yet in recent
years relations between Southwest and its unions have become more strained as
its labor costs have risen to among the highest in the airline industry.

Another interesting case involving employer neutrality is the UAW ’ s experience
in attempting to organize Volkswagen ’ s assembly plant in Tennessee. First it
attempted to get the German company to be neutral in the organizing effort. To
do so, the UAW enlisted the support of IG Metall, the union that represents
workers at the parent company in Germany. While the UAW got a formal
commitment from Volkswagen that it would be neutral as part of an agreement
to set up a German-style works council if the union won the election in the
Tennessee plant, organizers experienced strong opposition from elected offi cials
in Tennessee and lost the representation election in a close vote. Subsequently,
the UAW has organized a unit of skilled trades workers in the plant (see chapter
8 for further discussion of this case).

In recent years, facing increased employer hostility in representation elections
and declining rates of success in those elections, unions have increasingly turned
to card check recognition procedures to gain recognition. Often an employer ’ s
pledge to remain neutral during any organizing drive is included with card check
recognition. Unions have had mixed success with those procedures.

A few of the large telecommunication fi rms that used to be a part of the Bell
System have accepted voluntary card check recognition procedures in recent
years. What makes these cases so interesting is the fact that the employers were
willing to agree to these policies regarding organizing because the unions that
represent telecommunications employees, the CWA and the International Brother-
hood of Electrical Workers (IBEW), agreed in exchange to support mergers or
regulatory policies that management favored. 17

One place where card check recognition led to signifi cant organizing was at
SBC Telecommunications. (Since the merger of SBC and AT&T, the relevant
operations are now part of the new AT&T.) In August 2005, the CWA obtained
a national card check and neutrality agreement from Cingular Wireless. Cingular
agreed to recognize the union if more than 50 percent of the bargaining unit
signed authorization cards. As a result, the CWA organized nearly all of AT&T ’ s
customer service representatives and technicians.

However, not all neutrality and card check agreements lead to successful union
organizing. For example, in August 2000, Verizon Communications signed a
four-year contract with the IBEW and the CWA in which it agreed to card
check recognition so long as 55 percent of the bargaining unit supported union
representation. Four years after the agreement was signed, the contract expired
with no more workers represented than when it began. 18 According to the CWA,
although Verizon agreed to be neutral during organization drives, the company
went to great lengths to keep workers from being organized. The CWA claimed
that during the same year Verizon signed the contract, it prevented unions from
distributing cards in a timely fashion by taking much longer to classify precise

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Union Organizing and Bargaining Structures 173

bargaining units than was necessary. The union also argued that the company
rejected the union ’ s presentation of the correct number of authorization cards
and fi led a lawsuit in an attempt to prevent the union from being recognized.
In Chapter 8 , we discuss in more detail how the CWA fi nally won a fi rst contract
that covered customer service workers in a handful of Verizon stores in New
York City as an outgrowth of a strike in 2016.

OPTIONS FOR UNION RENEWAL

The limited success unions have achieved in reversing membership declines through
conventional organizing strategies has led some both inside and outside the labor
movement to urge unions to experiment with alternative approaches to recruiting,
organizing, and retaining workers. Some of the alternative renewal strategies
various unions are using include:

• Organizing without relying on NLRB election procedures. Some unions
have used their leverage in collective bargaining to gain neutrality and card
check recognition agreements for new groups of employees, as discussed
above and in Box 7.7 .

• Using corporate campaigns and political infl uence with government regulatory
bodies to neutralize employer opposition in organizing campaigns. The United
Steelworkers and the CWA have used this approach with particular effective-
ness. 19 The SEIU successfully used innovative grassroots organizing and political
lobbying in the process of organizing 75,000 home health care workers in
California.

• Creating coalitions with community groups to build support for organizing
efforts. The best-known and most successful example of this is the SEIU ’ s
Justice for Janitors campaign (described above and in Box 7.8 ), which gained
bargaining recognition for offi ce building owners and cleaning contractors
in a number of cities.

• Recruiting individuals as “associate members” even if it is not possible to
obtain exclusive representation status or a collective bargaining agreement.
Teachers’ unions have used this approach for many years, and more recently
unions such as the CWA have used it to establish and support temporary
workers at Microsoft and employees at IBM.

Other ideas being debated in the labor movement include fi nding ways to do
more to retain members once they are organized, even when they move across
jobs. This would require unions to provide a range of labor market, continuous
education, and training services to workers to support their movement from one
job to another. Another idea is organizing and providing services to members
via the Internet. A third idea is to target young people as potential members by
providing career counseling and job-fi nding services and access to portable fringe
benefi ts. All these efforts are a response to data that shows that many workers
move in and out of union status over the course of their careers. If workers could
be recruited into unions at the start of their careers and given reasons to retain

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174 Part III. The Functional Level of Labor Relations

BOX 7.7
Are Neutrality Agreements Legal?

One might not expect that a neutrality agreement would be a controversial
issue. On the face of it, the employer is simply agreeing to remain neutral
while employees decide for themselves whether they wish to form a union.
However, these agreements have received scrutiny when they include certain
provisions that might resemble a collective bargaining agreement prior to
union certifi cation.

A recent case that demonstrated this controversy is the NLRB ’ s Dana
Corporation decision. The UAW and the Dana Corporation, an automo-
bile parts manufacturer, reached a neutrality agreement that consisted of
principles that both parties agreed to adhere to if the union was certifi ed
and negotiations began. Unions and employers who support these types
of neutrality agreements claim that they foster a positive relationship from
the start of negotiations.

Opponents, including right-to-work politicians and activists, claim that
such deals are a violation of section 302 of the Taft-Hartley Act, which
makes it a crime for an employer “to pay, lend, or deliver, or agree to pay,
lend, or deliver, any money or other thing of value” to a union seeking to
represent its employees. The intent of this provision is to prevent unions
from extorting employers and employers from bribing union offi cials.

The NLRB decided in 2010 that the agreement did not constitute extortion
or bribery and therefore did not violate the Taft-Hartley Act. The Board
did not dictate any specifi c test, but explained in its reasoning that a fi nal
collective bargaining agreement would still require “substantial” negotiation,
and that the agreement represented simply a framework for bargaining. The
Court acknowledged the benefi ts of such a framework, and recognized the
employer ’ s right to “engage in at least some preliminary substantive decisions
with a union.” However, there remains some disagreement on this issue
between different Circuit Courts, meaning that perhaps a Supreme Court
decision will ultimately be necessary to resolve the issue.

Source : “Parties Weigh in on NLRB Case Involving Neutrality Agreement between
Dana, UAW,” Daily Labor Report , June 21, 2006, C-1; 356 NLRB No. 49, Dana
Corporation and International Union, United Automobile, Aerospace, and Agricultural–
CIO and Gary L. Smeltzer Jr. and Joseph Montague and Kenneth A. Gray.

their membership as they move through their working years, both the recruitment
and turnover problems could be addressed at the same time. There is likely to be
considerable experimentation with these alternative strategies in the years ahead.

Expanding the Defi nition of Unions

Some nonunion organizations provide some (but not all) of the functions of
traditional unions. This too is an area of considerable experimentation. The largest

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Union Organizing and Bargaining Structures 175

BOX 7.8
The Coalition of Immokalee Workers

The Coalition of Immokalee Workers (CIW) is a community-based labor
organization that represents low-wage immigrant farmworkers on tomato
farms in Florida. As unions do, the organization strives to protect its members’
well-being and increase their wages. However, how it does this is quite
different from the traditional union approach. The most important aspect
of the organization ’ s approach is that the way it incorporates appeals to the
social responsibility principles of highly visible food retailers in order to
pressure these companies to agree to better wages and working conditions.
The CIW began this endeavor with its Campaign for Fair Food in 2001.
The campaign reached out to many different religious groups and to students
and young people, both locally and nationally, to educate them about the
ongoing exploitation of farm workers. The main goal of this effort was to
motivate consumers to bring pressure on large corporations to take measures
that would put an end to such exploitation instead of merely using the
labor power of the workers they employed. These efforts resulted in agree-
ments with major companies such as Walmart, McDonalds, Whole Foods,
Burger King, Trader Joe ’ s, and Chipotle.

Building on these successes, the CIW launched the Fair Food Program
(FFP) in 2011. It was based on the partnership that had been established
between farm workers, farm owners, and corporations. The agreements
among participants in this program state that buyers will buy Florida tomatoes
only from farmers who have complied with the standards of the FFP. In
addition, the buyers pay a Fair Food Program premium that is passed on
to the workers as a bonus. The CIW holds education sessions at which
workers teach other workers the new labor standards mandated by the Fair
Food Code of Conduct. These standards are enforced by a third party, the
Fair Food Standards Council, which regularly audits farms and continuously
investigates complaints to fi nd solutions, much the way unions have third-
party arbitrators.

This approach to labor organizing has been lauded as the way forward
for labor organizations and is credited with partially reviving the labor
movement. The Coalition of Immokalee Workers has received national
and international recognition, winning awards such as the 2015 Presidential
Medal for Extraordinary Efforts to Combat Human Traffi cking and the
2012 Natural Resources Defense Council ’ s Food Justice Award. The
Washington Post hailed its model of organizing as “one of the great human
rights success stories of our time.”

Sources : Coalition of Immokalee Workers website, http://www.ciw-online.org ; and
Michael Husebo, “Labor Agency Beyond the Union: The Coalition of Immokalee
Workers and Faith-Based Community,” MS thesis, Georgia State University, http://
scholarworks.gsu.edu/cgi/viewcontent.cgi?article = 1033&context = geosciences_theses .

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Blog

http://scholarworks.gsu.edu/cgi/viewcontent.cgi?article = 1033&context = geosciences_theses

http://scholarworks.gsu.edu/cgi/viewcontent.cgi?article = 1033&context = geosciences_theses

176 Part III. The Functional Level of Labor Relations

such organization, the Freelancers Union, began recruiting independent contract
professionals in the media and graphic arts industries in New York City in 1995. 20
It provides health benefi ts, networking opportunities, and related services to
250,000 media workers and focuses on the needs of these highly mobile profes-
sionals who are not covered under the National Labor Relations Act because
they are independent contractors and not employees.

The Restaurant Opportunities Centers (ROC) takes another approach. 21 It
seeks to organize employees of restaurants by asking customers to inquire about
the working conditions of the employees who serve them and about the restaurant ’ s
sustainability practices in an attempt to connect employee issues with environmental
concerns. In this way, the ROC seeks to build a coalition between customers
and employees by using methods similar those used by various services such as
Zagats to rate the quality of restaurants. It is interesting to note that the ROC
does not want to be considered a union since it does not want to be constrained
by the organizing and bargaining rules and limits the NLRA mandates. Ironically,
it is the restaurant industry association that is trying to convince the NLRB and
the courts to defi ne the ROC as a union so it can limit its tactics. It particularly
wants to disallow use of consumer boycotts.

Another organization that builds coalitions with food advocacy groups is the
Coalition of Immokalee Workers. They also have negotiated with the food retailers
that buy the products they harvest for the farmers that employ them and in doing
so have been able to upgrade their wages and working conditions (see Box 7.8 ).

The largest new form of union membership is provided by Working America,
an arm of the AFL-CIO that recruits individuals in local communities to join
it to share political information and to mobilize support for worker-friendly
candidates local and national elections. Working America was created under the
leadership of Karen Nussbaum, the former president of 9 to 5, an organization
of working women. It now has grown to a membership of over 3 million. 22 As
is the case with the members of the ROC and the Freelancers Union, Working
America members are not counted in the offi cial statistics of union membership
because they do not negotiate collective bargaining agreements. These groups
may, however, signal new forms of union-supported or quasi-union advocacy
networks.

The number of such advocacy networks appears to be increasing across the
country. Some of them are using social media and related information technologies
to recruit, share information with, and build networks among professionals and
independent contractors. One such organization is SherpaShare, a third-party
provider of information for Uber, Lyft, and their drivers. 23 Since Uber and Lyft
insist that their drivers are independent contractors and not employees, the drivers
are not covered under the NLRA. However, this is a contested issue that has
been the subject of class actions, at least one community-level ordinance (in
Seattle) that states that these drivers are employees and are eligible for union
representation, and another voluntary agreement that allows Uber drivers in New
York City to be represented by the International Association of Machinists and
Aerospace Workers as a drivers’ guild (see Box 7.9 ).

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Union Organizing and Bargaining Structures 177

BOX 7.9
Uber Drivers’ Organizing Efforts

When several dozen workers in Tampa, Florida, logged off an app for an
hour every week in January 2016, it may not have looked much like a
traditional strike, but they were arguably at the forefront of labor ’ s next
frontier. The workers were drivers for Uber, an app-based driving service,
and they were protesting the company ’ s recent fare cut in Tampa. People
working through Uber and other companies like it have increasingly been
looking to collective action as a means of protecting their interests in the
“gig economy.”

The “gig economy” is the term used for the evolving sector of jobs
wherein non-employee workers freelance their labor through large app-based
companies. Controversies have arisen as these companies have gained more
market power and have begun to impose restrictions on workers that lead
to circumstances more closely resembling an employment relationship. For
instance, Uber drivers cannot set their own fares, they must conform to
standards the company sets, and Uber uses user ratings as a justifi cation for
terminating them.

The logouts in Tampa occurred only a month after a unanimous vote
by the Seattle City Council to allow Uber drivers and drivers in other
app-based taxi services to form unions. The campaign to pass this ordinance
was supported by the App-Based Drivers Association, an affi liate of the
Teamsters Union. Uber has faced legal challenges elsewhere, including in
California, where the California Labor Commission ruled that such drivers
ought to be classifi ed as employees and that as such, each California Uber
driver was owed over $4,000 in missing wages. The drivers followed up
with a class action suit against Uber, which remains unresolved. Similar
legal challenges have been raised across the country, though none have
been as successful yet.

Following the success of recent lawsuits and organizing drives, Uber
responded to driver unrest in the important hub of New York City by
coordinating with the International Association of Machinists and Aerospace
Workers to create the Independent Drivers Guild. While this guild is not
quite a union with inherent bargaining rights, it will function as a forum
where drivers can voice concerns, receive discounted benefi ts, and coordinate
appeals in cases of dismissal. The guild follows the model of Sara Horowitz ’ s
Freelancers Union, which has expressed its support for the drivers. This
move by Uber illustrates the success of both unions and independent
organizations that have pressured the company to respect the rights of its
drivers.

Source : Nick Wingfi eld and Mike Isaac, “Seattle Will Allow Uber and Lyft Drivers to
Form Unions,” New York Times , December 14, 2015; and Paul Martyn, “Contingent
Labor: Getting the Gig Economy Right,” Forbes , February 2, 2016.

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178 Part III. The Functional Level of Labor Relations

Other groups are providing information and services to unorganized groups
that are similar to the services unions provide. One organization, Co-workers.
org , helps workers organize surveys and petitions to employers to address specifi c
workplace grievances. 24 Another group, The Workers’ Lab, serves as a start-up
incubator for entrepreneurs seeking to develop new models of representation for
unorganized workers and contractors. 25 As David Rolf, president of the SEIU
Local 775 in Seattle and one of the originators of the Workers’ Lab states, the
challenge for these new efforts is threefold: (1) to demonstrate that they can
provide workers with bargaining power; (2) to grow to a scale large enough to
have a signifi cant impact; and (3) to devise a business model that will make them
sustainable without outside funding from foundations or other subsidies .

Another form of representation is found in the various caucus or network
groups that have been established in many companies to support African American,
women ’ s, gay-lesbian, and other identity groups. Many professional associations
also represent their members through lobbying efforts and sometimes in more
informal interactions with employers. Prime examples are the bar associations
that lawyers join and branches of the American Medical Association and the more
specialized doctor ’ s groups that are springing up around the country to represent
medical residents seeking to reduce their hours of work (see Box 6.1 ).

Very few of these groups have formal collective bargaining rights as defi ned
and protected under the National Labor Relations Act, but they do offer their
members services and in some cases a form of voice at their workplaces. Whether
these new types of groups and organizations will change conceptions of what a
union is or whether their members should be counted as union members are
open questions.

BARGAINING STRUCTURE

Once unionization occurs, whether through an election or some other procedure,
bargaining over a contract begins. Bargaining structure refers to the scope of the
employees and employers who are covered or affected by the bargaining agreement.

Labor and management do not necessarily bargain contracts that cover only
election units. For example, the employees in the various work sites of one
employer represented by a union may wish to join together to negotiate a common
contract that covers the whole company. In the auto, rubber, and other industries
where industrial unions exist, there are companywide collective bargaining agree-
ments. In addition, employees represented by the same union in multiple companies
may prefer to band together and try to negotiate a common contract covering
all the companies. This occurs in the coal, construction, and trucking industries.
Such company or industrywide bargaining may not develop if the employees (or
unions) prefer to bargain in a more decentralized manner and maintain plant-level
or company-level bargaining.

Employee and union preferences are not the only determinants of the bargaining
structure, however. Before we trace some of the determinants of bargaining
structure, we need some defi nitions.

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Union Organizing and Bargaining Structures 179

Defi nitions of Bargaining Structure

A formal bargaining structure is defi ned as the bargaining unit or the negotiation
unit—that is, the employees and employers who are legally bound by the terms
of an agreement. The informal bargaining structure is defi ned as the employees
or employers who are affected by the results of a negotiated settlement, through
pattern bargaining or some other nonbinding process.

There is no exact estimate of the number of bargaining units in the United
States. Each year, however, the Federal Mediation and Conciliation Service gets
approximately 20,000 notices that a bargaining unit will be negotiating a new
agreement. (These notifi cations are required for a union to engage in a lawful
strike, so nearly all unions covered under the National Labor Relations Act fi le
them). FMCS data from 2012 to 2015 suggests that approximately 60,000 bargaining
units are covered under the NLRA at any given time. Another estimated several
hundred are covered under the Railway Labor Act that governs bargaining in
the railroad and airline industry. There are no reliable estimates of the number
of public sector contracts, but given the decentralized nature of bargaining in
local governments, the number is likely at least equal to or more than the number
in the private sector.

The Predominance of Decentralized Bargaining
Structures in the United States

Compared to the bargaining structures in other countries, the United States has
a highly decentralized bargaining structure. In many European countries,
such as Germany and Sweden, many labor contracts cover entire industries or
broad regions (see Chapter 15 ). In recent years, however, many European employers
have been arguing for greater decentralization of bargaining to allow individual
fi rms the latitude to adjust to their particular economic circumstances. Many U.S.
employers are pressing for even further decentralization of the formal and informal
structures of bargaining in this country.

Types of Bargaining Units

Bargaining structures have two primary characteristics. The fi rst is the scope of
employee or union interests a unit represents. There are three types: narrow craft,
broad industrial, and multi-skill. The second primary characteristic is the scope of
employer interests represented in the unit. These can be multiemployer (centralized),
single-employer—multi-plant, or single-employer—single plant (decentralized).

Table 7.1 illustrates this classifi cation of bargaining structures. For instance, in
a single-employer—multiplant environment, a narrow bargaining unit might
include only craft or professional employees in one occupational class. Police,
fi refi ghters, railroad workers, teachers, and airline pilots are examples of occupations
typically represented in narrow craft bargaining units. At the other end of the
spectrum are the broad bargaining units that might include all the production
and skilled employees in a fi rm. Industrial unions bargain contracts that cover
broad employee units in the auto, steel, farm equipment, state government, and
textile industries.

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180 Part III. The Functional Level of Labor Relations

Table 7.1 Types and examples of bargaining structures

Employee interests
covered

Employer interests covered

Multiemployer (centralized)
Single employer:
Multiplant

Single employer: Single
plant (decentralized)

Craft (narrow) Construction trades
Interstate trucking
Longshoring
Hospital association

Airline
Teacher
Police
Firefi ghters
Railroad

Craft union in small
manufacturing plant

Hospital

Industrial or
multiskill
(broad)

Coal mining (underground)
Basic steel (pre-1986)

Hotel association

Automobile
Steel (post-1986)
Farm equipment
State government
Textile

Industrial union in small
manufacturing plant

There are also intermediate cases in which more than one but not all of the
various union-represented employees in a fi rm bargain in the same unit. A
manufacturing plant where workers in several crafts bargain together would be
such a case.

The columns of Table 7.1 depict the degree of centralization of employer
interests in the bargaining unit. A unit that represents only one plant is an example
of the most decentralized bargaining unit. An example of this would be a union
that negotiates a contract for the electrical (or production) workers in one plant.

A highly centralized bargaining structure covers all the work sites of
companies with the same collective bargaining agreement. Although multiemployer
bargaining units are relatively rare in the United States, some do exist. In the
trucking industry, for example, multiple intercity and interstate trucking companies
have bargained a single contract (the National Master Freight Agreement) with
the Teamsters union to cover their unionized drivers. The coal industry has long
had a master agreement with the United Mine Workers that covers the unionized
mine workers in coal companies that were members of the Bituminous Coal
Operators Association. These multiemployer units are also found in the construction,
longshoring, hotel, and (in some cities) hospital industries. In all of these cases,
an employer association represents management at the bargaining table. These
centralized agreements might cover multiple different employers in a given locality
(such as all of the private hospitals in New York City that were members of the
New York Voluntary Hospitals Association) or in an industry. Professional sports
teams and unions also have this type of industrywide structure that bargains with
a management association that represents the owners of the various teams.

An example of the intermediate case of employer centralization is when a
single contract covers multiple work sites of one employer. The automobile,
steel, and farm equipment industries and many state governments use this inter-
mediate bargaining structure. In these cases, employers with more than one plant
negotiate a single contract that covers employees in multiple work sites as opposed

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Union Organizing and Bargaining Structures 181

to having a separate contract for each site. Typically, these company agreements
are supplemented with local agreements that cover the working conditions that
are specifi c to a given site.

Another intermediate employer case occurs in public school districts, where a
single agreement typically covers all the unionized teachers across the various
schools in the district. Police and fi refi ghters also commonly have one contract
that covers the various stations or districts in a city.

Determinants of Bargaining Structures

Bargaining leverage, public policies, and organizational factors are the major
elements that affect the degree of centralization in bargaining structures. How
each of these factors infl uences bargaining structure is examined below.

Bargaining Leverage

Unions can increase their bargaining leverage if they organize a large share of
the product market; for example, employers that compete to make or sell the
same products. One of the primary mechanisms for ensuring that workers don ’ t
compete with each other over differences in wages (often referred to as “taking
wages out of competition”) is to expand the bargaining structure to cover all
employers making the same products .

This process is well illustrated by John R. Commons ’ s account of early unionism
among Philadelphia shoemakers. Commons described how in the absence of
broad and aggressive unionism, shoemakers were harmfully affected by the expansion
of the shoe market (the product market) that had developed in the early 1800s
because of improved transportation. 26 As it became possible for nonunion shoemakers
outside the Philadelphia area to transport their products into the Philadelphia
market and sell them at a low price, the bargaining power of the unionized
shoemakers in Philadelphia was weakened. It therefore became important for the
Philadelphia shoemakers to organize their fellow shoemakers from the surrounding
areas and to see them covered under the same wage agreement to equalize and
raise the price of labor.

Unions that represent construction workers, for example, have a strong incentive
to equalize the wage costs among competitive bidders on the same product. Thus,
in the construction industry, unions prefer to bargain with the multiple employers
who are involved in a specifi c construction project. For example, where builders
across a city bid for the contract to build an offi ce building, the union representing
carpenters in that city will try to bargain in a structure that includes the contractors
across the city.

Employers Prefer Centralized Bargaining Structures in Some Cases

It should not be inferred that unions always gain (and employers always lose)
a tactical advantage in larger or more centralized bargaining structures. Employers
in the service industries (such as hotels, restaurants, laundries, and local truck
haulers) have sometimes found it to their advantage to form associations and to
bargain in multiemployer units.

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182 Part III. The Functional Level of Labor Relations

For instance, consolidating the bargaining function allows employers to avoid
being whipsawed by local union leaders. Union whipsawing occurs when a
union negotiates a bargain at one plant or company and then puts pressure on
the next plant or company to equal or surpass the contract terms just negotiated
at the fi rst site. The unions in the airline industry used the whipsawing strategy
until the late 1970s. By consolidating the bargaining structure, however, employers
can sometimes reduce the possibility of union whipsawing.

Centralized Bargaining Can Stabilize Competition

In some cases, a centralized bargaining structure can serve the interests of an
employer by stabilizing competition. Employers in small fi rms in a highly competitive
industry may fi nd it to their advantage to bargain centrally with a union because
it can reduce the union ’ s ability to whipsaw them. If a strike occurs, the centralized
bargaining structure also ensures that no single employer can gain an advantage
because all the fi rms are shut down simultaneously.

The benefi t an employer gains from centralized bargaining is well illustrated
by the apparel industry. Employers have come to depend on the stability the
apparel unions have historically provided in their highly competitive industry.
Labor costs are a signifi cant component of total costs to the many small fi rms in
the industry, and employers whose workers are unionized are receptive to the
wage standardization unions impose. Wage standardization ensures that competition
across fi rms does not depend on the ability of a fi rm to obtain low labor costs.
UNITE HERE, a union that represents hotel and apparel workers, for example,
likes the centralized bargaining structure because this structure helps it take wages
out of competition in local areas.

Public Policies

Another crucial determinant of bargaining unit structures is the structure of
the election unit that the NLRB determines in a representation election. If the
NLRB certifi es that the proper election unit is an industrial unit, for example,
this precludes a craft bargaining structure.

The infl uence of the NLRB is well illustrated by events at General Electric
(GE). During the 1960s, the unions representing GE workers attempted to engage
in coalition bargaining but met with strong resistance from the company. Coalition
bargaining would have meant that multiple unions representing GE employees
would have sat at the negotiating table even when the contract with only one
union was under discussion. The NLRB resolved this confl ict when it ruled that
unions could engage in coalition bargaining with GE. Other infl uential board
decisions have been made that limit an employer ’ s ability to withdraw from a
multiemployer bargaining unit until an impasse has been reached.

Some have argued that the NLRB has exhibited a strong preference for larger
bargaining units and thus has aided in the trend toward greater centralization.
George W. Brooks was one of the most articulate critics of the board ’ s preference
for large production and maintenance bargaining units and against craft autonomy. 27
He argued that the preference for centralization reduced employees’ freedom to

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Union Organizing and Bargaining Structures 183

choose among alternative unions and made it impossible for individual members
to effectively infl uence the direction of their unions. This, he believed, produced
undemocratic and unresponsive unions.

Organizational Factors

The organizational structures of employers have also generated pressures to
broaden the bargaining unit. In particular, the growth of large corporations and
the centralization of managerial decision making have led unions to seek centralized
bargaining structures. A fundamental principle underlying their efforts is that in
many cases unions will benefi t if the structure of bargaining is coterminous with
the level at which critical management decisions are made. That is, when manage-
ment is making most industrial relations decisions at the company level, then
unions would often prefer to have bargaining occur at this level as well.

Evolving Bargaining Structure in the Telephone Industry

The telephone industry illustrates how management ’ s organizational structure
has infl uenced bargaining structure as the industry has evolved over many years.
The gradual centralization of managerial decision-making power at AT&T that
occurred from the 1940s through the 1970s led, fi rst, to the merger of many of
the independent unions of telephone workers into the Communications Workers
of America (CWA), a national union, and then to the development of a centralized,
nationwide contract and bargaining structure. 28

After World War II, AT&T centralized its labor relations policy making in its
corporate headquarters in New York. In the 1950s and 1960s, however, the
CWA still bargained separately with each state affi liate of the Bell System. Con-
sequently, throughout the 1960s the union sought to bring about a more centralized
or national bargaining arrangement. Although the CWA succeeded in negotiating
a national contract in 1974, the breakup of the Bell System into regional telephone
companies in 1984 forced the union to return to a decentralized bargaining in
its negotiations with the new regional telephone companies. But even after the
breakup, because AT&T remained a company of national scope with a centralized
management, bargaining involving AT&T employees remained centralized at the
national level. Most of the newer entrants to the telecommunications industry
such as Sprint and Comcast have remained nonunion, and some former Bell
companies such as Verizon have avoided unions in their newer cellular divisions.
Today, not only is bargaining once again decentralized to the level of individual
fi rms, but also union contracts cover only a portion of the industry and in some
cases only a declining portion of employees in a fi rm. We will return to the
Verizon example in Chapter 8 .

The Infl uence of Diverse Labor and Management Interests

In order to participate in centralized bargaining, local union offi cials or managers
must give up some of their independent authority and abide by centralized
decisions. Needless to say, local unionists and managers are not always eager to
limit their own authority even when doing so may lead to a greater good for

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184 Part III. The Functional Level of Labor Relations

the whole organization. Having to conform to the wishes of a centralized authority
is less painful where there are common goals. Thus, another factor that infl uences
the emergence of centralized bargaining structures is the extent of diversity in
the objectives of local unions or individual companies and the degree to which
traditions exist that generate loyalty or rivalry among these units. Box 7.10 discusses
how a diversity of interests and other factors were overcome at Kaiser Permanente
where an interesting coordinated national bargaining structure was created.

BOX 7.10
Creating a National Bargaining Structure at Kaiser Permanente

After forming a partnership with Kaiser Permanente (KP), the coalition of
eight international and twenty-fi ve local unions faced the question of what
structure to propose in collective bargaining negotiations. In the past, each
local had negotiated a separate agreement. Since the various local unions
had gained experience working together in negotiating the initial partnership
agreement with KP, their inclination was to have the local unions negotiate
together and create a single national agreement with supplements that dealt
with specifi c local issues. But KP offi cials were strongly opposed to this,
fearing that a single common contract deadline would greatly increase union
bargaining power because of the threat of a system-wide work stoppage.

A joint task force was created to explore whether a new approach could
be developed. The initial idea that the union coalition favored and the task
force proposed was that the coalition negotiate a master national agreement.
When the coalition fi rst proposed this idea to KP management in 1999,
KP rejected it. Two of the concerns of KP management were that units
located in labor market areas outside California would be unable to pay a
national rate that was higher than existing rates in their region and that
negotiating a master agreement would create considerable vulnerability to
a system-wide strike. Since existing local agreements had different expiration
dates, management felt safeguarded from the possibility of a major strike
across the system.

After considerable discussion of these issues, facilitator John Stepp worked
with both KP leaders and with the union leadership to fashion an alternative
approach with various “gates” that the parties would move through before
negotiating a national agreement. Either side could exit the process as it
passed through these gates if they felt it was not moving in a constructive
direction.

One important “gate” was agreement in principle that local labor market
rates would continue to govern negotiations. Another critical step involved
training potential participants in national and local negotiations in the concepts
and skills of interest-based negotiations (IBN). Another key “gate” was that
either party could pull out of the process at any point. (As it turned out,

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Union Organizing and Bargaining Structures 185

neither party found it necessary to exercise this option.) KP and the union
coalition eventually agreed to a revised proposal that called for extensive
use of IBN problem-solving principles and the necessary training to prepare
the parties for this very complicated process; a single integrated national
negotiation that would allow local agreements to retain their respective
deadlines (thereby addressing one of management ’ s fears of a common
expiration date); and a series of decentralized task forces that would focus
on particular issues.

Seven bargaining task groups were established to address (1) wages, (2)
benefi ts, (3) work-life balance, (4) performance and work force development,
(5) quality and service, (6) employee health and safety, and (7) work organiza-
tion and innovation. Each group engaged in an interest-based process of
joint study, problem solving, and negotiations. These task groups reported
their recommendations to a centralized Common Issues Committee co-chaired
by union and management chief negotiators. In addition to negotiating a
national agreement, new local agreements were to be bargained, even though
most of the existing local agreements were not approaching their expiration
dates. The Common Issues Committee sorted through the recommendations
of the bargaining task groups and identifi ed those that needed to be forwarded
to local tables and those that would be applied uniformly across the system
and therefore needed to be negotiated centrally by the Common Issues
Committee. In the end, over 400 union and management negotiators were
trained in IBN and participated in these negotiations. An agreement was
reached in nine months and was ratifi ed by over 80 percent of the rank
and fi le.

Source : Robert B. McKersie, Susan Eaton, and Thomas A. Kochan, “Interest Based
Bargaining at Kaiser Permanente,” unpublished manuscript, MIT Sloan School of
Management, 2002.

Resolving Different Issues at Different Bargaining Levels

Even in centralized bargaining structures, many issues are negotiated on a local
basis. That is, in most cases the master agreement that is negotiated at the centralized
level covers only broad issues that are universal in scope, such as wage rates and
fringe benefi ts. Issues that are specifi c to a company or a plant, such as safety and
health conditions, seniority provisions, production standards, shift changes, and
overtime distribution, are often left to more decentralized levels of the bargaining
structure.

James W. Kuhn has shown that the structure of bargaining extends even farther
down to the level of the department or informal work group, where individual
supervisors and work groups often negotiate unwritten side agreements or in fact
ignore certain provisions of the contract. He called this activity fractional
bargaining . 29 One of the most important developments in recent years has been
the shift in bargaining down to lower levels.

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186 Part III. The Functional Level of Labor Relations

Pattern Bargaining

Pattern bargaining is an informal way of spreading the terms and conditions of
employment that have been negotiated in one formal bargaining structure to
another. It is an informal substitute for centralized bargaining that seeks to take
wages out of competition.

Students of collective bargaining fi rst began noticing the importance of pattern
bargaining after World War II. The War Labor Board (WLB) had encouraged
the development of pattern settlements in two ways: fi rst, by attempting to fashion
a national wage policy, and second, by making the comparison between proposed
wage settlements and other industry, area, and national settlements a prime criterion
for deciding wage disputes.

The WLB was not the only source of pattern bargaining. Even before centralized
bargaining appeared, and in some cases before unions even existed, steel companies,
among other concentrated industries, tended to adjust their wages in tandem by
following the lead of a principal fi rm, the U.S. Steel Corporation (now USX). 30
Once fi rms began following patterns in their pricing policies, it was only natural
that unions began seeking patterns in negotiated agreements covering these fi rms.

Patterns within a Firm

Employees who work in the same fi rm typically are very aware of what other
employees in the fi rm are receiving in the way of pay or fringe benefi ts and are
very jealous of any differences that emerge. The practice of internal promotion
(and other features of an internal labor market) within a fi rm serves to heighten
such comparisons. Pattern bargaining follows when one negotiation closely follows
the terms set in another negotiation. This is most common across the blue-collar
employees of the same fi rm, but it can also occur where unions represent both
blue- and white-collar employees.

One of the most complicated labor relations issues arises when two unionized
fi rms merge and need to integrate their compensation, seniority, and related
contract provisions. The airline industry has had considerable experience with
this process because of the mergers that have taken place among major airlines
in recent years. Integrating pilot contracts is especially complicated because fi rm-
specifi c seniority determines not only compensation but also rules about layoffs
and fl ight and aircraft assignments. Often this process has ended up in arbitration.
In some cases, such as the merger of US Airways and America West and then
the merger of US Airways and American Airlines, the process takes long enough
that unions from three or more airlines become involved.

The Trend toward Greater Decentralization in the
Structure of Bargaining

In the 1980s, some bargaining units began to decentralize their structures. The
steel industry is an illustration. At the beginning of the 1970s, the ten largest steel
companies negotiated as a group (although each company signed a separate contract).
But by 1982, the number of companies that participated in the industry association
had shrunk to eight. By 1986, the association had disbanded and bargaining with

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Union Organizing and Bargaining Structures 187

the remaining fi rms began to take place on a company-by-company basis. Although
the settlements that resulted after 1986 carried through many of the common
features of the earlier ones, signifi cant variations across the agreements were
introduced: in wages, fringe benefi ts, profi t sharing , work rules, and the extent
of employee participation in management decision making.

Since the mid-1980s, the number of fi rms in the coal and trucking industries
has declined substantially. In addition, there have been major declines in the
number of workers covered by multiemployer or industrywide contracts in these
industries. Some of the decentralization in bargaining structures has been caused
by industry deregulation. By far the most signifi cant effects of government policy
on bargaining structures have come in recent years from the deregulation of
product markets in trucking, airlines, and communications. In all of these cases,
deregulation has opened the industry to pay wages and benefi ts below the
unionized rates in the industry and has put pressures on unionized fi rms to seek
labor contract terms in ways that will match the practices of the new competitors.
As a result, fi rms in all three of these industries have attempted to decentralize
their bargaining structures and gain more fl exibility to compete with new, often
lower-paying, companies that are entering the industry. As mentioned earlier, in
trucking, before the industry was deregulated in 1980, the Teamsters had negotiated
a national master freight agreement that covered intercity and interstate truck
drivers. All the major trucking companies that hauled freight between cities and
states or across the country were covered by this single national contract.

After deregulation, however, there was an infl ux of new nonunion fi rms and
small independent contractors in the full-truckload portion of the industry. In
addition, intense price competition emerged among the fi rms that remained highly
unionized (essentially the “less than truckload” businesses that required large
networks of terminals). The net result of these pressures was considerable decen-
tralization in the bargaining structure. Several full-truckload companies broke out
of the master freight structure and negotiated separate contracts with different
wage payment and pension arrangements. At its peak, the Teamsters’ National
Master Freight Agreement covered over 800 companies and 450,000 workers.
By 2016, this number had shrunk to less than a dozen companies.

In the airline industry, deregulation had the effect of weakening the pattern
bargaining that had previously characterized negotiations with American, United,
Northwest, and other major airlines. Under increased competitive pressure, pattern
bargaining gave way to a more varied pattern of company-specifi c adjustments,
including two-tiered wage agreements (that is, wage settlements that lowered
the starting pay rates of future hires), changes in hours worked, wage cuts,
profi t-sharing plans, and employee memberships on company boards of
directors. 31

Summary

This chapter discussed union organizing and bargaining structures. These two
central issues emerge early in the bargaining process. Union organizing determines

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188 Part III. The Functional Level of Labor Relations

whether there will be bargaining in the fi rst place, then the attention of the parties
turns to the structure of bargaining.

An organizing campaign is initiated by union organizers, who typically include
some full-time paid organizers and shop-fl oor employees. To receive authorization
from the NLRB for a representation election, 30 percent of the election unit
must sign authorization cards. Management typically launches a countercampaign
in which it tries to convince employees not to vote for union representation.
The NLRB regulates conduct during this organizing campaign by limiting union
access to the work force and use of private meetings with workers (so-called
captive-audience speeches) . There has been much debate in recent years over
whether the NLRB has effectively maintained laboratory conditions in election
campaigns.

The NLRB plays an important role in the decisions that are made about the
appropriate election unit. The board takes into account both the degree to which
employees have common interests and the administrative concerns of management.
There is much strategic interplay in this process as the union and management
try to shape an election unit in ways that increase the likelihood each will win
the eventual election. Unions have not fared particularly well in their organizing
efforts since the early 1980s. Management has developed personnel policies designed
to weaken the appeal of unions and has conducted aggressive countercampaigns
against unionization. But unions have not been passive either; they have turned
to corporate campaigns and other new organizing tactics.

Bargaining structure determines which unionized employees are covered by
a collective bargaining agreement. The two key dimensions are the scope of
employee interests covered—whether craft or industrial—and the degree of cen-
tralization in fi rm coverage—which range from single-plant to multiple-company
agreements.

Compared with bargaining structures that exist in other countries, bargaining
structures in United States are relatively decentralized. Since the 1980s, previously
centralized bargaining structures in trucking, steel, coal, and many other industries
have either fragmented or collapsed.

Understanding the consequences of successful union organizing and the role
the structure of bargaining plays requires a more detailed account of how collective
bargaining agreements are negotiated. The next chapter turns to that issue.

Discussion Questions

1. Briefl y describe the organizing process.
2. What are some common strategies management uses to keep unions out of

the company?
3. Defi ne what the term bargaining structures means and discuss some of the

determining factors of bargaining structures.
4. What is pattern bargaining and how does it affect informal bargaining

structures?

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Union Organizing and Bargaining Structures 189

5. Why has collective bargaining in some fi rms and industries in the United
States become more decentralized in recent years?

6. Explain what the term representation gap means.

Related Web Sites

Justice for Janitors:
http://socialjusticehistory.org/projects/justiceforjanitors/timeline

Graduate student organizing at Columbia University:
http://www.columbiagradunion.org/

Suggested Readings

Bronfenbrenner , Kate , Richard W. Hurd , and Ronald L. Seeber , eds . Organizing to Win: New
Research on Union Strategies . Ithaca, N.Y. : ILR Press , 1998 .

Freeman , Richard B. , and Joel Rogers . What Do Workers Want? Ithaca, N.Y. : Cornell University
Press , 1999 .

Turner , Lowell , Harry C. Katz , and Richard W. Hurd , eds . Rekindling the Movement: Labor ’ s
Quest for Relevance in the 21st Century . Ithaca, N.Y. : ILR Press , 2001 .

Notes

1. It is also possible for the NLRB to order an employer to bargain with a union as a remedy
for a representation election that involves extensive unfair labor practices on the part of the employer.
The NLRB has not issued this sort of “bargaining order” very often.

2. The NLRB can eliminate this practice if it interferes with the operation of the business.
3. “NLRB Conducted More Elections in 2015 but Percentage of Union Wins Held Steady,”

Daily Labor Report, March 1, 2015.
4. Ibid.
5. Research also has shown that national union characteristics play a role in success in union

certifi cation elections. More specifi cally, larger unions with greater internal democracy, less centralized
bargaining, and lower strike activity have greater success in organizing both blue- and white-collar
workers than other unions do. See Cheryl L. Maranto and Jack Fiorito, “The Effect of Union
Characteristics on the Outcome of NLRB Certifi cation Elections,” Industrial and Labor Relations
Review 40 (January 1987): 225–240.

6. A 1997 survey found that 47 percent of nonunion workers expressed a desire to join a union.
See Seymour Martin Lipset and Noah M. Meltz, “Canadian and American Attitudes toward Work
and Institutions,” Perspectives on Work 1, no. 3 (1998): 14–19.

7. Myron Roomkin and Hervey Juris, “Unions in the Traditional Sectors: Mid-Life Passage of
the Labor Movement,” in Proceedings of the Industrial Relations Research Association, December 28–39,
1977 , ed. Barbara D. Dennis (Madison, Wisc.: Industrial Relations Research Association, 1978),
212–222.

8. William N. Cooke, Union Organizing and Public Policy: Failure to Secure First Contracts (Kalamazoo,
Mich.: W. E. Upjohn Institute for Employment Research, 1985).

9. John Paul Ferguson, “Eyes of the Needle,” Industrial and Labor Relations Review 62 (January
2008): 3–21.

10. Richard B. Freeman and Morris M. Kleiner, “Employer Behavior in the Face of Union
Organizing Drives,” Industrial and Labor Relations Review 43 (April 1990): 351–365.

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http://www.columbiagradunion.org/

http://socialjusticehistory.org/projects/justiceforjanitors/timeline

190 Part III. The Functional Level of Labor Relations

11. “NLRB Conducted More Elections in 2015 but Percentage of Union Wins Held
Steady.”

12. A list of corporate campaigns and analysis of their success is provided in Paul Jarley and Cheryl
Maranto, “Union Corporate Campaigns: An Assessment,” Industrial and Labor Relations Review 43
(July 1990): 505–524.

13. Kate Bronfenbrenner, “The Role of Union Strategies in NLRB Certifi cation Elections,”
Industrial and Labor Relations Review 50 (January 1997): 195–212.

14. Adrienne E. Eaton and Jill Kriesky, “Union Organizing under Neutrality and Card Check
Agreements,” Industrial and Labor Relations Review 55 (October 2001): 42.

15. Ibid., p. 47.
16. Jody Hoffer Gittell, The Southwest Airlines Way (New York: McGraw Hill, 2004).
17. Harry C. Katz, Rosemary Batt, and Jeffrey H. Keefe, “The Revitalization of the CWA:

Integrating Collective Bargaining, Political Action, and Organizing,” Industrial and Labor Relations
Review 56 (July 2003): 573–589.

18. “AFL-CIO Strategic Campaign to Boost Organizing at Comcast, Verizon Wireless,” Daily
Labor Report , March 5, 2004, A-12; “CWA Organizes More than 11,000 Workers at Former AT&T
Wireless under Cingular Pact,” Daily Labor Report , November, 28, 2005, A-8; “Verizon Neutrality
Pact with CWA, IBEW Expires after Four Years; No Units Organized,” Daily Labor Report , August
24, 2004, A-12.

19. Ibid.
20. Freelancers Union, https://www.freelancersunion.org/ .
21. Restaurant Opportunities Center United, http://rocunited.org/ .
22. “About,” Working America , http://www.workingamerica.org/membership/about .
23. SherpaShare, https://www.sherpashare.com/ .
24. Coworker.org , https://www.coworker.org/ .
25. The Workers Lab, http://theworkerslab.com/ .
26. John R. Commons, “American Shoemakers, 1648–1895: A Sketch of Industrial Evolution,”

Quarterly Journal of Economics 25 (November 1919), reprinted and revised in A Documentary
History of American Society , vol. 3, ed. John R. Commons (New York: Russell and Russell, 1958),
18–58.

27. George W. Brooks, “Stability versus Employee Free Choice,” Cornell Law Review 61 (March
1976): 344–367.

28. Jeffrey Keefe and Rosemary Batt, “Telecommunications Services: Union-Management Relations
in an Era of Industry Re-Consolidation,” in Collective Bargaining: Current Developments and Future
Challenges , ed. P. Clark, J. Delaney, and A. Frost (Champaign, Ill.: Industrial Relations Research
Association, 2003).

29. James W. Kuhn, Bargaining and Grievance Settlements (New York: Columbia University Press,
1962).

30. George Seltzer, “Pattern Bargaining and the United Steelworkers,” Journal of Political Economy
59 (August 1951): 322.

31. Peter Cappelli, “Competitive Pressures and Labor Relations in the Airline Industry,” Industrial
Relations 24 (September 1985): 316–338.

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Home

http://rocunited.org/

http://www.workingamerica.org/membership/about

https://www.sherpashare.com/

https://www.coworker.org/

http://theworkerslab.com/

www.Coworker.org

Module2: The Unionization Process and

Negotiating the Collective Bargaining

Agreement

Topics

1. Union Organizing and Election Campaigns
2. The Negotiations Process
3. Negotiating Economic and Administrative Issues
4. Resolving Negotiations Impasses

1. Union Organizing and Election Campaigns

The unionization process involves union organizing and election campaigns. The NLRB has

adopted a step-by-step procedure for authorizing and conducting elections by employees on the

question of union representation. Management and union officials, as well as employees, enjoy

specific rights during these campaigns, but these rights have limits.

Typically the union organizer does not create the climate for unionization. Rather, it is a group of

dissatisfied employees that creates a climate ripe for unions. The successful organizer can

generate support for the union by capitalizing on this dissatisfaction. Unions use several tactics,

including house calls, small group meetings, leafleting, and the formation of an employee-led

organizing committee, to increase employee involvement and support. Unions are increasingly

turning to the Internet and e-mail as additional means to recruit members.

For the union and its supporters, the ultimate goal is to achieve recognition or certification.

Only when the union becomes formally recognized by the company or certified by the NLRB

can it insist upon good-faith negotiations with the employer. Recognition/certification may occur

in one of the following three ways:

1. secret ballot election conducted by the NLRB
2. an employer’s voluntary recognition of the union when it finds that the union is

acceptable and it is evident that support is widespread among employees (in which case

no campaign is called for)

3. summary direction of the NLRB (supported by the Supreme Court in NLRB v. Gissel
Packing Co.), where the board finds that a fair election is impossible because of the

employer’s grave and numerous unfair labor practices

Congress has charged the NLRB with determining which employees are within the bargaining

unit. In making this determination, the NLRB evaluates whether the group the union is

attempting to organize possesses a community of interest. Shared working conditions, shared

https://leocontent.umgc.edu/content/umuc/tus/hrmn/hrmn362/2222/modules/m2-module-2/s3-commentary.html?ou=626170#Union_Organizing_and_Election_Campaigns

https://leocontent.umgc.edu/content/umuc/tus/hrmn/hrmn362/2222/modules/m2-module-2/s3-commentary.html?ou=626170#The_Negotiations_Process

https://leocontent.umgc.edu/content/umuc/tus/hrmn/hrmn362/2222/modules/m2-module-2/s3-commentary.html?ou=626170#Negotiating_

https://leocontent.umgc.edu/content/umuc/tus/hrmn/hrmn362/2222/modules/m2-module-2/s3-commentary.html?ou=626170#Resolving_Negotiations_Impasses

supervision, and common personnel rules are all indicators that a group of employees shares a

community of interest.

Other groups are excluded from union representation by law and may not be part of the

bargaining unit. Supervisors and managers are among those who are prohibited from being in the

bargaining unit. The same is true for confidential employees, who may fall into this category

because of family ties to the business owner or because of the nature of their job responsibilities.

As an example, human resources staff would generally qualify as confidential employees and

thus be barred from union representation.

Voluntary recognition and summary NLRB direction are both very rare. The normal method is a

secret ballot election conducted on-site by NLRB agents. In the days and weeks leading up to the

election, the union may hold rallies, contact employees via e-mail, and use other means to

persuade employees to authorize the union to represent them.

Employers are free to respond to the union’s campaign. Companies may hire labor relations

consultants and hold meetings in the workplace emphasizing the disadvantages of unions. Most

employers also emphasize the current benefits employees enjoy without the necessity of paying

union dues and point out the potential for economic hardship should a strike occur. An employer

may launch a vigorous campaign to dissuade employees from voting for a union, so long as its

message is free from threats, promises, or coercion.

Ultimately, each employee in the bargaining unit decides individually yes or no concerning the

question of having a union. A majority of those voting will determine the outcome. Some may be

convinced that the union is needed to communicate with and persuade management on issues,

benefits, and problems in the workplace. Others may be driven by a need to participate and

identify with a group. Others may yield to peer pressure to join. Some may simply believe that

unions are good and should be supported. Of course, some will be indifferent or opposed to the

union or may fear management retribution.

Consistent with NLRB rulings, if employees within the proposed bargaining unit vote “no

union,” the employer is insulated from another election for a year. If the union wins, the NLRB

certifies it as the sole and exclusive representative of all employees in the bargaining unit,

regardless of union membership or voting record. The union is protected for a year from

challenge by another union (referred to as a raid) for a year. If the union can negotiate a contract,

this protection continues during the term of the agreement for up to three years.

In determining whether the outcome of the election will be validated, the NLRB considers the

“totality of conduct” of each party during the preelection period. Employers conducting meetings

with employees (called “captive audience” meetings) cannot do so within 24 hours of the

election. Threats, coercion, and promises of benefits by employers are forbidden, but employers

may express opposition to the union and convey facts to support their views. Polling workers

concerning their union sentiments―pro or con―is permitted. Employers must be cautious,

however, not to do so in a threatening or intimidating fashion.

Note that even after certification, a union can later lose its status by being decertified in a secret

ballot election. When a petition for decertification is filed by a group of disaffected employees,

the board initiates a process similar to the initial certification election process.

2. The Negotiations Process

Once the union is recognized or certified, its first order of business is to initiate negotiations with

the employer. The union is eager to complete negotiations for many reasons. Primarily, it must

demonstrate to its supporters that their investment in the union was warranted. An agreement

with the employer guaranteeing enhanced wages or benefits, a workable grievance procedure, or

stronger safety rules may serve as evidence of the union’s worth. Management has more interest

in maintaining the status quo. Finalizing an agreement with the union is likely to lead to higher

wage and benefit costs as well as more formal work rules.

Regardless of the parties’ attitudes, the NLRB requires both parties to bargain in good faith and

to reduce their agreement to writing when it is reached. This requirement does not mean that

either party must reach a settlement or must agree to the other’s proposal(s). It does mean that

both parties must demonstrate a sincere and honest resolve to reach agreement.

Bargaining is a give-and-take process. In the vast majority of cases, this process results in a

voluntary agreement between union and management. Most of us are familiar with the traditional

bargaining model involving tradeoffs, compromises, and even bluffing. It is this traditional

model that continues to characterize most union-management negotiations. However, unions and

employers are engaging increasingly in newer forms of negotiation such as win-win bargaining

and interest-based bargaining (IBB). These types of negotiation are grounded in the notion that

the union, employer, and employees have many interests in common. These forms of negotiation

deemphasize the adversarial relationship between the parties and encourage them to seek

solutions based on consensus.

Under these newer forms of negotiation, parties agree to discard the win-lose mentality and

create a cooperative environment along with appropriate new procedures that enhance their

ability to recognize and appreciate each other’s interests. From there, they attempt to fashion an

agreement that fulfills those interests to the maximum extent possible. Early experience appears

to be yielding positive results. Whether these approaches will survive over the longer term

remains to be seen. In the meantime, the longer-standing traditional form of bargaining will

continue to predominate.

Whatever style or approach may predominate, many aspects of bargaining continue unchanged.

During the pre-negotiations phase, each party must assemble a bargaining team and will often

informally survey other unionized employers in an effort to gauge contract settlements in the

same economic sector or geographic area. Before negotiating in earnest, the two sides will

usually exchange written proposals. As the process continues, they will develop

counterproposals, offer compromises, and sharpen their strategy and tactics in an effort to

achieve a satisfactory settlement.

NLRB rulings and the general requirement for good faith also play an important role in

negotiations. Among these requirements are the following:

• Both sides must be willing to meet at reasonable times and locations to negotiate.

• The employer must be willing to give the union information it may need to bargain

intelligently. This information could include, for example, salary data, health benefits

costs, or overtime figures.

• The use of trickery, false statements, or other acts of bad faith can lead to intervention by

the NLRB.

• Once a final agreement has been reached, it must be committed to writing and signed by

both sides.

3. Negotiating Economic and Administrative Issues

When most people think of a collective bargaining agreement or union contract, the first thing

that comes to their mind is wages. Indeed, establishing wage rates for employees in the

bargaining unit is often the most contentious issue the parties must resolve. Many people are

surprised to learn that, on average, unionized workers are paid much better than their nonunion

counterparts in the same industry. In the retail sector, for example, the weekly earnings of

unionized workers are nearly 20 percent greater than those of workers in nonunion firms. In

construction, the gap is even more dramatic, with the unionized workforce earning a premium of

nearly 40 percent (U.S. Department of Labor, 2003, p. 1). In this section, we look at some of the

major wage and benefit issues that arise in collective bargaining.

Economic Issues

Many factors influence negotiated wage levels in union agreements. Some of these factors are

intuitive. For example, how financially healthy is the company? What kind of wage increase can

it afford to pay and still remain competitive? Other factors may be less apparent. How labor

intensive is the involved industry? In industries that can leverage technology, such as the

pharmaceutical and energy industries, a relatively small number of workers may be able to

produce a very valuable product. In this type of product market, it may be realistic to pass wage

increases on to consumers in the form of higher prices.

Labor Costs

At the other extreme, consider enterprises such as the United Parcel Service (UPS) and Wal-

Mart. They are two of the largest employers in the United States. Labor costs account for a huge

proportion of the total operating budget for each firm. Increased wages can severely undercut

profit margins or force increased prices to compensate for the costs associated with higher

wages. Perhaps that explains why bargaining between UPS and its union is often so intense.

Package delivery rates and labor costs are closely linked. A new, more costly labor agreement

often prompts an increase in the cost of a parcel delivery. It also helps to explain one of the

reasons why Wal-Mart is vigorously resisting unions. Even a slight increase in wages could

upset Wal-Mart’s entire profit margin and make it more difficult to maintain its dominant

position as a low-price leader.

Wage Surveys

To assist them in negotiating economic issues, virtually all firms use wage surveys. Simply

stated, they gather data about the wages and benefits being paid by their competitors. These data

are invaluable in crafting and responding to bargaining proposals. Nonunion firms also conduct

such surveys. They are less concerned with any union demands but simply wish to benchmark

their wages against those of competitors. Like companies, national and international unions track

wage settlements throughout their respective industries. These data are then shared with their

affiliated local unions so that they too can negotiate more intelligently.

Profit Sharing

Yet another feature of economic bargaining is a variety of bonus, profit sharing, gain-sharing, or

performance payments. Although different labels are used for these programs, each involves

some type of payment to employees over and above their basic pay. The parties’ negotiated

language may link the timing and amount of these payments to such factors as productivity

increases, cost savings, corporate profitability, or even employee longevity.

Fringe Benefits

Finally, another economic matter addressed in the vast majority of union contracts is employee

benefits, often referred to as fringe benefits. Benefits can run the gamut from health care to

pensions, paid time off to tuition reimbursement. However, in recent years, two important trends

related to health care and to pensions have emerged in negotiations over employee benefits.

Health Care

The first trend is closely tied to the continuing rise in health care costs. Unionized firms are not

immune from these escalating costs, and companies are taking a strong position with their unions

when it comes to cost sharing. They are making it clear they cannot continue to absorb all of

these increased costs. Therefore, employee co-pays must be raised, employees must pay a higher

share of premiums, or plan benefits must be reduced, or all of these.

This is a hard pill for unions to swallow, because they struggled for so many years to achieve

these benefits. There is a definite trend in union agreements toward employees absorbing some

of the additional costs associated with escalating health care costs.

Pensions

A second and even more dramatic trend has emerged in the area of employee pensions.

Traditional, company-funded pension plans, known as defined-benefit plans, are rapidly

declining in popularity. Employers are shifting to 401(k)-style plans. Under such plans, the

company does not guarantee a specific benefit upon retirement. Rather, both employer and

employee contribute to the plan, with the employee making basic decisions about how to invest

the funds. Unlike the traditional plan, these newer plans are premised upon a substantial

contribution by the employee. Equally important, the employee’s ultimate benefit amount will

not be linked to years of service. Rather, it will depend upon the timing and amount of

contributions, as well as the employee’s ability to make sound investment decisions.

Noneconomic or Administrative Issues

In addition to topics such as wages and benefits, the parties also bargain over a wide array of

administrative or noneconomic issues as well. Although these issues may have less visibility,

they often have a profound effect on both the health of the enterprise and employees’ long-term

job security. One example is found in clauses that stabilize or compel union membership (e.g.,

union shop) and guarantee payment of dues by its members through payroll deduction dues

check-off). Another example is seen in outsourcing or subcontracting clauses in labor

agreements, which have taken on added importance in recent years.

Outsourcing

To pare costs, many firms have decided to send specific tasks or functions to outside vendors.

Sometimes this outsourcing even involves sending work overseas. During the bargaining

process, unions will attempt to insert language in the contract that restricts, or prohibits entirely,

the company’s ability to outsource work. Understandably, the union wishes to keep as much

work in-house as possible. Companies may resist restrictions on their ability to contract out

work, believing that they need maximum flexibility to remain competitive.

Seniority

Another noneconomic issue that is addressed in most collective bargaining agreements is

seniority. An employee’s cumulative years and months of company service may be a factor in a

wide range of human resources decisions. For example, in the event of a layoff, those with the

most seniority may retain their jobs, whereas those with less seniority may be separated.

Seniority may also play a role in promotion decisions. Some contracts require that if two

employees meet the basic qualifications for a job, the one with the most seniority must be

selected. The same may be said for shift work. Seniority is often used as the basis for selecting

the shift to which an employee will be assigned. Likewise, when it comes to choosing preferred

vacation periods, the contract may grant a preference to those with the most seniority.

4. Resolving Negotiations Impasses

Labor-management negotiations seldom lead to a strike. In recent years, the frequency of strikes

in the United States declined rapidly. Indeed, a high percentage of labor contracts are negotiated

or renegotiated without the parties reaching a bargaining impasse of any kind. Students of labor

relations must understand, however, the mechanisms for resolving those impasses that do occur.

Strikes, initiated by the union, and lockouts, initiated by employers, receive wide coverage in the

media. You must also understand the less disruptive and more structured processes of third-party

mediation and arbitration. Ideally, the parties will opt to engage in a cooperative relationship in

the hope of reducing conflict.

Causes of Impasses

Impasses occur when union and management are unable to reach a voluntary agreement

concerning a new collective bargaining agreement. Negotiations typically involve discussions of

a wide range of topics. As described in topic 3, issues open for negotiation may include both

economic and noneconomic issues. An impasse may result when the parties have reached a

stalemate over a single subject, e.g. wage rates, or when disagreements linger regarding several

subjects.

Strikes

Each side in the negotiations possesses an important economic weapon, which it may use in an

effort to break the impasse. The union may call for a strike of its members to pressure the

employer to accept its terms for a contract settlement. Typically the union will conduct a vote

among its membership to decide whether to authorize a strike and then inform the employer of

the results of the vote. But unions do not engage lightly in strikes. Obviously, those in the

bargaining unit do not receive their wages during a strike, and there is no guarantee that the

employer will yield to union pressure and accept its terms for settlement.

A strike can cause long-term damage to the company, such as loss of market share to

competitors. This loss could adversely affect employees’ long-term job security. Finally, a strike

can engender bitter feelings and resentment between workers and managers. This type of open

conflict may seriously harm morale.

Lockouts

The counterpart to the strike is the lockout. It is management’s primary economic weapon in

attempting to force a contract settlement. In a lockout, management does precisely that. It locks

its doors and refuses to allow the employees entrance. Paychecks are cut off, and the employer

ceases operations. The theory behind a lockout is that once employees experience a few days, or

weeks, without their paychecks, they may reconsider the employer’s offer to resolve the

collective-bargaining impasse.

Obviously, a lockout is an extreme action on the part of a company. By closing its doors and

ceasing operations, it is cutting off its own sources of revenue. Unless the company has

stockpiled goods in anticipation of a labor dispute, it is, in effect, starving itself economically. To

even consider a lockout, the employer would have to be convinced that employees and the union

would soon see the wisdom of its settlement offer.

Mediation

The strike and the lockout are clearly the chief economic weapons of labor and management

respectively. However, the vast majority of impasses are resolved without resort to such extreme

measures. The parties often rely upon mediators to help them resolve impasses. Congress has

charged a small federal agency, the Federal Mediation and Conciliation Service (FMCS), with

providing expert mediation services, without cost, to assist in resolving impasses.

Mediators are expected to possess a high level of knowledge concerning the labor relations

process, economic and industry trends, and problem-solving techniques. A mediator is not

empowered to impose any particular settlement upon the parties. Rather, the mediator is there to

help overcome communication problems, suggest solutions, and prod the parties toward

compromise.

Arbitration

Another means of resolving impasses is referred to as interest arbitration. It is used primarily in

the U.S. Postal Service and in the rail and airline industries. It is much less popular in other

sectors of the economy. In interest arbitration, the parties jointly select a neutral person to hear

and weigh the bargaining positions of each side. Thereafter, the interest arbitrator makes a final

and binding decision as to what should be included in the negotiated agreement.

Interest arbitration is a way to avoid the conflict and hard feelings often associated with the strike

and the lockout. Nevertheless, it is often criticized on the basis that arbitrators “split the

difference.” Critics allege that rather than urging the parties closer and closer to a voluntary

agreement, this strategy causes each side to take a more extreme position. A second criticism is

that it eliminates some of the parties’ motivation to reach a voluntary settlement on their own.

One side or the other may believe that it can gain a better settlement through arbitration than it

can through agreement with the other side.

National Emergency Strikes

Finally, a few labor disputes are regarded as adversely affecting the national economy. For

example, if a strike threatened to shut down coast-to-coast rail service or if a dockworkers’ strike

cut off many of the imported goods coming into the United States, the national economy would

likely be adversely affected. These rare occurrences are referred to as national emergency

strikes.

Congress has passed legislation granting the president special powers where a work stoppage

threatens the national interest. Under the Railway Labor Act, the president may order a “cooling-

off” period to temporarily block the strike and may even propose that Congress enact special

legislation imposing contract terms. A similar process is contained in the National Labor

Relations Act. The president may appoint a special Board of Inquiry to investigate the dispute

and may authorize the attorney general to go into federal court and seek an injunction against the

strikers.

References

U.S. Department of Labor. (February 25, 2003). Union members in 2002. News release.

[Online]. Available: ftp://ftp.bls.gov/pub/news.release/History/union2.02252003.news