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An Intriguing Year for Big Labor in 2014 2/25/2014

By: Ricardo Torres

2014 is off to a fast start with the National Labor Relations Board (NLRB)

I have always said that the accumulation of Board (NLRB) decisions would eventually come to fruition, and it should come as no surprise to anyone that the expedited election process is back on the table. Current labor leaders have an open door relationship with our lawmakers and the White House. Union leaders continue to lobby for major changes in labor law to give the unions an added edge when it comes to organizing workers and increasing their membership numbers.

When I was a union official, it was strategy to never give up on any cause. We would continue to beat the drums with a "victory by any means necessary" philosophy. We weren't going away with our tails between our legs just because we lost a battle. Years ago, while I was still a labor union lobbyist in Washington, D.C., I remember when we were pushing an initiative to develop and implement a Canadian-style labor election process, and it looks like the labor unions' wish is finally getting close to realization years later. Unions on the national and international level looks years into the future and plan to make strategic changes over the long haul.

To truly understand how labor unions think. you need to understand the complexities and layers of corporate unionism, where their core beliefs evolve from, and their pragmatic view of what actions are needed to achieve their goals. Unions are based on the concept of anarcho-syndicalism, which is a branch of anarchism that focuses on the labor movement. (Syndicalism is a French word meaning "trade unionism"; hence, the "syndicalism" qualification.) Anarcho-syndicalists view labor unions as a potential force for revolutionary social change, replacing capitalism and the State with a new society democratically self-managed by workers. Syndicalism is a revolutionary trade unionist movement advocating control of government and industry by trade unions. Their goals are designed to be achieved through direct action, such as general strikes and sabotage. National unions are almost always centralized power-based institutions with all of the true power sitting in the hands of the big labor leadership. The national union management teams set the goals, but it is the radical core that carries out the orders and polices the union locals and rank and file members. This radical core is made up of those who make the true sacrifices to advance the unions' goals.

Growing the Union Is One of their Goals

The biggest challenge for unions to grow their membership base is not so much winning elections; unions are already winning a large majority of elections. According to statistics from the NLRB, unions win between 55-80% of their elections, depending on industry. The average win rate for unions across all industries in the private sector is approximately 65%.

The unions' problems lay in successfully obtaining their first contract after winning an election. If the union wins an election, but fails to get a first contract, they end up losing members, either through the decertification process, or simply by the union walking away from the table and leaving the employees with no idea of how to proceed with management or rebuild a good working relationship. This is one of the reasons organizing departments try to organize companies through card check campaigns or neutrality agreements vs. traditional NLRB-held elections. The problem with this card check/neutrality tactic in organizing is that it usually requires some form of leverage to convince a company to conduct this process: the unions present a direct threat to the long-term profitability and/or the ability to stay in business of their target. This is not a moral issue to unions, rather it is simply a time consuming and costly obstacle.

During my capacity as a national organizing director within the union, we had to file quarterly organizing reports which provided us with the average cost of new members; it was not unusual in 2001 for the cost to be as much as $3,500 to $4,500 per member. This rise in cost is exactly why the unions are salivating over shortened election cycles; along, of course, with an increased ability to win elections.

Shortened Union Election Cycles

So how do unions use a reduced elections cycle to enhance their organizing gains? First, you need to understand what wins union organizing campaigns.

As a union organizing director, I directed more than 1,000 organizing campaigns and I knew that time was always the union's enemy. The goal was to only choose companies (targets) that were susceptible to union attacks. The employees had to have an emotional investment in any campaign; campaigns could not be won if the employees simply wanted more money. The union had a list of "must have" issues that had to be present or perceived as present by the workers for us to accept any request by employees for help. Such issues included mistreatment by management, unfairness, lack of communication, lack of trust, etc. The union knows and understands that keeping emotional issues fresh in the minds of the workers and making them hot, angry, and distrustful towards management is the key to winning a campaign. The longer a campaign lasts, the harder it is to keep the employees energy levels high enough to win.

With a short election cycle, the unions will be able to sprint to an election in a fast and furious manner versus maintaining a marathon-like pace. The cost of elections will be reduced by about half, so it will enable the unions to concentrate more resources on their target. The shortened election cycle will provide management with less time to respond to and deflect union smear attacks. Shortened election cycles will also enhance the unions' ability to use distraction tactics to better preoccupy and scramble company’s resources.

Ultimately, the more damage a union can inflict upon an employer, the better their chances of obtaining a first contract. When I was still a union official, I was a supporter of playing hardball with management; I made it my mission to bleed employers of their resources and to put enough pressure and discomfort on them during the campaign that the first contract would be something that the company would look forward to putting behind them quickly out of fear of the union further destroying their business. Employers were eager to sign a contract so that they could focus on operations, rather than fight the union's demands in a long, unsuccessful negotiation period and attempt to give the employees a desire to decertify the union.

Micro Unions or Micro Units

Another very probable ruling which is about to be decided and should be finalized very soon is the "micro union". This will further complicate management’s ability to fight off union organizing attempts.

In August of 2013, The Sixth Circuit Court of Appeals upheld a 2011 ruling by the National Labor Relations Board. In that case, known as Specialty Healthcare, the NLRB sided with a union that wanted to try to organize a group of nursing assistants, despite the employer’s argument that other nonprofessional employees should be included. The board said that if an employer thinks workers have been improperly excluded from a union-proposed bargaining unit, the onus is on the employer to show that those workers share an “overwhelming community of interest” with the included workers.

Richard Griffin, the general counsel of the National Labor Relations Board (NLRB), will soon be issuing a memorandum that presumably will announce how he intends to enforce a NLRB Board decision that threatens to fragmentize the workplace, increase disputes and dramatically increase employers’ labor relations costs. Unions will be able to cherry pick the workers it wants to organize.

Think about it; let’s look at a hospital as a demonstration: There may be one department on one floor in the hospital that desperately wants a union. The rest of the hospital has no interest in becoming union members. The unions could simply get cards signed by the nurses on that one particular floor or in that one particular unit and successfully win a campaign. Let’s dig deeper. Now another unit and a different floor decide to talk to a different union and they successfully organize. Now you have two separate union contracts to negotiate. But what if you end up with 10 contracts or more? What happens to labor relations costs in this hospital? What happens to morale once nurses start comparing contracts? How many more HR professionals are going to be needed to handle situations like this? How do you work with the management team to make sure they are not confusing contract language which could lead to contract grievances? How do you do what most hospitals do and lend nurses to other departments when short staffed? This could become a nightmare.

It is also important to remember that the specialty healthcare rule does not just apply to “healthcare”. The union has already won this battle with a campaign against Macy’s in New York who had numerous departments within the store and, based on the fact that they sold different merchandise, the union was awarded approval of their units rather than having to represent all sales people. Since 1937, a simple “community of interest” was the standard for defining what a bargaining unit would include. The NLRB now has wide discretion on what workers constitute a bargaining unit. The unions know the ability to organize micro units is an enormous advantage and will continue to leverage this ruling as they concentrate on future organizing efforts.

Concealing union activity from management is important for the union to win. It becomes much easier to conceal union activity when you are only dealing with a small fraction of workers as in the above scenario. Micro unions will provide opportunities to unions to win even more than they do now. Keeping workers focused on winning and concealing organizing activity is paramount to the success of any campaign, remembering the core principles of winning for unions:

  • Assure the workers are truly ready to fight management
  • Issues are deeply personal to the workers
  • Verify the company is susceptible to attack with weak front line supervisor relations, top heavy management, and/or ethical/financial weaknesses

Whether the union is trying to get a card check/ neutrality agreement or a traditional NLRB vote, the basics remain the same. The unions will create havoc, disrupt the facility, keep workers angry and destroy any faith in or relations with management. Without these fundamental scenarios taking place, the union’s aggressions will likely fail. The Micro Unit ruling will greatly increase the ability of unions to inflict damage and soften up its targets. The ability to frustrate management by using up its resources (both financial and personnel), or even just the threat of a protracted attack by unions slowly cherry picking units from their workforce, will keep many executives awake at night.

At one time, I was in charge of working with metropolitan CLC’s across the country to collaborate on both long term organizing strategies and political actions. If we had this Micro Union tool at that time, we could have slowly dissected our targets piece by piece. By going after smaller units, we would have increased our win ratio and had a more cohesive voting block. By having a multi-union attack we also would have confused, frustrated and exhausted company resources and furthered our ability to win good contracts. If one union was losing a unit of workers then we would have withdrawn the petition before the election and promptly re-filed with another union, which is legal under current labor law. It really wouldn’t matter if all units were organized the first time, but the constant attack and threat of attacks would have brought most employers to their knees. Just for one union to file with 30%, withdrawing their petition before losing, and then having another union to file, combined with a protracted ULP filing attack, would convince the employer that accepting a neutrality agreement would be in their best interest.

These rulings on Micro Units would have made it easier for a union or groups of entrenched unions to greatly damage financial bottom lines and frustrate management with disrupted operations. Combine this with a shortened election cycle and the union would have been able to attack in a blitzkrieg like fashion. The same holds true today once the pro-labor NLRB brings their goals to reality.

VW Election

This brings to mind the VW Chattanooga Tennessee election regarding the UAW. It took 3 years to get this campaign to an election, even with the plant working under a “gag order” with pressure from their headquarters in Germany. In fact, the company wanted the UAW so they could establish a "works council", which is considered a violation of the National Labor Relations Act without a union because it would be considered a “company union”. As a result of this election, the head of VW’s Work Council has hinted that it might abandon the South with expansion of future facilities. When the UAW lost the election, many people were saying that the UAW was dead in the southern part of the country; but remember, the union only needed 44 votes to win the election with a simple majority. With this close of a margin, the UAW was never going to walk away from the South and will continue to focus on the South, even if a targeted company is against the union.

The UAW has been working with their counter parts in Germany for years and has put pressure on VW to make this part of their business plan moving forward. The plant will eventually will be union; the UAW has filed an objection to the election based on outside interference (I believe is the first time this has happened.), which might get them a reelection or possibly a bargaining order if the board determines the atmosphere is too damaged for the election to be held in the Board-standard “laboratory like conditions”. We are in unchartered territory because the company has completely cooperated with the union: this tactic might be successful given the makeup of the current NLRB and their propensity to redefine and even rewrite decades of labor law norm.

The former AFL/CIO Organizing Director and current acting UAW Organizing Director is Richard Bensinger, who has been working on this style of union/company agreements for years. I knew and worked with Bensinger over the years that I was working on long-term organizing strategies and we, along with the AFL/CIO leadership, had been collaborating on global organizing partnerships like the one with VW well before I left the union in 2001. The Labor federations are still pursuing this strategy full force, so we can expect this type of global cooperation between unions to continue across many industries, as these global partnerships between unions have been in the works for many years.

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