Publications

Bargaining to Organize: Reshaping the Battlefield to Build Union Strength (1999)

It is no exaggeration to describe most union organizing as a battle, and it is certainly accurate, given existing laws, to characterize many employers as well-armed, dug in and seemingly unbeatable. Yet there are many things unions can do to “fight smart.” One is bargaining to organize -- negotiating language with employers to enhance the union’s chances in future organizing.

AFSCME affiliates have long sought solid successorship language to maintain union jobs and labor standards in the face of constant threats of privatization. Such language remains critical, and is equally important in agreements with private employers, especially those under contract to provide public services. Service contracts may last only a few years, and contractors can turn over at the end of each term. Workers in this environment need the stability of their union contract to ensure that their living standards and working conditions do not fluctuate with every new contractor.

Bargaining to organize means going beyond maintaining union jobs, and reaching agreements to build the union. There are different approaches. Employers may promise to remain “neutral” and not oppose union organizing efforts. They may agree to recognize the union based on a card check rather than insisting on an election, which almost invariably stalls the union’s momentum and allows the employer to counterattack. Employers that have a collective bargaining agreement with the union may also agree to accretion, by which new sites and workers are added to existing contracts (a practice usually allowed only when new sites are functionally integrated with old sites), or to area-wide clauses, where any employer sites in a given area will automatically recognize the union by card check. Extending the language to subcontractors, joint ventures or other affiliates of the employer precludes end runs around the union.

The Problem

Organizing generally means an all-out war for workers’ hearts and minds. Non-union employers are usually all too willing to bend or break labor laws, particularly the National Labor Relations Act (NLRA) and public-sector bargaining laws, which are often modeled on the NLRA.

Unfortunately, the NLRA gives even “law-abiding” employers an upper hand in private-sector organizing drives. To the extent that public-sector bargaining laws mirror the NLRA, the same is true in the public sector.

Under the NLRA, employers can legally bar non-employee organizers from the workplace, give anti-union “captive audience” speeches during work time, send anti-union literature to workers’ homes, and hold “one-on-one” or small group meetings with workers on union issues. Although the NLRA forbids threats or retaliation for supporting the union, promises or benefits for opposing the union, and questioning workers as to their union views, such conduct can be easily disguised to avoid legal scrutiny. Even where there is convincing evidence of “interference, restraint, or coercion” by management, penalties are small and procedures are slow. Employers are well aware that any sanctions will be too little, too late.

Solutions

There are many ways that can help unions fight back -- among them dynamic organizing committees, personal contact with workers, dealing in facts not rumors, and “inoculating” workers against management’s campaign. These tactics, contained in the “AFSCME Organizing Model,” deal with the shape of the battlefield as given. Bargaining to organize, on the other hand, aims to reshape the battlefield from the outset. While there are many variations and combinations of terms, bargaining to organize goals generally fall into one of the following types:

Neutrality

Virtually all bargaining to organize programs seek to secure “neutrality” from the employer, although the definition of the term varies. In some cases, it means the employer will not comment publicly at all on an organizing drive, and will completely restrict all management personnel from any involvement or campaigning. In other cases, the employer’s promise is limited to, for example, no anti-union literature, no captive audience meetings, no one-on-one meetings and so on. Management may agree not to hire union busters, or any “human resource consultants.” Ideally, neutrality language would provide that workers can distribute union literature and discuss union issues at work, and would provide access to the workplace for non-employee organizers.

Card Check

Some employers do not promise true campaign neutrality at all but instead agree to recognize and bargain with the union based on the union demonstrating that it has the support of a majority of employees. Most commonly, support is shown with signed union cards. An ideal card check agreement would require the employer to provide the union with data about employees -- including names, addresses and phone numbers, as well as information about shifts, job titles and so on. To ensure that the parties have due process without resorting to the time-consuming procedures of the National Labor Relations Board (NLRB) or a state agency, an expedited dispute resolution procedure can be included.

Accretion or Area-Wide Clauses

In an accretion agreement, the employer agrees to add new sites and workers to a pre-existing bargaining unit and contract. This is allowed under the NLRA only where the new facility can be considered “part of” the old facility. In area-wide arrangements, the employer waives the right to an election and agrees to recognize the union at all present and future facilities in an area based on a showing of majority support, usually by card check. Normally units at additional facilities are in separate bargaining units and contracts.

Many of the programs our employers pay for are carried out by contractors, grantees and the like. Unions can demand that employers adopt policies giving preference to entities that are unionized. In Boston Harbor, the U.S. Supreme Court supported the right of the public agency carrying out harbor repairs to require union contractors, because of the agency’s “proprietary interest” in the project, i.e., it would own the harbor improvements. Even where such an interest does not exist, and where, legally, our government employers cannot dictate labor relations policies to those who receive grants and contracts from it, they can make known their preferences in the matter. Almost all AFSCME organizing in the “private” sector occurs among employers delivering public services using tax dollars.

Issues to Consider

The question of which parties are bound by neutrality, card check and similar provisions is just as important as the conduct covered by the provisions. If an employer pledges neutrality in organizing efforts, but then contracts out work to another employer who will fight the union tooth and nail, the neutrality clause is obviously pretty useless. If, on the other hand, the clause covers such possibilities, the employer has no easy escape from its obligations and the union has a powerful tool if work is restructured.

It is also important to recognize that the battle is not over when the union is certified. Provisions limiting the employer’s ability to fight a first contract by requiring arbitration or using existing contracts as a “floor” will avoid a drawn-out first contract negotiations.

As with all union demands, employers will generally argue for something in return for bargaining-to-organize language. Employers may promise to remain “neutral” in return for union promises not to unduly disparage management, strike or picket, or threaten employees into signing cards. It is important to clearly understand what any such language means, how disputed conduct will be resolved and the consequences of non-compliance. Avoiding a “gag rule” on the union may be especially important when the employer is vulnerable to hard-hitting critiques. While it is crucial to preserve a broad scope for union activities, getting management to call off its dogs may be well worth some trade-offs. Unions typically agree not to defame the employer or to misrepresent facts.

Finally, no agreement is worthwhile if it can be violated with impunity. Speedy procedures for handling allegations of misconduct, including an expedited appeals system and penalties for violations, will ensure that the agreement actually works.

Getting Bargaining-to-Organize Language

One way unions have gained organizing language with employers already under contract is as part of a labor/management “partnership.” Where a labor/management partnership creates a productive atmosphere of mutual respect, the employer should have no objection to extending this relationship to other sites.

Employers may also be convinced that an organizing agreement can help pave the way to market share growth. An example of this phenomenon is Kaiser Permanente, which has worked with a coalition of unions (including AFSCME) to form national, local and site-based partnerships. The partnership agreement provides, among other things, strict neutrality by Kaiser Permanente as to future organizing and card check recognition. In return, the unions promised to help Kaiser market its services to union members.

Like other union goals, neutrality, card check and similar clauses can be achieved through means other than trade-offs at the table. Corporate campaigns, involving the employer’s customers, funders or other points of influence, have been successfully used to gain organizing language. Language has also been won by aggressive contract campaign tactics involving workers and the union at all levels. Whatever avenue is used, existing members must be convinced that their bargaining power depends on the union’s strength and future organizing must matter to them.

Experiences of Other Unions

Neutrality and card check language have a long history in the Labor movement. In the mid-1970s, industrial unions such as the United Auto Workers and United Steelworkers took a new approach to the situation of a small number of large employers dominating their major industries. They negotiated language to help them organize the suppliers, subsidiaries and other affiliates of the large companies. Their struggles were essentially against the outsourcing of work to non-union employers -- not unlike our battles against privatization.

More recently, bargaining to organize has borne fruit in a wide range of other unions and industries. In the telecommunications industry, for instance, the Communications Workers of America (CWA) last year bargained contracts with AT&T, Bell Atlantic, BellSouth, US West, Ameritech and other major service providers, all of which agreed to either expedite union elections or to recognize unions based on third-party card checks. CWA’s priority was to capture the rapidly growing and mostly non-union areas of telecommunications, such as wireless, cellular and Internet-based services.

Like many other unions, CWA seeks to prevent a low-wage, non-union empire from growing up around, and potentially replacing, its membership core. To win neutrality and card check, CWA mobilized that core, and found allies in Jobs with Justice and other advocacy groups.

The Hotel Employees and Restaurant Employees Union (HERE) has also used neutrality and card checks to great effect, especially in Las Vegas. There, HERE-affiliated Culinary Workers Local 226 makes this subject a central focus of each hotel and casino contract. In October, the union used language negotiated with an existing employer to get card check recognition for 4,300 workers at a new employer facility, the Bellagio. In essence, the language forbids the parent firm from opposing organizing at any of its properties in town. This broad coverage (not just the employer, but its subsidiaries) is crucial.

Another HERE example is particularly relevant to AFSCME since the employer, the virulently anti-union Marriott International (now Sodexho Marriott), was granted $2 million in public funds to build a hotel in Milwaukee. The company “pledged to remain neutral during a planned organizing drive and to honor a card check. ... HERE Local 122, meanwhile, promised not to picket the company during organizing efforts,” an AFL-CIO publication reported in August of last year. The facility is still in the planning stages. The company’s public subsidies provided a unique point of leverage for the concerns of the union and its allies.

Because state and local government requirements of neutrality or similar arrangements may be seen as preempting federal labor law, care must be taken in crafting such arrangements. Even if subsidies or contracts are not explicitly conditioned on a union-friendly stance, though, the public forum in which they are discussed gives the union a unique opportunity to shine a light on union busting and bring employers to the table.

AFSCME Experiences

A good example of card check language can be found at Council 31 in Illinois. The council won NLRB elections at five sites of Wexford, a private-sector firm providing prison medical services. During first contract negotiations, the company agreed that in organizing drives at other locations, it would recognize the union by card check. The result of the card check agreement, predictably, was the rapid organization of five more Wexford sites.

Another example of AFSCME’s growth involves an area-wide agreement. Council 62 in Indiana represents workers at United Water, the private firm running the Indianapolis wastewater system. The union and the company are involved in partnership efforts, and in that context they negotiated an area-wide recognition arrangement. New units established by the firm in a five-state area will recognize either Council 62 (in Indiana) or other AFSCME affiliates; i.e., new United Water shops and employees will fall under AFSCME jurisdiction, assuming a majority showing of worker support.

A third AFSCME example is a recent agreement combining both neutrality and card check, with the Menominee Indian tribe’s off-reservation casino operations in Wisconsin. Under the agreement, Council 40 and three other unions will receive employee lists, access to worksites for union meetings, and card check recognition. Other provisions include first contract arbitration and a promise to pay a living wage. However, the agreement is contingent on the tribal council passing a partial waiver of tribal sovereignty. (Sovereignty means the tribe is exempt from the NLRA, and must pass the waiver to make its union agreement truly enforceable.)

A new agreement providing for neutrality has also been negotiated between the Nebraska Association of Public Employees (NAPE)/AFSCME Local 61 and the state. The agreement provides that if the state privatizes mental health services, providers must recognize the existing contract’s terms for state employees, and must remain neutral in any attempts to organize the new private-sector employees. The contract also gives existing union members some rights to use e-mail for internal organizing purposes.

Finally, as mentioned before, AFSCME was part of the union group that formed a partnership with Kaiser Permanente. Under the partnership, the company pledged to remain neutral about union organizing and to recognize the union through card check, and the coalition unions agreed to help market Kaiser’s services to union households.

Conclusion

Bargaining to organize holds great promise for the Labor movement. It can restore balance to organizing drives by taking the worst weapons out of management’s arsenal, allowing the union to build on its strengths, use its resources effectively and accumulate bargaining power. Most importantly, when bargaining to organize is successful, workers have a real choice, and unions have a real chance to win decent, democratic workplace conditions.

For more information contact the Department of Research and Collective Bargaining Services at 202-429-1215 or the Department of Organizing and Field Services at 202-429-1260.

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