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What’s the deal with free choice? A 3-part lesson on labor relations

5 min read


This guest post is by Arte Nathan, a veteran human resources professional with more than 30 years of practicing HR, most of it as chief HR officer for Golden Nugget and its successor companies, Mirage Resorts and Wynn Resorts. He lives in Laguna Beach, Calif., where he consults, writes and teaches. Follow him on Twitter at @arte88.

This post is part of a three-part blog series exploring how to effectively manage issues related to having and managing unions in the workplace. As a general rule, I use the phrase “employees who are represented by a union” because that’s what they are — they’re not union employees. They might be members of a union, but they should always be managed as YOUR employees.

But first, a brief history on the U.S. labor movement:

How and why did labor unions start?

Starting in the 1880s and continuing through the 1930s, organized labor fought to correct what it described as deplorable working conditions. It wasn’t until the New Deal in 1935 that legislation was passed to make it legal for employees to organize, hold elections and negotiate in good faith for wages, hours and working conditions.

The National Labor Relations Board was established to oversee union organizing and elections and to stop “unfair labor practices.” Union membership peaked in the 1970s at more than 40% of public- and private-sector employees.

In the 1970s, Congress began passing more legislation to address issues that historically were addressed by labor contracts, including discrimination, safety and disability. The Justice Department created the Equal Employment Opportunity Commission to investigate employee complaints about discrimination and other unfair practices.

These laws gave employees more rights than were voluntarily offered by many companies. Employees had legal backing for things they wanted and needed at work. Union membership dwindled to less than 7% of private employees. About 40% of public employees are still unionized, but that level is being challenged in many states, such as Wisconsin’s bargaining-rights battle.

A primer on union organizing

Historically, unions employed organizers that would look for businesses with employees unhappy about something. They would identify and talk to disgruntled employees to convince them that having a union would alleviate their problems.

The first step to gaining recognition required a union to get at least 30% of employees in a target group to sign authorization cards asking management to allow them to vote to recognize a union as their elected bargaining representative. This would trigger an election that required a majority plus one of those voting to win for private-sector employees, or 50% approval in the target unit for public employees.

The Employee Free Choice Act, stalled in Congress, seeks to alter this process by requiring only a majority of those in a group to sign authorization cards to certify a union as the bargaining representative, a practice known as “neutrality.” After that, good-faith negotiations would ensue — historically, these might take as long as a year.

Under the legislation, if no agreement is reached after 120 days, mediation would be required. If mediation does not lead to an agreement, binding arbitration would come next.

Other factors to consider

Most of the rules that govern organizing and negotiating are set by the National Labor Relations Board. While the NLRB is part of the political process, it can also independently reset rules. Recently, it began doing that.

The board proposed rules that would expedite elections and negotiations, and it plans to begin closely monitoring “unfair labor practices,” such as harassing organizers or retaliating against employees who are sympathetic to unions.

These rules can occur without supporting legislation, and they would change the playing field. Unions are anxious to regain former membership levels, and they think these changes would help make that happen.

So, is free choice dead?

It appears that in its present form, it is — but the NLRB initiatives mean the labor movement is not.

Activists continue to lobby the Obama administration to appoint people to the NLRB dedicated to creating a more union-friendly approach to labor-management relations. And unions continue to search for companies with policies and practices that make them vulnerable.

The underlying reasons that employees seek union representation might still exist at many companies, giving organizers a reason to approach employees: unprofessional managers, staff cutbacks, reduced wages and benefits, and a general distrust of management.

What can you do?

When a union-organizing campaign is in process, management normally works to refute the union’s claims and promote the benefits of management and employees working together to resolve problems and disputes.

These campaigns often get contentious and have the effect of polarizing employees into “for” and “against” groups. Whatever the outcome of a campaign and an election, there always are lingering feelings of distrust and animosity.

Why wait? The best tactic is to continually communicate:

  1. Positive aspects of your workplace.
  2. Management’s ongoing efforts to seek and make improvements.
  3. Benefits of working together directly without a third party.

Starting this discussion after you know that a union has begun approaching your employees might be too late. Why not have these discussions with your employees every day?

Tomorrow, we’ll further discuss this tactic, better known as the 365-day campaign.