Misco decision db

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Give your reaction to the Misco Decision on p. 494 in the textbook. State the implications for employers and employees. Include your opinion about whether you or your organization would have fired the employee under these circumstances.

Your Task

Your initial discussion board post should be at least 200-250 words in length and should use at least one resource as support. This resource may be your textbook, required readings for the course, or outside research. Use APA citation format to properly credit your supporting material. 

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

The Labor Relations Process


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

The Labor Relations Process,
Eleventh Edition

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

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Brief Contents

Preface xiii
Acknowledgements xvi
About the Authors xvii

Part 1 Recognizing Rights and Responsibilities of Unions and Management

Chapter 1 Union Management Relationships in Perspective 4

Chapter 2 The History of Labor Management Relations 43

Chapter 3 Legal Influences 89

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

Chapter 5 Why and How Unions Are Organized 197

Part 2 The Bargaining Process and Outcomes

Chapter 6 Negotiating the Labor Agreement 266

Chapter 7 Economic Issues 325

Chapter 8 Administrative Issues 387

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

Part 3 Administering the Labor Agreement

Chapter 10 Contract Administration 496

Chapter 11 Labor and Employment Arbitration 537

Chapter 12 Employee Discipline 600

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

Chapter 13 Labor Relations in the Public Sector 650

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

Appendix A Collective Bargaining Negotiations Exercise 756

Author Index 759

Subject Index 762



Preface xiii
Acknowledgements xvi
About the Authors xvii

Part 1 Recognizing Rights and Responsibilities of Unions
and Management

Chapter 1 Union Management Relationships in Perspective 4

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

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

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

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

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

Labor Relations in Action: Are Unions Still Relevant? 28

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

Case Study 1-2: Discharge for Whistleblower Activity 38

Classroom Exercise 1.1: Work Rules 41

Classroom Exercise 1.2: Union Membership Trend 41

Classroom Exercise 1.3: Word Association 41

Chapter 2 The History of Labor Management Relations 43

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

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


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

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

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

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

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

Chapter 3 Legal Influences 89

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

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

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

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

Case Study 3-1: The Great Temperature Debate 128

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

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

Case Study 3-4: Determination of Supervisory Status 132

Contents v

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

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

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

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

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

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

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

Union Corruption and the Landrum Griffin Act 175
Union Security 177

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

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

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

Chapter 5 Why and How Unions Are Organized 197

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

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

Labor Relations in Action: Objections to Joining the Union 218

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

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

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

vi Contents

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

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

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

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

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

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

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

Case Study 5-6: Bulletin Board Use 257

Case Study 5-7: Nonemployee Union Solicitation Activity 258

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

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

Classroom Exercise 5.1: Designing Union Election Campaign Literature 263

Part 2 The Bargaining Process and Outcomes

Chapter 6 Negotiating the Labor Agreement 266

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

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

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

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

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

Specific Bargaining Actions 297 Totality of Conduct 298 Bargaining over

Contents vii

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

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

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

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

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

Case Study 6-3: The Influenza Work Rule 319

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

Case Study 6-5: The Mileage Reimbursement Policy 323

Chapter 7 Economic Issues 325

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

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

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

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

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

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

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

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

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

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

Classroom Exercise 7.1: Employee Benefits 386

Chapter 8 Administrative Issues 387

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

viii Contents

Benefits of Technological Change 391 Negative Effects of Technological
Change 392

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

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

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

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

Case Study 8-1: Discharged for Facebook Comments 433

Case Study 8-2: The Outsourced Work 433

Case Study 8-3: The Disputed Safety Bonus 434

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

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

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

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

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

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

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

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

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

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

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

Case Study 9-4: The Right to Strike 491

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

Case Study 9-6: Product Picket Activity 493

Contents ix

Part 3 Administering the Labor Agreement

Chapter 10 Contract Administration 496

Labor Relations in Action: Rules Governing Workplace Investigations 499

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

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

Labor Relations in Action: Tough Contract Administration Questions 517

Grievance Resolution: Relationships and Flexibility 517
Codified Relationships 518

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

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

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

Classroom Exercise 10.1: Arbitration Scenario 536

Chapter 11 Labor and Employment Arbitration 537

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

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

Labor Relations in Action: Improving Preparation for Arbitration Hearings 548

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

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

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

Current Issues Affecting Arbitration 560
Legal Jurisdiction 560

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

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

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

x Contents

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

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

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

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

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

Chapter 12 Employee Discipline 600

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

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

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

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

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

Case Study 12-2: Falsification of Application 641

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

Chapter 13 Labor Relations in the Public Sector 650

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

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

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

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

Contents xi

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

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

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

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

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

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

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

Case Study 13-1: Unions Representing Public Employees 694

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

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

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

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

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

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

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

Classroom Exercise 14.1: Mobile Factory 755

Appendix A Collective Bargaining Negotiations Exercise 756

Author Index 759

Subject Index 762

xii Contents


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

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

Features of the Eleventh Edition

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

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

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

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


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

Key Chapter-by-Chapter Changes in the Eleventh Edition

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

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

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

xiv Preface

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

Supplementary Materials

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

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

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

Preface xv


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

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

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

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

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

William H. Holley, Jr.
Auburn University

William H. Ross
University of Wisconsin La Crosse


About the Authors

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

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

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


The Labor Relations Process

Recognizing Rights and
Responsibilities of Unions
and Management

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

Chapter 1
Union Management Relationships in Perspective

Chapter 2
The History of Labor Management Relationships

Chapter 3
Legal Influences

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

Chapter 5
Why and How Unions Are Organized



Union Management Relationships
in Perspective

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


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

employees in a unionized versus nonunion firm?

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

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

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

Phases in the Labor Relations Process

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

The labor relations process includes three basic phases:

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

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


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

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

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

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

Elements in the Labor Relations Process

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

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

6 PART 1 Recognizing Rights and Responsibilities of Unions and Management

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

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

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

Work Rules

Exhibit 1.1
Elements in the Labor
Relations Process

CHAPTER 1 Union Management Relationships in Perspective 7

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

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

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

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

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

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

8 PART 1 Recognizing Rights and Responsibilities of Unions and Management

Exhibit 1.2
Examples of Work Rules Job or Industry

Classification Work Rule


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

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

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

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


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

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

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

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

CHAPTER 1 Union Management Relationships in Perspective 9

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

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

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

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

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

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

10 PART 1 Recognizing Rights and Responsibilities of Unions and Management

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

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

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

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

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

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

CHAPTER 1 Union Management Relationships in Perspective 11

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

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

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

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

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

12 PART 1 Recognizing Rights and Responsibilities of Unions and Management

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

Three Basic Assumptions Underlying U.S. Labor Relations

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

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

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

CHAPTER 1 Union Management Relationships in Perspective 13

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

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

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

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

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

14 PART 1 Recognizing Rights and Responsibilities of Unions and Management

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

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

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

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

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

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

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

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

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

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

CHAPTER 1 Union Management Relationships in Perspective 15

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

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

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

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

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

16 PART 1 Recognizing Rights and Responsibilities of Unions and Management

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

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

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

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

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

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

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

CHAPTER 1 Union Management Relationships in Perspective 17

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

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

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

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

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

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

18 PART 1 Recognizing Rights and Responsibilities of Unions and Management

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

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

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

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

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

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

CHAPTER 1 Union Management Relationships in Perspective 19

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

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

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

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

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

20 PART 1 Recognizing Rights and Responsibilities of Unions and Management

Getting Online with Labor Relations Research

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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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

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


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

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

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

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

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

CHAPTER 1 Union Management Relationships in Perspective 23

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

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

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

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

Union Membership

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

24 PART 1 Recognizing Rights and Responsibilities of Unions and Management

Unions and Worker Centers

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

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

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

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

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

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

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

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

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

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

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

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


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

Exhibit 1.4 shows union membership data trends since 1975.

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





1975 75,703.9 16,778 22.2

1980 87,479.5 20,095 23.0 25.7

1985 94,520.5 16,996 18.0 20.5

1990 103,904 16,740 16.1 18.3

1995 110,038.1 16,359 14.9 16.7

2000 110,038.1 16,258 14.9 14.9

2005 125,889.3 15,685 12.5 13.7

2010 124,073 14,715 11.9 13.1

2013 129,110 14,528 11.3 12.4

2014 131,431 14,576 11.1 12.3

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

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

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

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

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

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

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

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


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

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

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

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

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

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

CHAPTER 1 Union Management Relationships in Perspective 27

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

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

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

Are Unions Still Relevant?

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

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

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

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

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

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

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

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


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

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

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

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

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

CHAPTER 1 Union Management Relationships in Perspective 29

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

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

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

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

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

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

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

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

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

Discussion Questions

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

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

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

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

30 PART 1 Recognizing Rights and Responsibilities of Unions and Management

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

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

Exploring the Web

Labor Relations from Several Points of View

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

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

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

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

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

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

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

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

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

CHAPTER 1 Union Management Relationships in Perspective 31

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

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

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

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

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

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

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

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

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

lance in the Workplace, The Southern Law Journal,
23(1), 2013, pp. 1 27; Margaret A. Lucero, Robert
E. Allen, and Brian Elzweig, Managing Employee
Social Networking: Evolving Views from the
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8. The System for Forming Unions Is Broken,
AFL-CIO, 2007, p. 1 at http://www.aflcio.org/
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Street Journal, August 15, 2005, p. B1.

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

10. John J. Lawler, The Influence of Management
Consultants on the Outcome of Union Certifica-
tion Elections, Industrial and Labor Relations
Review, 38(1), 1984, pp. 38 51; Bruce E. Kaufman
and Paula E. Stephan, The Role of Management
Attorneys in Union Organizing Campaigns,
Journal of Labor Research, 16(4), 1995, pp. 439
455; Bureau of National Affairs Inc., Special
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11. William A. Ward, Manufacturing Jobs, 2005
2010, Economic Development Journal, 5(1), 2006,
pp. 7 15; Louis Uchitelle, A Missing Statistic:
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thorough discussion, see Erica L. Groshen and
Simon Porter, Has Structural Change Contributed
to a Jobless Recovery? Report of the Federal
Reserve Bank of New York, 9(8), 2003, pp. 1 7 at

12. Therese Jefferson and Alison Preston, Negotiat-
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Experience and Perceptions of Labour Market
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Industrial Relations Journal, 41(4), 2010,
pp. 351 366; Kevin E. Henrickson and Wesley

32 PART 1 Recognizing Rights and Responsibilities of Unions and Management

W. Wilson, Compensation, Unionization, and
Deregulation in the Motor Carrier Industry,
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pp. 153 177; John Nevile and Peter Kriesler,
Minimum Wages, Unions, the Economy and

Society, Economic and Labour Relations Review,
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The Effects of Deregulation on Employee Earn-

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1959 1992, Industrial and Labor Relations
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13. Denise Rousseau, I-deals: Idiosyncratic Deals
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14. Interest Rates: How Soon and How Far will they
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15. Stephen F. Hipple, The Labor Market in 2009:
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18. Workforce and Economic Development Program
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19. Laurie Harbour-Felax, Challenges for Industry
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20. Barry B. Burr, UAW s $45 Billion Vehicle Steers
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2002, pp. 1 2 at http://www.heartlandnetwork.
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21. Thomas Croft, Up from Wall Street: The Respon-
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22. Rebecca Keller, How Shifting Occupational
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CHAPTER 1 Union Management Relationships in Perspective 33

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23. Attaran, M. Keeping the promise of efficiency,
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24. Christopher M. Lowery, Nicholas A. Beadles II,
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25. Jessica Miller-Merrell Research Reveals how
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26. Charles Forelle, Nick Skrekas, and Bob Davis,
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28. Marisa von Bulow, Networks of Trade Protest in
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29. Foreign Trade Division of the U.S. Census Bureau,
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35. Christopher Candland, Core Labour Standards
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34 PART 1 Recognizing Rights and Responsibilities of Unions and Management

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39. Diane E. Schmidt, Public Opinion and Media
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40. Christopher R. Martin, Framed: Labor and the
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42. Rebecca Riffkin, Public Faith in Congress Falls
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of a community effort involving religious institu-
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49. Why Wal-Mart Must Change, Wakeup
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51. David Winzelberg, L.I. Labor, Management
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CHAPTER 1 Union Management Relationships in Perspective 35

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52. United States Department of Labor, Union
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54. United States Department of Labor, Union
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55. United States Department of Labor, Union
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56. John Godard, The Exceptional Decline of the
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57. Union Ranks Down in 2009 as Recession Elim-
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58. T. Alan Lacey and Benjamin Wright, Occupa-
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62. U.S. Department of Labor, Union Members
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Table 1, at http://www.bls.gov/news.release/

63. U.S. Department of Labor, Union Members
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64. Arleen Hernandez, The Impact of Part-Time
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65. Bruce Nissen, The Recent Past and Near Future
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66. Michelle Amber, Henry Pledges Innovative
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67. Joseph B. Rose and Gary N. Chiason, New
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68. Andrew W. Martin, Resources for Success: Social
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Relations, 44(4), 2005, pp. 654 658.

36 PART 1 Recognizing Rights and Responsibilities of Unions and Management




1 Was a Troublemaker Laid off for Sharing Wage

Information? Or for Business Reasons?

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

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

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

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

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

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

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

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

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

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

CHAPTER 1 Union Management Relationships in Perspective 37

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

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

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

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

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

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

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

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

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

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




2 Discharge for Whistleblower Activity

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

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

38 PART 1 Recognizing Rights and Responsibilities of Unions and Management

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

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

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

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

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

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

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

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

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

CHAPTER 1 Union Management Relationships in Perspective 39

1. Should the federal appeals court deny Broom and

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

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

40 PART 1 Recognizing Rights and Responsibilities of Unions and Management



Work Rules

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

Union Membership Trend

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

Word Association

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

Words or phrases to classify

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

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

42 PART 1 Recognizing Rights and Responsibilities of Unions and Management


The History of Labor Management Relations

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


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

today. Do you agree or disagree and why?

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

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

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

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

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

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

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

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

1869 to World War I

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


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

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

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

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

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

CHAPTER 2 The History of Labor Management Relations 45

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

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

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

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

46 PART 1 Recognizing Rights and Responsibilities of Unions and Management

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

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

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

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

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

CHAPTER 2 The History of Labor Management Relations 47

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

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

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

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

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

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

48 PART 1 Recognizing Rights and Responsibilities of Unions and Management

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

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

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

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

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

CHAPTER 2 The History of Labor Management Relations 49

Labor History Time Line: Selected Events

Year Event

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


Year Event

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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



The Knights of Labor (KOL)

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

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

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

2. Attain moral betterment for employees and society.

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

Year Event

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

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

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

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


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

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

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

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

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

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

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

CHAPTER 2 The History of Labor Management Relations 53

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

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

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

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

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

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

54 PART 1 Recognizing Rights and Responsibilities of Unions and Management

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

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

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

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

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

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

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

CHAPTER 2 The History of Labor Management Relations 55

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

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

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

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

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

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

56 PART 1 Recognizing Rights and Responsibilities of Unions and Management

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

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

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

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

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

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

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

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

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

CHAPTER 2 The History of Labor Management Relations 57

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

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

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

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

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

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

58 PART 1 Recognizing Rights and Responsibilities of Unions and Management

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

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

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

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

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

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

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

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

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

CHAPTER 2 The History of Labor Management Relations 59

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

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

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

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

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

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

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

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

60 PART 1 Recognizing Rights and Responsibilities of Unions and Management

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

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

Unions and the Civil Rights Movement

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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

62 PART 1 Recognizing Rights and Responsibilities of Unions and Management

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

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

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

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

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

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

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

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

CHAPTER 2 The History of Labor Management Relations 63

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

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

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

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

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

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

64 PART 1 Recognizing Rights and Responsibilities of Unions and Management

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

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

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

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

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

CHAPTER 2 The History of Labor Management Relations 65

World War I to World War II

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

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

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

to a bitter rivalry between the AFL and the CIO.

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

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

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

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

66 PART 1 Recognizing Rights and Responsibilities of Unions and Management

The American Labor Movement as Portrayed in Fiction

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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

CHAPTER 2 The History of Labor Management Relations 69

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

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

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

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

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

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

70 PART 1 Recognizing Rights and Responsibilities of Unions and Management

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

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

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

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

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

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

CHAPTER 2 The History of Labor Management Relations 71

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

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

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

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

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

72 PART 1 Recognizing Rights and Responsibilities of Unions and Management

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

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

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

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

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

CHAPTER 2 The History of Labor Management Relations 73

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

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

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

World War II to the Present

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

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

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

74 PART 1 Recognizing Rights and Responsibilities of Unions and Management

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

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

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

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

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

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

CHAPTER 2 The History of Labor Management Relations 75

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

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

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

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

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

76 PART 1 Recognizing Rights and Responsibilities of Unions and Management

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

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

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

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

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

CHAPTER 2 The History of Labor Management Relations 77

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

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

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

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

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

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

78 PART 1 Recognizing Rights and Responsibilities of Unions and Management

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

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

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

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

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

CHAPTER 2 The History of Labor Management Relations 79

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

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

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

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

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

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

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

80 PART 1 Recognizing Rights and Responsibilities of Unions and Management

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

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

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

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

p. 56

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

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

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

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

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

Discussion Questions

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

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

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

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

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

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

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

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

CHAPTER 2 The History of Labor Management Relations 81

Exploring the Web

History of the Labor Movement

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

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

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

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

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

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

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

1. Robert Ozanne, Trends in American Labor His-

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

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

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

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

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

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

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

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

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

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

82 PART 1 Recognizing Rights and Responsibilities of Unions and Management

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

CHAPTER 2 The History of Labor Management Relations 83

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

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

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

Society (1935; reprinted. New York: Russell and
Russell, 1968), p. 262.

42. Dulles, Labor in America, p. 155.
43. Gompers, Seventy Years of Life and Labor, p. 245.
44. Samuel Gompers, Labor and the Employer (1920;

reprinted. New York: Arno Press, 1971), pp. 33 34.
45. Stuart Bruce Kaufman, Samuel Gompers and the

Origins of the American Federation of Labor:
1848 1896 (Westport, CT: Greenwood Press,
1973), p. 173. For details of this relationship, see
Gompers, Seventy Years of Life and Labor,
pp. 381 427.

46. Louis Reed, The Labor Philosophy of Samuel
Gompers (1930; reprinted. Port Washington,
D.C., NY: Kennikat Press, 1966), p. 20. See also
an editorial by Gompers in the American Fed-
erationist, June 1924, p. 481; Sarah Lyon Watts,
Order Against Chaos: Business Culture and Labor
Ideology in America 1880 1915 (New York:
Greenwood Press, 1991), pp. 9 10; William E.
Forbath, Law and the Shaping of the American
Labor Movement (Cambridge, MA: Harvard
University Press, 1991).

47. Gompers, Seventy Years of Life and Labor,
pp. 286 287, 381 427.

48. Alice Kessler-Harris, Trade Unions Mirror
Society in Conflict between Collectivism and
Individualism, Monthly Labor Review, 110,
August 1987, p. 33.

49. Gompers, Labor and the Employer, p. 202.
50. Marc Karson, American Labor Unions and Politics:

1900 1918 (Carbondale, IL: Southern Illinois Uni-
versity Press, 1968), p. 29; Julia Green, Strike at the
Ballot Box: The American Federation of Labor s
Entrance into Election Politics, 1906 1909, Labor
History, 32, Spring 1991, pp. 165 192.

51. Reed, The Labor Philosophy of Samuel Gompers,
pp. 106 110.

52. Milton Derber, The American Idea of Industrial
Democracy: 1865 1965 (Urbana, IL: University of
Illinois Press, 1970), p. 117; also see Christopher J.
Cyphers, The National Civic Federation and the
Making of a New Liberalism, 1900 1915 (West-
port, CT: Praeger, 2002); William M. Boal, The
Effect of Unionism on Accidents in U.S. Coal
Mining, 1897 1929, Industrial Relations, 48(1),
2009, pp. 97 120.

53. Gompers, Seventy Years of Life and Labor, p. 342.
For additional details regarding early AFL orga-
nizing, see Philip Taft, The AF of L in the Time of
Gompers (1957; reprinted. New York: Octagon
Books, 1970), pp. 95 122.

54. Dulles, Labor in America, pp. 163 164.
55. Andrew Carnegie, An Employer s View of the

Labor Question, in Labor: Its Rights and Wrongs
(1886; reprinted. Westport, CT: Hyperion Press,
1975), pp. 91 95. For a recent collection and
analysis of material pertaining to the situation, see
David P. Demarest Jr., ed., The River Ran Red
(Pittsburgh: University of Pittsburgh Press, 1992).

56. Yellen, American Labor Struggles, p. 81.
57. For details of the wage package, see ibid., pp. 77 80.

See also E. W. Bemis, The Homestead Strike,
Journal of Political Economy, 2, 1894, pp. 369 396;
Linda Schneider, The Citizen Striker: Workers
Ideology in the Homestead Strike of 1892, Labor
History, 23, Winter 1982, pp. 47 66. For some
additional insights into Frick s background, see
Carol Aymowitz, Frick s Homey Mansion, Wall
Street Journal, September 24, 1990, p. A-12.

58. Surrounded by Pickets, New York Times, July 4,
1892, p. 1.

59. Mob Law at Homestead, New York Times, July
7, 1892, p. 1.

60. Leader O Donnell Is Glad, New York Times,
July 12, 1892, p. 2; and Bayonet Rule in Force,
New York Times, July 13, 1892, p. 1.

61. Lens, The Labor Wars, p. 77.
62. A Talk with Gompers, New York Times, July 7,

1892, p. 2; Provoked by Carnegie, New York
Times, July 7, 1892, pp. 2, 5.

63. Taft, The AF of L in the Time of Gompers, p. 136.
64. Arbitrate the Homestead Strike, Chicago Tri-

bune, July 8, 1892, p. 4. See also The Origin of
the Trouble, New York Times, July 8, 1892, p. 2.

65. Yellen, American Labor Struggles, p. 3.
66. Lens, The Labor Wars, p. 81; Richard Schneirov,

George M. Pullman and the Sleeping Car Business,

84 PART 1 Recognizing Rights and Responsibilities of Unions and Management

2007 at http://dig.lib.niu.edu/gildedage/pullman/
events1.html. Liston E. Leyendecker, Palace Car
Prince: A Biography of George Mortimer Pullman,
Niwot: University Press of Colorado, 1992; Larry
Tye, Rising From the Rails: Pullman Porters and
the Making of the Black Middle Class, New York:
Henry Holt, 2004, p. 3.

67. For additional details about the town, see Almont
Lindsay, The Pullman Strike (Chicago: University
of Chicago Press, 1967), pp. 38 60.

68. For more details regarding ARU s organization,
see Philip S. Foner, History of the Labor Move-
ment in the United States, vol. 2 (New York:
International Publishers, 1955), p. 256.

69. Lindsay, The Pullman Strike, p. 124; Nick Salva-
tore, Eugene Debs: Citizen and Socialist (Urbana,
IL: University of Illinois Press, 1982).

70. Ibid., p. 215.
71. Gompers, Seventy Years of Life and Labor, p. 403.
72. Proceedings of the First Convention of the Indus-

trial Workers of the World (New York: Labor
News Company, 1905), p. 1.

73. Ibid., p. 143.
74. Bill Haywood, Bill Haywood s Book: The Autobi-

ography of William D. Haywood (New York:
International Publishers, 1929), p. 73.

75. Melvyn Dubofsky, We Shall Be All: A History of
the Industrial Workers of the World (Chicago:
Quadrangle Books, 1969), p. 481.

76. Haywood, Bill Haywood s Book, p. 181.
77. For additional details pertaining to these differences,

see Dubofsky, We Shall Be All, pp. 105 119; Joseph
Robert Conlin, Bread and Roses Too (Westport, CT:
Greenwood Publishing, 1969), pp. 97 117; and
Lens, The Labor Wars, pp. 154 155.

78. David J. Saposs, Left-Wing Unionism (1926; rep-
rinted. New York: Russell and Russell, 1967),
p. 148.

79. Louis Adamic, Dynamite: The Story of Class Vio-
lence in America (1934; reprinted. Gloucester,
MA: Peter Smith, 1963), p. 174; Eileen DeVault,
Family wages: The roles of wives and mothers

in U.S. working-class survival strategies, 1880
1930, Labor History, 54(1), 2013, pp. 1 20.

80. Robert E. Ficken, The Wobbly Horrors, Pacific
Northwest Lumbermen, and the Industrial
Workers of the World, 1917 1918, Labor His-
tory, 24, Summer 1983, p. 329.

81. Conlin, Bread and Roses Too, pp. 97 117. See also
Fred Thompson, The IWW: Its First Fifty Years

(Chicago: Industrial Workers of the World, 1955),
pp. 80 87 or Eric Thomas Chester, The Wobblies
in Their Heyday: The Rise and Destruction of the
Industrial Workers of the World During the World
War I Era (Santa Barbara, CA: ABC-CLIO, 2014).

82. Adamic, Dynamite, pp. 163 164.
83. Conlin, Bread and Roses Too, p. 96.
84. Philip S. Foner, ed., Fellow Workers and Friends: I.

W. W. Free Speech Fights as Told by Participants
(Westport, CT: Greenwood Press, 1981), p. 15.

85. Foner, History of the Labor Movement, vol. 3,
p. 465.

86. Conlin, Bread and Roses Too, p. 68.
87. Robert C. Sims, Idaho s Criminal Syndicalism

Act: One State s Response to Radical Labor,
Labor History, 15(4), 1974, pp. 511 527; Melvin
Dubofsky, We Shall Be All: A History of the
Industrial Workers of the World (Urbana, IL:
University of Illinois Press), p. 228; Nick Shepley,
The Palmer Raids and the Red Scare, 1918 1920
(London: Andrews UK Limited, 2011); Kenneth
D. Ackerman, Young J. Edgar Hoover and the Red
Scare, 1919 1920 (Falls Church, VA: Viral His-
tory Press, 2011).

88. For additional details, see Frank L. Grubbs, Jr.,
The Struggle for Labor Loyalty: Gompers, the AFL,
and the Pacifists, 1917 1920 (Durham, NC: Duke
University Press, 1968); James O. Morris, Conflict
within the AFL: A Study of Craft versus Industrial
Unionism, 1901 1938 (1958; reprinted. Westport,
CT: Greenwood Press, 1974), pp. 9 10.

89. Taft, Organized Labor, pp. 355 358; Francis Fox
Piven and Richard A. Cloward, Poor People s
Movements (New York: Pantheon Books, 1977),
p. 104. For details of this strike, see Lens, The
Labor Wars, pp. 196 219.

90. Frank Stricker, Affluence for Whom? Another
Look at Prosperity and the Working Classes in the
1920s, Labor History, 24, Winter 1983, pp. 5 34.

91. Lens, The Labor Wars, pp. 222, 296, 312.
92. Derber, The American Idea, p. 246. For an appli-

cation of these reasons to a specific industrial
situation during this time period, see Stephen L.
Shapiro, The Growth of the Cotton Textile
Industry in South Carolina: 1919 1930 (Ph.D.,
diss., University of South Carolina, 1971),
pp. 168 171.

93. For additional details regarding the use of com-
pany spies, see Clinch Calkins, Spy Overhead: The
Story of Industrial Espionage (1937; reprinted.

CHAPTER 2 The History of Labor Management Relations 85

New York: Arno Press, 1971). Violence was lim-
ited neither to this time period nor to the
employer. One of the more publicized episodes of
employer violence was the Ludlow Massacre of
1914. The mining camps in Colorado were
involved in a strike for union recognition when,
on April 20, militiamen opened fire on a tent
colony, killing two strikers and one boy. They
then set fire to the tents, killing two women and
eleven children. For details of this event, see Leon
Stein, ed., Massacre at Ludlow: Four Reports (New
York: Arno Press, 1971). Perhaps one of the more
vivid examples of union violence occurred in
Herrin, Illinois (1922), where miners tortured and
killed at least 26 management officials and stri-
kebreakers. For details of this episode, see Saul
Alinsky, John L. Lewis: An Unauthorized Biogra-
phy (New York: Vintage Books, 1970), pp. 43 50.

94. Richard C. Wilcock, Industrial Management s
Policies toward Unionism, in Milton Derber and
Edwin Young, eds., Labor and the New Deal
(Madison: University of Wisconsin Press, 1957),
p. 293.

95. For a case study of paternalism, see Welfare
Work in Company Towns, Monthly Labor
Review, 25, August 1927, pp. 314 321. For a more
thorough discussion of employer counteractions
during this time period, see Larry J. Griffin,
Michael E. Wallace, and Beth A. Rubin, Capi-
talist Resistance to the Organization of Labor
before the New Deal: Why? How? Success?
American Sociological Review (April 1986),
pp. 147 167.

96. Derber, The American Idea, pp. 220 221; and
Morris, Conflict within the AFL, pp. 40 41. For
more details on ERPs, see Ware, Labor in Modern
Industrial Society, pp. 414 435. For a contempo-
rary assessment of the problems and prospects
facing the single-firm, independent union, see
Arthur B. Shostak, America s Forgotten Labor
Organization (Princeton: Industrial Relations
Section, Department of Economics, Princeton
University, 1962).

97. Loren Gatch, Local Money in the United States
During the Great Depression, Essays in Eco-
nomic & Business History, 26(1), 2008, pp. 47 61;
James P. Johnson, Drafting the NRA Code of
Fair Competition for the Bituminous Coal
Industry, Journal of American History, 53(3),
1966, pp. 521 541; Sean M. McGivern and Joseph

A. Schremmer The Fair Labor Standards Act: A
Tool for Those Who Represent Employees, Clai-
mants, and Plaintiffs, Journal of the Kansas
Association for Justice, Jan. 2014, pp. 18 21.

98. Dulles, Labor in America, p. 245; also see Mark
W. Robbins, Transitioning labor to the lean
years : the middle class and employer repression
of organized labor in post-World War I Chicago,
Labor History, 54(3), 2013, pp. 321 342.

99. This example was drawn from a more detailed
account of racketeering during this period found
in Sidney Lens, Left, Right, and Center: Conflicting
Forces in American Labor (Hinsdale, IL: Henry
Regnery, 1949), pp. 86 108; also see Jennifer Luff,
Commonsense Anticommunism: Labor and Civil
Liberties Between the World Wars (Chapel Hill,
NC: University of North Carolina Press, 2012).

100. David J. McDonald, Union Man (New York: E. P.
Dutton, 1969), p. 185. See also Max Gordan, The
Communists and the Drive to Organize Steel,
1936, Labor History, 23, Spring 1982, pp. 226 245.
For further historical insights into the relation-
ship between organized labor and communism,
see Harvey A. Levenstein, Communism,
Anticommunism and the CIO (Westport, CT:
Greenwood Press, 1981).

101. James O. Morris, The AFL in the 1920s: A
Strategy of Defense, Industrial and Labor Rela-
tions Review, 11, July 1958, pp. 572 590.

102. See, for example, William Green: Guardian of
the Middle Years, American Federationist, 88,
February 1981, pp. 24 25.

103. Bruce Minton and John Stuart, Men Who Lead
Labor (New York: Modern Age Books, 1937),
pp. 14 15.

104. Morris, Conflict within the AFL, p. 216.
105. For additional details pertaining to the back-

ground of this historic convention, see Herbert
Harris, Labor s Civil War (New York: Greenwood
Press, 1969).

106. Lens, The Labor Wars, p. 284.
107. Cecil Carnes, John L. Lewis: Leader of Labor (New

York: Robert Speller Publishing, 1936), p. 299.
108. David Dubinsky and A. H. Raskin, David

Dubinsky: A Life with Labor (New York: Simon
and Schuster, 1977), p. 226.

109. The seven unions were the United Mine Workers;
the Amalgamated Clothing Workers; the Inter-
national Ladies Garment Workers Union; United
Hatters; Cap and Millinery Workers; Oil Field,

86 PART 1 Recognizing Rights and Responsibilities of Unions and Management

Gas Well and Refinery Workers; and the Inter-
national Union of Mine, Mill, and Smelter

110. Benjamin Stolberg, The Story of the CIO (1938;
reprinted. New York: Arno Press, 1971), p. 28.

111. Milton Derber, Growth and Expansion, in
Derber and Young, Labor and the New Deal, p. 13
and Steve Rosswurm, ed., The CIO s Left-Led
Unions (New Brunswick, NJ: Rutgers University
Press, 1992).

112. See, for example, John Hutchinson, John L.
Lewis: To the Presidency of the UMWA, Labor
History, 19, Spring 1978, pp. 185 203; Steven
Fraser, Sidney Hillman and the Rise of American
Labor (New York: The Free Press, 1991).

113. James Arthur Wechsler, Labor Baron: A Portrait
of John L. Lewis (New York: William Morrow,
1944), p. 71; and Robert H. Zieger, Leadership
and Bureaucracy in the Late CIO, Labor History,
31(3), 1990, pp. 253 270.

114. Thomas Gobel, Becoming American: Ethnic
Workers and the Rise of the CIO, Labor History,
29, Spring 1988, p. 174.

115. S. J. Woolf, John L. Lewis and His Plan, in
Melvyn Dubofsky, ed., American Labor since the
New Deal (Chicago: Quadrangle Books, 1971),
pp. 110 111.

116. Lens, The Labor Wars, p. 295.
117. Sidney Fine, Sit-Down: The General Motors Strike

of 1936 1937 (Ann Arbor: The University of
Michigan Press, 1969), pp. 156 177. For another
perspective of the sit-down strike, see Daniel
Nelson, Origins of the Sit-Down Era: Worker
Militancy and Innovation in the Rubber Industry,
1934 1938, Labor History, 23, Winter 1982,
pp. 198 225.

118. National Labor Relations Board v. Fansteel Metal-
lurgical Corporation, 306 U.S. 240 (1939); for a legal
review, see Ahmed A. White, The Depression-Era
Sit-Down Strikes and the Limits of Liberal Labor
Law, Seaton Hall Law Review, 40, 2010, pp. 1 78;
Maliha Safri, The economics of occupation,
Economists Voice, 9(3), 2012, pp. 1 3.

119. Theodore J. St. Antoine, Charles B. Craver,
Marion G. Crain, Labor Relations Law: Cases
and Materials, 12th Edition (New York: Matthew
Bender/LexisNexis, 2011).

120. James R. Hoffa and Oscar Fraley, Hoffa: The Real
Story (New York: Stein and Day Publishers,
1975), p. 65. For a detailed account of the

AFL-CIO rivalries in several industries, see
Walter Galenson, The CIO Challenge to the AFL
(Cambridge, MA: Harvard University Press, 1960).

121. Richard B. Morris, ed., The U.S. Department of
Labor Bicentennial History of the American
Worker (Washington, D.C.: U.S. Government
Printing Office, 1976), p. 236.

122. For details of this formula and the extent that
cost-of-living estimates exceeded this formula, see
Taft, Organized Labor in American History,
pp. 549 553 and 557 559.

123. Dulles, Labor in America: A History, p. 334.
124. Arthur F. McClure, The Truman Administration

and the Problems of Postwar Labor, 1945 1948
(Cranburry, NJ: Associated University Press,
1969), p. 45.

125. Katherine G. Aiken, When I Realized how
Close Communism was to Kellogg, I was Willing
to Devote Day and Night : Anti-Communism,
Women, Community Values, and the Bunker Hill
Strike of 1960, Labor History, 36, 1995, pp. 165
186; Will Cooley, Communism, the Cold War,
and a Company Town: The Rise and Fall of UE
Local 709, Labor History, 55(1), 2014, pp. 67 96.

126. For historical information pertaining to compen-
sation in the World War II era, see: George H.
Hildebrand, American Unionism: An Historical
and Analytical Survey (Reading: Addison-Wesley,
1979), pp. 36 37; for current information on the
allocation of compensation among wages and
benefits, see: U.S. Department of Labor,
Employer Costs for Employee Compensation:

June, 2014, News Release, Sept. 10, 2014, Table 5
at http://www.bls.gov/news.release/ecec.t05.htm.

127. Robert M. MacDonald, Collective Bargaining in
the Postwar Period, Industrial and Labor Rela-
tions Review, 20, July 1967, p. 568.

128. Audrey Freedman, How the 1980s Have Chan-
ged Industrial Relations, Monthly Labor Review,
May 1988, p. 37.

129. For a more detailed discussion of historical
attempts at the merger of the AFL and CIO, see
Joel Seidman, Efforts toward Merger 1935
1955, Industrial and Labor Relations Review, 9,
April 1956, pp. 353 370.

130. Document: AFL-CIO No-Raiding Agreement,
Industrial and Labor Relations Review, 8, October
1954, p. 103.

131. A Short History of American Labor, American
Federationist, 88, March 1981, p. 14.

CHAPTER 2 The History of Labor Management Relations 87

132. George Meany, Merger and the National Wel-
fare, Industrial and Labor Relations Review, 9,
April 1956, p. 349.

133. Richard A. Lester, As Unions Mature (Princeton,
NJ: Princeton University Press, 1958), p. 25.

134. Aaron Bernstein, Is Labor Headed for Splits-
ville? BusinessWeek, May 30, 2005, p. 32.

135. Kris Maher, U.S. News: AFL-CIO, Breakaway
Unions Discuss Reuniting, Wall Street Journal,
January 9, 2009, p. A-4; Michelle Amber, UNITE
HERE Rejoins AFL-CIO, Wilhelm Gets Seat on
Governing Bodies, Daily Labor Report, No. 179,
September 18, 2009, pp. C1 2; Richard L.
Trumpka, Statement by AFL-CIO President
Richard L. Trumpka on LIUNA Reaffiliation with
the AFL-CIO, Press Release, August 16, 2010, p. 1

at http://www.aflcio.org/mediacenter/prsptm/pr081

136. Holly Rosenkrantz, What Andy Stern Leaves
Behind, Business Week, April 25, 2010, p. 23;
About us Change to Win at http://www.

137. John T. Dunlop, Have the 1980s Changed

Industrial Relations? Monthly Labor Review, 111,
May 1988, pp. 29 33.

138. Lichtenstein, Nelson, The Most Dangerous
Man in Detroit: Walter Reuther and the Fate of
American Labor. (Urbana, IL: University of Illi-
nois Press, 1995); James B. Jacobs, Mobsters,
Unions and Feds: The Mafia in the American
Labor Movement (New York: New York Univer-
sity Press, 2006).

88 PART 1 Recognizing Rights and Responsibilities of Unions and Management


Legal Influences

GRANTING EMPLOYEES a legal right to decide for themselves
whether to form or join a labor organization and engage in col-
lective bargaining over wages, hours, or other terms and condi-
tions of employment has been described as a grand experiment
in industrial democracy. It hasn t always been this way in U.S.
history, as the discussion in Chapter 2 made clear. Because
statutory laws are the product of a political process involving
compromise wording and trade-offs among the competing
interests of the parties affected, there will inevitably be
differences of opinion over how the wording of a law is
interpreted and applied to everyday decisions affecting the
rights of employers, employees, labor organizations, and the
general public. For legal rights to be meaningful, there must
also be an effective process for enforcing those legal rights.

Susan pondered these words as she sat at her desk in the
human resources (HR) department. As an HR manager at a
resort, Susan rarely had time to ponder the big picture because
she was always responding to situations and putting out
fires. Often, these situations had legal implications for the
firm. Just last week a female employee filed a discrimination
complaint against the resort s hotel restaurant where she has
been employed as a costumed storyteller for the past two
years, entertaining children. The employee, a Muslim woman,
had requested management to allow her to wear a head scarf
(hijab) during work time. After consulting with higher manage-
ment authority, her supervisor informed the employee that she
could wear a head scarf but it would have to be one designed
by the resort s costume department and in the interim period
she could not wear her own head scarf. Two months later,
after hearing no further word from her supervisor about the


issue, the employee chose to wear her own head scarf to work. Upon
seeing the employee wearing her head scarf, her supervisor told her that
she would have to remove it, change to a job which did not require direct
customer contact, or go home. She refused to remove it and she refused
to change jobs, asserting that she was protected by federal equal employ-
ment opportunity law. So the manager suspended her. Typically, some-
body in an on-stage position like hers wouldn t wear something like that,
that s not part of the costume, the manager explained. We were trying
to accommodate her with a backstage position that would allow her to
work. We gave her a couple of different options and she chose not to
take those and to go home. 1 The woman has not worked for the
firm for the past week. The employee s union supported her decision
to file a legal discrimination claim against the company and indicated it
would be willing to file a contract grievance discrimination claim if she
wanted to do so.

Susan, as the HR manager, was confident that the company had a
good antidiscrimination policy in place. Susan thought that requiring every
aspect of the employee s costume to conform to the resort s intended
image was important to maintaining good customer relations. The accom-
modations offered by the employer (e.g., transfer to a behind-the-scenes
job, wearing a company-designed head scarf) were reasonable in Susan s
view. Still it did concern her that two months had elapsed since the
employee s initial request to wear a head scarf at work and while the com-
pany had indicated she could do so if the scarf conformed to the com-
pany s costume concept, no suitable scarf had yet been provided to the
employee. Could the company be liable for reinstatement and back pay if
the delay were found to be unreasonable, and the employee continued to
refuse the transfer to a noncustomer contact job? Even if the company
prevailed in getting the federal discrimination complaint dismissed, would
the employee then file a contractual grievance seeking a similar remedy for
lost time from work? Would an arbitrator likely take the same view as a
court? What effect could the publicity surrounding the claim have on the
company s business operations or the ongoing contract negotiations with
the employee s union?


1. Could the company be liable for reinstatement and back pay if the delay

were found to be unreasonable and the employee continued to refuse a
transfer to a noncustomer contact job?

2. Even if the company prevailed in getting the federal discrimination
complaint dismissed, do you think the employee would then file a con-
tractual grievance seeking a similar remedy for lost time from work?

3. What effect could the publicity surrounding the discrimination claim
have on the company s business operations or future contract negotia-
tions with the employee s union?

4. In your opinion, is it the responsibility of government to pass laws
designed to establish the working conditions of American workers? Or
is the purpose of U.S. labor law to establish a framework whereby
employees can group together to negotiate their own working condi-
tions, tailoring them to the conditions that are important to the work-
ers? Explain your reasoning.

Labor relations law provides a framework for defining the legal rights and responsibil-ities of the parties engaged in the labor relations process. This chapter introduces the
basic legal foundation regulating the major phases of the labor relations process: organiz-
ing unions, negotiating labor agreements, and ensuring employee rights in contract
administration. It is essential today not only to know the law but to understand and
appreciate the interrelationships between the law and the labor relations process. Practi-
tioners should be aware that having a legal right to act does not always mean it is in
one s practical best interest to exercise that legal right.

Chapter 3 logically follows the chapter on historical development of unions in the United
States because labor relations law and union development go hand in hand. As unions grew in
strength, they successfully lobbied to get labor laws passed by the U.S. Congress. This chapter
focuses on key labor laws that pertain to most private firms today: the Norris La Guardia,
Wagner, Taft Hartley, and Landrum Griffin Acts. Because these acts cover the major por-
tion of private-sector U.S. industries and businesses, a substantial amount of space in this
chapter is devoted to their content. The Railway Labor Act (RLA), which principally covers
railroads and airlines, is also explained and assessed. A final section briefly considers several
other employment laws that can affect the labor relations process.

Origin of Labor Relations Law

Modern U.S. labor relations law relies primarily on federal and state statutory laws or local
government ordinances; judicial decisions interpreting and applying statutory laws and
local ordinances; and decisions by administrative agencies (e.g., National Labor Relations
Board [NLRB], U.S. Department of Labor [USDOL], Occupational Safety and Health
Administration [OSHA]) responsible for administering specific labor laws. Congress has
enacted numerous labor relations laws in the interest of employees and employers, public


welfare, and the furtherance of interstate commerce. Three major laws the Norris La
Guardia Act, the Labor Management Relations Act (LMRA), as amended, and the RLA
are discussed at length later in this chapter. Under the preemption doctrine, federal law
takes precedent over state law or local ordinances whenever both seek to regulate the same
conduct and there is a conflict between them.2 The preemption doctrine underscores the
importance of labor relations as an area that affects the national economy and therefore
benefits from the uniformity and stability that federal regulation of issues can provide.
State legislatures may pass laws and local municipalities may enact ordinances to fill voids
in federal laws or to extend regulation to issues not regulated by federal laws, such as the
right of state and local public employees to engage in collective bargaining.

The judicial branch of government, with its court system at the federal, state, and
local levels, functions to determine a law s constitutionality and conformity to legal stan-
dards; to assess the accuracy of interpretations by administrative agencies; and to issue
injunctions that restrict or require certain activities. In addition, the courts must decide
issues not covered by existing laws and make rulings under the general guide of equity.
These decisions constitute case law, which has developed over the years, establishing pre-
cedents and providing guidance for future legal decisions.

The executive branch of government includes various administrative agencies cre-
ated by Congress to interpret and administer some labor laws. These government agen-
cies establish policies and make rules to guide the administration of specific labor laws.
Although administrative agency decisions may be appealed to federal courts, the courts
are encouraged by Congress to give great deference to the expertise of agencies in inter-
preting and applying an applicable labor law. Some of the more important administrative
agencies mentioned include the following:

National Labor Relations Board (NLRB): Administers the National Labor
Relations (Wagner) Act as amended by the LMRA and certain aspects of the Labor
Management Reporting and Disclosure (Landrum Griffin) Act; the NLRB is
involved in the supervision of union representation elections and determination of
unfair labor practice (ULP) charges. Note that ULP charges can be pressed against
either employers or labor unions.
Federal Mediation and Conciliation Service (FMCS): Provides mediation services
to unions and employers engaged in collective bargaining. (A mediator is a third
party who helps the negotiators find a voluntary resolution to their dispute). The
FMCS also assists these parties in selecting arbitrators (third parties who issue
binding decisions) in grievance administration. Finally, the FMCS provides training
programs to encourage more cooperative labor management relations.
U.S. Department of Labor (USDOL): Performs many employment-related services,
such as research and data collection functions; administers federal wage and safety
laws; and enforces federal contract compliance under equal employment opportunity
requirements. In addition, the Secretary of Labor who heads the USDOL serves as a
member of the president s cabinet, responsible for employment-related matters.
National Mediation Board (NMB): Handles union representation issues under the
RLA; provides mediation services to parties in negotiations; assists in resolving disputes
over contract interpretation; and in cases involving emergency disputes, proposes
arbitration and certifies to the president that a dispute does constitute an emergency.
National Railroad Adjustment Board (NRAB): Hears and attempts to resolve
railroad labor disputes growing out of grievances and interpretation or application
of labor agreements.
State and local administrative agencies: Are responsible for the enforcement and
administration of state laws and local ordinances involving labor relations topics.

92 PART 1 Recognizing Rights and Responsibilities of Unions and Management

The Norris La Guardia Act

The 1929 stock market crash and ensuing economic depression forced a reassessment of
the extent to which private-sector employers should be trusted to manage the economic
welfare of the country. As unemployment rose and individuals savings declined, political
pressure mounted on Congress to take a more active role in regulating the economy,
including providing more protection for basic workers rights. In 1932, Congress passed
the Norris La Guardia Act (also called the Federal Anti-Injunction Act) to accomplish
four public policy goals.3

First, to allow employees a greater voice in seeking to advance and protect their
legitimate job interests, Congress limited the power of federal courts to issue labor injunc-
tions. Activities that previously had been routinely enjoined (prohibited) by judges were
now protected by law (e.g., peaceful picketing or publicity; encouraging employees to
join a union; a union s provision of economic or legal aid to employees during a labor
dispute). Under the Norris La Guardia Act, a temporary restraining order (TRO)
obtained solely on the basis of an employer s statements to restrict some alleged unlawful
employee conduct was limited in duration to only five days. During that time period, the
judge was required to conduct a hearing at which both sides could present basic argu-
ments and evidence as to whether the TRO should be converted to a temporary labor
injunction after the initial five-day period expired. An employer seeking to have the
court issue a labor injunction had the burden of proving that the following conditions
existed: (1) Unlawful acts have been threatened or committed; (2) substantial and irrep-
arable injury to the employer s property has or will likely occur as a result of such unlaw-
ful acts; (3) greater injury would be inflicted on the employer by denial of an injunction
than on the union (employees) by granting an injunction; (4) the employer had no other
adequate legal remedy; (5) public safety officers were either unable or unwilling to ade-
quately protect the employer s property; and (6) the employer had satisfied any existing
legal duty to bargain in good faith in an effort to settle the labor dispute (including the
offer of mediation) before going to court. Any labor injunction issued by a court was
required to describe the specific conduct being enjoined, eliminating the previous abuse
of general or vaguely worded blanket injunctions. 4

Second, the Norris La Guardia Act declared that a yellow-dog contract (previously
discussed in Chapter 2) would be unenforceable in federal court and thus no longer
valid as a basis for obtaining a labor injunction to prevent conduct which might breach
such an employment contract.5 However, many employers continued to discharge or
otherwise discriminate against employees for engaging in union activities.

A third public policy goal of the Norris La Guardia Act was to encourage the courts
to adopt a more impartial or neutral role in seeking to protect and enforce the legitimate
rights of employers and employees. Courts were encouraged to balance the legitimate
rights of employers and employees, a difficult task in an economic system where the par-
ties interests inevitably conflict to some extent. Acts for which a labor injunction was
not obtainable under the Norris La Guardia Act were no longer considered to be anti-
trust violations under the Clayton Antitrust Act.6 Rejecting the Supreme Court s inter-
pretation and application of the antitrust laws during the 1920s, Congress reinstated the
use of the economic boycott as a legitimate means of worker protest so long as it was
used to pursue a lawful purpose in a lawful manner.

A fourth public policy goal of the Norris La Guardia Act was to express congressio-
nal support for the process of collective bargaining as an appropriate means for employees
to improve and protect their employment interests. Through the collective bargaining
process, both labor and management could voice their concerns and present evidence

CHAPTER 3 Legal Influences 93

to support the adoption of reasonable work rules which fit the particular circumstances
and resources of each bargaining relationship. While the potential for conflict was part of
such a bargaining process, the presumption was that in most cases the parties would see
it to be in their own self-interests to peacefully resolve disputes over what the terms and
conditions of employment would be.

Although the passage of the Norris La Guardia Act signaled a change in U.S. labor
relations policy, the act did not establish an independent administrative agency to
enforce the act s provisions. This meant that organized labor had to pursue enforcement
through the judicial system, which historically had not been responsive to labor s needs
and interests. Another deficiency of the Norris La Guardia Act was that no specific
employer ULPs were identified and prohibited. These deficiencies were not resolved
until three years later.

The National Industrial Recovery Act of 1933

Franklin D. Roosevelt, who was backed strongly by labor unions, was elected president in
1932 along with a new Congress receptive to labor legislation as a means of ending a
long economic depression. President Roosevelt promised Americans a new deal based
upon a belief that market forces alone were incapable of putting the public s interests
ahead of private ownership s interests. He argued that dire economic conditions created
a need for more active government involvement in managing the economic welfare of
the country. The historical debate over the proper and necessary role of government in
helping to manage the economy has been a prominent part of efforts to address eco-
nomic recessions ever since including the latest one.

One of the first acts of the Roosevelt administration was to encourage Congress to
pass the National Industrial Recovery Act (NIRA, also abbreviated NRA), a law designed
to stabilize economic activity by allowing businesses to form associations that would
draw up codes of fair competition to standardize marketing, pricing, financial, and
other practices. Upon approval of the codes by the National Recovery Administration,
firms could display the Blue Eagle symbol that supposedly signified compliance and
identified firms from which customers should purchase their goods and services.

Section 7 of the NIRA required the codes to guarantee employees the right to union-
ize without employer interference, and a National Labor Board (NLB) was later estab-
lished to help settle disputes and to determine violations under Section 7. Meanwhile,
textile workers were dissatisfied with declining wages and miserable working conditions
as the Great Depression (which began in 1929) continued. Encouraged by the legal pro-
mises of the NIRA, between 300,000 and 400,000 textile workers, mostly in the South,
went on strike. However, the strike was a failure: The union did not have the financial
resources to feed or pay strike benefits to so many people. The industry board did not
address employee grievances. A separate federally appointed mediation board merely
issued a report calling for further study of industry and working conditions. Employers
did not recognize textile unions, raise wages, or improve working conditions. Strike lea-
ders were blacklisted and unions got a bad name in the South where union organizing
has remained difficult.7

Because the NIRA did not require employers to bargain with unions, and the NLB
could not enforce its orders effectively, the law was not very effective in protecting
employees rights to organize and bargain collectively. In 1934, Congress issued a joint
resolution calling for the president to establish an NLRB to investigate violations under
Section 7, NIRA and to conduct elections to determine whether employees wanted

94 PART 1 Recognizing Rights and Responsibilities of Unions and Management

independent union representation.8 The new board, created like its predecessor by exec-
utive order of the president, had trouble enforcing its orders and determining appropri-
ate employee organizational units for conducting elections. In 1935, the Supreme Court
ruled the NIRA unconstitutional when one of its codes of fair competition was applied to
an employer engaged in intrastate commerce going beyond Congresses authority to reg-
ulate interstate commerce.9

The National Labor Relations (Wagner) Act of 1935

One month after the NIRA was declared unconstitutional, Senator Robert Wagner, the
chairman of the NLRB and an active participant in labor law matters, steered through
Congress a separate labor relations law the National Labor Relations (Wagner) Act
(NLRA).10 The NLRA established a new national labor policy that sought to ensure the
free flow of commerce, labor peace and stability, and protection of the public s interests
by encouraging the process of collective bargaining and preventing employer interference
with the exercise of employee rights defined in the act. The NLRB was authorized to
investigate and decide ULP charges and conduct representation elections (other provi-
sions are covered later in the chapter).

This law provides the basic framework for private-sector labor relations for most
employees in the United States. Congress perceived that without legal protection for
employee rights, the economic power of employers far exceeded that of individual
employees and inevitably led to labor unrest, which had a detrimental effect on eco-
nomic growth and the public s interests. The Wagner Act is premised on an industrial
relations model that there are two classes in the industrial world, labor and management,
and that these two classes have very different, in fact opposing interests. 11

Section 7 Rights
Perhaps the key provision of the NLRA was Section 7, which listed the rights of employ-
ees under the law. These included the right to form or join a union, bargain collectively,
and engage in other concerted activity for mutual aid and protection (see Exhibit
3.1). Note that while it takes at least two people to have a union, an individual can
make statements or take actions that are protected under the law if it is done on behalf
of a group of employees.

Unfair Labor Practices by Employers
Section 8 of the Wagner Act specified that it was a ULP for employers to interfere with,
restrain, or coerce employees as they exercised their Section 7 rights. Subsequent inter-
pretation of this provision determined that the Wagner Act outlawed many employer
tactics designed to discourage union activity such as

Exhibit 3.1
Rights of Employees Section 7 Employees shall have the right to self-organization, to form, join, or

assist labor organizations, to bargain collectively through representatives of
their own choosing, and to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection, and shall also have the
right to refrain from any or all such activities except to the extent that such right
may be affected by an agreement requiring membership in a labor organization as
a condition of employment as authorized in section 8(a)(3).

SOURCE: Labor-Management Relations Act, 1947, as amended.

CHAPTER 3 Legal Influences 95

discharging or refusing to hire union supporters,
threatening pro-union workers with poor job assignments or termination,
using company spies to learn who was organizing a union,
blacklisting pro-union employees,
creating company unions,
bargaining in bad faith (discussed in Chapter 6),
requiring applicants to sign yellow-dog contracts.

All of these were declared to be ULPs under the NLRA.

The Supreme Court Challenge
Many employers believed the NLRA would be ruled unconstitutional like the NIRA.12

However, the Supreme Court declared the NLRA constitutional in 1937, recognizing
the important impact labor relations can have on interstate commerce and endorsing
Congress s right to regulate labor relations.13 With Supreme Court approval of the
NLRA and improved economic conditions in the United States, unions experienced tre-
mendous growth, almost tripling union membership to 8.4 million members by 1941.14

Employer Criticisms of the Wagner Act
Union activities in the decade following passage of the NLRA caused many to believe
that the labor relations pendulum had swung too far in favor of unions. Examples of
union actions that precipitated much public concern were strikes over union representa-
tion rights between competing AFL and CIO unions, union strikes or boycotts over bar-
gaining issues, a union refusal in some cases to negotiate in good faith with an employer,
and pressure on job applicants to become union members at companies where the
employer and union negotiated a closed shop union security clause under which an
employer agreed to hire only job applicants who were already members of a union repre-
senting the firm s workers.

Changes under the Labor Management Relations
(Taft Hartley) Act
As a reaction to employer criticisms of the NLRA and growing public concern over orga-
nized labor s actions, particularly during a wave of strikes that followed the end of World
War II, in 1947 Congress amended the NLRA by enacting the LMRA.15 Leaving the
original language of the NLRA virtually unchanged, the LMRA added language intended
to address certain identified deficiencies and direct more attention to the legitimate
rights of individual employees and employers involved in the labor relations process.
Thus, the law protected anti-union individuals from retaliation by pro-union workers
and union organizers. It also clearly gave owners and managers the right to speak in
opposition to unionization by employees. However, the law did not universally expand
free-speech rights. As noted in Chapter 2, the law required union officers to sign
affidavits swearing that they were not communists (this last provision was declared
unconstitutional by the U.S. Supreme Court in 1965). Calling it a slave labor act,
labor groups immediately mounted a successful campaign to have President Truman
veto the bill; however, Congress easily overrode Truman s veto.

Unfair Labor Practices by Unions
To emphasize Congress s intent to fairly balance labor relations policy, the National
Labor Relations Act (NLRA) was renamed the Labor Management Relations Act
(LMRA). Similar to employer prohibitions included in the NLRA, a section of unfair

96 PART 1 Recognizing Rights and Responsibilities of Unions and Management

union labor practices was added to the LMRA, making it illegal for a union to engage in
actions that discriminated against any employee s exercise of rights protected under Sec-
tion 7 of the LMRA. Language was added to Section 7 granting individual employees a
right to refrain from engaging in most forms of otherwise protected concerted activity.

Some union actions that have subsequently been determined to be illegal under the
LMRA include the following:

threatening workers who refuse to join or support a labor union,
paying people to support or vote for a union,
pressuring an employer to discriminate against hiring an anti-union applicant,
bargaining in bad faith,
jurisdictional strikes,
strikes against employers who are not involved in the labor dispute,
political strikes striking in support of a political cause or candidate.

The Closed Shop vs. the Union Shop. Congress agreed that membership in a particu-
lar labor organization should not be a precondition for employment and therefore made
the closed shop union security clause illegal. However, Congress recognized that some
level of union security was necessary to ensure that employees who desired union repre-
sentation could achieve a reasonably permanent and effective voice in protecting their
workplace interests. Employers and unions were permitted under the LMRA to negotiate
certain types of voluntary union security clauses. One form was a union shop union
security clause requiring a new employee join a union within 30 days after hire. A sec-
ond form was an agency shop clause where the new employee did not have to join the
union, but, because the union is the bargaining agent for everyone in certain unionized
jobs, the employee had to pay a fee equivalent to regular union dues and initiation fees.
Either of these clauses typically required payment for as long as the employee held a job
in a bargaining unit represented by the union.

Some members of Congress supported legislation allowing labor contracts to contain
union security clauses; others opposed such clauses. As a political compromise, Congress
allowed individual states to ban union security agreements in their state (so-called right-
to-work laws). Essentially, a right-to-work law allows only the open shop, where work-
ers can choose to join a union or can choose not to; those who choose not to join the
union do not pay anything to the union. Union security issues will be discussed further
in Chapter 4.

Employer Opposition to Unionization
The LMRA addressed employer criticism of an NLRB policy that severely restricted an
employer s right to speak out on the question of union representation during an organiz-
ing campaign. In 1941, the Supreme Court declared that NLRB policy to be an unconsti-
tutional prohibition of employers First Amendment free-speech rights.16 Six years later,
Congress essentially incorporated the court s decision into the language of Section 8(c),
LMRA, which protects the expressing of any opinions or arguments about labor relations
issues so long as such expression contains no threat of reprisal or promise of benefit.

Right to File a Lawsuit
To encourage unions and employers to live up to negotiated contract terms, Section 301,
LMRA permitted the parties to a collective bargaining agreement to sue in court for
breach of contract if necessary to obtain the other party s compliance with the terms of
the labor agreement. Prior to this change, an employer was forced to sue individual
union members separately for violating a contractual no-strike agreement, which was

CHAPTER 3 Legal Influences 97

both time consuming and expensive. While permitting an employer to sue a union
directly for economic damages under Section 301, LMRA, Congress removed the right
to sue individual union members to recover economic damages for a breach of a labor
contract s terms.

Managers and Unionization
The Taft Hartley Act also clarified that managers did not have a legal right to unionize.
Nor did managers have a right to keep their job if they publicly spoke out against an
employer s labor policy or bargaining position. The law codified the assumption that
managers acted as the agents for their employers when dealing with labor relations

Since 1959, there have been two successful legislative attempts to expand employee
coverage under the LMRA. The LMRA was first extended to cover the U.S. Postal Service
in 1970 (see Chapter 13) and then to cover private-sector profit and nonprofit health
care institutions in 1974.

Labor Management Reporting and Disclosure
(Landrum Griffin) Act

In the late 1950s, a special Senate committee headed by Senator John McClellan vigor-
ously pursued the abuses of power and corruption by some union leaders, particularly
those of the Teamsters and specifically of Dave Beck and Jimmy Hoffa.17 Exposing
shocking examples of union corruption and abuses of power, Congress reacted in 1959
by passing the Labor Management Reporting and Disclosure (Landrum Griffin) Act
(LMRDA).18 The LMRDA is primarily designed to protect the rights of individual
union members in their relations with their own union and to ensure that labor organi-
zations operate in a democratic and financially responsible manner. Unlike the LMRA,
which applies to both union and nonunion employees, the LMRDA covers only indivi-
duals who are members of a labor organization.

For example, the LMRDA requires all local union officers to be elected by secret-
ballot vote of union members at least once every three years and national union officers
at least once every five years. Union members must approve any increase or decrease in
the amount charged for union membership dues, initiation fees, or other special assess-
ments. A union s constitution and by-laws approved by a vote of the membership is con-
sidered to be a binding contract between the union and its members, enforceable in
court. Unions are required to file annual reports with the USDOL available to the public
containing information on union assets and liabilities, union officer salaries, and current
union operating rules. Labor organizations are among the most regulated organizations
in U.S. society today.

The Landrum Griffin Act also contains provisions that enhance and protect the
rights of individual members. The law provides for equal voting rights in officer elections
for all members, regardless of their position in the union or how long they have been in
the union. The law grants members the right to run for union office, to nominate others
for office, and to make speeches for candidates. Members also have the right to own a
copy of their collective bargaining agreement.

Title VII of the LMRDA also contained some amendments to the LMRA. Most
important was the addition of Section 303 to the LMRA, which granted neutral, second-
ary employers harmed by unlawful secondary strike, boycott, or picket activity a right to
sue a labor organization to recover economic damages.

98 PART 1 Recognizing Rights and Responsibilities of Unions and Management

National Labor Relations Board

One weakness of the 1933 1935 NIRA had been the lack of any effective enforcement
mechanism. Confronted with a prior history of relatively weak court enforcement of
employee rights, Congress took the extraordinary step of designating an independent
federal administrative agency, the NLRB, to be the primary interpreter and administrator
of the newly created NLRA. To ensure the constitutionality of the NLRA, Congress pro-
vided that ULP decisions of the NLRB could be appealed for review to an appropriate
federal circuit court of appeals. The courts were instructed by Congress to pay great def-
erence to the policies of the NLRB in interpreting what Congress intended the law to

The NLRB is headquartered in Washington, D.C., and headed by a five-member
panel termed the Board.19 Board members are nominated by the president to serve a
five-year term and must be confirmed by the U.S. Senate. Terms of Board members are
staggered to ensure that not all vacancies occur at the same time, although due to delays
in the nomination and confirmation process there have been periods where several
Board seats were vacant at the same time, affecting the ability of the NLRB to function

As political appointees, Board members generally reflect the basic labor relations
philosophy of the president who nominated them. The nomination process is subject to
intense lobbying by employers, unions, and other outside interest groups (e.g., National
Right to Work Committee) who recognize the important role the Board serves in deter-
mining the balance between protection for employer and employee interests, particularly
on legal issues where such interests may conflict. Interpretations of the facts and law
governing union management relations is dependent in part on the makeup of the
board. 20 One study reported finding an apparent pro-employer or pro-union bias in
only 20 percent of Board case decisions.21

Increased political partisanship in the selection and confirmation of Board members
has been a real problem in recent years. Frequent legal interpretation shifts among Board
members makes it difficult for labor and management practitioners and covered employ-
ees to know with some reasonable degree of certainty that lawful acts taken today will
continue to be lawful in the future.22 Significant periods of time when the Board has
fewer than its full five-member complement results in case delays and prevents signifi-
cant legal questions regarding the LMRA s interpretation from being addressed. Since
1988 over 25 percent of Board nominees have failed to win Senate confirmation.23

From January 2008 through March 27, 2010, the Board functioned with only two
members. The two Board members continued to render almost 600 ULP case decisions
on the theory that two members constituted a majority quorum of a three-member
panel. In a 5 4 decision in New Process Steel, L.P. v. NLRB (2010), the Supreme
Court ruled that the LMRA requires that at least three Board members participate in
every case decision in order to be lawful.24 At the time of the court s decision, there
were 96 cases on appeal before the federal courts. The Board subsequently requested
that all of these cases be remanded to the Board for further consideration by a three-
member panel of Board members. (Most cases were re-heard with a proper quorum
and resolved with a similar Board decision.) However, that was not the end of the
political drama. Because the Senate would not confirm some of President Obama s
nominees to the Board, in 2012 the president made three recess appointments while
Congress was out of town during Christmas Break; the only problem was that the Sen-
ate was technically not recessed, leaders held cursory sessions to prevent just such
recess appointments. In 2014, the Supreme Court ruled in Noel Canning v. NLRB that

CHAPTER 3 Legal Influences 99

the recess appointments were invalid. This decision meant that over 1000 NLRB
decisions had to be reconsidered.25

The Board has two primary responsibilities. One responsibility is to prevent employer
and union ULPs as defined by the LMRA, as amended, which interfere with the exercise of
employee rights protected by the act. This responsibility is carried out primarily through the
investigation, prosecution, and remedy of ULPs. The second responsibility is to determine if
employees covered under the LMRA desire representation by an independent labor organi-
zation for purposes of collective bargaining. The Board establishes and conducts certifica-
tion procedures to determine if a majority of eligible employees desires a specific labor
organization to represent them for purposes of collective bargaining. These secret-ballot
elections are called union representation elections or certification elections. In FY
2012, of 24,275 total cases filed with the NLRB, 89 percent were ULP; the remainder of the
cases involved union representation elections. Many were resolved by Administrative Law
Judges (described below), but some were appealed to the Board. Typically, between 65 and
75 percent of the Board s case load involves ULP cases and 25 and 35 percent involves repre-
sentation election cases.26 The Board exercises final administrative decision-making author-
ity in all ULP and representation cases, although ULP decisions may be appealed for review
by a federal court. Some recent decisions, shown in the Labor Relations in Action box,
demonstrate the importance of Board decisions to workers and their employers.

The Board delegates authority to the General Counsel and staff attorneys to prosecute
ULP charges. The General Counsel is nominated by the president to serve a four-year term
and must be confirmed by the U.S. Senate. As with Board members, the General Counsel s
nomination and confirmation process is subject to interest group politics.

A major responsibility of the General Counsel s office is to conduct a preliminary
investigation of each ULP charge to determine if sufficient (prima facie) evidence exists
to conclude a ULP may have occurred. If insufficient evidence of a violation is found, the
General Counsel has the authority to dismiss a ULP charge, and there is no appeal of
that decision. This gives the General Counsel tremendous influence in helping to deter-
mine the policy making agenda of the Board because the Board announces new policies
or alters existing policies through the issuance of ULP case decisions. The only cases in
which the Board will have an opportunity to render a ULP decision are those cases in
which the General Counsel s investigation concluded that evidence of a ULP existed.

The General Counsel is also responsible for representing the NLRB whenever a
Board decision or order is appealed to a federal court or when the Board seeks a court
order to enforce its decision. The General Counsel also serves as a legal advisor to Board
members on matters pertaining to the interpretation or application of the LMRA or how
past Board policies and procedures have fared upon review by the federal courts. The
General Counsel relies upon staff attorneys located at the NLRB s headquarters in
Washington, D.C., as well as each regional NLRB office to help carry out the responsibil-
ities of the General Counsel s office.

For employees, a union, or management practitioner, contact with the NLRB typi-
cally occurs at the regional or resident office level. The NLRB maintains 26 regional
offices, with 25 additional satellite offices located throughout the country to handle
ULP and union representation election cases. Each regional office is headed by a regional
director, who also manages any sub regional or resident offices located within the
regional office s geographic jurisdiction. The regional director and staff work with the
General Counsel to investigate ULP charges and are delegated authority by the Board
to administer all representation election procedures. Most meritorious ULP cases get
resolved at the regional office level with the settlement rate ranging between 91.5 and
99.5 percent over the previous ten-year period. Among the cases that are litigated before

100 PART 1 Recognizing Rights and Responsibilities of Unions and Management

Selected Labor Relations Cases Decided by the U.S. Supreme Court and the NLRB

Back-Pay Remedy
One remedy available to employees who have been ille-
gally discharged (in violation of the LMRA) is that they
can receive back pay for the period of time they were
unemployed. However, what if the employee is an ille-
gal immigrant? In a 5 4 decision, the U.S. Supreme
Court ruled that the Immigration Reform and Control
Act prevents the NLRB from awarding a back-pay rem-
edy to an undocumented immigrant (a.k.a., illegal alien).
This is so, even though an employer can be found guilty
of committing an unfair labor practice in violation of the
undocumented alien s employee rights under the
LMRA. Requiring back pay is inappropriate, the Court
reasoned, because the illegal immigrant is not allowed
to work in the United States. However, the NLRB can
impose other remedies for the employer s unfair labor
practice such as a cease-and-desist order and an order
to post notices admitting the unlawful conduct and
informing company employees of their basic employee
rights under the LMRA. Hoffman Plastic Compounds,
Inc. v. NLRB, 122 S.Ct. 1275 (2002).

Determination of Supervisory Status
Supervisors are excluded from coverage under the
LMRA. However, it is not always obvious whether an
employee is a supervisor. The party asserting that an
employee is a supervisor bears the burden of proving
the employee s supervisory status. To be a supervisor
under the LMRA, an individual must (1) perform at least
one of the 12 specified supervisory functions (e.g., hir-
ing, performance evaluation); (2) use independent judg-
ment that is not merely routine or clerical in nature; and
(3) exercise authority in the interests of the employer.
Supervisory status must be determined on a case-
by-case basis. See: Oakwood Healthcare, Inc. and
United Auto Workers of America, 348 NLRB 686
(2006); Beverly Enterprises-Minnesota, Inc. d/b/a
Golden Crest Healthcare Center and United Steelwor-
kers of America, 348 NLRB 727 (2006); Croft Metals,
Inc. and International Brotherhood of Boilermakers,
Iron Ship Builders, Blacksmiths, Forgers and Helpers,
348 NLRB 717 (2006); and NLRB v. Kentucky River
Community Care, Inc., 121 S.Ct. 1861 (2001).

Unilateral Employer Withdrawal of Union
Applying legal principles established by the U.S.
Supreme Court in Allentown Mack Sales & Service v.
NLRB, 522 U.S. 359 (1998), the Board held that an
employer may unilaterally withdraw union recognition
of the exclusive bargaining unit representative only if

the employer can prove the union has lost majority
employee support as of the date of the employer s uni-
lateral withdrawal of recognition. Alternatively, an
employer may obtain an NLRB-supervised election to
determine if the majority of bargaining unit employees
supports the incumbent union if the employer can dem-
onstrate a good faith reasonable uncertainty regarding
the union s continued majority support. The Board
would prefer employees directly express their desire
for or against union representation through a secret-
ballot representation election rather than have an
employer act unilaterally to withdraw union recognition.
Levitz Furniture Company of the Pacific, Inc., 333 NLRB
717 (2001)

Union Recognition
What if an employer believes that a majority of the
workers in the bargaining unit no longer support their
union? Can the employer refuse to deal with that
union? The U.S. Supreme Court unanimously held that
an employer may not refuse to bargain with an incum-
bent union on the grounds that the employer believed
that the union had lost the support from a majority of
the workers in the bargaining unit. Interestingly, the
employer had made this determination shortly after
entering into a contract with the union. Auciello Iron
Works, Inc. v. NLRB, 116 S. Ct 1754 (1996).

Definition of Employees under LMRA
Agricultural workers are not covered under the LMRA.
Are the people who work as members of a live chicken
catching crew considered agricultural workers? Most
of their work was performed at chicken farms. They
caught chickens for farmers who subcontracted with a
chicken processing plant to raise the chickens to a mar-
ketable age and size. The NLRB ruled that crew mem-
bers were employees of the chicken processing plant
and not excluded from coverage under the LMRA as
agricultural laborers. Holly Farms Corp. v. NLRB, 116
S. Ct. 1396 (1996)

Union Organizers
The Court unanimously upheld the NLRB s decision that
paid union organizers are employees within the
meaning of the LMRA when applying for a job or after
being hired by the employer. Therefore, individuals act-
ing as union salts (undercover union organizers) are
protected against employer retaliation in the form of dis-
charge or discipline for participating in any protected
activity under Section 7 of the act, such as attempting
to organize a union among employees. NLRB v. Town &
Country, 116 S. Ct. 450 (1995)


Partial Lockout
What happens to employees who strike but then
abandon their strike? Can their employer lock them
out? That was the situation at one employer: Employ-
ees had initiated a lawful economic strike on June 28,
but abandoned that strike on August 31 and sought
immediate reinstatement to their bargaining unit jobs.
Still without a negotiated collective bargaining agree-
ment, the employer initiated a lockout applicable to
striking workers who had not abandoned the strike
prior to August 31 in order to put pressure on those
employees to agree to the employer s proposed
contract terms. The 7th U.S. Circuit Court of Appeals
prohibited the employer from locking out those
employees. The court found no evidence supporting
a legitimate business reason for the lockout and fur-
ther found the lockout to be an unfair labor practice
under the LMRA. Why? Because the lockout discrimi-
nated against employees who had exercised their law-
ful right to engage in an economic strike in furtherance
of their bargaining interests. Local 15, International
Brotherhood of Electrical Workers v. NLRB, 429 F.3d
651 (7th Cir. 2005)

Failure to Pay Required Union Dues
Employees covered by a valid union security clause
(e.g., a union shop clause) are subject to discharge
for failing to pay the amount of union dues owed
after proper notification by the union and a reason-
able opportunity to meet the employee s dues obliga-
tion. If employees do not pay their dues, must the
employer fire them? Yes. A refusal by an employer
to honor a union s request to discharge bargaining
unit employees who have failed to meet their lawful
union dues obligation represents an employer unfair
labor practice violation under the LMRA. St. John s
Health Systems v. NLRB, 436 F.3d 843 (8th Cir.

Successor Employer Bargaining
Overruling a 1999 Board policy, the Board returned to
the previous policy, which holds that an incumbent
union in a successor employer situation is entitled to a
presumption of continuing majority support. This policy
also permits the following: (1) employees can file a valid
decertification petition (to schedule a vote to get rid of
the union), (2) another union can file a valid representa-
tion petition (to try to replace the incumbent union), or
(3) a successor employer can file an employer election
petition challenging the union s presumption of continu-
ing majority support. A successor employer s duty to

bargain with an incumbent union continues until the
date on which a lack of majority employee support for
the union can be established. MV Transportation, 337
NLRB 770 (2002)

Inclusion of Leased Employees in a
Bargaining Unit with Regular Employees
On a 3 2 vote, the Board held that it was not permis-
sible to combine an employer s own employees in
the same bargaining unit with employees performing
similar job tasks obtained from another employer
(e.g., company supplying leased labor) without the
consent of both the user employer and the supplier
employer. This will make it more difficult for leased
or temporary agency employees to gain union repre-
sentation rights at the firm where they actually per-
form their job duties. Oakwood Care Center, 343
NLRB 659 (2004)

Duty to Bargain
When an employer has been found guilty of bad
faith bargaining and issued a remedial order to bargain
in good faith, such bargaining must occur for a rea-
sonable time before the union s majority status as
bargaining representative can be challenged. Rea-
sonable time refers to a period no less than six
months nor longer than one year. The exact length
time good faith bargaining would be required is deter-
mined on a case-by-case basis based on several fac-
tors including: whether the negotiations are for an
initial contract or seek to amend an existing agree-
ment, the complexity of the issues being negotiated
and the parties bargaining procedures, the total
amount of time elapsed since the start of bargaining
and the number of bargaining meetings held, the
amount of progress the parties have made and how
close the parties appear to be to reaching a settle-
ment, and whether the parties have reached a good-
faith bargaining impasse. Lee Lumber and Building
Material Corp., 334 NLRB 399 (2001)

Employer Use of Employees in Pro-Company
Union Representation Election Campaign
Suppose an employer wants to make a video to show to
employees as part of an anti-union campaign prior to a
representation vote. Can the employer ask employees
to appear in an anti-union video? The Board established
four clear conditions which if met, would permit
employers to solicit employees to appear in an anti-
union election campaign video. To be lawful: (1) the


solicitation to participate in the campaign video must be
in the form of a general announcement, which discloses
the purpose of filming and assures employees that par-
ticipation is voluntary; no retaliation can occur against
employees who do not voluntarily choose to participate
and no rewards or benefits will be provided to those
employees who do participate; (2) employees may not
be pressured to make a decision regarding their partici-
pation in the presence of a supervisor; (3) there can be
no unlawful conduct connected with the employer s
solicitation for voluntary participants; and (4) the solicita-
tion cannot occur in a coercive atmosphere created
by the employer s commission of other unfair labor
practices. Allegheny Ludlum Corporation, 333 NLRB
734 (2001).

Coverage of Teaching and Research
Graduate Assistants
Graduate students take classes, but also work in
laboratories and teach classes at many private univer-
sities. Are they employees and thus eligible to
unionize? The Board ruled that graduate student
assistants do not meet the definition of employee
and thus are not entitled to exercise protected
employee rights under the LMRA. This reversed, by a
3 2 vote, a 2000 Board decision that had extended
coverage to teaching and research graduate assis-
tants at a private university. Compare Brown Univer-
sity, 342 NLRB 483 (2004) to New York University,
332 NLRB 1205 (2000).

Coverage of Medical Interns, Residents, and
Fellows (House Staff)
Reversing previous policy, the Board ruled that hospital
interns and residents in a private hospital are employees
covered by the LMRA even though they are students.
Therefore, these employees have the right to organize
and join a union and participate in other protected
concerted activities. Boston Medical Center Corp., 330
NLRB 152 (1999). (Note: If the Board follows its reason-
ing in Brown University discussed previously, then
the Boston Medical Center Corp. decision could be
reversed in the future.)

Weingarten Rights Applied to
Unrepresented Employees
In 1975, the U.S. Supreme Court ruled that if a union-
ized employee anticipates being disciplined by manage-
ment, he or she has a right to have a union official
present at the meeting. The right to obtain union coun-
sel at such meetings is called Weingarten Rights. But

what about nonunion employees? Can a nonunion
worker bring a co-worker to such a meeting? No. Con-
tinuing a long running dispute over the interpretation of
what constitutes protected activity for mutual aid or pro-
tection, by a 3 2 vote, the Board reinstated a previous
policy denying nonunion (unrepresented) employees
covered by the LMRA a right to have a co-worker pres-
ent during an investigatory interview with management
where the employee had reason to believe that he or
she might be subject to disciplinary or discharge. Exer-
cise of such a right is viewed as a form of concerted
activity for mutual aid or protection when exercised by
union-represented employees but not when exercised
by unrepresented employees. So-called Weingarten
rights also permit a union-represented employee to
know the general nature of the alleged violation being
investigated and a reasonable opportunity to meet with
his or her union representative prior to any investigatory
meeting with management. Compare IBM Corporation,
341 NLRB 1288 (2004) to Epilepsy Foundation of North-
east Ohio, 331 NLRB 676 (2000) enforced in part, Epi-
lepsy Foundation of Northeast Ohio v. NLRB, 268 F.3d
1095 (D.C. Cir. 2002). See also NLRB v. Weingarten,
420 U.S. 251 (1975).

Enforcement of Agreement to Arbitrate
Employment Discrimination Claim
An arbitration clause in a collective bargaining agree-
ment that clearly and unmistakably requires a bargaining
unit member to submit employment discrimination
claims covered by a federal antidiscrimination statute
to arbitration is enforceable. The bargaining unit mem-
ber may not submit a legal claim under the applicable
antidiscrimination law through the court system. The
contractual arbitration procedure is the bargaining unit
member s exclusive remedy for his or her employment
discrimination claim. 14 Penn Plaza, LLC v. Pyett, 129 S.
Ct. 1456 (2009).

Minimum Number of NLRB Board Members
Required to Make a Case Decision
Section 3(b) of the LMRA requires the Board to have at
least three of five members participating in order to
exercise the delegated authority of the board. New Pro-
cess Steel, L.P. v. National Labor Relations Board, 130
S. Ct. 2635 (2010).

Voluntary Employer Recognition Does Not
Create an Election Bar
If an employer grants voluntary recognition of a labor
union, can workers who support a rival union still file a


an ALJ or the Board, the General Counsel and prosecutorial staff typically win, in whole
or in part, 75 90 percent of the time.27

Employer and Employee Coverage under the LMRA, as Amended
To promote the public policy goals of the LMRA, as amended, Congress sought to
include as many employers and employees as possible under the statute s coverage.
The U.S. Constitution permits Congress to regulate private-sector employers whose
operations have the potential to vitally affect interstate commerce. If an employer is
subject to coverage under the statute, the employer s employees are also covered
(protected) by the statute unless they fall into an employee category specifically
excluded from coverage (e.g., agricultural workers). The term NLRB jurisdiction
refers to those employers and employees to whom the NLRB can apply the language
of the LMRA.

The NLRB may refuse to assert jurisdiction in cases where it believes the effect on
interstate commerce is minor (de minimus). For example, the NLRB has refused to
hear cases from state-regulated industries such as real estate, horse and dog racing.
Individual states may assert jurisdiction over any case where the NLRB has declined
to do so.28

From 1935 to 1950 the Board relied upon the judgment of individual regional direc-
tors to determine an employer s ability to affect interstate commerce on a case-by-case
basis. To reduce the inconsistencies inherent in this approach and improve the objectiv-
ity of decisions, the Board adopted a set of monetary standards (guidelines) applicable to
different types of employer operations (see Exhibit 3.2). In 1959 as part of the LMRDA,
Congress prohibited the Board from refusing to apply or altering the monetary standards
then in effect without congressional approval.

The standards measure the total dollar volume of an employer s operations (gross rev-
enue) and the dollar value of products or services sold (outflow) or purchased (inflow) over
a 12-month period (e.g., most recent calendar or business tax year or 12 months immedi-
ately preceding the filing of a ULP charge or representation election petition). Meeting the
specified dollar threshold using any one of the available measurements is sufficient to per-
mit the NLRB to assert jurisdiction over the case and apply the terms of the LMRA.

Congress excluded some individuals from the definition of an employee subject to
coverage under the LMRA, as amended. Specifically excluded by statutory language are
as follows:

Agricultural laborers are employees whose primary duties involve ordinary farming
operations performed prior to a product s readiness for initial sale.29 Some states
(e.g., AZ, CA, HI, ID, KS, MA, WI) have enacted a collective bargaining law to cover
agricultural laborers.

petition asking the NLRB to hold a representation elec-
tion? In a 3 2 decision, the Board ruled that an employ-
er s granting of a union s request for voluntary
recognition as the exclusive bargaining representative
of an employee group does not bar the filing of a rival
union petition within 45 days of the date notice is

provided that voluntary employer recognition has
been granted. The policy appears aimed at weakening
the credibility of voluntary employer recognition
based upon a showing of significant employee support
for a rival union. Dana Corporation, 351 NLRB 434


Exhibit 3.2
NLRB Jurisdictional
Standards Determining
Employer Coverage
under the LMRA

Nonretail Business Direct or indirect sales through others of goods to consu-
mers in other states (called outflow) of at least $50,000 a year; or direct or indi-
rect purchases through others of goods from suppliers in other states (called
inflow) of at least $50,000 a year.

Retail Business At least $500,000 total annual volume of business.

Office Building Total annual revenue of $100,000, $25,000, or more of which
is derived from organizations which meet any of the standards except the indi-
rect outflow and indirect inflow standards for nonretail firms.

Public Utility At least $250,000 total annual volume of business, or $50,000
direct or indirect outflow or inflow.

Newspaper At least $200,000 total annual volume of business.

Radio, Telegraph, Television, and Telephone Firms At least $100,000 total
annual volume of business.

Private Health Care Institutions (e.g., hospital, HMO, clinic, nursing home)
At least $250,000 total annual volume of business for hospitals; at least $100,000
for nursing homes, visiting nurses associations, and related facilities; at least
$250,000 for all other types of private health care institutions.

Hotel, Motel, Residential Apartment Houses At least $500,000 total annual
volume of business.

Transportation Enterprises, Links, and Channels of Interstate Commerce
(e.g., interstate bus, truck) At least $50,000 total annual income from furnish-
ing interstate passenger and freight transportation services OR performing ser-
vices valued at $50,000 or more for businesses which meet any of the
jurisdictional standards except the indirect outflow and inflow standards estab-
lished for nonretail firms. [NOTE: Airline and Railroad operations are covered
under the Railway Labor Act (RLA), not the LMRA and thus are not subject to
NLRB jurisdiction.]

Transit Systems At least $250,000 total annual volume of business.

Taxicab Companies At least $500,000 total annual volume of business.

Associations The annual business of each association member is totaled to
determine whether any of the standards apply.

Private Universities and Colleges At least $1 million gross annual revenue
from all sources (excluding contributions not available for operating expenses
due to limitations imposed by the donor).

Any Firm with a Substantial Impact on National Defense.

U.S. Postal Service by enactment of the Postal Reorganization Act of 1970.

Symphony Orchestras At least $1 million gross annual revenue from all
sources (excluding contributions not available for operating expenses due to
limitations imposed by the donor).

Social Service Organizations Not Covered under Any Other Standard At
least $250,000 gross annual revenue.

SOURCE: Office of the General Counsel, NLRB, A Guide to Basic Law and Procedures under the National Labor Relations Act
(Washington, D.C.: U.S. Government Printing Office, 1997), pp. 33 35 at http://www.nlrb.gov/shared_files/brochures/basicguide.pdf.

CHAPTER 3 Legal Influences 105

Individuals employed by an employer covered under the RLA (rail and airline
Individuals employed as a domestic by a private household (e.g., cook, nanny, butler,
chauffeur, gardener, personal assistant).
Individuals employed by a parent or spouse are excluded from coverage under the
LMRA. On a case-by-case basis, other individuals may be excluded from a particular
bargaining unit because evidence demonstrates their self-interests to be more
closely aligned with that of ownership rather than other employees included in a
bargaining unit.
Individuals employed by a public-sector employer (federal, state, or local). Public-
sector labor relations issues are discussed further in Chapter 13. U.S. Postal Service
employees are the only exception to the public employee exclusion rule. As part of a
settlement to end an illegal strike by postal workers, Congress enacted the Postal
Reorganization Act of 1970, which placed postal workers under coverage of the
LMRA, greatly expanding the number and types of issues over which workers could
legally bargain. Unlike other private-sector employees covered by the LMRA, postal
workers have no legal right to strike. However, if the negotiation process does not
successfully produce a labor agreement they may invoke final and binding interest
arbitration as a means of resolving the terms of the new contract. Interest arbitration
will be discussed further in Chapter 9.
Independent contractors are considered self-employed and thus are treated as an
employer, not an employee under the LMRA. Thus, independent contractors cannot
unionize. Merely calling someone an independent contractor is not sufficient evi-
dence to establish their employment status. The Department of Labor has estab-
lished some guidelines for whether someone is an independent contractor. In
general, an independent contractor is an individual who offers a service for a fixed
fee to provide a specified result. The wages of an independent contractor are at risk
in the sense that any profit is dependent upon the contractor s ability to deliver the
agreed-upon work product at a cost below the fixed fee agreed upon in advance. An
independent contractor controls the manner in which work is performed and gen-
erally furnishes his own training, tools, or other work materials.
Supervisors were not originally excluded from coverage under the 1935 NLRA, but
Congress added the exclusion as part of the LMRA (Taft Hartley) amendments in
1947. Section 2(11), LMRA defines a supervisor as any individual delegated man-
agement authority to perform or effectively recommend one or more of the follow-
ing functions affecting employees: to hire, transfer, suspend, lay off, recall, promote,
discipline, discharge, adjust grievances, assign work, or reward employees so long as
the exercise of such authority requires the use of independent judgment which is not
merely routine or clerical in nature. 30 To be a supervisor the evidence must show
that the individual (1) performs at least one of the specified supervisory functions,
(2) has been delegated authority to perform such supervisory functions in the inter-
ests of the employer (as opposed to performance as a routine part of the individual s
professional responsibilities), and (3) exercises independent judgment when per-
forming his or her supervisory duties (as opposed to merely carrying out the deci-
sions of some other manager or applying established policies). The supervisory
exclusion has since been extended to include any manager who participates in the
formulation or execution of management policies and procedures so long as such
activity involves the exercise of independent judgment or discretion.31

The mere fact that a professional employee (e.g., nurse, teacher, or engineer) exer-
cises some independent judgment or discretion in performing their job duties does not

106 PART 1 Recognizing Rights and Responsibilities of Unions and Management

automatically exclude that individual from coverage under the LMRA. In Oakwood
Healthcare Inc. (NLRB 2006), cited in the Labor Relations in Action section earlier in
this chapter, the Board ruled that 12 permanent charge nurses met the definition of a
supervisor, whereas 169 other registered nurses whom the employer had sought to
exclude from a bargaining unit as supervisors were not supervisors even though on
some occasions they were labeled as charge nurses by the employer.32

Concerted and Protected Employee Activity
Concerted activity implies some action taken by or on behalf of two or more employees
to express a complaint or grievance relating to conditions of employment under the
employer s control, for example, work procedures, staffing levels, pay or benefits, safety
conditions, hours of work, discipline or other matters affecting wages, hours, or other
terms and conditions of employment. The LMRA does not protect complaints or grie-
vances of a purely personal nature (i.e., of concern to a single employee). Nor does it
protect concerns unrelated to employment, such as financial concerns an employee
might have as owner of a firm s stock.

To be protected under the LMRA, the concerted activity must be for a protected
purpose (described in Section 7 of the act) and engaged in using lawful means. For
example, tactics used to form or join a union or engage in collective bargaining or
other mutual aid or protection cannot involve violence, sabotage, or a disproportionate
loss or disruption to the employer relative to the seriousness or importance of the
employees complaint or grievance. On a case-by-case basis, the NLRB must decide if
the act is taken on behalf of multiple employees and if so, is the act for a lawful purpose
using lawful means?

Employees are not required to provide management with an opportunity to resolve
a complaint or grievance prior to engaging in some form of concerted and protected
activity to express a complaint or grievance.33 Nor are employees required to accept
any management proposal for resolving a complaint or grievance even though manage-
ment believes the proposed settlement terms are fair and appropriate. Although unrepre-
sented (nonunion) employees covered under the LMRA have a right to engage in
concerted and protected activity, they do not have a right to require their employer to
engage in collective bargaining with them over a solution to the grievance dispute. The
duty to bargain cannot be lawfully imposed until a labor organization has been legally
certified as the exclusive bargaining representative of an employee group. The union rec-
ognition (certification) step is discussed further in Chapter 5, and the duty to bargain in
good faith is discussed in Chapter 6.

The Interboro doctrine represents an exception to the requirement that an employee
be able to prove that he or she acted with or on the express authorization of one or more
other employees in order to be considered engaged in concerted activity.34 A single bar-
gaining unit member can be implied to be acting in concert with other bargaining unit
members covered under the same contract terms whenever the individual acts alone to
enforce a term or condition of a collective bargaining agreement. Even if an employee
has not previously discussed the issue (e.g., safety concern, denial of pay, or promotion)
with other employees or no other employee is present at the time when the employee
expresses the grievance complaint to a member of management, no adverse action can
be taken against the individual merely for expressing the grievance so long as the com-
plaint concerned a term or condition of an existing collective bargaining agreement.

The exercise of Section 7 rights through concerted activities is not unlimited. For
example, reasonable restrictions on the right to strike can occur based upon a strike s
objective, its timing, or the conduct of the strikers. If a strike s purpose was to achieve

CHAPTER 3 Legal Influences 107

a closed shop contract provision forcing the hiring of only union members, its purpose
would be illegal; therefore, the strike would be illegal. If a strike occurs in violation of a
no-strike provision in the contract, the timing of the strike is inappropriate, and all strik-
ing employees may be disciplined. Further, strikers do not have the right to threaten or
engage in acts of violence. Neither sit-down strikes nor refusals to leave a plant are pro-
tected strike activities. Strikers also exceed their rights when they physically block per-
sons from entering or exiting a struck plant or when threats of violence are directed
against employees not on strike. Strike issues are further explained in Chapter 9.

NLRB Unfair Labor Practice Procedure
The procedure for a ULP charge (Exhibit 3.3) starts when an employee, employer, labor
union, or individual files a charge with an NLRB office within six months of the date the
alleged violation occurred. The party filing the charge is termed the Charging Party and
the party accused of committing the violation is termed the Respondent. Typically, a
union files charges on behalf of one or more employees and the workers employer is
named as Respondent. A refusal to bargain in good faith is typically the most common
alleged employer ULP (accounting for about half of ULP cases) followed by alleged ille-
gal discharge or other discrimination against employees (about 40 percent of cases). Of
the ULP charges filed against unions, the two most common allegations were illegal
restraint or coercion of employees (79 percent of cases in FY 2009).35

The General Counsel s office with the aid of the NLRB regional office staff will
investigate the ULP charge to determine if sufficient evidence exists to believe a ULP vio-
lation may have occurred. The investigation may involve interviews with potential wit-
nesses, examination of documents, or other necessary steps. A ULP charge may be
settled or withdrawn at any point in the ULP procedure prior to a final Board decision.
If insufficient evidence to support the charge is found during the preliminary investiga-
tion, the General Counsel will dismiss the ULP charge, and there is no further appeal of
this decision. In cases alleging an unlawful boycott or strike, the NLRB must request a
federal district court to issue a temporary restraining order while the case is investigated.
The NLRB may seek a court injunction in other cases to limit the amount of damages a
charging party might suffer if required to wait until a final ULP decision is reached.
However, the Board has been reluctant to use this authority in most ULP cases.

If the General Counsel s investigation confirms the ULP charge has merit (i.e., there
is sufficient evidence found to believe a ULP appears to have been committed), a reason-
able effort will be made to get the Respondent to agree to a voluntary settlement of the
charge. If no voluntary settlement is reached, a formal ULP complaint and notice to
appear for a formal hearing before an Administrative Law Judge (ALJ) will be issued.

In a typical year, 20,000 25,000 ULP charges are filed (e.g., in FY 2014, there were
20,492 ULP charges); of these, 30 40% are typically found to have merit.36 Approximately
90 percent of ULP complaints issued involve alleged employer ULP. Of approximately
21,000 ULP cases closed in FY 2013, 34 percent were settled and closed before the issuance
of an ALJ s decision, 35 percent were withdrawn voluntarily before a formal complaint was
issued, and 28 percent were dismissed administratively by the General Counsel. The volun-
tary settlement rate for ULP charges with merit has ranged between 91.5 and 99.5 percent
each year over the past decade. The percentage of filed ULP charges that have been found to
have merit has ranged from 32 to 40 percent since 1980.37

The ALJ presides over a formal ULP hearing conducted under federal court rules of
evidence during which the General Counsel (representing the Charging Party) has the
initial burden of proving by a preponderance of the evidence that a ULP was committed.
The Respondent (typically an employer) would have an opportunity during the hearing

108 PART 1 Recognizing Rights and Responsibilities of Unions and Management

Exhibit 3.3
Unfair Labor Practice Procedure

SOURCE: National Labor Relations Board.

CHAPTER 3 Legal Influences 109

to present evidence and arguments attempting to prove that no ULP violation occurred.
Based upon the evidence presented at the hearing, the ALJ sends a written report to the
Board containing findings of fact regarding the alleged ULP charge and recommenda-
tions on an appropriate remedy for any ULP violations found to have occurred.

The Board has final agency authority to decide all ULP charges. The ALJ s written
report is sent to all parties involved in the case as well as the Board. The Board rarely
hears oral arguments or testimony from any of the parties in a ULP case and therefore
places a great deal of importance on the ALJ s findings regarding key issues such as the
credibility and demeanor of witnesses who testified during the hearing.

ULP cases can be classified into two broad categories or types: routine or lead cases.
A routine ULP case involves charges that do not raise any new or novel issues of labor
law and can be determined by application of existing relevant Board policies and legal
principles. Such cases are typically decided by a three-member panel of Board members
and comprise 80 to 90 percent of all Board decisions. What are we to make of the high
percentage of routine cases? From one perspective, this is evidence that the Board s cur-
rent remedial powers are not adequate to prevent typical discriminatory acts involving
supposedly protected employee rights under the Act; employers are allegedly willing to
break the law because the penalties under the NLRA are so weak. A second perspective
posits that sometimes unions file frivolous charges (that are subsequently withdrawn) as
a way to harass and distract managers during elections or times of collective bargaining.
A third perspective is that the NLRB needs to do a better job of informing managers
about the law so that managers do not commit ULPs out of ignorance. Finally, one
can argue that this is consistent with the base rate: Most alleged violations of a labor
law that has been on the books for approximately 80 years would be expected to deal
with issues that have been addressed in previous cases.38

A lead ULP case involves a charge that either raises a new or novel labor law issue
or presents the Board with an opportunity to initiate a new policy or significantly change
an established policy interpreting the LMRA, as amended. Because of the precedent-
setting nature of lead cases, a decision requires the participation of all Board members.
The Board adopts the recommended decision and order of the ALJ in approximately 85
percent of ULP cases but has the authority to reject or alter the ALJ s recommendations
in every ULP case.

Unfair Labor Practice Remedies
Section 10 (c), LMRA grants the Board broad authority to fashion an appropriate rem-
edy for ULP violations.39 At a minimum, the Board will issue a cease-and-desist order,
instructing the Respondent to stop committing the ULP violations immediately and in
the future. It is common for the Board to order a Respondent to post written notices
at places where employees will see them to inform employees about the ULP violations
that have occurred, the Respondent s pledge not to commit such violations in the future,
and the basic rights of employees protected by Section 7 of the LMRA. The Board has
recently added the requirement that ULP remedy notices also be posted electronically
(e.g., e-mail, text message) where the Charging Party normally uses such communication
channels to disseminate information to employees.40 Posted notices must remain on dis-
play for a period of time ranging from six weeks to six months.

Additional remedies fall under the heading of affirmative action necessary to pro-
vide a make-whole type remedy to individuals adversely affected by the occurrence of a
ULP. The goal is to restore the workers situation to what it was prior to the ULP occur-
ring. Depending upon the specific type of ULP committed, affirmative action could
include one or more of the following types of actions: reinstatement, back pay,

110 PART 1 Recognizing Rights and Responsibilities of Unions and Management

promotion, restoration of seniority rights, or other benefits to which the individual
should have been entitled had the ULP not occurred, expunging any reference to the ille-
gal action from an individual s personnel file, an order to bargain in good faith, an order
to reopen an illegally closed plant or return illegally relocated work, decertification or
disestablishment of a union as the employees exclusive bargaining representative, or
union repayment of illegally withheld or overcharged dues or fines.

The Board has no authority to award punitive damages in any case no matter how
many separate or intentional ULP violations were committed by a Respondent. An
employee alleging unlawful discharge is under an affirmative duty to seek comparable
employment to mitigate the Respondent s potential back-pay liability while awaiting a
final determination of the merit of the ULP charge. Although the Board can order a
party to bargain in good faith, the Board has no authority to order either union or man-
agement representatives to accept any specific change in a term or condition of employ-
ment. The Board could rule that a current employment policy or practice is unlawful and
cannot continue to be enforced but could not order the guilty party to change the policy
or practice in a way to make it lawful.

Parties may appeal a Board ULP decision to an appropriate federal appeals court as
shown in Exhibit 3.3. While the Board relies primarily on voluntary compliance by
Respondents with its ordered remedies, when necessary the Board may also petition an
appropriate federal appeals court for an order enforcing the Board s ULP decision. A
ULP decision can be appealed to either (1) the District of Columbia Circuit Court of
Appeals, which has jurisdiction over the headquarters of the Board; an appeals court
having jurisdiction over the location where the ULP occurred; or (2) an appeals court
having jurisdiction over the location of the appealing party s principal residence or busi-
ness headquarters. If the appealing party is aware of a difference of opinion among the
federal courts having jurisdiction in the ULP case, this provides an opportunity to engage
in so-called forum shopping whereby the party would choose to file the appeal under
the court s jurisdiction whose prior interpretations would likely be most favorable to
the appealing party s position in the current case.

Upon review of the Board s ULP decision, a court of appeals may enforce the
order as written, modify the decision, remand the case back to the Board for further con-
sideration, or refuse to enforce the Board s decision. Approximately 50 percent of final
ULP Board decisions (or approximately 1 percent of all ULP charges filed) are appealed
annually to federal courts, making the NLRB one of the most active federal agencies
involved in federal court litigation.

A federal court must enforce the Board s ULP decision if (1) the decision is a rea-
sonable interpretation of congressional intent as expressed in the language of the LMRA,
as amended and (2) the decision is supported by substantial evidence (facts and reason-
ing) contained in the case record.41 It is the lack of substantial evidence in the case
record to support the Board s decision which is cited most frequently when a court
refuses to enforce all or part of a Board ULP decision. The courts were encouraged by
Congress to pay deference to the Board s interpretations of the LMRA and to witness
credibility determinations by an ALJ during the ULP hearing. On balance, the NLRB
has a successful track record of having its decisions enforced by federal appeals courts.
In FY 2012, U.S. courts of appeal decided 73 ULP cases, of which 85 percent of Board
decisions were enforced entirely; 10 percent were enforced in part; 4 percent were
remanded to the Board for further consideration; and 1 percent of Board ULP case
decisions were denied enforcement.42

A court of appeals decision in a ULP case can be appealed for possible review by the
U.S. Supreme Court (petition for certiorari). To be reviewed, four of the nine Supreme

CHAPTER 3 Legal Influences 111

Court justices must agree to hear a case. Cases most likely to be accepted for review are
those that raise a new or novel labor law question not previously addressed by the court
or which raise an issue on which lower courts of appeal having rendered different inter-
pretations, thus creating a so-called legal split among the courts of appeal. Agreeing to
hear such a case on appeal would allow the Supreme Court to resolve the legal question
and establish a binding precedent which lower courts and administrative agencies (e.g.,
NLRB) would have to follow in deciding future similar cases. The Supreme Court agrees
to review less than 1 percent of all petitions for certiorari it receives.

Assessment of the LMRA, as amended,
and NLRB Administration
The LMRA and its administration have critics in the academic community. Professor
James Gross, an authority on the LMRA, has stated: The current national labor policy
favors and protects the powerful at the expense of the powerless. In the essential moral
sense, therefore, the current national labor policy is a failure. 43 Professor Janice Bellace
has suggested that most labor commentators find the current application of labor laws
has actually discouraged unionism:

Current labor law tolerates long delays in getting to an election and in having the
election results certified. Labor supporters will also point out that even when there is
a union at a work place, labor law permits the threatened and actual replacement of
strikers from the first day of the strike. They will decry this, particularly because rules
on the labor contract do not maintain the status quo when the contract expires, thus
enabling employers demanding concessions to take back in a flash those contract items
gained by the union over the years. Finally, labor supporters deride a statute with
remedies so weak they do not deserve the label remedy .44

Because the U.S. President appoints members of the Board, labor relations policy
can be thought of like a pendulum, swinging somewhat toward management when a
Republican President is in office and somewhat toward labor unions when a Democrat
is in the oval office. For example, while admitting that the Bush Board favored employer
interest in decisions, management attorney Kenneth Dolin viewed policy changes as
returning the Board to the mainstream and correcting the excesses of the Clinton-era
Board. More recently, some observers have claimed that there is a pro-labor tilt to the
Board under the Obama administration.45 Other commentators express concern that
such frequent policy interpretation shifts may eventually cause the courts to pay less def-
erence to the Board s interpretation of the LMRA, viewing the opinions as more reflec-
tive of changing economic and political climates than a consistent view of congressional
intent in passing the law.46

The language of the LMRA has remained relatively unchanged by congressional
action since 1959, even though the labor relations environment has undergone substan-
tial change over the same time period. The labor force has become substantially more
diverse with increased labor force participation by women, and racial and ethnic minori-
ties. The economy has transformed from a manufacturing base to a service-information
technology base, creating a truly global economy where products, information, and mon-
etary resources are easily transported across national boundaries, expanding product/ser-
vice markets and increasing competitive pressures on both employers and employees.
Emphasis by Congress and the legal system on protecting individual employees right to
equal treatment and the establishment of minimum employment standards has also
deemphasized the role of collective bargaining as a means of providing employees a
voice in determining employment interests.47

112 PART 1 Recognizing Rights and Responsibilities of Unions and Management

The lack of congressional action to address labor law reforms has been attributed to
the fact that for many decades, both organized labor and especially employers have had
enough support in Congress to block any significant amendment that either group
strongly opposes. Enough support does not mean a majority; it means a minority that
is big enough, well organized enough, and committed enough to tie up a bill through
the arcane supermajority requirements of the Senate for example through filibuster
or to sustain a presidential veto. 48

Labor union advocates would like to see several reforms of the LMRA enacted.
Among desired reforms are the following:

Greater access by nonemployee union organizers to communicate with employees
during organizing campaigns. Currently, employers can make anti-union speeches to
employees, as long as they are paying them, while limiting access to union organi-
zers. Labor advocates want to counter these so-called captive audience speeches
(discussed further in Chapter 5).
Stronger penalties for ULPs committed by employers against union supporters. For
example, current Board policy states that if an employee has been unlawfully dis-
charged for union activity, he or she is to be awarded back pay, minus any interim
earnings from other jobs while unemployed (called an offset ); labor advocates want
the policy changed so that employees get back pay without any reduction due to offsets.
Union advocates have also sought unsuccessfully to eliminate management s right to
permanently replace otherwise lawful economic strikers during a labor dispute.49

Some employer advocates seek changes also. Many favor an expansion of an
employer s right to create work teams and have those teams deal with a wide range of
employment issues involving work processes, compensation, productivity, safety, and
other work rules. Currently, the LMRA contains Section 8(a)(2), which prohibits
employer creation, domination, or interference with the operation of a labor organiza-
tion. This prevents company unions, but some argue that it stifles nonunion employer
attempts to create forums for improving productivity and employee involvement in
work decisions.50 Employers also want to expand the application of so-called Beck rights;
In the Beck case, the U.S. Supreme Court established the basic right of an employee not
to be forced to pay for a union s political lobbying activities and to pay only for those
regular charges associated with the duties of representing the bargaining unit. However,
the specific procedures for implementing that right (e.g., opting in vs. opting out of
political participation) are set by individual unions, who usually want plenty of funds
available for lobbying purposes.51 Thus, employers argue that the procedure should be
set by the government. Beck rights will be discussed further in Chapter 4.

The NLRB also has its critics among government officials. One area of concern over
the years has been the amount of time required to complete ULP case decisions by the
Board. Both ALJs and Board members share the responsibility for administrative delays
which have occurred.52 The problem reached a crisis point in 1991 when the General
Accounting Office (GAO) released a damaging report to Congress entitled Action Needed
to Improve Case-Processing Time at Headquarters. This report revealed that between
1984 and 1989 only about 67 percent of the 5,000 cases appealed to the Board were
decided within one year, and ten percent took 3 7 years.53 To its credit, the NLRB has
worked to reduce the amount of time for ULP cases to be heard. In FY 2014, the NLRB
processed almost 84 percent of cases within one year of charges being docketed and 72
percent were resolved within 120 days.54

A number of labor law reform proposals have been made over the past 50 years
intended to correct perceived deficiencies in the current statutory language, alter Board

CHAPTER 3 Legal Influences 113

procedures, or affect the scope of employees covered by the statute. For example, under
the Obama administration, the NLRB has pursued changes aimed at reducing the
amount of time that elapses between (a) when a valid petition is filed, requesting a
union certification election, and (b) when the representation election vote actually
occurs.55 Among other suggested changes are the following: strengthening the remedies
for ULPs; making greater use of administrative rule-making to reduce shifts in Board
policies; permitting voluntary union authorization card signatures to be used to establish
proof of employee majority support for union representation; and ensuring that first
contract negotiations do result in a labor agreement either through voluntary bargaining,
mediation, or if necessary, final and binding interest arbitration.56 New forms of
employee representation along the lines of European works councils to involve employ-
ees who are not union members in decisions affecting their work lives have also been
advocated and a plan to establish a works council has been explored by the United
Auto Workers and Volkswagen in Chattanooga, Tennessee.57 Whether some or any of
these proposed reforms will actually become reality remains to be seen but history
would suggest that the road to meaningful reform is difficult and slow.

Transportation-Related Labor Relations
Law (Railway and Airlines)

Because of the vital role that railroads played in interstate commerce, and because of the
violence that characterized both the Great Railroad Strike of 1877 and the Pullman Strike
of 1894, courts have historically given the federal government great latitude in regulating
labor management relations in this industry. Congress tried to prevent disruption to the
economy from rail disputes, but early legislation (e.g., the Arbitration Act of 1888 which
allowed for nonbinding arbitration) proved ineffective. After a series of strikes in the
early 1920s, the major rail lines and their employees unions negotiated a draft law that
Congress enacted as the RLA in 1926.

Even today, rail and air transportation labor relations are covered by the Railway
Labor Act (RLA) of 1926. Enacted with bipartisan labor and management support to
apply only to the railway industry, the RLA was actually the first comprehensive collec-
tive bargaining law. In 1936, the RLA was amended to extend coverage to a new and
developing transportation industry airlines. The railroad and airline industries have
the highest union density level of any private-sector U.S. industries, approximately 84
and 60 percent respectively.58 Similar to other labor laws, the RLA did not develop over-
night; it resulted from years of employee efforts to gain union recognition and engage in
collective bargaining, often resulting in disruptions in normal rail transportation opera-
tions.59 The primary goal of the RLA is the avoidance of disruption in transportation
services by encouraging collective bargaining.

Under the RLA, if a union and employer are unable to resolve their differences over
negotiating terms of a labor agreement (termed a major dispute under the RLA), the
dispute is subject to mandatory mediation through the NMB. If mediation does not suc-
ceed, the parties have the option of proceeding to final and binding interest arbitration.
If either party declines to submit the dispute to arbitration, there is a 30-day status quo
period invoked during which the president may appoint an emergency board to investi-
gate the dispute and make recommendations on a settlement.

Since the enactment of the RLA, over 97 percent of the collective bargaining
disputes mediated by the NMB have been resolved without a strike or other form of
interruptions of commerce. Historically, about 85 percent of presidential-appointed

114 PART 1 Recognizing Rights and Responsibilities of Unions and Management

emergency boards (PEB) established have dealt with disputes in the railroad industry.
In recent years, there has been a dramatic drop in both strikes and in the use of emer-
gency boards. Only two airline strikes occurred between 2008 and 2012; the last rail-
road strike occurred in 1994. The most recent PEB in the airline industry convened
in 2002. In the five-year period from FY 2008 FY 2012, only two presidential emer-
gency boards were established for railroad labor disputes. No PEBs were established
in either industry in FY 2013.60

The National Railroad Adjustment Board (NRAB), a bipartisan group of 17 union and
17 management representatives, was established to assist in resolving grievances arising
during the term of a labor agreement over the interpretation or application of the contract s
terms (termed a minor dispute under the RLA). Where the board cannot agree to a settle-
ment, the grievance may be settled by an arbitrator selected by the parties.61

In FY 2013, the parties brought 6,576 grievances before the NMB for arbitration; 35
representation cases were filed and 35 more were resolved.62 The NMB is empowered to
conduct representation elections and to help resolve interest disputes that develop during
negotiations between union and management representatives over what the terms and
conditions of employment will be as stated by contract language. Under the RLA, labor
agreements never expire but do become amenable for negotiation of proposed changes as
of a specified date.

There are several differences between the RLA and the LMRA:

1. The RLA covers the railway and airline industries, whereas the LMRA covers most
other private-sector employers engaged in interstate commerce.

2. Because railroad and airline workers were geographically dispersed, NMB ballots for
union certification elections were mailed to employees homes (employees completed
them and mailed them back); by contrast, voting was done in-person via secret bal-
lot at NLRB-supervised election sites within factories or office complexes. In 2002,
the NMB began using Telephone Electronic Voting (TEV) for representation elec-
tions, and in 2007 it began using Internet Voting. The NMB believes the system is
very secure and will save the agency substantial time and expense in conducting
representation elections; in most elections, it no longer uses mailed ballots.

3. Historically, union representation under the RLA required a showing of support
from the majority of all employees in the particular craft or class who were eligible
to vote, whereas the NLRB required only support from the majority of employees
who actually voted. The NMB rule had the effect of requiring a larger number of
yes union votes to gain bargaining rights because the rule treated eligible voters

who did not to vote as if they had voted no. If there were 100 eligible voters and
68 cast a valid ballot, historically under the RLA a union would need 51 yes votes
for a union to be certified as the exclusive bargaining representative for the 100
employees. Under the LMRA, if 68 workers voted, a union would require only 35
yes union votes to be certified.

In May, 2010, the NMB adopted the same certification election voting rule for the
RLA as that used under the LMRA. The NMB members believe that the rule
change will provide a more reliable measure of employees preference on the ques-
tion of union representation. As with other democratic election procedures used in
U.S. society, eligible voters who choose not to cast a ballot are presumed to have no
preference regarding the outcome of the election but are still bound by the resulting
majority vote of those eligible voters who do choose to express their preference by
casting a valid ballot. One study concludes that the NMB s procedural change has
not resulted in a significant increase in union victories in certification elections.63

CHAPTER 3 Legal Influences 115

4. A significantly higher percentage of employees in the railway and airline industries
are organized by unions under the RLA compared to other private-sector employees
covered under the LMRA. For example, approximately 85 percent of Class I
(major railroad) employees are unionized and 60 percent of other railroad employees
are unionized.64

5. Under the RLA, a union cannot strike and an employer cannot lock out until they
have exhausted the impasse resolution procedures required by the NMB. Under the
LMRA, the parties can engage in these self-help actions if (a) the dispute involves
a mandatory subject of bargaining; (b) there is no current contract language barring
the action; and (c) good-faith bargaining responsibilities have been met.

6. Under the RLA, arbitration of minor disputes (grievances) in the railway industry is
mandatory, and the government pays the arbitrator s fee and expenses. Under the
LMRA, grievance arbitration procedures are negotiated by the parties, and the par-
ties pay for the arbitration (airline grievance arbitration is similar to arbitration
under the LMRA).65

7. The LMRA, as amended, severely limits certain union activities, including feather-
bedding (where minimum crew sizes that are mandated in the labor agreement far
exceed those needed to do the work) and secondary strikes or boycotts where
unions who have a dispute with one employer embroil a neutral, uninvolved
employer in the dispute. The RLA does not contain the same limitations.

8. Both the LMRA and the RLA allow unions to negotiate union shop contract clauses,
requiring new hires to join the union that represents them (or pay financial core sta-
tus fees). However, the LMRA also allows states to prohibit union shops. The RLA
does not give individual states the same leeway, and federal laws supersede state laws.
Thus, if a railroad workers union negotiates a union shop clause under the RLA, and
the railroad goes through a state with a law prohibiting union shops, then the contract
clause remains in effect for those railroad workers, despite the state law.

Assessment of the RLA
Faced with such problems as changing markets for freight transportation, severe compe-
tition, increased merger activity, government regulation, and public interest in uninter-
rupted rail and air service, labor relations in the railway and airline industries are
somewhat unique. Complicating the situation further are the chronic financial instability
of the numerous independent railroads; the presence of strong, competing craft unions;
and tradition-bound work rules. These factors can affect labor relations in the following
ways. First, because the public depends on rail transportation for many essential goods,
much effort has been made to avoid strikes (including interventions by Congress). Sec-
ond, due to different craft unions involved, the labor relations process takes much time
and creates many opportunities for disputes. However, because of union mergers since
1970 there are now only 13 major freight-related rail unions. Finally, the tradition-
bound work rules of the operating crafts strictly control not only how a particular job
will be performed, but also which craft will be assigned the job. These work rules slow
the introduction of new technology and magnify the problems of this industry.66

Any assessment of the RLA must be kept in proper perspective. There are thousands of
labor agreements in the railroad and airline industries, with hundreds of agreements (mostly
local) in negotiations during any given year. Further, any measure of the RLA s effectiveness
must be made with reference to its objectives to promote free collective bargaining and pro-
tect the public from interrupted flows of commerce which it has done effectively.

Regarding negotiations, mediation has been the most important method of interven-
tion under the RLA; however, few nationwide railroad wage cases have been settled by

116 PART 1 Recognizing Rights and Responsibilities of Unions and Management

mediation since 1936. Its greatest success has been in settling minor controversies after
the major issues have been resolved. This does not mean that mediation is
unimportant minor disputes left unresolved could easily lead to major strikes in future

Deregulation Legislation in Railroads and Airlines
Prior to 1978, the federal Civil Aeronautics Board tightly regulated which airlines could fly
specific routes and it guaranteed a 12 percent return on flights that were 55 percent full.
To insure that this threshold was met, competition was limited and airlines often had to
wait years to add a new route. The Airline Deregulation Act of 1978 ended government con-
trols of fares and routes, and the Motor Carrier Act of 1980 reduced the amount of eco-
nomic regulation of the industry by the Interstate Commerce Commission. The Staggers
Rail Act of 1980 gave railroads more flexibility in setting rates and service levels.68 Concerns
that deregulation might result in only a relatively few large carriers, thereby reducing
competition within the industry, initially proved unfounded. Prior to 1978, ten major air
carriers controlled 90 percent of the market. Airline deregulation prompted the introduc-
tion of 128 nonunion carriers, but by 1987 only 37 had survived. This was not unexpected:
There is a high failure rate for start-ups in almost every industry.

Since the 1980s, there has been increased merger activity by the major airlines. This
accelerated in the last ten years, to the point that now four major airlines control 85 per-
cent of the market, prompting some to call for government intervention to prevent
regional monopolies. Other developments include ticketing agreements between major
carriers and regional and commuter airlines, hub-and-spoke airports, and frequent
flier programs to promote airline customer loyalty.69 Deregulation also initially encour-
aged price competition, with 90 percent of passengers traveling at discount prices aver-
aging 60 percent below the coach price; however, airlines have attempted to make up lost
revenue with ancillary fees. During the same time, accident rates have not increased, and
service to many small communities has not deteriorated; however, there have been
increased congestion at airports and in the airways, delays in departures and arrivals,
price fluctuations due to volatile jet fuel prices, and a general decline in the quality of
air service.70 Profitability in both the railroad and airline industry has been reduced by
the slow pace of economic recovery, although large (Class 1) railroad operators appear to
be making a faster recovery than most major airlines.

Most airlines have adopted a variety of cost cutting strategies, including significant
employee layoffs, postponement or cancelation of equipment orders, reduced flight sche-
dules, and negotiated economic concessions from employees. This has led to increasing ten-
sions and employee complaints at many carriers.71 A study by the GAO reported that since
airline industry deregulation in 1978, the average length of time to negotiate new contracts
has increased, the number of strikes has declined, but the frequency of nonstrike work
actions (e.g., employees all calling in sick on the same day) have increased.72

Promising Developments Regarding the RLA
Despite problems, several events and developments provide the basis for some optimism:

Recent negotiations in railroads have been characterized by greater union
management cooperation, resulting in fewer conflicts and outside interventions.
Emergency board procedures have been drastically improved, and the ritualism and
legalism so prevalent in the 1960s have been reduced.
Encouraging progress has been made on some long-standing manning and workrule
issues, such as combined road and yard service, and eliminating contract

CHAPTER 3 Legal Influences 117

requirements that firemen (whose job originally involved shoveling coal into the
fire box on steam engines) also work on diesel trains.
New leadership has had a positive influence on both management and unions, and
neutrals and government officials have provided capable assistance in the bargaining
and dispute-resolution processes.
With railroad industry consolidation, major Class I freight carriers have formed the
National Railway Labor Conference. This group now negotiates national contracts
with representatives of groups of unions, setting minimum wage and benefits. These
are supplemented by company contracts addressing specific working conditions and
other issues.

Critical issues remain to be resolved, including secondary picketing, bargaining sta-
lemates, restrictive work rules in some agreements, crew size disputes (e.g., some carriers
are seeking one-person rail crews), and the use of bankruptcy law to force labor cost
concessions from employees, including the abandonment of traditional defined pension
benefit plans.73

On balance, even in a deregulated environment, the RLA appears to have accom-
plished its primary goal of facilitating cooperative labor relations in the airline and rail-
road industries and avoidance of significant service disruptions. Whereas both labor and
management might create their own wish list of labor law reforms, as a joint airline
labor management committee concluded the potential for disruption far outweighs
the marginal gain that any legislative refinements might provide. 74

Additional Laws That Affect Labor Relations
Other statutes and executive orders, more narrow in scope, influence labor relations
either directly or indirectly. The following section highlights only their major provisions;
however, practitioners find that detailed knowledge of them is essential to most business
operations. (Related legislation is summarized here, but its specific implications for labor
relations activities and unions are discussed in the appropriate chapters.)

Employee Retirement Income Security Act of 1974
The Employee Retirement Income Security Act (ERISA) establishes minimum stan-
dards for the operation of voluntarily established private-sector defined benefit pension
(which specifies a retiree s benefit levels) and health benefit plans (covered further in
Chapter 7). Standards define plan participation, vesting rights, benefit accrual and
funding, fiduciary responsibilities of plan administrators, and guaranteed payments of
benefits accrued under a defined benefit plan through a federally chartered corporation
called the Pension Benefit Guaranty Corporation (PBGC), should the private plan be
terminated. There are approximately 40 million U.S. employees currently enrolled in
more than 26,000 defined benefit plans. There is a maximum monthly pension benefit
adjusted by law each year, which the PBGC is allowed to pay to a beneficiary. This
means that some private-sector employees covered under a generous defined benefit plan
(e.g., airline pilots) may lose some portion of their expected benefits if their private
employer-sponsored plan is terminated and their benefits are determined by the
PBGC s mandated benefit cap. The PBGC is currently responsible for paying the
pension benefits of 887,000 retirees previously covered under 4,500 terminated private-
sector-defined benefit plans.75 The PBGC receives its funding from insurance premiums
paid by employers whose plans are covered, investment revenues, and the remaining
assets of pension plans, which are terminated and taken over by the PBGC.

118 PART 1 Recognizing Rights and Responsibilities of Unions and Management

The Americans with Disabilities Act of 1990
The Americans with Disabilities Act (ADA) of 1990, which covers an estimated 40 mil-
lion disabled Americans, went into effect in January 1992. Considered a Bill of Rights
for Americans with a wide variety of disabilities, the act applies to employment, public
accommodations, transportation, and telecommunications. The employment provisions
cover virtually every aspect of the employment process. The act prohibits discrimination
in advancement, discharge, compensation, training, and other terms and conditions of
employment which are usually included in collective bargaining agreements. The act
requires employers to make reasonable accommodations for disabled employees, except
when doing so would subject the employer to undue hardship. This subject will be
addressed more fully in Chapter 8.

Bankruptcy Act
The Bankruptcy Act of 1984 includes standards for the rejection of collective bargaining
agreements by companies seeking to alter terms of a current labor agreement. It requires
companies to provide relevant information to unions and engage in good-faith efforts to
reach an agreement, which could avoid the necessity to declare bankruptcy. In cases
where no agreement can be reached, the act specifies the requirements for terminating
or altering provisions of an existing labor agreement. (See Chapter 6 for more details.)
Most importantly, a business cannot use bankruptcy to easily change from union to
nonunion status.

Worker Adjustment and Retraining Notification Act
In response to negative public opinion triggered by major plant closings without any
advance notice to employees or community leaders, the Worker Adjustment and Retrain-
ing Notification Act (WARN) was passed in 1988. WARN requires employers with 100 or
more employees to give 60 days advance notice to employees (excluding those employed
less than 20 hours per week) who will be affected by a plant closing or major layoff. Also,
the union, the chief elected local government official, and the state government must be
notified. The law permits a union and employer to negotiate language in their collective bar-
gaining agreement that could require more than 60 days of advance notice be provided.

Situations where WARN Act notice requirements would apply include the following:

A plant closing resulting in an employment loss for 50 or more workers at one site
within a 30-day period.
A mass layoff of at least 33 percent of the workforce (minimum of 50 employees)
within any 30-day period.
A mass layoff involving at least 500 employees within any 30-day period (even if
this is less than 33 percent of the workforce).

Remedies available to affected employees for employer violations include back pay
and benefits for up to 60 days and payments (maximum of $500 per day) to local com-
munities for a period of up to 60 days. One criticism of the statute is that no government
agency will file a lawsuit on behalf of the workers if a violation occurs. The WARN Act
requires the injured party to bear the economic cost of initiating enforcement action by
hiring their own attorney and filing a lawsuit in a federal district court.

WARN ties in closely with the workforce innovation and opportunity Act of 1998, as
amended, which provides funds to state and local governments for training and retraining.
In cases of plant closing and mass layoff, state rapid response teams are available to work
with labor and management officials to set up retraining and reemployment programs for
the affected workers.

CHAPTER 3 Legal Influences 119

Racketeer Influenced and Corrupt Organizations Act of 1970
The Racketeer Influenced and Corrupt Organizations Act (RICO), part of the Orga-
nized Crime Control Act of 1970, forbids anyone involved in racketeering from investing
in or controlling through racketeering activity any enterprise (business or labor union)
engaged in interstate commerce. The law provides for penalties of up to $25,000,
20 years of imprisonment, and forfeiture of all relevant property. A person found guilty
of a RICO violation may be required to divest himself of all interests in the organization
and may be restricted from any future activities in that or a related organization. In addi-
tion, any persons who suffered damages from the prohibited activities are entitled to
recover triple the amount of damages.

Employment Discrimination Laws and Executive Orders
Title VII of the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991
prohibits any form of employment discrimination by companies, labor unions, and
employment agencies on the basis of race, color, religion, sex, or national origin. The
Equal Employment Opportunity Commission is a federal administrative agency created
to enforce the statute through investigating complaints, attempts at conciliation, and law
suits filed on behalf of the complainant.

The Age Discrimination in Employment Act of 1967, as amended in 1978, 1984,
and 1986, prohibits employment discrimination against those over the age of 40; permits
compulsory retirement for executives who are entitled to pensions of $44,000 per year or
more; and authorizes jury trials in covered cases.

The Equal Pay Act of 1963 requires that men and women doing the same work
receive the same rate of pay. However, pay differences are allowed based upon differ-
ences in qualifications, seniority, and quality of job performance.

The Lilly Ledbetter Fair Pay Act of 2009 (FPA) is an amendment to Title VII of
the 1964 Civil Rights Act and also applies to claims arising under the Age Discrimina-
tion in Employment Act of 1967 and the Americans with Disabilities Act of 1990.76

Passed by Congress in response to a U.S. Supreme Court decision limiting the amount
of time a victim had to bring a legal claim for alleged pay discrimination, the FPA states
that each incidence of pay discrimination starts anew the time limit for filing a valid
claim under the applicable statute. Thus, if an employer illegally discriminated against,
say, women employees by giving them lower pay, and the employer paid them monthly,
then each new paycheck would reset the clock for the 180-day statute of limitations for
filing a discrimination claim.

Executive Order 11246, as amended by Executive Order 11375, prohibits employ-
ment discrimination in the federal government and by federal government contractors
and subcontractors receiving $50,000 or more. Those having contracts of $50,000 or
more and employing 50 people or more are required to establish affirmative action
plans that prescribe specific goals and procedures for increasing the percentage of minor-
ity employees. Firms that fail to comply could lose part or all of their contracts.

The Vocational Rehabilitation Act of 1973 (Section 503) requires holders of federal
government contracts in excess of $2,500 to take affirmative action to employ and
advance in employment qualified physically and mentally disabled individuals. Further,
if any disabled individual believes that a federal contractor has failed or refused to
comply with the act, he or she may file a complaint with the Department of Labor,
which will investigate the complaint and take any warranted action. In addition,
Section 504 extends coverage to organizations receiving federal financial assistance
and is enforced by the Department of Health and Human Services.

120 PART 1 Recognizing Rights and Responsibilities of Unions and Management

Other Related Labor Relations Laws
The Uniformed Services Employment and Reemployment Rights Act (USERRA) of
1994 clarifies and extends the Veterans Reemployment Rights Act of 1940 to protect
the job rights of individuals called to perform military service on behalf of the United
States. Also, the Vietnam Era Veteran Readjustment Assistance Act requires employers
with government contracts of $10,000 or more to take affirmative action to employ and
advance disabled veterans and qualified veterans of the Vietnam War.

The Social Security Act of 1935, as amended, established two national systems of
social security for protection against loss of income resulting from unemployment, old
age, disability, and death: (1) retirement, survivors, and disability insurance, and health
insurance for persons over age 65; and (2) unemployment insurance, which operates
under a state-administered, federal-state plan whose operating costs are paid by the fed-
eral government. The Fair Labor Standards Act of 1938 administered by the USDOL
covers a variety of employment issues including minimum wage and overtime pay
requirements, child labor, and migrant and seasonal agricultural worker protections.

Other important laws include state wage laws, the federal Occupational Safety and
Health Act of 1970 designed to promote workplace safety and prevent injuries (covered
in Chapter 8), the Family and Medical Leave Act of 1993 that allows workers to take
unpaid leave for the birth or adoption of children or for family medical reasons
(covered in Chapter 7). There are also state laws and local ordinances that pertain to
public-sector labor relations and equal employment opportunity.

This chapter has presented the major provisions of fed-
eral labor relations laws in the United States. These
legal influences must be understood to fully appreciate
the remaining chapters in this book because nearly all
issues in labor relations are either directly or indirectly
influenced by labor law. The legal question of whether
one has a right to act is separate and distinct from the
practical question of whether it is in one s best interest
to exercise such a right under the prevailing circum-
stances. Union and management practitioners should
give consideration to the legal and practical costs, ben-
efits, and risks of actions in making operational

Although many think of law in terms of statutes
passed by the U.S. Congress or state legislatures, labor
relations, and other types of law proceed not only from
statutes but also from the U.S. Constitution, judicial
decisions, and administrative decisions of government
agencies. Similarly, case law and administrative law
develop at the state and local government levels.

The 1930s, a decade during which the country
confronted a severe economic depression, brought
about major labor law changes. The enactment of the
Norris La Guardia Act removed many legal

restrictions on the types of employee concerted activity
that could be used to peacefully pressure employers to
grant favorable employment improvements. Federal
courts began to take a more neutral stance in labor
disputes attempting to balance the legitimate exercise
of employee and employer rights.

Congress passed the NLRA in 1935, which covered
most private-sector employees, to control employer
ULPs. It established the NLRB to enforce the right of
employees to form and join unions, bargain collec-
tively, and engage in other concerted activities for
mutual aid or protection. Then, in 1947 and again in
1959, Congress amended the NLRA with passage of the
LMRA and the Labor Management Reporting and Dis-
closure (Landrum Griffin) Act, respectively. The
LMRA s amendments added union ULPs and restric-
tions on union security clauses. The LMRDA added
regulations governing the internal operations of unions
and restrictions on secondary strike, picketing, and
boycott activities.

Starting in 1863, union activity in the railroad
industry played a key role in the legislative arena. The
RLA of 1926, whose major purpose is to provide for
stable and effective labor relations without major

CHAPTER 3 Legal Influences 121

interruptions in commerce, established procedures for
resolving labor disputes and created the NMB and
NRAB to accomplish the act s purposes. The airline
industry was added to coverage under the RLA in

While the legal rights of employers and employees
to pursue their respective interests in a free enterprise
system will inevitably create certain conflicts and stress,
on balance the legal environment has provided

reasonable stability in U.S. labor relations, encouraging
economic growth. The acceptance of collective bargain-
ing, widespread use of no-strike or lockout clauses,
final and binding arbitration of rights disputes,
improved employer union cooperation on important
issues, and infrequent need to use national emergency
dispute procedures provide support for progress in
protecting the legitimate rights of both employers and

Key Terms
Preemption doctrine, p. 92
National Labor Relations Board

(NLRB), p. 92
Labor Management Reporting and

Disclosure (Landrum Griffin) Act,
p. 92

Federal Mediation and Conciliation
Service (FMCS), p. 92

U.S. Department of Labor (USDOL),
p. 92

National Railroad Adjustment Board
(NRAB), p. 92

National Mediation Board (NMB),
p. 92

Norris La Guardia Act, p. 93
closed shop union security clause, p. 96
National Labor Relations Act (NLRA),

p. 96
Labor Management Relations Act

(LMRA), p. 96
Union shop union security clause, p. 97
Agency shop union security clause, p. 97
right-to-work law, p. 97
The Board, p. 99
union salts, p. 101
Weingarten Rights, p. 103

NLRB jurisdiction, p. 104
Postal Reorganization Act of 1970,

p. 106
concerted and protected activity, p. 107
Interboro doctrine, p. 107
Charging Party, p. 108
Respondent, p. 108
merit, p. 108
Administrative Law Judge (ALJ), p. 108
routine ULP case, p. 110
lead ULP case, p. 110
cease-and-desist order, p. 110
post written notices, p. 110
affirmative action, p. 110
forum shopping, p. 111
petition for certiorari, p. 111
Railway Labor Act (RLA) of 1926,

p. 114
major dispute under the RLA, p. 114
minor dispute under the RLA, p. 115
Employee Retirement Income Security

Act (ERISA), p. 118
Pension Benefit Guaranty Corporation

(PBGC), p. 118
Americans with Disabilities Act

(ADA), p. 119

Bankruptcy Act of 1984, p. 119
Worker Adjustment and Retraining

Notification Act (WARN), p. 119
Racketeer Influenced and Corrupt

Organizations Act (RICO), p. 120
Civil Rights Act of 1964, p. 120
Civil Rights Act of 1991, p. 120
Age Discrimination in Employment

Act of 1967, p. 120
Equal Pay Act of 1963, p. 120
Lilly Ledbetter Fair Pay Act of 2009

(FPA), p. 120
Executive Order 11246, p. 120
Executive Order 11375, p. 120
Vocational Rehabilitation Act of 1973,

p. 120
Uniformed Services Employment and

Reemployment Rights Act
(USERRA) of 1994, p. 121

Social Security Act of 1935, p. 121
Fair Labor Standards Act of 1938,

p. 121
Occupational Safety and Health Act of

1970, p. 121
Family and Medical Leave Act of 1993,

p. 121

Discussion Questions

1. Some union advocates have suggested that NLRB
certification procedures are so cumbersome that
unions would be better off if the LMRA was
repealed. If labor laws discussed in this chapter
were repealed, how might this affect (a) the for-
mation of unions and (b) the terms and condi-
tions of employment for employees? Discuss.

2. How were yellow-dog contracts and labor
injunctions used to limit the activities of union
organizers or slow union growth?

3. What was the intent or purpose of Congress in
passing (a) the 1932 Norris La Guardia Act,
(b) the 1935 National Labor Relations (Wagner)
Act, (c) the 1947 Labor Management Relations

122 PART 1 Recognizing Rights and Responsibilities of Unions and Management

(Taft Hartley) Act, and (d) the Landrum Griffin
Act of 1959?

4. Although the National Labor Relations Act gives
employees certain rights, these rights are not
unlimited. Discuss.

5. Is the selection process for determining members
of the National Labor Relations Board too politi-
cized? Does the current selection process lead to
instability in interpretations of the LMRA and if
so, is this a positive or negative for employers and
employees covered by the law?

6. Why is there still a separate labor relations law for
the railway and airline industries?

7. Should the LMRA be amended to cover agricul-
tural laborers?

8. Should the NLRB s current jurisdictional stan-
dards (i.e., monetary threshold for affecting
interstate commerce) be adjusted to take into
account the effects of inflation (which would have
the effect of removing employees currently cov-
ered by the law under existing jurisdictional

Exploring the Web

Labor Relations and the Law

1. Case Law. Find a recent Supreme Court or U.S.
Court of Appeals decision concerning a labor law
issue. What legal principles does the court rely
upon in determining the case decision? Suggestions
for searching: Cornell University s Law School offers
the Supreme Court Collection through their Legal
Information Institute. Findlaw Legal Information
Center is a good commercial site. You may also
use electronic databases offered by your university s
library, for example, LexisNexis or Westlaw.

2. National Labor Relations Board. Go to the Web
site for the National Labor Relations Board at
http://www.nlrb.gov/ to see the NLRB s current
organization, rules and regulations, decisions, and man-
uals. Read the section that describes the National Labor
Relations Act. Included also on the site are press

releases, public notices, and a weekly summary of cur-
rent events. Who is the current chairman of the NLRB?
What are three current activities of the NLRB and/or
three recently decided cases?

3. U.S. Code. When legislation becomes law, it is
incorporated into the U.S. Code in the appropriate
sections. Identify sections of the Code affected by
these acts related to labor relations: Railway Labor
Act, Norris La Guardia Act, LMRA (Taft Hartley),
and Labor Management Reporting and Disclosure
Act (Landrum Griffin). Searching hints: Search by
Popular Names of Acts in Cornell University s Law
School U.S. Code Collection or the U.S. Code search
provided by the U.S. House of Representatives. You
may also use electronic databases offered by your
university s library, for example, LexisNexis or

1. Muslim employee claims Disneyland banned her

from wearing head scarf in front of customers,
Fox News [Online], August 18, 2010, at http://
head-scarf-customers/; Gilliam Flaccus, Muslim
Employee: Disney Banned Her Head Scarf,
FindLaw Legal News, August 19, 2010, pp. 1 2 at
http://news.findlaw.com/; Deanne Katz, Disney-
land Banned Muslim Woman s Head Scarf: Law-
suit FindLaw Legal News Blog, August 15, 2012,
pp. 1 2 at http://blogs.findlaw.com/injured/2012/


2. Walter E. Oberer, Kurt L. Hanslowe, and
Timothy J. Heinsz, Labor Law: Collective
Bargaining in a Free Society, 4th ed. (St. Paul,
MN: West Publishing Co., 1994), pp. 358 359.

3. 47 Stat. 70 (1932).
4. A labor dispute was defined as any controversy

concerning terms or conditions of employment,
or concerning the association or representation of
persons in negotiating, fixing, maintaining,
changing, or seeking to arrange terms or

CHAPTER 3 Legal Influences 123

conditions of employment regardless of whether
the disputants stand in the proximate relation of
employer and employee. 47 Stat. 70 (1932).

5. United States v. Hutcheson, 312 U.S. 219 (1941).
6. Ibid.
7. Irving Bernstein, Turbulent Years: A History of

the American Worker, 1933 1941 (Boston:
Houghton Mifflin, 1971), pp. 1 36. See also Bruce
Nelson, Give Us Roosevelt: Workers and the
New Deal Coalition, History Today, 40(1), 1990,
pp. 40 48. Janet Irons, Testing the New Deal: The
General Textile Strike of 1934 in the American
South (Urbana: University of Illinois Press, 2000).
John A. Salmond, The General Textile Strike of
1934: From Maine to Alabama (Columbia, MO:
University of Missouri Press, 2002).

8. Alvin L. Goldman, The Supreme Court and
Labor-Management Relations Law (Lexington,
MA: D.C. Heath, 1976), pp. 22 28; Herbert L.
Sherman, Jr., and William P. Murphy, Unioniza-
tion and Collective Bargaining (Washington, D.C.:
Bureau of National Affairs, Inc., 1975),
pp. 7 9.

9. Schecter Poultry Corporation v. United States, 295
U.S. 495 (1935).

10. National Labor Relations Act, 49 Stat. 449 (1935).
11. Janice R. Bellace, The Future of Employee

Representation in America: Enabling Freedom of
Association in the Workplace in Changing Times
through Statutory Reform, University of Penn-
sylvania Journal of Labor & Employment Law,5,
Fall 2002, p. 5 at http://web.lexis-nexis.com. See
also Bruce E. Kaufman and David Lewin, Is the
NLRA Still Relevant to Today s Economy and
Workplace? Labor Law Journal, 49, September
1998, pp. 1113 1126.

12. Goldman, The Supreme Court, pp. 28 31.
13. NLRB v. Jones & Laughlin Steel Corporation, 301

U.S. 1 (1937).
14. Bernstein, Turbulent Years, pp. 769 771.
15. Labor Management Relations Act, 61 Stat. 136

16. NLRB v. Virginia Electric & Power Company, 314

U.S. 469 (1941).
17. Goldman, The Supreme Court, pp. 31 39.
18. Labor Management Reporting and Disclosure Act,

73 Stat. 519 (1959).
19. Fact Sheet on the National Labor Relations Board

(Washington, D.C.: NLRB Division of Informa-
tion, 2010), pp. 1 2.

20. William N. Cooke and Frederick H. Gautschi III,
Political Bias in NLRB Unfair Labor Practice

Decisions, Industrial and Labor Relations
Review, 35, July 1982, p. 549.

21. William N. Cooke, Aneil K. Mishra, Gretchen M.
Spreitzer, and Mary Tschirhart, The Determi-
nants of NLRB Decision-Making Revisited,
Industrial and Labor Relations Review, 48, Janu-
ary 1995, pp. 254 256.

22. See, for example, the discussion of Board policy
changes comparing the Clinton Board with the
Bush II Board in Catherine L. Fisk and Deborah
C. Malamud, Thirty-Ninth Annual Administra-
tive Law Issue: Administrative Law Under the
George W. Bush Administration: Looking Back
and Looking Forward: Article: The NLRB in
Administrative Law Exile: Problems with Its
Structure and Function and Suggestions for
Reform, Duke Law Journal, 58, May 2009,
pp. 2013 2085.

23. Professor/Arbitrator Calls NLRA Pretty Sick,
Recommends Fixes, Collective Bargaining
Bulletin, 14, July 2, 2009, p. 83.

24. Howard S. Lavin and Elizabeth E. DiMichele,
Circuits Split on Whether Two-Member NLRB

Decisions Are Binding, Employee Relations Law
Journal, 35(3), 2009, pp. 82 87; New Process Steel,
L.P. v. National Labor Relations Board, 130 S. Ct.
2635 (2010).

25. Amanda Becker, U.S. Supreme Court ruling seen
unlikely to alter past NLRB decisions, Chicago
Tribune [online edition], June 26, 2014, at http://
relations-board; Pamela C. Corley, Recess
Appointments: National Labor Relations Board v.
Noel Canning. Justice System Journal, 35(4),
2014, pp. 410 412.

26. Office of the General Counsel of the National
Labor Relations Board, Summary of Operations,
2012, pp. 2 5 at http://www.nlrb.gov/reports-
guidance/reports/summary-operations; NLRB
Board Decisions Issued, at http://www.nlrb.gov/

27. Ibid., Office of General Counsel, pp. 4 5.
28. Bruce S. Feldacker, Labor Guide to Labor Law,

4th ed. (Upper Saddle River, NJ: Prentice-Hall,
2000), pp. 12 14.

124 PART 1 Recognizing Rights and Responsibilities of Unions and Management

29. Holly Farms Corporation v. NLRB, 116 S.Ct. 1396

30. Section 2(11), LMRA 61 Stat. 136 (1947). See also
NLRB v. Kentucky River Community Care, Inc.,
532 U.S. 706 (2001).

31. NLRB v. Bell Aerospace Company, 416 U.S. 267

32. Oakwood Healthcare Inc. and United Automobile
Workers International Union, 348 NLRB No. 37

33. NLRB v. City Disposal Systems, Inc., 465 U.S. 822
(1984); NLRB v. Washington Aluminum Com-
pany, 370 U.S. 9 (1962).

34. NLRB v. City Disposal Systems, Inc., 465 U.S. 822

35. Seventy-Fourth Annual Report of the National
Labor Relations Board for the Fiscal Year Ended
September 30, 2009 (Washington, D.C.: U.S.
Government Printing Office, 2009), pp. 4 5.

36. National Labor Relations Board, Performance and
Accountability Report, FY 2014, at http://www.

37. Office of the General Counsel of the National
Labor Relations Board, Summary of Operations,
2012, pp. 4 5; also see, National Labor Relations
Board, Disposition of Unfair Labor Practice
Charges, at http://www.nlrb.gov/news-outreach/

38. Leonard R. Page, The NLRA at 70: Perspectives
from the Office of the General Counsel, Labor
Law Journal, 56(3), 2005, pp. 188 189; Fredrick
L. Feinstein, The NLRA at 70: Perspectives from
the Office of the General Counsel, Labor Law
Journal, 56(3), 2005, pp. 192 195; Risa L.
Lieberwitz, Labor Law in the United States:
The Continuing Need for Reform, Managerial
Law, 46(4/5), 2004, pp. 53 70.

39. H.K. Porter Company v. NLRB, 397 U.S. 99
(1970). See also BE & K Construction Company v.
NLRB, 536 U.S. 516 (2002) and Hoffman Plastic
Compounds, Inc. v. NLRB, 535 U.S. 137 (2002).

40. Lawrence E. Dube, NLRB Rules 3 1 for Elec-
tronic Posting of Notices to Remedy Unfair Labor
Practice, Daily Labor Report, No. 205, October
25, 2010, pp. AA2 3.

41. Ford Motor Company v. NLRB, 441 U.S. 488
(1979); Charles D. Bonanno Linen Service v.
NLRB, 454 U.S. 404 (1982).

42. Office of the General Counsel of the National
Labor Relations Board, Summary of Operations,
2012, January 11, 2013, p. 6 at http://www.nlrb.

43. James A. Gross, The Demise of the National
Labor Policy: A Question of Social Justice, in
Restoring the Promise of American Labor Law, ed.
Sheldon Friedman et al. (Ithaca, NY: ILR Press,
1994), pp. 57 58.

44. Janice R. Bellace, Labor Law Reform for the Post
Industrial Workplace, Labor Law Journal, 45,
August 1994, p. 460.

45. Kenneth R. Dolin, Analyzing Recent Devel-
opments at the National Labor Relations
Board, Labor Law Journal, 56(2), 2005,
pp. 120 138; James Gray Pope, Class Conflicts
of Law II: Solidarity, Entrepreneurship, and
the Deep Agenda of the Obama NLRB,
Buffalo Law Review, 57, 2009, p. 653;
Anonymous, Employers beware: Senate has
confirmed pro-labor majority to NLRB,
Management Report for Nonunion Organizations,
36(9), 2013, p. 1

46. Bush Labor Board Decisions: Pendulum Shift or
Permanent Changes? Labor Law Journal, 56(3),
2005, p. 222.

47. James J. Brudney, The Changing Workplace:
Reflections on Group Action and the Law of the
Workplace, Texas Law Review, 74, June 1996,
pp. 1563 1599.

48. Cynthia L. Estlund, The Ossification of
American Labor Law, Columbia Law Review,
102, October 2002, p. 1540.

49. Estlund, The Ossification of American Labor
Law, pp. 1536 1158. See also William B. Gould,
Agenda for Reform: The Future of Employment
Relationships and the Law (Cambridge, MA: MIT
Press, 1993) and Paul C. Weiler, Governing the
Workplace: The Future of Labor and Employment
Law (Cambridge, MA: Harvard University
Press, 1990).

50. Michael C. Harper, The Continuing Relevance
of Section 8(a)(2) to the Contemporary
Workplace, Michigan Law Review, 96(8), 1998,
pp. 2322 2383.

51. Jeff Canfield, Note: What a Shame: The
Broken Beck Rights System in the Real World
Workplace, Wayne Law Review, 47, Fall 2001,
1049 1074; Peter Capelli, Old Laws Hobble the

CHAPTER 3 Legal Influences 125

New Economy Workplace, Sloan Management
Review, 42(2), 2001, pp. 110 111.

52. Samuel Estreicher and Matthew T. Bodie, Review
Essay: Administrative Delay at the NLRB: Some
Modest Proposals, Journal of Labor Research,
23(1), 2002, pp. 87 105. See also Edward B.
Miller, An Administrative Appraisal of the NLRB,
4th ed. (Fairfax, VA: John M. Olin Institute for
Employment Practice and Policy at George
Mason University, 1999).

53. U.S. General Accounting Office, National
Labor Relations Board: Action Needed to
Improve Case Processing Time at Headquarters
(Washington, D.C.: Superintendent of
Documents, 1991), pp. 1 7.

54. National Labor Relations Board, Performance and
Accountability Report, FY 2014, pp. 46 47, at

55. Samuel Estreicher, Improving the Administra-
tion of the National Labor Relations Act without
Statutory Change, ABA Journal of Labor and
Employment Law, 25(1), 2009, pp. 1 24; Melanie
Trottman & Kris Maher. Plan to Ease Way for
Unions Labor Board Proposes Speeding Up
Organizing Votes; Employers, GOP Cry Foul.
Wall Street Journal (Eastern Edition), June 22,
2011, p. A.1; Tim Devaney, Labor Board Speeds
Up Union Elections, The Hill [Online edition],
December 12, 2014, at http://thehill.com/

56. William B. Gould IV, New Labor Law Reform
Variations on Old Theme: Is the Employee Free
Choice Act the Answer? Fall 2009, pp. 1 46.

57. Charles B. Craver, The National Labor Relations
Act at 75: In Need of a Heart Transplant, Hofstra
Labor and Employment Law Journal, 27, Spring
2010, pp. 311 356; Mike Pare, U.S. Secretary of
Labor Thomas Perez cites Chattanooga s Volks-
wagen plant in touting new approach, Chatta-
nooga Times Free Press [online edition], October
23, 2014, at http://www.timesfreepress.com/news/

58. National Mediation Board, Annual Performance
and Accountability Report FY 2009 (Washington,
D.C.: National Mediation Board, 2009), p. 2.

59. Lisa Catherine Tulk, Comment: The 1926 Rail-
way Labor Act and the Modern American Airline

Industry: Changes and Chaos Outline the Need
for Revised Legislation, Journal of Air Law and
Commerce, 69, Summer 2004, pp. 615 645;
Nancy Brown Johnson, Airlines: Can Collective
Bargaining Weather the Storm? in Collective
Bargaining in the Private Sector, ed. by Paul
F. Clark, John T. Delaney, and Ann C. Frost
(Champaign, IL: Industrial Relations Research
Association, 2002), pp. 16 20; Charles M.
Rehmus, Evolution of Legislation Affecting
Collective Bargaining in the Railroad and Airline
Industries, in The Railway Labor Act at Fifty, ed.
Charles M. Rehmus (Washington, D.C.: U.S.
Government Printing Office, 1977), p. 4.

60. National Mediation Board, Annual Performance
and Accountability Report FY 2009, p. 34;
National Mediation Board, NMB and RLA Fact
Sheet, Sept. 30, 2012, at http://www.nmb.gov/
National Mediation Board, Annual Report FY
2013, at https://storage.googleapis.com/dakota-

61. National Mediation Board, NRAB Board Members:
FY 2010 February 4, 2010, p. 1, at http://www.nmb.
Rehmus, Collective Bargaining, in The Railway
Labor Act at Fifty, pp. 14 15.

62. National Mediation Board, Annual Performance
and Accountability Report FY 2009, pp. 40, 45;
National Mediation Board, Arbitration Highlights,
FY 2013, at https://storage.googleapis.com/
arbitration.html; National Mediation Board,
Representation Highlights, at https://storage.

63. Larry Swisher, NMB Ends Longstanding Policy,
Adopts Rule for Majority Vote in Representation
Elections, Daily Labor Report, No. 89, May 11,
2010, pp. AA1 3; Jennifer Michels, Precedent
Setting Case, Aviation Week and Space Technol-
ogy, 172(20), 2010, p. 43; Seth Borden, National
Mediation Board (NMB) Changes Union Election
Rules, Easing Unionization Process, Labor Rela-
tions Today [online edition], May 12, 2010, at
also see Doug Hall, NMB Announces Internet
Voting, Venulex Legal Summaries, Q1, January,

126 PART 1 Recognizing Rights and Responsibilities of Unions and Management

2007, pg. 1 at http://connection.ebscohost.com/c/
ing; Michael Elsenrath, “Effect of NMB Voting
Change on Airline Unionization.” The Journal of
Aviation/Aerospace Education & Research 23(2),
2014, pp. 41 56.

64. Association for American Railroads, Collective
Bargaining in the Rail Industry, April, 2014, p. 1,
at https://www.aar.org/BackgroundPapers/

65. Fact Finding Report, Commission on the Future of
Worker-Management Relations (Washington,
D.C.: U.S. Departments of Labor and Commerce,
May 1994), pp. 99 100.

66. Charles M. Rehmus, Emergency Strikes Revis-
ited, Industrial and Labor Relations Review,
43(2), 1990, pp. 175 190; Douglas M. McCabe,
The Railroad Industry s Labor Relations Envi-

ronment: Implications for Railroad Managers,
ICC Practitioners Journal, 49, September October
1982, pp. 592 602; Railroad Workers United, U.S.
Unions in National Rail Bargaining, Updated July
25, 2012, at http://railroadworkersunited.org/us-

67. Charles M. Rehmus, The First Fifty Years: And
Then, in The Railway Labor Act at Fifty, ed.
Rehmus, p. 246; Beatrice M. Burgoon, Mediation
under the Railway Labor Act, in The Railway
Labor Act at Fifty, ed. Rehmus, p. 23.

68. Deregulation in Three Transport Industries Has
Produced Widely Diverse Labor Market Results,
Daily Labor Report, May 13, 1986, p. A-13.

69. Mark Kahn, Introduction, in Cleared for Take-
off: Airline Labor Relations since Deregulation, ed.
Jean T. McKelvey (Ithaca, NY: ILR Press, 1988),
p. 3; David Morris, Airline Deregulation: A Tri-
umph of Ideology Over Evidence, The Huffing-
ton Post [online edition], December 13, 2013, at

70. Alfred Kahn, In Defense of Deregulation, in
Cleared for Takeoff: Airline Labor Relations since
Deregulation, ed. Jean T. McKelvey (Ithaca, NY:
ILR Press, 1988), pp. 344 345. Jan K. Brueckner,
Darin Lee, & Ethan S. Singer, Airline Competi-
tion and Domestic US airfares: A Comprehensive
Reappraisal, Economics of Transportation, 2(1),
2013, pp. 1 17. For a legal analysis, see Beth

Adler, Comment: Deregulation in the Airline
Industry: Toward a New Judicial Interpretation of
the Railway Labor Act, Northwestern University
Law Journal, 80, Winter 1986, pp. 1003 1006.

71. Greg J. Bamber, Jody Hoffer Gittell, Thomas A.
Kochan, & Andrew Von Nordenflycht. Up in the
air: How airlines can improve performance by
engaging their employees. (Ithaca, NY: Cornell
University/ILR Press, 2009); Bruce E. Kaufman,
Keeping the Commitment Model in the Air

during Turbulent Times: Employee Involvement
at Delta Air Lines, Industrial Relations,
52(Supplement 1), 2013, pp. 343 377.

72. U.S. General Accounting Office, Airline Labor
Relations: Information on Trends and Impact of
Labor Actions (Washington, D.C.: Government
Accounting Office, 2003), pp. 3 4; Andrew von
Nordenflycht and Thomas A. Kochan, Labor
Contract Negotiations in the Airline Industry,
Monthly Labor Review, 126 (7), 2003, pp. 18 28.

73. Johnathan E. Collins, Comment: Airlines Jettison
Their Pension Plans: Congress Must Act to Save
the PBGC and Protect Plan Beneficiaries, Journal
of Air Law and Commerce, 70, Spring 2005,
pp. 289 317; Daniel P. Rollman, Comment:
Flying Low: Chapter 11 s Contribution to the
Self-Destructive Nature of Airline Industry
Economics, Emory Bankruptcy Developments
Journal, 21, 2004, pp. 381 418; and Donald E.
Cullen, Emergency Boards under the Railway
Labor Act, in The Railway Labor Act at Fifty,
ed. Rehmus, pp. 176 183; Alexandra Bradbury,
Rail Workers Vote Down Single-Person Crews,

Labor Notes [online edition], September 11, 2014, at

74. Nancy Brown Johnson, Airlines: Can Collective
Bargaining Weather the Storm? in Collective
Bargaining in the Private Sector, eds. Clark,
Delaney, and Frost, 2002, p. 20.

75. Pension Benefit Guaranty Corporation, Who We
Are, 2014, pp. 1 2 at http://www.pbgc.gov/
about/who-we-are.html; U.S. Department of
Labor, Retirement Plans, Benefits and Savings,
2014, p. 1 at http://www.dol.gov/dol/topic/

76. David A. Drachsler, Notes On: Year One of the
Lilly Ledbetter Fair Pay Act, Labor Law Journal,
61(2), 2010, pp. 102 106.

CHAPTER 3 Legal Influences 127




1 The Great Temperature Debate

The employer is a small, nonunion furniture manufacturer
with 15 employees engaged in interstate commerce. Both of
the employees involved in this case worked in the machine
shop building as band-saw operators. Because the band
saws were located near the shop s large overhead door, to
facilitate the disposal of sawdust, the band-saw operators
were often subject to lower temperatures and drafts on
cool or cold days, whereas other employees farther from
the overhead door often felt too warm. To resolve this
long-standing problem, the plant manager established a
rule that stated: The overhead door will remain open
when the temperature in the shop exceeds 68 degrees and
closed when the temperature is at or below 68 degrees.

On the day in question, employees Drake and Keeler,
who were both band-saw operators, complained to the
shop supervisor that they were too cold and requested
that the overhead door be closed. When questioned by
the shop supervisor, the majority of the other shop
employees present responded that they thought the
door should be left open. The thermometer on the wall
of the shop supervisor s office, located in approximately
the center of the machine shop building, read 72 degrees.

On this day, employee Drake was wearing a sleeve-
less shirt and shorts. Employee Keeler was dressed in
blue jeans, a short-sleeved shirt, a flannel shirt, and a
heavy sweater. Both Keeler and Drake claimed it was
too cold and drafty at their workstation near the open
overhead door. The shop supervisor refused to close
the overhead door because the majority of employees
wanted it left open. During a scheduled lunch break,

Drake and Keeler discussed their problem and decided
to walk off the job for the remainder of the day to
protest the cold temperature at their workstation.

Upon returning to work the following morning,
Drake and Keeler were informed by the plant manager
that they had been fired for leaving work the previous
day without management s permission. Drake and Kee-
ler subsequently filed an unfair labor practice charge
with the NLRB alleging their discharge represented
unlawful discrimination of their right to engage in con-
certed and protected activity under Section 7 of the
LMRA. Drake and Keeler requested a remedy to
include reinstatement with full back pay and restora-
tion of any lost privileges.

1. Because Drake and Keeler s employer meets the

standard for coverage under the LMRA by engaging
in interstate commerce, which specific employee
right protected by Section 7 of the LMRA could
Drake and Keeler argue they were engaged in which
at least partially motivated the employer s decision
to discharge them?

2. On what grounds might the employer try to argue
that the discharge of Drake and Keeler was an
appropriate (legal) exercise of management s rights?

3. Was the employer s discharge of Drake and Keeler an
unfair labor practice under the LMRA, as amended? If
so, what should be the appropriate remedy?




2 Independent Contractors? Or Employees?

The employer publishes the South Texas Clarion daily
newspaper, employing 726 carriers on 780 routes
throughout the rural Rio Grande river valley. In addi-
tion to the Clarion, the carriers also deliver seven other
newspapers (e.g., The Wall Street Journal). The
employer operates four distribution centers (ware-
houses) where carriers pick up the papers to take on
their routes. Each distribution center has a general

manager and several District Managers who super-
vise the work of 30 50 carriers. A few carriers work
multiple routes.

In order to become a carrier, an individual must
submit proof from the state that they are a safe and
licensed driver. They also sign a Contractor s Agree-
ment and put down a $300 security deposit. Either
party can terminate the Agreement with a 21-day

128 PART 1 Recognizing Rights and Responsibilities of Unions and Management

notice. District Managers usually show new carriers
their routes, although sometimes the previous carrier
trains his/her replacement.

District managers leave messages for carriers via dry-
erase boards in the warehouse and small read-only com-
puters, which carriers rent for $2 per week. These
computers are updated daily at the distribution center
with information about new/ending subscriptions, route
suggestions, and special requests from subscribers.

Because most sections of the newspaper have been
pre-printed, they are delivered to the Distribution Cen-
ters when the facilities open at 1:00 A.M. each day. The
front two sections, with the most current news, arrive
by truck an hour later. Carriers arrive at 2:00 A.M. and
assemble the papers at route tables, although they are
free to assemble them in their vehicles or even at
home. The employer provides free plastic bags on Sun-
days and on mornings where rain is imminent. Carriers
must purchase bags and/or rubber bands on other days
(the carriers are free to choose which to use).
Once assembled, the carriers deliver the newspapers.
By contract, all papers must be delivered to residences
by 6:00 A.M, and to organizations by 8:00 A.M.

Many carriers occasionally use helpers (e.g., to
assemble papers) or substitute drivers (e.g., if a carrier
goes on vacation). These workers are paid by the carriers,
not by the newspaper; the newspaper only requires that
substitutes have a valid driver s license and vehicle insur-
ance. Carriers are paid weekly from the Accounts Pay-
able department, whereas Clarion employees are paid
from the Payroll Department. Both types of paychecks
originate from the same office. Carriers are paid 30 cent
per delivery of the Clarion plus 5 cent for each full-sized
advertising supplement. For other papers, the rate is 10
cent per delivery. The newspaper does not deduct payroll
taxes or workmen s compensation for carriers and at the
end of the year, they are issued a 1099 form rather than a
W-2 form. They receive no health insurance or other
fringe benefits from the employer.

The question before the ALJ is whether the carriers
are employees of the publisher of the South Texas Clar-
ion newspaper or whether the carriers are independent
contractors. Section 2(3) of the National Labor Relations
Act (also called the Labor Management Relations Act or
the Act ) indicates that, the term employee shall not

include any individual having the status of independent
contractor. [for full text, see http://www.nlrb.gov/
resources/national-labor-relations-act]. If carriers are
employees they are free to unionize if they wish; if

they are independent contractors then they are not.

The employer maintains that the carriers are inde-
pendent contractors and not employees and that a sim-
ilar newspaper case, St. Joseph News-Press (2005)
supports this position. The employer argues that case
differs from a superficially similar case the Roadway

Package System, 326 NLRB 842 [159 LRRM 1153]
(1998), and is similar to the Dial-A-Mattress Operating
System, 326 NLRB 884 [159 LRRM 1166] (1998) case
where workers were found to be independent contrac-
tors. The employer concedes that a few factors raised in
the St. Joseph New-Press case may suggest employee
status for the Clarion carriers (e.g., the work is unskilled,
yet is essential to the operation of the newspaper). How-
ever, the majority of the factors indicate that the carriers
at the Clarion are independent contractors. These
include the following reasons:

1. Control of work. As independent contractors, car-
riers maintain great control over the details of how
they complete their work. For example, while the
District Managers can suggest routes, the carriers
are free to deviate from those suggestions. Carriers
can also decide whether to use rubber bands or
bags and where to assemble newspapers.

2. Supervision. The newspaper does not subject car-
riers to any sort of progressive discipline system
for problems with deliveries. It is true that the
employer relays customer complaints to its carriers
and may follow a carrier on his or her route if
complaints persist. But the employer does not
take any adverse action against a carrier for failure
to adequately perform his or her duties, other than
terminating the contract. Moreover, although the
carriers are subject to Safety Standards rules,
the employer disagrees with the union s character-
ization of these as employee work rules. The
standards apply to anyone who enters the distribu-
tion center, including carriers, employees, and visi-
tors. The rules state that no alcohol, drugs, or
weapons are allowed on employer property; also
closed-toed shoes must be worn. The Safety Stan-
dards do contain some carrier-specific rules. How-
ever, these rules simply ensure the safe operation of
the distribution center; they do not dictate how the
carrier is to perform his or her duties.

3. Entrepreneurial potential. Carriers have more than
a paycheck; they are, in essence, small business
owners. They are free to hire full-time substitutes,
hold multiple routes, and deliver other papers in
addition to those distributed by the employer.

CHAPTER 3 Legal Influences 129

They can work as substitutes for other carriers.
Many also hold other day jobs.

4. Provision of tools, supplies, and a place to work.
Carriers own, control, and maintain their own
vehicles. They buy supplies and are free to work

5. Parties intent. The parties intend to have a
contractor client relationship. The parties Con-
tractor s Agreement clearly states the type of
agreement that the carrier and newspaper are
forming. Also, the carriers are not subject to
employee pay and benefits, but are paid in the
same manner as other outside vendors.

By contrast, the union calls attention to the work
relationship of the carriers and the employer. Based
on their economic dependence on the newspaper,
together with other relevant factors, we submit that
the carriers are statutory employees, and not indepen-
dent contractors. But even considering only the factors
management listed in the common-law test, we would
reach the conclusion that the carriers are employees.

The union argues that four of the nine factors
mentioned in the St. Joseph News-Press case indisput-
ably weigh in favor of finding employee status :

1. The distribution of newspapers is an integral part
of the Employer s business.

2. The carriers are performing unskilled work
3. Carriers are hired for an indefinite period (inde-

pendent contractors, such as construction contrac-
tors, usually have a deadline whereby a project
must be completed; these carriers have no such

4. Other employees perform work that is similar to the
work performed by the carriers (it is not uncom-
mon for newspaper employees or District Managers
to deliver newspapers if a carrier is ill or no carrier
has been hired to serve a particular route)

The further union contends that the remain-
ing factors tip the balance in favor of finding that
the carriers are employees:

5. Control of Work. The employer exercises more
control over the carriers details of work than did
the employer in News-Press. The Clarion requires
carriers to deliver to all subscribers on their routes.
Unlike New-Press carriers, Clarion carriers, more-
over, do not issue bills, extend credit, or collect
payments. Instead, the Clarion s circulation depart-
ment bills subscribers. Clarion carriers have been
subjected to discipline that went beyond merely

threatening to terminate the contract (e.g., two-
week suspensions). Carriers are subject to a list of
work rules specified in their employment agree-
ment and to ad hoc rules developed by District
Managers. One District Manager prohibits pets in
carrier vehicles during delivery and even pre-
approves carriers Christmas cards.

6. Supervision. District managers relay customer
complaints to carriers and sometimes terminate
contracts if complaints are excessive. But District
Managers will sometimes take the additional step
of following carriers on their routes. District Man-
agers will also call carriers if they are late arriving
at the distribution center. Two carriers in the pres-
ent case have testified that carriers will be offi-
cially reprimanded if they receive too many
customer complaints. Thus, a formal progressive
discipline system for carriers exists.

7. Provision of tools, supplies, and a place to work. It is
also clear that the employer provides supplies and
a place of work. The employer furnishes compu-
ters, albeit it charges the carriers a nominal weekly
rental fee. The employer also maintains distribu-
tion centers complete with route tables, cubby
holes, and downloading facilities for the compu-
ters. The carriers must report to a distribution cen-
ter to obtain newspapers.

8. Entrepreneurial potential. The employer requires
carriers to deliver newspapers at a nonnegotiable
piece rate. This inability to negotiate rates limits
entrepreneurial potential. Although carriers also
can hire substitutes, Clarion managers control sub-
stitutes terms and conditions of employment.
Some District Managers will not give more routes
to carriers whom they believe do not have time for
another route. Together, these facts suggest Clarion
carriers are employees and not entrepreneurs.

9. Parties intent. Finally, the parties contract implies
an independent contractor client agreement. But
the carriers have no choice in whether they are
considered independent contractors or employees;
rather, the employer simply labels them
contractors. To say that this contract reflects

the carriers intent is therefore dubious. Further,
in the Rio Grande valley, many carriers speak
Spanish, but the contract is written in English!
Such a contract is not negotiated by two inde-
pendent equals; it is simply is the dictation of
terms by one side and is not reflective of mutual

130 PART 1 Recognizing Rights and Responsibilities of Unions and Management

1. Go to www.NLRB.gov/ and search for the precedent

cases (Roadway, Dial-a-mattress, and St. Joseph
News-Press. How does this case parallel and differ
from those cases?

2. Which of the company s arguments for indepen-
dent contractor status are most compelling?

3. Which of the union s arguments for employee
status are most compelling?

4. Is this simply a case of who wins more of the nine
factors? Or are some factors inherently more
important than others? If so, which ones in this case
are more important?

5. If you were an Administrative Law Judge working
for the NLRB, how would you rule in this case and




3 NLRB Jurisdiction over a Private Charter School

The key issue in this case is whether the employer, a
private for profit corporation that contracted with a
government entity to operate a school, is exempt
from Board jurisdiction as a political subdivision of
the state of Michigan within the meaning of Section
2(2) of the LMRA. Section 2(2) of the LMRA excludes
from the definition of a covered employer any state or
political subdivision thereof.

This case began when the Michigan Education
Association filed a representation election petition
with the NLRB seeking to become the representative
for a proposed bargaining unit consisting of teachers
and counselors employed at the Academy of Waterford
(the Academy), a public charter school under the pro-
visions of the Michigan Revised School Code. To deter-
mine if the representation petition was valid, one
question the NLRB must determine is whether the
employer (Charter Schools Professional Management
Inc.) meets the definition of a covered employer
under the LMRA as noted previously.

The Academy was first created as a public charter
school by the Blue Springs Community College (BSCC)
under provisions of the Michigan revised School Code.
BSCC retains oversight authority of the Academy and
is responsible to the Michigan Department of Educa-
tion for ensuring the operation and performance of
the Academy complies with its charter and all applica-
ble laws. BSCC appoints a board of directors to oversee
the Academy and disburses funds received from the
state of Michigan to the Academy to fund its opera-
tions. In return for administering oversight authority,
BSCC receives a fee equal to 3 percent of all funds the
Academy receives from the state of Michigan. The

Academy was incorporated as a nonstock, nonprofit,
tax exempt corporation under Michigan s Non-Profit
Corporation Act. The Academy is considered a govern-
ment agency under the Michigan revised School Code
and board members, officers, and employees have gov-
ernment immunity from lawsuits. As a government
agency, the Academy must comply with Michigan s
Open Meetings Act, Freedom of Information Act, and
Public Employment Relations Act in addition to sub-
mitting numerous reports regarding educational, finan-
cial, and operating matters to BSCC annually.

The Academy s Board of Directors decided to enter
into a services contract with Charter Schools Professional
Management Inc. (CSPMI) to operate the Academy.
CSPMI is a private, for profit organization incorporated
under the Michigan Business Corporation Act to provide
educational management services to public charter
schools. CSPMI as a private corporation is not subject to
Michigan s Open Meetings Act or Freedom of Informa-
tion Act. CSPMI is controlled by a board of directors that
is elected by the ownership of the corporation. The cor-
poration s financial records are not available to the public
nor is there any state requirement that the corporation s
financial transactions be subjected to any audit. CSPMI
receives an annual fee of 12 percent of all state and federal
funds received by the Academy as payment for the man-
agement services it provides.

CSPMI (the employer) is solely responsible for hir-
ing, training, and disciplining all teachers or other staff
employees of the Academy. The employer solely deter-
mines the rates of pay or other benefits employees
receive, performs all performance evaluations, and
determines disciplinary or discharge actions to be

CHAPTER 3 Legal Influences 131

taken against employees. The day-to-day operations of
the Academy are the responsibility of the principal and
staff, who are each employed by CSPMI. Neither the
Academy s board of directors nor anyone affiliated
with BSCC has any involvement in personnel matters
affecting Academy employees. The Academy s teachers
as employees of a private corporation are not eligible to
participate in the Michigan Public School Retirement
System. The employer is responsible for the operation
and maintenance of the Academy s school building and
all aspects of the Academy s business administration
including reports the Academy is required to submit
to the state and an annual operating budget submitted
to the Academy s board of directors.

The NLRB has formulated a standard test to deter-
mine if an entity such as the employer in this case is a
political subdivision of the state and thus exempt from
coverage under the definition of an employer contained
in Section 2(2), LMRA. To be exempt from NLRB
jurisdiction as a political subdivision of a state, the

employer must either (1) be created directly by the
state so as to constitute a department or administrative
arm of the government, or (2) administered by indivi-
duals who are responsible to public officials or to the
general electorate.

1. Applying the standard test outlined previously, does

the employer (CSPMI) meet the definition of an
employer as stated in Section 2(2), LMRA and
therefore, the board may assert jurisdiction and
conduct a representation election? Explain your

2. In the debate over whether charter public schools
should be created, are the potential bargaining rights
of charter school employees a relevant issue which
should be part of the public debate over whether
charter schools are more advantageous than existing
public schools? Explain your reasoning.




4 Determination of Supervisory Status

The union sought to become the exclusive bargaining
representative for a group of five harbor pilots
employed by Pacific Coast Docking Pilots (the
employer). The union won a National Labor Relations
Board (NLRB) supervised secret-ballot election by a
vote of 5 0. The employer refused to recognize and
bargain with the union in an effort to force a federal
court to determine if the five harbor pilots who com-
posed the bargaining unit were supervisors or employ-
ees. The union filed an unfair labor practice against the
employer for a refusal to bargain in good faith. The
Board granted summary judgment in favor of the
union, which the employer then appealed to a federal
court of appeals for review.

The employer argued that the harbor pilots should
be classified as supervisors and therefore excluded
from the definition of an employee covered under
the LMRA, as amended. The burden of proving the
supervisory status of an employee is on the party
asserting such a status. Section 2(11), LMRA defines a
supervisor as any individual having authority, in the
interests of the employer, to hire, transfer, suspend, lay
off, recall, promote, discharge, assign, reward, or

discipline other employees, or responsible to direct
them, or to adjust their grievances, or effectively to rec-
ommend such action, if in conjunction with the fore-
going the exercise of such authority is not of a merely
routine or clerical nature, but requires the use of inde-
pendent judgment.

The Supreme Court has established a three-part
test for determining the supervisory status of an indi-
vidual under the LMRA, as amended (NLRB v. Health
Care & Retirement Corp., 511 U.S. 571 [1994]). First,
an employee must perform at least one of the 12 spe-
cific functions outlined in the statutory definition of a
supervisor under Section 2(11) of the LMRA. Second,
in performing one of the 12 specified supervisory func-
tions, the individual must be required to exercise inde-
pendent judgment. Third, the exercise of independent
judgment in performing one or more of the 12 listed
supervisory functions must be in the interest of the
employer. The third test is typically the easiest to
prove because virtually any action related to the attain-
ment of a legitimate business goal or purpose of the
firm will be considered an act in the interest of the
employer. Most cases involving the determination of

132 PART 1 Recognizing Rights and Responsibilities of Unions and Management

supervisory status will rest on an analysis of the evi-
dence related to parts one and two of the three-part
supervisory status test.

The employer maintains that the docking pilots
make recommendations on hiring and promotion deci-
sions, assign work to employees, and are responsible for
directing employees work during the docking process.
More specifically, the employer states that the advice of
docking pilots is almost always followed in making deci-
sions regarding who to hire or promote into a docking
pilot position or relief docking pilot position. U.S. Coast
Guard regulations require that docking pilot trainees
make trips with licensed docking pilots before becoming
eligible to obtain a docking pilot s license. Docking pilots
are required to evaluate the performance of trainees on
such trips and provide a recommendation as to the suit-
ability of each trainee for the job position of docking
pilot. Docking pilots do not discipline other employees,
adjust employee grievances, or evaluate the job perfor-
mance of nontrainee pilots. The final authority for all
hiring and promotion decisions rest with the president
and vice president of the employer.

When a large ship enters a port, it requires the assis-
tance of tugboats to maneuver into a position to dock or
undock. The docking pilot receives from the employer a
list of the ships scheduled to arrive or depart the port on a
given day. The information provided by the employer
includes such items as the current location and dimen-
sions of each ship. The docking pilot uses this informa-
tion together with current information on other factors
(e.g., current wind speed, water current speed, existing
navigation hazards in the channel) to determine the
number of tugboats required to accomplish the docking
procedure. Once a ship s captain has entered the port, a
tugboat delivers the docking pilot to the ship. The dock-
ing pilot then assumes command of the ship from the
ship s captain and directs the docking procedure. The
docking pilot communicates directly with the captain
of each tugboat involved to ensure that each tugboat
will render the necessary assistance to ensure a safe and
accurate docking experience. Essentially, the docking
pilot communicates what must be accomplished to
each tugboat captain, who then determines what actions
his tugboat crew must take to accomplish the defined
objective. Each tugboat captain is responsible for direct-
ing his or her own boat crew to carry out the instructions
of the docking pilot. Tugboat captains have been previ-
ously determined by the NLRB to be supervisors under

the LMRA. Once the docking procedure is completed,
the docking pilot returns control of the ship to the
ship s captain and reboards one of the tugboats to pre-
pare for the arrival or departure of the next ship on the
daily schedule.

The employer argued that the docking pilot s
determination of how many tugboats will be required
to perform a particular docking operation constitutes
an assignment of work using independent judgment,
which is a supervisory function under the LMRA s def-
inition of a supervisor. The employer also notes that a
docking pilot responsibly directs others during the
docking procedure by giving orders to the tugboat cap-
tains regarding the number and placement of towing
lines to ensure a safe and efficient docking procedure.

The union argued that the five docking pilots were
professional employees covered by the LMRA, not
supervisors. The docking pilots have no authority to
hire anyone, although they may be asked to give a pro-
fessional opinion regarding the qualifications of an
applicant for a vacant docking pilot position. Compli-
ance with Coast Guard regulations, which require less-
experienced pilots to ride along with a more experi-
enced pilot to learn information about a particular
port before assuming responsibility for docking proce-
dures in that port, represents a discharge of profes-
sional responsibility, which is a job duty of being a
docking pilot. The docking pilots do not discipline
other employees, handle grievances, or formally evalu-
ate other employees job performance.

The union further argued that instructions given
by docking pilots to other tugboat captains (who are
supervisors) during docking procedures are part of
the job duties of a professional docking pilot. The
docking pilot has no authority to order members of a
tugboat captain s crew to perform any specific job
duties. The determination of the number of tugboats
required to perform docking procedures is a function
of the size of the ship to be docked and prevailing sea
and weather conditions. This determination does not
require the exercise of significant independent judg-
ment on the part of the docking pilot.

1. Should the docking pilots be classified as supervisors

and thus excluded from participating in a bargain-
ing unit for purposes of collective bargaining?
Explain your reasoning.

CHAPTER 3 Legal Influences 133


Unions and Management: Key Participants
in the Labor Relations Process

YESTERDAY, BOB BOYCE, my department s Shop Steward,
came up to me and told me that I ought to join the union like
so many of my fellow employees. My hunting buddies, David
Hunt, Jim McBride, Larry Tate, and Bill Ikerd, have already
joined and are taking an active role in the union by going to
meetings. I realize that a lot of folks put it on the line to get
the union in during the organizing campaign and during the
negotiations. After several months of negotiations, the union
finally got a huge contract that gave employees a nice pay
raise, a pension program, and guaranteed health insurance.
Also, gone are the days where the supervisors can simply
make favorable work assignments and offer overtime to their
cronies; they now have to go by provisions in the labor agree-
ment. I have been thinking about joining, but I get all the bene-
fits that union members get and I don t have to pay anything to
receive these benefits.

1. Why should he join? Are there other benefits?

2. How similar is this situation to others in American society?

3. What would you do? Why?


As noted in Chapter 1, two key participants in the labor relations process are the union,which as the exclusive bargaining agent represents employees in the bargaining units,
and management, which represents the owners or stockholders of the company. This
chapter first provides a general explanation of the goals, strategies, and organizational
structure of the company and the union for labor relations purposes. Because companies
and unions are organized differently to meet different purposes, basic goals, strategies, and
organizational structures will be presented that may be adjusted to meet respective
differences. The second part of the chapter focuses on union governance and structure by
describing the characteristics of unions, union government at the various levels,
organizational structure, and problems with corruption and misuse of power within a few
unions. The final section covers union security, a subject vital to the union s role in gaining
bargaining strength and meeting members expectations.

Goals and Strategies: Management and Unions

Unions and management of companies have goals that are similar; they also have goals
which at times conflict. These goals provide direction and serve as the basis for the orga-
nization s strategies, plans, and organizational structure. Exhibit 4.1 displays some major
goals for both companies and unions, which in several cases are similar and consistent,
and in other cases, the goals have potential for conflict. The areas of potential conflict cre-
ate possibilities for an adversarial relationship, and the areas of agreement create possibilities
for cooperation and labor peace. As will be noted, most of the time unions and management
are able to settle their differences without resorting to a work stoppage (0.0002 of total man-
days per year are lost due to work stoppages). The collective bargaining process itself is a

Exhibit 4.1
Goals of the Company
and the Union

The Company Wants The Union Wants

To survive and remain competitive The company to survive and remain
competitive as well as for the union to
survive and remain secure

To grow and prosper The company, as well as the union, to
grow and prosper

To achieve a favorable return on its

The company to achieve a favorable
return on its investment and return
fair wages to employees

To effectively use human resources The company to effectively use human
resources within the rules and
policies of the agreement and to
achieve job security and employment
opportunities for members

To attract, retain, and motivate

The company to attract, retain, and
motivate employees within the rules
and policies of the agreement

To protect management s rights to
make decisions and retain flexibility

To protect union and employee rights
that were negotiated and included in
the labor agreement

To obtain a commitment from the
union that there will be no strike for
the duration of the agreement

To obtain a commitment from the
company that there will be no lockout
for the duration of the agreement

CHAPTER 4 Unions and Management: Key Participants in the Labor Relations Process 135

mechanism designed by the parties and adopted by the U.S. Congress as the preferred
method for resolving differences between unions and management.

Both the company and the union want the company to survive and remain compet-
itive. Union agreement with this goal is logical because the employees would lose their
jobs and the union would not survive without the company. Likewise, the union wants
to survive as the representative of the employees of the company and will take steps to
retain this designation. When a company wishes to remain nonunion or to have the
union decertified, an inevitable conflict occurs.

The company wants to grow and prosper a sign of its management s success. The
union agrees with this goal and supports it because it creates more opportunities and ben-
efits for employees, adds union members, allows more funds for union activities, and
strengthens the union as an institution. Likewise, both the company and the union want
the company to achieve a favorable return on its investment. Although they may disagree
on what is meant by favorable, both parties understand the mechanics of the financial
side of the business. However, the union also wants to achieve a favorable or fair return
for the employees efforts, input, and contribution. Here, there may be a disagreement over
what is a favorable return to the investors and a fair return to the employees.

Two related goals of the company are to achieve the effective use of its human
resources and to attract, retain, and motivate employees. The union accepts these com-
pany goals as long as the company abides by the provisions that were negotiated and
included in the collective bargaining agreement. For example, the company may wish
to have the most productive employee work on an overtime assignment to be able to
ship a rush order; however, the agreement may require that overtime be offered on a
rotating basis. The presence of the union does not prevent making overtime assignments
to the most productive employee; however, the overtime provision is a negotiable subject,
and the parties must live by the provisions that they agree on.

The company wants to protect its rights to make decisions and retain the flexibility
to operate the business. The union accepts the philosophy that some decisions are best
made by management, including the type of products, the price of products, financial
policies, customer relations, advertising and promotion decisions, product design, and
plant layout. At the same time, the union represents the interests of employees and
attempts to provide job protection and guarantee job opportunities for them by negoti-
ating provisions in the labor agreement, such as limits on contracting out work and use
of seniority in layoff decisions to provide job security.1

The company wants a union commitment to have no work stoppage for a specified
period; this guarantees a stable workforce and allows the company to make production
promises to customers. This commitment comes in the form of a no-strike clause in
the labor agreement. The union may want a commitment from the company that
employees have the right to have their grievances heard by management and may appeal
them to a third-party neutral (arbitrator) when necessary to resolve differences.

Once the union and the company decide on their respective goals, they determine
the appropriate strategies to reach these goals. Companies have been involved in strategic
planning much longer than unions, and their strategic plans are usually more detailed
and sophisticated. Only in recent times have unions started to think and operate in
terms of strategic planning.

Company Strategic Planning
A company s strategy in labor relations is determined by its managerial philosophy, the
ethics of its management, its economic condition, the composition of the workforce,
competition in the industry, the time in the life of the company, and the capabilities of

136 PART 1 Recognizing Rights and Responsibilities of Unions and Management

management. Management has choices about its strategy. It may believe that the com-
pany is better off remaining nonunion and may devote much time and effort to ensuring
positive human resources management. Some employers resist unions bitterly to ward
off the large wage gap between union and nonunion employees (weekly earnings aver-
aged $907 for union members versus $753 for nonunion workers in 2014, according to
the Bureau of Labor Statistics). Management members who are in a highly competitive
industry may be willing to do almost anything to keep unions out. Management at other
companies may choose to change from a hard-bargaining approach to one of labor
management cooperation after it finally accepts the philosophy that both parties would
gain more by cooperating than by conflicting. Exhibit 4.2 shows the range of company
strategies in labor relations, from union suppression to labor management cooperation.2

Nonunion Companies Strategies
Some authorities believe that profound changes in labor relations began in the 1980s and
were brought on by forces external to union management relationships. These forces
include competition from abroad, deregulation, and competition from nonunion compa-
nies. More and more companies are finding that their labor relations strategies are
driven by economic choices and their need to adapt to new, more competitive business
conditions. Because union-suppression, union-avoidance, and union-substitution strate-
gies have existed in different forms since the Industrial Revolution, a company may
choose to attempt to maintain its nonunion status by preventing or supplanting unions.
Another company may choose one of the nonunion strategies as a legitimate response
that has been forced on it to cut costs, innovate, enter new markets, and devise flexible
labor force strategies. This latter approach focuses on costs and productivity of human
resources and the management of human resources.3

A company may use a more aggressive approach, called the union-suppression strat-
egy, to maintain its nonunion status or to destroy the union. Human Rights Watch con-
ducted research on Wal-Mart labor relations by interviewing 41 former employees;
meeting with labor lawyers and union organizers; analyzing cases against Wal-Mart,
which charged the company with violating U.S. labor laws; and reviewing company
publications that addressed working conditions at the company. Human Rights Watch
concluded: Wal-Mart employs a sophisticated and multifaceted strategy to prevent union

Exhibit 4.2
Company Strategies in Labor Relations

Nonunion Companies Strategies Union Companies Strategies


Avoidance Union Substitution


Accommodation or

Union busting
Illegal acts
Refusal to Bargain

Positive human


Company paternalism


Forms of employee
and employee

Neutral in union


Union involvement


CHAPTER 4 Unions and Management: Key Participants in the Labor Relations Process 137

activity at its U.S. stores and, when that strategy fails, quashes organizing wherever it starts. 4

Another company, Smithfield Packing Company in Wilson, North Carolina, was found by the
NLRB to have committed multiple unfair labor practices in its attempt to keep the United
Food and Commercial Workers from representing its employees. See Exhibit 4.3.5

In 2014, the NLRB ordered the Southern Bakeries, LLC, to recognize the Bakery,
Confectionery, Tobacco Workers and Grain Millers International Union and bargain
with the union after it found multiple unfair labor practices. These included:

1. Making unilateral changes in employees wages, hours, and other terms of employment
2. Refusing to allow union representatives access to the company s facility
3. Interrogating employees about their union activities
4. Threatening employees with discharge, job loss, and plant closure
5. Making disparaging comments about the union
6. Creating the impression that the union is under surveillance.6

Other extreme and in some cases illegal tactics used by some companies to avoid
unionization include the following:

Developing a spy network (tattletales) to identify union supporters
Refusing to hire former employees of unionized companies (but giving the applicant
a reason other than prior union affiliation for employment denial)
Establishing a case for discharge (including documentation) of known union advocates
Seeking to determine prospective employees attitudes toward unions from inter-
views, references, and so on, and then refusing to hire them (again giving another
reason) if they appear to be supportive of unions
Giving psychological tests (job-interest questionnaires) to determine the likelihood
that an applicant will be interested in a union
Locating new plants in areas where union membership is low and expanding the
company s nonunion plants
Using a standard application of a State Employment Service that asks applicants
whether they have been a member of a union and using the application as part of
the preemployment inquiry7

Some employers facing union-organizing campaigns have committed unfair labor prac-
tices deliberately, with the expectation of economic returns to them.8 When illegal practices
yield economic returns to the violators, ethical questions are raised as to the fairness of the
law and its application. One study of employers led to this disappointing conclusion:

[I]n the past, the compliance system [of the National Labor Relations Act] has been
inadequate to the extent that some employers have found it profitable to commit

Exhibit 4.3
Unfair Labor Practices of
Smithfield Packing Company,
Wilson, North Carolina

1. Threats of plant closures by company president and plant manager.
2. Directing video security cameras to record employees and union organizers pass-

ing out union information.
3. Interrogating employees about support for the union by supervisors.
4. Unlawful loss of benefits by announcing that employees would lose their 401(k)

program if they voted for the union.
5. Threats of a pay cut if employees signed union authorization cards that

supported the union.
6. Discharge of employees because of their union activities.

SOURCE: Decisions and Order of the National Labor Relations Board, 347 NLRB No. 109, August 21, 2006. (The company has since
changed ownership.)

138 PART 1 Recognizing Rights and Responsibilities of Unions and Management

unfair labor practices in order to forestall unionization. Those employers obeying the
law because it s the law have faced a greater probability of incurring costs of union-
ization and may have been at a competitive disadvantage to employers who violated
the law. Such inequities do not encourage compliance with the law and provide evi-
dence of the need for labor law reform.9

Union Avoidance. Some companies that select a union-avoidance strategy take a strong
stance against union representation, even in facilities where unions already exist. They
open nonunion facilities and attempt to keep them nonunion. They shift their capital
investments away from the unionized facilities and make plant improvements in the
nonunion plants. Where a union represents its employees, the company attempts to
reduce the labor costs by lowering wages and benefits, modifying traditional work prac-
tices, and encouraging decertification to the point of committing illegal actions. In these
situations, the labor relations environment is highly adversarial, and union management
collaboration is not considered an option.10

Some firms do not aggressively seek to crush union organization. They simply
take steps to prevent unions from forming. Top managers may reason that if the con-
ditions are not encouraging of unionization, then the workers are unlikely to organize.
Consequently, it is not uncommon to see the following types of union avoidance

Locating new plants in areas where union membership is already low.
Locating new facilities in rural areas in the South, where support for unions has
historically been weak and anti-union attitudes have predominated.
Having several small facilities in several nearby communities rather than one large
facility; this helps employees feel like they are not just a number to management and
it probably means that union organizers will have to organize each facility separately
for union organizers, the payoff in new members may not be worth the effort.
If a firm has both union and nonunion plants, expanding only the company s
nonunion plants.
Subcontracting work that is typically unionized so that union work is not in-house ;
for example, if managers believe that printers are more likely to unionize than other
employees, then the firm may hire a print shop to do its printing rather than have its
own printing department.

Positive Human Resource Management. Some companies adopting the union-
avoidance strategy practice positive human resources management or operate double-
breasted. Company officials who adopt positive human resources management recognize
the importance and necessity of maximizing employee voice. Moreover, such firms
implement the claim that people are the most important asset of the organization.
Such organizations involve their employees in the decision-making processes of their
organizations. These efforts are included under the general umbrella of participative
management, total quality management, and total quality control programs.11 In
unionized organizations, the union is sometimes involved; those efforts are covered in
Chapter 7.

Companies such as IBM, Texas Instruments, Publix, and Eastman Chemicals have
essentially adopted this strategy. Positive human resources management programs
include the following elements:

The absence of symbols of rank and status, such as designated parking spaces,
company cars, or country club memberships for managers

CHAPTER 4 Unions and Management: Key Participants in the Labor Relations Process 139

Carefully considered surroundings locating near good schools and universities in
order to give employees a high quality of life
Overall corporate strength high profits, fast growth, high technology, or dominant
market position
Programs to promote employment security, such as work sharing or overall reduction
in pay to avoid layoffs during hard times
Promotion from within job posting, career development, and training and education
Influential human resources management programs, for example, having the human
resources manager report directly to top management
Competitive pay and benefits, especially having compensation that is
equitable externally and internally and comparable to the pay at unionized
Management that listens using systematic approaches such as attitude surveys,
open-door policies, and appeal procedures. This is based on the idea that dissat-
isfied employees are more likely to unionize; if management can respond to
worker concerns and alleviate dissatisfaction, they will be content and remain
Employee stock option plans that contribute stock to employees at no cost with
opportunity to buy more
Careful grooming of managers focusing on long-term results, using assessment
centers, and emphasizing competence and employee relationships12

Double-breasting. Double-breasting exists when one company has two or more
subsidiaries, one unionized and the others nonunion or open shop. These arrangements
take several forms: (1) A holding company has financial control of one or more operat-
ing subsidiaries, (2) a unionized company buys a nonunion firm and continues to oper-
ate it as nonunion subsidiary, and (3) a nonunion company buys a unionized subsidiary
and continues to operate it unionized.

In some cases, double-breasting appears to be a deliberate strategy designed to max-
imize company opportunities and minimize pay dissatisfaction. In construction, govern-
ment projects often require that firms pay a prevailing local wage rate (designed to
prevent migrant construction workers and their firms from underbidding local firms);
these wage rates are similar to union-scale rates and typically higher than nonunion
wages. So some construction holding companies will set up one contractor firm to bid
only on government jobs (paying union-scale wages) and a second contractor firm to
bid only on nongovernment work (paying lower wages). Implicit in this arrangement is
an assumption about wage satisfaction: Workers who get low wages and are unaware
that they could get higher wages will be more satisfied than workers whose wages fluctu-
ate based on the type of project.

At present, the law requires the open shop and unionized units of a holding com-
pany to be separately managed and operated as distinct entities. Conversely, the National
Labor Relations Board (NLRB) determines whether two seemingly separate companies
should be treated as one by considering the following guidelines: interrelation of opera-
tions, centralization of control of labor relations, common management, and common
ownership or financial control.13 The Board stated:

Similarly, in 2015, the NLRB addressed situations joint employer status. The Board
ruled that where there are two or more employers at a single work site (like in fran-
chising) and one employer has sufficient control over the employees, a joint employer
status may exist.14

140 PART 1 Recognizing Rights and Responsibilities of Unions and Management

Union Substitution. A third company strategy to maintain nonunion status is the
union substitute strategy. Some firms seek to avoid or ward off unionization of their
employees by providing a substitute for unionism. Two companies, Northrup-Grumman
Corporation (which has only 3 percent of its employees in unions) and Federal Express
(whose pilots are the only group in unions) explicitly state that their adoption of nonunion
employment dispute resolution procedures was due in large part to their desire to avoid
additional employees in unions. In addition to union avoidance, nonunion employers
have adopted formal workplace dispute procedures primarily for strategic reasons, such
as avoidance of legal suits, identification of workplace problems, generation of information
about these problems, diagnosis of the underlying reasons for these problems, and specifi-
cation of solution to these problems. In fact, about 45 million employees in nonunion
companies are covered by individual employment contracts, and about 80 percent of
these contracts contain a formal dispute resolution procedure (employment arbitration as
the final step in one half). In comparison, about 17 million employees are covered by
grievance procedures in collective bargaining agreements (nearly all have arbitration as
the final step).15

Many nonunion companies have initiated employee involvement programs to
restore the sense of working in a small business, to gain employee commitment to the
enterprise, to dissuade union organizing, and to provide feedback to enhance motivation
and productivity. Most companies have a system for giving nonunion employees infor-
mation about the competitive conditions or economic circumstances of their company.
The majority have employee participation programs, such as quality circles and small-
group discussions of production and quality of work, and have provided formal com-
plaint and grievance systems.16

Employees must be careful of violating Section 8(a)(2) of the NLRA which prohibits an
employer from dominating or interfering with the formation or administration of any labor
organization or from contributing financial or other support to it. In the well-publicized
Electromation decision, the NLRB developed tests to determine the legality of labor-
management joint efforts. Electromation, a nonunion manufacturer of electrical components,
set up action committees of employees in response to a unionization campaign. These
committees were established to discuss (1) absenteeism/infractions, (2) no-smoking policy,
(3) communication network, (4) pay progression for premium positions, and (5) attendance
bonuses during working hours. The union afterwards requested recognition, contended that
the action committees were labor organizations, and filed an unfair labor practice charge,
which alleged that the company had violated Section 8(a)(2) of the NLRA by its domination
of the committees and assistance given to those committees. The NLRB ruled that the action
committees were dominated by the company. As a result of the unfair labor practice, the
company was directed to disband the action committees. The tests developed by the NLRB
address the topics discussed, the representational nature of the group, and the authority of
the group. See Labor Relations in Action for these tests.

The most common system for resolving employee grievances is the open-door pol-
icy, wherein employees may present their grievances to management representatives. The
success of this system depends on how conscientious managers at all levels are in fulfill-
ing this policy and whether employees fear that presenting their grievances to managers
above their immediate supervisor will have undesirable consequences.

Other forms of nonunion grievance procedures include grievance appeal boards,
appeal steps up to top management, and peer review committees.17 The grievance appeal
board allows employees to present their grievances to a board for a final decision. In this
system, three management members and two employees might hear the grievance and
decide the outcome. Although the system is sometimes called a jury of one s peers,

CHAPTER 4 Unions and Management: Key Participants in the Labor Relations Process 141

management representation is usually greater than that of employees and can outvote
employee board members if necessary.18

Unionized Companies Strategies
The labor relations function in unionized companies differs from that in nonunion com-
panies in several ways. First, in the unionized setting, two parties, the union and manage-
ment, are involved. Instead of decisions being made by management unilaterally, many
decisions, such as wages, hours, promotion, layoffs, and other terms and conditions of
employment, are made bilaterally through negotiations. Second, the presence of the union
formalizes the employee-representation activities because employees may file a grievance if
they believe that the company has violated terms of the negotiated agreement. Third, the
negotiated rules and policies that govern the employment relationship for those employees
covered under the collective bargaining agreement essentially become company policy
because both parties have to abide by the terms that they have negotiated.19

Post-Electromation: Tests to Determine Whether Teams and their

Activities Are in Violation of 8(a)(2) of NLRA

1. Is the work team discussing Section 2(5) topics,
such as grievances, labor disputes, wages, rates of
pay, benefits, hours of employment, safety, or work-
ing conditions? If so, the chances are increased that
the company is violating Section 8(a)(2) of the NLRA.

2. Are work team members acting in an individual or
representative capacity? If the team members are
addressing issues that affect nonteam employees
or are addressing issues on behalf of other employ-
ees, the chances are increased that the company is
violating Section 8(a)(2) of the NLRA. In considering
the question of representation, the following factors
will be investigated:

Function of the work team: Presenting employee
views, making recommendations to manage-
ment, and presenting other employees grie-
vances are indicators of representation.
Form of the plan under which work team exists:
Consider the number of team members, how they
were selected, and the formal organization of the
team: the more formal a team s organization, the
more a representative purpose is inferred. Con-
sider collection of dues, defined electoral grouping,
existence of a governing written instrument.
Employer s intent in forming the work team:
Was the team formed in response to an
attempted union organizing drive? Is the team a
substitute for a legitimate and independent rep-
resentational union?
Employee s perception of the work team: Do the
employees consider the committee to resemble
a labor organization or to represent anyone?

3. Is the authority of the work team limited to making
recommendations to management, or does the team
have delegated management authority to make deci-
sions? If the work team only has power to make
recommendations, this is an indicator of labor orga-
nization status; however, if the work team has the
power to make decisions, the presence of manage-
rial decision-making authority is an indicator that the
work team is not a labor organization.

4. Does the employer retain veto power over any
action of the work team and who will serve on
each team? Does the employer have power to
abolish the team at will? Retention of discretionary
veto power and power to abolish the team at will
is an indication of management s unlawful

5. Did the company create the work team or decide
what it would do and how it would function? In
other words, does the company dominate the
work team? If the company establishes the work
team, then selects the members, supports the
work team financially, gives direction and assigns
projects to the team, and so on, the chances are
increased that a legal violation has occurred.

SOURCES: Michael S. Beaver, Are Worker Participation Plans Labor Organizations
within the Meaning of Section 2(5)? A Proposed Framework of Analysis, Labor Law
Journal 36 (August 1985), pp. 226 237; Aaron Bernstein, Making Teamwork Work
Appeasing Uncle Sam, Business Week, January 25, 1993, p. 101; Electromation, Inc.
and International Brotherhood of Teamsters, Local Union No. 1049, 309 NLRB NO. 163,
December 16, 1992; E.I. DuPont de Nemours SG, 311 NLRB No. 88, May 28, 1993 in
Daily Labor Report, June 8, 1993, pp. AA-1 AA-2, and D-1-D-10; Raymond L. Hogler,
Employee Involvement and Electromation, Inc.: An Analysis and a Proposal for

Statutory Change, Labor Law Journal 44 (May 1993, June 1998), pp. 1055 1061.


Codified Businesslike Strategy. One strategy adopted by unionized companies is
the codified, businesslike, strategy. These companies accept unions as the legitimate rep-
resentative of the employees and conclude that if the employees want a union, manage-
ment will deal with it. The managers do not attempt to have the union decertified, do
not commit flagrant unfair labor practices, and do not try to substitute participative
groups for unions. Company managers respect and trust their union counterparts and
expect the same in return. For the relationship to last, both parties must realize that
respect and trust are fundamental to both their futures. The approach of these compa-
nies is to deal directly and bargain with the union over wages, hours, and terms and con-
ditions of employment at the appropriate times. When the labor agreement negotiations
are complete, managers of these companies administer the agreement as they interpret it.
In other words, they go by the book. Although General Electric was known in the
1950s for its take-it-or-leave-it approach to labor negotiations (called Boulwarism), its
strategy today can be categorized as a businesslike approach. The remaining chapters
explain this approach to labor relations. Also, as noted previously, strategies of compa-
nies and unions change during their lifetimes and with economic conditions, changes in
leadership, and personalities of participants.

Accommodation or Labor-Management Cooperation. The fifth strategy shown
in Exhibit 4.2 is one of accommodation or labor management cooperation. This strategy
entails the union cooperating with management, rather than the parties having an adver-
sarial relationship. Management and unions actively work together to create an organiza-
tional climate and a way of operating that will allow employees to participate directly in
decisions in their work areas as members of task teams and as members of problem-
solving groups. Unions represent their members in decision making and in collective

Over 1,000 collective bargaining agreements have contract clauses that provide for
cooperation between unions and management. Some agreements establish joint commit-
tees, such as safety committees that focus on an interest to both parties, improving safety
in the workplace. More extensive cooperative arrangements include joint decision mak-
ing to improve quality and productivity. An even further degree of cooperation includes
a partnership between the union and management about all or most decisions in the
production process.21

Unions can contribute to companies strategic planning and implementation activities.
For example, a union can provide input from a clearly defined group of employees, as well
as transfer information about corporate plans and direction to those represented employ-
ees. The union leaders can help the rank-and-file employees better understand the business
plan and lend credibility to the plan. Although these contributions are clearly positive,
union involvement in strategic planning takes more time because the union leadership
must meet with the membership to explain planned actions. Also, to retain a competitive
edge, upper management often does not want to reveal new directions and planned
actions. As a result, unions typically have a greater opportunity to have a role in strategy
implementation rather than in strategy formulation. For example, if a company is facing
increasing losses because of foreign competition, the company may enlist the assistance of
the union in finding ways to reduce costs. Alternatives include cooperative approaches to
job design or developing a new reward system, such as gain-sharing, to encourage labor
management cooperation. Another possibility is the introduction of new technology to
improve productivity, which may include restructuring existing jobs.22

For organizations and unions to achieve a more collaborative relationship, man-
agers, unions, and employees must overcome their resistance to change. Managers must
develop a more open, less authoritarian managerial style; unions must abolish their

CHAPTER 4 Unions and Management: Key Participants in the Labor Relations Process 143

traditional us versus them approach and adopt the team concept; and employees must
agree to greater worker commitment and more involvement in determining how to get
the job done and how to get it done right.23

Employee empowerment is reflected in employee involvement and participation
programs, which include quality circles, quality-of-work-life efforts, labor management
participation teams, and autonomous work units. These efforts address such issues as
product quality, work-unit performance, new technology, safety and health, and supervi-
sion. Here, union leaders and members accept responsibility for success of the organiza-
tion. Unions demonstrate their capacity to confer value to their members and create
wealth for all of the organization s stakeholders.24

This relationship ensures that unions and management focus on common goals,
which include the health of the business in a changing economic environment, and new
issues, such as adopting new technology to ensure competitiveness and business survival.
Management accepts unions as stakeholders in an ongoing complex, multi-stakeholder
organization designed to ensure survival and provide an equitable return for all involved
in the process. Several companies and unions have already proceeded in this direction.
Harley-Davidson and its two unions co-manage the Kansas City plant. The parties have
created a concept called relationship management, which places a high value on worker
empowerment and interaction between employees, unions, and their suppliers. Managers
at the plant have a strong, partnering relationship with the steelworkers and machinists.
Team members are empowered to make key production decisions and have accountabil-
ity for the results of their work without traditional supervision. Each work team has
rotating representation in the plant s decision-making process. The plant manager shares
office space with representatives from the steelworkers and machinists unions.

To achieve this new union role, management and union leaders must develop differ-
ent skills. Union leaders need business decision-making skills; they must understand the
business and the problem-solving process. At the same time, union leaders must main-
tain contact with the membership to better represent members interests. Management
must take steps to reorient its views from seeing unions and labor agreements as con-
straints to recognizing a more cooperative union management relationship. Manage-
ment must provide the union and its leadership with a secure position as the
legitimate, permanent representative of the bargaining unit employees. This means aban-
doning efforts to decertify the union or to reduce the union s importance at the work-
place. It means developing a mutual trust between parties at every level of the

At the General Motors Lansing Grand River Assembly plant, the local management
and the UAW Local 652 established a joint responsibility system of collective bargaining
that encourages employees represented by the UAW to reduce production costs and
increase profitability by accepting responsibilities traditionally held by management.
Building on a trusting relationship and employment security, front line workers receive
expanded job responsibilities and are involved in production and business decisions. An
hourly team coordinator leads the work teams, reducing the number of supervisors, and
shifting the supervisors role toward coaching and facilitating. More information on the
company financial position and competitiveness is shared with the local UAW. The
UAW local has become involved in issues, such as outsourcing, work quality, and scrap
reduction, which had previously been management s responsibilities.

Because General Motors operates multiple plants, it can assign production work to
those plants which have the greater productivity and efficiency records. Therefore, the
motivation to continuously improve is present. Manufacturing firms in steel, aluminum,
rubber, paper, food processing, and parts supply have the same opportunities. As well,

144 PART 1 Recognizing Rights and Responsibilities of Unions and Management

telecommunications and banking services have multiple call centers which could use the
same model to lower costs, improve productivity and profitability, and guarantee
employment security.26

Companies may choose a mixed strategy, which can encompass union avoidance,
union substitution, or labor management cooperation, at various sites in a multi-plant
operation. For example, a company may operate double-breasted and strongly oppose
the union at one of its nonunion plants while engaging in labor management coopera-
tion at another plant. Such strategic choices are made at the highest levels of the organi-
zation, and the advantages and disadvantages of each strategy are seriously debated and
deliberated before any strategy is adopted by the company.

Upper management considers the market pressures, operational and financial fac-
tors, and collective bargaining relationships in its deliberations. If market pressures are
intense as a result of import penetration, management may be inclined to choose union
avoidance in the nonunion sector. However, if a high proportion of the plants are union-
ized, management may choose the labor management cooperation strategy. Researchers
continue to examine which factors lead to certain strategies.27

Union Strategic Planning
Labor unions, like other organizations, define their operational goals, determine their
organizational strategies and plans, develop policies and procedures, and manage their
resources to reach their goals and maximize their performance. Unions also are involved
in long-range planning, establishing procedures for budgeting, attracting able staff mem-
bers, communicating with members to provide information and to obtain reliable feed-
back, and establishing controls for financial accountability.28

Labor unions in the United States have been involved in strategic planning for only
a short time. For years, unions as a rule reacted to managerial decisions with little con-
cern for long-range implications. Today, more and more unions are finding it essential
to become involved in strategic planning. Several unions, such as the Communications
Workers (CWA), the Auto Workers (UAW), and the Steelworkers (USW), have recog-
nized the need for long-range strategic planning and created strategic planning commit-
tees. To survive, all unions must develop such plans. A typical union s strategic plan
includes (1) a mission statement, (2) analysis of the external environment, (3) internal
analysis of the union s strengths and weaknesses, (4) long-term and short-term objec-
tives, and (5) strategy development. A survey of American Federation of Labor
Congress of Industrial Organizations (AFL-CIO) unions found the following:

1. Typical mission statements are: To organize workers for the purpose of collective
bargaining; to foster legislation of interest to the working class; and to disseminate
economic, social, and political information affecting workers lives and welfare. As
an example, see Exhibit 4.4 for the AFL-CIO s mission statement.

2. The analysis of the external environment includes an examination of the changing
demographics of the workforce (toward more worker diversity), appraisal of current
and future political and legislative concerns, consideration of labor s image, and
analysis of employer practices and industry trends.

3. The internal analysis includes an examination of the union s internal functioning,
such as union governance, openness for discussion of diverse opinions, and appraisal
of the professional staff whose jobs are to provide representational services to the

4. Organizational objectives are set for short-term and long-term activities. Short-term
objectives may include meeting membership needs through collective bargaining,

CHAPTER 4 Unions and Management: Key Participants in the Labor Relations Process 145

reducing substance abuse, improving pensions, and enhancing job security. The
most common long-term objective is simply the survival of the labor organization.

5. Further work is needed to define strategies for addressing labor unions long-term
concerns for continued survival and growth as institutions.29

Some unions, like the UAW, have established internal commissions to participate in
strategic planning. The report of the Commission on the Future of the UAW, entitled A
Strong Union in a Changing World, addressed the union s major economic concern
about the erosion of the nation s industrial base and related problems of corporate flight
and disinvestment. It also urged more effective use of the media in presenting the
union s public positions on tax policy and fairness, dislocated employees, the changing
workforce, issues of sexism and racism, and rapid change in technology and methods of

The Communications Workers of America (CWA) is one union that has effectively
instituted strategic planning for its success. Over the last two decades, the CWA has
faced serious challenges as a result of product market deregulation and technological

Exhibit 4.4
AFL-CIO s Mission Statement What We Stand for: Mission and Goals of the AFL-CIO

The mission of the AFL-CIO is to improve the lives of working families to bring
economic justice to the workplace and social justice to our nation. To accomplish
this mission we will build and change the American labor movement.

We will build a broad movement of American workers by organizing workers
into unions.
We will recruit and train the next generation of organizers, mass the resources
needed to organize and create the strategies to win organizing campaigns and
union contracts. We will create a broad understanding of the need to organize
among our members, our leadership and among unorganized workers. We will lead
the labor movement in these efforts.

We will build a strong political voice for workers in our nation.
We will fight for an agenda for working families at all levels of government. We will
empower state federations. We will build a broad progressive coalition that speaks
out for social and economic justice. We will create a political force within the labor
movement that will empower workers and speak forcefully on the public issues
that affect our lives.

We will change our unions to provide a new voice to workers in a changing
We will speak for working people in the global economy, in the industries in which
we are employed, in the firms where we work, and on the job every day. We will
transform the role of the union from an organization that focuses on a member s
contract to one that gives workers a say in all the decisions that affect our working
lives from capital investments, to the quality of our products and services, to how
we organize our work.

We will change our labor movement by creating a new voice for workers in
our communities.
We will make the voices of working families heard across our nation and in our
neighborhoods. We will create vibrant community labor councils that reach out to
workers at the local level. We will strengthen the ties of labor to our allies. We will
speak out in effective and creative ways on behalf of all working Americans.

SOURCE: AFL-CIO s Mission Statement. Used with permission. Copyright © 2011 AFL-CIO. www.aflcio.org

146 PART 1 Recognizing Rights and Responsibilities of Unions and Management

change: union density declining, downsizing by the regional Bell companies, reclassifying
jobs from technical and professional to managerial (resulting in those employees being
ineligible for union membership), and creation and growth in mostly nonunion compa-
nies. The CWA was faced with organizational uncertainty and complexities, with a mem-
bership accustomed to easy contract victories and predictable, paternalistic labor
relations. The CWA decided to transform itself from a telephone workers union to the
union of the information age, which would focus on information services. Instead of

being a union predominantly of telephone employees, the CWA expanded to printing
and publishing, radio broadcasting, journalists, computer programmers, airlines employ-
ees, software specialists, and others. The CWA made adjustments at the bargaining table;
it began negotiating retraining provisions for its members, pension enhancements, and
early retirement bonuses. However, to ward off health insurance concessions, it had to
mobilize its members for contract fights. Mobilizations included one-on-one postcard
messages, work-to-rule (following rules and instructions in excessive detail) campaigns,
wearing common colors or armbands on certain days of the week to show solidarity,
public rallies, and campaigns of letter writing to state and local politicians. The CWA
negotiated company neutrality pledges (where the company promises not to oppose
efforts to organize nonunion facilities), expedited elections, and card checks for union
recognition; through these efforts the CWA gained over 30,000 members. Through mer-
gers with eight smaller national unions, the CWA has gained an additional 227,000 new
members. The CWA agreed to support regulatory changes by use of its political influ-
ence in exchange for explicit benefits guarantees and job security. Thus, over the last
20 years, the CWA has taken strategic steps to transform itself from a telephone workers

Exhibit 4.5
Excerpts from CWA s
Strategic Plan: 2006 2011

Strategic Intent: Member Development
Develop CWA membership to enable the organization to be self-sufficient. Develop
a compelling set of member benefits. Broaden efforts to identify new member seg-
ments within the scope of CWA s vision and mission, and attract and recruit new
members. Maintain efforts to retain existing members.

Strategic Intent: Identity/Branding
The intent is to establish the CWA as a well-known, recognized, and reputable organi-
zation in the North American climbing community and with the public. Increase recog-
nition of the CWA, and continue to differentiate the CWA from preceding
organizations. Position the CWA as the primary source of information regarding risk
management, insurance, education, and standards for the climbing wall industry and
the public. Define, promote, and deliver functional, tangible, features and benefits to
our members, and the public, that promote competence in practice, quality in pro-
ducts and services, and a positive image for the manufactured climbing wall industry.

Strategic Intent: Standards Development
The intention is for the CWA to be the leader in standards development for the
manufactured climbing wall industry. The CWA will develop widely adopted,
consensus-based standards, with a high degree of cooperation with other standard-
setting organizations. The CWA will advocate for the adoption of sound standards
and will promote the interoperability of standards by working with national and
international standard-setting organizations such as ANSI. The CWA will develop
and implement both engineering standards for the construction of manufactured
climbing structures, and practice standards for the management and operation of
manufactured climbing structures.


CHAPTER 4 Unions and Management: Key Participants in the Labor Relations Process 147

union to a union of the information age and has intertwined its collective bargaining,
political, and organizing activities to make it one of America s most effective and suc-
cessful unions.30

Several other international unions, such as the Air Line Pilots Association; Steel-
workers; Service Employees International Union; American Federation of Teachers;
and the Bakery, Confectionery, and Tobacco Workers, have undertaken strategic plan-
ning efforts. These international unions have added new terms to their operational
language, such as strategy development, organizational assessment and planning, and
implementation. Unions have used surveys, interviews, and focus groups for building
participation and consensus. The results have been mission statements, goals and pri-
orities, assignment of responsibilities, funding activities and budget allocations, dues
split between the local and international unions, and measures for evaluating

With the decline of union membership as a percentage of the total labor force and
subsequent reduction in dues income, unions at every level have attempted

Exhibit 4.5
(Continued) Strategic Intent: Government Affairs/Public Policy

The CWA s intention is to protect and expand the recreational use of climbing facili-
ties in North America. The CWA will attempt to influence government actions, pol
icy development, and legislation to achieve either neutral or positive outcomes for
the industry. By marshalling the industry s resources, involving industry members,
maintaining reliable relationships, and using effective advocacy techniques, the
CWA can position itself to effectively represent the manufactured climbing wall
industry. CWA will employ an effective issues management process that will focus
its resources on advocacy at the state and, to certain extent, federal levels. Advo-
cacy on the state level will attempt to achieve the best results for CWA

Publications/Communications/Information Systems Development
The development, organization, and distribution of information pertaining to the
industry is vital to its continued growth and success. The intention is to develop
CWA into the central source of information and communication regarding the man-
ufactured climbing wall industry to become the industry s information broker.
The CWA will identify information of interest to members and the public and will
determine cost-effective ways to distribute this information.

Strategic Intent: Program Development
The CWA s intention is to define and develop programs of interest to our members
and to the general public that promote responsible recreational use of manufac-
tured climbing facilities. CWA programs will be focused on the professional devel-
opment of members and the improvement climbing related knowledge and

Strategic Intent: CWA Conference and Events
The CWA s intention is to develop and promote a constructive and collegial com-
munity within the manufactured wall industry. Community building can best be
done face-to-face. The conference will bring together a critical mass of members to
discuss industry-wide concerns and initiatives, promote information sharing, and
improve opportunities networking. The conference will offer an opportunity to con-
duct CWA business cost effectively and will provide opportunities for member train-
ing, education, and professional development.

SOURCE: Reprinted with permission by Communications Workers of America, website: http://www.cwa.org

148 PART 1 Recognizing Rights and Responsibilities of Unions and Management

revitalization efforts. The Service Employees International Union (SEIU) and the
United Brotherhood of Carpenters (UBC) have taken a mission-driven strategic
approach, which includes a strategic plan with time-bound goals promoted aggressively
by their national union leaders. The SEIU allocated 50 percent of its national budget to
organizing new members; engineered mergers among locals, which were deemed too
small to pursue an effective organizing agenda independently; and removed old-line,
heavy-handed local leaders who resisted change. The UBC cut the national office staff
by half, eliminated departments, outsourced some work, rented out a substantial part
of its national headquarters, eliminated many small locals, and shifted control of
resources to regional councils. These cost-cutting efforts helped to fund a shift of 50
percent of the union s resources to union organizing. While most of the national and
international unions experienced a decline in overall membership, the SEIU and UBC
experienced growth over the last 20 years.32 Items from the Strategic Plan of Change to
Win are included in Exhibit 4.6.

Company Organization for Labor Relations Activities

There are many organizational structures for labor relations activities in U.S. companies.
The following discussion introduces some of the basic organizational considerations,
although different company characteristics will alter these designs.33

In larger corporations, the labor relations function is usually highly centralized, with
policy, strategic planning, and bargaining decisions made at the corporate level. In fact,
the final economic decisions are usually made by the chief operating executive with the
advice of corporate-level labor relations managers. In smaller companies with only one

Exhibit 4.6
Items from Win s
Strategic Plans

To emphasize organizing by reallocating resources on a grand scale away from
other union activities and devoting 75 percent of the CTW budget to organizing.

To rebate one-half of union affiliates per capita dues if they adopt aggressive orga-
nizing programs and to create a $25 million Strategic Center that will target nota-
ble anti-union employers.

To target for organizing those industries that will remain in the United States. These
include the health care, hospitality, retail, building services, transportation, and
construction industries.

To conduct joint campaigns to recruit new members. As examples, SEIU and the
Teamsters are partnering to recruit school bus drivers; UFCW and UNITE-HERE
are developing a retail apparel and distribution initiative; all unions are joining the
Wake Up Wal-Mart campaign, a public awareness offensive to provide informa-
tion about the world s largest retailer.

To build global partnerships with unions in other countries in support of organizing
multinational corporations. Andy Stern, president of the SEIU, has established
informal global alliances with key union leaders in at least a dozen countries.

To cooperate with the AFL-CIO in national election campaigns. In addition, to oper-
ate field offices in several states in hopes of electing labor-friendly governors and
elect legislators who are committed to take actions that will facilitate organizing.

SOURCE: Richard W. Hurd, U.S. Labor 2006: Strategic Developments across the Divide, Journal of Labor Research, 38 (2)
(2007), pp. 313 324; Marick F. Masters, Ray Gibney, and Tom Zagenczyk, The AFL-CIO v. CTW: the Competing Visions, Strategies,
and Structures, Journal of Labor Research, 27(4) (2006), pp. 473 503.

CHAPTER 4 Unions and Management: Key Participants in the Labor Relations Process 149

or a few facilities, these decisions are made at the plant level and shared by plant man-
agement with the plant labor relations manager, who offers advice.

In larger companies, at the operations or plant level, the plant manager and plant
labor relations manager or human resource manager play the key roles in certain labor
relations activities, such as contract administration, grievance handling, and monitoring
labor relations activities. In smaller companies, activities at the plant level also include
bargaining, strategic planning, and policy formulation.34

The duties and responsibilities of all labor relations managers and specialists are
determined in large part by the organizational structure and its degree of centralization
or decentralization of authority. The duties typically include corporate-wide responsibil-
ity for policies, procedures, and programs ranging from union-organizing drives at non-
union facilities to negotiations with the union at other facilities.

Exhibit 4.7 shows the organizational chart for the labor relations function in a large,
complex company. As shown in the organizational chart, the vice president of personnel
and industrial relations reports directly to the president and has the director of labor
relations reporting to him or her. Each of the company s six product lines has its own
labor relations organization.

A large, diversified company with several divisions or product lines will typically
have a vice president of industrial relations, which includes human resources and labor
relations activities, who reports directly to the president and has the director of labor
relations reporting to him or her.

Labor relations managers at the plant level also typically have responsibilities for
both human resources and labor relations activities. They help implement related corpo-
rate and divisional policies, participate in contract negotiations, and resolve employee
grievances over daily labor agreement administration. They typically are accountable
both to the plant manager for daily labor relations activities and to divisional or corpo-
rate industrial relations officials for approval of negotiated labor agreements.

Exhibit 4.8 shows relationships between labor relations managers and other man-
agers at the plant level (for the sake of brevity, operations, B, C, and D are not delin-
eated in detail). The facility s operations can be grouped in one or more of the
following ways: by location (e.g., furnace room one versus furnace room two at a
steel mill), by product (e.g., manufactured valves versus gaskets), by function (e.g.,
maintenance), or by technology (e.g., electroplated and chemical-plated processes).

The labor relations manager is on the same level as managers of the operations, but
neither individual has authority over the other. Instead, plant labor relations managers
have line-staff relationships with other managers. Line-staff relationships occur when
two or more organizational members from different lines of authority work together on
a particular policy (e.g., a no-smoking policy) or activity (e.g., grievances). Typically, the
operations manager is responsible for the output of the facility (e.g., assembly line )
whereas the labor relations manager is responsible for employment relations with the
workforce (the staff ). Neither has authority over the other; therefore, resolution or out-
put of this relationship is often determined by past perceived benefits each has derived
from the other.

Relationships between labor relations managers and other management officials at
the plant level can be tension laden. Consider, for example, the attitude a shift supervisor
might have toward a labor relations manager who has awarded to the union a grievance
against him or her for performing bargaining unit work (Chapter 10) or who has over-
turned a discharge decision made by the supervisor (Chapter 12).

150 PART 1 Recognizing Rights and Responsibilities of Unions and Management

Union Governance and Structure

After the union is recognized, the ordinary functioning of the union requires members to
hold offices, serve on staff committees, monitor contract compliance, and perform numer-
ous other duties. Even though no immediate or explicit monetary rewards are associated
with this work, there are potentially personal, political and self-actualization rewards.
Employees who have positive attitudes toward unions are the ones who are most likely to
be the volunteers who do this type of work toward building a successful union.35

Exhibit 4.7
Labor Relations Organization: Dotted-Line Relationships

NOTE: Each respective group personnel and industrial relations manager has a direct reporting relationship to his or her respective group management while maintaining a
dotted-line relationship to the corporate staff, who has the responsibility for formulation of corporate-wide labor relations policies and procedures.

As each group is dependent upon the corporate function as the formulator of this policy, the lines of communication and working relationships are strong, and the level
of communication is very high. Their function is to administer corporate policies and procedures as formulated by the vice president of personnel and industrial relations and
his or her staff.

SOURCE: Audrey Freedman, Managing Labor Relations (New York: The Conference Board, 1979), p. 28.

CHAPTER 4 Unions and Management: Key Participants in the Labor Relations Process 151

Unions as organizations are fundamentally different from business organizations.
Business organizations are built on the assumption that power, authority, and legitimacy
flow downward from the owner or stockholders through management. Union organiza-
tions, on the other hand, have mechanisms such as a written constitution and by-laws
that ensure an opportunity for members to participate in the governance of the
organization hold office, attend meetings, vote in elections, or express dissatisfaction
with the leadership. Thus, in the democratic organization of a union, power, authority,
and legitimacy ultimately flow upward from the consent of the governed. If the leader-
ship of a union wishes to move in a new direction, such as toward greater union
management cooperation, the new direction ultimately depends on the approval of the
membership. If elected leaders do not consider new initiatives in terms of the political
realities, they will be rejected by the vote of the members. For example, in cases where
the members do not trust management s actions in a joint cooperative effort, the leader-
ship must put forth the appropriate effort to build a trusting relationship before develop-
ing the joint effort.36

Nearly a hundred different international (an international union has local unions
outside the United States, such as Canada. National unions have locals only in the
United States) unions and over 60,000 local unions exist in the United States. Their gov-
ernance is discussed in this chapter following a brief description of their organizational
structure. As with companies, unions organizational structures reflect their activities.
Exhibit 4.9 shows the organizational chart of an international union, which includes the
various officers, operational departments and staff, regions, and local unions. In this case,
the basic functions include financial activities handled by the secretary-treasurer,
research, administration, education, organizing, political action, and international affairs.
These activities are usually carried out at the union s national headquarters, with some
headquarters staff members possibly working in the field. The regional offices are
headed by a vice president, who has an advisory relationship with the local unions in
the region. Regional offices are established in locations to better serve the needs of the
local unions and to represent the national office in the region.

Exhibit 4.8
Management Organization at the Plant Level (Approximately 1,100 Hourly Employees)

152 PART 1 Recognizing Rights and Responsibilities of Unions and Management

At the local union level, the organizational structure is fairly simple, as illustrated by
Exhibit 4.10. In most small unions, officer and shop steward positions are part-time; only
in larger unions do the financial resources allow full-time union leaders. Most local
unions have a president, at least one vice president, a secretary, and a treasurer. The
addition of any other officer, such as the sergeant-at-arms in Exhibit 4.10, depends on
the needs of the union. Shop stewards are usually elected by the members in depart-
ments (or on a particular shift) to represent the membership in their respective depart-
ments. The following section explains how unions are governed at the different levels
and presents some of the major problems in the governing process.

To understand union governance, one can compare the union with a unit of state or
federal government. The executive, legislative, and judicial activities occur at various
levels. The local union meetings and national conventions are the legislative bodies; the
officers and executive boards comprise the executive bodies; and the various appeal pro-
cedures serve the judicial function. A union can also be compared with a private organi-
zation because it is a specialized institution having a primary purpose of improving the
economic conditions and working lives of its members.

Unions claim the democratic ideal, but realistically, they must rely on a representa-
tive form of government. On the whole, they seem to be as democratic as local, state, and
federal governments. In fact, a union s membership has more of a say in the way the
union operates than most citizens have in their governments or most stockholders have
in their corporations.37

To appreciate unions as organizations, one must recognize their wide diversity, the
organizational relationships of the various levels, the functions of the officers, and the
varying degrees of control. The next section explores the characteristics of craft and
industrial unions, the functions of local union officers, and the government and opera-
tions of local unions. The national or international union, which is composed of the local
unions within a craft or industry, is explained in a similar framework. Not to be over-
looked are the various intermediate levels of union organizations that provide specific
functions for their affiliated unions. A fourth level for many union organizations is the

Exhibit 4.9
Organizational Chart of an International Union

CHAPTER 4 Unions and Management: Key Participants in the Labor Relations Process 153

federation. The AFL-CIO s organizational structure, functions, and officer responsibilities
are discussed.

The Local Union
Although there are generally four levels of unions local, national (or international),
intermediate, and the federation of unions the local union is the main point of contact
for the individual employee. The typical union member often identifies more closely with
the local union than with the other union levels. He or she attends and sees local officers
at the local meetings and workplace. When the union member has a grievance, the local
union officers are the first to assist. During negotiations, the local union officers keep the
members informed of the progress of the negotiations. Although the national union may
negotiate the master labor agreement under which the local union members work and
the AFL-CIO may deal with the U.S. president and Congress on certain issues facing
the nation, the local union serves as the vital link between the individual union members
and the national union, which in turn might link with the AFL-CIO.

Organizationally, the local union is a branch of the national union. It receives its char-
ter from the national union and operates under the national union s constitution, by-laws,
and rules. The constitution of the national union prescribes the number and types of offi-
cers, their duties and responsibilities, and the limits of their authority. Although union
constitutions vary in length and content, they often mandate certain financial reports and
require that a certain number of meetings be held, that the local labor agreement conform
to the master labor agreement negotiated by the national union if there is companywide
bargaining, and that approval to call a strike be obtained by the local union beforehand.
With the trend toward greater centralization of authority by the national union, the local
union over the years has lost much of its operational flexibility.

Exhibit 4.10
Organizational Chart for a Local Union

154 PART 1 Recognizing Rights and Responsibilities of Unions and Management

Differences between Local Craft and Industrial Unions
The operation of the local union in large part depends upon the type of employees mak-
ing up its membership. Although there is not a clear-cut division between them, unions
can be divided generally into two groups: craft and industrial. The craft unions are com-
posed of members who have been organized in accordance with their craft or skill, for
example, actors, bricklayers, electricians, carpenters, pilots, or ironworkers. Industrial
unions have been organized on an industry basis, for example, the Steelworkers, Auto
Workers, Chemical Workers, and Mine Workers. This, of course, does not mean that
there are no skilled employees in the steel, auto, or rubber industries; but it does mean,
for example, that the electricians in a steel plant would likely be members of the

Many unions today are neither pure craft unions nor pure industrial unions.
Instead, they are general unions (or multi-jurisdictional), which means the union is
composed of members from multiple industries and multiple crafts. In fact, there has
been a trend toward general unions, even among the largest international unions. One
of the reasons is due to mergers, but the primary reason is the existence of opportunity
to organize and to increase membership. Over the last 30 years, six unions have con-
ducted election campaigns in a greater number of jurisdictions. These unions include
the United Food and Commercial Workers (UFCW), the United Steelworkers (USW),
the Hotel Employees and Restaurant Employees (HERE), the CWA, the Retail, Whole-
sale Department Store Union (RWDSU), and the Office and Professional Employees
International Union (OPEIU).38

Differing Scope of the Labor Agreement
The craft and industrial unions differ in other ways that have an effect on their opera-
tions. First, the craft unions, which frequently represent the building trades, usually
negotiate short labor agreements (supplemented by detailed agreements on special topics,
such as apprenticeship programs and safety) that cover a defined geographical region,
and each has considerable independence from the national union compared with indus-
trial unions. Because of the nature of their construction work, craft union members may
work on several job sites for several employers in a given year under the same labor
agreement. The labor agreement typically covers several construction companies and a
number of building trades unions in the particular geographical area.

The industrial union, on the other hand, may be covered by a national labor agree-
ment (a master agreement) negotiated between the company and the national union,
which covers all of the company s unionized plants. For example, GM plants in Detroit
and Los Angeles are covered by the same master agreement. Well over 100 pages long,
the agreement explains in detail the wage plan, transfers, pensions, layoffs, and so on.
A separate local supplement agreement is negotiated to cover matters of concern to the
specific local plant and its employees, which must be consistent with the master agree-
ment. For example, the local agreements may address rotating overtime assignments, use
of plant bulletin boards, visits by international union representatives, and other issues
applicable to the local plant. In plants having no national labor agreement, a plant-wide
agreement covering production and maintenance employees is typically negotiated.

Differing Skills
Types of skills help demonstrate another difference in local union operations. The craft
members are highly skilled artisans who have completed formal training, usually in a
formal apprenticeship program. Many employees in industrial unions, on the other
hand, are semiskilled and do not require much prior specialized job training. Therefore,

CHAPTER 4 Unions and Management: Key Participants in the Labor Relations Process 155

the craft union members often feel that they have higher status than most of their indus-
trial union counterparts. The training programs available for the industrial union mem-
bers are usually offered by the company, whereas the training received by members of
craft unions is organized and operated by the unions. Therefore, craft unions select
those who will be offered the apprenticeship training, whereas companies alone select
the trainees in the plants. Such an arrangement has allowed the craft unions to keep
wages high by limiting the numbers in the craft, sometimes giving preference to their
families and friends.

Differing Job Characteristics
The nature of their work creates a unique opportunity for craft unions. Because many of
the work assignments last only a short period, the craft members, such as electricians
work on a construction project, return to the union hiring hall for their next assignment
after their work is complete on a project. Upon receiving the assignment, the union
members could report to another job site and work, possibly for another company. Usu-
ally, these arrangements are worked out in advance by the business agent of the craft
union and the companies who agree to operate under the existing regional labor agree-
ment. In fact, at the time that a building contractor signs a union contract, it may have
no union members in its employ (e.g., January in a northern state in the United States
when construction is slow); later, the union will supply labor as needed. This type of
contract is called a prehire agreement. It is similar to the closed shop (discussed later in
this chapter) which is illegal in most industries but is allowed in construction under sec-
tion 8(f) of the LMRA due to the unique characteristics of the industry.

The union hiring hall serves as a clearinghouse or placement office for the construc-
tion companies as well as the union members. Because the hiring hall must be operated
in a nondiscriminatory manner, nonunion employees may also use its services; however,
use by nonunion employees is still quite rare. Typically, the union will offer work within
specific job categories to the most senior workers on the hiring hall list who are available
to work.

In comparison, the typical member of the industrial union is hired by the company
and will work for the same employer usually at the same facility until retirement or
until the employee resigns or is terminated. Thus, industrial unions do not utilize either
prehire agreements or hiring halls.

Differing Leadership Roles
Another difference between craft and industrial unions is the roles of the business agent
and shop stewards of the craft unions and the local union officials of industrial unions.
The business agent, the full-time administrator of the local craft union, provides many
of the same services as the local union president of a large industrial union. Both are
considered the key administrative official of their respective local union halls, and they
lead the local union negotiations and play a key role in grievance administration. How-
ever, the business agent has additional duties, such as administering the union hiring
hall, serving as the chief watchdog over the agreement at the various work sites, and
appointing an employee on each job site to serve as the shop steward.

Because the business agents of local craft unions have authority to assign members
to jobs, such as in the construction industry, they can accumulate power which could
lead to corruption, especially with assistance of cooperative employers. More impor-
tantly, with this authority to assign workers to jobs, business agents can play favorites
and members will be reluctant to challenge the business agent because they could be dis-
ciplined by losing job assignments. However, in at least one case, an African-American

156 PART 1 Recognizing Rights and Responsibilities of Unions and Management

worker sued and proved that the union hiring hall had been operated in a racially dis-
criminatory way for several years. The court appointed a special master to oversee the
hiring hall to insure it operated fairly.39

The shop steward in a craft union, who may be the first person on the job or the
most senior employee, handles employee grievances, represents the business agent on the
job, and contacts the business agent if anything goes wrong. By contrast, the shop stew-
ard in an industrial union is elected by the group of employees he/she will represent (like
the members in a department or shift).

The shop steward is the personification of the union to the members; the impressions
of the steward greatly influence the members perceptions of the union. Where impressions
of the steward are positive, members also have positive views of grievance procedures and
have greater union commitment. Stewards spend about 12 hours per week on labor rela-
tions matters; between 50 and 80 percent of this time is spent on grievance handling.
Therefore, training of shop stewards in grievance handling is important because it helps
in reducing the time required to process grievances, an increased likelihood that the shop
steward will seek reelection, and the ability of the steward to devote more time to improv-
ing relations between the union and management.40 Most unions have ongoing steward
training programs, which include such subjects as compliance with the labor agreement,
filing grievances, and monitoring health and safety violations.

In local industrial unions, the local president may serve full-time if the local union
can afford it. If the position is full-time, the salary comes from union dues. If the posi-
tion is part-time, the president is compensated from the union treasury only for the time
taken off his or her company job (at the regular rate of pay). Since much of the work is
done outside the regular work hours, the presidents devote much more than the typical
40-hour week. Presidential duties include participating in local negotiations, maintaining
the local union office, chairing local union meetings, assisting in grievance administra-
tion, and ensuring that management abides by the agreement. Union officers who are
involved in the day-to-day administration of the collective bargaining agreement may
be granted preference in shift assignment and protected from layoffs. They may be
granted super-seniority, which means they go to the top of the seniority list on layoff

Another position which is important to the operations of the local union is the
international union representative, a staff member of the international union, who
assists local officers in negotiations and in administering the labor agreement. He or
she also ensures that the local s activities conform to the national constitution and direc-
tives and any local agreements are consistent with a master agreement where applicable.
They also have responsibilities in leadership roles in conducting union organizing cam-
paigns at unrepresented sites.41

Involvement in union leadership depends upon individuals being convinced of the
importance of the cause of the union. This is necessary because the union leadership,
whether a shop steward or a local union president, will be devoting a certain number
of hours each month without pay to provide services and benefits to co-workers.
Employees who take on the role of union officer tend to do so because they are con-
cerned about the well-being of their co-workers and have received encouragement from
these peers. They are more likely to have been employed for a longer period but gain less
satisfaction from their jobs.42

Government and Operation of the Local Union
There are several common ways for union members to participate in union activities:
attending meetings, holding office, attending conventions, voting (officer elections,

CHAPTER 4 Unions and Management: Key Participants in the Labor Relations Process 157

ratification of a negotiated agreement, and strike vote), and helping with the monthly

Union members whose growth needs are not fulfilled on their job are usually more
willing to become involved in union administration. Also, individuals are usually more
willing to participate in union administration when their values are closely aligned with
their role in the union.43

Participation in Meetings
Attendance at local union meetings frequently varies between 5 and 10 percent of the
total membership; however, attendance is higher among union members who perceive a
potential payoff for participation.44 When a union is confronted with important busi-
ness, such as during local union officer elections, taking a strike vote, negotiations, or
ratifying a negotiated agreement, attendance rises.

When the meeting location and time of the meeting are convenient to the member-
ship, attendance tends to rise. For example, if the meeting is held at or near the work-
place immediately after work, attendance will likely increase. Craft union members,
higher skilled, higher seniority, and better-educated members are more likely to attend.
Union members are more likely to attend if they know they will be able participate in the
meetings and if they receive a personal invitation from their shop steward. Most interest-
ing, when the union members do attend, they leave the meeting fairly satisfied with how
the meetings are run.45

Local unions are now using survey methods and interviewing techniques to gather
information about such issues as safety and health, contract provisions, promotional
opportunities, job stress, perception of the union, and recruitment of new members, not
only to prepare for negotiations but also to improve the operations of the union and
assess membership attitudes.46

Unions have much potential for increasing participation of local union members.
For example, unions may make full use of electronic information services, like the Inter-
net, Web sites, and e-mail, to communicate and pursue union objectives; and find new
ways to involve the rank-and-file members in organizing, bargaining, and political activ-
ities.47 Interestingly, union participation does not mean that employees are not satisfied
with their jobs.48

The union leaders almost always attend local union meetings, as do departmental
representatives, hard-core members, pressure groups, social groups, and aspirants to
union leadership positions. Union stewards are expected to attend local union meetings
and represent the interests of those in their work unit. Although direct votes occur only
on major issues, the union steward can usually reflect the membership views at the
union meetings.49

Locals have tried numerous ways to increase attendance of regular members, such
as providing beer, sandwiches, movies, and door prizes; fining members who miss a
specified number of meetings; or refusing to let members who have missed too many
meetings seek an elected office. Although some gimmicks may increase attendance in
the short run, many members still feel the meetings are long, boring, and frustrating
affairs. 50

The average length is about two hours and much of the time is devoted to presenta-
tion of reports from the treasurer, project leaders, and committee chairpersons. Oppor-
tunities are provided for members to discuss these reports, but this procedure itself takes
time, especially when a grievance involving someone in attendance is presented or when
a controversial issue is raised before the meeting as a whole. Although the meetings may
stray from the ideal, the business of the local is generally accomplished.

158 PART 1 Recognizing Rights and Responsibilities of Unions and Management

Functions of the Meeting
The local union meeting may seem boring and not well attended; however, it serves sev-
eral vital functions in the local union government. First, the meeting is the union s single
most important governmental activity, and all authority at the local level is derived from
it. Second, the meeting provides an opportunity for members to communicate with
union leaders, express gripes directly, and call attention to their concerns. Likewise, it is
an opportunity for leaders to provide information to members, present results of activi-
ties, seek union support, and give direction to the membership. Finally, since the meeting
is the supreme legislative body, this is where important decisions are made on such items
as approval of appeals of grievance to arbitration, approval of expenses and constitu-
tional changes, proposals for contract negotiations, election of officers, and ratification
of the contract.51

Unions exist not only to better workers economic conditions, but to give employees
a voice. Democratic unions provide that voice. A democratic union provides members an
opportunity to exert influence over their workplace environment and to participate in
decisions which affect them at work through such activities as attending local union
meetings, voicing their opinions, participating in ratification and strike votes, running
for office, and voting in local and national union elections. The processes in democratic
unions, such as officer elections, make the union leaders more responsive to the

Research has shown that positive union management relations lead to members
voting in line with the political objectives of the union leaders, such as contract ratifica-
tion and reelection of the incumbent union leaders. In local union officer elections,
greater effectiveness in processing grievances increases the likelihood that an incumbent
union leader will be reelected. Confidence in using the grievance procedure to resolve
problems and the fairness of the collective bargaining agreement lead to increased sup-
port for the local union leader s political goals and reelection of the incumbent. Interest-
ingly, more senior members have been found more likely to have voted against the
incumbent union leaders. Thus, it must be concluded that the more senior union mem-
bers might not believe that the union officers are doing as much for them as they are for
the more junior members.52

Because elections are so important to the democratic process, the U.S. Department
of Labor has been authorized by Congress to develop rules governing union elections.
(These rules are shown in the following Labor Relations in Action box on page 162.)

The National or International Union
The national or international (these terms are used interchangeably in this chapter) union in
the United States occupies the kingpin position in organized labor because of its influence
in collective bargaining the core function of American unions. Size alone (Exhibit 4.11)
indicates the magnitude of the influence of national unions millions of members work
under labor agreements that are directly or indirectly the result of national union actions.
The local union operates under its constitution and directives, and the federation (AFL-CIO)
derives its influence, prestige, and power from the affiliated national unions.

The national union operates under a constitution adopted in a convention by
representatives from locals. These constitutions have changed over time through three
stages: first, in an era of independent local unions, the locals were initially careful to
restrict the power of the national union. Second, as national businesses, larger regional
railroads, and chain stores rose to prominence, national unions became more active in
collective bargaining and political action. Local officers realized the need for a unified

CHAPTER 4 Unions and Management: Key Participants in the Labor Relations Process 159

approach toward these large corporations and the need for national laws protecting
their interests. Consequently, the union locals became subordinate bodies. Third and
currently, after scandals involving undemocratic and corrupt union leaders (and the
passage of the Landrum-Griffin Act), most union constitutions added provisions that
not only authorize the major national union functions but also protect union members
individual rights and the rights of local unions in relation to the national union.53

The Convention
The supreme governing body of the national union is its convention, which is usually held
annually or biennially.54 The convention serves the national union in many ways: as the
constitutional assembly, the legislature of the national union, the final court for union deci-
sions, and the means for nominating officers (and the election in many cases). The con-
vention provides the time and place for national officers to report to the members their
accomplishments and failures. It provides the agenda for policy formulation, program
planning, and rule making. It represents the time in which the voice of the membership
holds leaders accountable for their actions. However, not all activities are official; the con-
vention provides a reward for drudgery work at the local, an opportunity for politicking
and public relations, and a time and place for the members to let their hair down.

The convention makes use of the delegate system, in which the number of delegates
allowed depends on the number of members in the local. Because even the smallest
union is allowed one delegate, the number of delegates is not exactly in direct proportion
to the size of the local, although larger locals have more delegates. The convention con-
ducts its business similarly to Congress and various state legislatures in that much com-
mittee work (including the possible holding of hearings) is performed before debate and
vote on the convention floor. However, much discussion also takes place in the conven-
tion hotel bars and in meeting rooms.55

Exhibit 4.11
Twelve Largest National and
International Unions

Organization Members (in thousands)

National Education Association* 2,963

Service Employees International Union** 1,867

American Federation of Teachers*** 1,597

American Federation of State, County and Municipal


United Food and Commercial Workers** 1,274

International Brotherhood of Teamsters** 1,258

International Brotherhood of Electrical Workers*** 750

United Steelworkers*** 659

Communication Workers of America*** 623

International Association of Machinists*** 570

Laborer International Union of North America*** 558

United Auto Workers*** 391

*Independent Union
**Affiliated with Change to Win
***Affiliated with AFL-CIO

SOURCE: 2013-2014-2015 LM-2 Reports by U.S. labor unions, which may be found at http://www.olms.dol-esa.gov, the home page
of the U.S. Department of Labor.

160 PART 1 Recognizing Rights and Responsibilities of Unions and Management

Although many subjects may go before the convention, several continue to emerge
year after year, such as the following:

Internal government: dues, financial matters; and authority of the president, execu-
tive board, and locals
Collective bargaining: problems with current agreements, membership requests for
future negotiations, establishment of bargaining priorities, determination of strategy
for future negotiations
Resolutions in support of or against domestic and international public policies: labor
law reform, inflation, interest rates, unemployment, international balance of pay-
ments, loss of jobs to foreign countries.56

Leadership and Democracy
Between conventions, the national union is led by its executive board, whose members are
elected by the membership. In some cases, executive board members are elected on a
regional basis, and they are responsible for regional intermediate organizations that main-
tain contact between the locals in the regional and the national unions. The relationship
between the executive board and the national union president is usually specified in the
constitution. For example, some national union presidents primarily carry out the policies
of the executive board; others direct the affairs of the national union, subject to the
approval of the board. However, the largest group of presidents has virtually unrestricted
authority to appoint staff and direct the activities of the national union. The rationale for
allowing such great authority to be vested in the chief executive is that the union often
finds itself in struggles with employers or in other situations where it must act decisively
and quickly. Thus, a strong executive is needed, and a single spokesperson for the union is
required. This concentration of power creates opportunities for misuse of power, and an
internal system of checks and balances must be devised to ensure democracy and adequate
representation. Experiences that led to the passage of Titles I to VI of the Landrum Griffin
Act (covered later in this chapter) have shown that internal control may not work effec-
tively, making that government regulation essential. Members rights to participate in
union elections and governance include the right to nominate candidates in elections,
vote in elections, attend membership meetings, participate in the deliberations, and vote
on the business at these meetings, such as setting dues and assessments.57

Democracy within the union can improve its overall efficiency and effectiveness.
Union leaders will better represent the members because they will know what the mem-
bers want. Democracy will make it easier to eliminate corrupt and ineffective officers
who do not represent the members interests. Furthermore, paid union officials cannot
perform all the tasks needed within a union and have to rely on the efforts of volunteer
unpaid leaders and members. These volunteer leaders will have a greater commitment to
the union if they are involved. The components of democracy should include (1) shared
sovereignty in decision making; (2) opportunities to participate in decision making;
(3) access to complete information necessary for decision making; (4) guaranteed equal
rights for individuals and respect for individual dignity.58

One indication of union democracy and active participation by members has been the
turnover rates of national union presidents. Some former international union leaders
maintained their positions for extended periods (e.g., Dan Tobin, Teamsters, 45 years;
John L. Lewis, Mine Workers, 39 years). In the 1950s and 1960s, the turnover rate for
union presidents was about 20 percent, rising to 25 percent in the 1970s. Then, in the
late 1980s, the turnover rate reversed to 10 percent. Although turnover is not the necessary
prerequisite for union democracy, the general rule is that to remain in office a union leader

CHAPTER 4 Unions and Management: Key Participants in the Labor Relations Process 161

must be responsive to the membership and satisfy the membership s objectives.59 The pre-
sident s tenure in office tends to be longer in larger unions, which have formalized com-
munication networks, centralized bargaining, and heterogeneous rank-and-file members.60

Profile of Union Leaders
Most union leaders come from working-class families; the majority of their fathers were
hourly employees. Union leaders have an average of 14.1 years of formal education. Over
70 percent of union leaders have some college experience; 17 percent have postgraduate edu-
cation; and 27 percent are college graduates. They first joined a union for the same reasons
most union members do today: 40 percent joined because it was a condition of employment,
33 percent joined because they believed in the goals of organized labor, and 25 percent
wanted better pay and working conditions. Their reasons for pursuing union leadership posi-
tions include the following: challenging work, interesting work, extended their range of abili-
ties, opportunity to learn new things, achieve something personally valued, believed in the
goals of the union, and opportunity to improve working conditions of fellow employees.61

A survey of national union leaders revealed some new directions, which included the

Centralizing some of the national union s functions, such as supporting federal leg-
islation, while pushing other decisions closer to the membership, such as taking a
local union member s grievance to arbitration

Rules Governing Union Officer Elections (U.S. Department of Labor)

1. All local unions must elect officers at least once every
three years; international unions every five years.

2. Local unions are required to have direct elections by
manual or mail ballots; international unions are per-
mitted to elect officers by delegates.

3. Proper safeguards must be prepared for mail ballot-
ing, for example, insurance that all members
received a ballot and have sufficient time to vote
and return the ballot. With manual balloting, proce-
dures for voter secrecy (private voting booths, a pri-
vate table where the view is blocked by cardboard or
a private room), and voter identification (driver s
license or company badge) must be established.

4. The location, date, and time of the election must be
convenient for all of the members.

5. Notice of the election which contains the date,
time, place, and so on must be mailed to every
member 15 days prior to the election.

6. There must be reasonable notice of the rules gov-
erning nominations mailed to or posted for the
membership. Nominations may be done orally at a
union meeting or by mail, but every member must
have a reasonable opportunity to nominate.

7. Requirements for voter eligibility are the same as
the requirements for membership. Voter eligibility
must be verified.

8. After the ballot is marked, it should be placed in a
nearby ballot box by the voter, and the voter should
leave the area by a door different from the entrance
of members who have not voted.

9. Neutral persons should conduct the elections and
count the ballots.

10. Observers are a necessary part of the election pro-
cess, and each candidate is entitled to one or more
observers (depending on the polling hours, polling
sites, and size of the election).

11. Each candidate has a right to have campaign mate-
rials mailed. Some unions do the mailing at the can-
didate s expense; some unions provide computer
printouts of the membership lists or mailing labels
of membership addresses.

12. The use of union or employer funds to support a
candidate is prohibited. This ban applies to copying
machines, campaigning in a union publication, use
of union or employer cars, any property of the union
or an employer, assistance by any employer or a
relative who owns a business and just wants to
help a family member get elected, and others.

SOURCE: Helen Boetticher, How to Hold a Union Election and Stay Out of Trouble,
Labor Law Journal, 51 (4) (2000), pp. 219 224.


Broadening the scope of bargaining to include a more holistic approach, such as
negotiating child-care and elder-care issues and member education
Studying and learning from business organizations on subjects like strategic planning,
clear objectives, a clear chain of command, and established rules and procedures
Improving union and member effectiveness through goal setting, team building, and
member surveys
Improving communication with members by use of information technology, such as
video conferences, Web sites, and e-mail.62

The operational departments of international unions vary in kind and number, but the
typical international union will have at least the following departments: (1) executive and
administration; (2) financial and auditing; (3) organizing, (4) negotiating, grievance han-
dling, and arbitration services; and (5) technical staff, which includes research, education,
economics, law, publications, and public relations.

The executive and administrative group includes the president, vice president(s),
secretary-treasurer, and their assistants. This group is chiefly responsible for the activities
of the overall union. In some cases, the vice president may concentrate on organizing or
collective bargaining, whereas the secretary-treasurer will focus on financial matters.

Presidents of U.S. national and international unions are paid well. Presidents of the
three largest unions earn over $250,000 per year.63 These salaries do not approach the
average earnings of CEOs. The salaries of the top 100 highest-paid CEOs ranged from
$20.6 million to $156.1 million in 2014. CEOs now earn 373.1 times the earnings of an
average worker in the United States who made $35,239.64

Thousands of union members, union stewards, and local union officials receive no
compensation for their union work and are reimbursed only for time lost from their jobs
when involved in union business.

Professional Staff Members
Unions have two kinds of professional staffs. The first group is either appointed or
elected and holds such titles as international union representative, staff representative,
business agent, or organizer. These staff members work away from the international
union headquarters and assist local unions in bargaining, contract administration, and
organizing. The second group performs more technical, specialized functions at the
union headquarters. This group includes such professionals as industrial hygienists; phy-
sicians; economists; attorneys; accountants; computer operators; and specialists in educa-
tion, media, public relations, and so forth. Interestingly, the staff members have formed
staff unions, mostly to promote their job security and equitable salary schedules. Most
staff unions are independent, but some have affiliated with a national labor union, such
as the CWA, the Steelworkers, or the Newspaper Guild.

Unions have been criticized for making their personnel decisions based on internal
politics and limiting selections only to internal candidates. There has always been a union
tradition of protecting workers against unfair discharge; thus, this tradition has been a bar-
rier to disciplinary action of its own employees with union staff members being fired only
in the most serious cases of incompetence or abuse. Unions have also been criticized
because few unions have written job descriptions or provided training programs and ori-
entation for staff members. In recent years, these criticisms have been addressed and
union s human resource practices have become more standardized. These changes have
been addressed because unions are facing more and more complex challenges in all of

CHAPTER 4 Unions and Management: Key Participants in the Labor Relations Process 163

the areas in which they operate – economics, financial, political, legal, and organizational.
Today, unions are likely to have written policies in five areas: sexual harassment, discipline
and discharge, ethics, equal opportunity/affirmative action, and hiring.

Unions today are establishing more modern human resource policies and practices.
The unions response has been caused by shrinking resources, growing employer resis-
tance to unions, and government regulations.65

The types of skills, knowledge, and experience required of staff members to address
these challenges have changed. When unions place a higher priority on servicing the
membership (assisting the local in contract negotiations, resolving grievances, presenting
an arbitration, etc.), the institutional knowledge and nuts and bolts of bargaining and
political and leadership skills gained from being a local union officer are valuable for a
staff job. While these qualities are important for some staff jobs, they may not be essen-
tial for conducting organizing drives or working in political campaigns. In fact, many
staff jobs today require greater technical skills, such as data assessment, communications,
financial and economic analysis, which are not gained through experience in local
unions. Unions now look outside their own membership to find the professionals needed
to assist in meeting the needs of the unions and their members. Requiring a college
degree for some staff jobs has become commonplace.

Unions are not unlike many organizations, such as local government, a public orga-
nization, even student organizations. Within these organizations, change is difficult, even
with visionary union leaders with smart plans for preparing their members to meet pres-
ent and future challenges. One impediment to advancement of unions is resistance from
the unions own staff. One reason is that unions are democratic organizations. Some of
the staff members may have been placed in their positions because they helped get some-
one elected. Some staff members may even do an end run to higher authorities to get a
lower level supervisor off their backs. When a staff member has friends in high places,
it is difficult to modify their behaviors.66

Today, most national unions provide in-house training for their professional staff.
Numerous universities have labor education programs that offer professional develop-
ment for union members. The George Meany Center for Labor Studies in Silver
Springs, Maryland, offered courses on arbitration, organizing, negotiating, leadership
development, etc. and has an annual enrollment of several thousands. Its National
Labor College offers accredited undergraduate and graduate programs designed for
union staff since 1997, and several hundred union officials have college degrees by par-
ticipating in this program.67

Services to and Control of Locals
As indicated earlier, the locals are constitutionally subordinated to the national union, but
the degree of subordination varies with the union. The national union provides services to
the local union in several ways while at the same time controlling local union leaders. For
example, when the company produces a mobile product, such as automobiles and a
national or international product market exists, a master labor agreement with one firm
might be negotiated to cover all its facilities (such agreements have been negotiated in the
steel, auto, rubber, aircraft, and electrical appliance industries). Also, a union such as the
UAW may negotiate an agreement with a company like GM at the national level, and this
agreement may establish a pattern for negotiating with other auto companies such as Ford
and Chrysler. Following the negotiations of the master agreement between the national
union and each company, the local union will negotiate a local agreement with company
officials at each plant, covering local rules, policies, and benefits. Any deviations from the
master agreement must be approved by the national union. When the product is not

164 PART 1 Recognizing Rights and Responsibilities of Unions and Management

mobile, such as in construction, the negotiations and the labor agreement cover a smaller
geographic area. (See Chapter 6 for further coverage of this issue.)

The national union through the international union representative assists locals in
collective bargaining, grievance administration, strike activities, and internal financial
administration. These services also provide an opportunity for national union staff mem-
bers to ensure that the local unions are conforming to national policies.

The national union supports the local union in strike situations, but the local union
must get approval to qualify for strike benefits. The national union provides counseling
and consultation for internal financial administration (bookkeeping, dues collection, pur-
chases, financing union lodges, etc.), but trusteeship (receivership) procedures are avail-
able whereby the national union can suspend local union control for abuses such as
malfeasance, corruption, and misuse of funds. The national union could replace local lea-
ders with a trustee appointed by the national union.

Dues, Fees, and Distribution of Funds
Although all union members pay dues or fees to their national unions, the amount and
form vary considerably. Such dues are the chief source of revenue for unions. The
monthly dues are typically between $20 and $30, and the initiation fee is about $40.
Some unions set a single rate, but most allow the local union some flexibility in making
the final determination. Typically, dues are collected via a dues check off system wherein
the member agrees to a payroll deduction of union dues, which are collected by the
employer and paid them directly to the union.

The local unions forward a portion of the monthly dues for each member to the
national union. The national unions use these funds for various purposes beneficial to
the membership. Although the largest percentage of funds goes to the general fund,
which covers administrative and operational costs and salary expenses, allocations are
also made to accounts, such as a strike fund, a convention fund, union publications, edu-
cational activities, and a retirement fund.68

The use of union dues for political purposes has been a combative political issue for
many years. Unions spend on average only 4.27 percent of the dues income for political
purposes. Advocates (which include the National Right-to-Work committee, the Heritage
Foundation, and the Christian Coalition) for worker paycheck protection support
state and federal legislation claim they which would give nonunion bargaining unit
employees, who are required to pay dues under a union-security arrangement, the right
to opt-out to the union using of any portion of their payments for political purposes.
Those who opt-out may then apply for a rebate of the portion of their dues used by
the union for political purposes. A more extensive approach is the opt-in provision
which would require nonunion employee dues-payers to explicitly grant the union per-
mission to use a portion of their dues for political purposes.69 Recent court decisions
have caused several unions, such as the Machinists; Auto Workers; Communications
Workers; and American Federation of State, County, and Municipal Employees, to
adopt dues rebate plans. These plans allow a rebate of a portion of member dues spent
on political activities if the member requests it in advance (usually annually).

The U.S. Supreme Court has ruled that if a union uses dues and fees of protesting
employees for non-collective bargaining activities and purposes, it breaches its fidu-
ciary duty of fair representation.70 Unions can continue to solicit volunteer contribu-
tions through such units as the AFL-CIO Committee on Political Education (COPE),
the UAW s Community Action Program (CAP), and the United Mine Workers
(UMW s) Coal Miners Political Committee (COMPAC), but collections may be more

CHAPTER 4 Unions and Management: Key Participants in the Labor Relations Process 165

Finances of unions are considerably decentralized across union levels, with a few
local unions having more wealth and income than their national unions. Likewise,
union finances are highly concentrated across unions, with a few unions dominating
the scene. For example, the National Education Association receives $385 million in
annual revenue, and the UAW has assets of nearly $1.0 billion.71

Unions financial performance has improved considerably in the last few years. In
fact, some unions have a collective capacity to fund nearly a full year of services without
the infusion of any new income. Organized labor s decline in bargaining power and
strike activity over the past two decades has not been due to any diminished financial
capacity of unions to withstand strikes.72

Mergers of National Unions
Mergers of national unions have occurred at a quickening pace in recent years. These
have been spurred by rising operating costs. Several additional reasons have prompted
such mergers, including the following: (1) the AFL-CIO merger set an example for its
member unions, (2) the need for stronger bargaining positions, (3) a desire to avoid
expensive jurisdictional disputes between unions, (4) the decline for some U.S. industries,
(5) economics of scale, (6) avoidance of external controls, and (7) the need for self-
preservation. Obviously, some mergers reflect a combination of these motivations.

Union mergers are either amalgamations or absorptions. Amalgamations occur
when two or more unions of roughly similar size join together to form a new union.
Absorptions occur when a small union is absorbed by a larger one. The smaller one
loses its separate identity, and the size and structure of the larger one is minimally
affected.73 Since there were 146 national union mergers from 1955 to 2007, about three
per year. Amalgamations accounted for about 15 percent and, since 2000, there have
only been two. One of these amalgamations, the merger of UNITE (primarily clothing
and textiles workers) and HERE (primarily hotel and restaurant workers) in 2004 lasted
only five years. (The UNITE group split and formed Workers United; in 2010 Workers
United affiliated with the Service Employees International Union). Amalgamation mer-
gers are difficult because they join together different traditions, organizational structures,
and administrative practices of two separate unions in creating a new union. Amalgama-
tions essentially disband the existing unions and create a new one. Merger committees
must agree on new governing structures and administrative practices, such as election
of officers, changes in the constitutions, retention, layoffs, and retirement of staff mem-
bers; officer positions and authority of these officers; location of the union headquarters;
and continuation and/or elimination of separate union newspapers.

Absorptions are easier because the smaller unions merge into the larger union and
the smaller union becomes part of the larger one. The smaller unions may retain a divi-
sion or section within the larger union and may even retain their own officers, locals,
bargaining councils, and most of their constitutions. As a result, the absorption may
entail little more than printing new union stationery.

Often overlooked in union mergers are the behavioral dimensions. These dimen-
sions include how the union merger affects the behavior of union members and how
the union members are affected by the merger. Members tend to evaluate the merger in
practical terms, that is, types and quality of service to be received, job protections they
receive, effect on member dues, level of democracy, opportunities to participate in union
governance, and so on. Successful mergers require issuing union bulletins and having
special meetings to explain the benefits of the mergers. If the merger occurs without
member support, the merger will fail. The leaders must convince enough members that
the membership will benefit from the merger. If the members become disaffected and

166 PART 1 Recognizing Rights and Responsibilities of Unions and Management

withdraw their participation, the merged union will possibly disintegrate like the UNITE
HERE merger in 2009.74

Five unions have dominated the merging activity. These unions are the Service
Employees International Union (SEIU), the United Food and Commercial Workers Union
(UFCW), the Communication Workers of America (CWA), the International Brotherhood
of Teamsters (IBT), and the United Steelworkers of America (USWA). These five unions
have over 5 million members. While some of their growth has occurred through organizing
new members, most growth has occurred through mergers. While these unions are multi-
jurisdictional, they have their roots in certain industries: SEIU in hospitals and nursing facil-
ities; IBT in trucking; UFCW in grocery stores and meat products; USWA in aluminum,
steel, petroleum refining, paper, and tires; and CWA in telecommunications.75

Intermediate Organizational Units
Structurally, between national headquarters and the locals lie the intermediate organiza-
tional units regional or district offices, trade conferences, conference boards, and joint
councils. These units usually operate under the guidance of their various national unions,
but their activities are important to the union members and employers in their areas.

The regional, or district, offices house the regional or district officers, the staff, and
the international union representatives for the geographical area served. For example,
Michigan has a number of Auto Workers district offices; the Steelworkers have district
offices in Pittsburgh, Birmingham, and elsewhere. The offices are established to help
national unions better serve their respective locals.

Trade conferences are set up within national unions to represent a variety of indus-
trial groups. For example, the Teamsters have established 11 trade conferences for
groups such as freight, laundry, airlines, and moving and storage. These groups meet to
discuss various mutual problems and topics of interest.

Conference boards are organized within national unions in accordance with the
company affiliation to discuss issues that pertain to the union and the particular com-
pany. For instance, each of the national unions within the steel, auto, rubber, and electric
industries has established conference boards that meet to discuss negotiations and related
problems. Delegates are chosen from the local unions to represent the interests of their
constituents at meetings, to plan the next negotiations, and then to relay these plans to
the local union members. For example, when the United Rubber Workers were absorbed
into the United Steel Workers of America in the mid-1990s, the USWA set up a Rubber
& Plastics Industry Conference group led by former URW national officers; subgroups
within that conference focused on each of the major tire manufacturers.

Joint councils involve groupings of local unions that have common goals, employ-
ers, and interests. Examples are the building trades councils established in most metro-
politan areas in the United States. Joint councils negotiate with the association of
construction employers in the area, coordinate their activities, and assist in resolving
jurisdictional disputes between unions.

Independent Unions
There are 41 independent unions (not affiliated with the AFL-CIO or Change to Win).
These unions represent mostly service and health care providers. The largest union
in the United States, the National Education Association (about 3.0 million members),
is among these independent unions. Other independent unions include the American
Nurses Association, American Physicians and Dentists, Life Insurance Agents, National
Labor Relations Board Union, Professional Engineering Association, and International

CHAPTER 4 Unions and Management: Key Participants in the Labor Relations Process 167

Union, Security, Police, and Fire Professionals.76 There are also approximately 1,500
independent local unions that have nearly half a million members. Independent local
unions are found in a few large organizations such as DuPont, Texaco, Exxon, AT&T,
and Procter & Gamble; in several medium-sized firms such as Dow-Jones, Weirton
Steel, and Zenith; and in numerous small companies in a variety of industries.77

Employee Associations
Unions are supporting new employee associations that provide a wide range of services
to their members. In Cleveland, The Association for Working Women, an affiliate of the
Service Employees International Union, provides a toll-free hotline, offers courses on
sexual harassment and carpal tunnel syndrome injuries, and lobbies on workplace issues.
In New York, AIM (Associate ILGWU Members), an affiliate of the International Ladies
Garment Workers Union (now part of the SEIU), provides English classes for its mem-
bers; graduate-equivalency diploma classes; skills training; and legal assistance with
immigration, minimum wage, safety and health, sexual harassment, disability, and pen-
sions laws. In Montana, the Montana Family Union is sponsored by the AFL-CIO and is
made up of government employees, small-business owners, and even priests. It offers its
members major medical benefits at less than 50 percent of their individual rates.
Although critics refer to these employee associations as watered-down unions, they
are serving important social functions, and their membership has grown nationally
while total membership in unions has declined.78

Managerial and Professional Organizations
Even though 43 percent of the total U.S. labor force is classified as managers, supervisors,
or professional employees (Managers and supervisors are not eligible for coverage under
the National Labor Relations Act), these groups are interested in having a greater voice at
work. Sidney and Beatrice Webb recognized in their classic book Methods of Trade Union-
ism, published in 1902, that there were three methods of unionism: (1) collective bargain-
ing, (2) mutual aid and insurance, and (3) legal enactment. Many managers, supervisors,
and professional employees have joined organizations to represent their work-related inter-
ests, that is, for their mutual aid and insurance. There are 37 of these types of organiza-
tions and many use union-like tactics, such as collective action, mutual aid, skill
certification, and political activity, to achieve their goals. They provide group insurance
and discounts and special rates for university courses, books, video tapes, and products;
assist members in their career development; and engage in legal-enactment strategies.
However, these organizations do not engage in collective bargaining.79

The American Federation of Labor and Congress of Industrial
Organizations (AFL-CIO)
The AFL-CIO, while not including all U.S. labor unions, is composed of 55 national and
international unions that have 60,000 local unions and about 10 million members. Mem-
bers represent a diversity of occupations, such as actors, construction workers, barbers
and hairdressers, steelworkers, bus drivers, doctors, nurses, athletes, railroad workers,
telephone operators, newspaper reporters, sales clerks, garment workers, engineers,
schoolteachers, and police. These unions affiliated with the AFL-CIO maintain day-
to-day relationships with several thousand employers and administer about 150,000
labor agreements. Most (over 99 percent) of these agreements are negotiated without
strikes or other forms of conflict and serve as the basis of employment conditions
under which many work.

168 PART 1 Recognizing Rights and Responsibilities of Unions and Management

Established in 1955 when the American Federation of Labor and the Congress of
Industrial Organizations merged, the AFL-CIO recognized the principle that both craft
and industrial unions are appropriate, equal, and necessary parts of U.S. organized
labor. The federation accepts the principle of autonomy each affiliated union conducts
its own affairs; has its own headquarters, offices, and staff; decides its own economic pol-
icies; sets its own dues; carries out its own contract negotiations; and provides its own
services to members.

No national union is required to affiliate with the AFL-CIO. About 40 unions
remain outside the AFL-CIO. Member unions are free to withdraw at any time; however,
their voluntary participation plays an essential role that advances the interest of every
union. National unions continue their membership in the AFL-CIO because they believe
that joining together of unions into a federation of unions serves purposes their own
individual unions cannot serve as well, especially involving politics and lobbying.

Examples of AFL-CIO services include the following:

Representing for organized labor before Congress and other branches of government
Speaking for U.S. labor in world affairs and keeping in direct contact with labor
unions throughout the free world
Coordinating activities such as community services, political education, lobbying,
and voter registration with greater effectiveness
Helping to coordinate efforts to organize unrepresented employees throughout the
United States
Conducting economic and legal research on important legislative topics.

Another vital service enhances the integrity and prestige of AFL-CIO unions they
must operate under established ethical practice codes covering union democracy and
financial integrity. The federation also assists in minimizing conflicts between national
unions that cause work interruptions by mediating and resolving disputes, such as orga-
nizing disputes and conflicts over work assignments.

Organizational Structure
The AFL-CIO organizational structure, shown in Exhibit 4.12, illustrates the importance
of the convention. Meeting every two years and at times of particular need, delegates
decide on policies, programs, and direction for AFL-CIO activities. Each national or
international union is authorized to send delegates to the convention. Each union s
representation of delegates at the convention is determined by the number of dues-
paying members. In addition, other affiliated organizations, such as state labor councils,
are represented by one delegate each.

At the last AFL-CIO convention, delegates elected Richard Trumka to be president,
Tefere Gebre to be executive vice president, and Elizabeth Shuler to be secretary-
treasurer. Trumpka, a coal miner s son, went to work in the mines in 1968, received his
bachelor of science in 1971 from Pennsylvania State University, and received his law
degree from Villanova University in 1974. Gebre was born in Ethiopia and emigrated
to the United States as a teenager. Gebre received his B.S. from University of California
Poly Pomana and an MBA from the University of Southern California. While in college,
he worked his first union job as a night shift loader at UPS. Shuler became the youngest
secretary-treasurer ever and the first female secretary-treasurer. She received her bache-
lor s degree in journalism from the University of Oregon. Shuler held numerous posi-
tions within the International Brotherhood of Electrical Workers prior to being chosen
as Trumka s running mate in the 2009 election.

CHAPTER 4 Unions and Management: Key Participants in the Labor Relations Process 169

Between conventions, the governing body is the Executive Council, composed of the
president, secretary-treasurer, and 55 vice presidents. The other members of the Execu-
tive Council are likely to be current or previous presidents of international unions affili-
ated with the AFL-CIO. The Executive Council meets at least three times a year and
handles operational duties involving legislative matters, union corruption, charters of
new international unions, and judicial appeals from member unions.

Between meetings of the Executive Council, the president, who is the chief executive
officer, has authority to supervise the affairs of the federation and to direct its staff, and
the secretary-treasurer handles all financial matters. To assist his administration, the
president has appointed 11 programmatic departments on various subjects, which, with
the assistance of the AFL-CIO staff, provide related services to member unions. The staff,
located at headquarters in Washington, D.C., corresponds closely with these program-
matic departments in order to better serve the member unions. (See Exhibit 4.12 for a
listing of programmatic departments.) The General Board, composed of the Executive
Council and one officer from each member union, is available to act on matters referred
to it by the Executive Council.

Exhibit 4.12
Organization Chart of AFL-CIO

SOURCE: http://www.aflcio.org

170 PART 1 Recognizing Rights and Responsibilities of Unions and Management

The AFL-CIO has established 51 state federations (plus one in Puerto Rico) to
advance the statewide interests of labor through political, lobbying, and organizing activ-
ities, which involve attempts to elect friends of labor, to have favorable legislation passed,
and to organize unrepresented workers, respectively. Each local union of the AFL-
CIO affiliated unions in a particular state may join the state organization and participate
in and support its activities. In addition, 580 local central bodies have been formed by
local unions of the national affiliates to deal with civic and community problems and
other matters of local concern.

To accommodate and serve the interests and needs of various trade and industrial
unions, the AFL-CIO has established seven trade and industrial departments. The Build-
ing and Construction Trades Department represents the interests of craft unions, mostly
members of the former AFL. Another department, the Union Label and Service Trades
Department, promotes the purchase and sale of union-made goods and services. The
remaining departments represent the interests of such union groups as the food and bev-
erage trades, maritime employees, metal trades, transportation employees, and profes-
sional employees. In addition, throughout the United States where there is sufficient
interest and support, 976 local department councils have been organized.80

These local central bodies have become more active in recent years, particularly in
the northeastern states. As an example, 60 percent of the councils in the northeast region
have adopted the Union Cities program, which contains eight steps toward rebuilding
the labor movement from the bottom up and helping to improve the lives of working
families. These steps include mobilizing against anti-union employers, organizing grass-
roots lobbying/political action committees, creating strategies to create jobs and improve
economic growth, sponsoring economic education, persuading city and county officials
to pass resolutions supporting worker rights, and increasing union membership.81

The AFL-CIO established a no-raiding clause for its affiliated unions in 1962 to keep one
affiliated union from attempting to draw members from another or seeking to represent a
group of employees at a work site where a union already exists. The AFL-CIO also set up
an Internal Dispute Plan to adjudicate conflicts among its affiliated unions.82

The AFL-CIO s operations are financed through regular member dues, called per
capita taxes, which are paid by affiliated unions on behalf of their members. Currently,
the per capita tax is $0.75 month, or $9.00 per year, for each member. Thus, the AFL-
CIO s operating budget is around $190 million, which covers nearly all regular operating
expenses. A major portion of the budget goes to the salaries of the staff. The detailed
financial report of the AFL-CIO is submitted to the delegates at each convention.

The AFL-CIO offers Internet access to 17 million union members, retirees, and asso-
ciate members and offers computers at low cost. This new service is an extension of the
Union Privilege Benefit Program (see Exhibit 4.13), which has been offered since the
1980s. The benefits include reduced attorney fees, lower-cost life and accident insurance,
participation in a motor club, car repair discounts, travel club services, a Walt Disney
discount, reduced prices for educational books and software, mortgage and real estate
advice, and a dental program.

The AFL-CIO recently recognized the potential of maintaining contact with employ-
ees who are not members of unions by establishing an associate membership program.
Those eligible for associate membership includes those who voted for the union in elec-
tions where the union did not win, employees in nonunion companies who would vote
for the union if given a choice, and employees who are represented by the union but
have not joined it.

The AFL-CIO has formed partnerships with worker centers of working people who
do not have the legal right to collective bargaining. Some, like taxi drivers, have been

CHAPTER 4 Unions and Management: Key Participants in the Labor Relations Process 171

Exhibit 4.13
Union Plus Benefits from Union Privilege

Union Plus Benefits from Union Privilege
Benefits for Life
Union Plus benefits stand for quality and service, with prices working families can live
with. Best of all, Union Plus programs are designed specifically for working families. Our
benefits have added features that are especially helpful in cases of disability or layoffs.

Who can use these benefits?
You don t have to join Union Plus or Union Privilege; as a member of an AFL-CIO union,
you and your family are automatically eligible for our benefits. Most unions participate in
most Union Plus benefits, but some international unions elect not to offer all the pro-
grams. Click here to find out which Union Plus benefits your union participates in.

Our Secret? Union Power.
Just as unions provide strength in the workplace, Union Privilege provides strength in the
marketplace. We deliver the best benefits through the collective buying power of over
10 million AFL-CIO union members. And we do so without using union member dues.

Programs available outside the United States

Calculate your annual savings with Union Plus benefits

Money & Credit
Credit Card
Mortgage & Real Estate
Union-Made Checks
Credit Educational Information
Your Credit Score

Insurance Deals
Accident Insurance
Life Insurance
Auto Insurance
Pet Insurance

Health & Well Being
Health Savings
Health Club Discounts

Education Services
Union Plus Scholarship
Union Plus National Labor College Scholarship
Education Loan Program
Go to College Process

Entertainment Discounts
Theme Park Discounts
Movie Ticket Discounts

Auto Advantages
Care Rentals
Auto Insurance
Auto Buying Service
Goodyear Tire & Service Discounts

Member Satisfaction & Advocacy
To guarantee the quality of our benefits, we only work with industry-leading providers.

Our relationships don t stop after the Initial provider selection. We continuously update
programs and monitor performance closely to ensure that they satisfy union members
needs time and time again.

Our member advocates also use the collective strength of union consumers to ensure
members get prompt, courteous service and high-quality benefits as well as help resolve
any problems. With Union Plus programs, union members can rest assured their needs
will be addressed and their voice will be heard.


Sign up for updates.

Save time and money with the
tips and deals offered in the
Union Plus e-mails. Click here
to sign up.

For other benefits, visit the links
below. Union Plus products and
services help save money and

House & Home
Mortgage & Real Estate
North American Van Lines

Legal Resources
Immigration Legal Service

Pet Service
Pet Insurance
Pet Savings
PETCO Discounts

Gift Shop
Flower Discounts

Travel & Recreation
Car Rentals
Vacation Tours
Bahamas Getaways
Disney Hotel Savings

Computers & Tech
Cingular Wireless Discount
IBM Computer Discount
Dell Computer Discount

Auto Buying
Cingular Wireless
Goodyear Tire 7 Service
Disney Hotel Savings
Powell s unionized bookstore
Union-Made Checks

Note: Visit www.unionplus.org for updated information.SOURCE: http://www.unionplus.com/benefits/.


Union Privilege only works
with top quality companies
you can trust. Our program

Are respected specialists in
their field
Offer first-rate products and
services nationwide
Share our worker-friendly
Demonstrate outstanding
customer service
Understand the importance
of privacy and security

172 PART 1 Recognizing Rights and Responsibilities of Unions and Management

classified as independent contractors. Others include domestic workers and day laborers
who are excluded from coverage by U.S. labor laws.

Other AFL-CIO activities are educational and informational, presenting the federation s
stance on a variety of issues. For example, the AFL-CIO has a Web site that keeps members
up to date on current events that pertain to them and presents various reports on
problems and policies of organized labor. The AFL-CIO has its [email protected]
to send out e-mail messages to interested persons. The AFL-CIO maintains the
George Meany Center for Labor Studies, which offers short courses in union leader-
ship development, and a speaker s bureau to provide labor speakers for high school
and college classes. They also make educational films available to interested groups
for a nominal fee.83

In 2003, the AFL-CIO launched the Working America program which reaches out
to unrepresented workers and their families. Registration is free and members receive e-
mail alerts on topics such as health care, social security, and wages, and they have access
to the Union Privilege benefits. As of 2015, the AFL-CIO has enlisted three million
members. Contacts are made with legislators and members engage in community-
organizing activities. The AFL-CIO also offers the Union Summer program in which col-
lege students or recent graduates spend nine weeks working on various workers rights

In the political arena, the AFL-CIO receives much attention. As a representative
of organized labor, it serves as the focal point of political activities. Not only does it
lobby aggressively for favorable legislation, but it publishes the voting records of each
senator and representative at both federal and state levels. It attempts to influence
appointments of Supreme Court judges, the Secretary of Labor, and NLRB members,
who are important to organized labor. Its policy of reward your friends, punish your
enemies has not changed much since Samuel Gompers s day. The AFL-CIO s COPE
has a network in each state and in most large communities. COPE seeks voluntary
contributions to provide funds for its activities, which include voter registration,
get-out-the-vote campaigns, preparation of leaflets and posters, and research on

behalf of its candidates.
Although the Federal Election Campaign Act of 1971, amended in 1974, has

restricted financial contributions to federal candidates, the AFL-CIO, COPE, and state
and local bodies can still amass amazing support to help their candidates for office, espe-
cially when the candidate is clearly the choice of organized labor. Organized labor and
corporations have become major players in the funding of political campaigns at the fed-
eral level, primarily through political action committees.

However, business groups outspend organized labor by 10 to 1. Although organized
labor has played a major role in U.S. politics, it remains independent of a national polit-
ical party. Over the years it has been more closely aligned with the Democratic Party,
both philosophically and politically. It has become perhaps the single most important
political force that has supported government programs to help the socially and econom-
ically disadvantaged. It has supported consumer and environmental protection and safety
and health legislation that has benefited all employees, union and nonunion alike.

Organized labor has accumulated much power and influence through its own estab-
lished network and has also been instrumental in organizing other politically active
groups with socially oriented objectives, such as minorities and senior citizens. However,
organized labor s overall political strength and effectiveness should not be exaggerated.
In some states and municipalities, union membership is so negligible that its influence
is inconsequential. In areas where union membership is high, its influence is significant,
and political candidates must actively solicit its support.85 Obviously, the AFL-CIO does

CHAPTER 4 Unions and Management: Key Participants in the Labor Relations Process 173

not control the membership s votes, and members frequently have multiple reasons for
voting for a particular candidates.

Use of Information Technology by Unions
Every international union in the United States uses the Internet and other information
technologies in the major areas of union activity:

1. Internal communications between union officers, staff, and members, particularly
when they are geographically dispersed. Within every union, there are international
union representatives who are employed throughout the country and represent
members in organizing and representational activities. E-mail communication serves
as an immediate means of communication throughout the organization. Other
unions provide an e-mail alert system that gives weekly updates to union members
and their representatives.

2. External communications, such as to inform the public about union issues poten-
tially affecting the public, workers, and unions. The AFL-CIO Web site (http://
www.aflcio.org/) gives members and nonmembers valuable information on matters
dealing with worker rights, pensions, and benefits during layoffs; provides useful
links to other resources; and provides a system that allows interested persons to
receive e-mail updates about labor events from across the United States and the
world. The AFL-CIO database over 600,000 e-mail addresses in and it is anticipated
to reach several million.

3. Facilitation of bargaining activities, such as in negotiations, and informing members
about employer practices. Members of the CWA were informed of the AT&T s pur-
chase of BellSouth via CWA s home page. Members receive daily reports from nego-
tiating teams.

4. Contract administration, such as communicating grievances and tracking decisions
of arbitrators. Unions are better able to communicate with members in preparation
for grievance meetings and arbitration hearings via e-mail communication. The
American Postal Workers Union has a database of thousands of arbitrator decisions
readily accessible to its arbitration advocates.

5. Union organizing, such as making contact with potential union members and pro-
viding a means for interested employees to communicate with the union. The United
Food and Commercial Workers (UFCW) is currently using the Internet in its
attempt to organize employees at Wal-Mart. Its Web site (http://www.ufcw.com)
keeps up-to-date information on the UFCW campaign activities.

6. Political action, such as informing potential voters about union views and those held
by organized labor s friends and adversaries. Nearly every union Web site has politi-
cal messages for the reader.

Union leaders see the Web as an important avenue for modernizing unionism and
for bridging the gap between an increasingly heterogeneous workforce and collective
activity and solidarity.86 Across the globe, unions are using information technology (IT)
to expand their interactive communications. For example, LabourStart is a new social
network. Unionbook, LaborNet, and LaborTech.net have sponsored annual conferences
since 1990 on how to use digital communication for organized labor s advancement. The
AFL-CIO uses the Web to build to mobilize the grassroots in the U.S. elections.87

The use of e-mail and the Internet has caused some concerns among organized
labor. Among the concerns are the erosion of face-to-face contact, worry about loud-
mouths and troublemakers monopolizing the communications, the generation gap
between older precomputer leaders and the younger computer techies, loss of

174 PART 1 Recognizing Rights and Responsibilities of Unions and Management

confidentiality by computer hackers and snoops, and worry that e-mail messages will
overload the system and consume an extraordinary amount of time that could be used
more effectively elsewhere.88

One of organized labor s greatest concerns is use of company intranets (computerized
e-mail and Web site systems within a company). These add new communication possibili-
ties to employers union-substitution strategies by linking workers to their supervisors and
human resource specialists who are able to quickly disseminate company information and
focus attention on resolving employee grievances. Employers use of intranet is already
widespread and has among its explicit objectives improved communication between work-
ers and human resource departments and closer identification with the company.

One research study reports that over three-fourths of the union population has
access to a computer at home. However, a third of this group did not use the Internet for
e-mail or instant messaging, and nearly half did not use the Internet to receive news,
weather, or sports information. Just 40 percent of the union members accessed the Inter-
net at least once a day.

These researchers made several recommendations. First, unions should invest in promot-
ing accessibility, educating rank-and-file about the potential benefits of IT, and training mem-
bers on how to use relevant applications. Unions may also exercise their bargaining power to
negotiate contracts which provide computer-based training for members. Unions may also
negotiate discounted access rates through their Union Privilege program to spur members to
adopt higher speed connections. Unions could identify and mobilize their high-intensity IT
user members to develop networks to improve communications within and across unions,
build connections with other progressive organizations, and wage grassroots campaigns in
organizing and politics. Still, even with the use of IT, there can never be a substitute for the
most traditional means of communication person-to-person, face-to-face contacts.89

Union Corruption and the Landrum Griffin Act

Like some business executives, a few union officials have encountered problems with law
enforcement officials. Unethical and illegal practices, including corruption, racketeering,
and embezzlement, have been discovered in some local and national unions. Union
abuses of power were exposed by the McClellan hearings of the late 1950s. Large
amounts from Teamsters pension funds had been misused. In other cases, union officials
have been indicted for conspiracy to bribe a U.S. senator and for embezzlement. Indict-
ments have been rendered where ghost workers were maintained on payrolls even
though no services were performed. Although union corruption cannot be condoned,
its magnitude is diminished when one considers the billions of dollars lost to share-
holders and retirees from the corporate corruption scandals perpetuated by Enron,
HealthSouth, Tyco International, WorldCom, and Bernie Madoff.

In January 2015, the federal government and the Teamsters agreed to phase out
over the next five years the court s supervision of its activities. The new agreement
would leave in place the election reforms contained in the 1989 consent decree and
the ban on officials associating with organized crime. The new agreement struck a bal-
ance that recognized both the significant progress made by the Teamsters in ridding
itself of corrupt influence and providing avenue for the union to demonstrate these
gains through its own independent disciplinary and electoral system. These reforms
replaced national officer elections by convention delegates with secret-ballot elections
by all Teamster members. It also continues a ban on officials associating with orga-
nized crime figures. The new agreement struck a balance that recognized both rid-
ding itself of corruption and providing an avenue for the union to demonstrate gains.

CHAPTER 4 Unions and Management: Key Participants in the Labor Relations Process 175

In five years, the federal government will have no role in Teamsters affairs.90 Team-
sters president James P. Hoffa is quoted as saying: After decades of hard work and
millions of dollars spent we can finally say that corrupt elements have been driven
from the Teamsters and that the government oversight can come to an end. 91

An accurate assessment of union corruption is reflected by the following conclusion:

Union corruption stories are front-page news. They create images that tend to linger
and are reinforced each time new allegations are raised. Certainly, Jimmy Hoffa s last-
ing notoriety is evidence of this phenomenon. In fact, the level of corruption among
unions and union leaders is negligible. The Labor-Management Reporting and Disclo-
sure Act insures this. Very few institutions in American society are as closely regu-
lated or as open to scrutiny as are American unions . The evidence is clear that all
but a minute fraction of American union leaders are honest and dedicated in the per-
formance of their duties. Supporting this conclusion is an investigation by a former
Attorney General that found serious problems of corruption in less than one-half of
one percent of all local unions.92

The AFL-CIO established the Ethical Practices Committee in its efforts to control
corrupt practices and racketeering of its member unions, and its executive council was
given the authority to suspend any affiliated union with corrupt practices. In 1959, the
U.S. Congress showed its concern with union abuse and the potential misuse of union
power through passage of the Landrum Griffin Act (the Labor-Management Reporting
and Disclosure Act), which has several provisions governing union operations and gov-
ernment. For example, it governs the following:

Disclosure by union officers and employees (and employers and their agents) about
financial dealings, trusteeships, and any private arrangements made with any
Regulation of union trusteeships, including rules for their establishment and main-
tenance, and the protection of the rights of members of unions under trusteeship.
Fiduciary responsibilities of union officers and representatives. It also disqualifies
criminals and former communists from holding union offices, and it requires certain
union officers to be bonded to ensure the faithful discharge of their duties and
Rights to participate in union elections and governance, such as the right to nomi-
nate candidates in elections, vote in elections, to attend membership meetings, par-
ticipate in the deliberations, and vote on union business, such as setting dues and

The law was intended to promote union democracy and financial integrity. Success
in the administration of the law requires initiative on the part of union members and
availability of necessary information to union members.

The Landrum Griffin Act requires unions to report and file financial information
(LM-2 Reports) with the Department of Labor and to make these reports available to
members. The act s intent was to allow rank-and-file union members to hold union offi-
cials accountable by letting members know how their union leaders were spending their
dues. For many years after the passage of the act, these LM-2 reports were not readily
accessible to union members and the general public. In the summer of 2002, the U.S.
Department of Labor began addressing this problem about union financial reporting
and began making these LM-2 reports available online via its Web site (http://www.dol
.gov). Still, there has been criticism that even when accurately reported information fully

176 PART 1 Recognizing Rights and Responsibilities of Unions and Management

complies with the law, it is hard to obtain, too complicated to understand, and difficult
for members to use. 93

In 1984, the Comprehensive Crime Control Act, containing the Labor Racketeering
Amendments, was passed. These amendments, backed by the AFL-CIO, closed the loop-
holes in the existing laws against labor malfeasance. Convicted labor officials cannot hold
any union position for up to 13 years; the previous law allowed for elongated appeals
during which the officials might remain in office. Any convicted management official
must be transferred outside the labor relations function and cannot serve as a consultant
or advisor in labor relations.

Union Security

A union security clause in the labor agreement makes it easier for the union to enroll and
retain members. Such clauses must be bargained for just like bargaining over wages, hours,
seniority, and others. A reasonable level of union security is necessary for a labor organiza-
tion to survive and effectively represent the interests of bargaining unit members. After the
union wins representation rights under a National Labor Relations Board (NLRB) union
certification election, the union is granted an irrebuttable presumption of majority status sup-
port for one year. This provides the certified union a reasonable time in which to negotiate a
first labor agreement with the employer without being concerned that it might be replaced
by a rival union or removed by a decertification election. Any additional form of union secu-
rity (e.g., union shop or dues checkoff clause) must be obtained by a union through negotia-
tions with the employer. This means that the employer must agree to include these forms of
union security in the labor agreement. For example, the employer may gain a benefit, such
as less cleanup time, fewer vacation days, in exchange for a union security clause.

Union security provisions strengthen the union s financial resources by increasing the
number of dues-paying members. Union leaders believe they are morally justified in asking
all bargaining unit members to help pay for services provided by the union because they are
legally obligated to represent all bargaining unit employees and all bargaining unit employees
receive any benefits gained by the union. Union security provisions can offer benefits to the
employer and the union. Many might contend that employers prefer dealing with a weak
rather than a strong union. A weak union can aid an employer s effort to terminate a
union management relationship, but it can frustrate an employer who earnestly tries to
resolve working condition disputes through an established union management relationship.
It is commonly the union, not the employer, who sells the collective bargaining agreement to
the membership. A union has difficulty in accomplishing this objective when there are non-
union member factions within the bargaining unit that seek to undermine support for nego-
tiated policies. The union leaders are often asked by management to deal with employees
with problems, such as high absenteeism and low production.

Union officials contend that union security provisions also offer other advantages to
the employer, such as less time spent recruiting new members and collecting dues of
existing members during the workday. However, management officials counter that this
time savings might not result in more production because union officials might use the
extra time to police the labor agreement and formulate additional grievances. Unions
also maintain that morale can be improved if all employees are union members.
Tensions arise when some employees do not pay for the services shared by all (the so-
called free rider issue). However, a counterargument could be made that tensions are not
reduced by union security, merely redirected. The possible anger of union members
working with nonunion employees is replaced by the anger of nonunion bargaining
unit members who feel forced to pay for unwanted union services.

CHAPTER 4 Unions and Management: Key Participants in the Labor Relations Process 177

Union Security Provisions
In view of their potential advantages and disadvantages, union security provisions have
taken one or more of the following forms.

Closed Shop
For an employee to obtain a job in a closed shop, the employee must first become a
member of a union prior to or upon employment. The closed shop was made unlawful
by the LMRA in 1947.

Union Shop
The most common form of union security clause, the union shop clause, is found in
about 64 percent of private-sector labor agreements.94 Under a union shop contract pro-
vision, the employee does not have to be a union member to be hired by the company.
However, after being hired, the employee must become a union member within a period
of not less than 30 days (seven days in the construction industry) to remain employed by
the company. This period is considered a probationary period.

An example of a union shop clause is found in Exhibit 4.14.
Can a union spend a portion of its members dues for political purposes? Does it

matter if there is a union shop and everyone is required to join the union? What if a
member in a union shop doesn t want his or her money spent on political causes or dis-
agrees with the positions that the union leaders take on the issues? The U.S. Supreme
Court addressed these questions in Communications Workers v. Beck (487 U.S. 735
[1988]). The court held that a union shop clause requires a bargaining unit member to
become only a financial core union member. This term refers to an individual who
meets the minimum (core) union membership requirement of paying regular union
dues and initiation fees. A union may impose additional lawful conditions for obtaining
full union membership status (e.g., individual must be willing to comply with the
union s constitution and bylaws). Under a union shop provision, an employer does not
always have to honor a union request to discharge an employee who is not a union
member if (1) the employer believes union membership was not offered to the employee
on the same terms as other employees or (2) membership was denied for any reason
other than the failure to tender dues.95

The Beck decision created a group of so-called Beck rights for bargaining unit
employees. These Beck rights cover (1) notices to employees, (2) accounting of funds by

Exhibit 4.14
An Example of a
Union Shop Clause

All present employees who are members of the union of the effective date of the
execution of this Agreement shall remain members of the Union in good standing
as a condition of employment. All present employees who are not members of the
Local Union and all employees who are hired hereafter shall become and remain
members in good standing of the Union as a condition of employment within thirty
(30) calendar days following the beginning of their employment, or within sixty (60)
calendar days following the effective date of this Agreement. An employee who
has failed to acquire, or thereafter maintain, membership in the Union, as herein
provided, shall be terminated seventy-two (72) hours after the Employer has
received written notice from the Principal Officer of the Local Union certifying that
member has been and is continuing to be offered to such employees on the same
basis as all other members, and further that the employee has had notice and an
opportunity to make all dues or initiation fee payments.

178 PART 1 Recognizing Rights and Responsibilities of Unions and Management

unions, and (3) procedure for implementation. Unions are required to notify current
members annually of their Beck rights. For example, this notice requirement may be
met with a notice in the December edition of the union s monthly magazine. Newly hired
employees receive notice at the time the union seeks to have the employees pay dues. An
employee may choose between being a nonmember agency fee payer (a financial core
employee) or a union member in good standing who will become a full union member.
The union is required to maintain an accounting system (subject to audit) that determines
the percentage of employees dues used for collective bargaining purposes (known as charge-
able fees) and those used for other activities not related to collective bargaining (known as
nonchargeable fees). The union notifies employees that those who wish to exercise their Beck
rights must do so annually, and the union then provides a window period (a certain time
period each year) for application for a refund of a portion of dues (nonchargeable fees) for
employees who exercise their Beck rights. In other words, employees who exercise their Beck
rights must file once per year during a specific period designated by the union.96

In addition to appointments to heads of federal agencies, such as the National Labor
Relations Board and other federal agencies, presidents are authorized to issue executive
orders to cover those doing business with the federal government. On February 17, 2001,
then-President George W. Bush issued Executive Order 13201 entitled Notification of
Employee Rights Concerning Payment of Union Dues or Fees.

The Executive Order require federal government contractors to post notices to
employees informing them of their Beck rights. The Executive Order 13201 stated:

If you do not want to pay the portion of dues or fees used to support activities not
related to collective bargaining, contract administration, or grievance adjustment,
you are entitled to an appropriate reduction in your payment. If you believe that
you have been required to pay dues or fees used in part to support activities not
related to collective bargaining, contract administration, or grievance adjustment,
you may be entitled to a refund and to an appropriate reduction in future payment.

On January 2, 2002, the U.S. District Court for the District of Columbia held that the
new rules would regulate a core labor management area that is already regulated by the
National Labor Relations Act and would impose a duty on employers that the National
Labor Relations Act does not impose. Therefore, the Court ruled that the new rules were
preempted by the National Labor Relations Act and were unenforceable. This ruling was
appealed and the Court of Appeals overturned the lower court s decision. Subsequently,
the Labor Department began the regulatory process to implement Executive Order 13201.

On January 30, 2009, President Obama issued Executive Order 13496, which
required federal government contractors and subcontractors to post a notice in the work-
places informing employees of their rights under Federal labor laws (see Exhibit 4.15).
Executive Order 13496 also precludes federal contractors from being reimbursed for
expenses incurred to influence employees decisions to join or form a union or otherwise
engage in protected collective bargaining. Nonreimbursable expenses include preparing
and distributing printed materials, hiring legal and labor consultants, and holding meet-
ings with employees (including paying wages for attending the meetings). Reimbursable
expenses include expenses for maintaining good relations with employees and costs
related to labor-management committee meetings and certain employee publications.

Agency Shop
More commonly found in public-sector labor agreements, an agency shop clause does
not require an employee to join the union but does require the employee to pay the
union a sum equal to membership dues to remain employed. This provision assumes

CHAPTER 4 Unions and Management: Key Participants in the Labor Relations Process 179

that employees should not be forced to join a union but nonetheless should help defray the
bargaining and grievance processing costs. The U.S. Supreme Court has determined that
the minimum legal requirements for union membership imposed by a union or agency
shop clause are essentially the same.97

Before seeking to impose an agency shop provision on a bargaining unit member,
the union must inform the employee of his or her right to become a financial core rather
than full union member.98 Under the agency shop, the union officers are not limited
in the ways bargaining unit employee s dues are spent unless the employee exercises his
or her Beck rights and becomes a financial core member. Then, the union may not
charge a financial core member for the cost of union expenditures which are not related
to collective bargaining, contract administration, or grievance resolution activities.99

Exhibit 4.15
Executive Order 13496:
Notification of Employee
Rights under Federal
Labor Laws

Federal contractors and subcontractors are required to inform employees of their
rights under the National Labor Relations Act (NLRA), the primary law governing rela-
tions between unions and employers in the private sector. See 29 CFR Part 471. The
notice, prescribed in the Department of Labor s regulations, informs employees of
Federal contractors and subcontractors of their rights under the NLRA to organize
and bargain collectively with their employers and to engage in other protected con-
certed activity. Additionally, the notice provides examples of illegal conduct by
employers and unions, and it provides contact information to the National Labor Rela-
tions Board (http://www.nlrb.gov), the agency responsible for enforcing the NLRA.
Federal contractors and subcontractors are required to post the prescribed employee
notice conspicuously in plants and offices where employees covered by the NLRA
perform contract-related activity, including all places where notices to employees are
customarily posted both physically and electronically.

Federal Government contracting departments and agencies must include provi-
sions requiring contractors to post the prescribed notice in every Government con-
tract, except collective bargaining agreements entered into by a Federal agency,
contracts for purchases under the Simplified Acquisition Threshold, and in those
cases where the Secretary exempts a contracting department or agency pursuant
to the Executive Order. Government contractors must also include provisions
requiring posting of the prescribed notice in all subcontracts.

Enforcement responsibilities for the notice requirements are shared by
two Department of Labor agencies. The Office of Federal Contract Compliance
Programs (OFCCP) is responsible for investigation of complaints, compliance
evaluations, and conciliation, and that agency will refer violations to the Office of
Labor-Management Standards (OLMS) for enforcement. The sanctions, penalties,
and remedies for non-compliance with the notice requirements include the suspen-
sion or cancellation of the contract and the debarring of Federal contractors from
future Federal contracts.

The Department of Labor s regulations implement Executive Order (E.O.) 13496
signed by President Barack Obama on January 30, 2009 (74 FR 6107, February 4,
2009). E.O. 13496 advances the Administration s goal of promoting economy and
efficiency of Federal government procurement by ensuring that workers employed in
the private sector and engaged in activity related to the performance of Federal gov-
ernment contracts are informed of their rights to form, join, or assist a union and bar-
gain collectively with their employer. Knowledge of such basic statutory rights
promotes stable labor-management relations, thus reducing costs to the Federal

SOURCE: http://www.dol.gov/olms/regs/compliance/EO13496.htm

180 PART 1 Recognizing Rights and Responsibilities of Unions and Management

A union must notify all financial core members annually of the percentage of
union dues assessments spent on nonchargeable activities, as well as the reasonable
procedure by which the financial core member can object to such expenditures. If the
financial core member objects, the union must reduce the amount of the financial core
member s dues obligation by the percentage amount spent on nonchargeable activities.
A financial core member who disagrees with the union s calculation of chargeable and
nonchargeable expenditures may either appeal the dispute to final and binding arbitra-
tion or file an unfair labor practice charge with the NLRB. Some examples of charge-
able union activities are the costs of conducting contract negotiations, investigating and
resolving grievances, conducting union business meetings, union publications such as
newsletters intended to inform the union s membership about contract issues or griev-
ance disputes, litigation costs incurred in the course of representational activities, social
events or member benefits available to all bargaining unit members, and attendance at
national or state union conventions. The NLRB recently ruled that the cost associated
with union organizing is a chargeable expense as long as the employees being orga-
nized work for an employer in the same competitive markets as bargaining unit mem-
bers already represented by the union.100 Examples of nonchargeable union activities
are the cost of legislative lobbying, union benefits not available to financial core mem-
bers, and charitable contributions such as a donation to the local United Way

The U.S. Supreme Court in another decision also applied Beck guidelines to similar
expenses paid by public-sector employees union dues.101 The Court stated that public
employees did not have to pay the portion of union dues that paid for any union activi-
ties that were not oriented toward the ratification or implementation of the dissenters
collective bargaining agreement. This decision was not clear cut, however, as it indicated,
for example, that dues payments can properly go toward a teacher union s strike prepa-
ration activities even if a strike is illegal under state law. In essence, the Court agreed
with the public-sector union that a strike threat represented a reasonable, albeit illegal,
bargaining tactic in pursuit of legitimate bargaining unit objectives.

Contingency Union Shop
Some labor agreements in right-to-work states (covered in Exhibit 4.16) have a contin-
gency union shop provision stating that the union shop provision would automatically
go into effect if the state s right-to-work law is eliminated. Also, some master labor
agreements (covering multiple plants in several states) have quasi-union shops. These
agreements provide for union shops in plants located in states that allow them, but
exempt plants in states that prohibit union shop clauses. If the right-to-work law is elim-
inated, the union shop clause will already be in the labor agreement.

Union Hiring Hall
According to a union hiring hall provision, employers hire employees referred by the
union if the union can supply a sufficient number of qualified applicants. This provi-
sion is found in about 23 percent of all labor agreements but is much more common in
certain industries such as construction (90 percent) and maritime (88 percent).102

Unions are required to operate hiring halls in a nondiscriminatory manner, making
them equally available to union members and nonunion employees. In reality, most
nonunion individuals do not choose to seek employment through union-operated hir-
ing halls. A hiring hall provision helps to strengthen union security by encouraging
current union members to associate their union more closely with the provision of job

CHAPTER 4 Unions and Management: Key Participants in the Labor Relations Process 181

Preferential Treatment Clause
A negotiated labor agreement provision that indicates current employees who may be
union members will be given employment preference over nonemployees when a new
facility is opened is called a preferential treatment clause. This arrangement was negoti-
ated between the United Auto Workers and General Motors for the Saturn manufactur-
ing plant located in Spring Hill, Tennessee, and was upheld by the NLRB. Such an
arrangement permitted General Motors to take advantage of the skilled labor pool repre-
sented by employees already on the payroll, some of whom were laid off for lack of work
at the time the new plant was seeking to fill employment positions.

Dues Checkoff
A provision commonly used in conjunction with one of the previously cited union security
provisions, a dues checkoff makes the collection of union dues more convenient for both
the union and union members. It is not a union security clause in the strict sense of the
word because it does not guarantee that some or all employees will become union mem-
bers. However, a dues checkoff clause in the labor agreement allows a union member to
have dues automatically taken out of his or her paycheck (similar to any other payroll
deduction) and transferred to the union. In addition to the dues checkoff clause agreed
to by the employer and union in the labor agreement, each individual union member
must sign a separate document authorizing the deduction to be made before any union
dues can be automatically deducted from the employee s paycheck. This provision is
important to the union because it assures the union of an uninterrupted flow of income.
Without a systematic dues deduction, union officers would have to spend a great deal of
time contacting recalcitrant members who kept delaying their dues payments. Why would
an employer agree to a dues checkoff clause? There are several reasons. In many cases, the
employer automatically agrees to this provision agreement contains it. If the union also
secures a union shop clause, then a member may be fined for not paying dues. Employers
do not want to lose good employees; a company may agree to deduct union dues automat-
ically to avoid having to fire a good worker for such a reason. The employer may charge a
reasonable administrative fee to the union for the cost of dues collection and other paper-
work associated with administering this contract provision. In negotiations, astute manage-
ment officials usually bargain for something in return for this provision, such as flexibility
in making work assignments, subcontracting, or writing job descriptions.

Right-to-Work Laws: Controversy and Effects
Employers, some employees, and the courts have long been concerned with union secu-
rity provisions.103 Efforts to have Congress impose a national ban on union security
agreements as part of the LMRA (Taft-Hartley Act) in 1947 were unsuccessful. Congress
believed that providing a reasonable opportunity to achieve union security aided in the
effective representation of employees interests in collective bargaining between their
union representative and the employer. As a political compromise, Congress did enact
Section 14(b) of the LMRA, which states:

Nothing in this Act shall be construed as authorizing the execution or application of
agreements requiring membership in a labor organization as a condition of employ-
ment in any State or Territory in which such execution of application is prohibited by
State or Territorial law.

This section is unique to the United States; there is none similar to it in any other
developed country in the world. Under this provision, a state may initiate legislation

182 PART 1 Recognizing Rights and Responsibilities of Unions and Management

prohibiting union membership as a condition of employment (Exhibit 4.16). Presently
there are 25 states that have passed legislation (so-called right to work laws) that prohi-
bits union security clauses in collective bargaining agreements.104

As noted in Exhibit 4.16, workers in the 19 of the 26 states that allow the parties to
negotiate union shop agreements have average weekly pay greater than the U.S. average;
10 states which do not allow the parties to negotiate union shop agreements, have aver-
age weekly pay above the U.S. ($904) weekly average.

In 2001, Oklahoma became the 22nd right-to-work state. During the political
campaign, proponents of the change argued that Oklahoma would become more com-
petitively positioned to create jobs if the state adopted the labor policies of neighboring
states and argued for liberty, free choice, and individual initiative. Unions promoted the

Exhibit 4.16
Private Sector Average Weekly Pay by State and Right-to-Work Status, 2014

Right-to-Work States Average Weekly Pay Non-Right-to-Work States Average Weekly Pay

Alabama $881 Alaska $1,063

Arizona $926 California $1,209

Arkansas $807 Colorado $1,066

Florida $911 Connecticut $1,278

Georgia $958 Delaware $1,048

Idaho $782 District of Columbia $1,696

Indiana 846 Hawaii $908

Iowa $870 Illinois $1,089

Kansas $855 Kentucky $836

Louisiana $923 Maine $826

Michigan 984 Maryland $1,113

Mississippi $747 Massachusetts $1,315

Nebraska $837 Minnesota $1,024

Nevada $899 Missouri $891

North Carolina $890 Montana $794

North Dakota $1,050 New Hampshire $1,081

Oklahoma $876 New Jersey $1,211

South Carolina $817 New Mexico $850

South Dakota $792 New York $1,321

Tennessee $927 Ohio $922

Texas $1,070 Oregon $928

Utah $872 Pennsylvania $1,013

Virginia $1,057 Rhode Island $1,003

Wisconsin 894 Vermont $882

Wyoming $952 Washington $1,082

West Virginia $868

US Average Weekly Pay: $904

SOURCE: http://www.bls.gov/cew/ (U.S. Bureau of Labor Statistics). June 17, 2015.

CHAPTER 4 Unions and Management: Key Participants in the Labor Relations Process 183

principle of majority rule as essential to workplace democracy and urged allowing parties
to negotiate the union security issue without intervention from the state. Unions also
claimed that the other Sunbelt states offered lower wages, tax relief, and other subsidies
in order to attract jobs.105

Unfortunately, one study found that Oklahoma residents were uninformed or misin-
formed about their rights under the law. Similar results had been found in studies of
residents of Virginia and Idaho.106 Then, again, after the Montana legislature considered
right-to-work legislation, a study of Montana residents revealed that a large percentage of
the residents were uninformed or misinformed about provisions of their labor laws.107

With Republicans having the largest number of state lawmakers since 1920, empha-
sis will be placed on passing right-to-work laws which allows workers to opt out of
joining unions and paying dues, even though the union is required by law to represent
them. In the past three years, three states, Michigan in 2012, Indiana in 2012, and
Wisconsin in 2015, passed right-to-work laws. The states of New Mexico, Maine, and
Missouri considered proposed legislation in 2015.108

Exhibit 4.16

Airline and railway industries are covered under the Railway Labor Act, and Union Security clauses are
allowed to be negotiated by the parties.

184 PART 1 Recognizing Rights and Responsibilities of Unions and Management

Efforts to promote so-called state right-to-work laws are mainly conducted by the
National Right to Work Committee, founded in 1955, whose stated purpose is to protect
an employee s right to determine whether to join a union. Funded principally by
employer contributions, the committee does not regard itself as being against unions
but merely against union security provisions that compel employees to become members.
However, allegedly, the committee s pro-union, antiunion security stance has been
modified to a flat anti-union approach in recent years. A related but separate organiza-
tion, the National Right to Work Legal Defense Foundation provides legal representation
in right-to-work cases.

There has been a long-running debate on the effects of right-to-work laws on wages
and union membership. Because there is no single explanation for wage rates or union
density rates and no cause-and-effect relationship has been identified, one cannot con-
clude that right-to-work laws cause lower wages or low union density rates. However,
Exhibit 4.16, which compares the average pay of employees in right-to-work states with
that of employees in non-right-to-work states, certainly shows a wage disparity in favor
of employees who work in states that allow the union and employers to negotiate and
decide themselves.

There is conflicting academic research on the effects of right-to-work laws on eco-
nomic development. While politicians claim that the presence of right-to-work laws
attract new industries, the facts are unclear. The states which have right-to-work laws
have been able to attract new industries with low taxes, tax credits, aggressive subsidies
from the states and cities, and even lax environmental regulations. Therefore, a single
identifiable factor such as the existence of a right-to-work law is not conclusive as the
attraction of new industry. On the other hand, there is evidence that the existence of
right-to-work laws leads to lower numbers of union members, less bargaining power,
and lower wages to workers.109

More impressive is the comparison of union density rates between right-to-work
states and non-right-to-work states (see Exhibit 4.17). Only five of the 25 (Alabama,
Indiana, Michigan, Iowa, and Wisconsin) right-to-work states have union density rates
above 10 percent, whereas 20 of non-right-to-work states (those states that allow the
union and management to negotiate union security clauses) have union density rates of
10 percent or more.

Arguments for Right to Work Laws
There are at least three primary arguments opposed to union security and in favor of
right-to-work laws. First, union security clauses are considered an illegitimate restriction
on employees free choice. It is argued that employees not only have the right to select a
union of their choice, but also retain the right to refrain from participating in any and all
union activities. Required union membership conflicts with their free choice and the
requirement to join a union and/or pay union dues is undemocratic.

Second, requiring union membership violates the employees constitutional rights of
free speech and association if their union dues are used to support activities not sup-
ported by the nonmembers, such as backing a political candidate. Inherent in the right
of free association is the employees right to choose not to participate in union activities.

Third, required union membership concedes too much power to union officials.
Since employees must pay dues to retain their employment, it is plausible that the

union leaders may disregard the interests of portions of the workforce, such as nonmem-
bers, women, and minorities. Requiring union membership could create a union bureau-
cracy where the officers interest and the member interest collide and irresponsible union
officials use the union s financial resources to achieve their own agenda, rather than meet

CHAPTER 4 Unions and Management: Key Participants in the Labor Relations Process 185

the needs of the membership. Allowing members to vote with their feet and leave the
labor union forces union leaders to be more responsive to their members.110

Arguments for Abolishing Right-to-Work Laws
There are three principal arguments in defense of union security clauses and abolishment
of right-to-work laws. First, union security eliminates free riders those employees
who receive the benefits from the union, but who pay no dues. Since the law requires

Exhibit 4.17
Employees Who Are Union Members and Who Are Represented by Unions by State and Right-to-Work Status, 2014

Employed Right-
to-Work States

Members (%)

by Unions (%)

Work States


by Unions (%)

Alabama 10.8 12.1 Alaska 22.8 24.4

Arizona 5.3 6.7 California 16.3 17.5

Arkansas 4.7 5.4 Colorado 9.5 10.7

Florida 5.7 7.0 Connecticut 14.8 15.7

Georgia 4.3 4.9 Delaware 9.9 11.3

Idaho 5.3 6.7 District of

8.6 10.7

Indiana 10.7 12.0 Hawaii 21.8 22.9

Iowa 10.7 12.6 Illinois 15.1 16.0

Kansas 7.4 9.0 Kentucky 11.0 12.8

Louisiana 5.2 6.4 Maine 11.0 12.5

Michigan 14.5 15.7 Maryland 11.9 13.3

Mississippi 3.7 4.2 Massachusetts 13.7 14.7

Nebraska 7.3 9.0 Minnesota 14.2 15.0

Nevada 14.4 16.4 Missouri 8.4 9.7

North Carolina 1.9 3.2 Montana 12.7 13.8

North Dakota 5.0 6.9 New Hampshire 9.9 11.5

Oklahoma 6.0 7.2 New Jersey 16.5 17.2

South Carolina 2.2 3.2 New Mexico 5.7 7.4

South Dakota 4.9 6.0 New York 24.6 25.8

Tennessee 5.0 5.6 Ohio 12.4 13.9

Texas 4.8 6.2 Oregon 15.6 17.0

Utah 3.7 4.6 Pennsylvania 12.7 13.7

Virginia 4.9 6.2 Rhode Island 15.1 15.8

Wisconsin 11.7 12.5 Vermont 11.1 13.1

Wyoming 6.7 7.5 Washington 16.8 18.4

West Virginia 10.6 11.6

U.S. Average 11.1 12.3

SOURCE: Bureau of Labor Statistics, U.S. Department of Labor, Union Affiliation of Employed Wage and Salary Workers by State, January 23, 2015, at http://stats.

186 PART 1 Recognizing Rights and Responsibilities of Unions and Management

the union to represent all bargaining unit employees (union s fair representation obliga-
tion covered in Chapter 10) and are legally precluded from negotiating superior
employment terms for union members only, it is reasonable that all employees pay
dues to the union for services rendered. Therefore, it is not fair for union members to
pay additional funds to the union to support employees who are free riders.

Second, where a union exists, the union was selected by a majority vote of the bar-
gaining unit. The Union membership makes a democratic decision on union security
clauses, that is, union shop or agency shop clauses are implemented only upon ratifica-
tion of the collective bargaining by a majority of the union members and only after the
union security clause has been agreed to by management. Moreover, if employees are
against bargaining for different forms of union security clauses, Section 9(e) (1) of the
National Labor Relations Act permits employees to conduct a secret ballot de-
authorization election, administered by the National Labor Relations Board, to rescind
the union s right to negotiate a union security clause in the agreement. These de-
authorization elections make up only 2.5 percent of the NLRB elections and unions lose
approximately 60 percent.

Third, union security clause keeps the employers from weakening employees sup-
port for the union because all employees will be paying dues. There will be no incentive
for employers to replace union members with nonmembers who opposed the union.
This allows the democratically elected union to allocate its resources to providing repre-
sentational services to members rather than being forced to defend itself against contin-
uous assaults from the employer.111

Recent U.S. Supreme Court Decision
In June 2014, the U.S. Supreme Court ruled that an agency fee provision in collective bar-
gaining agreement under the Illinois Public Labor Relations Act violated employees free
speech under the first amendment of the U.S. Constitution. The employees involved were
personal assistants (PAs) who provided home care services. Customers controlled most
aspects of the employment relationship, such as hiring, firing, training, supervising, and
disciplining of PAs. The State of Illinois paid their salary. The Court ruled that these
employees were much different from full-fledged public employees and did not enjoy the
rights and benefits of state employees. Illinois law required all PAs to receive the same rate
of pay and unions had no authority with respect to a PAs grievances against a customer.112

This chapter discussed two of the major participants
in the labor relations process: unions and manage-
ment. First, the goals of unions and management
were presented, with emphasis on where the goals
are the same and where they have potential for con-
flict. Companies labor relations strategies, ranging
from union suppression to labor management coop-
eration, were explained.

Union strategic plans, which are at the embryonic
stage in most unions, were discussed, and examples
from the AFL-CIO and CTW were presented. Compa-
nies and unions are structured according to their goals;

typical examples of company labor relations organiza-
tions and organizations at various levels of unions were

The chapter also discussed union governance.
First, general characteristics of craft and industrial
unions were explained. Then, the government and
organizational activities of the local union, the national
or international union, the intermediate bodies, and the
federation (the AFL-CIO) were discussed. Because
unions, like businesses and government, have experi-
enced corruption and misuse of power and authority,
examples of these problems and of steps that have been

CHAPTER 4 Unions and Management: Key Participants in the Labor Relations Process 187

taken to seek a resolution were provided. Unions show
concern for the long-term survival and growth of their
organizations when they attempt to negotiate a union
security provision (e.g., union shop, union hiring hall,
or agency shop) into the labor agreement. However,

certain union security provisions cannot be negotiated
in states having right-to-work laws, permitted under
Section 14(b) of the LMRA. Controversy occurs over
the meaning, morality, and impact on union organiza-
tions of a right-to-work law.

Key Terms
Affiliation, p. 138
Craft unions, p. 155
Industrial unions, p. 155
General unions, p. 155
Business agent, p. 156
Shop steward, p. 157
International union representative,

p. 157
Constitution, p. 159

Convention, p. 160
Master labor agreement, p. 164
Dues check off system, p. 165
Absorptions, p. 166
Amalgamations, p. 166
Conference boards, p. 167
Joint councils, p. 167
Associate membership program, p. 171
Union security clause, p. 177

Closed shop, p. 178
Union shop, p. 178
Financial core union member, p. 178
Full union membership, p. 178
Agency shop, p. 179
Union hiring hall, p. 181
Preferential treatment clause, p. 182
Dues checkoff, p. 182

Discussion Questions

1. Compare the steps companies may take to
implement a positive human resources manage-
ment program with principles of effective

2. Identify the common goals of companies and
unions as opposed to their conflicting goals?

3. Assess the strategic plans of the AFL-CIO and
CTW, and determine whether these plans provide
direction for growth.

4. Locate a local union and a local plant, and draw
an organizational chart for each.

5. Select a craft union and an industrial union. Point
out the characteristics of these two types of unions.

6. Compare the government of the local union with
student governments and municipal governments,
paying special attention to participation by members.

7. Explain why and how national unions presidents
have been able to accumulate so much authority
and power.

8. Differentiate among the business agent of a local
union, a shop steward, and an international union
representative. How do their roles differ?

9. Because the AFL-CIO does not negotiate labor
agreements on behalf of national unions, why is it
claimed to be the spokesperson for organized
labor in the United States?

10. Compare the requirements for union democracy to
any student organization with which you are familiar.

11. Formulate a one- or two-sentence argument for or
against the right-to-work philosophy. Fully
defend your statement from arguments that could
be made against your position.

Exploring the Web

Labor Unions, Mergers, and Union Security

Determine the names of the current leadership, the
mission, the unions in the AFL-CIO, membership
benefits, and summer student programs. Find out

how one who is interested can become a union
member. (http://www.aflcio.org)

2. LaborNet
This is a source for current information about the labor
movement. It is designed to promote a democratic

188 PART 1 Recognizing Rights and Responsibilities of Unions and Management

independent labor movement. Included are references
and handbooks, YouTube videos, a current blog, and
the latest labor news in the United States and links to
other countries. (http://labornet.org)

3. Bureau of Labor Statistics and Current Union
The Bureau of Labor Statistics publishes an annual
report on union membership. Find and read the sum-
mary for the 2015 report to discover more about the
current status of labor unions. What percentage of the
total employees in protective services were members
of labor unions in 2015? (http://www.dol.gov) Look
up the dues, assets, and officer salaries, membership
of U.S. unions in LM-2 Reports.

4. Society for Human Resource Management (SHRM)
As the world s largest association devoted to human
resource management (275,000 members with more

than 575 affiliated chapters), the Web site for this
organization provides resources, global best prac-
tices, and a network of valuable contacts to more
than 5,000 members in over 160 countries. SHRM
has recently opened offices in China and India to
establish a two-way relationship, provide education,
and facilitate the advancement of human resource
management. Anyone interested may sign up for
e-mail alerts on human resource management
topics. (http://www.shrm.org)

5. Union Security and Beck Rights
For information on Union Security and Beck
Rights, go to http://www.NLRB.org. Type in Beck
Rights in Search Key Word ; you will find Guide-
lines for Response to Beck-Related Inquiries and
Advice Response memos.

1. Audrey Freedman, How the 1980s Have Chan-

ged Industrial Relations, Monthly Labor Review,
111, May 1988, pp. 35 39.

2. Joel Cuthcher-Gershenfeld and Saengdow Prasitti-
suk, Beyond Gridlock: Advancing the American
Dream in a Global Knowledge Economy via Dis-
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Policy, Proceedings of the 63rd Annual Meeting of
the Labor and Employment Relations Association,
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3. Martin M. Perline and David J. Poynter, Union
Orientation and Perception of Managerial Prero-
gatives, Labor Law Journal, 40, December 1989,
p. 781.

4. http://hrw.org/english/docs/2007/05/01usdom
1597. Human Rights Watch, 350 Fifth Avenue
34th Floor, New York, NY 10118-3299.

5. Decisions and Order of the National Labor Rela-
tions Board, 347 NLRB No. 109, August 21, 2006.

6. NLRB v. Southern Bakeries, LLC, Case 4-
14-cv04037-SOH Document 41 8/14/14.

7. Alan Balfour, The Unenforceability of the
UAW s Neutrality Pledge from General Motors,
paper presented at the Second Annual Meeting of
the Southern Industrial Relations Association,

8. Charles R. Greer and Stanley A. Martin, Calcu-
lative Strategy Decisions during Organization

Campaigns, Sloan Management Review, 19,
Winter 1978, p. 73.

9. Ibid.
10. William N. Cooke and David G. Meyer,

Structural and Market Predictors of
Corporate Labor Relations Strategies, Industrial
and Labor Relations Review, 43, January 1990,
pp. 280 282.

11. Douglas M. McCabe and David Lewin,
Employee Voice: A Human Resource Manage-

ment Perspective, California Management
Review, 34, Spring 1992, pp. 112 114.

12. Fred K. Foulkes, How Top Nonunion
Companies Manage Employees, Harvard
Business Review, 59, September October 1981,
pp. 121 125.

13. Herbert R. Northrup, Construction Double-
breasted Operations and Pre-Hire Agreements:
Assessing the Issues, Journal of Labor Research,
10, Spring 1989, pp. 219 227.

14. Twenty-First Annual Report of the NLRB
(Washington, D.C.: U.S. Government Printing
Office, 1956), pp. 14 15.

15. David Lewin, Workplace ADR: What s New and
What Matters, Workplace Justice for A Changing
Environment, Proceedings of the 60th Annual
Meeting of the National Academy of Arbitrators.
2008. pp. 1 6.

CHAPTER 4 Unions and Management: Key Participants in the Labor Relations Process 189

16. Audrey Freedman, The New Look in Wage Policy
and Employer Relations (New York: The Confer-
ence Board, Inc., 1985), pp. 16 18.

17. Richard B. Peterson and Douglas M. McCabe,
The Nonunion Grievance System in High Per-

forming Firms, Proceedings of the 1994 Spring
Meeting, Industrial Relations Research Associa-
tion, Paula B. Voos, ed. (Madison, WI: Industrial
Relations Research Association, 1994), p. 529.

18. Douglas M. McCabe, Corporate Nonunion
Grievance Arbitration Systems: A Procedural
Analysis, Labor Law Journal, 40, July 1989,
pp. 432 438.

19. John E. Butler, Gerald Ferris, and Nancy K.
Napier, Strategy and Human Resources Manage-
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pp. 147 158.

20. William N. Cooke and David G. Meyer, Struc-
tural and Market Predictors, Industrial and
Labor Relations Review, 43(2), pp. 280 282.

21. Barbara Haskew, A New Model for Labor-
Management Relations, Tennessee Business,
13(2), 2004, p. 8.

22. Butler, Ferris, Napier, pp. 147 158.
23. Francis A. O Connell, Jr., The Changing Char-

acter of Industrial Relations: Comment, Journal
of Labor Research, 12, Fall 1991, p. 323.

24. Robert T. Thompson, The Changing Character
of Employee Relations, Journal of Labor
Research, 12, Fall 1991, pp. 316 317.

25. Edward E. Lawler III and Susan A. Mohrman,
Unions and the New Management, Academy of

Management Executive, 1(3), 1987, pp. 293 300.
26. Richard N. Block and Peter Berg, Joint Responsi-

bility Unionism: A Multi-Plant Model of Collective
Bargaining Under Employment Security, Indus-
trial & Labor Relations Review, 61, 2009, p. 60.

27. William N. Cooke and David G. Meyer, Struc-
tural and Market Predictors, Industrial and
Labor Relations Review, 43(2), pp. 292 294.

28. John T. Dunlop, The Management of Labor Unions
(Lexington, MA: Lexington Books, 1989), pp. xii 7.

29. Christine L. Scheck and George W. Bohlander,
The Planning Practices of Labor Organizations:

A National Study, Labor Studies Journal, 15,
Winter 1990, pp. 69 84.

30. Harry C. Katz, Rosemary Batt, and Jeffrey H.
Keefe, The Revitalization of the CWA: Integrat-
ing Collective Bargaining, Political Action, and

Organizing, Industrial and Labor Relations
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31. Tracy Fitzpatrick and Weezy Waldsteing, Chal-
lenges to Strategic Planning in International
Unions, Proceedings of the 46th Annual Meeting of
the Industrial Relations Research Association, Paula
B. Voos, ed. (Madison, WI: IRRA, 1994), pp. 73 84.

32. Richard Hurd and Martin Behrens, Structural
Change and Union Transformation, Proceedings
of the 55th Annual Meeting of the Industrial
Relations Research Association, Adrienne E.
Eaton, ed., 2003, pp. 113 121.

33. John T. Dunlop, Have the 1980s Changed U.S.
Industrial Relations? Monthly Labor Review, 111,
May 1988, p. 33.

34. Audrey Freedman, Managing Labor Relations
(New York: The Conference Board, Inc., 1979),
pp. 7 33.

35. Jack Fiorito, Gregor Gall, and Arthur D. Marti-
nez, Activism and Willingness to Help Organiz-
ing: Who Are the Activists? Journal of Labor
Research, 31, Summer 2010, pp. 363 380.

36. Bert Spector, Transformational Leadership: The
New Challenge for U.S. Unions, Human
Resource Management, 26, Spring 1987, pp. 3 11.

37. Alice H. Cook, Union Democracy: Practice and
Ideal (Ithaca, NY: Cornell University, 1963),
pp. 19 26.

38. Victor G. Devinatz, Union Organizing Trends
and the Question of Post-Industrial Unionism in
the Early 21st Century, Labor Law Journal,
59(3), 2008, pp. 265 270.

39. Michael Alexander McCarthy, Why Should the
Business Agents Be Bigger Than the Organiza-
tion? Labor Studies Journal, 35(3), September
2010, pp. 322 342. Also see: http://scholarship.

40. James E. Martin, John Christopher, and John M.
Magenau, A Longitudinal Examination of Union
Steward Behaviors and Behavioral Intentions,
Proceedings of the 46th Annual Meeting of the
Industrial Relations Research Association, In
Paula B. Voos, ed. (Madison, WI: IRRA, 1994),
pp. 422 431; Paul F. Clark, Daniel G. Gallagher,
and Thomas J. Pavlak, Member Commitment in
an American Union: The Role of the Grievance
Procedure, Industrial Relations Journal, 21, 1990,
pp. 147 157.

190 PART 1 Recognizing Rights and Responsibilities of Unions and Management

41. Allan Nash, The Union Steward: Duties, Rights,
and Status (Ithaca, NY: New York State School of
Industrial and Labor Relations, 1977), pp. 20 22.

42. Renaud Paquet and Isabelle Roy, Why Do Peo-
ple Get Involved in Local Union Office? Journal
of Collective Negotiations in the Public Sector,
27(1), 1998, pp. 73 75.

43. Steven L. McShane, A Path Analysis of Partici-
pation in Union Administration, Industrial
Relations, 25, Winter 1986, pp. 72 78.

44. John C. Anderson, Local Union Participation: A
Reexamination, Industrial Relations, 18, Winter
1979, p. 30.

45. John Lund and Don Taylor, Labor Studies Jour-
nal, 35(4), 2010, pp. 566 572.

46. John Lund, Using Surveys to Learn More about
Membership Attitudes, Labor Studies Forum,
4(4), 1991, pp. 1 4.

47. John T. Delaney, Paul Jarley, and Jack Fiorito,
Planning for Change: Determinants of Innova-

tion in U.S. National Unions, Industrial and
Labor Relations Review, 49, July 1996, p. 612.

48. J. Bryan Fuller and Kim Hester, The Effect of
Labor Relations Climate on the Union Participa-
tion Process, Journal of Labor Research, 19,
Winter 1998, pp. 184 185.

49. James E. Martin and John M. Magenau, An
Analysis of Factors Related to the Accuracy of
Steward Predictions of Membership Views,
Labor Law Journal, 35, August 1985, pp. 490 494.

50. Leonard R. Sayles and George Strauss, The
Local Union, rev. ed. (New York: Harcourt,
Brace World, 1967), pp. 96 100.

51. Ibid., pp. 93 105.
52. James E. Martin and Michael P. Sherman, Vot-

ing in an Office Election: Testing a Model in a
Multi-Site Local, Journal of Labor Research,
26(2), 2005, pp. 281 294.

53. Jack Barbash, American Unions (New York:
Random House, 1967), pp. 69 72.

54. The Landrum Griffin Act requires a convention
at least every five years, and some unions, such as
the Teamsters, take the limit of five years.

55. George Strauss, Union Government in the U.S.:
Research Past and Future, Industrial Relations,
16, Winter 1977, p. 234.

56. Barbash, American Unions, pp. 76 80.
57. Marick F. Masters, Robert S. Atkin, and Gary W.

Florkowski, An Analysis of Union Reporting
Requirements Under Title II of the Landrum

Griffin Act, Labor Law Journal, 40, November
1989, pp. 713 722.

58. Susan J. Schurman and Adrienne E. Eaton, Labor
and Workplace Democracy: Past, Present and
Future, Labor Studies Journal, 21, Summer 1996,
p. 8.

59. Shulamit Kahn, Kevin Long, and Donna Kadev,
National Union Leader Performance and Turn-

over in Building Trades, Industrial Relations, 25,
Fall 1986, pp. 276 289.

60. Lawrence French, David A. Gray, and Robert W.
Brobst, Political Structure and Presidential Tenure
in International Unions: A Study of Union
Democracy, paper presented at the annual meet-
ing of the Academy of Management, Detroit,
1980, 16.

61. Phillip L. Quaglieri, The New People of Power:
The Backgrounds and Careers of Top Labor Lea-
ders, Journal of Labor Research, 9, Summer 1988,
pp. 271 283.

62. Jack Fiorito, Lee P. Stepina, Paul Jarley, John
Thomas Delaney, and Mike Knudstrup, Visions
of Success: National Leaders Views on Union
Effectiveness, Labor Studies Journal, 22, Spring
1997, pp. 14 16.

63. Current salaries may be obtained from the Forms
LM-2 Reports by U.S. labor unions, found at
http://www.dol.gov/esa, the home page of the U.S.
Department of Labor.

64. http://www.aflcio.org/corporatewatch/paywatch/.
65. Paul F. Clark, Lois S. Gray, and Paul Whitehead,

Adapting Internal Administrative Practices of
American Unions to External Challenges: A
Longitudinal Study, Proceedings of 63rd Annual
Meeting of the Labor and Employment Relations
Association, 2011, pp. 171 177.

66. Ken Margolies, The Challenge Union Leaders
Face When The Assume the Role of Managers
within a Labor Organization, Proceedings of
63rd Annual Meeting of the Labor and
Employment Relations Association, 2011,
pp. 178 183.

67. Paul F. Clark and Lois S. Gray, Union Adminis-
tration, in The State of Unions, eds. George
Strauss, Daniel G. Gallagher, and Jack Fiorito
(Madison, WI: Industrial Relations Research
Association, 1992), pp. 179 193.

68. Charles W. Hickman, Labor Organizations, Fees
and Dues, Monthly Labor Review, 100, May
1977, pp. 19 24. Also see: http://blogs.wsj.com/

CHAPTER 4 Unions and Management: Key Participants in the Labor Relations Process 191


69. Marick F. Masters, Raymond Gibney, and
Thomas J. Zagenczyk, Workers Pay Protection:
Implications for Labor s Political Spending and
Voice, Industrial Relations, 48, October 2009,
pp. 557 577.

70. Ibid., pp. 117 118.
71. Marick F. Masters and Robert S. Atkin, The

Finances of Major U.S. Unions, Industrial Rela-
tions, 36, October 1997, pp. 502 503. Updated by
LM-2 Reports.

72. Marick F. Masters, Union Wealth: The Bargain-
ing Power, Journal of Labor Research, 18, Winter
1997, pp. 106 107.

73. Gary Chaison, Union Mergers: The New Interest
and Some Old Questions, Employee Responsibil-
ity and Rights Journal, 20, 2010, pp. 149 152.

74. Ibid., pp. 152 156.
75. Kim Moody, The Direction of Union Mergers in

the United States: The Rise of Conglomerate
Unionism, British Journal of Industrial Relations,
December 2009, pp. 676 700.

76. James W. Robinson, Structural Characteristics of
the Independent Union in America Revisited,
Labor Law Journal, 43, September 1992,
pp. 567 575.

77. Sanford M. Jacoby and Anil Verma, Enterprise
Unions in the United States, Industrial Relations,
31, Winter 1992, p. 140.

78. Dana Milbank, Labor Broadens Its Appeal by Set-
ting Up Associations to Lobby and Offer Services,
Wall Street Journal, January 13, 1993, pp. B-1, B-5.

79. Adrienne E. Eaton and Paula B. Voos, Manage-
rial Unionism: Prospects and Forms, Labor
Studies Journal, 29(3), 2004, pp. 25 56.

80. This is the AFL-CIO (Washington, D.C: American
Federation of Labor and Congress of Industrial
Organizations, 1992), pp. 1 10.

81. Jill Kriesky, Structural Change in the AFL-CIO:
A Regional Study of Union Cities Impact, in
Rekindling the Movement: Labor s Quest for Rele-
vance in the 21st Century, eds. Lowell Turner,
Harry C. Katz, and Richard W. Hurd (Ithaca, NY:
ILR Press, 2001), pp. 129 154.

82. Joseph Krislov, The AFL-CIO Effort to Minimize
Union Membership Conflicts: 1962 1987, Labor
Studies Journal, 16, Summer 1991, pp. 3 5.

83. This Is the AFL-CIO, pp. 8 10.

84. John Budd, When Do U.S. Workers First Expe-
rience Unionization? Implications for Revitalizing
the Labor Movement, Industrial Relations,
49(2), 2010, pp. 209 225.

85. David Greenstone, Labor in American Politics
(Chicago: University of Chicago Press, 1977),
pp. xiii xxix.

86. Charles R. Greer, E-Voice: How Information
Technology is Shaping Life within Unions,
Journal of Labor Research, 23(2), 2002, pp. 215
235; Richard Freeman, Can the Internet Help
Unions Rebound? Perspectives on Work, 7(1),
2003, pp. 43 49.

87. Marick F. Masters, Ray Gibney, Thomas J.
Zagenczyk, and Irna Shevchenko, Union Mem-
bers Usage of IT, Industrial Relations, 49(1),
2010, pp. 83 90.

88. Arthur B. Shostak, Today s Unions as Tomor-
row s CyberUnion: Labor Newest Hope, Journal
of Labor Research, 23(2), 2001, pp. 242 243.

89. Marick F. Masters, Ray Gibney, Thomas J.
Zagenczyk, and Iryna Shevchuk, Union Mem-
bers Usage of IT, Industrial Relations, 49(1),
2010, pp. 83 90.

90. Benjamin Weiser, Under New Agreement, U.S.
Will End Oversight of the Teamsters in Five
Years, The New York Times, January 15, 2015,
p. A22.

91. Kris Maher, Oversight of Teamsters to End, The
Wall Street Journal, January 15, 2015, p. A6.

92. Paul F. Clark, Union Image-Building at the Local
Level, Labor Studies Journal, 15, Fall 1990, p. 55.

93. Phillip B. Wilson, Conquering the Enemy
Within: The Case for Reform of the Landrum
Griffin Act, Journal of Labor Research, 26(1),
2005, pp. 135 150.

94. Bureau of National Affairs, Inc., Basic Patterns in
Union Contracts (Washington, D.C: Bureau of
National Affairs, Inc., 1995), p. 97.

95. Billie Ann Brotman and Thomas J. McDonagh,
Union Security Clauses as Viewed by the

National Labor Relations Board, Labor Law
Journal, 37, February 1986, pp. 104 115.

96. Jeff Canfield, Note: What a Sham(e): The Broken
Rights System in the Real World Workplace,
Wayne Law Review, 47, Fall 2001, pp. 1049 1055.

97. NLRB v. General Motors, 373 U.S. 734 (1963);
Retail Clerks International Association Local 1625
AFL-CIO v. Schermerhorn et al., 373 U.S. 746

192 PART 1 Recognizing Rights and Responsibilities of Unions and Management

(1963); and D. Louis Abood et al v. Detroit Board
of Education, 431 U.S. 209 (1977).

98. California Saw and Knife Works, 320 NLRB 224
(1995), enf d. 133 F.3d 1012 (7th Cir. 1998). See
also: Guidelines Concerning Processing of Beck
Cases, Memorandum from the Office of the
General Counsel, August 17, 1998.

99. For further discussion of this issue, see Kenneth
A. Kovach and Peter Millspaugh, Implementing
the Beck and Lehnert Union Security Agreement
Decisions: A Study in Frustration, Business
Horizons, 39, May/June 1995, pp. 57 65; Jan W.
Henkel and Norman J. Wood, Limitations on the
Uses of Union Shop Funds after Ellis: What
Activities Are Germane to Collective Bargaining?
Labor Law Journal, 35, December 1984, pp. 736
746; Peter Florey, Fair Share Proceedings: A Case
for Common Sense, Arbitration Journal, 44,
March 1989, pp. 35 44; David A. Lebowitz,
Limits on the Use of Agency Fees: The Revival of

Communications Workers of America v. Beck,
Employee Relations Law Journal, 18, Winter
1992 1993, pp. 437 461.

100. UFCW, Locals 951, 7, & 1036 (Meijer, Inc.) and
Various Individuals, 329 NLRB No. 69(1999).

101. Lehnert v. Ferris Faculty Association, 500 U.S. 507

102. Bureau of National Affairs, Inc., Basic Patterns in
Union Contracts, p. 99.

103. For further historical insights into the right-
to-work issue, see Gilbert J. Gall, The Politics of
Right to Work (New York: Greenwood Press,
1988); William Canak and Berkeley Miller,
Gumbo Politics: Unions, Business, and Louisiana

Right-to-Work Legislation, Industrial and Labor
Relations Review, 43, January 1990, pp. 258 271.
For a classification system of right-to-work laws
various dimensions and related bibliography, see
Thomas R. Haggard, Union Security and the
Right to Work: A Comprehensive Bibliography,

Journal of Labor Research, 11, Winter 1990,
pp. 81 106.

104. Raymond L. Hogler, The 2008 Defeat of Right to
Work in Colorado: Is It the End of Section
14(b)? Labor Law Journal, 60(1), 2009, p. 5; see also
Raymond L. Hogler, Right to Work and the Col-
orado Labor Peace Act: How Politics Trumped
Policy, Labor Law Journal, 58(2), 2007, pp. 85 95.

105. Raymond L. Hogler and Robert LaJeunesse,
Oklahoma s Right to Work Initiative: Labor

Policy and Political Ideology, Labor Law Journal,
53(2), 2002, pp. 109 113. See also Stan Greer and
Charles W. Baird, Reply to Hogler and LaJeu-
nesse s Oklahoma s Right to Work Initiative:
Labor Policy and Political Ideology, Labor Law
Journal, 54(2), 2003, pp. 89 100.

106. Marc Singer, Knowledge of the Right-to-Work
Law among Residents of the State of Oklahoma,
Journal of Collective Negotiations in the Public
Sector, 31(1), 2006, p. 85 99.

107. Marc G. Singer and Katie L. Valentine, Monta-
na s Right-To-Work Legislation: Do Residents
Know Their Labor Laws? Journal of Collective
Negotiations in the Public Sector, 32(3), 2008,
pp. 189 201.

108. Mark Peters, Opting Out of Unions Gets Boost
in States, The Wall Street Journal, January 18,
2015, p. A3.

109. Raymond L. Hogler, How the Right to Work is
Destroying the American Labor Movement: From
the Ku Klux Klan to the Tea Party, Employee
Responsibilities and Rights Journal, 23, 2011,
pp. 295 304.

110. Victor G. Devinatz, The Continuing Controversy
over Right-to-Work Laws in the Early Twenty-
First Century, Employee Responsibilities and
Rights Journal, 23, 2011.

111. Ibid., pp. 287 293.
112. Harris et. al. v. Quinn, Governor of Illinois, et. al.

Slip Opinion, October Term 2013.

CHAPTER 4 Unions and Management: Key Participants in the Labor Relations Process 193




1 Employee Rights under the Landrum Griffin Act

Paul Sanchez, a member of Local 1 of the Bartenders
Union, speaks Spanish and is not sufficiently bilingual
to understand the English language in either written or
spoken form. Local 1 has 16,500 members, 48 percent
of whom understand Spanish only.

For several years Local 1 has had its collective bar-
gaining agreements, monthly newsletters, and various
notices printed in Spanish to accommodate its Spanish-
speaking members. At meetings held to nominate
union officers and contract ratification meetings,
which occur once every three years, English and Span-
ish translations are provided for the discussion that
takes place. Monthly union meetings are conducted
primarily in English and are attended by 50 75 mem-
bers (less than 1 percent of the union s total member-
ship). Subjects debated during local union meetings
include such topics as union expenditures, salaries of
officers, general complaints with particular employers,
and various other operational matters. Such debate is
commonly referred to as shop talk.

Spanish translation at monthly meetings is pro-
vided whenever union officer nominations take place
or whenever Spanish-speaking members request their
comments or those of others be translated for the ben-
efit of other members attending the meeting. Such
translation duties are typically performed by a bilingual
local union officer, rather than hiring an outside, pro-
fessional translator to be present at each monthly

Paul Sanchez, along with several other employees,
petitioned Local 1 s officers to provide a qualified
translator who was not a member of the union at all
monthly membership meetings. This person would
simultaneously translate all meetings proceedings and
discussion into Spanish and English. The union officers
brought the petition request before the members at the
next monthly meeting. With the union members in
attendance acting as a legislative body in accordance
with the union s constitution and by-laws, Sanchez s
proposal to hire a full-time outside translator for the
monthly meetings was debated and defeated by a
majority vote of those members in attendance. The
majority of the members in attendance felt that the
cost of hiring an outside translator for every monthly
meeting was not justified based on the number of

members who typically attended and the availability
of bilingual union members who could perform the
necessary translation duties upon request.

Union member Sanchez then filed a civil suit in fed-
eral court. Sanchez alleged the union s failure to provide
simultaneous translation at the regular monthly union
meetings by an independent professional translator was
a violation of his equal participation and freedom of
speech rights under Title I of the Landrum Griffin Act.

Relevant Statutory Language Title I, Sec. 101(a),
Landrum Griffin Act

(1) Equal Rights Every member of a labor organi-
zation shall have equal rights and privileges within
such organization to nominate candidates, to vote
in elections or referendums of the labor organiza-
tion, to attend membership meetings, and to partic-
ipate in the deliberations and voting upon the
business of such meetings, subject to reasonable
rules and regulations in such organization s consti-
tution and by-laws.

(2) Freedom of Speech and Assembly Every
member of any labor organization shall have the
right to meet and assemble freely with other mem-
bers; and to express any views, arguments, or opi-
nions; and to express at meetings of the labor
organizations his views, upon candidates in an elec-
tion of the labor organization or upon any business
properly before the meeting, subject to the organiza-
tion s established and reasonable rules pertaining to
the conduct of meetings: Provided, that nothing
herein shall be construed to impair the right of a
labor organization to adopt and enforce reasonable
rules as to the responsibility of every member toward
the organization as an institution and to his refrain-
ing from conduct that would interfere with its per-
formance of its legal or contractual obligations.

Title IV, Section 401(e), Landrum Griffin Act states in
relevant part, In any election a reasonable oppor-
tunity shall be given for the nomination of candidates
and every member in good standing shall be eligible to
be a candidate and to hold office ( subject to reason-
able qualifications uniformly imposed).

194 PART 1 Recognizing Rights and Responsibilities of Unions and Management

1. Did the union violate Title I, Section 101(a) of the

Landrum Griffin Act in this case? If so, what should
be the appropriate remedy?

2. Would it be legal under Title IV of the Landrum
Griffin Act for the union in this case to adopt a rule
that required all candidates for union office to be
proficient in both Spanish and English? Why or why




2 Financial Core Membership Rights under the

Beck Decision

The company and union are parties to a collective bar-
gaining agreement that contains the following valid
union security clause:

It shall be a condition of employment that all
employees of the company covered by this agree-
ment who are members of the union in good stand-
ing on the date of this agreement shall remain
members in good standing, and those who are not
members on the effective date of this agreement
shall, on the ninety-first (91st) day following the
effective date of this agreement, become and remain
members in good standing in the union.

For purposes of this Agreement, an employee shall
lose his good standing in the Union only for failure
to tender periodic dues and initiation fees uniformly
required of all members. The Business Manager of
the Union shall notify the Company by certified
mail of any employees the union deems to have
lost good standing within the meaning of this

On July 6, an employee named Budnik sent a letter
to the union informing the union officers that he was
resigning his union membership and claiming financial
core member status. Budnik requested the union to
begin charging him the new appropriate amount of
dues in compliance with Beck (1988). Budnik did not
pay any dues money to the union after he mailed the
July 6 letter.

On July 28, the company sent a letter to all bar-
gaining unit members informing them that financial
core membership status was available to them and
that full union membership was not a legal require-
ment under the parties current union security contract
language. The union sent a letter to Budnik on or about
August 5 acknowledging receipt of Budnik s resigna-
tion letter. The union informed Budnik that his

insistence on financial core membership status would
result in the loss of valuable membership privileges and
benefits and that, as a financial core member, he would
still be required to pay the financial obligations of mem-
bership germane to the costs of collective bargaining, con-
tract administration, and grievance adjustment. The
union encouraged Budnik to reconsider his decision to
resign his union membership. The union s letter closed
with the disclosure that the union was currently undergo-
ing its annual financial audit and that, when that process
was completed, all the expenses germane to collective bar-
gaining duties would be identified.

The following February 23, the union sent a letter to
Budnik and advised him that, despite his resignation from
the union, he was still required to comply with the terms
of the current union security clause. The union offered to
let Budnik pay a sum equal to current monthly union dues
to a mutually agreed upon charity. The union listed
three charitable funds acceptable to it. Budnik did not
agree to the union s proposal and, instead, quit his job at
the company and filed an unfair labor practice against the
union, alleging a violation of Section 8(b)(1)(A) of the
Labor-Management Relations Act (LMRA). Specifically,
Budnik alleged that the union failed to meet the require-
ments set forth in Beck regarding a union s duty to furnish
information about the amount of dues money spent for
legitimate collective bargaining purposes or to provide a
procedure by which employees like himself could chal-
lenge the amount charged or the basis for calculating such

In Communications Workers v. Beck, 487 U.S. 735
(1988), the Court upheld an interpretation that the
LMRA does not permit a union, over the objection of a
dues-paying nonmember, to expend funds collected
from them under a union security agreement on activ-
ities not related to collective bargaining, contract
administration, or grievance adjustment. In California
Saw & Knife Works, 320 NLRB 222 (1995), the Board

CHAPTER 4 Unions and Management: Key Participants in the Labor Relations Process 195

held that if a nonmember employee chooses to file a
Beck objection to the payment of full union dues, the
employee must be informed by the union of the follow-
ing information: the percentage of the reduction in fees
for objecting nonmembers, the basis for the union s
calculation, and the right to challenge these figures.
Any union-provided procedure for challenging the
amount or method of dues calculation is appropriate
so long as the procedure is not shown to be arbitrary,
discriminatory, or in bad faith.

The union cited the NLRB decision Laborers Local
265 and Fred A. Newmann Co., in which the Board
held that a union did not breach its duty of fair repre-
sentation by failing to provide a Beck objector with
Beck-related financial information, where the union
expressly waived the objector s obligations under the
union security clause and informed the objector that
he would not be required to pay any dues or fees.
The union noted that Budnik is the only employee,
out of the 300 bargaining unit members the union
represents, to request financial core membership status.
The union believed that the cost burden of gathering
Beck-related financial information for use by a single

employee would be prohibitive and detrimental to the
union s obligation to use resources wisely to represent
the bargaining interest of all bargaining unit members.
The union believed that it had offered Budnik a reason-
able accommodation that did not require him to pay
any dues money to the union, thus ensuring that none
of the objecting member s funds would be used for
union expenditures. At the same time, the reasonable
accommodation offered by the union avoided the
necessity of spending union funds to gather Beck-
related financial information for only one employee.
The union requested that the unfair labor practice
charge be dismissed.

1. What are the union s legal obligations?
2. Does Budnik have a burden of proof? Or, does the

union have the burden to prove that it has complied
with the law?

3. Did the union commit an Unfair Labor Practice in
this case? If so, what should be the appropriate

196 PART 1 Recognizing Rights and Responsibilities of Unions and Management


Why and How Unions Are Organized

I JUST RECEIVED another message on my office desktop
computer from Jane Morgan that she had posted a message on
Facebook. Since we are Facebook friends, Jane sends me a lot of
interesting and helpful information. Jane and I have been friends
for 15 years and have worked together for at least that long.

I went to Jane s Facebook posting and it had the following
message: We need more pay. We need a pension plan and
health insurance. And we don t want to be fired at the whim
of our supervisors. Let s all meet at the community center at
7:00 P.M. tonight and hear what the union folks have to
offer. I noticed that 25 of our 75 employees had already
clicked on Like and several have added comments.

I have worked in a unionized plant before. We had a good
pension plan, good health insurance, and job protection through
the grievance and arbitration procedure. Then the plant closed
and the jobs went to Mexico. I certainly believe in what Jane
and the others are doing, but I don t know whether I should
click Like and be identified by Management as one of
Jane s supporters. I surely don t know what protection I have
if I click Like and/or make a comment supporting Jane and
the others.

1. What are my options? Evaluate the consequences of each


2. Should I respond on my personal IPhone or on my office
desktop computer?

3. What are my legal rights?

4. What legal protections will I have if I click on Like, make a
comment, or attend the meeting?


This chapter focuses on the essential elements of unionization: why unions are formed,the procedures for organizing employees into unions, new union strategies for
obtaining union recognition, and union decertification.

This chapter attempts to identify the many factors that are involved in the forma-
tion of unions Employees have choices: (1) whether to become involved in union for-
mation where there is no union and (2) whether to vote for or against union
representation if and when there is a representation election. Although an employee s
choices to assist in the formation of a union, to vote for a union, and to join a union
are highly interrelated, they are separate decisions. Employees may join unions volun-
tarily or be required to join. The circumstances in which an employee may be required
to join a union were covered in Chapter 4. Employees who vote for union representa-
tion in an election in which the union does not receive a majority vote are nevertheless
left without union representation. However, they may be interested in becoming an
associate member.

Why Unions Are Formed

Unions are not present in every organization; in many instances, employees have chosen
to remain nonunion. This section provides explanations of why a group of employees
collectively may choose to form a union. The following section explains what motivates
employees at a particular facility to vote for a union.

Work and Job Conditions

Alienation Theory
The alienation theory is based on the belief that employees might seek collective action
to relieve their feelings of alienation. Employees feel alienated from their work because of
the following reasons:1

They lost contact with their own labor when the products they created were taken
away from them; thereby they cannot take pride in their work.
They lost involvement in their work when the machine dominated, separating the
work of the hand from the work of the brain.
They became estranged from fellow employees when their work made them so tired
and competitive that they were incapable of having authentic relationships.

As a result, employees might become aware of their common plight, and class con-
sciousness could compel them to join together in a union or to engage in collective
activities to improve their working situation. Unions can and do address a possible
aspect of employee alienation, namely the employees desire to speak their minds with-
out fear of management reprisal. In other words, intertwined with the motives
for union membership is the almost universal desire to tell the boss to go to hell. 2

A union typically indicates to its potential members that the employees rights to
voice their opinions on a managerial action are protected by negotiated grievance pro-
cedures and disciplinary policies (see Chapters 10 and 12).

Unions provide employees a voice which gives them an alternative to quitting their
jobs and leaving their employer if they are not satisfied with their jobs. It is difficult to
find new jobs in today s economy, and it is costly for management to hire and train new
employees. Lower employee turnover which is associated with union membership bene-
fits not only the employees but also management.3

198 PART 1 Recognizing Rights and Responsibilities of Unions and Management

Employees might be dissatisfied with some aspect of their jobs while not being alien-
ated from their work. Some research has shown that employees might join unions if they
(1) are dissatisfied with physical characteristics of the workplace, low wages, or lack of
benefits and (2) believe that a union will help them achieve the job-related conditions
important to them.4

Employees who are not satisfied with their pay, supervision, and/or work may view
the union as the instrument to satisfy their job needs. Some researchers have argued that
job dissatisfaction is the initiator of employees efforts to start a union formation cam-
paign. They argue that job dissatisfaction sets in motion a search to end the uncomfort-
able dissonance between what is desired (good pay, effective supervision, etc.) and what
they are experiencing. Job dissatisfaction results in the formation of a coalition of
employees designed to bring about changes in economic and working conditions.5

Employees who are less satisfied with the companies for which they work have
greater desire to join a union. There is a negative relationship between work attitudes,
such as company commitment, and desire to join a union.6

In a nationwide survey, workers voiced approval of unions and a majority said they
definitely or probably would vote in favor of union representation in their workplace.
Union members were more likely to receive benefits at their job, such as health insur-
ance and paid time and a half for overtime than nonunion workers.7

Scarcity Consciousness Theory The Need for Job Security
In his classic book A Theory of the Labor Movement, Selig Perlman theorized that
employees are attracted to unions because unions will protect their jobs. Many employ-
ees, particularly manual workers, strongly believe they live in a country of limited oppor-
tunity and become scarcity conscious the employees collectively believe that jobs are
difficult to obtain and retain. This belief is particularly true today for some industries,
such as auto, steel, coal, and the public sector. Thus, employees turn to unions for job

Unions therefore are attractive to the many employees concerned about job security,
regardless of their skill or occupational level. Few employees, including white-collar
employees and managers, are currently immune from the possibility of a layoff. Also,
unions do offer several ways of strengthening employees job security. For example, a
union can negotiate work rules which prescribe procedures for performing a job, thereby
ensuring that a certain number of employees will be assigned work. Unions can negotiate
apprenticeship programs, which ensure that eligible employees are trained available for
certain skilled jobs, or negotiate seniority and layoff provisions, which require the com-
pany to lay off employees in order of their seniority (most senior laid off last) and to
recall the most senior employees first. A union can negotiate grievance procedures,
which include a final step of arbitration to protect them against unjust discharges, unfair
treatment, and violations of the labor agreement. Unions can also lobby for legislation
protecting employees job rights in regard to such issues as plant closings and employ-
ment discrimination. Legislation or administrative policies can restrict employer access
to cheap labor, strengthen job security by pressing for restrictions for example, foreign
citizens, child labor, and prison labor; impose quotas or restrictions against imported
products such as steel, automobiles, and textiles; and provide adjustment assistance to
employees who are displaced as a result of free trade agreements.

Wheeler Model of Union Formation
Hoyt Wheeler has provided a theoretical model for union formation that entails a two-
stage process. The first stage consists of the worker s readiness to take some form of

CHAPTER 5 Why and How Unions Are Organized 199

aggressive action; the second stage represents that worker coming together with other
workers as a group and deciding to take some form of collective action. A single
employee usually begins to move toward unionization when he or she experiences feel-
ings of deprivation about pay, security, and/or respect. The individual employee s
thought process can be viewed as taking the individual along one or more possible
paths toward readiness to take some form of aggressive action to demonstrate anger
with the employer. The employee may take the path toward collective action and sup-
porting the union under certain conditions.

Deprivation at work may occur when there is a gap between what employees expect
from their work and what they actually receive in return. Three paths connect depriva-
tion and readiness to take action. The first path is a threat or an attack, which results
when the employer takes away or threatens to take away something the workers already
have. The second path is frustration, which results when workers try to act on their
own behalf, their action is blocked or ignored, and they feel they have no voice and see
no way of achieving effective voice as individuals. The third path is rational calculation,
a path by which, rather than show anger, the workers become convinced that the bene-
fits of unionization outweigh the costs.

Even though workers may mobilize along one of these paths, they may not choose
unionization. Instead, they may choose some form of withdrawal, such as quitting their
job, or revenge behavior, such as sabotaging the company s products. The conditions that
promote collective action or unionization are love, hope, and saliency. Love is essentially
the cohesion and solidarity wherein workers care enough for each other to act together
and share good relationships. Hope prevails when workers believe that the union can do
what is necessary to bring an end to their deprivation and frustrations. Saliency is recog-
nition that problems exist and workers perceive that dramatic events and good leader-
ship would contribute to facilitating action toward resolution.

Along with each of these conditions, which promote the union option, there are
inhibiting conditions. One such condition is the fear of punishment for supporting the
union, such as being fired from one s job or being laid off. Another is the general belief
that unions are wrong in principle. Either of these beliefs may dissuade a worker or a
group of workers from taking action. The interaction of the workers beliefs, their chosen
paths, and the existing conditions may determine whether a group of workers pursue
collective action and unionization.9

Employees Backgrounds and Needs
Employees previous experiences with unions can strongly affect their attitudes toward
unions and their decision to join a union. Eighty-seven percent of those who have had
experience with unions, usually as members, said they would vote for a union if given a
choice; of those who have had no experience with unions, only 27 percent indicated they
would vote for the union if given the choice.10

Many employees are influenced by parental attitudes and family experiences with
unions. One active union member stated, I attended union meetings with my father
before I was ever inside a church. Another commented, My dad was a great union
man and that s where I got it if it wasn t union, it wasn t no good. 11 Of course, paren-
tal comments about unions may be unfavorable as well.

Unions, like all formal organizations, potentially satisfy the members needs by pro-
viding a means of enhancing a sense of identity and maintaining self-esteem. Thus,
unions can appeal to three interrelated social needs of members: the need for affiliation,
or belonging; the need for status; and the need to belong to something purposeful, useful,
and creative that is on a higher level than improved wages and working conditions.

200 PART 1 Recognizing Rights and Responsibilities of Unions and Management

Feelings about unions are a dominant predictor of union voting intent; those who
have positive feelings toward unions typically intend to vote for forming a union.
Those who have negative feelings toward unions tend to vote against forming a
union. Researchers suggest that unions should spend their time and resources on iden-
tifying what causes a nonunion employee to feel negatively or positively about unions
and take steps to rectify the causes that make a nonunion employee feel negatively
toward unions.12

The union s possible benefit of social affiliation is strengthened or weakened by the
degree of prestige or self-esteem it offers its members. Some employees join a union for
the same reason they would join any social organization, namely, to enjoy the responsi-
bility and status associated with being a member of that organization. This feature can be
particularly attractive to employees whose jobs are basically interchangeable and carry
few elements of prestige or room for advancement.

Employees who become union officers can often attain prestige or self-esteem in
their dealings with management officials:

As a shop steward or union officer or member of the grievance committee, a worker
can become a fellow your buddies look to. Such positions give him the opportunity
to win other workers approval by being a fellow who stands up to the boss with
impunity. The role of a fellow who stands up to the boss is made more significant
because the definition of the boss has been enlarged to include not merely the foreman
but the head office in Pittsburgh. He can win prestige as a guy that gets results in
such matters as the distribution of work, assignment to jobs, seniority policy, and pro-
tection from discrimination.13

Chapter 10 discusses the notion that union officers and management officials are
equals in their day-to-day administration of the labor agreement. However, as the pre-
ceding quotation suggests, the union steward can often emphatically disagree with a
management official six levels above the steward on the organizational chart. This ability
to challenge without fear of reprisal is not afforded nonunion employees or even man-
agement officials when they deal with their organizational superiors.

Studies of employee characteristics associated with employee votes have been mixed.
Some have shown that characteristics such as age, gender, and education are not closely
associated with favorable union votes or attitudes.14 Race appears to be the one
exception several studies have suggested that more black employees have positive atti-
tudes toward potential union advantages than their white counterparts.15 Other studies
indicate that young people are more likely to support unions and women are less likely
to support unions.16

Influences on Employees Votes for and against Unions
In forming and joining a union, employees mainly consider whether they believe the
union will improve their personal situations in terms of wages and benefits, promotional
opportunities, and job security. Can the employees expect to satisfy their job-related
goals and needs by supporting a union? Will the union provide the means for achieving
these goals? If employees perceive that a union will help them attain their goals, they will
likely support the union organizing campaign, vote for it in a representation election,
and support its activities afterward. If they are not convinced, they will not get involved,
vote for the union, or support its activities.

The union s campaign to secure employee support may contribute to a union vote,
especially among those who are familiar with the union s positions and who attend
union campaign meetings. Employees who are satisfied with working conditions are

CHAPTER 5 Why and How Unions Are Organized 201

less likely to attend union campaign meetings, but if they ever attend the meetings, they
often feel more favorably toward the union.

The company s campaign can affect the vote because it affects employees belief in
the anticipated influence of the union. If the company campaigns hard, some employees
will believe that the employer has seen the light and will now improve conditions with-
out the union. A strong anti-union campaign may convince some employees that the
employer is so anti-union that the union cannot improve working conditions.17

Although there may be many reasons why a particular group of employees votes for
or against the union in a specific election, several influences have been identified that
affect employee votes generally. Exhibit 5.1 shows the relationships among the general
influences on employees.

Researchers have argued that social pressure influences employee votes. When employ-
ees know a number of union supporters within a work group, this knowledge helps to form
group cohesion. When this group of employees is regularly blocked by employer actions,
they respond as a group, and their actions can lead to union formation. As union suppor-
ters, they are better able to convince others that the union has the power to bring about
changes in the workplace and are more convincing in influencing other employees votes.

General beliefs about unions mean that an employee believes, for example, that a
union will improve wages, benefits, and working conditions; provide a return to the
employee for the dues paid; and secure pro-employee legislation. On the other hand,
these general beliefs also include whether an employee believes unions are autocratic,
increase the risks of a plant closing, stifle individual initiatives, or ignore the members in
strike decisions. To influence employees positive general beliefs about unions, union orga-
nizers must put more effort into national campaigns, such as the Union Yes campaign of
the American Federation of Labor-Congress of Industrial Organizations (AFL-CIO).

Specific beliefs about unions are more related to an individual s job and workplace.
To influence employees specific beliefs about unions, union organizers must focus atten-
tion on communicating the union s unique characteristics and its impact at the work
place. Specific beliefs that can be focused on include expectations about improvement
in pay, benefits, and job security that should result from unionization.18 Other beliefs
include expected improvement in recognition, job advancement, worker participation,
treatment by supervisors, and reduction in sexual and racial discrimination on the job.

Exhibit 5.1
Influences on Employees on Whether to Vote for or against a Union

202 PART 1 Recognizing Rights and Responsibilities of Unions and Management

In an organizing campaign, unions must show employees that significant positive
results will occur at their workplace if they vote for and join a union. Unions must pro-
mote the union s ability not only to improve wages and benefits but to help make work
more meaningful and increase employee participation. At the same time, the employer
will attempt to show that it has acted reasonably toward employees and has been fair
and sincere in dealings with employees.19

Social pressure, job dissatisfaction, and general and specific beliefs about unions
interact with union instrumentality, which is the employees perception of whether the
union will be effective in attaining desired outcomes, such as higher wages, improved
working conditions, job security, and protection from arbitrary treatment by manage-
ment.20 In general, if these interactions are positive, the employee will vote for the
union;21 if not, the employee will not vote for the union. For the individual employee,
any one of the influences may cause the employee to vote a certain way. For example,
if an employee believes his or her supervisor is considerate and supportive, this belief
may be enough to cause the employee to vote against union representation.22

Finally, an individual s decision on whether to vote for union representation depends
on his or her subjective assessment of the benefits to be obtained as weighed against the sub-
jective assessment of the costs. These costs include the direct costs of union dues as well as
possible indirect costs, such as managerial retaliation against individual union supporters,
plant closure, or simply the hassles of a more bureaucratic workplace. If the expected ben-
efits are higher than the costs, the employee will vote for the union. Otherwise, the employ-
ee s vote will be to remain without union representation. If employees have a good chance of
promotion, can expect a higher wage based on their present level of effort, and are pleased
with their supervisor, they probably will vote to remain without representation.

The Union s Challenge of Organizing the Diverse Workforce
Unions recognize that some occupations, such as retail sales, registered nursing, security
services, janitorial services, and food services, are expected to expand in numbers. In
addition, one-fourth of all workers in the United States are part-time employees; these
employees are hired on a temporary basis (referred to by many as contingent workers ),
are independent contractors, and are hired as subcontractors or leased workers. As noted
earlier, minorities and skilled employees will also become a larger percentage of the work
force. In fact, currently, over one-fourth of the work force are minorities, and the great-
est percentage increases has come from the Hispanic and Asian populations. Unions
must design organizing strategies to attract these employees.23

Organizing Professional Employees
Professional employees provide a challenge to unions and an opportunity to increase
union membership. Unions have already made significant inroads in many professions,
such as acting, professional sports, writing, music, health care, and teaching; however,
the debate continues over the compatibility of unionism with professionalism. Unions
must address this compatibility issue if they will be able to increase the memberships of
professional employee unions. On one side is the argument that the selection of a union
entails the rejection of key professional values, such as collegial participation in organi-
zational decision making, professional independence, and a merit-based performance
and reward system. On the other side is the argument that collective bargaining is often
the most effective method of achieving and maintaining these same professional values.24

Consider, for example, nurses, who tend to base their vote in a union representation
election on the degree to which they believe the union can give them a greater voice in

CHAPTER 5 Why and How Unions Are Organized 203

how patient care is delivered. Nurses unions increasingly focus on strategies to use col-
lective bargaining to address the core challenges that acute-care hospitals face. Approxi-
mately 75 percent of the nurses in one survey reported that both their working
conditions and the quality of nursing care had declined in recent years. In this same
study, 34 percent of the nurses reported that they felt exhausted and discouraged upon
leaving work; 34 percent were discouraged and saddened by what they could not provide
their patients; and 29 percent felt powerless to affect change.

Nurses recognize that they can use their collective power to make their voices heard
and be recognized as a full partner with other professionals, such as doctors and phar-
macists, in the American health care system. Nurses have willingly assumed the role of
patient advocate to ensure quality care. When a hospital cuts costs by reducing the num-
ber of nurses, it employs, understaffing becomes a problem. In response, a nurses union
has negotiated staffing levels to assure adequate staffing to enhance patient care. Nurses
unions have negotiated restrictions on mandatory overtime, except during emergency
situations, to ensure that nurses are adequately rested to provide the necessary patient
care. They have negotiated provisions that prohibit nurse assignments to areas of the
hospital in which the nurses are not trained or experienced. Also, nurses unions have
negotiated consultative/cooperative arrangements in which the nurses have a voice in
decisions involving patient care, such as forming professional practice committees or
patient care committees in hospitals.25

Professional employees provide a fertile ground for increased unionization because
professional employment has been growing rapidly. A survey of 2,014 members of the
American Pharmacists Association revealed that general beliefs about unions have a
stronger direct effect on union voting intentions among professionals than specific
beliefs. An example of a general belief is, Unions improve wages and working condi-
tions of workers, and an example of a specific belief is My job security will improve if
my workplace becomes unionized. Among non-professional employees, both general
and specific beliefs are important in predicting how an individual will vote in a union
election; however, specific beliefs have a stronger effect. In addition, the researchers
found that co-worker support among professionals had a large impact on union voting
behavior. This supports the notion that unions must focus their organizing efforts on
cultivating support among incumbent employees and developing a stronger positive
presence within a profession (such as the union s involvement in the leadership and gov-
ernance in the profession and the union actively advocating for the profession).26

Evidence drawn from a study of collective bargaining agreements covering profes-
sional employees reveals that the overwhelming majority of contract provisions include
subjects quite similar to those traditionally included in industrial sector agreements.
These provisions include wages, fringe benefits, grievance arbitration procedures, and
so on. In addition to these traditional subjects, these professionals collective bargaining
agreements also address professional issues. These issues can be categorized into six
groups: (1) professional standards, (2) mechanisms for professional participation in pol-
icy making, (3) regulation of professional work, (4) training and professional develop-
ment, (5) commitment of organizational resources to professional goals, and (6) criteria
for personnel decisions and the role of professionals in making these decisions. The
study showed that although there is variation in the collective bargaining agreements
among professional employee unions, unionism and professionalism are not inherently
incompatible. Moreover, professional values and interests can be incorporated into the
bargaining process along with the economic and job security issues of professional
employees. With concrete evidence of compatibility between professionalism and union-
ism, the opportunity is present for unions to promote their services.27

204 PART 1 Recognizing Rights and Responsibilities of Unions and Management

Mary Kay Henry, a graduate of Michigan State University and the recently elected
president of the Service Employees International Union (SEIU, which has approximately
2 million members), has vowed to turn the SEIU into even more of an organizing and
political powerhouse and plans to increase membership by 150,000 per year. The SEIU
plans to spend $250 million a year on organizing activities and expand membership to
3 million by 2020.28

Activities of the Union in Organizing Employees
Employees initial interest in unionization is usually based on their present dissatisfaction
with some work-related situation coupled with a belief that each employee acting alone
cannot change the current situation. The union does not create this dissatisfaction with
working conditions among employees; instead, it is in the union s interest to improve job
satisfaction among employees by negotiating to improve working conditions. Therefore,
during an organizing campaign, the union advertises the benefits that would flow from a
negotiated collective bargaining agreement and successful handling of grievances.29

Most managers of nonunion companies incorrectly believe that labor unions initiate
union organization drives; instead it is usually the employees themselves who begin the
process by contacting the union. This contact with union organizers usually occurs fol-
lowing the emergence of employees belief that there is sufficient support for the union
and that the union s expertise and representation will help them.30

Union organizers enter the campaign by playing three general roles that influence
employees decisions on whether to vote for unionization. First, organizers try to educate
the workers on the benefits of the union, labor movement traditions, and protections
afforded by union representation and the present laws. Next, union organizers attempt
to persuade workers to vote for unionization and respond to statements and allegations
made by management during the organizing campaign. Third, organizers try to support
workers in their individual and collective actions.31 To ensure that these roles are carried
out capably, unions recruit and select union organizers with the appropriate education,
competencies, and personality characteristics.

Today, unions, especially those in the service industries, are hiring union organi-
zers who have different characteristics from traditional union organizers in
manufacturing. Service union organizers are almost 15 years younger on average, ten
times more likely to be female, average almost 4 more years of higher education, and
have an average of about 7 fewer years of union-organizing experience. They are six
times less likely to have held elected positions in local unions and are less than half as
likely to have served in appointed positions in local or national unions. Although
nearly all of the union organizers in manufacturing were rank-and-file members
early in their careers, only about half of the union organizers in the service industries
were rank-and-file members.32

Union organizers must recognize that the workforce has changed significantly and
has become more complex. Employees do not typically have a homogeneous set of pro-
blems. As well, the growth industry sectors and occupations are different from those that
were traditional strongholds for unions, such as manufacturing, mining, trucking, ship-
ping, railroads, and construction. As a result, the selection of staff members to work as
union organizers has changed. Instead of appointing staff members based upon political
rewards, unions are selecting organizers not only from the rank-and-file members but
also from colleges, law schools, Volunteers in Service to America (Americorps, VISTA),
and other sources. Unions are then investing funds in training union organizers at the
AFL-CIO s George Meany Center and improving their organizing capability through
training at the AFL-CIO s Organizing Institute (see Exhibit 5.2).33

CHAPTER 5 Why and How Unions Are Organized 205

The union organizer assists in convincing employees that they can achieve more
job-related benefits through collective action than by each individual s attempts to
improve his/her job situation, they tailor the organizing approach to employee concerns
and problems and focuses on the special needs of various groups, such as older workers,
female or minority workers, or white-collar workers. The organizer tries to sell the idea
that group action via the union provides the instrument through which employee con-
cerns and dissatisfaction can be most effectively addressed.34

When a union organizer considers when and where to commit time and resources
in organizing a group of unrepresented workers at a particular location, the union orga-
nizer tries to anticipate the voting propensities of the workers. For example, workers who
hold bad jobs which are defined by low pay, poor job quality, and arbitrary employer
practices are usually more receptive to unionization. Other factors which are considered
include the absence of job autonomy, presence of high levels of teamwork, especially self-
directed teams, presence of high levels of coercion, stress, work fatigue, job insecurity,
and low levels of task complexity and influence, and absence of contingent pay systems
and less than 40 hours of work per week.35

Exhibit 5.2
AFL-CIO Organizing Institute
Informational Flier

About the Organizing Institute

The Organizing Institute s (OI s) mission is to develop and promote the craft
of organizing. Founded in 1989, the Organizing Institute highlights the importance
of organizing within the labor movement. We recruit and train new organizers; col-
laborate across the labor movement with community allies; and share successful
approaches to support organizing and strategic campaigns.

Three-Day Training for New Organizers: Our first three-day training was
launched in November 1989. Twenty-five years and hundreds of trainings later,
thousands of alumni of the OI three-day union staff and members alike are orga-
nizing, advocating and leading the fight for social change in unions and allied organi-
zations. Check out our current training schedule.

Apprentice Program: Following the three-day training, the OI assists qualified
applicants with field placement in organizing campaigns underway among affiliate
unions. Trainees sharpen their one-on-one communication skills with help from a
lead organizer and mentoring from OI staff. Successful graduates of this paid intern-
ship are in high-demand for entry-level union and community organizing jobs. Click
here to apply.

Union Summer: This six-to-eight week summer internship offers students
and others interested in social justice on-the-ground campaign experience while
on summer break from school or work. Field work is matched with orientation
and training, so participants emerge with a broad understanding of issues facing
America s working families.

Advanced Organizer Training: The OI advanced organizing workshop supports
experienced organizers who are taking on large-scale and long-term organizing, non-
collective bargaining environments, engagement with immigrant workers and other
key organizing challenges.

National Organizing Workshop: In March 2015, the OI is bringing together
the best organizers from all over the country to talk shop and dream big. We ll look
forward, together, as we build a dynamic movement that wins real victories for
workers and communities. Sign up here (http://www.organizinginstitute.org/#!/contact)
for updates about this can t-miss event for working-class organizers.

SOURCE: http://www.aflcio.org/Get-Involved/Become-a-Union-Organizer/Organizing-Institute/About-the-Organizing-Institute

206 PART 1 Recognizing Rights and Responsibilities of Unions and Management

Union organizers need to focus on the interests of the potential union members and
determine what the union can provide to meet the needs of potential members and pro-
vide an incentive for them to support and vote for the union. Researchers have found that
union members feel positive about the union s ability to improve working conditions and
job security. Also, workers who have been exposed to unions and unionized workplaces
hold a more positive view of unions. Women who are not yet union members hold a pos-
itive view of the union s ability to secure job security for their members. As a general rule,
women have been more exposed to various forms of workplace discrimination. This dis-
crimination creates a greater need for different kinds of protection which can be provided
by the union. Union organizers should incorporate these interests and views into their
strategies in attempting to gain the right to represent these employees.36

The influence of union organizers should never be underestimated by a company.
The union organizers may be first seen distributing handbills to employees as they
leave the company parking lots. Union organizers dress like the target employee group
so that the employees will identify with them. Although their dress may be misleading,
management should realize that union organizers are professionals. Like their counter-
parts in management, contemporary union organizers must understand the psychology
of the workplace and the labor relations climate in which employees work. Union orga-
nizers must be able to (1) sort out these complex factors for the employees on a group or
individual basis and (2) communicate in the employees language how the union can
assist in fulfilling their needs in the specific work environment.

As an example, Exhibit 5.3 lists a number of work-related concerns and pro-
blems. To the right of each is a possible course of action the union could take to
satisfy the concern or to alleviate the problem. The union organizer would bring to

Exhibit 5.3
Union Strategy and Courses
of Action to Achieve
Employee Goals and
Resolve Job-Related

Examples of Work-Related Pro-
blems and Employee Concerns

Actions by Unions to Encourage
Employees to Join Union

Relations between employees and
management are poor.

Union will represent the interests of
employees to management.

Employees do not trust their employ-
er s promises.

Union will negotiate a contract requiring
management to abide by its agreements.

Employees prefer to deal with man-
agement as a group.

Union provides an opportunity for individual
employees to deal as a group with the

Employees want to have more influ-
ence in workplace decisions.

Union provides a mechanism for influence
by collective bargaining and administering
the agreement.

Employees feel that productivity
improvement would be more effective
if employees had more say in how
programs are run.

Union provides a mechanism in which
employees can provide input into those
issues that affect the workplace.

Employees question the effectiveness
of the company s system for resolving
employee problems and grievances.

Unions typically negotiate a grievance pro-
cedure that provides representation for
employees at each step and hearings
before an outside, neutral arbitrator.

SOURCE: Richard B. Freeman and Joel Rogers, Worker Representation and Participation Survey (Princeton, NJ: Princeton Survey
Research Associates, 1994).

CHAPTER 5 Why and How Unions Are Organized 207

the employees attention outcomes that could result from such activities by the union
on their behalf.

The union enters the organizing campaign knowing that it must convince the
uncommitted employees that the union is composed not of outsiders but of concerned
fellow employees, that the changes the union proposes are worth fighting for, that the
union will be able to protect employees against reprisals, and that union officials can be
trusted. The union realizes that its success depends on the development of a strong
inside organizing committee to convey the message directly to employees who do not
attend union meetings, and on the ability of the union organizer to convey his or her
own personal commitment and concern, get to know the employees, listen to employees
about their job concerns, and have employees themselves speak at public meetings to
express their feelings and their commitment to the cause.

Researcher Kate Bronfenbrenner has identified union campaign tactics characterized
as the rank-and-file intensive strategy, which yields a higher union win rate than other
tactics. This strategy focuses on representative leadership, personal contact, dignity and
justice, and building an active union presence in the workplace. This strategy generates
the worker participation and commitment necessary to withstand aggressive employer
anti-union campaigns and to counteract any anti-union aspects of the economic, politi-
cal, and legal climate. The components of the strategy are associated with union win
rates, which are 12 to 26 percent higher than win rates for unions that do not employ
this strategy (Exhibit 5.4).37

With Elizabeth Shuler, the youngest AFL-CIO secretary-treasurer ever and first
female secretary-treasurer ever, taking the lead, unions are emphasizing organizing
young workers between the ages of 18 to 34. A report from AFL-CIO s Working
America found these young workers are worse off than young workers 10 years ago
were. The report found that while it is hard for young people to find any job, it is
even harder to find a good job. Only 31 percent make enough money to pay their
bills and put some money aside in savings; this is 33 percentage points fewer than in
1999. Twenty-four percent make less than they need to cover their monthly bills, and
31 percent have no health insurance, up from 24 percent in 1999. Only 47 percent
have retirement plans at work, down from 53 percent 10 years ago. Nearly 40 percent

Exhibit 5.4
Components of Rank-
and-File Intensive Strategy
That Are Associated with
Higher Union Win Rates

1. Use of representative committees to be more in touch with concerns of the bar-
gaining unit as a whole, to have better access to employees at the work place,
and to demonstrate to the employees that the union is a democratic and inclu-
sive organization

2. Person-to-person contact, house calls, and small-group meetings
3. Conducting union bargaining surveys, selection of the bargaining committee, and

working with rank and file to develop proposals before election
4. Focus on issues, such as dignity, justice, discrimination, fairness, or service quality
5. Serious commitment of staff and financial resources to organizing, involvement

of the international in union local campaigns, and training, recruitment, and effec-
tive utilization of rank-and-file volunteers from already organized bargaining units

6. Use of solidarity days (designated days to wear union buttons, hats, T-shirts, arm
bands, etc.)

SOURCE: Kate Bronfenbrenner, The Role of Union Strategies in NLRB Elections, Industrial and Labor Relations Review,
50 (January 1997), pp. 195 211; Kate Bronfenbrenner and Tom Juravich, It Takes More Than House Calls: Organizing to
Win with a Comprehensive Union-Building Strategy, Organizing to Win, Kate Bronfenbrenner et al. eds. (Ithaca, NY: Cornell
University Press, 1999), pp. 33 34.

208 PART 1 Recognizing Rights and Responsibilities of Unions and Management

have put off further education or professional training, and over a third of the youn-
ger workers are living at home with their parents because they can t make it finan-
cially on their own.38

Activities of the Company in Union Organizing
Many employers, preferring the flexibility of remaining nonunion, resist efforts of a
labor union to organize the employees. The employer realizes that the keys to its suc-
cess in remaining nonunion are twofold: First, uncertainty and change are naturally
stressful for workers; employers often try to magnify employees natural concerns
about how the workplace might change if they unionize. Second, employers attempt
to convince employees that the employer s past record shows that it deserves their sup-
port or at least a second chance.

Positive human resource management practices, such as job enrichment/enlarge-
ment, internal promotions, learning opportunities, bonus and merit pay, and employee
involvement programs, seem to reduce nonunion workers desire to vote for a union
in a representation election.39 The employer enters the campaign with three advantages:
(1) It has instant and prolonged access to the employees; (2) although it can make no
promises of higher wages and benefits during the election campaign, it is able to inform
employees of the possibility of improvement without any cost to them and without the
creation of a new bureaucracy; and (3) it can take advantage of the fact that most people
find the thought of substantial change in their lives frightening.40

Employers presently have favorable positions during the pre-election campaign.
Not only do employers control employees jobs and their livelihoods, but they may
also require employees to attend meetings on the job wherein the employer talks
about employer employee relations. Unions are denied equal access to employees.
Employers may commit an unfair labor practice by firing an employee for engaging
in union activities. If they do, the remedial process of the NLRB often takes years.
Unfortunately, some employers view breaking the law (and any associated costs with
that) as simply a price to pay to say union free. 41

Employer campaign tactics attempt to persuade employees to vote against
unionization. Usually more than one campaign activity must be used. The most
commonly used employer tactics are hiring a labor lawyer or consultant, spreading
rumors about loss of jobs, and spreading rumors about store or plant closings. In
terms of making a difference in the outcome of the election, employees are more
likely not to choose the union when the employer spreads rumors about a store or
plant closing. On the other hand, employees are more likely to choose the union
when the employer intentionally delays the election and when the unions work
closely with community leaders to facilitate acceptance of the union by citizens in
the community. Two employer tactics that have backfired and are associated with
employees vote for the union are shifting work and jobs to other facilities and test-
ing applicants to identify union sympathizers.42

Employers frequently use the second chance strategy. When the employer s past
record has not been good for employees and problems clearly exist, the second chance
strategy encourages the employer to admit that conditions could have been better and
request employees to give the employer a second chance to do better. Often, employees
are inclined to give management another chance when management indicates that it is
listening. This is a one-time-use only strategy. If the employees vote no union and
the employer does not make necessary changes, then another election will probably fol-
low after 12 months and the second time employees won t be as responsive to manage-
ment s message.

CHAPTER 5 Why and How Unions Are Organized 209

Other employer practices may affect the outcome of the election. For example, the
employer can influence the election outcome by changing the election unit composi-
tion and the date of the election. They may influence the election outcome modestly
by such activities as publicizing the disadvantages of the union, displaying posters,
and making campaign speeches. Companies must be cautious in election campaigns
because they may overdo their resistance and cause a negative reaction from employ-
ees, especially when both attorneys and management consultants are used.43 For exam-
ple, in one election, union organizers said things like, The owners would rather pay a
consultant tens of thousands of dollars than pay you a decent wage! Thus, overreac-
tion to a union s campaign with vigorous tactics may create a more favorable climate
for unionization.44

The use of consultants in organizational campaigns has increased dramatically. One
study reports that most elections are directed by consultants. In these campaigns, consul-
tants advise employers how to persuade employees not to vote for a union. According to
this research, almost all companies actively resist the union by making captive audience
speeches (employer speeches to employees on the job) and writing letters to employees.
Employer unfair labor practices were committed in over half of these elections.45 Use of
consultants to advise employers how to persuade employees not to vote for a union
requires reports to be filed with the secretary of labor, even though the consultants usu-
ally have no direct contact with employees.46

Attorneys who specialize in union avoidance campaigns are often employed either
to offer advice on questions of labor law or to devise strategy and conduct the union
avoidance campaign. In addition, attorneys may interview supervisors to identify
sources of employee discontent and to ameliorate the discontent that led to the orga-
nizing campaign; raise the perceived costs of union representation by such tactics as
publicizing possible major layoffs and closings at unionized plants; train supervisors
in how to effectively present the employer s position to the employees; prepare and
edit campaign literature and speeches for company officials; and build support and
sympathy for the employer in the local community. An inexpensive campaign in a
small to medium-sized firm with one attorney could cost up to $30,000 in legal fees.
An all-out campaign with several attorneys using the latest campaign tools, such as
slick DVDs and visits by prominent politicians and civil rights leaders, could easily
exceed $100,000. The cost of a campaign in a large, multi-plant firm involving a
dozen attorneys could exceed $1 million. These costs are incurred at the rate up to
$400 per hour for attorneys from specialized labor law firms ($500 per hour or more
for prominent attorneys from specialized labor law firms).47

A leading management lawyer who promoted his ability to keep unions out of the
workplace has an interesting approach when a union wins the right to represent employees
in an election he encourages management to use Surface Bargaining, where the company
goes through the motions of negotiating a contract but actually has no intention of reach-

ing an agreement. Management negotiators keep the first collective bargaining agreement
from being negotiated by making only small concessions and using delay tactics. He suggests
that while management delays bargaining, union support will eventually wane. Then, after
the first year passes, a decertification election can take place.48

Illegal discharges and other forms of discrimination against union activists, used by
employers to affect the outcome of the election, have increased dramatically in the past
several years. Such discrimination reduces the probability of an organizing success by 17
percent and cuts nearly in half the likelihood of a first contract being obtained. Nearly all
these illegal activities occur during an organizing drive, just before an election, or

210 PART 1 Recognizing Rights and Responsibilities of Unions and Management

during the first contract negotiations. Such violations generally occur when employers
perceive the financial gains of keeping unions out are far greater than the cost of back-
pay awards and reinstatement of union advocates, and such is often the case. One study
reported that less than half of illegally discharged workers were offered reinstatement,
and only 69 percent of those ever returned to work. Because it takes so long to adjudi-
cate a case, and reinstatement comes so long after the organizing drive, some employers
have been able to frustrate the legal process and use it against the union and employees
interested in the union.49

One way in which some employers deny employees their legal rights is through
worker misclassification, for example, classifying employees as independent contrac-

tors, self-employed, or leased workers. By this worker misclassification, the employer
not only denies employees their legal rights, such as the right to form and join a
union, but the employer does not pay its share of Social Security and Medicare obliga-
tions, unemployment compensation, or state worker insurance. A representative of
the Mason Contractors Association of America estimated that the worker misclassifi-
cation reduces labor costs by as much as 30 percent; however, law abiding companies
have to make up the difference and are placed at a competitive disadvantage. A Coop-
ers and Lybrand study estimated that worker misclassifications cost the federal gov-
ernment nearly $35 billion in lost taxes; other studies estimate between $3 and
$4 billion per year. An Ohio attorney general s report revealed that worker misclassi-
fications cost the state $30 million in payments for unemployment compensation,
$103 million in workers compensation premiums, and over $36 million in forgone
state income tax revenue.50

In a 2014 decision, the NLRB ruled that it would consider the following factors in
determining whether one is an employee or an independent contractor and indicated
that no single factor was determinative:

(a) The extent of control which, by the agreement, the master may exercise over the
details of the work.

(b) Whether or not the one employed is engaged in a distinct occupation or business.
(c) The kind of occupation, which reference to whether, in the locality, the work is usu-

ally done under the direction of the employer or by a specialist without supervision.
(d) The skill required in the particular occupation.
(e) Whether the employer or the workman supplies the instrumentalities, tools, and the

place of work for the person doing the work.
(f) The length of time for which the person is employed.
(g) The method of payment, whether by the time or by the job.
(h) Whether or not the work is part of the regular business of the employer.
(i) Whether or not the parties believe they are creating the relation of master and

(j) Whether the principal is or is not in the business.51

Two relevant questions are: How do employers reconcile their personal ethics
when either they or their representatives knowingly commit illegal practices by dis-
charging an employee or a group of employees for exercising their legal right to sup-
port a union? Moreover, why does the U.S. Congress continue to tolerate such an
imbalance in the legal procedures governing the exercise of statutory rights that have
existed in the United States since 1935? In an effort to make employees aware of their
rights under the NLRA, the NLRB requires federal contractors to post a notice of
employee rights under the NLRA.

CHAPTER 5 Why and How Unions Are Organized 211

Unintended Consequences of Anti-union Behavior
Fear among employees of reprisal for disclosing interest in the union in the work envi-
ronment can make fear a central experience for the nonunion employees even though
they have not disclosed their interest in union representation. This concealment has
the potential of causing a sense of anxiety that comes with living with this conceal-
ment. A work environment wherein employees experience this fear of reprisal for dis-
closing an interest in unions becomes a stressful work environment which can be
detrimental to the health of employees. These stress effects of employees who are asso-
ciated with fear in the workplace can extend to cardiovascular disorders, for example,
hypertension, to musculoskeletal disorders, for example, chronic fatigue, to gastroen-
terological disorders, for example, ulcers and to psychological disorders, for example,
clinical depression. As a result, the costs incurred by employers of keeping the unions
out may result in the untended consequences of employers paying for higher health
care expenses for the employees.52

Methods for Organizing Unions
The three basic ways for organizing unions are: (1) voluntary recognition, (2) NLRB
directives, and (3) secret-ballot elections (Exhibit 5.5).

Voluntary Recognition
By far the simplest and least confrontational path to union recognition is voluntary
employer recognition often based on union authorization cards (see Exhibit 5.6). Gener-
ally, a union officer approaches a management official and asserts that a majority of the
employees in a particular bargaining unit have signed cards authorizing the union to be
their bargaining representative. The union officer typically does not show the individual
signed cards to the manager, to prevent retaliation. If the manager agrees to voluntarily
recognize the union, a neutral third party will often compare the cards against the names
of employees in that department to verify that a majority of employees want a union.
This is called a Card Check Procedure.

Why do managers agree to voluntarily recognize unions? There are several possi-
ble motives. First, they may feel that fighting the union is futile. If an organizer claims
that an overwhelming majority (say, 89 percent) of the workers signed cards, manage-
ment may feel that even if they decide to try to persuade the workers to remain non-
union, a majority will continue to support the union. Second, they may feel that they
may get a better deal in future contract negotiation if they appear conciliatory and
accept the workers decision to unionize. Third, the union may have a reputation for
violence and the managers may feel too intimidated to resist. Fourth, managers may
have heard that a different, more militant union is trying to organize the workers,
and it comes as a relief to find a more moderate and reasonable union claims to have
a majority support; recognizing the moderate union may forestall dealing with the mil-
itant alternative.

For employers who have some unionized facilities and other nonunion facilities,
neutrality agreements are often used in conjunction with card check procedures. A neu-
trality agreement is basically a joint memorandum between the union and management
where management agrees not to oppose unionization efforts in its nonunion facilities.
Technically, the employer remains neutral while employees who are union supporters
contend with employees who oppose unionization on both sides seek to persuade unde-
cided workers. The reality is that supporters usually have their international union sup-
plying professionally developed campaign literature and DVSs, while opponents must

212 PART 1 Recognizing Rights and Responsibilities of Unions and Management

Exhibit 5.5
Basic Union Representation Procedures

CHAPTER 5 Why and How Unions Are Organized 213

rely upon home-made materials. Not surprisingly, unions win more representation
elections when a neutrality agreements in place.

Several unions, particularly the SEIU and UNITE/HERE, have been successful in
organizing tens of thousands of employees under these neutrality/card check agree-
ments. To summarize, these agreements require the employer to take a neutral posi-
tion on whether or not employees chose a union and to allow signatures on union
authorization cards to count as a vote for the union. The current agreements between
the Big Three automakers and the UAW contain provisions for employer neutrality
and card check. With such success, opposition groups, such the National Right to
Work Committee and other groups, are challenging these agreements in court and
before the NLRB.53

In December 2010, the NLRB found that Dana, an auto parts manufacturer, and the
United Auto Workers had not violated labor laws when they agreed to certain grounds
by which the union would be recognized if a majority of employees signed cards in favor
of union representation and by creating a framework for any future collective bargaining
agreements. The agreement between Dana and the UAW stated:

We both believe that membership in a union is a matter of personal choice and
acknowledge that if a majority of employees wish to be represented by a union,
Dana will recognize that choice.

The parties also agreed that any labor agreements that resulted from the agreement
would be at least four years long and would incorporate team-based approaches, keep
health care costs at competitive levels, and allow for mandatory overtime when necessary.54

Exhibit 5.6
Example of a Union Authorization Card

SOURCE: Courtesy of the United Food and Commercial Workers International Union.

214 PART 1 Recognizing Rights and Responsibilities of Unions and Management

Proponents of the card check procedure argue that it substantially diminishes the
employer s opportunity for coercive campaigning and reduces conflict between the par-
ties, thereby leading to more positive labor relations. Opponents emphasize that peer
pressure makes it difficult for employees to express their genuine feelings about the
union. In addition, opponents say card checks are subject to misinterpretation of the
card s meaning, even outright forgery of worker signatures. They argue that without a
campaign, workers hear only one side and are thereby insufficiently informed. A study
of NLRB elections by Getman and associates reports that approximately 75 percent of
the people who sign cards actually vote for the union. This suggests that while cards
are a reasonable surrogate for ballots, they are not perfect, and perhaps a higher thresh-
old than 50 percent should be used (mathematically, it would be 67 percent) if cards are
to be true indicators of a majority support for unionization.

Research that included interviews from workers in 48 union campaigns revealed the

Pressure on workers from employers to oppose unionization was significantly
greater than pressure from co-workers or union organizers to support unions in
both card check campaigns and NLRB elections.
There was a reduction of labor law violations by employers under the card check
Ninety-four percent of the workers who signed cards in the presence of union
organizers did not report feeling pressured into signing the cards.
There was reduced flow of information under the card check procedure; however,
workers who did not feel they had sufficient information did not sign the cards,
which is essentially voting no union.
Card check procedures reduced intimidation and other pressures on workers who
were faced with the unionization decision.55

Neutrality agreements typically contain language stating that the employer will nei-
ther help nor hinder a union s organizing efforts, will not communicate opposition to the
union, will not refer to the union as a third party, will not attack or demean the union
or its representatives, and other similar provisions. The language in card check agree-
ments typically calls for a third-party neutral to validate the cards to determine whether
a majority of the bargaining unit employees want the union to represent them. Most of
these agreements allow union access to the physical property of the employer and set
limits on the union s behavior, most commonly not to attack management. In over 90
percent of the agreements, some form of dispute resolution, most frequently arbitration,
is set up to resolve alleged violations or disputes that may occur during the term of the
agreement. An example of a dispute is disagreement over the composition of the bar-
gaining unit and eligibility of employees to sign union authorization cards.

Most employers still refuse to voluntarily recognize a union even when union orga-
nizers present signed authorization cards (see Exhibit 5.6) from a majority of employees.
Management might be concerned that these cards were obtained through inappropriate
means (e.g., after drinking parties, under threats of violence, or through forgeries).
Employers also realize that authorization cards are not always accurate predictors of
union success in representation elections.

If a union is voluntarily recognized, its status as bargaining representative cannot be
challenged during reasonable period for bargaining (not less than six months and not
more than one year). Although the Board did not directly address the legality of
employer neutrality or card check agreements, the new rule potentially alters how and
when employers or unions may choose to enter neutrality and card check agreements.56

CHAPTER 5 Why and How Unions Are Organized 215

Since 1966, if an employer voluntarily recognized the union based on a card check
agreement, the recognition bar applied. Any filing for decertification by a group of employees
or a rival union during the year after the recognition would have been untimely. In addition,
the one year time limit could be extended for up to three years if and when the parties nego-
tiated and included such agreements in their collective bargaining agreement.57

In an interesting chain of events which actually ended in the voluntary recognition
of two groups of employees (even after the union did not receive a majority of the votes
in favor of the union), Volkswagen recognized the UAW as well as an independent
employee group. See the Labor Relations in Action on the above.

NLRB Directive
In rare and very controversial cases, the NLRB may direct the employer to recognize and
bargain with the union. Although the NLRB considers secret-ballot elections superior, it

Volkswagen and the United Auto Workers Chattanooga, Tennessee

2008 Volkswagen announced its intention of building a
$1 billion (with $577 of local, state and federal govern-
ment incentives) assembly plant in Chattanooga, Ten-
nessee. The plant was projected to employ 2,000
workers and produce 150,000 cars per year. Volkswa-
gen has over 100 plants worldwide; the Chattanooga
plant is the only one which is nonunion.

2011 The first Passat rolls off the assembly line.
January 27, 2014 the UAW and Volkswagen

signed an agreement to have the NLRB conduct a
representation election of the production and mainte-
nance employees at the Chattanooga TN plant.

February 19, 2014 the Volkswagen workers voted
712 to 626 against union representation. UAW presi-
dent Bob King blamed the defeat on the outside inter-
ference from U.S. Senator Bob Corker, formerly Mayor
of the City of Chattanooga and Tennessee Governor Bill
Haslam. Both Corker and Haslam predicted that unioniz-
ing the plant would hurt the state s economy and Corker
warned that VW would move production of its new mid-
sized SUV to Mexico. It was reported that the adminis-
tration of Governor Bill Haslam offered VW $300 mil-
lion in incentives to expand in Chattanooga as long as
the UAW was not part of the picture.

October 2014 A group called the American Council
of Employees began competing with the UAW to serve
as the voice of workers with Volkswagen management.

November 19, 2014 VW s Juergen Stumpf, a mem-
ber of VW s global works council, is quoted as saying
his colleagues back in Germany were puzzled about
what had happened in Chattanooga with the fierce politics
surrounding unionization, it was hard to understand …
I would understand it being in North Korea.

December 2014 Volkswagen management announ-
ced that an audit showed that at least 45 percent of the

workers supported the UAW. Under the Volkswagen Com-
munity Organization Engagement policy, VW stated it has
recognized the UAW as the collective bargaining agent for
the 1,500 workers at the plant and would hold bi-weekly
and monthly meetings to talk about issues.

January 2015 Tennessee Senate Speaker Pro
Tempore Bo Watson was quoted as criticizing VW s
support for the UAW and saying that VW conducted a
labor campaign that s unfair, unbalanced and quite
frankly un-American.

February 2015 Volkswagen announced that it
had recognized the American Council of Employees
(ACE), an independent employee council which repre-
sents hourly and salaried employees, and will meet
with them to discuss safety, productivity, efficiency,
and other areas of concern. Sean Moss, interim ACE
president, announced that its next step was to develop
a works council similar to the German Model of
employee representation which exists at other VW s

November, 2015 Volkwagen objected to a request
from a small group of maintenance workers at its Chatta-
nooga plant to hold a vote on representation by the
United Auto Workers. The Volkswagen instead re-
quested a full vote by all maintenance and production
employees at the plant. The Company remains neutral
in regards to our employees rights to representation
and an election, but the company believes that the main-
tenance-only unit requested in the petition is not consis-
tent with its One Team approach.

SOURCES: Lydia DePillis, The Strange Case of the Anti-Union Union at Volkswagen s
Plant in Tennessee, Washington Post, November 19, 2014; http://www.wsj.com/arti-
cles/uaw-to-begin-bargaining-for-volkswagen-plant-in-tennessee-1418143882?; http://


has discretionary authority to use alternative means to determine the majority interests
of employees. In the landmark Gissel case, the NLRB decided (and the Supreme Court
agreed) that a company may be ordered to recognize and bargain with a union under
the following conditions:

1. Evidence reveals that a fair, impartial election would be impossible because of seri-
ous or numerous employer unfair labor practices.

2. Wording on the authorization cards is clear and unambiguous (Exhibit 5.6).
3. Employee signatures on the cards were obtained without threat or coercion.
4. A majority of employees in the bargaining unit had indicated their interest in

having the union represent them by signing the authorization cards.58 (Card sig-
natures are valid for 12 months unless voluntarily withdrawn by the employee
who signed the card prior to a union s use of that card as evidence of employee

In essence, the NLRB and the courts sometimes conclude that an employer has com-
mitted flagrant and usually numerous violations of the law. In such situations, the
employer has typically intimidated workers with the LMRA violations. Holding another
election in these situations is not a realistic remedy because the workers will not vote
their true desires. Under such conditions, the next best alternative for measuring
union support is the workers willingness to sign union authorization cards (occurring
before the campaign period and typically occurring before many of the flagrant viola-
tions). Thus, in these instances, if a majority of the workers signed union authorization
cards, the NLRB will forgo ordering an election and instead order the union to be certi-
fied and management to negotiate with that union.

NLRB does not issue Gissel bargaining orders frequently. During a ten-year span
from 1987 to 1996, the NLRB issued an average of ten per year. Then, if appealed by
the company to the U.S. Circuit Court of Appeals, only about 50 percent of the bar-
gaining orders were enforced.59 (The NLRB does not currently keep records on Gissel

An analysis of NLRB opinions issued since 1969 reveals a measure of predictability
in deciding whether the NLRB will issue a Gissel bargaining order. The NLRB is more
likely to issue a Gissel bargaining order:

When it believes that an employer s illegal acts are deliberate or calculated.
If the employer s conduct threatens the employees economic interests.
If the employer s actions are characterized as vengeful and the NLRB does not
believe the actions can be remedied without a bargaining order.
When the employer engages in a series of unfair labor practices rather than a single

An NLRB-ordered bargaining order has little value without federal judicial enforce-
ment (see Chapter 3) through the U.S. Circuit Courts of Appeals, which tend to rely on a
case-by-case analysis. Before enforcing the NLRB s bargaining order, the courts require
the NLRB to provide a reasoned explanation of why a rerun election would be futile.
In general, if an employer s unfair labor practices seem reprehensible or egregious, the
courts will be more likely to enforce the NLRB s bargaining order. For example, if a com-
pany takes unlawful actions, such as terminating employees because of their union activ-
ities or making threats about the consequences of unionization, the courts will likely
enforce the bargaining order.60 Threats of an actual plant closing to deny employees an
opportunity to exercise their Section 7 rights is also considered a serious unfair labor
practice which could justify a Gissel doctrine bargaining order from the NLRB.

CHAPTER 5 Why and How Unions Are Organized 217

NLRB Secret Ballot Election
Pre-NLRB-Election Union Campaigns. The union pre-election campaign is not simply
a process of exchanging letters and handbills and then holding an election. The cam-
paign usually goes through several stages:61

1. Contacting employees as a result of either employee requests for help or distribu-
tion of union literature (handbilling) at the workplace by the union.

2. Determining interests by calling meetings, visiting homes, and counting responses to
handbills. (See the previous Labor Relations in Action feature for an array of
responses received by union organizers who were seeking support from employees.)

3. Setting up an organizing committee by identifying leaders and educating them
about the benefits and procedures of the union, the law, and the issues likely to
be raised by management.

4. Building interests by soliciting signatures on authorization cards (see Exhibit 5.6 on
p. 214). (Most organizers will wait to announce that the union represents a majority
until over 50 percent, and usually 60 to 80 percent, have signed cards.)

During this time the union discovers and highlights employees problems, compares
wages at their facility to wages at unionized facilities, and explains the role of the union
in helping to satisfy job-related needs. In other words, the union will attempt to convince
workers that they need a union and then that they should sign union authorization cards
and support the forthcoming organizing campaign by wearing union buttons, attending
meetings, and signing up members. Although various means are available to gain sup-
port, research indicates that one-to-one contact; peer contact and persuasion; and high
quality, professionally designed written communications are most effective.62 Other
efforts used by unions include television and radio advertising, hotline telephone num-
bers, group meetings, and handbilling.

Organizing new locals is costly. Evidence shows that the cost of each additional
union member is about $600.63 These costs include direct, out-of-pocket expenditures
for such items as the printing and mailing of leaflets and other literature, rent for office

Objections to Joining the Union

Why should I join the union when I get exactly the
same wages and benefits without joining?

I can t afford to join. I ve got a family to support,
and my check just isn t big enough [to cover union

I don t believe in unions. They are too strong and
powerful now to suit me.

I don t need a union. My employer is fair and will
take care of me. What could the union get for me that I
wouldn t have gotten anyway?

My husband (or other relative) doesn t like

The union does not do anything for you [grie-
vances are not settled satisfactorily]. I don t like the peo-
ple who are running things in the union.

I can handle my own affairs. I can take care of
myself. I ll make my own decisions. I do not intend to
stay on this job forever; I m looking for a promotion.

My religion doesn t permit me to belong to any
outside organizations.

My boss doesn t believe in unions. I ve seen what
happens to union members.

I don t want anything to do with unions. They are
all corrupt.

I don t know enough about the local or the union

I m not interested. I just don t want to join. I ll
think about it. Maybe I ll join someday.

SOURCE: Organizing Committee, AFSCME Council 24, WSEU, 5 Odana Court, Madison,


space, salaries for staff hired, and legal fees. These efforts take time from the union staff
that could have been devoted to providing services to present union members (handling
grievances, arbitration, and negotiations).

The costs of organizing new members must be compared with the returns:

Extra compensation made possible by increased bargaining power
Additional dues and fees paid by new members
Enhanced political influence
Social benefits and satisfaction derived from extending membership to others64

Companies often learn of union-organizing attempts from supervisors or rank-
and-file employees and through observing handbilling at the work site before they receive
official notification (by letter or telegram) from the union demanding recognition. Some
companies react vigorously, whereas others do little to acknowledge any union s attempt
to organize the employees. Some employers tell their employees about their opposition
and urge them not to sign union authorization cards. Because the cards may specifically
state that the signee wants union representation, any employee signature assists the
union in establishing itself within the company. See the Labor Relations in Action feature
on page 220 for typical employer messages during a union campaign.

Filing a Petition for the Election. Before 1935, to obtain recognition, the union usually
had to show its strength and employee interest in representation by such actions as strikes.
The Wagner Act and the NLRB changed this situation by developing procedures and guide-
lines for peacefully determining the majority interests of employees through representation
elections or some other comparable demonstration. The NLRB procedure is initiated when
the potential bargaining representative for the employees files a petition for an election.

The NLRB is authorized to conduct a representation election only when a valid petition
has been filed by an employee, a group of employees, an individual or labor organization, or
an employer. Usually the petition is filed by the union after it has requested union recogni-
tion from the employer and the request is denied. The petition must be supported by evi-
dence (usually authorization cards) that a substantial interest in union representation (at
least 30 percent of the anticipated bargaining unit) exists. An employer cannot petition for
an election until the union seeks recognition. If the employer could, it would petition at the
time when the union s support was weakest. After receiving a petition, the NLRB will first
determine whether it has jurisdiction and the petition is valid. If so, it will promptly notify
the company and request a listing of employees. Companies are not required to submit this
list but usually comply with the request as an act of good faith. Next, the NLRB will arrange
a conference with the company and union to discuss the possibility of a consent election.
Here, if both sides agree to the appropriate bargaining unit, voter eligibility, ballot; and date,
time, and place for the election, a consent election will be held. If either party refuses to
agree on any one of these items, a formal hearing to settle these matters will be conducted.

Election Investigation and Hearing. In the event that the union and management offi-
cials cannot agree to a consent election, the NLRB will investigate the petition and hold a
hearing. If it finds that there is substantial interest in union representation, the NLRB
will. direct an election (directed elections) This investigation will secure answers to the
following questions:

1. What is the anticipated appropriate bargaining unit?
2. Does substantial interest in representation (30 percent) exist among employees in

the unit?
3. Are there any barriers to an election in the form of existing unions, prior elections,

or current labor agreements?

CHAPTER 5 Why and How Unions Are Organized 219

The formal hearing permits both parties to present evidence on issues in dispute, for
example, composition of the bargaining unit, date of election, voter eligibility, and so on.
Based on the evidence presented, the NLRB regional director will issue a directed elec-
tion order which includes his or her decision on disputed issues at the hearing and prior
voluntary agreements between the parties about other election issues.

Appropriate Bargaining Unit. An appropriate bargaining unit is a grouping of jobs or
positions in which two or more employees share common employment interests and
conditions (community of interests) and which may reasonably be grouped together for
collective bargaining purposes. Determination of an appropriate bargaining unit is left to
the discretion of the NLRB, which decides in each representation case how employee
rights can best be protected under the act. The Board s decision has, however, been lim-
ited by law in several ways. The statute includes the following:

Professional employees cannot be included in a unit composed of both professional
and nonprofessional employees unless a majority of the professional employees vote
to be included in a mixed unit.
A proposed craft unit cannot be ruled inappropriate simply because a different unit
has been previously approved by the NLRB unless a majority of employees in the
proposed craft union vote against being represented separately.
Plant guards cannot be included in any bargaining unit that has nonguard employ-
ees in the unit because of the potential conflict of interest, such as searching a fellow
union member s locker for stolen property.
Supervisors and managers are not considered employees covered under the act and
may not be in any bargaining unit. A supervisor is defined as any individual
having authority, in the interest of the employer, to hire, transfer, suspend, lay off,
recall, promote, discharge, assign, reward, or discipline other employees, or
responsibility to direct them, or to adjust their grievances, or effectively to recom-
mend such action, if in connection with the foregoing the exercise of such
authority is not of a merely routine or clerical nature, but requires the use of
independent judgment.
The Board does not focus on job titles; instead, the Board focuses on whether the
supervisor in question does in fact exercise independent judgment in making
decisions. 65

Examples of Employer Messages during a Representation Election Campaign

Tell employees that union contracts often contain
wage cuts or givebacks.
Mention that the union does not provide jobs and
give examples of companies that have laid off
employees who were union members.
Explain that if the workers choose the union, the
employer will be obligated to bargain with the union
in good faith, but the employer cannot be forced to
agree to contract provisions that are not in its best
Tell employees that a company must remain com-
petitive and has a right to try to make a profit. If its

labor costs are so high that it cannot sell its product
at a profit, it cannot remain in business.
Advise employees that they can revoke the autho-
rization card and explain the procedure to do so.
Indicate that the union dues vary but can be as
much as $600 per year.
Tell employees that the employer has the legal right
to hire permanent replacements for strikers.

SOURCE: Maintain a Union-Free Status, by Paul S. McDonough, Personnel Journal
69 (April 1990): 108 114.


Excluded are agricultural laborers, public employees (except postal employees), and
independent contractors, although some of these may be covered in separate state
Confidential employees (individuals with access to confidential information, such as
management s bargaining strategies) and some family members (e.g., the confiden-
tial employees son, daughter, and spouse) are excluded, even if they work in bar-
gaining unit jobs. Similarly, an owner s family members who work in bargaining
unit jobs are typically excluded.

The interplay between a professional employee and a supervisor becomes more com-
plicated when the professional employee exercises some supervisory responsibility over
less-skilled employees. For example, nurses often direct the work of less-skilled aides and
others in clinics and hospitals. In 1994, the Supreme Court made it more difficult for
nurses in nursing homes to organize when it ruled that licensed practical nurses (LPNs)
were not employees under the NLRA because they attended to the needs of nursing
home patients and therefore acted in the interests of their employer. Then, in 2001, the
Supreme Court ruled that six registered nurses were not employees under the NLRA
because these nurses exercised a sufficient degree of discretion when they directed less-
skilled employees to provide services to patients.66 In 2006, the Board spelled out the sev-
eral standards for determining the inclusion or exclusion of nurses in the appropriate bar-
gaining unit: responsible direction, assignment, independent judgment, and rotating of
charge nurses. The Board concluded that in order to direct employees responsibly, a super-
vising nurse must be held accountable for the performance of the task and must have
authority to correct errors. In order to meet the assignment test, a supervising nurse
must have authority to designate another nurse to a place, time, or type of work. In
order words, a nurse who is determined to be a supervisor must have the necessary discre-
tion to make an assignment which requires independent judgment.

In a later case, the Golden Crest Healthcare Center, the Board determined that
nurses were employees, not supervisors, even though they executed supervisory authority
in assigning nurse assistants. The Board found that the charge nurses directed nurse
assistants and their performance was evaluated on that criteria; however, there was no
evidence that adverse consequences, e.g. discipline, would have resulted if the charge
nurse failed to adequately perform these duties.

The Board has since applied these standards in non-nursing cases. The Board deter-
mined that lead persons in a company were not supervisors even though they had a role
in hiring, disciplining, discharging, and evaluating employees. The Board determined
that these lead persons did not have authority to assign employees and that their discre-
tion was not greater than routine or clerical. Therefore, the Board determined the lead
persons authority did not require independent judgment.67

On occasion, the NLRB has to decide who the employer is. During the nationwide
fast food workers campaign involving employees of McDonalds, USA, LLC, and
numerous McDonald s franchises over protests to improve working conditions and
wages, 310 unfair labor practices charges were filed. Of those cases, 149 were settled,
but 109 cases were found to have merit. Approximately 10 cases involved solely
corporate-owned McDonald s facilities. However, in 2015, the NLRB found that
McDonald s through its franchise relationship was a joint employer with its franchises.
The NLRB found that McDonald s through its use of tools, resources, and technology
engaged in sufficient control over a franchisees operations shared liability for viola-
tions of the National Labor Relations Act.68

On occasion, the NLRB has to determine whether employee status exists. In a con-
troversial decision, the Northwestern University football players were determined by an

CHAPTER 5 Why and How Unions Are Organized 221

administrative law judge within the NLRB to be employees within the meaning of the
National Labor Relations Act and the NLRB conducted a representation election. How-
ever, on appeal, the Board ruled that the football players were not employees and did not
count the ballots,thereby voiding the election. In 1999, the Board had previously deter-
mined that interns, residents, and fellows at Boston Medical Center were employees.
Northwestern University argued that its relationship with student-athletes was primarily
education, not economic. The NLRB conducted the election in April of 2014 and the
ballots were impounded. The ballots would have been counted if the Board had decided
that the football players were in fact employees. In the meantime, the NCAA has pledged
greater scholarship protection and better health care for student-athletes and are offering
an increase in student-athlete monetary stipends.69

The determination of the appropriate bargaining unit and the jurisdiction of the
federal agency can also play an important role in determining whether a union will be
successful in its organizing effort. An interesting comparison between United Parcel Ser-
vice (UPS) and FedEx is highlighted in the Labor Relations in Action.

This NLRB s determination of the appropriate bargaining unit influences whether
the union will win the election, who will vote in the election, whether one union will
prevail in an interunion contest, whether craft employees will have their own union or
be included in a plant-wide unit, who the union must represent, who will be covered by
the collective bargaining agreement, or whether the union will include key employees
who could give direction and leadership for the bargaining unit employees.

Analysis of NLRB representation elections indicates that the success of a union cam-
paign depends on the composition of the appropriate bargaining unit. When the appro-
priate bargaining unit is composed of similarly skilled groups, the union will likely
succeed. This may be because decisions within unions are made through a democratic
process, and a degree of consensus is necessary to facilitate decision making and to win
the support of the majority. However, when different skill groups comprise the bargain-
ing unit, achieving consensus is more difficult, and majority support for the union like-
wise is harder to achieve and maintain. Thus, the NLRB s policy of including in a
bargaining unit all production and maintenance employees within a plant (which
would include a diversity of skills) may have contributed to the decline in union mem-
bership as a percentage of the total labor force. A more narrowly defined bargaining unit
composed only of employees of similar skills (such as electricians) would favor the union
winning the representation election and sustaining the continuation of the union.70

Suppose that the union wins and is successful in negotiating a union shop clause.
Recall that a union shop clause requires new employees to join the union within 30 days
after employment commences. The appropriate bargaining unit may determine which
employees will be required to join the union. Therefore, the composition of the bargain-
ing unit is important to the employer, the union, and the public.

Some companies pay attention to these considerations and take preventive steps
regarding management structure, employee interactions, and personnel policies and
practices. For example, if the company prefers a large multi-unit bargaining unit, it will
retain centralized control on management practices and decisions. If it prefers smaller,
independent units, it will decentralize decision making in these independent units.
Because the union has no control over management structure and the authority
responsibility relationship, it can try to convince the NLRB that the bargaining unit
should be composed only of those employees in specific job groupings where the major-
ity support the union.71

Should a plant have several small bargaining units, the employer may face different
unions in negotiations several times throughout the year, thereby potentially causing

222 PART 1 Recognizing Rights and Responsibilities of Unions and Management

continuous instability in labor relations and production. Separate units concerned with
similar jobs may cause disputes over rights to jobs, leading to grievances, strikes or slow-
downs. Should a small bargaining unit be merged with a nationwide bargaining unit, any
confrontation that resulted in a strike could cause a nationwide shutdown and complica-
tions for customers in need of the companies products. Chapter 6 covers the various
bargaining structures and their implications.

The appropriate bargaining unit itself usually covers employees in one plant, but
may cover two or more facilities of the same employer. The NLRB considers the com-
munity of interests in determining the composition of an appropriate bargaining unit. It
evaluates the following factors:

Interests of employees and employers
Commonality of wages, working conditions, training, and skill
History of collective bargaining either at the location in question or another facility
owned by the company
Transfers of employees among various facilities
Geography and physical proximity of the workplaces
Employer s administrative or territorial divisions
Degree of separation (or distinctiveness) of work or integration (or interrelatedness)
of work72

When the relevant factors do not give a clear indication for the composition of an
appropriate bargaining unit, an election (commonly called a Globe election, from the
original NLRB case) may be held to determine employee interests. For example, one
group of electricians in a steel plant might wish to be represented by the International
Brotherhood of Electrical Workers (IBEW) instead of the United Steelworkers of Amer-
ica (USWA). The USWA wants to include all electricians in a bargaining unit composed
of all production and maintenance employees in the plant. Under such circumstances,
the electricians vote will determine whether they will be members of USWA, a separate
electricians union (IBEW), or no union.

The U.S. Supreme Court supported the NLRB s first rule-making effort to determine
appropriate bargaining units for private acute-care hospitals. Eight standard bargaining
units were established for approximately 4,000 acute-care hospitals: (1) all registered
nurses, (2) all physicians, (3) all professionals except registered nurses and physicians,
(4) all technical employees, (5) all skilled maintenance employees, (6) all business office
clericals, (7) all guards, and (8) all other nonprofessional employees. Such rule-making
practices reduce the number of cases in which employers are able to contest the number
and composition of the appropriate bargaining unit. Previously, employers had some-
times intentionally challenged the composition of the bargaining unit in order to delay
the election and thereby increase the chances that the union would not win representa-
tional rights.73

In 2000, the Board ruled that, under the National Labor Relations Act, a group of
medical interns, residents, and fellows were employees and formed a proper bargain-
ing unit, even though they were students. This ruling overruled a previous ruling that
had excluded such individuals from bargaining units of employees. The Board rea-
soned that the interns, residents, and fellows were similar to apprentices, who had
been considered statutory employees for a long time. Later in 2000, the Board
extended its ruling and found that a group of graduate assistants (including teaching
and research assistants) at New York University were employees. The Board rejected
the university s contention that the graduate assistants were predominately students,
not employees.74

CHAPTER 5 Why and How Unions Are Organized 223

In 2004, with a Bush-appointed majority, the Board made a significant reversal and
ruled that graduate students were students, not employees, under the National Labor
Relations Act. This reversal came at a time when graduate student unionization was on
the rise in the United States. Over the previous decade, the number of graduate student
unions had grown from 10 to 30. New graduate student unions existed at several major
universities such as Temple, Michigan State University, University of Rhode Island, and
Columbia. It is estimated that 20 percent of all graduate students are now covered under
collective bargaining agreements.75 Most of these graduate student unions were orga-
nized and recognized in the public sector, which is governed by state labor relations
laws (covered in Chapter 13).

Eligibility of Voters. Before an election is conducted, voter eligibility must be deter-
mined. An employee is eligible to vote in a representational election if he or she is (1)
employed in a bargaining unit job; (2) employed during the eligibility period, which is
usually the payroll period immediately preceding the date a consent agreement is signed
or a directed election order is issued; and (3) employed on the date of the election. How-
ever, employees who are on sick leave, vacation, temporary layoff, or temporary leave,
such as military duty, may vote in the election. In addition, the NLRB will occasionally
consider irregularity of employment, such as in the construction, food processing, and
longshoring industries. Economic strikers who have been replaced by permanent
employees are allowed to vote in any election within 12 months after the strike begins.
This policy ensures that management does not provoke a strike and hire replacements
who could vote out the union. Employees hired after the union files its petition but
before the election may be challenged for their eligibility by the union.

Untimely Petitions. Several rules make a petition for a representation election
untimely. The election bar doctrine is a legal requirement that prohibits any NLRB

Interesting Comparison: FedEx and UPS (United Parcel Service)

FedEx began operations in 1971 as an overnight air car-
rier of freight and mail. Because FedEx was an air carrier
and subject to airline regulations, it was covered under
the Railway Labor Act. The 4,500 to 5,000 pilots of
FedEx are now represented by the Air Line Pilots Asso-
ciation (ALPA), which is an AFL-CIO affiliate. Due to
expansion and its purchase of other companies, FedEx
employs about 100,000 truck drivers, package handlers,
dispatchers, and other FedEx Express ground transpor-
tation employees who remain nonunion.

UPS began in 1907 as a ground transportation car-
rier and is covered under the National Labor Relations
Act. UPS ground transportation employs over 200,000
employees, most of whom are represented by the
Teamsters. The 2,800 UPS pilots are represented by
the Independent Pilots Association (IPA), which remains
an independent union.

Under the National Labor Relations Act, employ-
ees can be organized on a location-by-location basis.

In other words, employees of a particular facility of a
nationwide company may organize a union to repre-
sent them at that one facility. Under the Railway
Labor Act, a union must organize employees through-
out the entire company who do similar work. For
example, if package handlers of FedEx Express
wanted to be represented by a union, a union must
organize these package handlers at all of the company
facilities, not at a single location or transportation hub.

Today, both companies are competitors, offer basi-
cally the same services, and are structured similarly.
However, any union that attempted to organize one or
more groups of the 100,000 FedEx employees would
be required to organize on a national basis, not at a sin-
gle location or facility.

SOURCE: Railroaded Out of Their Rights: How a Labor Law Prevents FedEx Express
Employees from Being Represented by a Union (Washington, D.C.: The Leadership
Conference on Civil and Human Rights, June 2010).


representation election where one has been held in the last 12 months or where a peti-
tion for election covers a group of employees who are already covered by an existing
contract and already members of a legally certified union.

The second rule and potential barrier to elections is an administrative determination
that was made in the interest of stable and effective labor relations. The NLRB rule,
called the contract bar doctrine, specifies that a valid, signed agreement for a fixed period
of three years or less will bar any representation election for the life of the agreement.
Thus, the contract bar doctrine could extend the 12-month statutory limitation on elec-
tions to three years. To do otherwise would be unfair to union and management officials
who have negotiated a multiyear labor agreement in good faith.76

Names and Addresses (Excelsior Rule). Within two business days after the regional
director of the NLRB has approved a consent election or after an election has been
directed, the employer must file with the regional director a list of names, mailing and
e-mail addresses, and phone numbers of all eligible voters. This information is then
made available to the union. Refusal to comply could be identified as an act of bad
faith on the part of the employer and cause the election to be set aside or require the
NLRB to seek the names and addresses by subpoena. The purpose of this disclosure
rule is to give the unions involved in an election access to employees contact informa-
tion that management already possesses.77 If there is a pre-election hearing, the employer
must now provide the employee list to the NLRB and union in one business day before
the hearing.

The Election. The representation election, acclaimed as one of the great innovations of
American labor law, is conducted by NLRB officials and is typically held within 38 days
(median) of the initial request.

In December 2015, the NLRB issued the new rules and procedures which will gov-
ern union representation elections. The NLRB stated that these new rules and proce-
dures are designed to remove unnecessary barriers to the fair and expeditious
resolution of representation questions, streamline litigation, eliminate duplication and
delay, increase transparency, and update NLRB procedures using modern communica-
tion technology. See Exhibit 5.7 for a comparison of the pre-2015 procedures and the
new procedures.

NLRB data show that about 90 percent of the eligible voters usually vote in NLRB
elections, as compared with about 50 percent in major political elections. The high
voter turnout in union representation elections might be due to the convenient voting
procedure (usually carried out on company property) and the belief of many employees
that their vote more directly affects their lives (at least their working lives) than do
political elections. Finally, both unions and management realize that an employee
could express union preference to a union representative in a face-to-face meeting
and an opposite preference to the management representative to avoid a confrontation
during the election campaign. Neither side is certain of employee voting preferences
when faced with a secret ballot; therefore, both union and management officials work
to get out the vote.

In March 2013, the National Mediation Board (NMB) changed its rules that govern
union representation elections for the airline and railroad industries. For 75 years, the
NMB required that in the absence of substantial employer interference, a majority of an
entire craft or class must affirmatively vote in favor of union representation before the
union would be certified as the bargaining representative for a group of employees.
Under the previous rule, if there were 100 employees in the bargaining unit, 51 must
actually vote for the union. If only 50 of the 100 voted for the union, the employees

CHAPTER 5 Why and How Unions Are Organized 225

Exhibit 5.7
Comparison of Pre-2015
and New Procedures

Pre-2015 procedures New procedures

Parties cannot electronically file election

Election petitions, election notices and
voter lists can be transmitted

The parties and prospective voters
receive limited information.

Parties will receive a more detailed
description of the Agency s represen-
tation case procedures, as well as a
Statement of Position form, help parties
identify the issues they may want to
raise at the pre-election hearing.

The parties cannot predict when a pre- or
post-election hearing will be held.

The Regional Director will generally set
a pre-election hearing to begin 8 days
after a hearing notice is served and a
post-election hearing 21 days after the
tally of ballots.

There is no mechanism for requiring par-
ties to identify issues in dispute.

Non petitioning parties are required to
identify any issues they have with the
petition, in their Statements of Posi-
tions, generally one business day
before the pre-election hearing opens.

The employer is not required to share a
list of prospective voters with the NLRB s
regional office or the other parties until
after the regional director directs an elec-
tion or approves an election agreement.

The employer must provide a list of
prospective voters with their job classi-
fications, shifts and work locations, to
the NLRB s regional office and the
other parties, generally one business
day before the pre-election hearing

Parties may insist on litigating voter eligi-
bility and inclusion issues that do not have
to be resolved in order to determine
whether an election should be held.

The purpose of the pre-election hearing
is clearly defined and parties will gen-
erally litigate only those issues that are
necessary to determine whether it is
appropriate to conduct an election.

Parties may file a brief within 7 days of
the closing of the pre-election hearing.

Parties will be provided with an oppor-
tunity to argue orally before the close of
the hearing and written briefs will be
allowed only if they are necessary.

Elections are delayed 25 30 days to allow
the Board to consider any request for
review of the regional director s decision
that may be filed.

There will be no automatic stay of an

The voter list provided to non-employer
parties to enable them to communicate
with voters about the election includes
only names and home addresses. The
employer must submit the list within 7
days of the approval of an election
agreement or the regional director s
decision directing an election.

The voter list will also include personal
phone numbers and email addresses (if
available to the employer). The
employer must submit the list within 2
business days of the regional director s
approval of an election agreement or
decision directing an election.

SOURCE: http://www.nlrb.gov/news-outreach/fact-sheets/nlrb-representation-case-procedures-fact-sheet

226 PART 1 Recognizing Rights and Responsibilities of Unions and Management

would continue to be unrepresented. The new rule requires a simple majority of those
who actually vote in the union representation election (similar to NLRB elections).
Now, if there are 100 employees in the bargaining unit and 80 employees actually vote
in the election, 41 of the employees must vote for union representation. The NMB also
changed another representation election rule. The NMB now requires not less than
50 percent (up from 35 percent) of the employees or class to have signed union authori-
zation cards before the NMB will hold a representation election.

Voter participation tends to decline the longer it takes for the NLRB to conduct
the election. Thus, some employers are motivated to refuse to consent to an election
in hopes of increasing the chances of the union losing the election. Because most
single-unit elections are close, the number of nonparticipants may affect the outcome
of many elections.78 A small number of votes greatly influences the outcome of the
election; research shows that a switch of eight votes would have changed the outcomes
of half the elections.79 Furthermore, small increases in the time to process cases are
important; a delay of ten days has proven to be a significant factor in differentiating
employer wins from employer losses. The number of pre-election days has also been
linked to union losses. During the first six months of delay, there is an average drop-
off in union victories of 2.5 percent per month. Consent elections have the highest
victory rate.80

The size of the election unit has tended to be negatively related to union victories.
The larger election unit is closely related to delay because it takes longer to process and
is more likely to result in a hearing than in a voluntary settlement.81 Success in union
organizing has been influenced positively by the size of the union and democracy within
the union and influenced negatively by the union s propensity to strike and centraliza-
tion of the union s decision making.82

Using a ballot with the appropriate company and union designations (Exhibit 5.8), a
secret-ballot election is conducted under NLRB supervision, usually during working
hours on payday at the employer s location. However, the NLRB has discretionary
authority to conduct it by mail ballot. The Board has encouraged the use of mail ballots
in representation elections under any of the following conditions: (1) eligible voters were
widely dispersed geographically; (2) eligible voters worked differing schedules and were
not present at common locations at common times; or (3) where there was strike, lock-
out, or picketing.83

The NLRB must determine whether the majority of employees in an appropriate
bargaining unit want to be represented by a union for collective bargaining purposes. It
defines majority as the simple majority rule generally accepted in democratic elections,
which means that those choosing not to vote in the election have decided to assent to
the wishes of the majority who did vote. Therefore, a majority of the employees who
vote (50 percent plus one of those casting valid ballots in the election) must favor repre-
sentation before a union will be certified by the NLRB.

If two or more choices are placed on the ballot, a runoff election may be necessary
between the choices receiving the two highest numbers of votes in the initial election.
If the majority votes no union, no representation election can be held for 12 months.
If a union receives the majority of the votes, the NLRB will certify it as the exclusive
bargaining agent of the employees in the bargaining unit. Interestingly, where more
than one union has vied for representation rights in the same election, unions have
fared extremely well.

Although only 4 percent of representation elections are multi-union elections (i.e.,
there is a choice between two unions), one of the competing unions is more likely to
win representation rights than in a single-union election. Also, multi-union elections

CHAPTER 5 Why and How Unions Are Organized 227

bring out a substantially high number of voters.84 The major reason for this positive vote
is that two unions would have to gain support from a sufficient number of the bargain-
ing unit s employees to be placed on the ballot. Such support usually indicates that the
employees have already decided to vote for a union; the election is conducted to deter-
mine which union will receive the majority vote.

After the votes have been counted, either party has seven calendar days to file objec-
tions alleging misconduct or to challenge the ballots of voters whom one party believes
should not have voted in the election. This part of the representation process receives

Exhibit 5.8
Examples of Secret Ballots
for Union Representation

228 PART 1 Recognizing Rights and Responsibilities of Unions and Management

considerable criticism because of the delay in assessing ballot challenges, and objections
concerning misconduct often seem excessive.

In 2014, the NLRB conducted 1,260 representation elections. Unions won 68.0
percent, compared with 63.8 percent in 2009. In every year since 2002, unions have
won more than 50 percent of the NLRB-conducted representation elections. While
the unions have won a higher percent of representation elections, there are fewer elec-
tions, e.g. in the 1970s between 7,000 and 8,000 elections per year with the union win-
ning between 40 to 55 percent. The most active unions involved in representation
elections have been the Teamsters, the United Food and Commercial Workers
(UFCW), and the SEIU. The SEIU was the most successful union.85

In a study of 1,004 NLRB elections, employers threatened to close the plant in 57
percent of the elections, discharged workers in 34 percent, and threatened to cut wages
and benefits in 47 percent. Eighty-nine percent of employers required their workers to
attend captive-audience meetings during working hours. In 77 percent of the elections,
supervisors regularly talked to workers one-on-one about the union campaign with a
focus on threats of plant closings, wage and benefits cuts, and job losses. More than 60
percent used the one-on-one meetings to interrogate and harass workers about their sup-
port for the union.

Employers are less likely to make promises (offering carrots ), such as granting
unscheduled pay increases, making positive personnel changes, having special social
events, and proposing various forms of employee involvement programs.

Employers appeal most decisions by administrative law judges of the NLRB, especially
Gissel-type bargaining orders in hopes of having another election. The most egregious
employers use the appeals available to ensure that the case is delayed by three to five
years. The worst penalty an employer who is found guilty of unfair labor practices has to
pay is backpay to employees who were illegally terminated; the amount of backpay,
averages a few thousand dollars per employee.86

After the Election
As noted in Chapter 1, the first step of the labor relations process, the recognition of
legitimate rights and responsibilities of unions and management representatives, includes
more than the representation election. After unions win bargaining rights in a represen-
tation election, they attempt to negotiate their first labor agreement; however, they fail to
secure a first contract 25 to 30 percent of the time. Several factors increase the likelihood
of reaching agreement: existence of relatively high wages already at the company, pres-
ence of other bargaining units within the company, large election victories, and active
participation of international union representatives. Factors that reduce the chances of
attaining a first contract include location in a southern state with right-to-work laws,
the national union having to approve the local union s contract, presence of outside
labor management consultants hired by the company,87 NLRB delays in resolving
employer objections and challenges to election results, employer refusal to bargain in
good faith, and discrimination against employees after the election.88

Delays associated with filing objections to campaign conduct have increased threefold
over the last 20 years, and the median amount of delay time is now about 210 days.
Employers fail or refuse to bargain in good faith 13 percent of the time. This unfair labor
practice adds approximately 140 days. Additional delay can occur if appeals are made to
the full Board in Washington, D.C., or to a federal court of appeals or the Supreme Court.

In addition to the delays, there has been a sixfold increase in the number of
unfair labor practice charges for firing union supporters and an elevenfold increase
in the number of backpay awards. Employers discharge union activists or union

CHAPTER 5 Why and How Unions Are Organized 229

supporters for two main reasons: (1) to get the key union organizers out of the facil-
ity and (2) to send a chilling message to the rest of the workforce. With such statis-
tics, it does not appear that ethical considerations prevent all employers from
breaking the law.

Duties of the Exclusive Bargaining Agent and Employer
The exclusive bargaining representative (the union) chosen by the majority of the
employees in an appropriate unit has the duty to represent equitably and fairly all
employees in the unit regardless of their union membership and to bargain in good
faith with the employer. The employer has a comparable obligation; that is, to bargain
in good faith with the exclusive bargaining agent and to refuse to bargain with either
individual employees or any other union seeking to represent the employees. Further,
any negotiated labor agreement will cover all employees in the bargaining unit, regard-
less of their union membership status.

After Election Loss by the Union
After losing a representation election, typically the union reduces its activities because
there can be only one election every 12 months. However, there are some creative ways
in which the union can maintain contact with employees, particularly those who sup-
ported it during the campaign, and provide a representational service to those included
in the bargaining unit. Exhibit 5.9 shows alternative activities that could increase the
chances of success of any future unionization drive.

Proposed Mandatory Secret Ballot Elections versus Employee
Free Choice Act (EFCA)
The Secret Ballot Protection Act was introduced in the U.S. Congress in 2007 (and every
year since) to require secret ballot elections for union certification. If passed, this bill
would have made it an unfair labor practice for an employer to recognize or bargain
with a union that has not been selected by a majority of employees in a secret ballot
election conducted by the NLRB. It would have made it an unfair labor practice for a
union to cause or attempt to cause an employer to recognize or bargain with a union
that had not been chosen by a majority of employees in a secret ballot election. In
other words, voluntary union recognition by card check would have been prohibited.
This proposal legislation has, to date, failed to pass.

The bipartisan Employee Free Choice Act that was passed by the U.S. House of
Representatives (244 to 185) in 2007 contained three major provisions:

The NLRB would be required to certify a union if a majority of employees signed
union authorization cards which stated that the employee wants the union to rep-
resent him or her (see Exhibit 5.6 on p. 214).
A procedure for reaching the first collective bargaining agreement could be invoked
by either party if the two parties have not reached an agreement within 90 days (or
longer if both parties agreed) to request mediation by the Federal Mediation and
Conciliation Service. If mediation is not successful, after 120 days a first contract
would be subject to binding arbitration, resulting in a first contract in effect for a
two-year period.
Penalties for employer violations of certain unfair labor practices committed during the
union organizing campaign or the negotiation of the first contract would be increased.89

For example, a wrongfully discharged employee could receive triple backpay.

230 PART 1 Recognizing Rights and Responsibilities of Unions and Management

There are several arguments from the proponents of union recognition via card
check as well as proponents of mandatory secret ballot elections (see Exhibit 5.10 for
the common arguments).

The card check procedure for union recognition has a history in other countries.
A system of card check union recognition has operated successfully in the United
Kingdom under the Employment Relations Act since 2000. The United Kingdom s
equivalent to the NLRB will certify a union when over 50 percent of the workers sign
union membership cards, or it may call for an election if it believes the election would
be in the interest of good industrial relations. However, the practice has been that the
Board rarely requires an election when a majority of workers has signed the union
membership cards.90

Exhibit 5.9
Possible Activities for
Unions after Losing a
Representation Election

1. Maintain in-plant committees, designate employees as union stewards, identify
them with steward buttons, and through them, maintain contact with member
and nonmember employees.

2. Distribute employment-related union literature in the plant during nonworking
time and serve as the voice of employees on all matters of common
employment-related matters of concern.

3. Union stewards can present employee grievances to management. If manage-
ment refuses to meet with the union committee, employees may leave their
work as a group to request a discussion of their employment-related problems
directly with management. If the response is unsatisfactory, the union may
engage in a work stoppage; however, striker replacement rules apply.

4. A non majority union can provide a shield of concerted activity for an individual
employee who refuses to drive a faulty truck, reports Occupational Safety and
Health Administration (OSHA) violations, refuses to act in violation of personal
ethics or morality, or sues for unpaid overtime.

5. Help employees know and enforce their individual employment rights concerning
workers compensation, third-party tort claims, wage and hour violations, and so on.

6. In-plant committees help employees know and receive their entitlements, such
as medical benefits, sick leave, severance pay, pensions, unemployment com-
pensation, disability pay, and social security.

7. Inform employees of rights under common-law doctrines and exceptions to
employment-at-will doctrine, including employee manuals, employment con-
tracts, public policy exceptions, good faith exceptions, and tort suits involving
outrageous conduct, defamation, and invasion of privacy.

8. Reinforce OSHA statutory procedures: (1) establish in-plant safety committees;
(2) file complaints through the union; (3) serve as representative of employees
to accompany compliance officer on plant walk-around, discuss claims, and
participate in conferences; (4) act as representative of employees in the proceed-
ings before the OSHA; (5) enforce the Hazard Communication Standard by filing
complaints if employer fails to provide toxic training to employees and has not
prepared a written communication program; and (6) petition for information con-
tained on Material Safety Data Sheets.

9. Represent employees under plant closure laws, pregnancy leave acts, poly graph
and privacy acts, and whistle-blowing statutes.

10. Represent employees under unjust discharge procedures modeled after labor

SOURCE: Clyde W. Summers, Unions without Majorities: The Potentials of the NLRA, Proceedings of the 43rd Meeting of the
Industrial Relations Research Association (Madison, WI: IRRA, 1991), pp. 154 162.

CHAPTER 5 Why and How Unions Are Organized 231

In Canada, five provinces require secret ballot elections, and five provinces allow
card check union recognition. The province of British Columbia allowed card checks
until 1984; then from 1984 to 1992, secret ballot elections were required. In 1992, card
checks were allowed again. During the period when card checks were allowed, the union
success rate was 91 percent; when secret ballot elections were required, the success rate
was 73 percent. Also, during the period when card checks were allowed, there was an
average of 531 union-organizing drives per year; during the period when secret ballot
elections were required, the average was only 242.

In June 2007, the Senate failed to end a Republican filibuster by a vote of 51 to 48,
thereby preventing a vote on the merits on the Employee Free Choice Act. Although a
majority of senators would have voted for the act, 60 votes were needed to end the

Exhibit 5.10
Most Common Arguments
Made by Proponents of
Union Recognition via
Card Check and Proponents
of Mandatory Secret
Ballot Elections

Proponents of Card Check

Proponents of Mandatory Secret

Card check recognition requires signa-
tures from over 50 percent of bargaining
unit employees (subject to verification by
the NLRB). A secret ballot election is
decided by a majority of workers voting.

Casting a secret ballot is private and
confidential. A secret ballot election is
conducted by the NLRB. Under card
check recognition, authorization cards
are controlled by the union.

During a secret ballot campaign, the
employer has greater access to

Under card check recognition, employ-
ees may only hear the union s point of

Because of potential employer pressure
or intimidation during a secret ballot
election, some workers may feel coerced
into voting against a union.

Because of potential union pressure or
intimidation, some workers may feel
coerced into signing authorization cards.

Employer objections can delay a secret
ballot election.

Most secret ballot elections are held
within two months after a petition is filed.

Allegations against a union for unfair labor
practices can be addressed under existing
law. Existing remedies do not deter
employer violations of unfair labor

Allegations against an employer for
unfair labor practices can be addressed
under existing law. Existing remedies
do not deter union violations of unfair
labor practices.

Card check recognition is less costly for
both the union and employer. If only
secret ballot elections were required, the
NLRB would have to devote more
resources to conducting elections.

Unionization may cost workers union
dues; higher union wages may result in
fewer union jobs.

Card check and neutrality agreements
may lead to more cooperative labor
management relations.

An employer may be pressured by a
corporate campaign into accepting a
card check or neutrality agreement. If
an employer accepts a neutrality
agreement, employees who do not
want a union may hesitate to speak out.

SOURCE: E. Gerald Mayer, Labor Union Recognition Procedures: Use of Secret Ballots and Card Checks, Congressional
Research Service, The Library of Congress, 2005, Table 3, http://digitalcommons.ilr.cornell.edu/keyworkplace/237.

232 PART 1 Recognizing Rights and Responsibilities of Unions and Management

In 2008, with President Obama, a Democrat, and a Democratic majority in the U.S.
House and Senate, it appeared promising that the EFCA would pass. However, with the
death of Senator Ted Kennedy and election of Scott Brown, a Republican, in Massachu-
setts, the chances of ending a definite Republican filibuster were slim. Then, in 2010, the
Republicans gained a majority in the House, and the chances of passing EFCA grew even

Conduct of the Representation Election Campaign

Successful union recognition campaigns are dependent upon volunteers who help per-
suade employee-voters to vote for the union. Much of the work behind a successful cam-
paign involves such activities as arranging meetings and creating and distributing
information, and most of this work is done by volunteers. Even though there are no
immediate or explicit monetary rewards associated with this work, there are potentially
personal, political, and self-actualization rewards. Employees who have positive attitudes
toward unions are most likely volunteer to work on behalf of the union.92

All representation elections are conducted according to NLRB standards, which are
designed to ensure that employees in the bargaining unit can indicate freely whether they
want to be represented by a union for collective bargaining purposes. However, election
campaigns differ substantially, and the strategies of individual unions and employers
vary widely. For example, handbills similar to those in Exhibit 5.11 are often used in
addition to speeches, informal talks, interviews, and films. Thus, the election campaign,
one of the most interesting and controversial activities in labor relations, has led to a
body of doctrines and rules. Because Board members are appointed by the U.S. presi-
dent, the NLRB philosophy, doctrines, and rules are subject to change with changing

Campaign Doctrines and NLRB Policies
The totality of conduct doctrine guides the NLRB interpretations of unfair labor prac-
tice behavior. This doctrine essentially means that isolated incidents such as campaign
speeches must be considered within the whole of the general circumstances of the cam-
paign and with the possibility that other specific violations have occurred.

Employer statements to employees may seem harmless on the surface, but under the
circumstances that exist at the time of the statements, they may carry implied threats.
For example, if an employer stated that a third-party intervention could make it eco-
nomically impossible for the company to continue in business, it would be making
an illegal statement during a union election campaign. However, if the employer made
the same statement during an attempted leveraged buyout, there would be no legal

The NLRB concluded that it would no longer probe into the truth or falsity of the
parties campaign statements but would intervene in cases where a party had used forged
documents that render voters unable to recognize propaganda for what it is. The Board
concluded that today s voters (employees) are more educated and sophisticated than their
historical counterparts and can analyze materials more accurately. This assessment was
influenced by a research study involving over 1,000 employees in 31 elections in 5 states.
This study cast doubt on the previously held assumption that employees are unsophisti-
cated about labor relations and are swayed easily by campaign propaganda. In fact, votes
of 81 percent of the employees could have been predicted from their pre campaign intent

CHAPTER 5 Why and How Unions Are Organized 233

and their attitudes toward working conditions and unions in general. The study concluded
that employees votes appeared to be the product of attitudes that resulted from their
everyday experiences in the industrial world and not from the campaign itself.93

The data used in the study were later re-analyzed, and the following additional
(some different) conclusions were made:94

Employee predisposition favoring the union is an important determinant of voting
Written communications distributed later in the campaign and meetings held early
in the campaign most probably have an effect.
Threats and actions taken against union supporters are effective in discouraging
support for the union.

Thus far, these later analyses have not influenced the Board s position on election

Captive Audience 24-Hour Rule
One legal approach used by employers to discourage union support includes presenting
captive audience speeches, which are delivered to employees during working hours on

the employer s site, and employees are required to attend. The speeches, authorized by
the Taft-Hartley amendments in 1947, must not be presented within 24 hours of an
election, and the speech content must not include threats of reprisal or promises of ben-
efits. However, if the union has no acceptable means of communicating with the
employees, as in the mining, shipping, mountain resorts, and logging industries, where
employees live on company property, or if the employer s unfair labor practices have
created a serious election campaign imbalance, the NLRB and the courts may grant
the union access to plant bulletin boards, parking lots, and entrances so that it may
communicate with the employees. Still, it is extremely difficult for the union to respond
effectively by using its traditional means of contacting employees, such as plant
employee solicitations, distribution of literature before or after work, house calls, and
union meetings.95

Polling or Questioning Employees
Polling employees or asking questions about their interest in unions was considered
unlawful interference with employee rights in early days. In 1984, the NLRB announced
that it would no longer automatically consider an employer interrogation about an
employee s union sentiment an unlawful inquiry in violation of Section 8(a)(1). It
announced that it would examine the totality of the circumstances surrounding such
interrogations in light of the following:

1. The background of the interrogation
2. The nature of the information sought
3. The identity of the questioner
4. The place and method of the interrogation

Therefore, an employer s questioning of open and active union supporters and other
employees about their union sentiments in the absence of threats or promises does not
necessarily violate the law. However, NLRB decisions since 1984 reveal that employers
are still at great risk with these interrogations because it is necessary only to establish
that the questions asked may reasonably be said to have a tendency to interfere with
the free exercise of an employee s rights under the act.96

234 PART 1 Recognizing Rights and Responsibilities of Unions and Management

Distribution of Union Literature and Solicitation by Employees
on Company Property97

Distribution of union literature can be banned in work areas at all times. Union solicita-
tion can be banned only during work time, for example, the time when the employee is
expected to be engaged in performance of regular job duties.

The NLRB and the courts have long held that except in special circumstances,
employees may not be prohibited from distributing union-organizing materials or solicit-
ing union support in nonworking areas during nonworking time98 unless the employer
can show that such activity would disrupt production, employee work, and plant disci-
pline. For example, employees of restaurants and retail establishments cannot distribute
union materials in customer areas, but they can solicit in employee-only break rooms.99

Courts allowed no-solicitation rules that permit exceptions for beneficial acts that
may reasonably promote employee morale. These include collecting money to buy a
cake for an employee who is leaving, asking for contributions to purchase a blazer as a
gift for an employee who is leaving, asking for contributions to buy a gift for the Chef s
wife who is expecting a baby, and collecting money to buy a gift for an employee who is
leaving or is having a birthday.100

No-solicitation rules in health care facilities are allowed when the rules are applied
to patient s rooms, sitting rooms, operating rooms, and any other place patients receive
treatment which affects the patient s recovery. No-solicitation rules are prohibitive when
applied to cafeterias, coffee shops, gift shops, and lobbies, which are areas that have no
effect on patient care and may be visited by the general public.

In addition, the employer cannot prohibit distribution of union materials if the basis
for the prohibition is that part of its content includes political issues, such as right-
to-work laws and minimum wages.101 Nor can the employer prohibit employees from
wearing buttons, hats, or T-shirts promoting the union.

Some employers publish no solicitation rules that prevent employees from discuss-
ing union organizing on working time. However, to be enforceable, these no-solicitation
rules must be posted in advance of the organizing drive, and these rules must prohibit all
types of solicitation by employees with limited exceptions for broad-based community
charities such as the United Way.

The employer may limit the type of information distributed to employees by classi-
fying company data as confidential. The NLRB has upheld the discharge of five
employees who distributed wage data comparing the company s wage scale with that of
other plants in the area. The NLRB found that the company had declared this wage
information to be confidential and that it had not been obtained in the normal course of

Showing Films during Election Campaigns
Films presented to discourage workers from joining unions have taken on new dimen-
sions, especially since the 1950s, when the movie And Women Must Weep was produced
by the National Right-to-Work Committee. This docudrama movie portrays union vio-
lence, strikes, vandalism, phone threats, a house bombing, and even the shooting of a
baby of a dissident union member. Frequent use of the film by employers prompted
the International Association of Machinists to produce a rebuttal film, entitled Anatomy
of a Lie, which claims no evidence exists of a connection between violence and the
union s activities. On-site interviews with persons involved in the strike are shown to
reveal an opposite view of the employer film, and the president of the union is filmed,

CHAPTER 5 Why and How Unions Are Organized 235

stating that nearly 99 percent of the union members voted to strike. The NLRB s position
on the showing of these films has varied; its current position is that their showing alone
does not constitute an unfair labor practice and is not sufficient cause to have the results
of an election set aside, it is the totality of the employer s conduct that is important.102

Use of E-Mail, Internet, and Social Media
Technology is transforming the way in which unions are able to communicate with
employees during organizing campaigns. In 2015, there were 1.35 billion Facebook
users and 288 million twitter users. The AFL-CIO has its own Internet provider.
Workingfamilies.org allows it to contact 13 million people who are interested in legisla-
tive and political campaigns, organizing drives, and product/consumer boycotts. Unions
are creating recruiting videos and testimonials for posting on YouTube. Social network-
ing via MySpace and Facebook is used as part of the union s organizing efforts. In addi-
tion, workers are increasingly seeking information on how to organize by contacting
unions via e-mail and connecting to unions Web sites.103 The AFL-CIO allows indivi-
duals to sign up for e-mail messages from the AFL-CIO and has a link to the AFL-CIO s
Organizing Institute with information, such as How to Join a Union, Find Your
Union, and State and Local Labor Contacts. Change to Win (CTW) allows individuals
to sign up for e-mail messages about organizing campaigns and also to Join the
Movement. 104

During a union organizing campaign when social media is involved, the NLRB
is required to determine whether the actions by an employee or employees is a group
activity which is a protected concerted activity under Section 7 of the National Labor
Relations Act. For example, if an employee posts on Facebook

We need a union here. We got no pension and no job security. My supervisors can
fire me whenever he wants to.

Other employees who use Facebook review the content and clicks on the button
which looks like a thumbs up. Other employees click on Like. (Or with Twitter,
there is a favorite tweet that can be retweeted to others.) Questions arise:

Are other employees indicating they like the message?
Are the other employees joining the group?
Are these actions considered a group activity that is protected?

Further, what happens if an employee not only clicks on Like, but adds in the com-
ment section., I agree. We need a union here!!! If any of the employees who clicked on
Like and/or added comments are disciplined as a result of their actions, are they pro-

tected under Section 7? To add complications, what if the employees used company equip-
ment and sent their message on Facebook during their working hours.105

Employees use of e-mail and employer e-mail policies have been an issue before the
NLRB. In a controversial 3 2 decision in 2007, the Board majority upheld an employer
policy that banned employees from using the company s e-mail system to urge support
for groups or organizations (e.g., a union) while permitting employees to send personal
e-mails during nonwork time (e.g., for sale notices, wedding announcements). The
e-mail system was viewed as employer property which employees have no statutory
right to use under Section 7, LMRA.106

However, after an appeal to the Circuit Court of Appeals of the District of Colum-
bia, the court reversed part of the Board s decision. The court held that an employer vio-
lates the National Labor Relations Act when it disciplines an employee who disseminates

236 PART 1 Recognizing Rights and Responsibilities of Unions and Management

union-related solicitations under an employer s e-mail policy (prohibiting all e-mails for
non-job-related solicitations) but allows other types of solicitations such as hawking
bikini lotion, organizing charitable or social functions, sending e-mails with jokes, births,
lunches, poker games, sending mass solicitations of sports events, party invitations,
requests for dog walking services, etc. 107

In December 2014, the NLRB found that employees have a presumptive right to use
their employer s email system to engage in communication relating to concerted activities
protected by Section 7 of the National Labor Relations Act including union organizing
during nonworking time. The employer may rebut this presumption by demonstrating
that there are special circumstances necessary to maintain production and/or discipline
which would restrict employee rights; however, the NLRB stated that such circumstances
will be rare. The Board reiterated that employees did not have Section 7 rights to use
employer property such as bulletin boards, telephones, fax and copy machines, and public
address systems. The Board noted that employee email use rarely interferes with others
use of the email system and email use rarely adds significant usage costs. In addition, the
Board acknowledged that an email system function is an ongoing and interactive means of
employee communication which is conducted in a way that other older types of commu-
nication equipment clearly do not.108

New Union Strategies
In response to employers strategies to maintain nonunion status, unions have had to be
creative in their actions. Some well-publicized strategies by unions include (1) instituting
cyberspace organizing with the Internet, whereby employees can simply enter the search
words how to organize and receive on-line information on union organizing; and (2) hir-
ing union salts, whereby a union organizer applies for a job within a targeted company,
goes to work, and solicits for union membership as an employee (see the Labor Relations
in Action feature on p. 239).

Some recent union successes have come from corporate campaigns such as Justice for
Janitors, which mobilized over 200,000 janitors across the United States, many of whom
were immigrants. In Los Angeles, the campaign relied on tactics such as marches and
civil disobedience, which required extensive participation by the membership. Through
boycotts, mobilization of immigrant community organizations, public awareness cam-
paigns, and support from the Department of Labor, UNITE-HERE was able to organize
immigrant workers employed by contractors who provided supplies to fashion designers.
After the traditional NLRB procedure was a completely ineffective approach.109

Other campaigns include the Fight for 15, http://www.fightfor15.com/, which
launched a major campaign for $15.00 per hour on April 15, 2015, and for the right to
join a union without retaliation. Aimed primarily at Walmart and McDonald s, Fight for
15 is also directed toward all fast food employers and retailers who pay their workers less
than $15.00 per hour. Fight for 15 claim to have hundreds of thousands supporters in 35
countries.110 The AFL-CIO established a Strategic Organizing Fund and provided a plan to
rebate $15 million to affiliated unions that met high standards in union organizing.111

Also, there have been suggestions that new forms of unions be created. Richard
Freeman has proposed a new form of unionism open source unionism wherein
union membership does not depend on unions proving that they have majority support
of employees and negotiating collective bargaining agreements. Open source unionism
builds a common collaborative platform, language, and practice among workers who
may operate at some distance from each other and at different work sites. Union mem-
bership would be defined more in terms of shared values and actions than collective bar-
gaining with an employer. Representation would be extended to individual workers

CHAPTER 5 Why and How Unions Are Organized 237

rather than members of a bargaining unit and would continue to extend to the members
as they move from employer to employer. Using the Internet, unions would be able to
connect with this diverse and dispersed membership. This form of open unionism could
appeal to a tremendous source of untapped union members who may be organized away
from their workplace and away from their employer s opposition. Forty-two million
workers have expressed a need for some form of representation, and open source union-
ism could appeal to professional workers and others who need assistance with their
employment contracts, overtime regulations, pensions, and health care benefits, but
who believe that the traditional form of union representation through collective bargain-
ing may not be appropriate for them.112

Removing a Labor Union

An employer may raise a good faith doubt as to whether its union represents the
majority of employees. The NLRB and the courts have developed presumptions and
rules related to determining good faith doubt. First, there is a presumption of majority
status for one year following certification by the Board. The second presumption is that
majority status continues for up to three years if the collective bar gaining agreement
extends for three years. At the end of the certification year or the expiration of the
three-year collective bargaining agreement, the employer may rebut the presumption
of the union s majority status by presenting objective evidence that the union
does not continue to represent the majority of bargaining unit employees. Examples
of this good faith doubt evidence include (1) a reduction in dues-paying members,
(2) a high percentage of employees crossing a union picket line during a strike,

Exhibit 5.11
Examples of Handbills Distributed During Representation Election Campaigns


238 PART 1 Recognizing Rights and Responsibilities of Unions and Management

Union Salting: A New Union-Organizing Tactic

Town & Country Electric, a nonunion electrical con-
tractor, needed to hire several licensed Minnesota
electricians for construction work within Minnesota
and advertised the positions through an employment
agency. Eleven union applicants, including two profes-
sional union staff members, applied for jobs. Only one
union applicant was interviewed; he was hired but
was subsequently dismissed after only a few days
on the job.

The IBEW filed a complaint with the NLRB against
Town & Country. The complaint was that the company
refused to interview applicants and refused to retain
union members because of their union membership,
which was in violation of the National Labor Relations
Act (NLRA).

An administrative law judge and the Board deter-
mined that all of the union applicants were employ-
ees under the language of the NLRA. Although the
applicants had not been hired, applicants are covered
under the prohibition of discrimination in regard to
hire under the NLRA. The board found it immaterial
that the union applicants intended to try to organize
Town & Country employees upon securing employ-
ment, as well as the fact that the union would be paying
these employees to organize a union.

The U.S. Court of Appeals for the Eighth Circuit
reversed the NLRB and held that the board had incor-
rectly interpreted the definition of employee in the
NLRA. The Court ruled that the NLRB did not protect
employees who were working for a company while
simultaneously being paid by the union to attempt to
organize employees of the company.

The U.S. Supreme Court determined that the
NLRA sought to improve labor management relations
by granting employees the right to organize, form
unions, join unions, and assist in organizing unions.
The high Court ruled that the meaning of the word
employee was critical and that the language and defi-
nition of employee includes paid union organizers. The
Court noted that the NLRB was created to administer
the NLRA and will be upheld when its rulings are rea-
sonably defensible. The Court indicated that it relied
on the NLRB s expertise and congressional intent in
its rulings. Furthermore, the Court ruled that Congress
had delegated the primary responsibility for developing
and applying national labor policy and that the Board s
views are entitled to the greatest deference by the
courts. The principal difference between salting
and the traditional organizing is that salting is a

top-down approach and traditional organizing is a
bottom-up approach. Union salting may be called

covert or overt. Covert salting is like a Trojan horse in
that a full-time union organizer applies to a help-
wanted ad placed by non-union businesses. The
union organizer does not reveal that he or she is
employed by the union. The employer does not con-
duct a background or reference check, and the union
organizer is hired by the employer. Once employed,
the union organizer initiates an organizing campaign.
Overt salting occurs when the union organizer reveals
in the application process that he is employed by the
union. If he is denied employment due to his union
affiliation, he files a charge of an unfair labor practice
against the employer for discriminating against him
because of his union membership.

Refusal-to-hire cases have three criteria by which
cases are analyzed. First, there must be evidence that
the employer was hiring or had concrete plans to hire at
the time of the unlawful conduct. Second, the applicant
must have been qualified for the job. Third, there must
be anti-union reason that contributed to the decision not
to hire the applicants.

Once these criteria are met, the burden shifts to the
employer to show that it would not have hired the appli-
cant even in the absence of his/her union activity or

Since the Town & Country Decision
Since the Town & Country decision, there has been a
53 percent increase in overt salting activities and a 47
percent increase in covert salting. By 2001, there were
55 union salting unfair labor practices cases before the
NLRB. Of the 55 cases, 6 were dismissed and 3 were
remanded to the administrative law judge. In 43 cases,
the charges were upheld by the NLRB. These charges
were associated with monetary penalties of back pay.
These charges included unlawful discharge, unlawful
layoff, refusal to consider for employment, refusal to
recall from layoff, unlawful suspension, and refusal to
reinstate strikers. Interestingly, nonunion contractors
may join the Associated Builders and Contractors
and take out salting insurance, which pays legal fees
and up to 90 percent of back pay awards issued by the

The appellate courts have cut back on some union
salting activities by finding that an employer may fire a
union salt if he or she falsified his or her employment

application to obtain a job or the union salt violated a


(3) resignations from the union, or (4) a petition by employees without company
involvement.113 (See Exhibit 5.12 for other examples of objective evidence.)

From 1951 to 2001, an employer could lawfully withdraw recognition from an
incumbent union if it could show that the union no longer had the support of a majority
of the bargaining unit or had a good-faith doubt, based on objective evidence, of the
union s majority status. The Board has indicated that it is entirely appropriate to
place the burden of proof on the employer to show that there is an actual loss of major-
ity support for the union. In 2001, the NLRB ruled that where there have been no unfair
labor practices that tended to undermine the employees support for the union, loss of
majority would be the sole legal basis for withdrawing recognition from an incumbent
union. The Board eliminated the good-faith doubt requirement and now provides for
the employer to seek a new representation election if the employer can show a reason-
able uncertainty that a majority of employees still support the union. The logical conclu-
sion is that employers should not be allowed to withdraw recognition of the union short
of a new representation election.114

lawful moonlighting policy that does not allow
employees to hold two jobs at the same time. In other
words, the court found that the dual employment rule
was lawful if applied in a nondiscriminatory manner.

SOURCES: Jeffrey A. Mello, The Enemy Within: When Paid Union Organizers
Become Employees, Labor Law Journal, 47 (October 1996): 677 679; NLRB v.
Town & Country Electric, Inc., 116 S. Ct. 450 (1995); NLRB has developed

guidelines in FES (a Division of Thermo Power) 331 N.L.R.B. No. 20, May 5,
2000. See also Cory R. Fine, Union Salting: Reactions and Rulings since Town
and Country, Journal of Labor Research, 23 (Summer 2002): 475 483; Jeffrey A.
Mello, Putting a Big Chill on a Big Hurt : Genuine Interest in Employment of
Salts in Assessing Protection under the National Labor Relations Act, Employee
Rights and Responsibilities Journal, 21 (2009): 40. Also see NLRB v. FES (a
Division of Thermo Power), 301 F.3d. 83, 3rd Cir., 2002; Oil Capitol Sheet Metal,
Inc., 349 NLRB No. 118, May 31, 2007; Jeffrey A. Mello, Putting a Big Chill,
Employee Rights and Responsibilities Journal, 21 (2009): 37 49.

Exhibit 5.12
Examples of Objective
Evidence* of Union s Lack
of Majority Status

1. Unsolicited communications from employees expressing a desire to become

2. Any material change in the size or composition of the unit, such as a reduction in
the number of employees

3. Date of union certification
4. Failure of the union to appoint a shop steward or committee
5. Failure of the union to process grievances
6. Failure of the union to actively represent employees on matters arising under the

7. Failure of the union to hold meetings that could be attended by the employees
8. Failure of the employees to attend union meetings
9. Failure of a majority of employees to authorize a dues check off if the contract

provides for one
10. Whether the union has communicated a lack of interest in representation to

either the company or the employees
11. Whether employees have filed or attempted to file a decertification petition of

their own.

* Objective evidence is defined as reasonable grounds to believe that an incumbent union no longer represents a majority of bar-
gaining unit employees.

SOURCE: Clyde Scott, Kim Hester, and Edwin Arnold, Employer-Initiated Elections, 1968 1992, Journal of Labor Research, 18, Spring
1997, p. 317.


Whenever employees believe that the union is not representing their interests, they
may turn to a decertification procedure. Researchers have identified a variety of reasons
for such a shift:

Fair treatment of employees by employers
Poor job by unions (especially smaller unions) of providing services to members
Inability of unions to negotiate an effective first contract after winning bargaining rights
Striking employees having skills that can be easily replaced115 so that when a strike
occurs, the employer hires replacements

Any employee, group of employees, or employee representative may file a petition
for a decertification election 12 months after the union has been certified or upon expi-
ration of the labor agreement (see the contract bar doctrine discussion earlier in this
chapter). This petition must be supported by at least 30 percent of the bargaining
unit employees.

If the employees choose to decertify their union, another representation election
cannot be held for 12 months. However, after a valid petition is filed with the NLRB,
but before the election, the employer must still bargain with the union until the question
of union representation is resolved.

Although employers must be careful of their role in the decertification process, they
have exhibited growing interest in it. For example, a one-day seminar, The Process of
Decertification by Executive Enterprises, is designed to teach management representa-
tives about the entire process of decertification. Many employers have concluded that
they should become more involved, especially because they are becoming aware that
they do not necessarily have to play a passive role in the decertification process.

Employers may become active participants in the decertification efforts after the
petition is filed; however, they should do so only after analyzing the costs and benefits
of such a strategy. For example, if the company actively campaigns against the present
union and the union wins the election and continues to represent employees, the long-
term relationship with the union may be irreparably damaged. Moreover, if the com-
pany s relationship with the present union is reasonable and productive, it might be
wiser to retain it than chance a later replacement by a more militant union.

If the employer chooses to become engaged in the decertification campaign, similar
representation election rules and policies apply. For instan