Category Archives: Organizing

Second and Ninth Circuits Address Balance Between Union Speech Rights and Employer Property Rights

Source: Jeffrey S. Bosley and Larae N. Idleman, Employee Relations Law Journal, Vol. 35 no. 1, Summer 2009

In this article, the authors discuss two circuit court cases which examine the balance between employer property rights and the rights if non-employees and unions to engage in organizing activity and other communications. These conflicting decisions, and the different analysis applied in each case, underscore the importance of careful review of restrictions on non-employee access and speech. The authors advise employers and property owners to continue ti monitor this evolving area of the law.

Majority Authorizations and Union Organizing in the Public Sector: A Four-State Perspective

Source: Robert Bruno, Adrienne E. Eaton, Mohammad Abbas Ali, Sally Alvarez, Legna J. Cabrera, Lynn Feekin, Keith Appleby, Jennifer Schneidman, A Joint Research Project of the: University of Illinois School of Labor and Employment Relations, Department of Labor Studies and Employment Relations – Rutgers University, Extension Division, School of Industrial and Labor Relations – Cornell University, University of Oregon Labor Education and Research Center, May 14, 2009

New York, New Jersey, Illinois, and Oregon have provided a mechanism for nearly 35,000 public sectors workers to express their interest in becoming union members. The process has worked without systematic or episodic employer or union abuse. While not identical, the states’ majority sign-up provisions are similar to the proposed federal Employee Free Choice Act. As the debate over the national legislation continues, it is important for policymakers to have access to hard data detailing the impact of a majority sign-up provision. In the interest of constructing sound public policy, the states can make a valuable contribution to the pursuit of an informed judgment about labor law reform.

As is true in so many other policy areas, on the subject of union representation, the states are incubators for new ideas and practices. New York, New Jersey, Illinois, and Oregon have demonstrated that a majority-authorization petition can genuinely determine the will of the employees to be unionized and provides a functional, largely non-adversarial and eventless process for insuring a fair work environment for everyone.

As Easy as ABC?: Learning to Organize Private Child Care Workers

Source: Tony Brown, Labor Studies Journal, Vol. 34 no. 2, June 2009
(subscription required)

From the abstract:
This article examines the emergence of privatized child care in Australia and the efforts of one trade union to organize previously unorganized child care workers. The rapid growth of private child care delivery and the profits that are being generated are recent phenomena in Australia. The company that has emerged as the biggest provider is now expanding into the North American market and believes that its model is transferable into other human services areas, such as aged care. The article considers these developments in the context of the spread of precarious work and the new organizing methods being adopted by the child care workers’ union to recruit members and establish their power within the industry.

No Holds Barred–The Intensification of Employer Opposition to Organizing

Source: Kate Bronfenbrenner, Economic Policy Institute, Briefing Paper #235, May 20, 2009

This study is a comprehensive analysis of employer behavior in representation elections supervised by the National Labor Relations Board (NLRB). The data for this study originate from a thorough review of primary NLRB documents for a random sample of 1,004 NLRB certification elections that took place between January 1, 1999 and December 31, 2003 and from an in-depth survey of 562 campaigns conducted with that same sample. Employer behavior data from prior studies conducted over the last 20 years are used for purposes of comparison. The representativeness of the sample combined with the high response rate for both the survey (56%) and NLRB unfair labor practice (ULP) charge documents (98%) ensure that the findings provide unique and highly credible information. In combination, the results provide a detailed and well-documented portrait of the legal and illegal tactics used by employers in NLRB representational elections and of the ineffectiveness of current labor law policy to protect and enforce workers rights in the election process.
See also:
Fact Sheet
Press Release

Washington Post Supports Union Access During Organizing Campaigns

Source: David Doorey, Professor of Employment & Labour Law at York University in Toronto, Doorey’s Workplace Law Blog, May 12th, 2009

I have noted before what I see as the hypocrisy of those who advocate for mandatory certification ballots as the only ‘fair’ way to test employee wishes about whether they wish to move from the individual employment contract model to the collective bargaining model. They argue that the alternative model, of certifying unions when a majority of employees have signed a document claiming the wish the union to represent them, is ‘unfair’ because it does not ensure that the employees hear the ‘other side’ of the argument from the employer, and therefore may be mislead by the union and its supporters.

The hypocrisy lies in the fact that these supporters of a ‘fair election’ process usually also go ballistic whenever anyone suggests that the union’s organizers should be entitled to speak to the workers at the workplace. The sort of ‘fair’ election they want is one in which employers have unfettered access to the workers all day long to explain why unions are bad, and the simultaneous property right to prevent unions from even entering upon company property to explain the union’s side of the argument.

If we want an open and frank discussion about the pros and cons of collective bargaining-which seems like good policy to me-why doesn’t the state simply encourage that by ensuring that unions have equal access to the workers in non-working areas of the workplace (like lunchrooms, etc). That’s what the British laws require, where the state aims to ensure ‘equality of access’ to workers in the period preceding a unionization ballot.

What To Do About a Union Neutrality Agreement?

Source: John C. Gilliland, II, Esq., Home Health Care Management & Practice, Vol. 21 no. 4, 2009
(subscription required)

From the abstract:
As union organizing of home health agencies increases, many agencies will be asked by a union to enter into a “neutrality agreement” with the union. Whether to agree to such an agreement is a very significant decision for an agency. It requires an agency to understand how such an agreement affects the unionization of its employees and the agency’s own goals with regard to unionization.

State Laws Allowing Majority Sign-up for Unions Show why Employee Free Choice Act is Fair Option for Workers

Source: Progressive States Network, Stateside Dispatch, May 7, 2009

It seems relatively simple. The proposed federal Employee Free Choice Act would give employees the freedom to form a union when a majority of workers sign cards saying that they want one, avoiding the often months of employer harassment that have inevitably accompanied traditional National Labor Relations Board (NLRB) election processes.

State laws allowing majority sign-up for groups of public and private employees have been enacted in California, Connecticut, Illinois, Iowa, Kansas, Maryland, Massachusetts, Michigan, Minnesota, Montana, New Hampshire, Nevada, New Jersey, New York, North Dakota, Ohio, Oklahoma, Oregon, Washington, and Wisconsin. Examples of these statutes include Oregon Revised Statutes, 243.682 for public employees and New York Chapter 31, Article 20, Section 705 covering both public employees and a number of private industries.

So you’ve got one system — NLRB elections with a demonstrated history of massive, overwhelming employer abuse — and another system — majority signup operating in many states with no evidence of any of the abuses alleged by opponents. If it works in the states, why not bring its benefits to more employees?

Playing With Cards: The Incompatibility of the Employee Free Choice Act and the National Labor Relations Board’s Current Doctrines and Practices Governing Union Authorization Cards

Source: Daniel V. Johns, Labor Law Journal, Vol. 60 no. 1, Spring 2009

This article addresses whether the National Labor Relation Board’s current doctrines and practices concerning union authorization cards make sense in a post-EFCA card recognition world. At present, the Board generally does not allow any employer challenges to a union’s showing of interest through authorization cards during representation hearings. Nor will the Board allow employers to examine authorization cards in order to look for evidence of fraud or other misconduct in the card-signing process. Moreover, the NLRB generally holds that any organizing campaign is timely, provided it is no more than one year old. Such rules perhaps make sense under the National Labor Relations Act’s current scheme for resolving union representation issues, wherein cards generally are used only to determine whether there is sufficient interest in unionization among the sought-after unit of employees before the NLRB orders a secret ballot election to determine in the employees will be represented.

A Study of Illinois’ Majority Interest Petition Provision 2003-2009

Source: Robert Bruno, School of Labor and Employment Relations, University of Illinois, 2009

In the spring of 2009 the School of Labor and Employment Relations (LER) at the University of Illinois conducted a study of the state’s nearly six-year old mandated majority authorization process for organizing employees in the public sector. The project was inspired by the national debate surrounding the proposed federal Employee Free Choice Act. Corporate allegations that the national law will allow employees to be coerced into signing “card’ or “petitions” motivated LER to conduct an objective assessment of how Illinois’ law is working. The results of the study unambiguously revealed that the majority sign-up provision was used extensively without hint of union or employer abuse.