Here are some frequently asked questions about organizing
How can I start talking to colleagues about unionizing, especially when we are all remote?
Usually, I encourage folks to spend time casually socializing before very quietly popping the union-question. But as it turns out, whispering is sorta hard from six feet away and over your office video chat software. Chances are if you’re thinking about organizing your coworkers are too. Whether you’re working remotely or back in the office, approaching colleagues about unionizing takes a little bit of bravery and a lot of trust that they won’t rat you out.
Encryption is key. Keeping your conversations about unionizing completely secret should be the first priority. Starting a Signal thread, Slack channel, or hosting a Zoom meeting (using your own non-work accounts) on your off-time is a great place to begin. You can ease into things by asking coworkers to discuss topics that enrich your “outside of work” relationships, like a book club, space for venting, or a discussion circle.
Nobody with hiring- or firing-power should be allowed to participate. It’s not a birthday party, so not is invited. As a general rule, you’ll want to recruit one person from each shift, department, and demographic for your organizing committee. Make a list of all your coworkers. Start with the coworkers you trust the most. Try to have some one-on-one conversations with them about why they love their job and what they think could be better. Keep (offline!) notes about what issues are most important to which coworkers. Once you see patterns emerge, it will help you build confidence to approach other coworkers.
Depending on your work relationships, you may be able to skip all the façade of relational-enrichment and directly address concerns about wages or working conditions one-on-one with your coworkers.
But don’t ever forget: you can and will get fired if your boss finds out you’re trying to organize. They’re watching, and they’re watching extra-closely if you’ve transitioned to remote work.
If you’re going to organize, you’ll have to do some legit spy-work. Code words. Snail mail. False-flag tweets about how happy you are at work. Keep all conversations about organizing off of work-provided devices and accounts, outside of office hours, and far, far away from your boss’ bat-ears.
How do we pick a union to work with?
When choosing a union, the most important part is to trust your gut. The labor movement is decentralized, which means each union—and each union local—has its own culture of participation. Some unions are very aggressive and do a lot of direct action. Other unions have long-standing personal relationships with decision-makers. Some unions are very focused on more money in paychecks, while other unions focus almost exclusively on working conditions. Similar to choosing a life partner, knowing what you want is the first step to finding the right fit.
At the end of the day, a union is not much more than a contract between employees and their employer. Union staffers research, write, negotiate, and maintain your employment contract. Unions are determined by industry because they grow expertise in contract writing. Unions that have done a lot of contract writing in your industry are more attuned to your specific needs and they have a wheelhouse of solutions that help you get what you want out of your contract.
The AFL-CIO has a list of all their affiliates, and there are also a slew of unaffiliated unions you can join. The Industrial Workers of the World advocate for “One Big Union for All.” Sometimes, unions adopt new industries into their membership as they adapt to changing economies. For example, the first unionized Yoga Teachers were technically Machinists. Really, there are no rules.
While industry knowledge is important to consider, so are shared values. Some unionists are anti-abortion, misogynistic, and patriarchal. Many unions are too-large to be busied by small bargaining units, and you may not get the attention or direction you deserve, which can undermine your success. On the other hand, those very large unions often come with a lot of power, influence, and money.
You want to find a union that knows their stuff, can support you and your coworkers and isn’t too busy for you. Trust your gut.
Can any workplace unionize, even if we are small? We have a fiscal sponsor, how do we unionize in that environment?
Any workplace can unionize, but you do need at least two people to form a union. Bargaining units are usually determined by two factors:
- Job description: all people who have similar duties at work are in the same bargaining unit.
- Supervisory status: people who are supervised (or paid) by the same people can be in the same bargaining unit.
If your job description is very different from everyone else you work with it could be a huge barrier to getting a union contract. You can still do it, but you’ll have to get creative and stay persistent in the face of rejection.
To win your election, you need at least 50% of your bargaining unit to vote UNION YES, and you don’t have to include every corner of your clinic or office to form a union. As a general rule, for every 10 people in your bargaining unit, you need 1 dedicated person in your organizing committee.
It should be expected that your employer will challenge—in court—whether or not certain employees are valid members of the bargaining unit after a union election is won. They base their claims on things like the number of weekly hours, salary brackets, and role distinction; “they knock on doors but you do facilitation.”
If your organization uses a fiscal sponsor, is an affiliate of a national organization, or has different branches for the c3 and c4 work, you can figure out who actually employs you by looking at your pay stub, W4, or W2. There is an Employer Identification Number (EIN), which you can search online to determine who you’re really negotiating with.
If you’re already under a contract (like an independent contractor, campaign worker, or if your job had an end date when you accepted it), then you might not be able to unionize in a traditional sense, but you can still become a “Wobbly”, join industry-wide unions, form alliances, and innovate other types of organized leverage-building.
How can we keep the unionizing momentum going with high staff turnover?
If you have high staff turnover, you’ll need to think of your campaign as a 100-yard-dash rather than a marathon. Workplaces can have up to a year of tiptoeing around before they organize, but once the campaign goes public it is always the same sprint to the finish line. Your finish line just needs to be closer to the start. Graduate employee unions are particularly good at this, and are often very happy to discuss their tactics and strategies; never hesitate in reaching out to other locals who have organized under similar circumstances.
When you’re shopping around for unions to represent you, ask them how they handle high employee turnover. They should give you two answers:
The organizer should provide samples of solutions to the core issues which cause a high turnover in the first place
The union should offer to send you paid union workers (or provide you funds to pay local organizers) which will increase your capacity for a high-velocity organizing drive.
Organizing drives are really exciting, but they’re also exhausting. Ask the union to provide you with per diems to purchase morale-boosting and life-sustaining supplies like granola bars and coffee. Ask your union how the miniVAN or other databases can help you track and communicate your data during these high-intensity organizing times. Find a good babysitter so prospective members and other employees have the freedom to make house visits, track down friends from work, and make phone calls. Get a lot of masks and hand sanitizer. Get emotionally prepared to be organizing.
You’ll likely be talking to everyone you work with, and every conversation has to end with a signed union card or letter of solidarity and support. You’re not “selling” anything, so don’t worry about being like a used car salesman when you focus on the close. You’re giving people an opportunity to invest in their future at work, but the opportunity only lasts a few days. If they walk away from your conversation without signing a union card, there’s a chance they’ll tell your boss what’s going on.
We won’t have enough time for slow layers of building trust and slow tidbits of information revealed. The entire organizing trajectory: from “Hi, my name is Emily, I work over there” to a “yeah, I agree! I wish we had more XYZ here,” and finishing out with “Exactly, that’s why we’re forming a union, will you join us by signing this card?” is in ONE conversation. SEIU does them in 15 minutes, so yes it can be done. Whichever union you choose for representation will train you for house visits in their own way.
Remember, if you lose or run out of time; you could be fired, so organize like your livelihood depends upon it.
Will you be burned out? Yes. But if you do it right, the team will have a second-wave of newly-fired-up workers who can come into leadership after recognition to ratify your first contract.
Where does middle management fit into unionizing? How can we (middle managers) provide support?
Good question! Form your own union and be a double-agent for the cause! Middle managers have a lot of power during a union organizing campaign, but you’ll also be entirely without protection or recourse if your boss retaliates against you, so secrecy is the name of the game yet again. You can, and likely will, get fired for standing in solidarity with your unionizing coworkers. Unfortunately, worker protections afforded during a union organizing campaign will not protect you, and it’s unlikely the union will go to bat for your job if you get fired for your good service.
The very best way middle management can support unionizing workers is by forming a union of your own. Managers deserve union representation too! But, the only rule is that you cannot be in the same bargaining unit as people you supervise. By organizing separately at the same time, it is an immense amount of added pressure to leadership, and you’re both more likely to win big during ratification.
If you’re willing to stick your neck out, but not ready to unionize, you can be helpful by writing letters to the editor, getting signatures on a letter of solidarity and support that you deliver to leadership, and sending messages to donors and patients. Praise the unionizing workers every chance you get. Confirm in the public eye that they’re good employees and tell everyone you know that you think it’s really great they’re getting organized. Commit to the union you’ll walk out, too just in case it comes to that.
Union-busting activities are usually placed upon the shoulders of direct supervisors. You can refuse to distribute anti-union literature if you’re asked to do so. You may be given a script to stick to when talking about “The Union.” Never hesitate to report anti-union activities to the National Labor Relations Board and your state’s Labor Board, because disparaging union organizing at work is illegal.
Standing in solidarity with your unionizing coworkers means refusing to do the dirty work of the oppressors. Leadership often makes middle managers feel like they’re above, separate, or different than those they supervise. Don’t let them feed your ego or cloud your vision. Divest from the boss in your head, and always always always follow the lead and direction of the unionizing workers’ organizing committee before taking on any radical efforts of your own.
You may not be “The Boss,” but you are “a boss,” so don’t forget to unpack your privileges and believe the workers when they spill tea. You may be privy to privileged information like salary lists, records of performance reviews, or contact information. You may also get privileged information in closed-door meetings or leadership retreats. Don’t underestimate how important this information is for coordinating the unionizing campaign and garnering leverage. Offer to share what you know.
What exactly is a union?
Broadly speaking, a union is a group of workers who join together to advocate for improvements at the workplace—higher pay, better benefits, training and promotional opportunities, and protections against sexual harassment— and around other issues that concern them.
By acting collectively, workers have a more powerful voice when approaching their employer about the changes they want. Workers most typically form a union with an existing union in their industry or area, so they then can draw upon the union’s expertise and strength in their negotiations with their employer.
Under U.S. labor law, “labor organizations” are required to follow rules on governance, financial disclosure and other aspects of their operations. They are democratic membership organizations whose members elect their leaders and set the direction of the union.
How do workers go about getting union representation if they want it?
There are two paths for workers interested in forming a union:
▶ Majority signup, or “card-check” recognition. Workers collect petitions, cards or other written statements from a majority of a designated group of workers (called a “bargaining unit”) and ask their employer to voluntarily recognize their union.
Employers do sometimes agree to recognize the wishes of their employees based on the petitions or cards. But under current law, employers can refuse to voluntarily recognize their workers’ choice, and can require workers to hold a secret ballot election to determine whether a majority wishes to be represented by a union.
▶ Secret ballot election. Workers file a petition with the National Labor Relations Board, or a state agency for state government employees, showing that at least 30% of the bargaining unit wants a union. The NLRB investigates the petition and schedules an election. If a majority of workers votes for a union, the union will be certified by the NLRB. The election process is fraught with problems.
What is the NLRB election process?
If an employer refuses to voluntarily recognize a union designated by a majority of employees as their representative (i.e., majority signup or card-check), then the workers need to file a petition for an election overseen by the NLRB or relevant state agency.
Employers often manipulate and delay the NLRB process to slow down elections, because this gives them more time to campaign against the union. Three-quarters or more of private employers hire union avoidance consultants (union-busters) to quash the union campaign.
In 2015, the NLRB adopted modest reforms to streamline the election process and eliminate some of the unnecessary delays. The rules were upheld twice in federal court, and have helped to reduce delay in the election process.
Republicans have tried for years to overturn the election rules, and the Republican majority on the NLRB has asked for public comments on overturning or weakening the rules.
Can workers be fired for trying to organize a union?
Not legally, but employers fire workers who are union activists all the time, because they know what a chilling effect this has on the organizing campaign, and they know the consequences they will face are little more than a slap on the wrist.
Data show that one-third of employers fire workers during organizing campaigns. This is illegal, and the NLRB investigates hundreds of charges of illegal firings and retaliation each year. In fiscal year 2018, the NLRB obtained 1,270 reinstatement orders from employers for workers who were illegally fired for exercising their rights under labor law, and the NLRB collected $54 million in back pay for workers.
But there are no monetary penalties against employers who illegally fire workers—only the back pay that the employer would have been paying the worker all along, minus any wages the worker did or could have earned in the meantime.
What is a union-buster?
Union-busters are hired by employers to discourage workers from forming a union, or to turn workers against the union that already represents them. Union-busting is a big industry in the United States. Three-fourths or more of private employers hire union-busters when their workers are seeking to form a union, and they pay these union-busters $200 million a year.
Union-busters prepare anti-union propaganda (videos and other materials), and they advise employers on tactics to discourage unionization, such as one-on-one meetings where supervisors pressure workers not to support the union, and mandatory meetings where employers make dire predictions about adverse consequences if workers choose to organize.
The union-busting industry operates in the shadows. An Obama administration rule to bring about more transparency and disclosure of union- busters and their work—known as the “persuader rule”—was repealed by the Trump administration in July 2018.
What is a lockout?
A lockout is when an employer prohibits employees from working (and being paid) in order to pressure employees to accept the employer’s demands in bargaining. It is an aggressive move by an employer to use its power and economic leverage against its employees.
Lockouts used to be extremely rare, but have been used more frequently by employers in recent years.
What law protects workers’ right to organize?
For private-sector workers, the primary law establishing their right to form unions and engage in collective bargaining is the National Labor Relations Act.
Workers in the airline and railroad industry are covered by the Railway Labor Act.
Federal-sector workers are covered by the Civil Service Reform Act of 1978.
The rights of state and local public employees, such as teachers, firefighters and other public service workers, are determined by state and local law. These rights vary widely from state to state, and public-sector workers only have comprehensive collective bargaining rights in 23 of the 50 states.
In some states, there is no comprehensive collective bargaining law for public employees, but cities and counties within the state might provide these rights for some or all public employees in their jurisdiction.
Does the NLRA protect all workers?
No. The NLRA protects workers in the private sector, not the public sector. Certain groups of workers are excluded from the NLRA’s protections, including agricultural workers, domestic workers who work in a private household, supervisors, independent contractors and workers who are covered by the Railway Labor Act. Some of these workers may be covered by state law in some states.
Does labor law only protect workers in unions?
No. The NLRA protects the right of all private-sector workers covered by the law to engage in “concerted activity” for their “mutual aid and protection,” regardless of whether the workers are in a union or seeking to form a union.
So, for example, the Google workers who recently went on strike to get Google to end forced arbitration were protected by labor law, because they were engaged in a group activity for their mutual aid and protection. Similarly, the law protects workers who protest safety conditions at their workplace, or wage
issues, or other issues of concern. It is illegal for employers to retaliate against workers engaged in concerted activity, but unfortunately it happens all the time, and many workers who do not have a union are unaware that the employer has broken the law and violated their rights.
Does the NLRA protect workers against sexual harassment?
Not directly, but it contains rights and protections for workers who take action against sexual harassment. The NLRA protects the right of workers to join together in mutual aid and protection. So if a group of workers is concerned about sexual harassment, the workers can join together in demanding that their employer institute stronger measures to prevent and address harassment, and it is illegal for their employer to retaliate against them for engaging in this action.
However, the NLRA does not require the employer to agree with its workers. Workers who form a union typically have protection against sexual harassment through their collective bargaining agreement, which usually includes anti-discrimination protections and prohibitions against sexual harassment. These provisions are enforced through the grievance procedure or other means at the workplace.
Many unions have negotiated additional protections against sexual harassment for their members. For example, UNITE HERE, the hotel workers union, recently won panic buttons and other protections for housekeepers to protect them against harassment and assault at work.
Can workers be forced to join a union?
No. No worker can be required to join a union or face retaliation for refusing to join. In fair share states, workers who are represented by a union can be required to pay an agency fee toward the cost of that representation if the employer and the union agree to this arrangement. Also, no worker can be required to pay for political activity by a union.
What does right to work mean?
Right to work is a system advocated by anti-union groups by which unions chosen by a majority of workers are legally prohibited from reaching an agreement with the employer that all workers represented by the union share in the costs of that representation, either through joining the union and paying union dues or paying the union an agency fee.
Unions under a right to work system are required to represent all workers by negotiating collective bargaining agreements and handling grievances over workplace problems, but workers can choose to pay nothing for that representation.
More than half of the states (27) now have this system for private-sector workers, and it has been accompanied by lower wages and worse benefits for workers.
What is Janus v. AFSCME Council 31?
Janus was a case brought by wealthy, anti- union organizations as part of a multifaceted campaign to try to weaken unions and workers’ rights. In a 5–4 decision, the U.S. Supreme Court ruled that it is unconstitutional for employers and unions in the public sector to agree that all workers represented by the union should pay their fair share toward the cost of representation, in the form of union dues or agency fees. In other words, the majority in Janus made right to work the rule for the public sector. Four justices dissented, pointing out that fair share has been the law for decades and has worked well.
Does the Public Workers Freedom to Negotiate Act fix Janus?
The legislation does not change the ruling in Janus. Nothing in the legislation addresses the dues or fees that unions can charge workers the union represents. But importantly, the legislation provides the right to all public service workers to join together and form unions—a right that currently is lacking in half the states.
Why has the labor movement shrunk so much? Is it because workers no longer want unions?
Workers still want unions. In fact, recent polls show that public support for unions is higher than it has been in decades, and young people are the most pro- union of all. A recent study by the National Opinion Research Corp. found that 48% of workers who don’t currently have a union would like one.
The actual number of union members has held relatively steady for the past decade. But union density—the percentage of workers who have union representation—has declined as the overall workforce has increased. Union density has eroded for three main reasons.
First, trade policies and outsourcing have eliminated millions of good union jobs in the manufacturing sector and related industries.
Second, employers have gotten much more aggressive about resisting organizing campaigns by their employees. They hire union-busters and engage in aggressive anti-union tactics that previously were stigmatized.
Third, anti-union politicians and anti-union special interests like the Koch brothers and the National Right to Work Committee have attacked unions through policy initiatives and the courts. They have spearheaded legislation to eliminate or weaken unions, which has passed in a number of states.
What do Unions Do?
Unions are the principal means for workers to organize and protect their rights on the job. The union contract or “collective bargaining agreement” establishes the basic terms and conditions of work. Unions give workers a voice with employers and provide a means to gain a measure of security and dignity on the job. Most unions maintain a paid professional staff to manage their activities.
Unions pursue strategies and activities that serve the interests of their members. These include representing members and negotiating with employers, recruiting new members and engaging in political action when necessary to support policies that improve working conditions for all workers.
What is Collective Bargaining?
The simple phrase, collective bargaining, covers a wide variety of subjects and involves hundreds of thousands of union members in the process.
Representatives of labor and management negotiate over wages and benefits, hours and working conditions. The settlement reached is spelled out in a written document or contract. The contract normally contains a grievance procedure to settle disputes. It is the job of the union to enforce the contract on behalf of the members.
It has not been easy to establish collective bargaining as a permanent part of American life. The efforts of unions to establish the concept of collective bargaining are a little known, but very important part of American history, involving great sacrifice and bitter struggle. Historically, management took the position that because they owned the means of production, they had the sole right to determine the conditions of employment. Collective bargaining forms the cornerstone of industrial democracy.
Why are Unions Important?
Workers formed unions so that they could have some say over wages, hours, working conditions, and the many other problems that arise in the relationship between a worker and employer. Unions are important because they help set the standards for education, skill levels, wages, working conditions, and quality of life for workers. Union-negotiated wages and benefits are generally superior to what non-union workers receive.
Most union contracts provide far more protections than state and federal laws. For example, in many states there is no legal right for workers to take a break. More importantly, most states follow a legal doctrine called “employment at will” and non-union workers can be fired for reasons that might be arbitrary or for no reason at all.
Unions also work to establish laws improving job conditions for their members through legislation at the national, state and local level. This ultimately benefits all workers. The 8-hour work day is an example of a positive change won by unions that affects everyone.
Are Unions Still Important to Working People Today?
Unions are more important today than they ever were. It is no secret that in a global economy, the nature of work is changing and some employers resist unions. Research consistently shows that far more workers would join unions if anti-union campaigns weren’t so common. Misinformation and intimidation – including firing union supporters – are routine responses when workers try to form unions.
Workers have less power when they act individually, but acting together as a group they can effect real change. Unions are the collective voice of workers. Unions are the workers’ watchdogs, using their power to ensure that workers rights under the law are protected.
In addition to ensuring fairness and equitable treatment, many employers recognize that there are advantages to offering workers better wages and benefits. Companies concerned about long-term profitability want to maintain a supply of skilled labor and minimize turnover. The basic reason for this is simple: if unions provide a voice to workers, the number of dissatisfied workers who leave is reduced. Another valuable function of an organized workforce is that workers are able to contribute their knowledge about the job, which helps increase productivity.
What are the arguments against unionizing?
When employees organize, management often campaigns aggressively to dissuade them. The National Labor Relations Act protects the right to organize; it is illegal for employers to interfere with the exercise of that right through heavy-handed tactics such as retaliation against pro-union employees. But management is legally entitled to argue that unionization is a bad idea, and often they make such arguments vociferously. Management may distribute literature, call mandatory meetings all employees are forced to attend, and instruct supervisors to have one-on-one conversations with employees. Such anti-union campaigns can prove intimidating.
The anti-union arguments management makes tend to cluster around three major themes: (1) employees should trust management to do what’s best for everyone, without management having to formally negotiate with employees; (2) the union can’t be trusted; and (3) sticking with the status quo is better than the uncertainty of trying to make change in the workplace.
Here are some of the typical talking points that you are likely to hear from management (or even, perhaps, some anti-union coworkers) as they try to raise employees’ anxieties and discourage a Union Yes vote:
- “Management is already looking out for its employees’ best interests.”
- “Management has new plans to address longstanding grievances.
- “There’s an open door policy that allows employees to address their concerns outside of formal negotiations.”
“The company is a family.”
- “Be suspicious of the union.”
- “The union is a business, rather than a democratic organization advocating for employees.”
- “The union is a third-party or outsider interfering with the company’s family.”
- “Distrust union promises and guarantees.”
- “Look at the high salaries of union bosses.”
- “You will be forced pay the high cost of union dues, fees, and fines.”
“Worry about uncertainty.”
- “Restrictive union rules will result in a lack of flexibility or competitiveness.”
- “Unionizing raises the prospect of layoffs or closure.”
- “It’s possible that contract negotiations could make terms of employment worse than they are now.”
- “Unionizing means you would have to go on strike.”
- “You would lose the ability to speak for yourself once you’re a union member.”
What is a captive-audience meeting?
In the face of a unionization effort, employers often call mandatory meetings that workers are required to attend or be disciplined or fired
At these meetings, employers try to discourage workers from forming a union, often by making dire statements about the consequences if workers organize, e.g., the employer will close the facility
Nine out of 10 employers require employees to attend mandatory captive-audience meetings during organizing campaigns.
What is a collective bargaining agreement and who decides what is in it?
A collective bargaining agreement is a written contract between an employer and a union that represents a group of employees (bargaining unit) in a workplace. It typically addresses wages, benefits such as health insurance and paid sick days and vacation, health and safety issues, “just cause” protections from arbitrary discipline and other workplace issues.
What is in a particular collective bargaining agreement is up to the workers and the employer—the law establishes a process for collective bargaining but does not require any particular subjects or terms in a collective agreement.
Collective bargaining agreements generally also include procedures for addressing problems in the workplace through a grievance and arbitration procedure, joint labor-management committees and other structures, which provide a much quicker and more streamlined method for resolving disputes than relying on government agencies.
Collective bargaining agreements are legally enforceable contracts. This is one of the reasons workers choose to form a union—so they have a legally binding contract protecting their pay and benefits.
Do collective bargaining agreements protect workers from harassment and discrimination?
Yes. Anti-discrimination and anti-harassment provisions are typical in collective bargaining agreements, and they often are more expansive than the rights and protections provided under federal and state law.
For example, many collective bargaining agreements explicitly protect LGBTQ workers from discrimination and harassment, and workers facing these problems have access to a grievance and arbitration process to address the problem.
This provides far stronger protection and far faster recourse than exists for workers who aren’t covered by a union contract.
What is a strike?
A strike is when a group of workers stops working and withholds its labor from the employer. Workers strike to put economic pressure on the employer to take some action—agree to higher wages, adopt a stronger anti-harassment program or, as we saw with the recent Google strikes, end forced arbitration.
Workers on strike do not get paid. Sometimes employers who want to “break” the strike hire what are called “permanent replacements”—in other words, replacements who take the strikers’ jobs. The ability of employers to hire permanent replacements dramatically undermines workers’ right to strike, because workers know they could lose their jobs.
Sometimes workers go on strike over unfair labor practices by employers. For example, workers might strike if the employer illegally fires union activists. If the strike is found to be an unfair labor practice strike, workers cannot be permanently replaced by the employer and are entitled to get their jobs back.
Are strikes legal?
The National Labor Relations Act protects private-sector workers’ right to strike, with some limitations. For example, workers who have a collective bargaining agreement in place with a no-strike clause in it are not protected if they go on strike.
Under current law, a strike may be illegal if it is against a so-called “secondary” employer. For example, if workers at a manufacturing plant go on strike against their employer, it most likely would be illegal for workers at a bank that provides loans to the manufacturer to go on strike in order to pressure the bank to stop doing business with the manufacturing plant, even though this sort of solidarity action would be very helpful to the manufacturing plant workers.
Federal employees do not have the right to strike, and most state and local public employees are prohibited from striking.
What is the National Labor Relations Board?
The NLRB is an independent federal agency that enforces the NLRA. It investigates, prosecutes and adjudicates unfair labor practices by employers and unions, and oversees elections in which workers vote on whether to form or retain a union. The NLRB has five Senate-confirmed members who decide cases, and a Senate-confirmed general counsel who investigates and prosecutes unfair labor practices. By tradition, three members of the NLRB are from the president’s political party.
What is a joint employer?
And why is the NLRB’s Browning-Ferris decision so controversial?
Under every labor and employment law, such as Title 7 (discrimination protections), the Fair Labor Standards Act (wage and hour protections) and the NLRA, employees can have more than one employer. For example, temporary nurses hired by a temporary agency but placed at a hospital may be employed by both the temporary agency and the hospital, because both employers control aspects of the employee’s work.
As a result, both employers can be held liable for violations of workers’ rights. So, for example, if the temporary agency fails to pay workers overtime that they are legally due, both the temporary agency and the hospital can be sued for the wage theft. The same is true under the National Labor Relations Act. Two or more employers may “share or codetermine” workers’ pay, benefits or working conditions and be considered “joint employers,” meaning both employers have an obligation to bargain in good faith with the workers and can be held liable for violating workers’ rights.
In Browning-Ferris Industries of California, Inc., the NLRB updated its test for determining whether two employers are joint employers, and ruled that a recycling company was a joint employer with a staffing service that provided 80% of the line workers to the recycling company. Republicans and business groups criticized the ruling, saying it was too broad and would lead to franchisees being found to be joint employers along with their franchisors. But Browning-Ferris was not a franchise case, and the NLRB made clear in Browning-Ferris that it was not addressing the franchise relationship.
Nevertheless, Republicans have introduced numerous bills and appropriations riders to overturn Browning-Ferris and impose an extremely restrictive joint-employer test that is narrower than any test used under other laws. At the same time, the Republican majority on the NLRB is undertaking rulemaking to dramatically narrow the joint-employer test. At stake is the ability of contract workers and temporary workers to engage in meaningful bargaining over their conditions at work.
What is employment at will?
In the United States (except for Montana and Puerto Rico), employers can terminate any employee at any time, without warning, for “a good reason, a bad reason, or no reason at all, except in the limited circumstances where there is a law preventing the termination.”
In particular, if there is a binding employment contract for a period of time, an employer cannot terminate somebody in violation of that agreement, and an employer may not terminate employees on grounds of race, gender, religion, support for a union, national origin or other protected characteristics.
However, workers covered by a collective bargaining agreement typically are protected against termination unless the employer can show that it had “just cause”—that is, a good reason—for the termination. But unless there is a specific law or collective bargaining agreement providing protection, employers may lawfully fire workers for arbitrary and offensive reasons. For example, if the employer doesn’t like an employee’s looks, or thinks an employee is too attractive or not attractive enough, or doesn’t like the fact the employee refused to work overtime even if that meant missing a child’s appointment at school, the employer can lawfully fire that employee.
Combating this arbitrariness and unfairness is one of the reasons workers form unions and get the protections of a collective bargaining agreement.
What is “exclusive representation?”
Under U.S. labor law, if a majority of workers in a bargaining unit (which can be any group of workers the NLRB or state agency says is appropriate) votes for union representation, then the union becomes the “exclusive representative” of all of the workers in the bargaining unit, regardless of whether a particular worker joins the union or pays dues.
The union has a legal duty—called the “duty of fair representation”—to represent all workers, and it can be held liable in court if it fails to fulfill its duty. Because the union has a duty to represent all workers, the fairest system is for all workers in the bargaining unit to pay either dues or an agency fee to the union to cover the cost of representation. This “fair share” system is prohibited in states that have enacted “right to work” laws.
What is an “agency fee?”
An agency fee is a fee paid by a worker to the union that represents her and her co-workers to help defray the cost of the union negotiating a collective bargaining agreement and handling grievances and other problems at the workplace.
Agency fees are negotiated by unions with employers. A union cannot simply declare that there is an agency fee—the employer must agree to this arrangement, and many do, because of the fairness of the arrangement. Agency fees are legal in the private sector, except in right to work states.
Because of the Janus v. AFSCME Council 31 Supreme Court decision in 2018, agency fees are illegal in the public sector, meaning that workers can get the benefits of union representation (e.g., higher wages, better benefits and access to a grievance procedure to resolve disputes) without having to contribute anything toward the costs of this representation.
Do workers still need unions? Don’t we have laws providing the protections unions used to provide?
Workers form unions with their co-workers because they want a voice on the job and a way to negotiate with their employers on the issues that most concern them. Some of these issues are covered by other laws, but many are not, such as anti-discrimination for LGBTQ workers, scheduling issues, promotional opportunities and input on technological change.
Having a union strengthens a worker’s legal protections and gives workers a collective voice. This is why workers today, in all sorts of industries, are coming together to form unions.
Can workers in the gig economy organize a union?
Yes. Construction workers, actors, musicians and writers have worked “gig” jobs and been in unions for decades. Forming a union and working in the gig economy fit well together.
There is nothing about working through an online platform that automatically takes away workers’ right to form a union. Some workers in the gig economy are classified—or misclassified—by their employers as independent contractors. Independent contractors are not covered by the NLRA.
Nevertheless, some workers who currently are denied coverage under existing law have found ways to organize and exercise collective power. For example, for-hire drivers in New York City recently persuaded the New York City Taxi and Limousine Commission to pass a minimum wage for drivers.
How is the labor movement structured in the United States?
Most unions in the United States have a national organization with local unions that are chartered by and are part of the national union. Some unions also have state councils or chapters as part of the national organization. Each of these unions has its own governance and officers who are elected by the union’s members. The Department of Labor administers comprehensive rules governing the operation of unions.
What is a worker center? Is a worker center a union?
A worker center is a not-for- profit organization that provides services to, and advocates for, workers. Most worker centers are focused on particular populations of workers, such as immigrant workers, African American workers, restaurant workers or domestic workers.
Worker centers are resource centers where workers can get help with immigration issues, wage and hour issues, housing issues and the like. Worker centers differ from unions in that worker centers do not negotiate or administer collective bargaining agreements with employers. And, unlike unions, worker centers typically are not membership organizations.
In recent years, the Chamber of Commerce and others have tried to persuade the U.S. Department of Labor to define worker centers as unions, which would mean that all the legal requirements and restrictions applicable to unions—extensive financial reporting requirements, etc.—would apply to worker centers.
The Department of Labor has rejected this categorical argument and continues to review whether an organization is a union on a case-by-case, fact- specific basis. Worker centers are sometimes referred to as “alt-labor,” as in an alternative to traditional unions.
What are some examples of worker centers?
The National Domestic Workers Alliance, Restaurant Opportunities Centers United, CASA and the Workers Defense Project are all examples of worker centers.