Part Two: Union Organizing Systems in the Three NAALC Countries
United States
In the United States, organizing usually begins when workers concerned about working conditions make contact with a trade union representative. In some cases, union representatives actively seek contact with workers at a particular workplace for strategic purposes, usually when the union already has a collective bargaining relationship with the same employer or one or more other employers in the same industry. However, there is no requirement that a union limit its organizing to a single industry, or that workers seek a union that already represents workers in their company or industry. Many U.S. unions represent groups of workers totally unrelated to their principal industry. For example, the United Steel Workers union represents some nurses’ groups, the United Automobile Workers union represents some insurance company clerks, and so on.
The union representative normally arranges a series of meetings with workers in their homes, in a union office, or at restaurants, rented halls, or other meeting places. Workers inform the union representative about conditions in the workplace, and the union representative informs workers about how the union operates. Usually the most interested workers form an "organizing committee" to openly advocate for the union in the workplace.
Organizing in the United States
At some point in the process (it could be at the beginning or later, after the organizing committee has formed), the union representative distributes cards for workers to sign indicating their desire to have the union represent them in collective bargaining. Some unions prefer to have in-plant organizing leaders distribute the cards to co-workers inside the workplace, which is permitted as long as such solicitation takes place in non-work areas on non-work time (typically, in a break or lunch room).
If 30 percent of the workers who are part of the "bargaining unit"41 sign cards, the union may petition the nearest office of the National Labor Relations Board (NLRB or the Board) to conduct a secret ballot election to determine whether a majority of workers desire representation by the union. Normally, however, union organizers wait until a substantial majority of workers have signed cards (two-thirds is an informal measure often used by experienced organizers). The union then requests recognition from the employer, which is nearly always refused. The union proceeds to petition the NLRB for a representation election.
Slightly fewer than 50 days is the median length of time between the filing of the petition and the holding of the election. Most elections take place in 30B60 days; 20 percent of elections are held more than 60 days after the filing of the petition.42 The period can be extended when employers challenge the definition of the bargaining unit claimed by the union.
The weeks leading up to the NLRB election are usually marked by vigorous campaigning on all sides. The union organizing campaign often involves wearing buttons and T-shirts, distributing leaflets, holding rallies, and using other tactics. The employer’s anti-union campaign usually consists of managers’ speeches to assembled employees, letters to workers’ homes, and training and instructions to supervisors to convey the employer’s opposition to unionization in individual and group discussions with workers. Many employers engage consulting groups or law firms that specialize in directing the "union avoidance" campaign for management.
Typically, some employees within the group being organized are opposed to unionization. They often form a "Vote No" committee and campaign against the union supporters. It is unlawful for the employer to instigate or to assist such a committee. Intensive workplace discussions and arguments are common. After several weeks of such campaigning, the final days before an election usually reach a high level of tension.
NLRB agents conduct a secret ballot vote, usually in the workplace in a time span sufficient to permit all eligible workers to vote during working hours. A voting booth with a curtain to maintain ballot secrecy is normally used. After balloting is completed, the Board agent counts the votes with union and management observers present for the vote count.
Either party may file objections to the election claiming unfair tactics by the other side. If no objections are filed, or if the NLRB disposes of the objections without overturning the election, the election results are certified. If the union has won, the NLRB certifies the union as the exclusive bargaining representative, and the employer is obligated to bargain in good faith with the union.
In the 1990–1995 period, unions filed an average of 5,000 petitions for an NLRB election per year. After withdrawals and dismissals, elections took place in 3,200 of those campaigns, and unions won the election in about 1,500 cases (47 percent). (See Table 2 for statistics on union elections conducted by the NLRB, 1990B1995.)
Bargaining After Certification
The "good faith" requirement is often the subject of new unfair labor practice charges when a union and a company engage in fruitless negotiations. When the employer is found to be bargaining in bad faith, the remedy is an order to return to the bargaining table and bargain in good faith. Nothing in the law compels the employer or the union to agree to any contract clause or to reach an overall agreement. If they bargain to a genuine impasse, the employer may unilaterally implement its last proposal.43 The union may undertake a strike, or the employer may undertake a lockout, to back up their bargaining position.
Table 2. U.S. NLRB RC Election Results, 1990–1995a
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a Most RC (Representation Case) elections are held in connection with new union organizing at an unorganized workplace. These figures do not include decertification or other types of elections.
CanadaUnion organizing in Canada often begins with unorganized workers contacting a union representative for help forming a union in their workplace. Workers can seek any union to represent them; they are not limited to a union in their company or industry (Canada’s largest private sector union, the Canadian Auto Workers, bargains for workers in many industries unrelated to automobiles). A series of meetings normally takes place in workers’ homes or in meeting places. The basic mechanism for union formation is the signing of individual cards authorizing the union as the workers’ bargaining agent. In a majority of provinces, signing the card is effectively the vote for union representation. The federal jurisdiction and 6 of the 10 provinces provide for certification of the union as the workers’ bargaining agent if the union obtains signed cards from a majority of workers in the bargaining unit (in some provinces, the requirement is 55 or 60 percent to avoid disputes over small numbers of cards). The relevant labor board or labor commissioner in Quebec checks the authenticity of the cards before proceeding to certify the union. This is known as the "card-check" method of union certification. In those provinces that usually require an election,44 it is normally held within a few days of the application. In Ontario, for example, which recently switched from the card-check system to a mandatory election system, the election must be held within 5 days of the application. The result of both the card-check system and the rapid-election features of Canadian labor organizing is the relative absence of prolonged, aggressive workplace campaigning for or against union representation.45 Organizing Results in Canada A study of certification results in Canada in the 1990–1995 period shows that the two largest provinces, Ontario and Quebec, averaged 953 and 983 applications per year for new union certification received by their board or commissioners. British Columbia averaged 523 applications per year, and 161 per year were received by the federal labor board. For Ontario and Quebec, applications granted averaged 616 and 712 per year, a 65 and 72 percent success rate, respectively. British Columbia granted 338 certifications per year (65 percent of applications), and the federal board granted 102 per year, a 63 percent success rate. (See Table 3 for statistics on Canadian union certification results, 1990-1995.) Bargaining After Certification Canadian labor law establishes the obligation of an employer to bargain in good faith with a certified union. Failure to bargain in good faith is an unfair labor practice. In addition, however, a majority of provinces, and the federal jurisdiction, provide for a special settlement process that may lead to binding arbitration of a first contract when a newly formed union is unable to reach an agreement with the employer. Table 3. Applications for Certification and Certifications Granted in Selected Canadian Jurisdictions, 1990–1995 |
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Average "Success Rate" for four jurisdictions combined: 66 percent
MexicoThe union organizing system in Mexico is fundamentally different from the systems of the United States and Canada. In Mexico, unions require a public act of state granting the status needed to legally function. Unions must obtain this official registration with the appropriate government agency. For unions covered by federal jurisdiction, the registry resides in the Department of Labor. In state jurisdiction, registration is obtained from the state CAB. Under the law, the granting of registration is a purely administrative act, as long as the union complies with filing requirements.46 Any group of 20 or more workers, even if they are only a minority of the workplace’s employees, can form a union by a formal act of registering with the labor authorities. No election is necessary. Normally the union must affiliate with an existing registered union within the industrial sector for that employer—food workers with a food workers union, textile workers with a textile workers union, machinists with a machinists union, and so forth. With registration achieved, a union may then demand a contract from the employer. However, Mexico does not provide for "certification" of a union in the U.S. or Canadian sense, which creates a legal duty of the employer to bargain with the union selected by a majority of workers. Mexico does not require majority status for union registration, and does not use the "duty to bargain" concept. An employer can ignore the union’s demand for a contract, which challenges the union to launch a strike. The union must then estimate whether it has the capacity to undertake an effective strike with majority support. The employer must cease operations when a strike begins. Within 3 days, however, the employer may obtain a vote in which the union must demonstrate majority support for the strike. If the majority is not shown, the strike must end and the workers must return to work or face dismissal. If the union proves its majority, the employer remains closed. The union and the company can continue their test of economic strength until they reach a settlement between them, or seek mediation and arbitration from the CAB. CAB intervention is the normal route. New union organizing in Mexico (that is, in never-unionized workplaces where workers seek to form a union, register the union, and obtain a contract where none existed before) is relatively low in volume. In private sector industries that are within the federal jurisdiction,47 which encompasses more than 2.5 million workers, an average of 125 new union registrations were sought from the Department of Labor each year in the 1989–1994 period and an average of 25 registrations granted per year.48 In viewing this relatively low volume of new union formation in federal jurisdiction, it should be kept in mind that Mexico has a high density of union organization in the formal, non-agricultural sector. Of manufacturing enterprises in Mexico with more than 100 employees, 85 percent are unionized. More than 50 percent of private sector workers within federal jurisdiction are unionized.49 (See Table 4 for statistics on union density in private sector industries under federal enforcement jurisdiction in Mexico.) Since most large and medium-sized firms in Mexico’s formal sector are already unionized, the potential for new union organizing in the formal sector is greatly reduced. Most workers in established firms are already covered by a union contract. However, they are a minority of the total workforce. In contrast to the United States and Canada, where approximately half the labor force work in enterprises of 500 or more employees, only one-third of the Mexican labor force is employed in enterprises of 50 or more employees. Of all Mexican workers, 60 percent are employed in firms of 15 or fewer employees.50 Many of these are in the large informal sector. Unions are mostly absent from small firms, small agricultural enterprises, and the informal sector. There are exceptions to this pattern reported in certain maquiladora areas where some large firms are not unionized. Maquiladora enterprises are normally within state jurisdiction, not federal. Much of union organizing in Mexico involves one already-registered union seeking to supplant another as the collective bargaining representative of the workers. In some instances, workers initiate a change. In others, the challenging union solicits workers’ support for a change.51 In federal private sector jurisdiction, there were an average of 636 such title disputes per year between unions in the 1990–94 period, compared with the 25 new registrations per year noted above.52 When one union claims it has majority support and thus is entitled to take over the collective agreement from an incumbent union, the relevant CAB conducts a vote, called a recuento, to determine which union has majority support.53 The union that gains majority support is awarded title to the collective agreement. Table 4. Union Density in Mexican Private Sector Industries Under Federal Jurisdiction, 1994
Source: STPS |