A labor union is an organization of workers who join together to protect their common interests and improve working conditions at their place of employment. Often, this includes addressing economic and social justice issues in the workplace[1] However, the primary purpose of a union is to provide workers with greater power to negotiate with their employers, who often hold the leverage when setting employment terms. To ensure that workers are not subject to unfair pressure when agreeing to terms and conditions of employment, labor unions organize into collective bargaining units that can wield greater force at the negotiating table.
This module begins with a discussion of workplace unions, including what they are, why they exist and the scope of their power. We’ll then move on to the labor union formation process, followed by a brief overview of the laws and regulations that dictate leadership and management requirements. The module closes with a summary of the practical issues in union formation and management, including lessons learned from important events in the history of America’s trade unions.
Labor Unions in the Workplace
Unions represent the collective interests of employees by serving as an intermediary between the workers and management. Unions leverage the power of collective bargaining to help employees negotiate with employers over wages, hours, benefits and working conditions.[2]
Employers are naturally motivated to cut costs by avoiding or eliminating important employee benefits, such as health insurance, pension coverage, reasonable hours and pay and even safety protections. Companies sometimes also try to save money by downsizing their workforces, hiring part-time or contracted workers rather than full-time employees or sending jobs overseas.[3] While any or all of these measures may be effective cost-saving strategies, they also have far-reaching consequences across communities and society. Throughout American history, labor unions have been instrumental in helping working-class people secure employment benefits, which, in turn have helped raise standards for workers across the economy.[4]
American workers rely on their employers for a wide variety of benefits that extend well beyond wages and cash compensation. This includes profit-sharing or stock options, bonuses, family leave, flexible work hours, vacation and sick days, on-site childcare, insurance and many other important benefits not reflected in an employee’s regular paycheck. In addition to advocating for higher pay, unions have proven effective at negotiating a wide variety of non-wage benefits for employees.
Over the decades, unions have helped workers secure more reasonable work hours, retirement plans, health insurance, vacation and sick leave, tuition reimbursement, safer working conditions and other benefits.[5] Also, depending upon the resources available, union members can benefit from services and discounts provided by the labor union itself. These include financial services, legal services, discounts on travel, car rentals, assistance for workers facing financial hardship and disability, layoff, strikes, and other perks.[6]
Union representatives serve as advocates for workers and liaisons between employers and employees. They negotiate terms of employment for the workforce as a whole and push for the best possible workplace conditions and compensation packages. The National Labor Relations Act allows individuals to form independent unions unaffiliated with larger nationally chartered organizations to represent themselves and their colleagues at their place of work. However, due to the complexity of navigating labor laws and the costs of running independent unions, most unions become affiliated with larger groups.[7] Furthermore, because collective bargaining draws power from the ability to mobilize an entire workforce, larger unions typically have greater bargaining power when dealing with employers.
The largest unions in the United States are the National Education Association, which includes 3.2 million teachers and education workers; the Service Employees International Union, which includes 2.1 million individuals employed in service industries; the International Brotherhood of Teamsters, which includes 1.4 million individuals in diverse sectors; the American Federation of State, County, and Municipal Employees, which includes 1.3 million state and local employees; and the United Steelworkers, which includes 1.2 million individuals in the steel industry.[8] However, the largest formal labor organization in the country by far is the AFL-CIO.
The American Federation of Labor, abbreviated “AFL,” was established by renowned labor advocate Samuel Gompers in 1886. With 1.4 million members at its peak, the AFL was successful at negotiating wages and improving workplace safety. The success of the AFL inspired the formation of more and more labor organizations. In 1935, labor reformer John L. Lewis formed the Congress of Industrial Organizations, abbreviated “CIO,” which brought together several unions into a single federation. In 1955, these two federations merged to become what is now known as the AFL-CIO, which currently represents 55 national and international labor unions consisting of over 12.5 million workers.[9]
American labor unions are very powerful, and they are far from incorruptible. Although they may have started off with the best of intentions, some labor organizations have turned on their members. Congress passed the Labor Management Relations Act, also known as the Taft-Hartley Act, in 1947 to curb these abuses. This law was passed to extend the protections afforded to workers through the National Labor Relations Act. The Labor Management Relations Act was passed to limit the power unions could exert over employees. The law identifies and prohibits unions from engaging in certain actions it identifies as “unfair labor practices.”
Practices prohibited by the law include the restraint or coercion of employees or employers, discriminatory behavior, refusal to bargain in good faith and certain types of strikes and boycotts. Although the prohibitions contained in the Act remain strong deterrents for inappropriate union behavior, the National Labor Relations Board still receives thousands of allegations of union violations of labor laws each year.[10] In extreme cases, unions that are unable to manage themselves in a manner that best serves their members may be decertified or dissolved.
Forming and Dissolving a Labor Union
American labor unions are governed by constitutions and bylaws drafted by their members at the time of formation and amended as necessary over time. These constitutions and bylaws detail the structures and inner workings of the unions, including operating conditions, internal policies, leadership structure, compensation terms and internal dispute resolution procedures.[11] Local unions consist of local workers who organize under their own charters or those of national or international unions. Local unions may include members from the same company, region, business sector or members employed by different companies. Each local charter has its own governing body.[12]
Once union leaders draft and ratify organizational documents, the union can be formed in one of two ways. First, an employer may voluntarily recognize the workers as a union, in which case the union is formed without the need for any further formal processes or procedures. Where employers opt not to recognize the union voluntarily, the National Labor Relations Act requires a secret-ballot election allowing employees to vote on whether they wish to join the union.[13] Union organizers must earn a majority vote in favor of official union representation in order to move forward with union formation.
Once the union is formed, members vote again to determine whether they want to be represented by this union, discontinue union representation or vote on a different union affiliation. After an election is held and a majority of members vote yes for a particular union to represent them, the union membership votes on which members become the union’s representatives and officers.
After an employer consents to union formation or organizers achieve a majority vote in favor of formation, the National Labor Relations Board must then certify the new union. To earn certification, union organizers must file an application with the Board requesting collective representation of a bargaining unit. The application describes what the workers would like to see changed in their workplace and how they can leverage the power of collective bargaining to achieve these goals.
The National Labor Relations Board reviews the application, addresses any concerns the employer may have about the application, and interprets the National Labor Relations Act to determine whether to certify the union. Once the Board certifies a union, the employer is legally required to recognize the union and bargain in good faith with union representatives.
It’s sometimes necessary for a union to dissolve or for individual members to leave the collective. The decertification process allows members of a bargaining unit who no longer want to be represented by a labor union to petition the National Labor Relations Board to withdraw the union’s certification. To submit a petition for decertification, at least thirty percent of the bargaining unit must approve the withdrawal. After moving past the petitioning process, the majority of the bargaining unit must vote for decertification to get rid of their labor union.
Compared to decertification of a union as a whole, terminating individual membership in a union is relatively simple. The Supreme Court declared the general right to resign from union membership at any time in the case of Pattern Makers v. NLRB in 1985.[14] Moreover, unions may not impose unreasonable burdens on members wishing to leave the organization. Usually, to terminate union membership an individual must simply submit a written declaration of intent to do so.[15] However, if the jurisdiction has not passed “right-to-work” laws, the member may still be required to pay dues and fees to the union even after terminating union membership. Right-to-work laws are in effect in more than half of the states, and in these jurisdictions, workers cannot be required to join a union as a condition of employment.[16]
Labor Union Management, Organization and Leadership
Under the National Labor Relations Act, unionized and non-unionized employees alike have the right to organize in the workplace. The rights afforded to workers under Section 7 of the Act ensure they are able to form, join or assist a union in organizing employees and engage in concerted activities like strikes or walkouts. To ensure that unions are able to perform the functions for which they were intended, the Act places limitations on employers’ abilities to curb union activity.[17]
Unions may require members to pay initiation fees when becoming members and regular dues to a national office that may act as an advocate on behalf of those members’ interests.[18] Union dues support the operating costs of the local unions, including the resources necessary to fund support staff, legal costs, negotiation costs, arbitrator’s fees and other costs. Strike funds and legislative and political activity also come from member dues. The dues amounts vary depending on the union’s needs, and dues can be a fixed monthly rate or a percentage of the workers’ paychecks. While there is no federal law limiting the amount a union can charge in fees, unions are required to limit dues to a reasonable amount.
Local union charters typically require union leadership to take the form of an elected executive board consisting of a business representative or agent, a secretary and a treasurer. The executive board organizes meetings, represents constituents, controls union funds, manages the relationships between the employees and the employers and works with other labor unions in the area.[19] Most unions have paid staff to support these functions, but many rely on volunteer members who take on these roles.[20]
Union leaders are elected democratically, as unions must hold elections to appoint officers. Section 9(a) of the NLRA provides that representatives “designated or selected” by a majority of employees in an appropriate unit shall be “the executive representative of all the employees . . . for the purposes of collective bargaining. . . .”[21] In other words, elected officers make decisions on the behalf of the union members, and to ensure they are fit to do so, the majority of union members must elect them to positions of leadership.
Members in good standing are eligible to run for the officer positions. The Department of Labor oversees the application of “good standing” and determines whether the union rules that qualify members as candidates are reasonable.[22] When an election occurs, all members are entitled to vote, nominate candidates, run for office and campaign without interference. Non-members do not have a right to vote on the ratification of labor union contracts or on the election of union officers.[23]
Regulation of Union Elections
In 1959, Congress passed the Labor-Management Reporting and Disclosure Act, also known as the Landrum-Griffin Act, which holds parties accountable for the proper control and regulation of labor union internal affairs. The law imposes a strict code of conduct upon unions, their officers, members, employers and management consultants. The Act also regulates the conduct of officers of a labor union as well as their rights and responsibilities during a campaign for election. [24]
Under the Act, local unions are required to hold secret ballot elections for officers at least once every three years. For international unions, the law states that officers are elected directly by the union members or delegates to a convention at least once every five years. While campaigning for the officer position, candidates have access to the union membership list. If access is denied, either by mistake or otherwise, a candidate can file a suit at any time before the election. However, no union resources may be allocated to candidates for individual campaigns. Likewise, employers may not contribute financially or otherwise to a union leader’s candidacy.
If a candidate wishes to protest an election after it has been completed, the candidate must file a protest with the union in a manner that follows the union’s election laws. If the union does not address the complaint or provide legal relief within three months, the Department of Labor will investigate the complaint. If the Department decides to overturn the election, the agency holds a second election under federal supervision. Candidates have little discretion to challenge or intervene in the union or agency processes that determine the need for re-election. Thus, when a second election is called, campaigning typically resumes almost immediately.[25]
Practical Issues Facing Labor Unions
While unions have served as champions of workers’ rights for nearly a century, labor organizations have increasingly faced some challenges that have proven hard to overcome. As a result, union participation has been falling year over year since the 1980s. In 2018, union participation among American workers hit a record low of only 10.5 percent. While some sectors – including educational service providers and local government workers – saw an increase in union membership that year, union membership has been sliding in most industrial sectors.[26]
Some labor advocates support universal dues for any workforce in which a union is active, as all employees benefit from the increased bargaining power the union offers regardless of whether they are members. However, some religions, bodies or sects object to joining or financially supporting labor unions. In these cases, labor leaders must balance individual fairness against the needs of the collective in establishing rules for the payment of dues. For example, if an employee has a religious objection to participating in a labor organization, unions may provide alternative arrangements. Often, these employees are required to contribute to a non-religious, non-labor union organization in the same amount of the ordinary union dues. They are also still typically required to pay reasonable costs for grievance claims the union may handle on their behalf.[27]
Even when they are not barred from participating in labor organizations by moral or religious principles, people may decline to join a union simply because they prefer not to be involved. The National Labor Relations Act states that nobody can be forced to join or financially support a labor union, and this right was reaffirmed by the Supreme Court decision Janus v. American Federation of State, County, and Municipal Employees. This 2018 case emphasized the right to be free from coercion in the workplace, which includes the right to refuse to pay union fees and remain a non-member.[28] As a result, it is up to the labor unions themselves to find ways to convince members to join without overstepping the bounds of the NLRA.
[1] What is a Union?, Union Plus(2019), https://www.unionplus.org/page/what-union
[2] Will Kenton, Labor Union, Investopedia (Mar.14, 2019), https://www.investopedia.com/terms/l/labor-union.asp
[3] Labor Unions Today, Union Plus (2019), https://www.unionplus.org/page/labor-unions-today
[4] See David Rosner and Gerald Markowitz, The Struggle over Employee Benefits: The Role of Labor in Influencing Modern Health Policy, The Milbank Quarterly 81(1): 45–73 (Mar. 2003), available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2690201/.
[5] John Budd, Non-Wage Forms of Compensation, 25 J. Labor Res 597 (2004).
[6] What is a Union?, Union Plus (2019), https://www.unionplus.org/page/what-union
[7] Workplace Fairness, All About Unions, https://www.workplacefairness.org/labor-unions
[8] Rice University, 15.1 Unions, Principles of Economics (2019) available at https://opentextbc.ca/principlesofeconomics/chapter/15-1-unions/.
[9] A Brief History of Unions, Union Plus (2019), https://www.unionplus.org/page/brief-history-unions
[10] See, e.g., National Labor Relations Board, Annual Report (2010), Table 2 (2011), available at https://www.nlrb.gov/sites/default/files/attachments/basic-page/node-1696/table_2.pdf.
[11] Jobs With Justice Education Fund, Unions101, (June 2016), https://www.jwj.org/unions-101.
[12] Workplace Fairness, All About Unions, https://www.workplacefairness.org/labor-unions
[13] Cornell Legal Information Institute, National Labor Relations Act (NLRA), https://www.law.cornell.edu/wex/national_labor_relations_act_nlra
[14] Pattern Makers v. NLRB, 473U.S. 95 (1985).
[15] Workplace Fairness, All About Unions, https://www.workplacefairness.org/labor-unions
[16] National Conference of State Legislatures, Right-To-Work Resources, , http://www.ncsl.org/research/labor-and-employment/right-to-work-laws-and-bills.aspx
[17] National Right to Work Legal Defense Foundation, How do I cut off the use of my dues for politics and other non bargaining activities? (Private Sector Employee) (2018), https://www.nrtw.org/object-nonbargaining-private
[18] Will Kenton, Labor Union, Investopedia (Mar. 14, 2019), https://www.investopedia.com/terms/l/labor-union.asp
[19] Workplace Fairness, All About Unions, https://www.workplacefairness.org/labor-unions
[20] What is a Union, Union Plus (2019), https://www.unionplus.org/page/what-union
[21] 29U.S.C. § 159 (1959).
[22] 29 C.F.R. §§ 452.36, 452.37(b) (2019). Association for Union Democracy, About the LMRDA and the Union Member’s Bill of Rights, Elections, https://uniondemocracy.org/legal-rights-and-organizing/about-the-lmrda-and-the-union-members-bill-of-rights/elections/
[23] 29 C.F.R. § 452.84 (2019). National Right to Work Legal Defense Foundation, How Can I Resign My Union Membership? (Private Sector Employee), https://www.nrtw.org/how-resign-private
[24] Labor-Management Reporting and Disclosure Act, Pub. L. No. 86-257,73 Stat. 519 (1959).
[25] 29 C.F.R. § 482 (2019). Association for Union Democracy, About the LMRDA and the Union Member’s Bill of Rights, Elections, https://uniondemocracy.org/legal-rights-and-organizing/about-the-lmrda-and-the-union-members-bill-of-rights/elections/
[26] Irina Ivanova, Union Membership in the U.S. Hit Record Lowin 2018, CBS News (Jan. 21, 2019) https://www.cbsnews.com/news/union-membership-declined-in-2018/
[27] 29 U.S.C. § 169 (1980).
[28] Janus v. AFSCME, 138 S.Ct. 54 (2017).