We in the Milwaukee DSA want to encourage our members, and the general public, to unionize their workplaces. To that end, we are presenting a four part series of articles making the case for unionizing, the legal framework for it, the steps one needs to take to unionize a workplace, and a case study of successful unionization drive. This is the third part.
Given the long history of unions in America, the process of unionizing can seem ritualized, where forming one is just a matter of following a set of concrete steps that have already been laid out. Organizations like the National Labor Relations Board (NLRB), which have the legal authority to impose fines on businesses that engage in shady anti-union practices, give the impression that workers no longer face any serious threat from employers and are sufficiently insulated from the dirtier methods that employers used to engage in. But the stripping of power from the NLRB, as well as the collaboration between business owners and those in power that leads law enforcement to overlook anti-union activities by employers, the process of forming a union is anything but safe or predictable. It is often a very radical activity that must be done in secrecy outside of the confines of established institutions.
More often than not, the process of unionization is a pitched battle between management and workers that can end in disaster for the workers if they are not prepared. Management almost always has the upper hand in terms of resources and is more than willing to apply those resources to stop unionization efforts. Thus, workers face an uphill battle and must rely on their organizing abilities, strategic planning, and sheer force of will to overcome the struggle.
There are three main steps required to form a union. Step one is winning the card check, where workers must obtain membership “union authorization” cards from at least 30% of the workforce. If 30% of the workforce demonstrate interest in forming a union, the NLRB will hold an election to certify a union. Step two is winning the election held by the NLRB which requires a majority of the workforce who vote to vote in favor of forming a union, at which point the NLRB will certify the union, and the employer must recognize the union as the negotiating representative of the workers. Once the Union is certified, step 3 begins which is the negotiation of the contract.
The Milwaukee DSA interviewed member Bill Breihan, a veteran of the labor movement who spent decades working with employees to form unions from scratch, to find out what employees can expect when trying to form a union. Breihan approaches the three steps required to form a union by breaking the process down into four critical thresholds that workers must meet.
The first two thresholds described by Breihan are intended to be reached before the card check and are most effective when done in secret. The first threshold is building a foundation of support within a workplace, or forming a core group of trusted employees to lead the unionization efforts. When unionization is just beginning, it will start as an idea shared among a few co workers who are fed up with their current working conditions and believe that a change is possible. These co workers will likely form the basis of the “core” group, or the employees tasked with leading the efforts to form a union, so it is crucial to find trusted co workers who will not be susceptible to working with management against the union. Once the core group has formed, workers should get in contact with a union, which can help provide knowledge and resources to aid the workers in the battle. This union will become the union that your workplace will join.
The second threshold described by Breihan occurs once the core group has formed and it requires workers to create and carry out a strategic campaign that will increase interest in the union among workers. This campaign requires the core group to identify the bargaining chips, or areas that the union could improve such as hours, working conditions and pay, and then decide on the best way to communicate how a union could help address these issues in a way that resonates with workers.
To maximize the effectiveness of the messaging campaign, the core group should try to “map the workforce” or keep track of what issues matter most to workers in different departments, and what the levels of support for the union are in different departments. This will give the organizers a good idea of where the union stands in terms of support, and what work still needs to be done before union cards can be released to the workforce for signature.
Timing is incredibly important during this step. Ideally, the core group will have created a strategic timeline for their communication where the distribution of union cards will occur just as support for the union reaches its peak. Timing and secrecy are crucial during the first two thresholds because it is when workers can gain the leg up that is necessary to overcome management’s advantage in resources. If management becomes aware of the campaign to unionize before the cards are distributed, they will begin waging a counter campaign of propaganda that is difficult to overcome when workers have not already formed a united front. If workers are able to shore up their support and set a plan in motion before the employer finds out, they can be better prepared to fight the propaganda and managements efforts to divide the workers. This is also why it is so important to ensure that the core group can be trusted. Secrecy in this stage is very delicate and requires complete cooperation from all involved to ensure the employers do not catch wind of the campaign. It is still possible to win the card check if management becomes aware of the campaign, however it becomes much more difficult to convince people to support the union as you are no longer trying to just get workers past their own reservations, but you also have to counter the propaganda that management is feeding them.
If workers are successful in mobilizing support for the union among the workforce, they can then move onto the third threshold: winning the certification election. This threshold entails winning both the card check and the election vote. Once management becomes aware of a unionization effort by the circulation of union cards, the battle begins and this is why the core group must exercise patience and choose the most strategically advantageous time to release the union cards for signature, or as Breihan puts it, knowing “when to fold, when to hold, and how long to hold.”
Once the card check is won, the NLRB will come in and hold an election in the workplace to certify the union. These elections can take weeks to months and maintaining momentum during this period is crucial. Workers will want to have already established an organization amongst themselves by this point. This allows them to do what Breihan calls “permanent mobilization.” By establishing an organization, workers can build a process that allows them to gain more leverage by increasing support within the company, and from external sources like the media. Support from both inside and outside of the workplace is crucial for keeping up morale among workers and enlisting new recruits. An organization allows workers to centralize messaging, keep up morale, and keep workers invested in the fight. This is especially important because workers can not rely on winning a mere majority of votes in the certification election. If workers have 50% support for the union plus one, they can get the union certified, but the employer will only have to move a few employees to their side before they call a recertification election and get the union decertified. Workers should aim for at least three fourths support among the workforce before holding the election, or they run the risk of failing to get certified, or later maybe decertified.
Once the union is certified by a comfortable margin, workers can turn their attention to the final threshold: negotiating the contract. In an ideal world, negotiations would involve both sides making concessions until they reached an agreement that they are all happy with. In the real world, negotiations between the employer and the union are typically about whittling down the union’s demands. To prevent workers’ demands from being stripped of its serious impact, it is crucial that the workforce can present a united front and are willing to go on strike if demands are not met. Collective bargaining contracts take an average of 403 days to be finalized after the union wins the certification vote according to a study done by Bloomberg Law. The combination of the time it takes for the contract to be completed, along with the concessions that have to be made, can make it very difficult to keep up morale if workers are not prepared in advance. Negotiations are a long term battle and thus are influenced by strategic considerations,like how long negotiations can go on before workers lose interest in forming a union. Given the tough nature of negotiations and the many competing factors that must be balanced, first contracts are often groundwork that can be built upon later, but get a foot in the door now. They are a test of endurance won by the smallest of margins so it is crucial that the union is dedicated to holding out for one day more than the employers are.
Once the first contract has been negotiated, the union is established. The challenge now is ensuring that the union represents workers and that workers don’t come to view the union as an outside organization. Unions are most effective when they are viewed as a collective effort on the workers behalf to fight for their interest, not as an outside organization with its own interests and agenda. While unionization may be an uphill battle for workers, there is nothing that can’t be overcome through good planning, hard work, and a united front of workers demanding change at all costs.