Even after a group of employees goes through the hassle of getting enough signatures (30% of the workers) to force an employer to submit to a NLRB-sanctioned union election, and even after they survive the company’s comprehensive anti-union propaganda campaign (usually consisting of disinformation and veiled threats), and manage to win that election (with a simple majority), it’s not guaranteed that these employees will get a union contract.
Unfortunately, in many instances, winning the right to form a union is only the first step. Despite federal law requiring the parties to engage in “good faith” bargaining, many companies simply don’t know how to take yes for an answer. After using every trick in the book to dissuade their employees from joining a union (and failing in that effort), companies go to the bargaining table with the prime objective of thwarting the negotiation process.
Speaking of “tricks” used in anti-union propaganda campaigns, one of my favorites involved a west coast manufacturing company that was determined to go the extra mile in keeping the union out. During the interim (after getting the necessary signatures but prior to the actual vote), the company forced its employees to attend mandatory meetings where they were subjected to an anti-union movie which was advertised as being sanctioned by the NLRB.
What?! The NLRB sponsored propaganda that opposed the establishment of labor unions? Well, not exactly. At the end of the movie, in very small print, the audience was informed that the initials “NLRB” stood for an organization called the “National Labor Reference Bureau,” and that this organization was not to be confused with the actual National Labor Relations Board.
But back to company strategy at the bargaining table. Management’s chief tactic in these instances is simply to stall. Its goal is to break down the union’s resolve, to drag out the bargain to the point where the membership begins to have second thoughts. Knowing that they have a freshly elected rookie negotiating team facing them, one sent there by an earnest but naive workforce looking to secure its very first contract, the company attempts to exploit that dynamic.
What they do is refuse to agree to the majority of the union’s agenda. Besides coming in shamelessly low on the obvious cost items (wages and benefits), the company takes an intransigent position on standard, boilerplate language: they refuse to agree to the establishment of a standing committee to adjust grievances, refuse to include a binding arbitration clause, and refuse to agree to automatic dues withdrawals (where monthly dues are automatically taken out of the employees’ paychecks, a practice done in the overwhelming majority of union shops), forcing union officers to collect dues themselves, an arduous, time-consuming process.
Another tactic is to refuse to agree to provisions and practices that are already in place, ones that have been observed for years, before the vote to make it a union shop. For example, the company will refuse to recognize a certain holiday as a day off with pay, even though it’s been a common practice. The company’s message: “You didn’t trust management to take care of you. You wanted a union. Fine. Now see how hard it is to get a decent contract.”
A newly formed union membership is vulnerable, particularly at their first negotiation. They’ve just voted to affiliate and, while excited and still a bit intimidated by the prospect, don’t quite know what to expect. When the company plays hardball, refusing to sign anything that comes close to resembling a fair agreement, it puts enormous pressure on the employees. No one, not even the most vocal leaders of the organizing campaign, wants to go out on strike. After all, the whole point of forming a union was to improve their economic status, not to wind up hitting the bricks as a first step.
And then there are the dissenters, those members who voted against affiliation, who didn’t want a union in the first place. The longer it takes for the company to agree to a contract, the more influence these people have on the floor. When things turn ugly at the bargaining table, it’s not uncommon for a decertification drive to begin, often fueled by company gadflies. With what started out as an opportunity to better themselves via a union contract having turned into a bitter struggle, with rumors of a strike now in play, people begin second-guessing their decision to form a union.
Even with representatives from the parent International giving assistance at the bargain, it’s very difficult keeping the troops focused when the company is purposely dragging it out. Typically, the International will file an unfair labor practice (ULP) charge with the NLRB, accusing the company of failing to negotiate in good faith, but this does little to change the situation. ULPs are seldom upheld; and, in any event, the investigation and appeal periods take too long to make them a viable weapon.
What happens more often than not in these situations is that the union either agrees to an inferior contract, or the company signs what is called an “implemented agreement.” An implemented agreement is where the union refuses to sign a woefully inferior contract, but also, for whatever reasons, decides not to go on strike, leaving the company to “implement” the agreement (more or less signing the union’s name to it).
In a few cases, the membership decides to decertify. The newly formed union members vote to abandon their union. Sometimes they choose to reaffiliate with another union (blaming the failure to get a decent contract on the International), sometimes they choose to remain unaffiliated, to go it alone. But in any event, it’s a victory for the company.
So next time we read about a workforce winning a NLRB union vote, let’s not assume they’ve “won” anything yet. If the company is a bad loser and intends to take the fight to the next level, the union has got its work cut out for them.
DAVID MACARAY, a Los Angeles playwright and writer, was president and chief contract negotiator of the Assn. of Western Pulp and Paper Workers, Local 672, from 1989 to 2000. He can be reached at: dmacaray@earthlink.net
