Everything You Ever Wanted to Know About Collective Bargaining But Were Afraid to Ask

by Michael Mauer

Particularly for private sector workers, both the legal and political obstacles to forming a union have become quite formidable in recent years. As a result, unions increasingly seek to bypass the process set out in labor law for filing for an election with the appropriate government agency. Instead, the strategy is to go back to what workers did before the 1934 Wagner Act established a framework for union organizing, and to wage a purely political fight to achieve union recognition directly from the employer.

These alternative paths to unionization usually include an effort to win the employer’s agreement (1) to voluntarily recognize the union, once the union obtains a majority of signatures, or (2) to respect the results of an election conducted by a neutral party, such as the American Arbitration Association. But the political and practical difficulties when going that uncharted route are formidable, to say the least. And so as a result, it is still the case that almost all union organizing in the United States takes place within the framework provided by a statute.

Within the public sector, a majority of jurisdictions — but not all — have what’s called enabling legislation covering adjunct faculty. These are the statutes providing protection for union organizing and for government oversight of the process. (These statutes usually cover an entire state, but a single county or city may have its own legal framework for faculty organizing.) Private sector contingent faculty interested in unionizing actually have a leg up on their tenure-eligible colleagues, since the former are not restricted by the infamous decision of the Supreme Court in the 1980 Yeshiva case, which pretty much shut the door on new union organizing for full-timers.

The laws that do exist on organizing (that is, the National Labor Relations Act for private sector faculty, and the various public sector statutes) mandate procedures that can vary a fair amount from one another. So an introduction to the basics of unionization can be presented only in rather rough contours. For the rules covering specific drives, a close examination of the applicable statute will be essential.

A threshold question in adjunct organizing is whether to create a union for adjuncts only, or to try and join with full-time faculty in a joint bargaining unit. Sometimes, for all intents and purposes, there’s no decision to be made because of what a law provides in this area. So, for example, if private sector adjuncts try to hook up with their full-time colleagues, then the whole union effort can get bogged down in Yeshiva litigation. Or it may be that political considerations simply make it unrealistic to think about one union local covering all faculty. The ramifications are huge, so the decision about whether the unity of a combined unit or the clarity of interests that come with a stand alone unit is preferable is an important one.

The seeds of a union organizing drive germinate when workplace dissatisfaction rises to such a level that critical mass is reached. In the world of contingency, alas, this threshold is often reached. The first practical step in a standard organizing effort begins with the core of union activists collecting authorization cards from coworkers. Though the language on these cards generally states that the signatory wishes to be represented by the designated union, in practice these cards are used simply to trigger an election. Once the trigger — usually 30 percent of those in a potential bargaining unit — is reached, the union can file a petition for election, accompanied by the cards, with the National Labor Relations Board (NLRB) or with a state agency (for public sector faculty). As a practical matter, most unions set a threshold for filing higher than 30 percent for deciding to proceed with a request for an election.

The working conditions particular to part-time faculty create obstacles in the initial phase of card collection. Merely identifying and locating adjuncts present the first challenges, even before the question of persuading individuals of the benefits of union representation arises. And the absence of tenure (and usually of any alternative strong job protections) means that some contingent faculty may be union-sympathetic, but reluctant to be publicly identified as such. Thus a constant reassurance offered by union organizers is that the authorization cards are treated confidentially by both the union and the labor board. Nonetheless, the fear factor is real, and borne out by experience: in the private sector especially, retaliation against union activists is quite common. And this behavior — unlawful but difficult, as a practical matter, to redress — is evident in organizing drives on campuses, too.

That said, the typical experience in adjunct organizing is that once the challenge of tracking down potential card-signers is overcome, the signatures come rather easily. Whatever degree of apprehension there may be is generally outweighed by a clear recognition of the exploitation of contingent faculty in the academic workplace, and an understanding that speaking with a collective voice is essential if the imbalance of power is to be redressed.

Once the authorization cards are submitted to the labor board, the employer can, and quite often does, raise all manner of legal challenges: that the signatures are insufficient in number or otherwise deficient; that the bargaining unit that the union has petitioned for is too broad, too narrow, or otherwise inappropriate; that the labor organization designated by the card signers is somehow ineligible to represent the faculty; or a host of other objections.

Sometimes these challenges raise legitimate legal issues, quite often revolving around whether those in the petitioned-for group have a sufficient “community of interest” to constitute a single bargaining unit. But quite often the challenges are frivolous, and knowingly so. Some are advanced by employers intent on gaining tactical advantage by delaying the day of reckoning, counting on turnover rates and hoping that delay will cause disillusionment among union adherents. Other employers seek cynically to infuse the rolls of potential voters with individuals or groups thought to be predisposed to vote “no.” (Though in all fairness, it must be pointed out that unions make the same calculations, seeking to include in the bargaining unit probable “yes” voters, and to exclude the rest.) Unless a compromise settlement is reached on the employer’s challenges, the union has to litigate these issues before an agency hearing officer.

In the run-up to the election, the union is entitled to obtain what’s called an “Excelsior list,” containing identifying information on all individuals in the potential bargaining unit. Though often there’s little lead time between receipt of this list and the balloting, this may be the first opportunity the union has to make contact with all potential bargaining unit members. During the time period between scheduling of an election and the voting, the intensity of the union drive tends to pick up considerably. The union pushes to contact as many potential voters as possible, one-on-one to the extent logistically feasible, and to gauge where the likely “yes” votes are (so that follow-up can ensure that those individuals actually do vote) and to see which fence sitters or mild opponents can be persuaded to support the union.

Part-time faculty working conditions make it difficult to achieve large turnouts in union elections when those elections are conducted the way they usually are for other types of workers: with on-site balloting, usually in limited locations and in a condensed period of time. While both management and the union devote lots of speculation to what effect a high or a low turnout will have on the outcome of the vote, increasingly often unions push to have adjunct elections conducted with mail ballots, to facilitate a high turnout. In any event, whether on-site or by mail, voting is always conducted by secret ballot.

Almost always, the votes are tallied as soon as the balloting period ends. A majority vote is required for the union to prevail. (The option of “no agent” automatically is included on the ballot.) If a second union is included in the election (usually by intervening with signatures from 10 percent of the unit, after the initial filing of cards), and no choice receives an absolute majority, then a runoff election is held.

During a short period of time after the vote tally, any party may file objections. These can contest the eligibility of voters or the way in which the election was conducted. If the conduct complained about may have affected the outcome of the election, then an agency hearing is held to resolve the issues. What follows — assuming that the union prevails in the election — is the issuance of a “certification of representative” by the labor board.

Then the really tough nut must be cracked: bargaining a first contract.