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Since dissident unions pulled out of the AFL-CIO in 2005, longtime observers see more bark than bite in organized labor's efforts to revitalize. Still, there's fight left in
the movement. Tactics such as disruptive corporate organizing campaigns--by either
faction--can damage a company's employee relations and drain finances. Savvy
organizers have plenty to spend and are in the field in record numbers. Labor
leaders see the 2008 presidential election as an ace in the hole, expecting a new
administration and federal legislation that would make union organizing far easier.
With the gavel set to fall on the AFL-CIO's convention
in July 2005, the half-century marriage that
bound 57 unions and 13 million members was on
the rocks and the infighting had become public and personal.
Dissident union leaders blamed AFL-CIO President John
Sweeney for failing to reverse the free-fall in membership--especially
in the private sector, where it had trickled from the 1958
high-water mark of 39 percent of the workforce to below 8 percent
in 2005. In 1953, the high point for unions overall, 32.5 percent
of the workforce--public and private--was unionized.
Today, 12 percent--15.4 million people--belong to unions.
The dissidents saw Sweeney as unable to face the crisis, still
running the AFL-CIO like a mom-and-pop deli in a world
dominated by Wal-Marts and Disneys. In their view, he was
wedded to grass-roots "retail" organizing that wasn't keeping
up with attrition, and unwilling to heed their wake-up call to
union leaders: Restructure, change your strategy or die.
Instead, the 73-year-old former president of the Service
Employees International Union (SEIU) was loyal to cronies,
intent on preserving the unions they headed, and unwilling to
address competition among them. He was reluctant to commit
to organizing approaches that bypass the need for National
Labor Relations Board (NLRB) supervised elections and focus
on whole industries rather than bargaining units. And he stubbornly
clung to the idea that changes in labor laws could pave
the way for labor's renaissance. As a result, dissidents claimed
he was squandering the AFL-CIO's war chest--a percentage of
dues collected from the rank and file--on politics, while membership
faded.
To Sweeney and his supporters, of course, the AFL-CIO
was progressive and strategic. Politics was important, but so
was organizing; they promised to fund both. Leading up to
the convention, they were patient and conciliatory, offering
compromises to dissidents while suggesting sotto voce that
the rift was not over substance, but succession: When would
Sweeney step aside, and who would replace him? Was he
challenged because dissident leaders, such as the SEIU's
Andrew Stern or UNITE HERE's John Wilhelm, were no
longer heirs apparent?
The Breakup
The scene was set, but the fireworks never came. The day before
the convention, leaders of four unions boycotted--SEIU; Teamsters;
UNITE HERE, formerly the Union of Needletrades, Industrial
and Textile Employees (UNITE) and Hotel Employees
and Restaurant Employees International Union (HERE); and
United Food and Commercial Workers (UFCW). Later, as delegates
headed home, the Laborers, Carpenters and United Farm
Workers unions signed on to form Change to Win (CTW). Leaders
of these seven unions proclaimed a direction featuring multifaceted
organizing of workers in industries where employers
cannot easily outsource jobs--industries including cleaning,
health care, hotels and restaurants, retailing, and transportation.
They promised to ramp up efforts to grow head counts and gain
leverage over entire sectors.
Since the rift, the AFL-CIO is now left with 55 member
unions representing 10 million workers. The CTW faction now
represents seven unions with 5 million to 6 million members.
(CTW claims 6 million, but impartial observers are not certain.)
The Aftermath
As the dust settled, employers wondered what a fragmented
labor movement would mean. Would it stabilize with two major
players? Would CTW live up to its rhetoric? Was the AFLCIO
as inept as critics claimed?
Today, more than two years later, the impact of the split has
not impressed experts. "It was much ado about nothing; CTW
was selling a new vision, but it's turning out to be old wine in a
new bottle," says Gary Chaison, professor of labor relations at
Clark University in Worcester, Mass.
"Little has happened," agrees Marick Masters, professor of
business at the University of Pittsburgh. "The breakup is all
sizzle and no steak. They continue to encounter the economic
reality that even as they gain new members, they're losing
more."
The number of NLRB elections continues to be surprisingly
small: In 2006, there were 2,147, and unions won 55.7 percent.
In elections, unions are becoming "more selective in
where they go forward. But the win rate, though good, is not
keeping up with what they're losing," says Jim Gray, SPHR, a
labor consultant for management in Charleston, S.C., and a
former member of the Society for Human Resource
Management's (SHRM) Labor Relations Special Expertise
Panel. Federal law requires the NLRB to conduct an election if
30 percent of the workers in a bargaining unit petition for one.
Efforts to gain large numbers of new members through
other means, such as corporate campaigns that force employers
into neutrality agreements, show mixed results. Though
both AFL-CIO and CTW organizers are adept at publicizing
their activities, so far, on balance, there's little indication that
union organizers are having a significant impact by gaining
large numbers of new members.
On the Defense
If you're the human resource person in an industry targeted by
labor for a corporate campaign and you're not educating top
managers on why your company is vulnerable and putting together
a preventive plan, you're not doing your job, says attorney
Michael Lotito, SPHR, a partner in the San Francisco office of
Jackson Lewis LLP.
Begin with internal and external analyses. Find your "weak
spots, why you may be vulnerable," Lotito says. As a management
attorney, "I am prepared to take your company apart the
same way a union is going to take you apart. Then I'll put you
back together again. At the end of the day, you'll be a better
company whether or not a union ever attacks you." He says the
nature of the work dictates that it be done by someone outside
your organization.
Qualified experts are hard to find, but they're worth it, says Linda
Lulli, SPHR, associate vice president of Bryant University in
Smithfield, R.I., and a member of SHRM's Labor Relations Special
Expertise Panel. "Most nonunionized employers are not equipped to
handle a union campaign on their own. You will need help."
What can you do when a union comes calling? Treat people with
dignity and respect, and do it before organizers hit the scene. Campaigns
work because workers don't believe employers have their interests
in mind, says Jim Gray, SPHR, a labor consultant for management
in Charleston, S.C.
The issue comes down to why workers want a union, attorney John
Raudabaugh, a partner at Baker & McKenzie LLP in Chicago, says. "If
you look at all the things that attract the employees to joining a union,
it comes down to matters that can be replicated fully and satisfactorily
by the corporation."
Stephen Cabot, chairman of the Cabot Institute for Labor Relations
in Plymouth Meeting, Pa., advises employers to improve interactive
communication. For example, involve employees in decision-making, as
does Wegmans Food Markets, based in Rochester, N.Y., and named by
Fortune as one of the "100 Best Companies to Work For." "If you treat
your employees properly, they won't feel the need for a union," he says.
Lynn Outwater, managing partner of Jackson Lewis LLP in Pittsburgh,
counsels:
- Make sure supervisors treat workers equitably.
- Look behind disciplinary termination actions to make sure they're
proper.
- Educate supervisors about what they can or cannot say legally
about unions seeking to organize.
- Communicate your organization's employee-relations philosophy
setting forth the employer's position on unions.
- Have lawful solicitation and distribution rules.
- Have lawful bulletin-board posting and e-mail rules.
But, Gray cautions, if you wait to address culture and pocketbook issues
until a union shows up, it's too little too late. "For unions, that's
low-hanging fruit. It's disingenuous to initiate changes to avoid the
union. You should be doing the right thing. If the effect is that you're
union-free, that's great, but if you're doing it just for that, I would question
your logic. Company [leaders who] approach employee relations
that way think their employees are naïve, and they're not."
Remember, it's not just your boss whose job and reputation are on
the line: HR professionals may be personally liable for missteps. "Personal
protection is your first priority," advises Mary Pivec, a labor and
employment lawyer with Keller and Heckman LLP in Washington, D.C.
An HR professional can be sued individually and held personally liable
for breaking federal laws. |
Masters says the union message no longer resonates with
enough workers. The traditional job-security message appeals
to a niche market. "There has to be value that a worker can
take along to the next job that makes paying the dues worthwhile.
The average worker moves six to eight times and will not
be as attached to a particular employer as in the past," he says.
Chaison agrees that union leaders need to come up with
alternate forms of representation to expand ranks. "It's like
having a Mexican restaurant that only serves breakfast," he
says. "To stay in business, you have to also serve lunch."
Infighting Under Control
Still, despite tepid reviews and predictions of fragmentation,
the breakup appears to have strengthened, not weakened,
CTW and the AFL-CIO.
Predicted squabbling and raiding between factions, in the
main, hasn't materialized. "The split has not been as large as
many expected," says Tom Juravich, director of the Labor
Relations and Research Center at the University of
Massachusetts in Amherst. "The movement is chugging along."
But according to the AFL-CIO, nirvana it's not.
"Solidarity and unity are harder to achieve on policy and legislative
initiatives," admits Stewart Acuff, national organizing
director of the AFL-CIO in Washington, D.C. "Had we all
stayed together, there would be a more accessible forum for
resolving differences; we would not have had the few raids
that have occurred."
In contrast, Greg Denier, CTW's director of communications
in Washington, D.C., reports smooth sailing between the
federations. "The AFL-CIO continues to try to gin up some
controversy that's not there. We continue to work together on
politics and legislation."
Borrowing from Each Other
Both camps have been energized by confrontation. They learn
from each other and borrow liberally. They pursue techniques
including highly publicized corporate campaigns; both are
more aggressive and better staffed. They react to the shifts in
the U.S. labor force: Today, just 2 million manufacturing workers
belong to U.S. unions, down from 3.5 million a decade ago.
That compares with more than 3 million workers in service
and retail unions, and more than 7 million in public-sector
unions.
Primary targets include retail or health care establishments;
hospitality organizations such as hotels or restaurants;
and employers of janitors, security guards or other
low-wage workers. These industries employ an estimated 40
million workers, many low-income, female, minority and
immigrant.
Both federations include member unions with organizing
opportunities in the target industries, although the AFL-CIO
is saddled with more old-line manufacturing unions where
membership decline seems inevitable. As a result, leaders of
the AFL-CIO and CTW hype growth of individual member
unions, downplay overall membership, and focus on strategic
victories that will allow them to wield sectorwide or geographic
economic influence.
Investment in Organizing
These days, CTW and AFL-CIO organizers are smarter, better
prepared and more numerous. "We recruit from schools with
labor centers such as Berkeley, Cornell and Wisconsin," says
CTW's Denier. "We also go to schools that are pipelines for employers,
[schools] such as Wharton." In 2007 alone, the AFLCIO
Organizing Institute trained 560 organizers.
"In the old days, a union like SEIU might have two organizers on a team," says Stephen Cabot, chairman of the Cabot
Institute for Labor Relations in Plymouth Meeting, Pa. "Now,
teams are four or more, and they're specialized, [including]
representatives of the ethnic groups they're trying to reach."
Three years ago, the national Teamsters union had fewer
than 20 organizers on the ground. Today, it employs 200.
Gray says campaigns are more sophisticated, "They're presenting
their benefits much better; the marketing is smarter."
And an impressive amount of money flows in: CTW funnels 75
percent of the funds it collects from dues to campaigns, while
six AFL-CIO unions recently committed $150 million.
Strategic Planning and Analysis
Both are deep into strategic planning to help affiliates operate
campaigns aimed at picking off hundreds, even thousands, of
workers at a time while bypassing NLRB elections. These corporate
campaigns--unions call them "strategic campaigns"--
originated during the 1970s with activist legend Saul Alinksy
against Kodak in Rochester, N.Y., and have been in the union
arsenal since then. What's different now: The national AFLCIO
and CTW mastermind them.
Strategists in the AFL-CIO's Center for Strategic Research
and CTW's Strategic Organizing Center use "competitor analysis"
and other tools to target workforces. Currently, AFL-CIO
officials oversee as many as 20 campaigns. Among them: the
Atlantic City Casinos and Foxwood Casinos of Mashantucket,
Conn., being organized by the United Auto Workers and the
International Union, Security Police Fire Professionals of
America; and the New Orleans City Schools being organized
by the American Federation of Teachers.
CTW continues to make Wal-Mart a priority. It also promotes
campaigns focusing on 90,000 drivers in port facilities
in California, Florida and Washington being organized by the
Teamsters; 10,000 Bashas' grocery workers being organized
by the United Food and Commercial Workers, and 4,650
workers in a Bladen County, N.C., Smithfield Foods porkprocessing
plant being organized by the UFCW. Nationwide,
Smithfield has 53,100 employees.
Research helps organizers avoid companies where victory
is unlikely, such as Whole Foods Market based in Austin,
Texas. "The unions leave them alone because they have deep
pockets," Juravich says.
Corporate Campaigns
For HR professionals, the message remains clear: If you're in a
large company in a targeted industry, you may find yourself involved
in a corporate campaign.
"These corporate campaigns are consuming me," says attorney
Michael Lotito, SPHR, a partner in the San Francisco office
of Jackson Lewis LLP. "They are all-encompassing; the multiple
levels of attack that take place require constant attention
and anticipation. The
union shows up at 70
percent of your facilities
located in 25 states,
same time, same day,
with handouts that
attack the company.
Simultaneously, it files
unfair labor practices in some of the states, asks the Office of
Federal Contract Compliance Programs to investigate a claim
that you're not living up to your affirmative action requirements,
and sends a critical letter to the investment community."
A campaign strives to get employers to sign neutrality
agreements. In effect, these agreements permit unions to campaign
while the employers remain neutral. Usually, the
employer agrees to accept a card check to recognize the union
without a secret-ballot election if the union produces a sufficient
percentage of signatures.
Neutrality agreements also include provisions where the
employer agrees that its managers will not campaign against
or disparage the union, or that they will only provide facts
about the union when they're asked a question, says Lynn
Outwater, managing partner of Jackson Lewis LLP in
Pittsburgh.
Why would employers accede to neutrality and a card
check that offer a slam dunk for the union? Actually, few do,
and acquiescence usually can be attributed to wilting from a
blistering campaign. For example, the SEIU and UNITE
HERE won neutrality agreements from Sodexho, Aramark
and Compass Group PLC, multinationals employing more
than 1 million workers, mostly in service jobs.
Still, experts counsel against neutrality. They say letting a
union in can drain resources and cripple managerial flexibility.
"There's a cost, even if your wages and benefits remain the
same," Gray says. "It spills over into grievances, arbitrations,
regular contract negotiations. Whether [the cost] is 5 percent,
25 percent or 50 percent depends on how effectively the company
manages its relations."
For their part, union officials describe their roles in organizations
as shared governance, a win-win partnership.
Attorney John Raudabaugh, a partner at Baker &
McKenzie LLP in Chicago, disagrees. "We're no longer allowing
business to be business and labor to be labor. We want all
to be blended partners, and it doesn't work," he says.
"How can a business operate like a round-table discussion?"
continues Raudabaugh, a board member of the NLRB from
1990-93 and now a member of the SHRM Employee Relations
Special Expertise Panel. "Any business that's not saddled with
this works-council, multi-party way to run a company will have
the ability to operate more quickly and at lesser cost."
Some companies have so much dirty laundry, however, that letting a union in without a fight may be best. "If your corporate
governance is poor, if you have massive misclassification
[of workers] and don't have women in management, you may
be interested in a neutrality agreement," Lotito says.
Organizers say carefully orchestrated campaigns are legitimate.
And despite the outcry from employers, corporate campaigns
are fair play, Juravich says. "Employers cry 'foul,' but
[organizers just use] the same competitor intelligence methods
that employers use."
The AFL-CIO's Acuff says: "Corporate America is running
amok. There is more than enough bad stuff they do to bring to
light--how they treat their workers, their communities, their
business partners."
CTW officials cite victories in campaigns involving janitors
and nurses; AFL-CIO leaders point to victories at Cingular
Wireless and with home health care workers in Michigan and
New York. But although campaigns are unpleasant, drain
resources and can harm business in the short run, sometimes
they don't stick. "I represented a large beer company that
was attacked by the Teamsters," Cabot recalls. "They
attempted to get workers and supporters not to drink the
beer. Try to tell hard-working blue-collar workers not to
drink beer. There was noise, fliers, public relations stunts,
but the campaign petered out."
Rick Berman, executive director of the Center for
Union Facts in Washington, D.C., and a former employment
lawyer for Bethlehem Steel, worries that HR managers
in nonunion settings are not prepared for organizers'
tactics. HR professionals need to prepare for a "more
rough-and-tumble world. ... Most HR managers will need a
refresher course or will have to learn on-the-job about confrontational
HR."
Political Tsunami Forecast
Perhaps most ominous for employers who want to remain
union-free is that the political climate has shifted dramatically
since the elections in November 2006. Prospects have improved
for passage of the Employee Free Choice Act (EFCA),
which passed the House in 2007 but stalled in the Senate.
President Bush has said he would veto the bill if passed. But
observers agree that if a Democrat wins the presidency this
year and Democrats retain control of the Congress, the measure
could become law.
Employers suspect EFCA will open the floodgates for union
organizing because it would:
- Eliminate employers' right to demand a secret-ballot election
before union certification.
- Substantially increase financial penalties for committing
unfair labor practices under the National Labor Relations Act.
- Empower an arbitrator to impose a contract if the parties
don't reach agreement within 100 days.
- Require employers to maintain neutrality while unions
make their cases.
If EFCA passes, "Make a move that's a little over the line
and you're in deep trouble," Cabot warns. "Currently, many
employers engage in initiatives to counter union campaigns
they wouldn't dare do under EFCA. Now, there's a minor
fine; under EFCA, every unfair labor practice will be potentially
a $20,000 fine. Now, even if management is not
overtly instigating it, the feeling is 'if one of my supervisors
is talking to people, it's not so bad.' With EFCA, it will be
very costly."
Berman says if the law passes, private-sector union
membership could double. If union leaders "put on a fullcourtpress, hire more experts, more 'salts' [paid union
employees who apply for jobs and declare intentions to
organize workers], they can get membership up to 15 percent
of the workforce. That would give them an additional
$4 billion-plus a year in dues. If they put some substantial
portion of it into soft money for politics, every issue they
care about will be in play. These guys are the ATM of the
Democratic Party. Their investment will swamp the contributions
of the business."
In September 2007, the AFL-CIO executive council approved a record $53 million political budget to mobilize
votes during the coming presidential campaign.
So, ironically, John Sweeney's focus on politics, the very
thing he was excoriated for by the departing CTW leaders
two-and-a-half years ago, looks prescient and brilliant,
according to many union observers. As the presidential
election nears, Acuff says, CTW leaders seem to have forgotten
ever playing down politics. If the EFCA passes, it
would be the most significant pro-labor legislation in more
than two decades.
"If you've been union-free, and you haven't had to work at
it, you've been lucky," Lotito says. And if you wait until the law
is passed … well, that just wouldn't be a good idea.
Robert J. Grossman, a contributing editor of HR Magazine, is
a lawyer and a professor of management studies at Marist
College in Poughkeepsie, N.Y.
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