Photo Credit: Washington Area Spahr

How do I get a Union?

There’s no easy step by step process on how to organize a union. However, here’s my crack at it.

If you’re really serious about organizing, chances are there is a local union in your community. Call them up and ask to speak to an organizer, a steward or a rep. They’ll have much more thorough knowledge of how to help you navigate your workplace than a blog post will.

STEP 1:

Figure out if you work in the Private Sector or the Public Sector. 

Depending on where you work, there are different laws that govern labor relations. Typically, this is pretty easy to figure out. If you work for a state agency or public school, you work in the public sector. If you work for a privately held firm or a not-for-profit corporation, you work in the private sector.

Very rarely if your place of work is privately held but receives public funds the law that governs labor relations might actually be governed by different laws. This is a very important to know, as it’s difficult to move forward if you’re not sure.

STEP 2:

Learn the basics of the law that governs your workplace.

You don’t need a law degree or an in depth understand of legal jargon–you just need to figure out if you have to have an election or if your employer is compelled to recognize a majority of interested parties in your workplace as a bargaining agent.

Stock photos are funny.
Stock photos are funny.

In the public sector…

You’re going to need to look up your state labor law and Labor Relations Board. An example of that can be found here. Most of the time this information can be found simply by Googling “[insert state name] labor board.”

One thing to note, however, is that there are some states were collective bargaining is legally banned. These States are Virginia, North Carolina, South Carolina, Georgia and Texas. If you live in one of those states and work in the public sector, bad news: this is the end of the guide for you. Collective bargaining is illegal there :/

Most of the time, however, you’re going to have one of two options. One is called “card check.” We’ll talk about that later.

The other option is that you’re going to have a have an election sanctioned by the government. This process typically closely resembles how it works in the private sector.

In the private sector…

You get to deal with the National Labor Relations Board! Oh joy.

The NLRB will hold a government sanctioned election once there has been expressed interest of at least 30% of the proposed bargaining unit. But how do you figure that out?

STEP 3:

You need to figure out who would be in your bargaining unit. 

Usually, this is pretty straightforward. You need a clean and complete list of everyone you work with in your job classification or related jobs classifications. This is called identifying a community interestNote: the minimum size of a bargaining unit is 2 people. You can’t be a union by yourself.

Basically, anyone can be a member of your bargaining unit as long as you have shared interests that it would make sense for them to have addressed along side you in a collective bargaining agreement.

The only employees that are excluded from this process are:

“any individual employed as an agricultural laborer, or in the domestic service of any family or person at his home, or any individual employed by his parent or spouse, or any individual having the status of an independent contractor, or any individual employed as a supervisor”

So what that means is that you can’t be in a union with your boss. And you can’t form a union with your co-workers if you work for your parents. Or if you’re a supervisor. Or an agricultural worker. Or an independent contractor. But other than that, you’re on your way towards collective bargaining!

STEP 4:

It’s time to start talking to people.

So you’ve figured out the legal pathway to having your union recognized and who would be in the bargaining unit. Now most of the time, unions represent the entire membership of a given workplace. So what that means for you is you need to start talking to people about their degree of interest in forming a union.

Get people on your team to talk to people they know as well. You all should meet regularly and keep close track of who is supportive and not supportive. This group is your “organizing committee.”

You need to talk to everyone who would be in the bargaining unit. You need to figure out if you have over 50%union_busting support of those people who would vote in an election. If you don’t have over 50% support, you either need to figure out how to get there or stop talking to people about this.

The reason for that is because no employer wants their workers to form a union. Right now they’re perfectly happy with the status quo and not having to negotiate with you as equals. They can and will lie, tell you half truths, make people promises they will have no obligation to follow through on, etc. While you have legal protections against retaliation for union organizing, that doesn’t mean that your boss won’t start to target people who are actively organizing.

This is called “union busting.” Professional organizers can help you navigate the union busting process but please be aware: employers can get really creative with both their words and actions to try and stymie an organizing drive. They can and will resort to guilt, fear and anger to try and divide and conquer you all.

Your boss will also start to target people that they think will either waffle or vote “no” for the union and get them to fight your organizing efforts.

This is a hard line to walk in terms of workplace politics. However, at some point you’re going to want to be public about your support for the union. By doing this, you’ll tie your employers hands in terms of retaliating against you.

For example, if you suddenly get your hours cut after publicly declaring you’re organizing a union it’s pretty clear that that is retaliation for organizing activities. By publicly declaring your support, you openly subject your employer to legal action if they try to target you. Again, if you know a union member or can get in touch with a professional organizer they can help you navigate these politics.

STEP 5:

Have well over 50% support for a union? It’s time to drop cards.

card

So you’ve figured out who would be in your union and talked to enough people that you definitively know thatat least half of them would vote “yes” in an election to form a union. You need to write up a brief union authorization card and have all of the supporters sign them as quickly as possible. These cards need to have their name, basic contact information and a statement that declares their desire to have a union be their exclusive bargaining agent at work. There also needs to be a hand-written signature and date on every card that is signed. It is very important that you have been working from a thorough list of potential members of the bargaining unit. If you fall short of that 30% margin you have tipped a big chunk of your hand to your boss.

In the public sector…

Earlier I mentioned “card check.” Sometimes in the public sector, depending on the law, you can simply have the cards authenticated by a third party like the American Arbitration Association, at which point the law will require your employer to recognize your union and begin the collective bargaining process. Congratulations!

In the private sector…

Now that you have the authorization cards signed by over 50% (ideally around 65%) you need to file those cards with the National Labor Relations Board. There is at least one office in your state. Because you are over the 30% threshold, you’ll trigger a government sanctioned election that will be held either at your workplace or via mail ballot.

Technically, private sector employers can also voluntarily recognize your union if you ask them to. Unfortunately that almost never happens any more. Depending on your relationship with your boss, it might not hurt to ask.

Note: Over the course of this process, your employer will never be told who exactly signed the union authorization cards. The Board functions as a third party to maintain anonymity for those workers that do not wish to have their support be public. 

This is the part where you might end up needing a lawyer. Established unions often provide organizing and legal resources to workers looking to organize so long as they are willing to affiliate with that union.

STEP 6:

Some legal stuff goes down.

Either your employer is going to agree with the bargaining unit you proposed or they won’t. You need to be ready to provide evidence that your bargaining unit composes a clear community of interest. It really helps to have a lawyer if your boss decides to fight you at the Board. If bargaining unit changes too much, you may not have met the 30% minimum of interest in your workforce to trigger an election.

If you don’t have an attorney available, then you simply need to do your best to provide as much evidence as the case officer assigned to your case asks for. The decision is not up to your attorney, it is up to the board. Part of what will make this stage difficult is that your employer absolutely will have an attorney available to make a bunch of complex arguments about the structure of the unit in order to try and minimize your bargaining power.

STEP 7:

Time for an election!

There are usually between 4 and 6 weeks between the time that you file the petition for election and the election itself. You want to spend this time making sure that everyone who told you they’re supportive remains supportive.

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Once election time rolls around, you need to make sure that everyone that said they were supportive actually puts their ballot in the box. This part is essential; if people don’t show up to vote then you’re not going to be able to win. A bit of prodding and annoyance at this stage in the game is worth it if it means you all having a collective bargaining agreement. You need a simple majority of those people who vote, not of the entire workforce. Therefore every vote counts.

STEP 8:

The Ballot Count

Once all of your ballots have been submitted, there will be a ballot count to determine whether or not you all have won and certified your union. While up to this point most union busting probably has been going on in your workplace, this is an opportunity for your employer to really hold up the process.

Both sides are allowed to “challenge” votes that they believe fit the community of interest. It should be noted that you can challenge for basically any reason. These challenged votes are not counted in the overall ballot count unless the number of challenged ballots are determinate in the the outcome of the election.

Here’s an example. Let’s say that there are 200 workers in a proposed bargaining unit. Both you and the other side challenge 5 different workers. There are a total of 10 challenged workers. The final vote count comes out to be 101 Yes votes to 89 No notes with 10 challenges. Even if all of the challenged ballots were No votes, the ballot count would still be 101 Yes votes to 99 no votes. Because those 10 votes would not determine the outcome of the election, they would not be opened.

However, let’s say that the outcome of the election is 99 Yes votes to 91 No votes with 10 challenges.  Because those 10 votes could determine the outcome of the election (if they were all no votes, the final count would be 99 Yes to 101 No) then the next step would be to determine whether or not the challenges should stand.

What happens next is one of two things. One or both parties can withdraw their challenges and agree to open the ballots at that moment or it can go to a hearing where both sides would have to present evidence to make the case of why their challenges are relevant and should be sustained.

There is a high degree of strategy involved in this process. Ideally, you wouldn’t have gotten to this point without already knowing how everyone in your workplace would individually vote, so challenges need to be done strategically and should have at least some basis. If you or the other side challenge too many people and they end up being determinate in the election then you could be tied up in hearings and appeals for months. If you challenge too few, you may find yourself with a losing count.

Either way, it would be best to consult an attorney or someone who has been through this process before in order to make sure that you’re making the right call.

If you obtain a simple majority, then you win! Congratulations, you just got to the starting line. Next comes contract bargaining.

FAQ

Can I use my work email for union organizing purposes?

It was recently adjudicated on that you can use you your work email for union organizing purposes. However, your employer may still be able to read your work email. I would advise you not to talk about any strategy over your work email for this reason.

How long does this process take?

It depends on how many people you are hoping to have in your bargaining unit. Larger campaigns, that is those consisting of a thousand or more workers, can take several years. If you’re just looking to organize your office, you might be able to go start to finish in a few months. It depends how much time and dedication you and your coworkers are willing to devote to your campaign.

What happens if I think I’m being retaliated against?

If you think that you’re being retaliated against you want to discuss with the rest of the organizing committee whether or not you think it would be a good idea to submit Unfair Labor Practice Charges to the National Labor Relations Board. This is a really effective way to apply pressure to organizations who are worried about their public face as that information is public information.

What if someone tells my boss about this early on?

That depends. Depending on how much support you have, you may want to be public about your organizing if your boss is changing your working conditions or cutting pay. If your boss is not reacting to the news, it may be a good idea to plan to go public but not do so immediately.

How big of a risk is organizing a union, really?

Many people have been fired for being active in organizing drives. What really determines your security is how much faith you have in your coworkers to stand by you if anything happens. However, there are of course thousands of instances historically where union activists have persevered and won their collective bargaining rights. It can be a terrifying process, but the end result is one of the most liberating feelings you’ll ever experience.

Do employers universally fight unions?

Nine times out of ten.

Why would I want to take these risks?

The only reason people want to take these risks is because they want to make changes at work. If you’re fine with your pay, job security, health insurance, etc then chances are there will not be an incentive to form a union. However, if you need this job and there’s a lot you want to change then forming a union with your coworkers may be the most effective way to realize those ends.

What do I do if I think I’m going to lose the election?

There are ways to hold up elections. If something major happens (like really major, like a leader on your organizing committee gets fired) that sways a lot of your supporters to want to vote no, then you’re going to want to file an Unfair Labor Practice against your employer. This is hold up the election until the ULP is resolved. This gives you time to go talk to your coworkers and see if you can address their concerns to bring them back around.

What’s an Unfair Labor Practice?

The acronym for them is S.P.I.T. It is a legal charge against your employer for violating labor law.

Surveillance: Your employer cannot surveil your organizing efforts. They cannot sit outside of rooms you’re having organizing committee meetings in or listen in to you and a coworker talk about the union.

Promises: Employers cannot promise raises, promotions or other material things that may influence a worker’s vote in a union election.

Intimidation: Employers cannot intimidate workers in order to try to influence their vote.

Threats: Employers cannot threaten to retaliate against workers to try and influence their vote in a union election.

What do I do if my employer starts lying about unions or me to my coworkers?

Ideally, this is something you’re going to want to be ahead of. There’s a great book called “They’re Bankrupting Us!” And 20 Other Myths About Unions that goes through most of the commonly used slanders about unions. It’s not a bad idea to try and pick it up so you can talk to your coworkers about these myths before your employer has the chance to try and convince people of them. This also helps build credibility for you and the organizing committee.

Questions? Comments? Leave a comment or send me an email!

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