Traditional Union Organizing
Primarily Through the National Labor Relations Board
Union Elections
The National Labor Relations Act (NLRA) of 1935 was the landmark labor law that established most private sector workers’ legal rights to organize at work. In addition to defining labor rights in the private sector, it set up a government entity called the National Labor Relations Board (NLRB) for enforcement.
In the years following the NLRA, a standard form of union organizing through these elections and subsequent contract negotiations has developed.
The NLRB oversees union representation elections at nearly all private-sector workplaces. The Railway Labor Act of 1926 serves a similar purpose for the transportation sector, with the National Mediation Board overseeing union elections under slightly different procedures. The federal government and many states have set up similar systems for public-sector workers through public employment relations boards.
In the years following the NLRA, a standard form of union organizing through these elections and subsequent contract negotiations developed. The traditional process is as follows.
- A union organizes with workers at a workplace to sign up at least 30% of the workers on union authorization cards. In practice these days, it’s typical to sign up well over a majority of the workers, usually 65% or more.
- A 2023 NLRB ruling created the Cemex framework, where a majority of workers can demand recognition and the employer has to grant it or file for an election to test that majority. It’s unclear how long that framework will survive under Trump’s NLRB.
- Alternatively, authorization cards are filed with the NLRB along with a petition for an election. The NLRB determines if the collective bargaining unit represented by the cards and the petition is appropriate.
- The NLRB schedules an election, usually within a few months, where the workers vote “yes” or “no” on whether they want to be represented by the union. If 50% +1 of the voting workers vote “yes,” the workers have officially formed and joined the union at that workplace.
- The NLRB certifies the union as the exclusive representative of the workers and requires theemployer to negotiate a contract, also called a collective bargaining agreement, with the union.
In practice, every step of this organizing and bargaining process is often obstructed by the employer. Upon learning of the union-organizing campaign, the employer will typically engage in union-busting practices, both legal and illegal, designed to instill doubt and fear in the workers. It may contest the bargaining unit to try to exclude or include certain workers based on where it assesses union support in the workplace. It will likely hold mandatory “captive audience” meetings on a regular basis to misinform workers. Though a recent NLRB ruling has banned mandatory meetings, it’s unclear how long that rule change will remain. If the workers win, the employer may protest and appeal to the NLRB to delay certification. Even if the workers certify a union, the employer may refuse to bargain a contract in good faith.
Often these employer tactics are “unfair labor practices” (ULPs), which the union can bring to the NLRB for prosecution. However, ULPs can take many months or longer to process, and the penalties are usually so minor that they don’t impact the employer’s behavior. Also, long delays in scheduling elections, certification, and bargaining, all while worker turnover occurs at the workplace, hurts the ability of the workers to build and maintain solidarity.
Despite this employer opposition, unions are fairly good at winning these elections, with a win rate of over 70% in recent years.
These delays are one of the main ways employers bust union organizing, using refined psychological techniques during the months leading up to an election to scare workers away from unionizing. If the employer has dragged out the bargaining process long enough, a group of workers may be so frustrated (usually misdirecting their anger at the union) that they will try to “decertify” their union after the fact, sometimes with employer assistance.
The Economic Policy Institute reports: “While 86% of workers who chose a union were able to win a first contract in the 1950s, that share declined to less than 70% in the 1970s. By the 1990s, it was down to 56%.” Other studies have found that a large percentage of unions fail to get a first contract within one year and that it takes over a year on average to reach a first contract. In some cases, workers never get a contract at all — the employer delays, and the workers give up.
Despite this employer opposition, unions are fairly good at winning these elections, with a win rate of over 70% in recent years. Winning elections and negotiating strong contracts can transform workers’ living conditions, political beliefs, and sense of solidarity, and should absolutely be pursued where strategically viable. But they are also time consuming and labor intensive, which is why unions are running fewer of them now.
Workers having to go through this elaborate process, often under intense employer interference, means that far too few workers are successfully organizing unions and bargaining contracts in this way.
Workers having to go through this elaborate process, often under intense employer interference, means that far too few workers are successfully organizing unions and bargaining contracts in this way. This has led to the search in recent decades for alternative ways of organizing and efforts to reform labor law.
Card Check Neutrality
The NLRA has always authorized an employer to voluntarily recognize a union. Thus another organizing approach is for the union and workers to convince the employer to recognize the union based on the majority of workers’ support. The new Cemex framework reinforces this.
With card check, the employer agrees to be neutral and recognize the union based on a majority of the workers signing union authorization cards.
One example is called “card check neutrality.” With card check, the employer agrees to be neutral and recognize the union based on a majority of the workers signing union authorization cards, often checked by a mutually chosen third party and sometimes within a specified time period. If the workers achieve a verified majority, they are certified by the NLRB and contract bargaining begins.
Achieving the employer agreement to this process often requires an intense pressure campaign over time. But if successful, the advantages to this approach are that there is no drawn-out election time period during which the employer can engage in union busting and no particular date set by the NLRB where the union is judged to have won or lost.
However, the fight with the employer usually can’t be avoided—it’s either a fight for the card check procedure, or during the union election and contract bargaining.
The union has much more time to organize and can submit the cards at the time of its choosing. The workers sign cards under a neutral atmosphere until they are ready to submit them for certification. However, the fight with the employer is never avoided entirely — it’s either a fight for the card-check procedure or during the union election and contract bargaining.
Card-check certification has grown in recent decades but is still used less often than elections, although the data on this is harder to find. Card-check certification can have multiple dynamics. The worst-case scenario is when union leadership makes concessions to the employer in advance, often behind closed doors, to get an agreement from the employer before beginning to actually organize workers. The best scenario is when a union organizing campaign is so powerful that it forces management to concede to its demand for recognition directly.
Labor Peace Agreements through Legislative Action
Related to this approach is what are often called “labor peace agreements.” In these cases, the government will require that private-sector employers benefitting from some kind of public subsidies or assistance sign a labor peace agreement with a union where they essentially agree to the card-check neutrality process. The guiding rationale is that employers benefiting from public subsidies should not fight union organizing or that the public wants to protect its subsidy investment from potential labor disruption. This intention is good, but workers should take note that unions’ efforts to obtain these agreements can sometimes offer too many concessions to employers, trapping workers in a process that undermines their full rights to organize and strike.
Recognition Strikes
A “recognition strike” happens when workers who are not officially certified as a union go on strike to force their employer to recognize the union and bargain a contract. This is protected activity under the NLRA but comes with some legal restrictions. For example, picketing can usually occur for no more than 30 days.
Unions should consider how this tactic could be revived and used much more often in the right circumstances.
More commonly used in the past, recognition strikes can be a powerful strategy. As with other strikes, there’s a risk that the employer may try to replace the workers with scabs. Labor law unfortunately allows in most cases for the temporary or permanent replacement of striking workers. However, unions should consider how the recognition strike tactic could be revived and used much more often in the right circumstances. The Cornell Labor Action Tracker 2023 Annual Report identified 13 strikes that had union recognition as a demand.
What the Future May Hold: “Members-Only” Bargaining
There is an argument advanced by law professor Charles Morris in the book “The Blue Eagle at Work” and others that the NLRA should allow for “members-only” collective bargaining. This means that any group of workers should be able to form a union without an election and demand contract bargaining from their employer for their members only.
This was a more common occurrence in the pre-NLRA era, but NLRB practice evolved fairly quickly to exclude this possibility. Reclaiming this right would take a prolonged fight by the labor movement, a friendly NLRB, and overcoming the inevitable challenges in court. There may also be the problem of the formation of company-friendly members-only unions. (See “Proposals” in Further Resources and debates about members-only bargaining here and here.)
- Published