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Labor Union Organizing: What a Negotiation Challenge!

There is a direct correlation between the descending labor union membership and the declining middle class. Pew Research defines the middle class as those earning 2/3 to 200 percent of the national median income. Fifty-eight percent of Americans declare that declining union membership and the middle class is bad for the United States.

Union membership has declined from 20 percent of the workforce in 1983 to 10.3 percent in 2021.

Middle class membership declined from 62 percent in 1970 to 43 percent in 2014. (Upper class membership increased from 29 percent to 49 percent during this same time period.)

Economist Dambisa Moyo writes that the veracity and very survival of democracy depends on a strong, prosperous middle-class; one that is able to hold government accountable.

So a robust democracy needs a robust middle class. One way to increase and stabilize a middle class is union membership. So, why is it so challenging to negotiate union organization in the United States? Many blame the country's broken labor laws and ineffective National Labor Relations Board (NLRB).

John Oliver, Last Week Tonight, Union Busting

Oliver highlights this perilous and frustrating imbalance of negotiation power in his November 15, 2021 episode of Last Week Tonight, entitled “Union Busting." It seems that corporations have all the power over union organizers and yet more than half of nonunion workers say they desire to be in a union.

The first step in unionizing is to negotiate with 30 percent of the employees to sign cards stating they want to consider a union. The next step is the actual vote of more than 50 percent. This must be a secret, fair, and free vote.

The corporations such as Amazon in Alabama or Starbucks in Buffalo, New York, spend over $340 million per year on expert anti-union firms, often law firms, by such names as Labor Relations Institute or RWP Labor. They teach the firms how to fight union organizing in every way.

The anti-union playbook set forth by these firms is multi-faceted and easy for the corporations, since they are using their premises and information that they already have on their employees. The strategy is to “nip it in the bud” and to make each union negotiation step difficult.

- One, they say watch out for “union words.” It is ironic that one of the so-called union words is “living wage.”

- Second, post anti-union signs everywhere even in the bathrooms.

- Next, send constant texts to all employees talking of the dangers of the union.

- Schedule mandatory on-premises anti-union meetings. They have a captive audience.

Some corporations arranged more than two per week.

All of these tactics are designed to spread fear of the unions in regards to employees losing their jobs or corporate closings or moves. Most often, they work. The law does state that corporations cannot threaten to close, but there is a prediction “loophole.” So, corporations cannot threaten to close, but can predict that they will close if the union is created.

These predictions are bogus. Fifty-one percent of corporations have made these predictions but only 1 percent actually closed after the union victory.

- Delta Airlines fought the union by emphasizing the cost of dues. They recommended that instead, employees spend the $700 on video games.

- Target fought the union by declaring that unions will bring forth a rigid department-by-department structure. Target created a set of videos ironically using Screen Actors' Guild union actors.

- Columbia Sports stated that unions ruin marriages, jobs would be lost overnight, and the city would become another “Detroit.”

No consequences for corporations violating the law in regards to union busting.

It is horrible that most of the anti-union consultants will state to corporations that if they violate the law, most likely they will not be caught and if they are caught, there will be very little consequences. Forty-one percent of the corporations do indeed violate the law. For example, if a pro-union employee is wrongfully terminated, the company may have to pay back wages. To avoid a union vote, corporations will easily do this.

Regrettably, 96 percent of the time, the unions win on the second vote.

Even after the successful union vote, the exhaustion strategy by the corporation continues. Although the law declares that the corporation bargain in good faith, most do not. In most cases, the contract negotiations take three years. The agreement is called a Collective Bargaining Agreement (CBA).* In the Dish Network Corporation case, the negotiations with the Communications Workers of America 6171 have been ongoing since 2009. It has been 10 years.

*The typical CBA lasts 3-4 years.

About the National Labor Relations Board (NLRB)

According to Wikipedia, the National Labor Relations Board is an independent federal agency vested with the power to safeguard employees' rights to organize and to determine whether to have unions as their bargaining representative.

NLRB was created by the National Labor Relations Act of 1935, signed by then-President Franklin Delano Roosevelt. Leaders created this law as a result of the unethical and anti-union corporate behaviors during the depression. As a result, union membership dropped from four million in 1920 to 2.5 million in 1933. NLRB has the mandate to protect workers in unionizing. The NLRB members are nominated by the President in staggered, five-year terms and confirmed by Congress.

Regrettably, NLRB has not operated strongly and seems too political.

Protect the Right to Organize Act Proposed

One way to balance the negotiation power is for Congress to pass this bill. In addition, the bill would add real financial consequences to law violations.

According to Wikipedia:

The Protecting the Right to Organize Act, or PRO Act, is a proposed United States law that would amend previous labor laws such as the National Labor Relations Act, for the purpose of expanding "various labor protections related to employees' rights to organize and collectively bargain in the workplace."

Number of co-sponsors: 213

This bill passed the Congress House by 225-206 including mostly Democrats and 5 Republicans. The Senate most likely will not hear this bill because of the slim lead by the Democrats not being able to overcome the filibuster.

"Nearly 60 million Americans would join a union if they get a chance, but too many employers and states prevent them from doing so through anti-union attacks."

The bill could be a game changer. One provision overrides the right-to-work state laws (12) in which an employee can opt out of union dues, but still receive the union benefits. Another provision would mandate mediation and arbitration to creating union contracts if the corporation does not negotiate in good faith.

This bill might overcome the corporate negotiation strategy to simply exhaust the union organizers.

The Starbucks Union Example:

Starbucks has 380,000 U.S. employees. They have 9,000 corporate owned stores and 6,500 outlets owned run by licensees. Starbucks has vigorously fought unionization with only one store in Victoria, B.C. now having a union contract starting in 2021.

Unlawful Retaliation Ruling: On June 21, 2021, Administrative Law Judge (ALJ) Andrew Gollin of the National Labor Relations Board found that Starbucks Coffee Company unlawfully retaliated against two Philadelphia baristas in response to their efforts to unionize the Seattle-based company. Beginning in July 2019, two employees led a campaign to improve working conditions at their store and organize a citywide union. The ALJ found that Starbucks closely monitored their public social media activity, attempted to gauge employees’ support for the employees’ efforts, and unlawfully spied on protected conversations one of the employees initiated with coworkers. Ultimately, Judge Gollin concluded Starbucks retaliated against the employees and discharged them in an attempt to quell the organizing drive.

Judge Gollin ordered Starbucks to cease and desist from interfering with their workers’ rights to organize a union and to post a notice to employees notifying them of their rights to act collectively to improve their workplace. Additionally, Starbucks must offer reinstatement to the employees and make them whole for lost compensation.

Buffalo, New York success: The employees in Buffalo-Elmwood voted to unionize in light of the COVID crisis calling for more safety. This vote was called “a watershed” by former labor secretary Richard Reich. Nearly one-third of the staff had fallen ill and they decided to take action: a strike!

In addition to their demand for more COVID safety measures, they demanded better pay, more benefits, consistent scheduling and a fair promotion system.

The Buffalo union organizing was kept secret at first. Starbucks had already been chastised by NLRB for firing several workers in Philadelphia who had tried to unionize. Starbucks has behaved the same way in many cities. Starbucks has used all of the tactics described by John Oliver above to fight the unions.

It is ironic that many corporations who espouse liberal causes are so resistant against unions, but money probably explains it. In the Buffalo case, global billionaire Howard Schultz spoke and even referred to the Holocaust, unconvincingly.

NLRB has declared two successful Buffalo store votes for Workers United, an arm of SEIU.

SEIU and The George Washington University Story

At the urging of many adjunct professors at GWU, SEIU decided to organize them. The GWU president Stephen Joel Trachtenberg (1988-2007) fought it “tooth and nail,” filing six complaints with the NLRB (National Labor Relations Board). He won one: the graduate students who taught courses would not be included in the mix. Regrettably, the NLRB is as political as any other federal agency. When it was controlled by the Democrats, NLRB allowed graduate students from NYU (New York University) to be included, but Republicans controlled the NLRB during the GWU complaint and the result was the opposite.

Several of the adjuncts suggested to the GWU establishment that GWU offer benefits to the adjuncts. Funny, in actuality, most adjuncts would not have accepted the benefits since many of them work for such places as the federal government which already offered such benefits. Thus, this benefits offer would have cost very little. At that time, GWU establishment were not effective negotiators and refused to offer these benefits.

The impending vote seemingly was about 50/50 when the president made a bad negotiation move. This president, as reported by the Chronicle of Higher Education was the tenth highest paid university president earning more than $400,000 not counting such amenities as free housing.

GW's former president, Stephen Trachtenberg, took home $3.7 million in pay and benefits in 2007-2008, according to the Washington Post. That's like enough money to pay for two or three kids' tuition there! If $3.7 million sounds like a lot for a college administrator, that's because it is. It's $2 million more than any other administrator in the country. That's also well above the median $358,746 salary reported in the Chronicle of Higher Education.

It should be noted that the Chronicle of Higher Education reported that the average pay per three credit course is $3,000, translating maybe to $35 per hour. There are no benefits.

Ironically then, he wrote a letter to all of the adjuncts claiming that he knew they were not working for money (adjuncts are paid pitifully) but for the prestige of working for the GWU. This greatly irritated many of the adjuncts and so the Union won!

Amazon’s Illegal Anti-Union Tactics

Amazon, the $1.5 trillion behemoth, employs more than 500,000 in 800 warehouses. They have vigorously opposed unions by illegal tactics according to the NLRB.

The National Labor Relations Board (NLRB) charged Amazon with illegally stopping an employee in its Staten Island warehouse from handing out pro-union leaflets…Amazon worker Connor Spence, who first filed the charge against Amazon, told Vice he was handing out leaflets in the break room by a security guard who confiscated the union literature…According to the US National Labor Relations Act of 1935, employers cannot interfere with union organizing…The NLRB's investigation also said that Amazon illegally gave the impression it was surveilling union activity.

NLRB ordered Amazon to hang posters throughout the facility indicating what they WILL NOT do such as surveilling, threatening, or interrogating employees about union activity. NLRB declared that they did not have the power to impose monetary penalties. Who won? Amazon.

Recently in Bessemer, Alabama, NLRB granted a “re-do” election stating that because of Amazon’s illegal tactics “a free and fair election” could not be held. The new votes will be counted on March 28th.

Is Amazon progressive? Amazon’s anti-union fight, including illegal tactics, stands in contrast to their support for progressive causes such as $15 per hour federal minimum wage or distribution of the COVID vaccination aligned with the Biden Administration or immigration reform or Paris Climate Agreement. Amazon right now is viewed quite favorably (91%) by US residents, but most do not know of the anti-union activities.

Amazon is also in a perilous situation legally in light of ongoing anti-trust investigations by the Federal Trade Commission and several state attorney general offices. Amazon realizes this and spent $18.7 million for federal lobbying. This is sixteen times what they spent a decade ago.

American Rust Series-Side Story

The American Rust TV series captures all of the negotiation problems with organizing a labor union. The primary female character Grace, played by Maura Tierney, works diligently at the Wedding Dress factory which has been in this small poor Pennsylvania town a long time. She realizes that even though the owner/boss is a kind older gentlemen, the dressmaker employees (mostly, female) were being paid cheaply with almost no benefits.

The owner is shocked since in his mind he was being magnanimous. He hires an outside firm at a great expense to persuade the employees that unionizing was a bad idea. They first might lose their jobs and second the factory might be moved.

The next thing she knew, her car was vandalized and then blown up. Even her house was burned down (maybe unrelated).


New York Times writer Emily Bazelon declares that US labor laws are broken. Hope for improvement seems dim with corporations outspending unions and workers by 16-to-1.

Many believe that NLRB is too weak, ineffective, and way too political.

Now, in the United States, there does seem to be some hope for increased unionization; thereby increasing the middle class and ensuring democracy.

According to the American Action Forum:

Unions are the not-so-secret sauce of Bidenomics. Need to solve income inequality issues? Get some good-paying, union jobs…To this end, the president has formed a White House Task Force on Worker Organizing and Empowerment, stating, “it is the policy of my administration to encourage worker organizing and collective bargaining.” The task force is chaired by Vice President Kamala Harris, with Secretary of Labor Marty Walsh as vice-chair. Heads of federal agencies and cabinet members are well-represented.

According to Emily Bazelon's article, sectoral bargaining idea = hopeful:

Clean Slate for Worker Power, a coalition of more than 70 participants from labor, academia and nonprofit organizations brought together by Harvard Law School’s Labor and Worklife Program, released proposed reforms that would extend the N.L.R.A.’s protections to agricultural and domestic workers as well as independent contractors and also give all workers a say in how companies are run.

One of Clean Slate’s most sweeping recommendations is for sectoral bargaining, which is common in Scandinavia, and makes it legal to negotiate a contract across an industry rather than one company at a time. There’s a potential competitive benefit for businesses: If McDonald’s, Burger King and Wendy’s agree to pay the same wages and benefits, one can’t gain an advantage over another.

At this time in the United States, improving workers’ situation seems hopeful. During the past several years, SEIU has gained 50,000 members. The national ight For Fifteen Dollars minimum wage seems to have energized the workers from restaurants to education. All of these efforts may help to balance the negotiation power between workers and businesses.


See Recommended Books under “Blogs” drop down menu. Clicking on any book will lead one to the discounted Amazon site.

Roy J. Lewicki is the author of 'Essentials of Negotiation', published 2015 under ISBN 9780077862466 and ISBN 0077862465. Publisher: McGraw Hill Higher Education

The Conflict Resolution Training Program, Leader’s Manual, ISBN: 0-7879-6077-2. Prudence Bowman Kestner and Larry Ray

5 Languages of Appreciation in the Workplace.

Getting Your Way Every Day.


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