archive LittlerThis article recently appeared in the National Solid Wastes Management Association, September 2005. Union Issues in the Solid Waste Industry by Ronald J. Holland and Philip Paturzo Summary sentatives of employees for collec- rates above the national average. In tive bargaining purposes, and the contrast, states in the Southeast and Union membership in America has bargaining process itself. It also Southwest tended to have far less been in a downward spiral for the addresses recent strikes in the in- union density. past 50 years. However, this does dustry and the ways employers can not mean that the private solid prepare in advance to reduce the Given the steady decline in union waste industry can rest easy. Be- impact of a strike. Finally, the pa- membership throughout the coun- cause the type of work performed per looks at management initiatives try, the private solid waste industry by industry employees cannot be that should be used to reduce the should not be concerned about new sent abroad to reduce labor costs possibility that employees will seek organizing efforts, right? Wrong. and the nature of the business is union representation. recession-resistant, unions recently The Teamsters boasts that it rep- have targeted solid waste compa- Background resents over 25,000 private solid nies. Specifically, the International waste industry workers.2 And it is Brotherhood of Teamsters, the larg- Labor unions have existed in not content to stop there. In 2004, est union player in the field, has America since the 1800s. By the Teamsters President James P. Hoffa publicly vowed to unionize private mid-1950s, at the height of the la- said: “It is the priority of the Team- solid waste companies nationwide bor movement, roughly 35 percent sters Union to bring justice to solid and has expended significant re- of the American workforce was waste workers throughout the coun- sources to achieve that goal. Re- unionized. While union ranks have try”.3 While the Teamsters’ past in- cently, it announced its separation fluctuated since, there has been a discretions may cloud its definition from the AFL-CIO to pursue a more significant and consistent decline of “justice,” it has certainly initiated aggressive organizing strategy. Solid in union membership over the last efforts to organize the private solid waste companies will certainly con- 50 years. waste industry, including a two-day tinue to be a high priority for new strategic planning session in the Teamster organizing. According to the Bureau of Labor Fall of 2004 aimed at the industry’s Statistics, 12.5 percent of wage and three largest companies—Waste This paper reviews the methods salary workers were members of a Management, Allied Waste, and used by unions to organize com- labor union in 2004.1 All states in Republic Services. The Teamsters panies, the procedures by which the Middle Atlantic and Pacific re- have appointed a National Solid unions become certified as repre- gions reported union membership Waste Coordinator, Ed Jacobson, to 1 Bureau of Labor Statistics, Union Members Summary, www.bls.gov/news.release/union2.nr0.htm (Jan. 27, 2005). 2 Waste News, Teamsters Target Trash Industry, www.wastenews.com (Mar. 29, 2004). 3 International Brotherhood of Teamsters, Teamsters To Hold National Solid Waste Strategic Planning Meeting, www.teamsters.org (Oct. 2004). T M LITTLER MENDELSON, PC The National Employment & Labor Law Firm www.littler.com A Littler Archive Newsletter page 2 spearhead its organizational efforts. surance coverage for employees in a thinly- union representation is through an NLRB- veiled attempt to establish a foothold within conducted election. A union files an election It is not surprising that the industry has be- that company. Often, such corporate cam- petition with the Board that must be support- come a high-profile target of union organizing paigns serve to drive down stock prices even ed by a sufficient “showing of interest.” This efforts. First, the industry is recession-resis- if the union’s goal of organizing is not met. showing of interest is met by evidence that at tant. Second, unions have lost many mem- least 30 percent of employees in the unit the bers due to companies moving jobs abroad Another organizing method used with some union is attempting to organize wish to be in order to reduce labor and regulatory costs success is “salting.” This is where a union or- represented by the union. Typically, a union and the industry provides unions with an op- ganizer applies for a job with an employer for will not proceed to this stage unless there is portunity to get new members. As a result, the sole purpose of organizing its employees. support from a majority of employees. other unions have thrown their hat into the Last, unions have become technologically ring, including the Operating Engineers, the savvy in an effort to reach a broader base of Sometimes a union representative or employ- Longshoreman, and the Machinists. potential members through the internet and ee will approach a member of the manage- specific union websites. ment team and hand him or her signed union Union Organizing Tatics authorization cards. It is imperative that the Card Check Agreements and Union manager or supervisor refrain from inspect- Before addressing the process of union orga- Representation Petitions ing the cards. The NLRB has held in a num- nizing, it is necessary to have a basic under- ber of cases that supervisors reviewing cards standing of the relevant federal statutes and Now that you know the methods used by and expressing their belief that the signatures administrative agencies you will encounter unions to organize employees, we turn to are genuine can constitute voluntary recogni- along the way. In 1935, Congress enacted the how they actually get their foot in the door. A tion without the need for an election. Thus, National Labor Relations Act (NLRA), which tactic that has become increasingly popular is if presented with this situation, management is a federal law designed to regulate employer, pressuring employers to enter into card check should simply tell the presenter of the cards union and employee conduct. In conjunction recognition agreements. In these agreements, to contact the NLRB. with this statute, Congress also established employers agree to forgo an NLRB-conducted the National Labor Relations Board (NLRB election and negotiate with the union as the Once a petition is filed with the NLRB, a or “the Board”), which is an administrative employees’ representative if the union is able hearing will be set within the next 14 days. agency charged with implementing the poli- to collect signed authorization cards from a The hearing is primarily used to resolve is- cies of the NLRA. majority of employees. Authorization cards sues concerning which employees are eligible are simple documents signed by employees to vote in the election. Usually, the employer While often employees will seek out unions stating that they wish to be represented by and union will agree to the group of voting for representation, recent history has shown the particular union. Employees are easily employees without proceeding to a hearing. that unions are taking a more proactive ap- pressured to sign these cards by union orga- Then, an election date will be set within 42 proach to organizing. For example, unions nizers. days of the date after the petition was filed. have employed a “top down” approach Ultimately, employees will vote in a secret whereby they target employers vulnerable Unions often ask the employer to remain ballot election and the union must obtain to adverse publicity campaigns and politi- neutral (refrain from expressing positive or a majority of the votes counted to be suc- cal pressure. In those cases, unions aim their negative views concerning union representa- cessful. A tie goes to the employer. Employ- campaign at the larger corporation (specifi- tion) when soliciting cards. The card Union ers prefer secret ballot elections over a card cally, the Board of Directors and sharehold- Organizing Tactics check/neutrality agree- check because it ensures employees will have ers) rather than individual business units, ment path is preferred by unions because the opportunity to vote their conscience with with the hope they can force the corporation studies have shown that unions’ success rate little fear of retaliation by the union. to voluntarily agree to recognize the union in organizing employees under this method without proceeding through a Boardcon- is significantly greater compared to their suc- In between the time a petition is filed and ducted election. cess rate in NLRB-conducted elections. This when the election is held, often known as the is because employees only hear one side of “critical period,” an employer is permitted to Recently, unions have attempted to use the the story and that story is often misrepre- run a campaign (including speeches and writ- media as a weapon to target companies. For sented. Employees are sometimes coerced ten communications) to express its views on instance, several unions enlisted the help of into signing cards and sign them believing why it does not believe a union is necessary. “Dateline” to investigate allegations (which the union will then leave them alone. Unfor- However, supervisors must be careful of what turned out to be false) concerning a super- tunately, employees do not realize that they they say and how they say it to avoid running market chain’s products and treatment of have a legal right not to join a union. During afoul of the NLRA. The acronym “TIPSS” can customers. Unions have also made an effort an election campaign, employers are permit- help supervisors remember certain prohibi- to attack the public image of companies, ted to inform employees of this right as well tions: known as “corporate campaigns.” For ex- as other legal rights protected by federal law.