DECERTIFYING PUBLIC EMPLOYEE UNIONS
UNIONISM IN AMERICA
According to the Bureau of Labor Statistics, public employment is one of the most unionized segments of the American workforce. In 2002, about 38 percent of all public employees were union members.
In the private sector of the economy, even in heavily unionized industries, such levels of union activity are very rare. In fact, for the last fifty years fewer and fewer employees on private payrolls have sought union representation. In 2002, only 8.4 percent of all employees in the private sector were union members.
Before the advent of unionism public employees had strong associations dedicated to the preservation and advancement of merit, civil service systems. Many of these associations had come into being in reaction to political bossism and patronage.
As union membership in the private sector declined, union officials sought new sources of dues income from public employees. They were aided in this by politicians who sought union political support and who had been foreclosed by civil service systems from exploiting public employment for political support through patronage.
PUBLIC SECTOR BARGAINING LAWS
The vehicle for imposing unionism on public employment was the enactment of state laws granting unions monopoly bargaining privileges. Most compulsory public sector bargaining laws were enacted in the 1960s and 70s.
During this period of time many of the traditional civil service associations attempted to fend off membership raids by organized labor by adapting to collective bargaining. At the same time many of these organizations, again in self defense, sought affiliation and merger with established unions that promised them a degree of autonomy.
WHY IS PUBLIC EMPLOYMENT SO UNIONIZED?
There are two obvious reasons why so many public employees are union members.
The first is that most public employees have never made a conscious choice about whether they wanted to be represented by a union.
As mentioned earlier, before the advent of unionism most public employees belonged to a civil service association, which they regarded as a professional association. The combined impact of the enactment of collective bargaining legislation and the movement toward transformation and affiliation was to co-opt most public employees into unions.
In most public agencies the decision about union representation was made long ago, before many present employees got their jobs. For new employees, union representation is the status quo. Most public employees don't realize that they have a choice about union representation.
Most public sector bargaining laws contain very loose standards under which public employers may grant unions recognition and monopoly bargaining status. Some allow such recognition to be solely on a request from a union. Others require a showing of interest of at least 30 percent of employees.
Because most employees and managers didn't fully appreciate the ways in which unionism and collective bargaining would change their relations with employee organizations, in most cases union recognition union was uncontested.
In addition, government management frequently has political motives for not opposing unions without regard to the wishes of employees.
Politicians, and the managers they hired, didn’t want to be perceived as "anti-union." This may have been much more of a factor in the 1960s and 1970s when unions were initially being granted recognition. As noted earlier, in those days private sector unions had considerably more members and political influence.
As a result, at the time unions were gaining initial recognition many, if not most, bargaining units were captured by unions without a good understanding of the consequences and often without a vote of the employees involved.
In short, because of political considerations, most public employees have been cheated out of the right to make a well-informed choice about whether or not to be represented by a union.
Just as union representation was the status quo before most present employees were hired, most decisions to acquiesce to union political influence and deny employees a choice on union representation were made by politicians who are no longer in office.
Another factor in the high level of public employee unionism is that management in the public sector hasn't done a very good job of communicating with employees about the problems and disadvantages of unionism.
Many managers fear that communications with employees about the downside of unionism will result in the union filing an unfair labor practice charge. It's true that under most public sector bargaining laws it's illegal for a public employer to "interfere with, restrain, or coerce employees in the exercise of their rights" but the same thing applies to unions and that doesn't keep unions from promoting unionism. Why should it prevent management from honest communications with employees about the drawbacks of unionism?
Unfortunately, it seems as if the very threat of having an unfair labor charge filed prevents some public officials from engaging in honest communications with their employees about unionism.
Some public sector bargaining laws provide that the results of an election can be set aside if an employers' unfair labor practice has made a fair election impossible. Since it is virtually certain that any union faced with a decertification election will file unfair labor practice charges, no matter how baseless, as a precautionary measure, the less the employer has to do with it the better.
No matter how much communication takes place, any action aimed at decertifying a union as a representative ought to come from employees, not from employers.
DO PUBLIC EMPLOYEES REALLY WANT UNION REPRESENTATION?
Even though public employment is very heavily unionized, there is considerable evidence that employees aren't necessarily in favor of unionism.
The continued strong support for civil service associations in states that have not enacted compulsory public sector bargaining laws is even more compelling evidence that public employees don't necessarily want unionism. These associations reject the adversarial, confrontational and monopolistic nature of unionism. These organizations are frequently among the strongest opponents of enactment of public sector bargaining legislation.
NON UNION ALTERNATIVES
Any consideration of removing a union as a bargaining representative raises the question of the alternative.
In a non-bargaining context there are many different ways for an organization to represent the interests of its members without engaging in collective bargaining. Most of these are far more constructive and positive than bargaining.
In some instances public employees have found that their problem wasn't with the bargaining process but with the outside interests of state and national union staff personnel. It may be that the solution is to decertify the union representative in order to have bargaining representation by a local independent association.
Whether the alternative is non-bargaining representation by a professional association or bargaining representation by an independent association, a necessary step is to decertify the existing union as a representative.
PETITIONS FOR ELECTIONS
Every public sector unionism law provides for petitions for elections by employees wishing to be represented by a union. Most of them also have a provision for getting rid of an unwanted union through what is called “decertification.” Some of the laws are so pro-union that they don’t include such a provision but in those states there are administrative provisions for decertification.
The first step in the decertification process is a petition. Usually, such petitions must be signed by 30 percent of the employees in the bargaining unit.
These laws usually include some sort of window during which a decertification petition must be filed. These windows differ from state to state. A typical provision would be for the petition to be filed "no sooner than 120 days or later than 90 days before the expiration date of any collective bargaining agreement."
There are usually no time limits on the filing of the petition seeking representation when no collective agreement exists but a very narrow window of opportunity for employees who want to decertify a union. That makes the task of public employees wishing to rid themselves of a union more difficult than that of those seeking a union.
Public employees who are considering petitioning for an election to decertify a union must usually contact the state government agency responsible for such elections to obtain forms and instructions.
They should keep in mind, however, that many employees in these offices maintain close relations with union officials. As a result, word of their interest in a decertification election may reach union officials before the petitioning employees even receive the forms and instructions.
Since a negative reaction can be anticipated from union officials to any effort to decertify a union, it would be advisable to do as much planning and organizing as possible before contacting the state agency.
Employees considering a decertification campaign can contact the Public Service Research Foundation for more information.
TOO SOON FOR DECERTIFICATION?
If it is too soon to consider decertification , a half way step that gets the ball rolling is to resign from the union. In many states public employees who are not union members but are represented by a union are forced to pay a fee to the union in order to keep their jobs.