Pursuant to Section 4 of Article XXI of the AFL-CIO Constitution, the Executive Council issues revised decisional criteria to govern hearings under this Article. The procedural rules contained in the Council's October 8, 1999 Statement on Implementing Article XXI of the AFL-CIO Constitution shall remain in effect. The revised decisional criteria contained herein supersede and replace the decisional criteria contained in the October 8, 1999 statement.
Background
For the last eight months, the labor movement has been engaged in an intense and serious discussion about what steps the Federation and its affiliated unions should be taking to build a larger, stronger labor movement. An important part of this discussion has centered around how the Federation might encourage more organizing, and particularly more strategic organizing, by affiliated unions, to achieve more growth and improve the labor movement's ability to bargain and maintain the best possible terms of employment for working men and women.
Article XXI of the AFL-CIO Constitution establishes a procedure through which affiliated unions interested in organizing a group of workers may seek a ruling from an Impartial Umpire granting them the exclusive right to do so without competition or interference from any other affiliated union. The Article XXI procedure, and the decisional criteria adopted by the Executive Council pursuant to it, offer a mechanism through which the Federation and its affiliated unions can promote and reinforce strategic organizing, by providing protection in the form of an Umpire's enforceable decision against interference in such campaigns by other unions.
The Executive Council previously amended the Article XXI decisional criteria to endorse strategic organizing considerations as a factor in the Umpire's analysis and determination. In its August 1999 statement, “Article XXI Protection for Strategic Organizing Campaigns,” the Council authorized Impartial Umpires to give due consideration, and possible organizing exclusivity, to active strategic organizing campaigns in a particular industry, occupation, or geographic area, even if the union waging the campaign had not yet undertaken direct organizing among the employee group that was the subject of the Article XXI proceeding. The Council also endorsed Article XXI protection for affiliate strategic organizing campaigns that are registered by the Federation under the Strategic Campaign Registration Program (SCRP).
These measures established important policies and principles, but their impact has been limited due to other aspects of the Article XXI decisional criteria that the Council now seeks to revise.
As presently structured, the Article XXI decisional criteria look first to whether one union began a “full-fledged organizing drive significantly before” any other union. If so, the decisional criteria require that the Impartial Umpire issue an exclusivity award in the first union's favor, without any consideration of whether the organizing was part of a strategic organizing campaign or whether the campaign was in an area, industry, or occupation in which the union had a substantial presence.
As a consequence, Article XXI decisions have overwhelmingly turned on, and have awarded organizing exclusivity to, the first union involved in organizing activities among the workers in question. Strategic organizing considerations have played a minimal role in the decision making process, coming into play in only a handful of cases and then only under the narrowest of circumstances.
The decisional criteria as presently drafted also minimize strategic organizing considerations by making the operative inquiry one that looks at which union is more likely to obtain majority support from the employees in question, rather than looking at which union is best positioned to achieve a strong contract for the workers. One consequence of this emphasis is a heavy reliance by Umpires on authorization cards, petitions, and other demonstrations of employee support, to the exclusion of strategic organizing and density considerations.
Where a union has made a substantial investment in an organizing campaign and has won the support of a majority of employees, that union should be allowed to make a showing that it deserves Article XXI exclusivity protection. At the same time, however, a union involved in organizing the same group of workers and with a substantial presence within the industry, occupation, or employer in question should be given the opportunity to make the case that strategic organizing considerations favor a different outcome. The revised criteria are not intended to encourage or allow affiliated unions to seek and obtain exclusivity awards for essentially jurisdictional claims, where the union is not actively organizing the workers in question, either directly or as part of an overall strategic organizing campaign.
The revised decisional criteria that the Executive Council here adopts make several significant changes. The criteria contained in existing Section 14 are replaced with four factors, contained in new paragraph 2, that Umpires are to weigh and balance in accordance with the policies and purposes of Article XXI, which are to resolve organizing competition in those situations in which the competition may be detrimental to the best interest of the workers involved and the trade union movement. The factors include both criteria that go to a union's presence in an employer, geographic area, occupation, or industry and the union's corresponding ability to achieve a strong contract on behalf of the workers in question, as well as the union's investment in the campaign and level of demonstrated support from the employees in question.
Paragraph 3 retains the provision adopted by the Executive Council in October 1999 that authorizes Umpires to look at a union's active strategic organizing campaign as well as an affiliate's direct organizing activity within the employee group in question. The paragraph also specifies that the Umpire shall give due regard to a union's executive and legislative branch activities to establish collective bargaining rights or facilitate organizing.
Paragraph 4 gives several examples to provide additional guidance to the Umpires in reaching their decisions. The examples are by no means exhaustive, but merely illustrative.
Paragraph 5 provides Article XXI protection to unions organizing pursuant to an organizing plan developed and adopted by an industry coordinating committee established by the AFL-CIO. These committees, which will bring unions together by industry, occupation, geography, or employer to develop strategic growth plans and enforceable contract standards, deserve swift and certain protection for their work. Under the revised criteria, one or more unions that are part of the industry coordinating committee and that are involved in such a campaign may seek, and receive, an exclusivity award against another union that is not part of the industry coordinating committee or its organizing plan. Similarly, such unions may seek, and receive, an exclusivity award against another union within the industry coordinating committee that is organizing in conflict with the committee's organizing plan. The Executive Council intends that proceedings of this nature should proceed expeditiously to a hearing and decision, without mediation or delay.
Paragraph 6 revises the existing criteria to give automatic Article XXI protection to strategic organizing campaigns that are registered and approved under the Strategic Campaign Registration Program. Under the current procedures, before seeking a hearing before the non-compliance subcommittee for interference with its registered campaign, a union must first initiate an Article XXI proceeding and receive an exclusivity award from an Impartial Umpire. Because the issue of organizing exclusivity has already been determined by virtue of the approval of the registered campaign, the revised criteria eliminate this unnecessary step and permit an affiliate with a registered campaign to initiate a proceeding before the non-compliance subcommittee to address interference by another union.
The revised decisional criteria adopted here make significant changes to the Article XXI process, with the expectation that these reforms will encourage more unions to invest in aggressive and strategic organizing efforts in areas and industries where they are strongly positioned to win representation and achieve a strong contract on behalf of workers. The Executive Council will review these criteria within three years to evaluate whether they have had their intended effect and whether, and in what form, they should be continued or modified. Decisions issued prior to the adoption of this statement shall carry no precedential weight in future proceedings.
Therefore, the decisional criteria contained in paragraphs 14-18 of the October 1999 Statement shall be revised as follows:
Decisional Criteria
- Based on the record developed at the hearing and the decisional factors contained in paragraph 2, the Impartial Umpire shall decide whether an award should be issued providing an affiliate the exclusive right to seek to become the exclusive representative of the employee group in question without being subject to ongoing competition or interference by other AFL-CIO affiliates. Awards shall be for a period of one year or such shorter or longer period as the Umpire for good reason establishes.
- In making a determination, the Impartial Umpire shall consider the following factors:
- The extent of each union's membership, and the extent and effectiveness of each union's organizing activity, with respect to the same facility, employer, geographic area, occupational category, or industry (listed in descending order of overall significance);
- The ability of each union to win representation and achieve a strong contract on behalf of the workers in question;
- The duration and extent of each union's active organizing efforts, and its corresponding investment of resources, with respect to the employee group in question; and
- The level of demonstrated support for each union among the employee group in question.
- In evaluating each union's activity under paragraph 2(c), the Umpire shall consider both an affiliate's direct organizing activity within that employee group, and an affiliate's active strategic organizing campaign that (a) encompasses the employee group within a particular facility, employer, industry, occupation or geographic area, (b) does not assert a purely jurisdictional claim, (c) is reasonable in scope and (d) includes a strategy to organize that group within a reasonable period. In addition, the Umpire shall give due regard to a union's legislative and executive branch activities to establish collective bargaining rights and/or facilitate organizing (e.g., card check legislation) for the employee group in question.
- The factors outlined above must be weighed and balanced against each other as the Umpire deems appropriate in accordance with the policies and purposes of Article XXI. The strongest case for an exclusivity award is one where an affiliate has a significant presence in the employer, geographic area, occupation or industry and has made a substantial investment of time and resources in its organizing campaign. The weakest case is where an affiliate has an insignificant presence in the employer, geographic area, occupation or industry, and has made a minimal or short-term investment in its campaign. An Umpire may appropriately find that significant density in an employer, geographic area, occupation or industry should offset a modest head start in organizing by a union with little or no density. As a general matter, a union that can demonstrate that it, and no other affiliate, has been engaged in an active organizing campaign for the employee group in question for a period of one year (or shorter time for a small group, e.g., less than 100 employees), that it has made a substantial investment in the campaign, and that it has a reasonable chance of successfully organizing the employee group in question, should receive an exclusivity award.
- The following criteria shall apply in a proceeding involving organizing that is being conducted within the jurisdiction of an AFL-CIO industry coordinating committee. In a proceeding involving organizing competition between an affiliate that is a member of the industry coordinating committee and an affiliate that is not, if the Impartial Umpire finds that the employee group in question is within the jurisdiction covered by the committee, the Umpire shall enter an award in favor of the affiliate that is a committee member. This protection shall not apply against ongoing organizing campaigns that were initiated significantly before formation of a committee. In addition, one or more affiliates that are members of the industry coordinating committee may initiate a proceeding against another committee member to enforce the terms of an organizing plan developed and approved by the committee. If the Umpire finds that the affiliate's organizing activities conflict with the committee's approved organizing plan, the Umpire shall enter an award in favor of the complaining affiliate(s).
- Strategic organizing campaigns that have been approved under the AFL-CIO Strategic Campaign Registration Program have automatic Article XXI exclusivity protection by virtue of their approval, and shall not require a further award from an Impartial Umpire. A subsequent modification in the registration period of the campaign automatically shall conform the period of Article XXI exclusivity protection to that modification.
- The Executive Council shall review these decisional criteria no later than three years following their adoption and shall determine whether, and in what form, they should be continued or modified.