Executive Council Statement | Better Pay and Benefits

Building Power for Workers without Bargaining Rights

In today’s economy, millions of workers technically fall outside the protections of laws establishing the right to bargain collectively.  Others are deprived of their bargaining rights because their employers misclassify them, or because external law technically defines them as independent contractors or as self-employed workers, when in reality many of these workers are economically dependent on a particular employer or government agency for their livelihood.

All work has dignity.  All workers deserve respect.  All workers deserve the right to form organizations to have a voice on the job.  Their ability to do so should not depend on the label given to them by an employer or a government agency.  The labor movement stands with all workers who lack the legal right to collectively bargain in their efforts to organize for a voice and fairness on the job.

In many industries, unions are adopting innovative methods for organizing such workers and building power to win important improvements in their economic well-being.  As the economy changes and the labor movement increasingly welcomes workers who lack the right to collectively bargain into membership as part of the broader movement for economic and social justice, the AFL-CIO must adjust its own rules to encourage our affiliate unions to assist these workers to win power in a manner that makes the best use of union resources by preventing wasteful organizing competition and harmful conflict over representational rights.

Already, umpires under the Article XX and XXI procedures have determined that unions should be protected against interference from other unions when they are organizing or representing, as the exclusive representative, groups of workers who may be independent contractors in collective bargaining with a public employer (or quasi-public employer).  The Executive Council endorses this precedent and encourages umpires to continue to take an expansive and pragmatic approach to extending similar protections in future cases to similar groups in both the public and private sectors.

In addition to ratifying this Article XX and XXI precedent, the Executive Council has determined that the basic principle of Article XX’s Massillon doctrine should be extended to affiliate efforts to represent other workers who lack the legal right to bargain collectively. Massillon protects a union’s effort to represent public sector workers who lack the legal right to bargain so long as the union has attained the highest form of representation available. The Massillon doctrine was developed at a time when most public employees lacked bargaining rights and our movement assisted them to build member-based power and then, in many cases, win the right to bargain.

We stand in the same situation today with regard to our affiliate unions’ efforts to assist other workers who lack the right to bargain collectively in building power on the job. Those efforts deserve the same respect under Article XX.

The Executive Council therefore adopts as its policy that a union that organizes a group of workers who lack the legal right to bargain collectively, provides representation to these workers, admits them into membership and pays per capita tax to the AFL-CIO on their behalf, should be protected under Article XX against interference from another union with respect to those members.  This policy applies only to workers who lack the legal right to bargain collectively; it does not apply to the representation of NLRA-covered employees, including the representation of such employees in states where state law prohibits union security agreements.

As with Massillon, the Executive Council believes that to the extent a legal mechanism is subsequently developed, through legislation, adjudication, executive action, or otherwise, to enable a union to act as exclusive representative with respect to any group of workers who, up to that point, lacked the right to bargain collectively, it is not a violation of Article XX for a union to pursue such representation even if another union has an existing members-only relationship with some members of that group.

The Executive Council recognizes that competition to organize these groups could result in proceedings under Article XXI or the Strategic Campaign Registration Program (SCRP).  It is the Executive Council’s view that, in a proceeding involving an effort to become the exclusive representative of a group of workers who to that point lacked the legal right to bargain collectively, a union that had developed membership, including associate members, prior to the establishment of exclusive representation rights should receive credit for that organizing as a factor in the Article XXI or SCRP analysis.  The Executive Council further believes that impartial umpires evaluating cases under Article XXI should be open to granting exclusivity for a limited period of time when a union can demonstrate that it has built a significant level of membership among a defined group of workers and is poised to achieve meaningful gains in their economic terms of employment through dealing with an employer or employer-like entity.  Developing members as a strategy toward eventually winning representation rights and full, voting membership is a commitment and investment that should be encouraged.

Finally, the Executive Council has considered the special circumstances faced by construction unions in their industry and determined that this policy statement does not apply, and does not affect or override in any way the Piney Point doctrine regarding the applicability of Article XX to work in the construction industry.  In addition, due to the rampant misclassification of construction workers as independent contractors designed to undermine and underbid legitimate union construction companies that pay employment taxes, provide workers’ compensation coverage, health care and other benefits, nothing in this policy is intended to legitimize the use of independent contractors in the construction industry.  For this reason, this policy shall have no application to construction and maintenance work of the type performed by the affiliates of the Building and Construction Trades Department.