Los Angeles, CA
Pursuant to Section 4 of Article XXI of the AFL-CIO Constitution, the Executive Council issues revised procedural rules and decisional criteria to govern mediations and hearings under this Article. Cases initiated under this Article shall be managed by the AFL-CIO Article XX and Article XXI Coordinator under the direction of the AFL-CIO President and Secretary-Treasurer.
Background
Thirteen years ago, the Executive Council adopted a procedure and criteria to address competition among affiliates to organize unorganized workers. The Constitution was amended the following year to render this program permanent as Article XXI, "Organizing Responsibility Procedures," and on February 19, 1988, the Council reissued procedures and criteria to implement Article XXI that were essentially unchanged from those it originally adopted.
Since then, and particularly since the 1995 Convention, the AFL-CIO has restructured and redirected its organizing program and committed the entire labor movement to organizing as our first priority to advance the dignity and well-being of all working people. Necessary to this task is a fresh look at the procedures followed and the criteria applied to decide Article XXI cases. We now have considerable experience under Article XXI, enabling us to evaluate whether these rules and guidelines are effectively serving the AFL-CIO's objective of promoting the best and most efficient use of our affiliates' organizing resources by deterring and, where appropriate, ending wasteful and self-defeating organizing competition.
In its report to the 1997 Convention, the Executive Council declared that "unless we organize on an industrial- or service-sector basis that heavily influences the relevant labor market, we will not build the kind of power we need to negotiate strong contracts and improve standards and conditions." At its August 1999 meeting, the Council adopted two policy statements to promote such strategic organizing campaigns.
In its statement entitled "AFL-CIO Strategic Campaign Registration Program," the Council created a process to review and endorse affiliate strategic organizing campaigns in order to enhance their quality and success. The Council stated that an Article XXI Impartial Umpire "considering competing claims concerning an employee group covered by" a campaign approved under this program "shall award exclusivity to the union waging the campaign for an appropriate period of time." The Council further stated its intent to "revise its Article XXI implementation statement to reflect this policy."
In another August 1999 statement, "Article XXI Protection for Strategic Organizing Campaigns," the Council stated that it would also revise the Article XXI implementation rules in order to enable Impartial Umpires "to accord due consideration to strategic organizing campaigns that satisfy certain specified criteria." Specifically, where an affiliate "is actively pursuing a strategic organizing campaign in a particular industry, occupation or geographic area, the Umpire will be able to take that campaign into account in evaluating competing organizing efforts among an employee group that is encompassed by the campaign, even if the union waging the campaign has not yet undertaken direct organizing among that employee group."
Earlier, at its May 1999 meeting, the Executive Council approved an initiative to give parties the opportunity in particular cases to have both mediation and the hearing conducted by the same Impartial Umpire. This streamlined process is intended to be especially useful in situations where speedy resolution is particularly important and mediation has a realistic likelihood of success.
The Executive Council now adopts the specific Article XXI implementation provisions in order to carry out these new policies. The Council has also revised and clarified the various factors relevant to determining an affiliate's likelihood of success in organizing an employee group so they expressly apply at each stage of the Impartial Umpire's analysis, and so they reflect the circumstances that ought to be considered, while preserving the Impartial Umpire's discretion to weigh their relative importance in particular cases. Finally, the Council has elaborated upon its Article XXI case procedures in order to facilitate speedy and fair resolution of organizing disputes.
With these revisions, and incorporating the two August 1999 policy statements discussed above, the Executive Council now issues this Article XXI implementation statement, which supersedes and replaces the February 19, 1988, statement.
Procedural Rules
1. Each national or international union shall advise the AFL-CIO of the name, address, telephone number, fax number and e-mail address of its currently designated representative for Article XXI matters if such representative is a person other than the union's principal officer. The AFL-CIO and each affiliate involved in an Article XXI proceeding shall send copies of all letters invoking an Article XXI proceeding and other correspondence to both the principal officer and the designated representative of every affiliate involved.
2. The principal officer of an AFL-CIO affiliate that is actively engaged in organizing a group of employees and seeking to become their exclusive representative may invoke an Article XXI proceeding by sending a notice to the AFL-CIO President stating the nature and approximate number of the employees the affiliate is seeking to organize; the identity and location of the employer(s); the status of any related NLRB or other agency proceeding; and the names of all other affiliates that have taken steps, or that there is a reason to believe are about to take steps, to organize the same employee group in whole or in part. The affiliate shall simultaneously send a copy of its notice to these affiliates, and every party shall send copies of its further written communications to the AFL-CIO during the Article XXI proceeding simultaneously to all other parties.
3. If the affiliate invoking the proceeding wishes the AFL-CIO to advise the NLRB or other agency to hold its proceedings in abeyance in deference to the Article XXI case, the affiliate should so request in its notice, explain the justification for the request and provide the case name and number and the address, telephone number and fax number of the agency conducting the proceeding. If another affiliate that receives notice of the Article XXI claim wishes the AFL-CIO to do so, it should so request in the same manner upon receipt of the notice. The AFL-CIO President may in his or her discretion honor such a request, but absent extraordinary circumstances shall not do so without the consent of all interested affiliates if the request is received fewer than 15 days before a scheduled representation election.
4. Immediately upon receipt of the notice invoking the proceeding, the AFL-CIO President shall send a copy of the notice to every other affiliate identified by the affiliate invoking the proceeding as well as every other affiliate that the AFL-CIO President believes has taken steps, or is about to take steps, to organize the same employee group in whole or in part.
5. Any affiliate with an interest in organizing the employee group in question, whether or not it is notified of the case by the invoking affiliate or the AFL-CIO, may intervene and participate in the proceeding by notifying the AFL-CIO President of its interest.
6. Within 10 days of the original notice, the mediator to whom the case is referred by the AFL-CIO President shall convene a meeting of the parties at the AFL-CIO Headquarters; however, in extenuating circumstances, the AFL-CIO President, in consultation with the mediator where appropriate, may direct that a mediation be held elsewhere, either at the President's initiative or in response to a party's request. Each affiliate that has been notified of the proceeding and which has not responded to the notice by disclaiming in writing any interest in organizing the employee group, and each affiliate that has intervened, may participate in mediation. In the event of pressing reasons and at the AFL-CIO President's discretion, mediation may be waived and the case referred directly to the Impartial Umpire for a hearing.
7. The mediator will attempt to effect a voluntary agreement resolving the dispute at the mediation session. Any designated representative who participates in the mediation session shall possess sufficient authority to settle, or at least effectively to recommend settlement of, the dispute. At least one attendee from each party must be a representative who has knowledge of the facts and circumstances surrounding the dispute, normally from the local union or other affiliate that is directly involved. Attendees representing a local union or other affiliate at the mediation session may participate by speaker-phone if necessary.
8. If the mediator determines that the controversy cannot be resolved by agreement within a 10-day period, the mediator shall immediately notify the AFL-CIO President who shall, in turn, immediately refer the matter to an Impartial Umpire. Within 14 days of the referral, the Impartial Umpire shall conduct a hearing. Hearings shall be conducted at the AFL-CIO Headquarters; however, in the event of extenuating circumstances, the AFL-CIO President, in consultation with the Impartial Umpire where appropriate, may direct that a hearing be held elsewhere, either at the President's initiative or in response to a party's request.
9. Whenever possible, upon the initiation of a proceeding under ¶ 2, the President will offer the affiliates involved mediation and a hearing conducted by the same Impartial Umpire. In such cases, the President will advise the parties of the identity of the Umpire and ask if they wish the Umpire also to conduct the mediation. If all parties then agree, the Umpire will first attempt to resolve the matter through mediation. If mediation is unsuccessful, the Umpire will convene a hearing to receive evidence, hear arguments and render a final and binding decision. This hearing ordinarily, but not necessarily, will take place immediately following mediation. The parties' statements during mediation will not be admissible or otherwise considered in the hearing unless the parties agree otherwise. Proceedings under this paragraph will remain bound by the procedural rules and decisional criteria set forth in this policy statement in all other respects.
10. At the hearing, each of the parties will be afforded an opportunity to present all relevant evidence bearing upon the party's claims. Each party is entitled to a maximum of three representatives (including any who participate by speaker-phone) unless the Impartial Umpire, at a party's request made prior to the hearing, determines that good cause has been shown to permit a greater number of representatives. If the Impartial Umpire finds such cause, he or she shall so notify every other party and accord each of them the same right.
11. The Impartial Umpire otherwise shall have discretion to conduct hearings in such a manner as he or she considers will best serve this Article, consistent with the general practice under and the purposes of this Article.
12. Within 10 days after the conclusion of the hearing, the Impartial Umpire shall render an award, which the AFL-CIO President shall transmit to the principal officers and designated representatives of all the parties. This award shall be final and binding and shall not be subject to appeal.
13. The AFL-CIO President may extend or reduce any time limit if, in his or her judgment, doing so will more readily effectuate an early or otherwise appropriate settlement or determination of a dispute.
Decisional Criteria
14. If the Impartial Umpire finds either:
(i) that one affiliate that is a party to the proceeding began a full-fledged organizing drive adequate to organize the employee group in question significantly before any other affiliate and that affiliate has a reasonable chance of successfully organizing the employee group; or
(ii) in any case not falling within ¶(i), that one affiliate is significantly more likely to obtain majority support from the employee group in question than any other affiliate that either received notice of the proceeding or intervened and participated as a party,
the Impartial Umpire shall enter an award so stating. The award shall provide that the affiliate in whose favor the award is issued shall have the opportunity to seek to become the exclusive representative of the employee group in question for a period of one year, or for such other period as the Impartial Umpire, for good reason, designates, without being subject to ongoing competition by other AFL-CIO affiliates.
15. If the Impartial Umpire finds that neither § 14(i) nor § 14(ii) has been satisfied, the Impartial Umpire shall enter an award affirming that all interested affiliates are free to seek to become the exclusive representative of the employee group in question.
16. In assessing under § 14(i) whether an affiliate's "full-fledged organizing drive" began "significantly before" that of another affiliate with respect to an "employee group in question," the Impartial Umpire shall give due regard to the nature and degree of both (1) an affiliate's direct organizing activity within that employee group, and (2) 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. The Impartial Umpire shall apply no inherent preference between an organizing drive directed solely at a particular employee group and a strategic organizing campaign that includes that group.
17. In assessing under § 14(i) whether an affiliate has a "reasonable chance of successfully organizing the employee group," and in assessing under § 14(ii) whether one affiliate is "significantly more likely to obtain majority support" from the employee group than any other affiliate, the Impartial Umpire shall consider all relevant factors, including the affiliate's (a) support among the employee group; (b) plan to organize the employee group; (c) support from other affiliates pursuant to a coordinated organizing campaign under the auspices of the AFL-CIO or a trade or industrial department; (d) resources expended, budgeted or projected to be expended on organizing and collective bargaining; (e) extent and effectiveness of organizing activity with respect to the same employer, facility, industry, employment sector, occupational category and geographic area; (f) membership employed by, and bargaining relationships with, the same employer; (g) membership employed and bargaining relationships at the same facility; and (h) membership and bargaining relationships within the same industry, employment sector, occupational category and geographic area. In each case, the Impartial Umpire shall have discretion to accord such weight to particular factors as is appropriate. The Impartial Umpire in rendering the award shall not give any weight to a showing that the employer favors one affiliate over any other because of the employer's estimate of its relative advantage in collective bargaining.
18. If the Impartial Umpire finds that the organizing drive of an affiliate with respect to the employee group in question is covered by a strategic organizing campaign that has been approved under the AFL-CIO Strategic Campaign Registration Program, the Umpire shall enter an award in favor of the affiliate conducting that campaign for the remaining period of time for which the program is registered without regard to §§ 14 through 17. A subsequent modification in the registration period of the campaign automatically shall conform the period of the award to that modification.