In Search of a More Perfect Union

In the last few years, building service providers and their labor practices have received an unprecedented amount of national press — a lot of it negative. And while the U.S. organized labor movement, as a whole, has suffered from declining membership and bad press of its own, there are examples of growing momentum in specific industries.

Ours is one of them.

One of the strongest unions associated with the janitorial industry, the Service Employee’s International Union (SEIU), has increased its visibility during the last few years with widely publicized contract negotiations and organizing campaigns. Now, it shows signs of further ratcheting up activity around the country during the next two years. As the union begins to target areas where it previously had little or no presence, BSCs could find the SEIU coming to their towns. Because unionization is a touchy subject for any business to face, contractors need to be prepared for the possibility that their companies could be a target of the SEIU’s next public campaign; they should plan now for how they want to respond.

“It is absolutely essential for a company facing unionization to be well informed and to get good legal advice,” says Paul T’Koy, owner of Cleaner Living Services Inc., based in a suburb of Chicago. SEIU Local 1 has recently attempted to organize his employees, but as of press time has not been successful. He believes the union is not necessary for his workers since they already receive union-scale, or higher, wages and he has chosen to avoid contact with union representatives who have picketed his customers’ facilities.

Basics BSCs need to know
There are many issues surrounding unionization that could trip up contractors during a union organizing campaign:

• Contractors do not have the option of choosing whether a union represents their employees. The National Labor Relations Act gives workers the right to organize. BSCs, however, can spell out to employees what a union can and can’t offer workers, as well as the impact of unionization on the company.

“Employers have a right to provide lots of information to employees regarding why they don’t think unionization is a good idea and why they oppose the union coming in,” says Michael Stevens, a partner in Arent Fox Kintner Plotkin & Kahn’s Washington D.C. office who handles labor issues. “The two biggest mistakes contractors make are freezing and thinking they can’t do or say anything to employees regarding the union, or not realizing there are some limits on what they can say and do.”

• Unionization does not guarantee a particular wage or work benefit. The employer only is required to bargain “in good faith” regarding union requests, which means workers may not get increases the union promises to lobby for. Sometimes increases could take place over the course of a few years, not right away. The union also often requires employees to pay membership dues without a guarantee of pay increases.

• Workers have the right to organize and the union has many means available to encourage or promote unionization, as long as it doesn’t break local laws, which may include things such as blocking entrances to buildings or transportation, violating noise ordinances or trespassing.

Recognizing the union
When and how a contractor recognizes a union can be a vital point in union relations, says labor consultant and former union organizer Lupe Cruz of Cruz & Associates, Los Angeles.

Recognition of a union allows its representatives to negotiate on behalf of workers. Until this is done, an employer is not required to negotiate with the union.

“Contractors think they can just recognize a union and things are going to be OK, but that union still could end up escalating the situation into an all-out public fight,” says Cruz. For example, the SEIU sometimes attempts to gain contract concessions through publicized actions that contractors may not be aware of, such as picketing or filing labor complaints. This means that recognizing the union in an attempt to avoid negative publicity may not always be successful.

A contractor legally can’t recognize the union’s representation unless it has the support of the majority of workers, says Stevens. Contractors can speak with union representatives at any time during an organizing campaign, he adds, but they need to make sure that their conversations do not imply recognition if they don’t intend them to.

Traditionally, union organizers will collect signed authorization cards as proof of the union’s majority status. Many contractors who oppose unionization decline to voluntarily recognize the union, and avoid meeting with the union. This usually is because they do not want to be presented with proof of alleged majority status, based on concerns about whether employees actually knew what they were signing, and/or whether employees were pressured into signing the cards. In that case, the union may file a petition with the National Labor Relations Board (NLRB) requesting a secret ballot election, says Stevens.

To file a petition, the union must have the support of at least 30 percent of the employees, but in most cases the union will not file a petition unless it thinks it has the support of at least 50 percent of employees, he adds.

A union is recognized if 51 percent of workers or more vote in favor of representation. Then the contractor must move forward with “good faith bargaining” with the union, according to the NLRB.

Typical SEIU tactics
The SEIU typically avoids elections because it views them as a delay tactic and many of the workers who originally sign cards will turn over before an election can occur, says Stephen Lerner, national director of building service contracting for SEIU.
“We will begin aggressive publicity campaigns and other actions to pressure the contractor and its customers into acknowledging the union in whatever way we can if they don’t voluntarily recognize us,” he says.

“I would say in 90 percent of cases in all U.S. industries, the parties prefer these elections, but its not the only way the union can gain recognition,” says Allen Siegel, who provides legal advice to the Building Service Contractors Association International. “The union is free to demonstrate that majority any way it wants — with cards or petitions.”

In the building services industry, unions also have engaged in “corporate campaigns” where they attempt to force contractors to recognize them by involving landlords, tenants, the public and government authorities in the campaign. This often involves picketing at various customer, contractor or private locations. It also can involve distributing leaflets explaining the union’s position.

Lisa Bands, owner of My Cleaning Inc., Baltimore, which recently unionized, suggests contractors collect all information the union distributes during an organizing campaign so they can monitor what is being said about their company and what the union promises to do for workers.

The union typically agrees to refrain from disruptive conduct if the contractor agrees to remain neutral during the campaign and to voluntarily recognize the union if it presents the BSC with authorization cards signed by at least 50 percent of the workers, says Stevens. The SEIU’s Justice for Janitors movement has used such tactics in many cities including Washington and Baltimore.

But contractors need to be aware that signing a neutrality agreement will prohibit them from discussing any aspect of unionization with their employees — good or bad. Therefore, all educating regarding what the SEIU can and can’t do is now a violation. Some contractors say they lost any power to fairly explain their situations once they signed such agreements.

When presented with union membership cards supposedly signed by employees, BSCs should be aware that looking at those cards or petitions is a legal form of recognizing the union. After such a move, the contractor can’t request an NLRB election. That is because after examining the evidence, the employer no longer is in a position to question the union’s status with employees in “good faith,” which is a prerequisite to insisting on an election.

A union also can file labor complaints with the NLRB against a contractor on behalf of workers, even if the union doesn’t represent them. BSCs often find themselves the subject of frivolous claims as a way of generating adverse publicity, says one East Coast contractor who has faced such a move.

“It is logical that a contractor isn’t going to talk to the union representatives until they give him a reason to, and having to defend yourself against frivolous claims can force your hand into talking with them,” the contractor says.

Another option is a “recognition strike,” which involves workers walking off the job in an effort to get the company to recognize its new representation, says Siegel.

Contractors who have experienced such campaigns and denied union recognition until the NLRB could hold an election say the fight is worth it to make sure workers have a chance to make the choice without pressure from either side.

“It may seem like an expensive and damaging fight, but it doesn’t always have to be,” says one contractor who spent very little to challenge a local union that ended up failing to organize in his company.

Other times, the cost is worth it, say contractors: “You need to think of it as an investment in the future of your employees because once the union is in, it is very hard to remove it, so you will have to work with it for a long time and that process can be more costly,” says T’Koy, of Cleaner Living Services.

Union organizing strategies
The SEIU has changed much of the way it looks at organizing during the last few years, especially in the unique market of building service contracting, says Lerner. Contractors across the country admit that the union’s new focus has helped it to gather rapidly more janitorial members in various cities than it has in the past. While it took about 10 years to organize most of D.C., the SEIU organized three separate markets last year alone.

One strategy change the SEIU has made is to work as a collective entity, rather than to allow each local to organize alone.

“We found the same large contractors and property management firms were operating in multiple cities where we were trying to organize, so we started leveraging our experiences and relationships in different places to effect change across more of the markets they were operating in,” says Valerie Long, president of SEIU Local 82 in D.C. Her local has led organizing efforts in Baltimore and outlying areas between the two cities during the last year.

The SEIU also is more apt to convert a large portion of a single market and negotiate similar wage and benefit rates, rather than work building by building. The logic behind this move is that a single contractor who has to raise prices to cover higher wages can’t compete against other BSCs who can bid on jobs for much less, says Long. If the majority of unionized contractors in a given area have to pay higher wages, then cleaning bids are more likely to reflect the increased compensation. Facility customers then have fewer “low-ball” options.

Union locals still might target key companies or property management firms they feel will help convert the market fastest. Traditional targets include: BSCs that clean high-profile buildings in a given area; buildings run or cleaned by national or regional companies that already are union in other cities; and companies where there are disgruntled workers or that have labor complaints filed against them.

Locals also are more sophisticated in their organizing strategies, sharing information regarding standard wages, benefits, cleaning prices and rental rates in similar markets.

“If we are dealing with some of the same companies on the building or contractor side they can’t say no as easily to our requests if they already are doing something comparable elsewhere,” says Charles Hatcher, organizing director for Local 50 in St. Louis. In fact, the SEIU has been able to break into some markets by leveraging its relationships with large providers that are more likely to work with the union in this manner, forcing other contractors to fall in line.

Another part of this strategy involves waiting until a majority of the market is unionized before BSCs have to institute their negotiated increases, says Lerner. This was the case in Baltimore and New Jersey recently where at least 55 percent of the local markets need to be union before triggering the contracts.

Avoiding unionization
Many BSCs have tried to fend off unionization by creating environments that mirror the same benefits and communication structures the SEIU typically puts into place when it is involved.

“They ignore you or give up quickly when they can’t offer more for your workers, which is totally fine since their whole purpose is to help workers in companies where they can’t get such benefits on their own,” says one contractor who has spent decades “union-proofing” his company with a comprehensive internal labor relations system.

T’Koy says he knew he likely would face union organizing, but also knew his strategic plan was to stay small and only work in non-union accounts. The SEIU recently targeted his company after he won a prominent contract.

Because he pays the same or more than what union workers get in the area, and he is working to obtain more reasonable health care coverage, few are interested in organizing. He also successfully fought labor violations charges the union brought against his company. He doesn’t worry about the publicity the legal fight creates because he has strong ties with his customers.

T’Koy notes that his policy also is to treat any employee engaged in picketing or organizing fairly.

“The best defense if a company doesn’t want to face unionization is to make sure they put their workers first, treat them fairly and pay them as much as possible,” says T’Koy. “If workers are loyal to you and feel respected they won’t feel they need someone to negotiate for them because they can do it themselves.”

Working with the union
Some contractors have not resisted organizing efforts, even inviting the union into their companies, because they could gain more business that way.

Aline Hanrahan, owner of Tanallies Cleaning Inc., St. Louis, recently invited the union to organize her company when she realized the only way to grow in her area as a subcontractor was to work in union-contracted facilities.

While many BSCs fear they will lose control of their companies, she says she believes she has as much control as she did before unionizing.

“As long as you document all interaction between management and staff, and make sure you are acting within labor guidelines, then you can continue to run your company as usual,” Hanrahan says.

In fact, she says she feels it has made it easier for her to justify higher wages and benefits that could lead to a more stable work force.

“Another benefit is that the union has helped us gain recognition as a valid trade and has helped me increase our professionalism,” says Hanrahan.

My Cleaning’s Bands says she knew one day the union would come calling, so she planned early on to work with organizers if her workers wanted it.

“I decided long ago that if I wanted to grow bigger the union eventually would be interested in my company and they have much more money and clout than I could put into fighting it,” she says.

So when Bands saw SEIU representatives talking to her workers and leafletting, she agreed to sit down with them and her labor lawyer to find out how she could go through the process with as little disruption as possible for customers.

Since she was willing to work with the union, organizers honored her requests to stay away from some facilities during publicity campaigns.

Other locals also choose to handle organizing efforts on a more low-key level if they feel it will best serve their cause, says St. Louis organizer Hatcher.

“I don’t blame contractors for not believing our claims of what we will do to work with them,” he says. “Without question, the SEIU was different a few years ago and we’re doing things that they’ve never seen us offer up before. So we have to help educate them as we go — fighting only if we hit a dead-end.”

Band’s initial concern regarding her customer relationships is common for contractors dealing with union organizing. But, overall, BSCs say their customers are aware of the possibility of becoming a union target. Solid customer relationships go a long way in keeping business steady during organizing campaigns. Building owners and managers also can be empathetic even if they can’t publicly take sides.