Brief Description of Employees’ and Employers’ Associations
Trade unions constitute the largest and most influential employee organisations in the United States. A majority of trade unions are organised under two umbrella organisations: the American Federation of Labour and Congress of Industrial Organisations (“AFL-CIO”) and the Change-to-Win Federation.
The U.S. Chamber of Commerce, an organisation dedicated to representing employers’ interests by engaging in lobbying campaigns, is the largest employers’ organisation in the United States. In certain heavily unionised sectors (e.g., healthcare), employers can and do create multi-employer bargaining organisations to collectively negotiate the terms of collective bargaining agreements with employee-elected unions.
Rights and Importance of Trade Unions
Due to the United States Constitution’s guarantee of a freedom of association, employees are free to form and join trade unions. As of late 2022, 14.6 million workers, or 10.1% of the workforce, are members of a trade union. Public-sector employees are unionised at a much higher rate (33.1%), than private-sector employees. Only about 6.0% of private industry employees are unionised. Industries with high unionization rates included utilities (19.6 percent), motion pictures and sound recording industries (17.3 percent), and transportation and warehousing (14.5 percent). Among occupational groups, the highest unionization rates in 2022 were in protective service occupations (34.6 percent) and in education, training, and library occupations (33.7 percent).. While only a small portion of the U.S. workforce is unionised, trade unions wield significant lobbying power.
Types of Representation
Generally, most employers’ first exposure to unionisation comes in one of two ways: they notice signs of union organising activity taking place in their establishment or they are confronted with a request by a union to be recognised as the exclusive representative of their employees. If an employer declines voluntary recognition, the union may file a petition for an election with the National Labour Relations Board (“NLRB”), the federal agency charged with enforcing the National Labour Relation Act (“NLRA”). The petition must describe the unit of employees it seeks to represent and the union must demonstrate to the NLRB by way of signed authorisation cards that it has the support of at least 30% of the employees in that bargaining unit. If the union shows the required level of support, a representation election is held.
The election is conducted by way of a secret ballot that is supervised by an NLRB agent. No member of management or the union is allowed in the voting area and no electioneering can be conducted there, but both the employer and union may appoint observers to be present during the balloting process.
If a majority of the employees in the bargaining unit who cast their vote had voted in favor of union representation, the union gets the right of “exclusive” representation of all the employees in the bargaining unit (not only the employees who voted in favor of the union).
Tasks and Obligations of Representatives
The NLRA’s stated purpose is “…to promote the full flow of commerce, to prescribe the legitimate rights of both employees and employers in their relations affecting commerce, to provide orderly and peaceful procedures for preventing the interference by either with the legitimate rights of the other, to protect the rights of individual employees in their relations with labour organisations whose activities affect commerce, to define and proscribe practices on the part of labour and management which affect commerce and are inimical to the general welfare, and to protect the rights of the public in connection with labour disputes affecting commerce.”
In furtherance of that purpose, the NLRA provides that employees shall have the right to self-organisation, to form, join or assist labour organisations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. In addition, it protects the right of employees to refrain from any or all such activities.
Employees’ Representation in Management
Once certified by the NLRB as the exclusive bargaining representative of the employees in the bargaining unit, the employer must begin bargaining for a collective bargaining agreement in good faith with the union as the employee’s exclusive bargaining agent.
Other Types of Employee Representative Bodies
Outside of the representation by a union, or as otherwise provided by a negotiated collective bargaining agreement, employees do not have an independent right to management or board representation. U.S. law does not recognise works councils or other forms of employee representation.