This is a recorded session from the 2021 AAM Virtual Annual Meeting and MuseumExpo.

Learn the basics of the collective bargaining process, the advantages and disadvantages of unionization, and strategies to manage the various possible outcomes of the voting process.

Presenter:

Andrew I. Bart, Esq., Attorney

Transcript

Andrew Bart: Good afternoon, everybody. My name is Andrew Bart, and I will be speaking this afternoon about The Unionization of Museums: What management and staff need to know.

Little bit about me. I’m a lawyer in New York. I specialize in labor and employment law, I also do real estate and commercial litigation. I am an AAM member, so I’m happy to be here to talk to all of you. I’m part of the AAM family, and my mother was an AAM member. She was actually the director of a museum on Long Island for more than 20 years. I’ve given employment law seminars, I’ve conducted them, at the AAM annual meetings both in Washington, D.C. and in St. Louis.

So, welcome. Please let me know where you are tuning in from,, and if you’re associated with an institution or another company, please let me know. And please also let me know why you’re tuning in. So, let’s get going, shall we?

Well, as many of you know, there’s been a wave of unionization in the museum field. Institutions themselves have tremendous financial pressure in terms of declining contributions, the maintenance of aging plants, the need to attract and compete with other institutions for staff, and certainly COVID-19. They’re emerging from the pandemic, as are we all. Staff on the other hand not only is contending with getting out of COVID-19, but they’re concerned about job security, they’re concerned about pay, they’re concerned about promotion opportunities.

So, there are a lot of competing interests at issue. And there’s been a real, the past couple years I would say, I would say the past three years or so, there’s been a real wave going on. And a couple of recent examples I’ve seen. About a week ago, the Brooklyn Museum here in New York, Local 2110 of the UAW filed a petition asking for a secret ballot election to represent about 130 employees. And the employees, the full-time employees in that unit are the curators, the conservators, the editors, and fundraisers. There are also part-time people that may be in that unit, which are the educators and gift shop employees.

Now, the president of the Local 2110 of the UAW already has said that there may be a disagreement with management over with the part-time employees are part-time employees, and therefore were subject to be part of the bargaining unit, something I’ll talk about later, or whether they’re independent contractors.

Again, here in New York, very recently last month, The Whitney Museum, the union filed a petition for a secret ballot election. Same union, Local UAW, Local 2110, The Hispanic Society of America last month, and that was, there’s a union movement there too, in alleged response to the termination of a pension plan. MASS MoCA, up in the Berkshires, voted to unionize of April 2021, again, to join the UAW. And finally, getting to the end, The New Children’s Museum of San Diego entered into a collective bargaining agreement with management and the union for visitor facing staff.

My understanding was that collective bargaining agreement provided for a 17% wage increase, for a new starting wage of about 15.75 an hour, overtime for loading in and loading out of exhibits, and for the participation of staff in a board of directors, I guess, annual conference. If any of you were from those institutions or have been part of those union drives on either side, please let me know in the chat box.

Interestingly, the Bureau of Labor Statistics this past January put out a snapshot of the union movement as of 2020, and only 10.8% of wage and salary workers are union members, only 10.8%, and Hawaii at 22.3% and New York at 22% have the highest membership. Not surprisingly, South Carolina at two point 0.9% and North Carolina at 3.1% had the lowest membership. I also find it interesting, and not surprising to any of us, that half of all union members in the United States live in seven states; New York, New Jersey, Pennsylvania, California, Michigan, Ohio, and Illinois.

Let’s talk about the framework; how it works, and the path to union representation. So, the framework. The National Labor Relations Act, that is the federal foundational statute, and it guarantees private sector workers the right to organize and to engage in collective bargaining. And Congress enacted the act, The NLRA, in 1935 to protect the rights of employees and employers, to encourage collective bargaining, and to curtail certain private sector labor and management practices which Congress found harmed the general welfare of workers.

The act sets forth crucial definitions you should all be aware of; who’s an employee, who’s an employer, what’s an unfair labor practice, who’s a supervisor? We’ll talk about it as we go along. Again, this is a short session, so I will not be able to talk about everything. Reach out to me. You have my Gmail, or through AAM.

Now, an employee under the act has the right to self-organization, to form, join, or a system labor organization, to bargain collectively through representatives of their own choosing, and to engage in consorted activities for the purpose of collective bargaining.

So, we should all be aware of something called the PRO Act, P-R-O. That’s the Protecting Right to Organize Act, and that was passed by the House in this past April, and it is awaiting approval in the Senate. Given what’s going on in the Senate, it is highly unlikely to go anywhere right now. And this act, if it was passed, would really shake and change the foundational definitions under the act among other things. Let’s stay tuned, let’s be aware of it.

So, the NLRB, that’s the federal agency we’re talking about. The NLRB is the federal agency under the act, and it really, it serves two purposes, basic purposes; to investigate and remedy unfair labor practices, again, something I’ll talk about in a bit, and to conduct secret ballot elections, and conduct and supervise secret ballot elections. Now, many of you may know, an election can be to certify a union as a bargaining rep, and it can also be to de-certify a union as a bargaining rep. So, a union can get in, a union can get out.

There are 26 regional offices of the labor board. Whether you’re management or staff, most likely the people you’re going to deal with are in those regions, and they range in size. So here in New York, there’s region two, and that includes Brooklyn and the counties of Nassau and Suffolk, both of which are on Long Island. Then you have Region 10 based in Atlanta, which includes eight states. So, huge range there. There is a five member board, a labor board in Washington, and that acts for our purposes here as an appellate court. Those board members are appointed by the president.

Important for all of you, the jurisdiction of the labor board and the act. When we’re dealing with cultural institutions, like museums and other things, you must have an annual gross volume of at least $1 million. So, if you’re out there and listening to me or watching me, and you are from the Art Institute of Chicago, or from the metropolitan Museum of Art; odds are whatever you do is covered by the act and the board has jurisdiction. If you are watching me or listening to me, and you are affiliated with a small historical society in North Dakota, it is highly likely that the board does not have jurisdiction. So in that case, I would suggest you turn to your local laws, your local ordinances, your local statutes as to labor law, as to organizing and so forth.

There are two paths for a union to become a bargaining representative of a bargaining unit; either voluntary recognition of the union by the employer, or an NLRB-conducted secret ballot election. Only two ways. Now, as I said, employees can also choose to de-certify a union, whether it’s voluntary recognition by an employer or by a secret ballot election, and it’s governed by the same rules. So, you should be aware of that. Again, if you want to reach out to me in the chat or the Q&A, and let me know if you’ve been involved either in election or a voluntary recognition of a union or you’re facing those issues.

So, there is my friend Sally Field and Norma Rae, union yes. What is a bargaining unit? Well, a bargaining unit is basically, it’s the building block of unionization, and it is two or more employees who share a community of interest and they be grouped together for collective bargaining purposes. Only employees can be part of a bargaining unit. Well, who’s an employee? Well, an employee is not a supervisor or an independent contractor.

Next question, who’s a supervisor? Well, a supervisor is any individual having the authority and the interest of the employer to hire, transfer, suspend, layoff, recall, promote discharge, discipline, or discipline other employees, or to direct them or to adjust their grievances using independent judgment. So, it can’t be just routine or following a standard operating procedure book you may have in front of you.

Good example, Institution X has a gift shop manager. She manages three employees. She can hire them, she can fire them, she can discipline them. And again, using independent judgment, she’s not just opening up a book. So for sake of argument; she’s a supervisor, she can’t be in a bargaining unit, she cannot be represented by the union.

Independent contractor. Well, it’s what we would call a common law test, plus the entrepreneurial potential for gain or loss. You have to weigh these factors. Somebody who’s an independent contractor supplies their own tools in place of work. Really, they work on their own time basically under their own supervision.

Best example I can think of is… Oh, and management really doesn’t have control over the details of their work. The best and easiest example I can think of is Institution X hires somebody to maintain and design their website. So, the art institute says, “Okay, we’re hiring Joe to design the website and then maintain it thereafter.” Well, Joe’s given an assignment, he works at home on his own computer or in his own office. The art institute’s not supervising him, it’s paying him a flat fee every month to do the work. That’s an independent contractor, in my mind. And as we talked about, there may be a fight brewing at The Brooklyn Museum about that as to who’s a part-time employee who can be part of the bargaining unit, and who’s an independent contractor and cannot be. So, we all should be stay tuned for that.

When we’re talking about a unit, it’s an appropriate unit, not the most appropriate unit, so be aware of that. To me, let’s say an inappropriate unit would be a proposed unit. A union comes in and says, “Oh, we want a proposed unit of curators in an art department, and the staff at the museum and cafe.” Well, there’s no common supervision. What’s the overlap? There’s no overlap in work hours or job duties. They have no common interest. But what is interesting is that professionals and non-professionals can be in the same unit, but the professionals must approve of the combined unit.

So, who’s a professional? Probably like most of you out there, or, I shouldn’t say that. Like myself, it’s somebody who engages in predominantly intellectual work that is varied in character. It is not rote work. It involves a consistent exercise of independent judgment. It usually requires knowledge in an advanced field of study, often with a advanced degree of some kind. That is a professional. So, a professional would be assistant curator in an art department. Non-professional; security staff, the chef in your museum cafe.

So like I said, the professionals and non-professionals can be part of the same unit. If you, management out there, if you are approached with this combined unit and they say, “We want you to voluntarily recognize us,” you’re under no obligation to do so, and you can say, “Look, no, we want a secret ballot election.” Nothing wrong with that. That’s perfectly in your right.

I spoke about MASS MoCA before. MASS MoCA, in April, the professionals voted to be part of a unit with the non-professionals. So, how it worked was, Unit A was the professionals, the curators, the educators, the graphic designers. Unit B was the non-professionals, so the groundskeepers, the electricians, and so forth.

So, Unit A voted to be part of a unit with the non-professionals and to be repped by the union, UAW, and Unit B the groundskeepers and so forth, just voted to be repped by the union. That’s how it worked. Again, if any of you out there are part of a combined unit like that, please let me know. I think it’s interesting. A curator and a groundskeeper in one unit is interesting.

So, voluntary recognition of a union, by an employer. Again, one of the two ways that you can go and how that works. So, the union presents evidence that a majority of the employees in the union want the union to be the bargaining rep, and they do that by cards, signed cards. And what happens is a mutually acceptable third party counts all the cards and says, “The majority wants a union.” If that is the case, they get presented to the employer. But management, employers are under no obligation to voluntarily recognize the union. They can insist on the secret ballot election.

If there is voluntary recognition of the union, it triggers a bunch of things. First of all, it triggers notice requirements, and the notice requirements are as follows. You, as management, have to notify the NLRB region that you’re in that there’s been voluntary recognition. You also have to post a notice to employees about the voluntary recognition, and that can be in this day and age by email. The affected employees in that unit then have 45 days where they can file a petition for a secret ballot election. So, there’s voluntary recognition. The employees say, “Hey, we don’t want this union,” or, “We want to be able to vote.” Perfectly fine, they have 45 days. But in order to get any kind of secret ballot election, you have to show 30% of the employees in that unit want a secret ballot election.

The other thing this 45 days is, not only can the employees file for an election, but a rival union can swoop in and say, “Hey, no, we represent these employees,” and file for an election. Be aware of the contract-bar doctrine. So, it’s jumping ahead, but if there is a collective bargaining agreement that had been reached before with the union and the employer, you cannot challenge the union status as a representative until the collective bargaining agreement expires, or three years pass, whichever is earlier. There’s also a window period where petitions can be filed when the collective bargaining agreement is still in effect. Reach out to me about that.

So here we have Ballot Box Bunny, Bugs and Yosemite. Secret ballot elections. It’s very easy in this day and age to file a petition with the labor board. It’s e-filing. You go on the website, e-file it, and you have to show support of the petition with at least 30% of the employees in the bargaining unit. So, I’ll walk you through the process briefly, very briefly, assuming there are no bumps we’re talking about here.

There are three types of petition that are filed with the NLRB. It is RC, RD, and RM. RC, RD, RM. RC: RC is a representation petition. So, that’s a petition filed by a union or the employees seeking an election to determine whether the employees want to be represented by labor organization.

RD: RD is a de-certification petition. So, that’s a petition filed by an employee, employees, or union saying, “Hey, the current union doesn’t have the support of the employees in the unit.”

RM: RM is an employer filing the petition, saying “We believe the union ha no longer has the support of the majority of employees within that unit,” and the employer can do that also when it’s faced with one or more unions seeking to represent the employees, or they objectively believe that the current union has lost its status.

So, the pre-petition steps. When you look at the petition, it’s very simple, straightforward. It says, “Well, what type of business? What’s the description of the unit? How many people are in the unit? Do have at least 30% to support of the people in the unit to do whatever you want to do?” The board will then, once you file that, the board’s going to investigate, your region’s going to investigate. They’re going to say, “Hey, do we have jurisdiction?” The million dollar volume I spoke about.

“Is it the right region? Hey, if you are in Seattle, you’re not filing the petition in Brooklyn. Makes no sense. Do you have 30% support? Is there any bar to the election?” Well, I spoke about the contract-bar earlier, and there’s also the one year certification hold, which basically gives everybody a timeout. So the timeout is, you can’t hold an election within one year of a union certification as a rep for a particular bargaining unit, or within one year of an election. Gives everybody a breather. So, I think that is good.

If it’s okay, you’ll get assigned a number. Regional board agent will process it. Skipping ahead. Ultimately, they want you to reach a consent election agreement; time, place, and date of the election, and who’s going to be in the bargaining unit that’s going to vote. Probably fight most about who who’s going to be in the bargaining unit. If there’s no agreement reached, you’re going to have a hearing and there is a process. Assuming you reached agreement, you’ll have an election.

Most elections since COVID-19 have been by mail. In fact, since March of 2020, 90% of the elections have been conducted by mail. So, I’ll refer to MASS MoCA again, April 2021. Ballots were collected over three weeks by mail, and both sides watch the counting via teleconference. Excuse me.

If you do it in person, there’ll be a board agent there, there’ll be a ballot box, there’ll be voting. Either side can challenge the eligibility of a person to vote, that vote will be set aside. The ballot, if challenge, will be sealed and stored. Seven days after the tally of the vote, either side can follow objections to the election.

Assuming there are no problems, no objections, no challenge ballot; what the board will do, it’ll certify and it’ll say Union X is now the bargaining rep for this bargaining unit. Again, love to hear if any of you have been involved in elections on either side; management or staff.

Objections. What valid objections? Well, valid objection is something, you say, “Well, there’s conduct that tended to interfere with free choice,” not whether it actually did so. So, I’ll give you extreme examples. Threat or loss of job by either the union or the employer, the use or threat of physical violence, firing employees to encourage or discourage union action.

Quick example, Amazon. We all saw that Amazon in May was not able to prevail. However, there’s currently a hearing going on, the union filed objections because they lost the election. And the standing hearing now is there was a mailbox where the employees were voting, and the union claims that the Amazon security guards had keys to the mailbox. And what that did, they claim they that created the perception that Amazon was running the election, not the labor board, and created the impression that the workers were being surveilled. We’ll see what happens. Let’s say tuned, everybody.

So, an unfair labor practice. Please do not go to jail. Do not pass go. It’s an action by an employer or union that violates section eight of the NLRA, the labor act. What’s the effect on the pending election? Well, as it stands now, it’ll vote and they’ll either impound or count the vote, but there’s no certification until the unfair labor practice is resolved. But the unfair labor practice has to have some kind of alleged impact on the election. It has to be there’s, if we’re talking about a vote, some kind of connection hereto.

Unfair practices of an employer. So, a couple categories. The interference or restrain in the exercise of employer rights. That would be, again, extreme examples; threatening employees with a loss of jobs or benefits, questioning employees about union activities in a coercive manner, employer domination or support of a union, you take an active part in organizing a union, or you give money to a union. You discriminate against an employee for involvement in the process. So if somebody gives an affidavit or testifies at a hearing, you fire them, you demote them, whatever you do. You refuse to bargain in good faith with a union representative, which I’ll talk about.

You also cannot, and it is not there, discriminate against an employee in a hiring tenure or term of condition of employment in order to encourage or discourage membership. So, if someone’s handing out a flyer, you can’t fire them for that. However, an employer can discharge, discipline, transfer, or layoff somebody for economic reasons, or for other reasons, provided they’re not prefectural. So, that employee that was handing out pamphlets, if they’re violating company policy by drinking on the job or something, that’s a valid reason to do something with your hours.

Union unfair labor practices. Well, conduct that restraints a coerced employees, violence on a picket line, mass picketing to prevent non-strikers from entering employment, conduct that restraints or coerces employees, employers refusing to meet with the employer attorney, refusing to bargain in good faith, or engaging in prohibited strikes for boycotts. That alone I could talk about for hours, so reach out to me if you have questions about that, please.

By the way, unfair labor practice. If you file it, there’s a procedure at the board, which we don’t have time to talk about. So, let’s say after all that, you get to the collective bargaining. What does that mean? Well, you got to meet at reasonable times and bargain in good faith. Good faith, it depends on the totality of the circumstances. You don’t have to reach an agreement or make concessions, but you have to show an open mind and a desire to reach agreements.

An employer can declare impasse. Well, what’s that? Well, the employer says, “Look, no agreement can be reached,” and it will implement the last offer to the union. The union at that point probably runs to the labor board, might file an unfair labor practice, and the board will determine whether or not there’s been an impasse, and will probably, if there’s not an impasse, it’ll order the parties back to the bargaining table. So, it’s a give and take. Again, tell me whether you’ve been involved in this. It gets very interesting, and is really not cut and dry.

So, concluding. What you want is a good, productive relationship between management and employees here, right? We all want to reach a happy medium for the common good, but as an attorney, I know and I’m telling you, you need to know your rights and duties under the labor board. Many of the things I spoke about are perfectly acceptable under the labor act, but you need to know where you’re coming from.

And I would also suggest, and I’m sure you’re all doing this anyway, whether you’re management or staff, to seek the advice of legal counsel. Whether you’re seeking to organize, or whether your management dealing with a set of employees that seek to organize, or dealing with issues under a collective bargaining agreement; you need the advice of legal counsel. You cannot do this on your own, regardless of the size of your institution.

So, I think that is it for me today. But my name is Andrew Bart. It’s been a wonderful pleasure to talk to you all, and please reach out to me, and I look forward to possibly seeing some of you in Boston next year. So, take care and have a great afternoon. Bye-bye.