To increase membership, labor unions are turning from the NLRB's secret-ballot election process to using authorization checks. Recognizing and responding to this new approach requires employers to act in nontraditional ways.
Organized labor is using creative new tactics to reverse the decline of unionized workers. Unions are encouraging employers to remain neutral during union-organizing campaigns and to accept union representation without elections. Moreover, unions are backing these efforts less by traditional strikes and boycotts and more by political and social pressure.
The percentage of unionized workers has declined from a high of 35.5 percent in 1945 to 13.9 percent today. Since the 1930s, organized labor usually sought to increase representation by organizing a workplace, obtaining authorization signatures from a majority of employees and then filing with the National Labor Relations Board to conduct a secret ballot election. In the past few years, however, unions have won fewer than 50 percent of such representational elections held under the authority of the National Labor Relations Act. More than ever, unions realize that to survive, they must take bold new steps.
Instead of submitting to the traditional secret-ballot election process conducted by the NLRB, unions increasingly request "card-check recognition," which occurs when an employer agrees to recognize a union as an employee group's collective bargaining representative, based on authorization cards signed by a majority of the employees in the bargaining unit to be represented.
In practice, legal counsel usually advise employers not to review the cards themselves. Instead, a neutral third party agreed upon by the parties to the card-check recognition agreement usually conducts the review to validate the cards and signatures.
Unions are also seeking to avoid the acrimony of the organizing campaign by using neutrality agreements. As defined by many unions, an employer entering into a neutrality agreement agrees not to campaign or to express any opinion about union representation while the union gathers authorization cards leading to card-check recognition. Such neutrality agreements permit the union to gain access to employee information and to the employer's premises to conduct the organizing drive.
To understand why some unions are eager to scrap the NLRB election process in favor of card-check recognition, it helps to understand the traditional process, which has remained virtually unchanged since the passage of the National Labor Relations Act in 1935.
The NLRB election process involves many procedural checks and balances, all designed to ensure a fair election conducted under "laboratory" conditions. The NLRB process contemplates a campaign period during which both the union and the employer seek to persuade employees to vote a certain way in the election. The NLRB closely regulates the campaign, but it can often polarize a workplace and generate heated discussions and confrontations. The process, from campaign to the election aftermath, can be lengthy and costly for all parties involved.
The traditional election process officially begins when a union, or a group of employees, files a petition with the NLRB seeking an election. The petition must be supported by authorization signatures of at least 30 percent of the workers in the proposed bargaining unit. Typically, this show of support is made by submitting authorization cards. Authorization cards usually take the form of either individual cards signed by employees or a petition form signed by many employees. The document must indicate either that the employee authorizes the union to represent the unit in collective bargaining or that the employee authorizes the union to seek an election to determine representation. Thus, the campaign process unofficially begins even before the petition is filed, when the organizing starts and the authorization cards are collected.
Unions are free to use almost any means to obtain authorization cards. The cards may be signed at work, at home, at a bar or anywhere else, and may be -- and usually are -- signed in the presence of union organizers or supporters. Employers point to the potential for union abuse in connection with gathering of authorization cards, including possible instances of threats to workers or their families; misrepresentations of the cards' meaning; signatures on cards by workers who cannot read or even speak the language in which the card is printed; forged signatures, promises of benefits in exchange for signatures; threats of job loss or other economic harm; and extreme forms of peer pressure.
In the traditional NLRB process, the collection and submission of authorization cards is but a preliminary stage. When submitted to the NLRB, along with the petition for an election, they trigger an NLRB investigation to determine whether a valid question of representation exists. Often the investigation leads to an NLRB hearing on various issues, such as the appropriate bargaining unit. Depending on the results of its investigation, the NLRB may order an election. Among other things, an election raises the specter of challenges to individual voters or objections to virtually any perceived irregularities in the very closely monitored process. Objections can lead to further NLRB investigations, hearings and the possibility of appeals.
The National Labor Relations Act permits an employer to recognize a union without a formal NLRB election if the employer has an objective, good-faith belief that a majority of its employees have authorized a union to represent them. Accordingly, card-check recognition is a viable alternative to the traditional NLRB process -- but only if a union can persuade an employer to agree to it. The problem for unions is that card-check recognition usually is far more appealing to them than to employers, who are reluctant to scrap the traditional NLRB election for a procedure based on little more than the preliminary stage of that traditional process.
For unions, the appeal of card-check recognition is great. The opportunities to persuade employees are greater than during a traditional election because there usually is not a formal campaign and the employer generally is not presenting its arguments. In addition, the card-check recognition process is relatively quick, simple and inexpensive, with few procedural checks and balances. With card-check recognition, even disputes are addressed through alternative means such as mediation or arbitration. This is important to unions because they claim that employers are able to obstruct the NLRB process by legal maneuvers and appeals, dragging out the election results sometimes for several years.
Simply put, card-check recognition often represents organized labor's best chance of unionizing more workers. Unions almost always have authorization cards from over 50 percent of the employees when they file their petitions with the NLRB for an election. Yet the fact that unions have lost over half of the elections in the past years demonstrates that even employees who have signed authorization cards, when confronted with a concerted employer campaign and given a secret ballot, will sometimes vote against unionization. Consequently, when employers enter into agreements for card-check recognition, they usually do so only in capitulation to organized labor's economic, political or other pressure.
Unions may attempt to persuade employers to enter into neutrality agreements. Neutrality agreements make card-check recognition even more appealing to unions by rendering employers essentially voiceless throughout the drive for authorization cards. Specifically, employers who sign neutrality agreements typically agree not to express their views about unionization and not to respond to union communications to employees.
Furthermore, under many union neutrality agreements, the union is allowed access to the employer's premises to organize employees. The employer provides the union with the names and home addresses of employees to permit the union to visit employees at home. In short, neutrality agreements leave unions free to organize employees without employer interference.
Sometimes unions wield enough power to lobby directly and successfully for laws that make it especially difficult for employers to say no to demands for card-check recognition or neutrality. In San Francisco, for example, union efforts have resulted in the passage of an ordinance, San Francisco Administrative Code Section 23.31 et seq., requiring as a condition of the city's involvement in certain commercial projects, that many employers engaged in the hotel or restaurant business agree to card-check recognition of any labor organization that requests it. This ordinance applies to subcontractors as well as to direct contractors. In return, during organizational drives, unions must refrain from taking economic action such as striking, picketing or boycotting.
Even in areas where there is not enough political resolve to enact ordinances, some unions successfully persuade cities and counties to require card-check recognition in specific instances on contractual provisions with city or county business partners. Occasionally, unions achieve such results by promising union support on some other issue important to the politicians in power. Alternatively, sometimes government concern about the viability of a given project in the face of union opposition is enough to carry the day.
In other situations, when an employer must gain the approval of a government agency, for permits or other regulatory reasons, unions appear at the hearings to object to the employer requests, insisting that the employer is not a good corporate citizen unless it agrees to card-check recognition and neutrality. Focusing such an argument on a small group of local elected officials (or members appointed by elected officials) who can be responsive to the demands of local voting blocs controlled by labor, unions often achieve some measure of success.
Like political pressure, economic pressure can come in many different forms. While striking, picketing and boycotting are some of the traditional union approaches, some unions may add new twists to these familiar themes. Personalized pressure on company executives and boards of directors is one means of persuading employers to agree to card-check recognition. In some instances, executives have been subjected to picketing at their homes or unrelated businesses and e-mail and other correspondence inundating them with the union message. In a related tactic, unions will sometimes appear at annual shareholder meetings to present their requests.