Neutrality Agreements and Card Checks
By David S Farkas It is no secret that union membership has been in a steady decline for decades. Less than 10% of private industry employees are unionized today, an all-time low. Overall, Unions represent only 12.9% of workers in both the public and private sectors, down from 36% in the 1950s. An executive of the largest union, the Service Employees International Union (SEIU), was recently quoted in the Washington Post as saying, “ We have a labor movement dangerously close to being too small to matter.”
Faced with (for them) such distressing statistics, the unions have responded with greater efforts toward unionizing more companies, often referred to as “organizing campaigns.” The problem for the unions is that they keep losing elections. In hopes of turning things around, they have increasingly been turning to “neutrality agreements” and “card check recognitions,” often at one and the same time. Neutrality agreements are commonly entered into between a union and a company with whom the union already has a pre-existing relationship. The agreement essentially restricts the employer from campaigning against the union’s organizing campaign, by requiring the signing company to refrain from voicing opposition to unionization efforts. In that regard, the term “neutrality agreement” is somewhat of a misnomer, because the absence of company statements regarding the union can easily be construed as support for a union. Moreover, the “neutrality” is entirely one-sided – the signing employer can only watch from the sidelines while the union itself vigorously sells itself to the employees. Despite these problems, some employers have gone along with such neutrality agreements in the hopes of avoiding labor strife, or sometimes even to obtain union support on initiatives entirely unrelated to the company being organized.
Somewhat more problematic are card check agreements, which, as mentioned, are generally made part and parcel of neutrality agreements. In this scenario, the company pledges in advance to recognize the union voluntarily if the union obtains authorization cards from a majority of employees in the requested bargaining unit. The procedure bypasses the NLRB’s secret ballot election, in that it allows the employer to voluntarily recognize the union without an election. The exact number of authorization cards needed for recognition, under these agreements, are, of course, negotiable – in one agreement signed with the Communication Workers of America, Verizon mandated that at least 55% of the employees sign authorization cards before it would recognize the union.
The potential problems with such agreements are immediately apparent, with the most obvious being the possibility of intimidation. For example, consider that while the law requires a union to get at least 30% of its employees’ authorization cards before it may file for an election, unions typically do not file petitions until they have at least 50% or more. The reason is that unions know very well that a signed authorization card cannot be equated with a vote by secret ballot. Many employees are simply too intimidated to refuse an in-person request to sign a card. Larry Fox, an official of the SEIU, has brushed aside such concerns, saying “workers know how to say no if they don’t want a union.” But others are not quite as sanguine. Imagine how you would respond if you were approached at home by three burly members of the United Steel Workers, and were asked, very politely, to sign a card authorizing their union to be your representative. Would you say no?
The Board has signaled its concern for these types of neutrality and card check agreements. In one case decided in the waning weeks of 2004, the Board granted review to an election featuring a neutrality card check agreement. It stated, “We have some policy concerns as to whether an employer can waive the employees’ fundamental right to vote in a Board election.” The Board also noted, in another case, that in a Board conducted election “employees cast a secret vote under laboratory conditions and under the supervision of a Board agent. By contrast a card signing guarantees none of these protections.” At a conference in Washington D.C. at around the time the 2004 decision was released, a Board Member told me these cases would be a priority upon the full reconstitution of the Board.
There is no indication that the Board’s mere review will mean an end to neutrality and card check agreements. However, it serves to reaffirm the Board’s commitment that employees make a free and clear decision in their choice to be represented or not. In a time of shifting labor conditions, it’s nice to see this commitment remains a fixed point.
Labor questions or concerns? Alan Ross and David Farkas are standing by!
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