Recent Developments at the National Labor Relations Board - Neutrality Agreements and Card Checks
By David S Farkas As published in the Cleveland Bar Association Magazine and Website
So what’s happening at the National Labor Relations Board these days? It’s a good question and unfortunately the answer is simple – not much.
The NLRB has dealt with vacancies and absences in the past, but seldom have we seen an extended period of relative inactivity as we have experienced over the past twelve months. As of March 1, 2005, the Board was missing two of its five members. That itself would not present a problem, as only a three-member panel is necessary for the Board to convene. However, long standing Board tradition and precedent requires a full Board before major policies are changed or announced. President Bush appointed Republican Ronald Meisburg in late January of this year to fill one of the two current vacancies. However, Senate Democrats are expected to push for the re-nomination of Democrat Dennis Walsh in return for their agreement to confirm Meisburg. If, as expected, both men are confirmed by the Senate, the Board will once again be at full strength. For the moment though, with only three members (and one of them, Chairman Battista, frequently ill) the Board has been effectively hamstringed from responding to the ever-changing world of labor-management relations.
And change is indeed happening. 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 1950’s. 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 towards unionizing more companies, often referred to as “organizing campaigns”. The National Labor Relations Act guarantees employees the freedom to choose whether or not they wish to be represented by a union for purposes of collective bargaining. Thus, if a union wishes to represent employees, the first step in the campaign is the showing of interest. This is typically done by obtaining authorization cards, usually nothing more than a pre-printed 3’4 sized index card, from at least 30% of the employees in the bargaining unit sought by the Union. The Union may then file a petition for a secret ballot election with the Board.
The problem for the unions is that that keep losing such elections. The Bureau of National Affairs, the Washington based organization that monitors NLRB activity around the country, reported the sentiments of an official of the AFL/CIO towards Board conducted elections: “A death trap for workers trying to organize a union.” It is difficult to see why this should be, as the Board strictly prohibits threats, coercion, or other unfair labor practices on the part of any party to the election. Indeed, the Board insists on conducting elections under what it calls “laboratory conditions”, so that the employee can freely exercise his franchise in an atmosphere free of interference. While that phrase is growing a bit hackneyed, the Board continues to adhere to it, on its official website and in various publications.
Nevertheless, the unions have not been happy with the results of these 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, union 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?
Although the absenteeism described above has prevented it from making any definitive rulings on the subject, the Board has signaled its concern for these types of neutrality and card check agreements. In the most recent case of Shaw’s Supermarkets, (343 NLRB No. 105) 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 cited to an important case that grew out of our own Cleveland region of the National Labor Relations Board, called Dana Corporation and Metaldyne, 341 NLRB No. 150 (2004). In that case, the Board noted 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 Shaw’s Supermarkets was released, Member Meisburg told me these cases would be a priority upon the full reconstitution of the Board.
Just as an acceptance of certiorari does not guarantee the lower decision will be reversed, so too, the Board’s review of Shaw’s Supermarkets and Dana Corporation does not necessarily 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.
David S. Farkas, an associate at Ross, Brittain & Schonberg Co. LPA, limits his practice to the representation of management in all areas of labor law. His biography, along with a full description of his firm’s practice, can be seen at www.rbslaw.com.
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