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Despite survey results that show 40% of workers would vote to be represented by a union if an election were held at their worksite, labor union membership in the United States has declined dramatically over the last five decades. Stewart Acuff, “At the Summit: AFL-CIO Organizers Map Organizing Directions,” 4 Social Policy 33 (June 22, 2003). Successfully challenged by employers and supplanted by decades of federal and state legislation in the areas of occupational health and safety, civil rights, workers’ compensation, wage and hour protection and plant closings, unions have struggled to be seen as relevant and needed. As a result, unions are using neutrality and card check recognition agreements to facilitate their selection as representatives for new groups of employees while avoiding contentious election campaigns against employers. The percentage of eligible workers in both the public and private sectors in the United States represented by collective bargaining organizations has steadily declined over the last half century, from 36% in the 1950s to 12.9% in 2003. 13 Daily Labor Report AA-1 (Jan. 22, 2004). The decline has become so acute that Service Employees International Union Executive Vice President Gerry Hudson recently warned fellow labor leaders: “We have a labor movement dangerously close to being too small to matter.” Harold Meyerson, “For Labor, Tough Choices,” Wash. Post, Dec. 15, 2004 at A33. Seeking new members To survive, organized labor seeks to increase membership, not just stop the decline. Under the National Labor Relations Act (NLRA), in order to represent a “unit” of employees, a union must first demonstrate a showing of “interest” by 30% of the employees in the unit. Typically, the union does this by convincing the employees to sign union pledge cards. 29 U.S.C. 151 et seq. If the union achieves a 30% showing of interest, it may file a petition for recognition with the National Labor Relations Board (NLRB). If the petition is accepted, and there are no legal challenges made by the employer (to the composition of the unit, for example), the NLRB supervises a secret ballot election. If the union wins, it is certified as the employees’ collective bargaining representative. The journey from grassroots organizing drive to certification as bargaining agent can be arduous, risky and costly. Indeed, the process can take months-or years-if the employer chooses to exhaust its numerous legal remedies and is prepared to pay for a drawn-out fight. Within the framework of NLRB rules prohibiting threats, coercion and unfair inducements during the election, an employer is free to wage an aggressive campaign to convince unit employees to reject the union. The complexity and lengthiness of the NLRB petition and election process tends to favor the employer as the party with the most resources and the most to gain from delay. Between 1983 and 1998, employers won approximately 55% of elections, a number that does not include the instances when unions, facing likely defeat, withdrew their petitions prior to the election. Arch Stokes, et al, “Neutrality Agreements: How Unions Organize New Hotels Without an Employee Ballot,” 42 Cornell Hotel and Restaurant Admin. Q. 5, 87 (October/November 2001). Voluntary recognition An employer may eschew a legal battle and a bitter campaign and simply recognize the union, provided that there is a showing that a majority of the unit employees (not just voters) wants the union as its representative. However, this process is purely voluntary. An employer can insist on a secret-ballot election even in the face of majority support for the union in the hopes that it can convince enough employees to change their minds during a campaign. In contrast, under Canadian law, a union is certified automatically as bargaining representative if it obtains a showing of interest from a majority of the targeted employees. Joseph B. Rose and Gary N. Chaison, “Unionism in Canada and the United States in the 21st Century,” 1 Industrial Relations 56 (Jan. 1, 2001). Mindful of a long history of NLRB rulings encouraging voluntary recognition of unions (see NLRB v. Lyon & Ryan Ford Inc., 647 F.2d 745 (7th Cir. 1981), cert. denied, 454 U.S. 894 (1981)), labor organizations are leveraging their existing bargaining relationships with employers to get their “foot in the door” at the employer’s new or expanded operations. The contractual devices employed by the unions with increasing frequency are neutrality agreements and card check elections. David Moberg, “Labor Fights for Rights,” 277 The Nation 7 (Sept. 15, 2003). This type of “foot in the door” strategy can have significant implications, given that many companies begin or fund new businesses or grow by acquisition and merger. A neutrality agreement restricts the employer from campaigning against a union drive to organize a new unit of employees. Generally, such agreements provide that the employer will not hinder or voice opposition to the union’s campaign, disparage the union or its campaign message or hire others who will. See Stokes, supra, at 89. The employer may further agree to provide the union with a list of employee names and addresses and access to specific work areas (such as a cafeteria or parking lot) at specific times. Id. See Hotel Employees, Restaurant Employees Union, Local 2 v. Marriott Corp., 961 F.2d 1464 (9th Cir. 1992) (finding that the parties had a valid contractual arrangement, the court enforced a neutrality clause that included recognition based on a card-check majority in exchange for the union dropping its opposition to the construction of a hotel); Hotel & Restaurant Employees Union Local 217 v. J.P. Morgan Hotel, 996 F.2d 561 (2d Cir. 1993); Seattle Mariners, 3335 NLRB 563 (2001). Card check recognition Employers are free to recognize a union voluntarily on the basis that it has a showing of majority interest by employees-either through signed pledge cards or some other good-faith belief by the employer. Although card check recognition can exist independently, neutrality agreements often contain a card check recognition clause in which an employer waives its right to a secret-ballot election and pledges in advance of any organizing drive to recognize the union voluntarily when the union has obtained signed pledge cards from a majority of the employees in the targeted unit. Andy Meisler, “Who Will Fold First,” Workforce Management (Jan. 1, 2004). Such agreements typically provide for arbitration for resolving disputes over unit composition. Unions strongly favor neutrality and card check agreements because they allow unions to persuade employees to join without opposition from employers. One group of researchers determined that such agreements reduced anti-union tactics by management (both lawful and unlawful) and increased organizing campaign success rates. When a mere neutrality agreement is in place, the union success rate was 45%, the same as if there had been an NLRB-supervised election. When there was a card check recognition agreement alone, the rate climbed to 62.5%. Combine a neutrality provision with a card check agreement, and the success rate climbed to 78.2%. Adrienne E. Eaton and Jill Kriesky, “Union Organizing Under Neutrality & Card Check Agreements,” 55 N.Y. St. Sch. of Indus. and Lab. Rel., Indus. and Lab. Rel. Rev. 1 (October 2001). By increasing the use of card check recognition agreements, American unions hope that the labor landscape will begin to look more like that of Canada, where card check recognition is standard and the percentage of unionized employees is between 32% and 35%. See Rose & Chaison, supra, at 57. (Unlike the United States, where there has been a steady erosion of union membership, the number of represented employees in Canada in the 1990s increased by approximately 600,000.) Indeed, one union leader, Nancy Schiffer, associate general counsel at the AFL-CIO, has touted card check recognition as a key to its future success, stating that legislation mandating this method will “enable workers to form unions without going through the meat-grinder of an NLRB election campaign . . . once a majority of workers sign authorizations demonstrating their desire to form a union.” Madeleine Baran, “House Bill Would Threaten Labor by Hampering Union Certification,” The New Standard, Sept. 24, 2004, at 2. Advantages for employers Contrary to conventional anti-union wisdom, not all employers categorically reject neutrality and card check agreements. Many nationally and internationally recognized employers-Verizon Communications Inc., SBC Communications Inc./Cingular Wireless, AT&T Corp., Alcoa Inc., Kaiser Permanente and DaimlerChrysler A.G., to name just a few-have signed such agreements. Employers are, at times, motivated to accept a neutrality and card check agreement because it buys much needed labor peace or it gains the union’s support on a key business initiative that is wholly or partially outside of the employer’s control-such as securing either public funding or public approval for a change or expansion in operations. For example, the Communications Workers of America claims that it was able to extract a card check agreement from SBC/Cingular because the employer needed the union’s help in lobbying for regulatory relief and highly public merger plans. Erin Bowie, “A Tale of Two Card-Check Agreements,” www.labornotes.org/archives/2003/04/e.html (April 2003). An employer has options even if it is forced in bargaining to accept a card check agreement. An employer can insist that the union limit the duration of the organizing drive, refrain from disparaging the employer or pledge not to organize certain sites or employees. The parties can even negotiate over what constitutes a majority. For example, in a card check agreement with Verizon, the Communication Workers of America agreed that it could not demand recognition unless it obtained cards from at least 55% of all eligible employees-more than a simple majority required under the NLRA. While unions have convinced individual employers to adopt neutrality and card check agreements, it is a slow process that works only in situations where unions already have significant bargaining power. Thus, seeking additional leverage, unions have turned to Congress for help. Introduced in 2003, and supported almost entirely by Democrats, the Employee Free Choice Act (S. 1925 and H.R. 3619) would compel an employer to recognize a union upon a showing that it has obtained cards from more than 50% of the eligible work force. H.R. 3619, 108th Cong. � 1 (2003). Ironically, the bill would make U.S. card check law similar to what it was when the NLRA was first passed, when employers were required to remain neutral in the face of an organizing campaign, and similar to the law that now exists in Canada. Republicans responded by introducing the Secret Ballot Protection Act (H.R. 4343) in 2004. This proposed legislation would ban all card check elections. Congress has not acted on either bill. Recent NLRB ruling In a 3-2 decision along party lines, the NLRB recently signaled its suspicions about card check recognition. In the consolidated matter Dana Corp. and Metaldyne Corp., 341 NLRB No. 150 (June 7, 2004), a decision that is greatly disturbing to organized labor, the board agreed to review two cases in which employees sought to decertify a union just weeks after the employer voluntarily recognized the union pursuant to a card check agreement. The Republican-appointed majority on the board stated: “We believe that the increased usage of recognition agreements, the varying contexts in which a recognition agreement can be reached, the superiority of Board supervised secret ballot elections, and the importance of Section 7 rights of employees, are all factors which warrant a critical look at the issues raised.” Id. at 5. The facts of the two consolidated cases are similar. They involved the United Auto Workers’ efforts to organize employees at a Dana Corp. plant in Ohio and a Metaldyne Corp. plant in Virginia. Both employers had signed neutrality and card check agreements with the union. A few weeks after the unions had obtained cards from a majority of employees and were voluntarily recognized by their respective employers, a group of employees filed petitions with the NLRB to decertify the unions because at least 30% of the employees indicated their rejection of the union. Id. at 7. NLRB regional directors dismissed both petitions pursuant to the “recognition bar doctrine,” a precedent nearly 30 years old that prohibits a raid by an opposing union or a decertification petition for a “reasonable period of time” after a union has been recognized. Dana, at 2. The board originally established the bar to allow unions to engage in collective bargaining “without having to look over their shoulder” in fear of decertification. Keller Plastics Eastern Inc., 157 NLRB 583 (1966) (holding that a lawful voluntary recognition of a union based on a demonstration of majority support allows the union a reasonable time to bargain without a continuing challenge to the union’s majority status). In agreeing to review the applicability of the recognition bar in Dana and Metaldyne, the NLRB explained that “changing circumstances in the labor relations environment can sometimes warrant a renewed scrutiny of existing doctrine.” Dana at 2. The majority in Dana clearly prefers elections because “employees cast a secret vote under laboratory conditions and under the supervision of a NLRB agent. By contrast, a card signing guarantees none of these protections.” Id. The Democratic-appointed dissenters in Dana pointed out that the only “change” warranting a review is that card checks are becoming more common. Id. at 17. And furthermore, the dissenters argued, the NLRA never required a secret ballot election. The act states that a union can be “designated or selected” by a majority of the employees. Eliminating the recognition bar would make voluntary recognition meaningless because it could immediately be challenged in a decertification proceeding, the dissenters warned. The dissenters argued that the majority’s fear that card check recognition could result in the minority usurping the majority is misplaced because the NLRA already prohibits employer recognition of a minority union. Id. at 19. A decision by the NLRB is expected by spring 2005. Unions are focusing on neutrality and card check recognition agreements as tools to leverage existing bargaining relationships, gain members and avoid uphill election fights. Yet unions must tread carefully. Congress and the NLRB are also focusing on neutrality and card check agreements. Timing is everything at the NLRB. The NLRB may use Dana effectively to put an end to voluntary card check recognition. Unions may find themselves stuck slugging it out with employers in full-blown election campaigns. The race is on for unions to capture new members through neutrality and card check agreements before such agreements are declared dead by Congress or the board.

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