Card check labor certification: lessons from New York.

• Author: Herbert, William A.

1. INTRODUCTION: THE RELEVANCE OF THE NEW YORK EXPERIENCE TO THE CARD CHECK DEBATE II. PRE-WORLD WAR II NEW YORK PUBLIC SECTOR LABOR RELATIONS III. THE CARD CHECK CERTIFICATION EXPERIENCE UNDER THE NLRA AND THE SLRA IV. THE CONDON-WADLIN AND TAFT-HARTLEY ACTS V. CARD CHECK PROPOSED IN NEW YORK CITY PRELIMINARY REPORT ON LABOR RELATIONS VI. NEW YORK CITY TRANSIT REPRESENTATION ELECTIONS AND COLLECTIVE BARGAINING VII. INTERIM ORDER AND FURTHER STUDY OF CARD CHECK AND COLLECTIVE BARGAINING VIII. PARKS DEPARTMENT REPRESENTATION ELECTION IX. EXECUTIVE ORDER 49 IMPLEMENTS CARD CHECK IN NEW YORK CITY X. DEVELOPMENTS LEADING TO THE ENACTMENT OF THE TAYLOR LAW AND NYCCBL XI. TAYLOR LAW ESTABLISHES NEW YORK'S PREFERENCE FOR CARD CHECK A. The Taylor Law B. NYCCBL XII. CARD CHECK EXPERIENCES UNDER THE TAYLOR LAW AND NYCCBL A. The Taylor Law Experience B. The NYCCBL Experience XIII. EXPANSION OF CARD CHECK PREFERENCE TO NEW YORK'S PRIVATE SECTOR XIV. CARD CHECK IN OTHER JURISDICTIONS WITHIN THE UNITED STATES XV. CONCLUSION: LESSONS FROM NEW YORK FOR THE CARD CHECK DEBATE ABSTRACT

   During the debate over the card check proposal in the Employee Free Choice Act of 2009 ("EFCA"), there has been a notable lack of discussion about New York's fifty-year history and experience with card check certification. This article challenges and contradicts much of the prior scholarship and debate over EFCA by examining New York's development and administration of card check procedures. The article begins with an overview of the history of New York public sector labor relations prior to the establishment of collective bargaining rights. As part of that historical overview, it examines the development of informal employee organization representation, the codification of a prohibition against public sector strikes, and the establishment of formal grievance procedures by public employers which were the precursors of collective negotiations. It then describes the largely untold story behind the development of New York City's collective bargaining system for municipal employees, which included a card check procedure similar to the one that had existed under the National Labor Relations Act. Following the description of New York City's adoption of card check, the article analyzes the history, procedures, and precedent with respect to the use of card check under New York's Public Employees' Fair Employment Act, the New York City Collective Bargaining Law, and New York's Labor Law. Finally, the article sets forth the important lessons to be learned from New York's history, precedent, and experience, which can enhance the debate over card check.

1. INTRODUCTION: THE RELEVANCE OF THE NEW YORK EXPERIENCE TO THE CARD CHECK DEBATE

   In 1932, Justice Louis Brandeis articulated his proposition that under our federal system, each state should be permitted to function as a laboratory to experiment with public policies aimed at solving problems in that particular state. (1) During the debate over the proposal in the Employee Free Choice Act of 2009 ("EFCA") (2) to modify United States federal labor policy to create an administrative procedure for the certification of unions without an election (generically referred to as card check), it has been notable that New York's extensive history and experience with the use of this procedure has been ignored.

   Instead, many scholars analogize to the Canadian experience, with the scholarship being primarily focused on the relationship between card check and union density without any meaningful review of the effectiveness of the procedure as a means for determining employee choice. (3) The most significant exception to this scholarly trend is the article by Benjamin I. Sachs, who applies default theories as part of his examination of the EFCA card check proposal. (4)

   Public policy choices and lessons from other countries, such as Canada, can provide important insights when reexamining our federal labor laws, policies, and assumptions. (5) However, a far more probative source of information for analyzing the effectiveness of a non-electoral labor certification procedure comes from New York's consistent use of the procedure over the past half-century in the public sector. Historically, New York has been an innovator and leader in many areas of public policy, including labor relations.

   This article seeks to enhance the discussion over card check, which was precipitated by EFCA, by examining New York's history and experience in the use of the procedure. Consistent with contemporary usage, the phrase "card check" will refer to the utilization of various forms of non-electoral evidence, including membership and dues deduction authorization cards, petitions, and proof of dues payment, to determine majority support as the basis for certifying a collective representative for employees in a bargaining unit. (6)

   The article begins with an overview of New York public sector labor relations prior to the granting of collective bargaining rights. As part of that historical overview, it examines the development of informal employee organization representation, the codification of a prohibition against public sector strikes, and the establishment of formal grievance procedures, which were the precursors to de jure public sector collective bargaining rights.

   The article then examines the largely untold history behind New York City's 1958 Executive Order creating a municipal collective bargaining system, which included a discretionary non-electoral procedure for determining majority support. The article will demonstrate that New York City's grant of administrative discretion to certify an employee organization without an election had its antecedence in the National Labor Relations Act ("NLRA"), enacted in 1935, and the New York State Labor Relations Act ("SLRA"), enacted in 1937. (7) The article then discusses the developments that led to the enactment in 1967 of the statewide Public Employees' Fair Employment Act ("Taylor Law") (8) and the New York City Collective Bargaining Law ("NYCCBL"). (9) It will demonstrate that the Taylor Law, unlike the 1958 Executive Order, treats non-electoral certification as the preferred means for determining employee choice. The article then provides an analysis of forty years of precedent under the Taylor Law and NYCCBL, describing how New York has resolved various issues that have been the subject of debate regarding EFCA. The article also examines the 2001 amendment to New York's private sector collective bargaining law, which incorporated a preference for non-electoral certifications similar to the Taylor Law, and codified the Taylor Law's approach to resolving allegations of misconduct in the gathering of evidence of majority support.

   Finally, the article will demonstrate how knowledge of New York's history, precedent, and experience would have elevated the scholarly and public discussion over EFCA's card check proposal, and provided potential avenues for legislative compromise. While it is evident that the card check proposal in EFCA will be withdrawn prior to Congress taking final action on the bill, (10) the New York experience in utilizing non-electoral means for determining majority support in representation cases offers lessons and laboratory results relevant to any future dialogue about utilizing card check certification on the national level or in other States and localities.

   We begin with a historical overview of New York public sector labor law. This is necessary, in part, because public sector labor law and history is frequently treated by the academy as a stepchild or appendage to the private sector. There are many explanations for this treatment, including the respective size of each sector. However, viewing the public sector as a parallel, but secondary, legal and historical universe substantially inhibits the recognition of the various points of legal, historical, and policy intersections between the two sectors. Each point of intersection provides an opportunity for comparative analysis recognizing, at all times, the inherent differences between private and public employment.

   Card check certification constitutes an important convergence point between the private and public sectors: it was born under the NLRA and the SLRA and was later grafted onto New York public sector law where it has grown to maturity. The sponsors and proponents of EFCA have sought to have the administrative process replanted into federal private sector law. To contextualize the debate over card check, and to understand the lessons to be gained from the procedure's maturation in New York, the article's historical overview begins with the period prior to the advent of public sector collective bargaining in New York.

2. PRE-WORLD WAR II NEW YORK PUBLIC SECTOR LABOR RELATIONS

   Prior to the establishment of formal public sector collective bargaining rights in New York, a non-exclusive and informal type of employee representation existed in the public sector. The scope of such representation was limited to lobbying and advocacy, traditional activities integral to our system of government and, in general, constitutionally protected. (11) There was, however, no systematic or formalized procedure utilized by public officials to determine which, if any, employee organization (12) they were willing to meet or consult with over public sector working conditions. Proof of majority status was not a legal or practical prerequisite for an employee organization to obtain de facto representational status from a public employer. At this time, employee organizations were dependent on voluntary dues payments and volunteerism to fund and coordinate organizational activities. To attract and retain members, employee organizations offered various forms of non-work related services, such as group life insurance.

   New York employee organizations, such as the Civil Service Employees Association ("CSEA"), the Civil Service Forum, and...