Card check recognition: new house rules for union organizing?

• Author: Gely, Rafael

1. INTRODUCTION

   A significant policy debate has been occurring regarding union organizing methods in the United States. This debate focuses on the appropriateness of granting union recognition based on majority support as demonstrated by union authorization card signatures, also known as "card checking." (1) Critics describe the practice as anathema to basic democratic principles and accuse unions of wanting to deal from the bottom of the deck to secure undeserved representation of employees. (2) Proponents of card check recognition argue that reliance on National Labor Relations Board ("NLRB") organizing procedures fails to protect employees' rights to organize, and forces unions to compete against a stacked deck that unfairly favors employers. (3) Indeed, the labor movement in the United States has long been dissatisfied with the legal framework under which unions operate. (4) This frustration was illustrated by American Federation of Labor and Congress of Industrial Organizations ("AFL-CIO") President Lane Kirkland's statement in the early 1980s suggesting that the National Labor Relations Act ("NLRA") (5) be repealed, thereby allowing unions and employers to operate within the "law of the jungle." (6)

   Perhaps owing to sustained union membership losses, unions have recently fought hard for legislation that will facilitate the organizing process. (7) Specifically, unions are supporting amendments to the NLRA, such as the Employee Free Choice Act of 2007 ("EFCA"), which requires employers to recognize a union when the employer is presented with evidence of majority support for union recognition via card check. (8) The EFCA requires the NLRB to develop model authorization language and procedures for establishing the validity of signed authorization cards. (9) The EFCA also provides stronger penalties for employers' violations occurring while employees are attempting to form a union or attain a first contract. (10) These amendments would represent a significant departure from the NLRA, which currently allows for card check organizing based only on voluntary acquiescence of the employer, an unlikely event given the strident opposition to unions by U.S. employers. (11)

   Despite their importance, little has been written in the academic literature about the experiences of unions and employers with the use of the card check organizing process. (12) This Article seeks to fill this gap. We collected data on every organizing event the AFLCIO publicly reported between 1998 and 2005. (13) The list of events includes government-conducted elections, card checks, and other events. (14) While the data are not exhaustive of all union organizing events, the data provide a more comprehensive view of the recent experience with card checks than other currently available sources. The data also allow us to evaluate some of the justifications that have been advanced in support of the proposed changes to existing law, as well as to explore the possible consequences of those changes.

   We examine the claim frequently made by supporters of the proposed legislation that, for all practical purposes, unions have abandoned the election route to representation in favor of the card check process. (15) Citing data from the AFL-CIO, supporters of proposed reforms claim that less than twenty percent of all union organizing is conducted through Board certified elections and that most new members are now joining the labor movement via card check recognition or some alternative procedure. (16) Our data do not support this claim. In particular, we find that during the period from 1998 to 2005, unions reported organizing the majority of their workers through some type of government-sponsored election. While non-trivial, the number of non-election events (e.g. card checks, mergers, and affiliations) and the number of employees organized through these events do not account for the majority of union organizing activity.

   More importantly, we find that the current rate of card check use appears to be limited to a few unions in specific industries. Employers in these industries tend to be those who otherwise might have a reduced incentive to oppose unions. In other words, employers who have abandoned the current system might not be representative of employers in general. In fact, available evidence suggests that most employers oppose card check recognition or, at least, prefer the use of Board election procedures.

   This latter finding is important when assessing proposed amendments to the NLRA that would facilitate the card check process. If, as our data suggest, most employers remain reluctant to agree to card check recognition, passing legislation along the lines of the Employee Free Choice Act of 2007 can force employers to acquiesce to card checks, but such legislation will not remove employers' incentives to oppose unions. We suggest that employers will likely respond to such legislation by shifting their union avoidance activities to earlier stages in the organizing process, perhaps even before any organizing effort starts. Employers, for example, could simply engage in more intense monitoring systems to detect union organizing campaigns earlier--that is, they will not have the luxury of waiting for the union to request recognition before launching into a vigorous opposition campaign. This type of reaction by employers could be very effective, and is one which the proposed legislation does not address. We surmise that while the proposed legislation could be a good first step in expanding the ability of workers to organize collectively, it is important to realize that employers are likely to react to such changes by also altering their behavior. Any proposed legislation should anticipate and address this possibility.

   Part II briefly discusses the mechanics of NLRB elections and card checks and, more importantly, the incentives both unions and employers have for using one or the other. (17) Part III describes our data, (18) and Part IV reports our findings. (19) Part V discusses the implications of our findings for the current policy debate regarding the card check process. (20) Part VI concludes the article.

2. THE DYNAMICS OF NLRB SPONSORED ELECTIONS AND CARD CHECKS

   A labor union can become the majority representative of a group of employees either through a NLRB-sponsored election or through voluntary employer recognition. (21) The employer and the union seeking recognition regularly precede the NLRB-sponsored election with vigorous campaigning, but it is employers' behavior that has tended to generate the most concern. During the campaign process, which usually lasts several weeks, employers engage in a variety of activities to counteract the union. Various scholars have documented both the range of tactics that employers use in the course of an organizing campaign, (22) as well as the effect such tactics have on organizing election outcomes. (23) Some of the practices employers commonly use during organizing campaigns include the communication to employees of the employers' views regarding the presence of a union, via letters, pamphlets, and captive audience speeches. (24) Employers also frequently hire outside consultants to manage the campaign, and often encourage the formation of "Vote No" committees comprised of employees that oppose the union. (25)

   Although legally permissible in principle, any communications with employees could become illegal if the employer uses them to either threaten or interfere with employees' rights under the NLRA. (26) For example, while the employer can distribute literature and communicate with employees, the employer cannot threaten to fire, or actually fire an employee because of that employee's union activities. (27) Similarly, it is illegal for an employer during the course of an organizing campaign to threaten to close or relocate operations if the union wins the certification election. (28) It is also illegal in the course of any communications with employees for the employer to promise or actually implement changes in the terms and conditions of employment. (29) Yet these illegal activities occur on a fairly frequent basis. Research on employers' campaign conduct shows that since the mid-1970s employers have become much more willing to engage in illegal activities during the course of an organizing campaign. (30)

   The card check process, which involves voluntary recognition of the union by the employer based on a showing of majority support via representation cards, (31) provides an alternative to the NLRB-supervised election process. The use of card checks is not entirely new in U.S. labor relations. (32) In fact, various commentators have noted that following the enactment of the NLRA, the Board frequently certified unions on the basis of card check agreements. (33) During these earlier years, Board supervised elections were used primarily in situations where the employer questioned the status of the union as the majority bargaining representative, while the card check was the default recognition method. (34) A few years after the NLRA was enacted, and due to issues of institutional legitimacy, (35) the Board began showing a preference for elections as the primary means of union certification. (36) The Board's shift was further extended when Congress amended the NLRA in 1947. (37) Thus, secret ballot elections became the primary way for the Board to certify a union as the exclusive bargaining representative of a group of employees. (38)

   From the perspective of labor unions, card checks have several advantages. By eliminating much of the campaigning that occurs between the union's request for recognition and the scheduled election, there is less opportunity for the employer to engage in anti-union campaigning, (39) and some of the employer abuses that typically occur during union organizing might be avoided. (40) Moreover, card check recognition should minimize delays that often characterize the...