The Federalist Society


Employee Free Choice Act Debate

May 17, 2007

Brent Garren

Glenn Taubman


Questions and Answers:

A New York Times article (Organized: Local 226, ‘the Culinary,’ Makes Las Vegas the Land of the Living Wage, 6/3/04) describes how a UNITE HERE local has “done a spectacular job catapulting thousands of dishwashers, hotel maids and other unskilled workers into the middle class.” Local 226 workers earn 50-100% more than non-union workers and “often own homes and have Rolls-Royce health coverage, a solid pension plan and three weeks of vacation a year.” These conditions were created by card check recognition in about twenty major hotels and time-share resorts over the last eighteen years, bringing the benefits of collective bargaining to approximately 40,000 additional workers. Not a single bargaining unit has voted to decertify, and there is no evidence of employee dissatisfaction. Has not the “broad partnership with the industry” described by the article, including card check recognition, brought great benefits to the workers, the casinos (who enjoy booming profits) and the community (which has a solid tax base)?



I do not accept the syllogism that unions in Las Vegas "brought prosperity" to these workers, and in particular I do not accept the notion that "card check recognition" had anything to do with their prosperity. First, Nevada is a Right to Work state and all reliable statistics show that RTW states have much higher rates of economic growth and job creation than non-RTW states. Second, the casino industry in America, and particularly in Las Vegas, is thriving, and has been for at least two decades. There is much truth to the idea that unions select high growth industries to organize, precisely because that is where the strength in the economy is, that is where the natural job creation is, and that is where higher dues revenues can be generated (since union dues are usually set as a percentage of the employees’ salary). Unions like UNITE-HERE and SEIU have simply targeted sectors of the nation's economy (luxury hotels, hospitals and nursing homes) that are in a growth mode now and well into the future. Being shrewd businessmen, why would the leaders of these unions target workers in declining industries? Third, it is misleading to assert that UNITE-HERE has never been decertified and that there is no evidence of worker dissatisfaction in Las Vegas. In MGM Grand Hotel (329 NLRB 464 (1999) (3-2 decision)), workers in Las Vegas were three times denied decertification elections against Culinary Workers Local 226 by the Clinton NLRB, which extended the so-called “recognition bar” to nearly a year, in an effort to ward off such decertification votes. Indeed, when individual employees find themselves lumped into huge, complex bargaining units like mega-casinos operating “24/7,” it becomes logistically impossible for them to initiate and run a decertification election given the opposition of well-funded incumbent unions with squads of lawyers and full-time paid union operatives to fend them off. Thus, the absence of a decertification does not necessarily equate with “universal worker happiness.”

Finally, workers gain nothing from “card checks” and instead lose much. It is beyond dispute that a secret-ballot election should be the norm, not the exception, for union selection. (See, e.g., NLRB v. Gissel Packing Co., 395 U.S. 575, 602 (1969) (“secret elections are generally the most satisfactory – indeed the preferred – method of ascertaining whether a union has majority support.”)) If in fact UNITE-HERE and Las Vegas hotels have such harmonious relationships, with no employer opposition or negative campaigns, why do unions still insist on “card checks” instead of secret-ballot elections? Perhaps it is because the “laboratory conditions” expected in NLRB-conducted secret-ballot elections do not exist with “card checks.” In every “card check,” union officials collecting the authorization cards personally watch each employee as he “votes,” know with certainty how each individual employee “voted,” and then physically collect, handle and tabulate these purported “votes.” Although the coercion inherent in such “card checks” has been long recognized, it seems that union officials demand them precisely because they don’t trust workers to vote their consciences in private.  

Is it proper for unions and employers to negotiate “neutrality and card check” agreements that are purposefully kept secret from the very employees targeted by those agreements? For example, in Dana Corporation (7-CA-46905, JD-24-05 (ALJD 4/11/05), appeal pending, http://www.nlrb.gov/nlrb/about/foia/documents/noticeandinvitationtofilebriefs_000.pdf), and Patterson v. Heartland Indus. Partners, LLP  (428 F.Supp.2d 714 (N.D.OH. 2006), appeal pending, Sixth Circuit Case No. 06-3791) the union and employer secretly pre-negotiated bargaining concessions to take effect after the union secured “voluntary recognition.” Don’t employees have a right to know the terms of such secret agreements that vitally affect their terms and conditions of employment before they are subjected to a “card check” drive? 



I disagree with the characterization of either Dana Corporation or Heartland as involving agreements intentionally kept secret from employees and that they involved bargaining concessions. Those interested can read the cases and decide for themselves.

But the issue of transparency is very important. We strongly favor employees having as much information about the benefits of collective bargaining as possible when they decide whether or not to unionize. One of the biggest obstacles to full transparency  is the Board’s decision in Majestic Weaving (147 NLRB 859 (1964), enforcement denied 355 F.2d 854 (2nd Cir. 1966)), especially the NLRB General Counsel’s overly expansive reading of the case.  Majestic Weaving arguably prohibits employers and unions from engaging in any discussions concerning the content of a contract prior to the Union’s obtaining majority support and receiving recognition. This creates two enormous problems.

First, employees are denied accurate information about what the terms of the contract might be. Instead, employees are most often subjected to a barrage of anti-union campaigning by the companies, which conjure images of reductions in wages and benefits and worsening work conditions. The union, faced with such propaganda, may be tempted to exaggerate the gains that will be embodied in a contract.

Second, the employer does not know what a contract will cost him. No prudent business man would enter into any contractual relationship with a supplier or customer without knowing the price. Yet, Majestic Weaving forces an employer to decide whether to fight the union, including whether to engage in anti-union scorched-earth tactics, both lawful and unlawful, which are so common today, without knowing the likely impact of the contract on the business. The result is to virtually force companies into vicious anti-union campaigns directly undermining the NLRA’s goal of industrial stability.

On the other hand, organizing that falls under Kroger Co, (219 NLRB 388 (1975)), enjoys enormous transparency. Under Kroger, a company and union may lawfully agree to extend an existing collective bargaining agreement to cover additional units when the employees give majority support to the union. Likewise, the employees know exactly how their wages, benefits and conditions will improve or (in an unlikely case) worsen if they organize. If the company fear-mongers the union can refute their claims with the contract. If the union promises the employees the moon the employer can bring them back to earth with the contract.   

Unfortunately, the Board is reconsidering Kroger Co. and threatens to deal a blow to transparency, thereby harming the goals of the NLRA: employee free choice, industrial stability and encouraging collective bargaining.

All academic studies agree that the incidence of employer unfair labor practices during organizing drives has risen dramatically over the years. As examples, Professor Charles Morris found that the number of workers receiving back-pay for anti-union discrimination rose from 1.2% of voters in NLRB elections in 1969 to 9.5% in 1984-97, an increase of 800%. The Dunlop Commission found a 14-fold rise in anti-union discrimination from the 1950's to the late 1980's. Professors LaLonde and Meltzer, who claimed that other studies exaggerated the rise in employer unfair labor practices, discovered a 600% rise in discriminatory discharges from the late 1960's to the late 1980's. Card check and neutrality agreements drastically reduce employer coercion. What do you propose that is as effective as card check agreements in reducing employer coercion, which is the overwhelming threat to employee free choice?



I do not agree with many of the premises underlying your question. First, while you state that “all academic studies” agree that there has been a tremendous surge in employer unfair labor practices, the claims of these studies are more apocryphal than real. (I assume that a study of Democrats by Democrats would reveal a dislike of President Bush). Many such studies, like Cornell professor Kate Bronfenbrenner’s frequently-cited claims of mass firings of union organizers, have been rebutted by the National Institute of Labor Relations Research, www.nilrr.org. (See  http://www.nilrr.org/Big Labors Cockamamie Campaign.pdf and 

http://www.nilrr.org/Flawed 'Card Check' Study.pdf?storyId=4834393.) 

The Dunlop Commission was not a neutral source, having been stacked by President Clinton with long-time union supporters.

Second, according to the NLRB’s own statistics for FY 2005(http://www.nlrb.gov/nlrb/shared_files/brochures/Annual Reports/Entire2005Annual.pdf), ULP charge filings have been dropping year-over-year by about 9% since 2002. If employers were really engaged in the parade of horrors you describe, ULP filings against employers would be surging, not declining.            Third, we agree that employee free choice is the touchstone of labor law. But card checks do not meet the ideal of employee free choice, as compared to secret-ballot elections supervised by the NLRB. Suppose there is a “scofflaw employer” that has repeatedly violated the NLRA rights of his employees: how can it be said, even in that extreme case, that a card check is a more reliable indicator of employee sentiment than a secret-ballot election conducted by the NLRB? Simply stated, no employer conduct can ever justify a “card check” over a secret-ballot election as a valid indicator of employee preference, since the act of voting in secret is inherently non-coercive. Americans know this instinctively.

As pointed out in my prior response, however, all card check organizing campaigns are inherently coercive since the union knows in advance how each person “votes,” unlike in a secret- ballot election where neither side ever knows. When an employee makes the decision “yes or no” in a secret-ballot election the organizing process is at an end. By contrast, a choice against signing a union authorization card does not end the decision-making process for an employee in the maw of a “card check drive,” but often represents only the beginning of harassment and intimidation for that employee by union organizers. Many employees report that it is not employer coercion they fear, but union organizers making unannounced “home visits” to solicit authorization cards, or hounding them at work to sign such cards. Many employees also report misrepresentations from union organizers, such as “the card is just to get you more information about the union, not for any other purpose.” 

Finally, if an employer commits an unfair labor practice, the employee and the union already have significant remedies available to them via the NLRB – from ULP charges to election objections. My experience over twenty-five years is that the NLRB regional offices take allegations of employer threats and misconduct much more seriously than allegations of union misconduct. 

I want to follow up on my prior question, without the discussion of whether unions and employers can negotiate over substantive terms of future contracts before the union has achieved majority support (e.g., Kroger vs. Majestic Weaving). Suppose that a union and employer agree to a basic “election procedures” agreement, such as for neutrality and card check, with no negotiations whatsoever about future terms and conditions of employment. Do the employees have a right to be informed of the existence of that agreement, and to have a copy of that agreement if they request it? Since even basic “neutrality and card check” agreements directly affect the terms and conditions under which the employees will or will not unionize, and are themselves “labor agreements,” enforceable under § 301 (29 U.S.C. § 185), should an employer and union be allowed to keep employees in the dark about the terms of such “election procedures” agreements, even when the employees learn of their existence and request a copy so that they can understand what is happening to them? 



Contrary to the assumptions in your question, “fair recognition process” campaigns and agreements (including card check recognition) and employer neutrality are transparent, workers are clearly informed of the consequences of signing an authorization card, and they make a choice without coercion. Fair Recognition Process Agreements facilitate and are essential for workers’ right to freely choose whether to organize.

Rather than keeping their goal a secret, employees and their unions shout their demand for a fair recognition process from the rooftops. For years Cintas laundry workers have openly proclaimed the goal of a fair recognition process in leaflets, newspapers and speeches. Janitors and their supporters at the University of Miami held a hunger strike and demonstrations demanding card check recognition.

A typical UNITE HERE fair recognition process starts with a meeting of the workers with the employer, the union, and often an neutral party such as an arbitrator. They explain that the union will be recognized if, and only if, a majority of employees sign authorization cards. They explain that the neutral party will compare the signatures on the authorization cards to signature samples provided by the employer to protect against forgery.   

The union and company explain the code of conduct for the recognition process. They expressly affirm employee free choice and disavow any retaliation, intimidation or coercion. The employer pledges to not subject the employees to an anti-union campaign. The union pledges not to strike, picket or disparage the employer. The campaign is high-minded and positive, without fear-mongering and strife. Workers are encouraged to raise complaints of violation of the code of conduct, if any, with the company, the union or the neutral party. The agreements provide for expedited arbitration of such claims if needed, often within days of the alleged occurrence.

Fair Recognition Agreements increase the flow of accurate information to workers. Often union representatives are available in lunch rooms for employees’ seeking more information in addition to discussions in their homes or outside the workplace. In some cases, we have agreed with the company to post detailed, accurate information in the workplace, such as the cost of health care under relevant union contracts, to insure that alleged misrepresentations did not harm the process. Similarly, the employer has posted disavowals of alleged threats during the campaign period. The parties could agree to provide accurate information and reassurance to the employees without having to resolve whether improper comments were actually made.

These protections of employee free choice are far more extensive and effective than those in NLRB elections, in which massive employer coercion and “bitter and extreme charges, counter-charges, unfounded rumors, vituperation, personal accusations, misrepresentations, and distortions”  (Linn v. United Plant Guard Workers  (383 U.S. 53, 58 (1966)), are commonplace. Expedited arbitration of disputes provides far more effective remediation than the NLRB processes which drag on for months or years. Dispelling threats and misinformation immediately during the campaign period is 1000 times more effective than the NLRB’s posting notice and rerun election many years after the violations.   

The NLRB election process is deeply flawed by employer coercion, both lawful and unlawful. Unlike as in political elections, in NLRB elections one party (the employer) can force the voters to listen to its campaign propaganda for hours every day, while excluding proponents of the other party (the union) from its meetings;  the voting takes place in the headquarters of one party (the employer’s) and can monitor who votes; one party (the employer) has enormous power over all the voters (to fire, promote, demote or discipline) while the other has no power over voters; one party (the employer) has complete access to the voter list, including names, address, phone number and other confidential information, while the other (the union) is provided no information until it has somehow accumulated 30% support; and a party (generally the Employer) can delay the certification of the election results for years, while it “remains in office” maintaining virtually unrestricted power over the voters (see “Free and Fair? How Labor Law Fails U.S. Domestic Election Standards by Dr. Gordon Lafer,” available at www.americanrightsatwork.org). A recent survey commissioned by American Rights at Work (http://www.americanrightsatwork.org/docUploads/IBFactOverFictFinal2.pdf) of workers from worksites where employees sought to form unions using either an NLRB election or card check process revealed that workers in NLRB elections were twice as likely (46% v. 23%) as those in card check campaigns to report that management coerced them to oppose the union. How do you propose to eliminate employer coercion from the NLRB process?



What you refer to as “employer coercion” is usually lawful and robust free speech and debate by employers exercising their rights under the First Amendment and Section 8(c) of the NLRA. Simply because an employer’s statement reflects unfavorably on a union does not mean that it is “coercive.” 

Indeed, there is no justification for curtailing true free speech by any party. Unions do not want their free speech rights limited, since they are used so effectively in furtherance of union goals. (See e.g., Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945) (allowing pro-union insignia at work); Linn v. Plant Guard Workers, 383 U.S. 53 (1966) (allowing unions to ostracize nonunion workers under the rubric of “robust free speech”); Eastex v. NLRB, 437 U.S. 556 (1978) (allowing unions to circulate anti-Right to Work petitions).)

Unions may not believe that employees need to hear all sides of the story about unionization, but federal judges do. When striking down New York State’s mandatory “neutrality law” as federally preempted, one federal judge noted:

It is difficult, if not impossible to see, however, how an employee could intelligently exercise... [his § 7] rights, especially the right to decline union representation, if the employee only hears one side of the story – the union’s. Plainly hindering an employer’s ability to disseminate information opposing unionization ‘interferes directly’ with the union organizing process which the NLRA recognizes.

Healthcare Ass’n of N.Y. v. Pataki, 388 F. Supp. 2d 6, 23 (N.D.N.Y. 2005), vacated, 471 F.3d 87 (2d Cir. 2006).

When “neutrality agreements” gag all employer speech unfavorable to the union, they treat employees as mindless sheep which must be spoon-fed only union-approved language sanitized for their consumption. One federal judge accurately called such treatment “elitist Big Brotherism.” (Lee Lumber v. NLRB, 117 F.3d 1454, 1463-64 (D.C. Cir. 1997) (Sentelle, J., concurring).) Unlike unions advocating mandatory employer “neutrality,” I trust employees to discern their own interests after a full debate in which their employer freely participates.

You extol “neutrality and card check agreements,” but some agreements include not just “neutrality,” but joint captive audience meetings where management and the unions provide employees with only positive information about the union, and claim that the union can generate new business for the employer. Are these pro-union captive audience speeches coercive, too, or only those opposing unionization?

Finally, one modest reform to advance employee free choice would be to eliminate NLRB “blocking charge” rules, through which unions “game the system” to delay decertification elections, and even to block their own certification elections when they fear they may lose. (Saint-Gobain Abrasives, 342 NLRB No. 39 (2004).) Another one would be to automatically hold NLRB elections in all unionized workplaces every four years, as with presidential elections, in order to regularly put the issue of continuing union support to the crucible of a secret ballot election. In contrast, union attempts to stifle secret-ballot elections and employer free speech are directly harmful to employees’ ability to make free and informed choices about unionization.

A lawyer would breach his fiduciary duty if he agreed to make concessions at the expense of his future clients in exchange for assistance with recruiting those clients. Is it not wrongful for a union to agree to wage and benefit concessions for employees it seeks to represent in the future in exchange for employer assistance with organizing those employees? Isn’t it wrong for unions and employers to pre-negotiate concessionary contracts at employees’ expense (which employers desire) in exchange for employer assistance in organizing those employees (which unions desire)? (See, e.g., http://www.nrtw.org/neutrality/freightliner.php (concerning the premature concessionary agreement between the UAW and Freightliner/Daimler-Chrysler);  http://www.nrtw.org/neutrality/dana.php (concerning the premature concessionary agreement between the UAW and Dana Corp.); and http://www.nrtw.org/neutrality/heartland.php (concerning the premature concessionary agreement between the Steelworkers and Heartland/Collins & Aikman).)



Your question misunderstands the specific agreements mentioned and the nature of collective bargaining.

To begin, your claims of “concessions” are inaccurate. For instance, the Heartland agreement contains no “concessions”, but rather ensures successful first contract negotiations through interest arbitration, if necessary, based on conditions in comparable unionized facilities and the productivity of the facility.

The agreement in Dana reflects the devastation imposed by US trade policy on our manufacturing industries. The Judge in Dana Corporation, JD-24-05, stated: “[W]hat the General Counsel calls concessions might be viewed by some employees as a mature recognition of existing economic realities in the automotive parts industry.” Unions cooperate with employers to boost productivity and efficiency because employers can afford to pay better wages and benefits only if they are productive. The UAW and Dana’s pledging to “work together in a spirit of teamwork, cooperation and mutual understanding to improve product quality, productivity, improve working conditions...” is in the best interests of workers, employers and the US economy.  

More generally, workers benefit enormously from organization and benefit even more when there is high “union density,” i.e., when enough workers are organized so that union conditions improve conditions for non-union workers. Organizing agreements which lead to higher union density in a labor market have a direct, positive effect on the wages and benefits of already represented-workers.

Labor economists agree that unionization provides significantly improved wages and benefits. One study shows that “unions raise wages of unionized workers by roughly 20% and raise compensation, including both wages and benefits, by about 28%.” Further, “Unionized workers are more likely than their non-unionized counterparts to receive paid leave, are approximately 18% to 28% more likely to have employer-provided health insurance, and are 23% to 54% more likely to be in employer-provided pension plans.” Unions raise “the value of [pension and health insurance] by 56% and 77.4%”, taking into account both the availability of the benefit and its cost. (Lawrence Mishel & Matthew Walters, “How Unions Help All Workers,” http://www.epinet.org/content.cfm/briefingpapers_bp143).

The wages of already-organized workers depend directly on the union’s success in organizing other facilities of their employer and other competing employers. “[G]enerally economists have found a ‘positive relationship between the extent of unionization of employees in an industry or locality and negotiated wage rates.” (UFCW v. NLRB, 307 F.2d 760, 769 (9th Cir. 2002).) Non-union competition “significantly weakens the union’s ability to bargain with the employer, and decreases the union’s prospects of achieving the economic objectives of the members of the bargaining unit.” (Id.)

The union-employee relationship is based on a duty of fair representation, not a lawyer’s fiduciary duty to a client. Workers receive better conditions in direct relationship to the bargaining power of their union. A worker’s ability to feed his/her family, provide them with health insurance and have a secure retirement derive significantly from union density in the relevant labor market. These concerns play no role in the lawyer-client context, but make organizing success critical to unions’ fulfilling their mission in representing workers.

Studies show that tens of thousands of workers have chosen collective bargaining, but are denied their freedom of choice because employers refuse to agree to first contracts. The Dunlop Commission on the Future of Worker-Management Relations found that in the years 1986-93, only 55.7% of certified unions obtained a first contract. Another study found that, more than a year after voting for union representation, workers are unable to negotiate initial collective bargaining agreements 32 percent of the time. (Kate Brofenbrenner, "Uneasy Terrain: The Impact of Capital Mobility on Workers, Wages and Union Organizing," U.S. Trade Deficit Review Commission, 2000.) The situation is so dire that the NLRB General Counsel has launched an initiative concerning failures to bargain in good faith during first contract negotiations. Virtually non-existent remedies and lax legal standards encourage employers to avoid meaningful collective bargaining following NLRB elections.

In contrast, workers obtain first contracts between 94-100% of the time following card check recognition. (Eaton & Kriesky, Union Organizing under Neutrality and Card Check Agreements, 55 Ind.. & Lab. Rel. Rev. 42, 52 (2001).) Is not obtaining a first contract vital to the employee’s right to unionize? Doesn’t the success of card check agreements in producing first contracts further the purposes of the NLRA -- promoting collective bargaining, industrial stability and employee free choice?



The answer to your first question is “no.” A first contract is not a vital part of employees’ right to unionize. The NLRA does not require agreement on any terms of a collective bargaining agreement. (See 29 U.S.C. § 158(d); NLRB v. Jones & Laughin Steel Corp., 301 U.S. 1, 45 (1937).) Employees’ choosing to be represented by a union are no more entitled to their employer’s agreement on specific contract terms than workers who do not choose a union.

The answer to your second question is also “no.” “Card check recognition” has nothing to do with bargaining over a first contract. “Card check recognition” is simply a euphemism for destroying employees’ ability to secure a secret-ballot election to choose or reject unionization.

The real implication of your question is that government should give unions the legal power to force employers to agree to specific contractual terms, thereby mandating that employers run their businesses as dictated by union officials. This line of thinking was rejected by the Congress that enacted NLRA Section 8(d) -- with good reason: it is an unwarranted governmental intrusion into businesses’ decision-making ability and flexibility. Under union proposals to mandate “interest arbitration” for first contracts, the government (in the guise of the NLRB or an arbitrator backed by the federal courts) gives private party A (unions) the power to dictate how private party B (the employer) should conduct its business. Not only is this contrary to the free enterprise system that has brought so much prosperity to our nation and our world, but it is bad public policy. It would enshrine into the workplace featherbedding and similar inefficiencies that are the historical hallmarks of unionized operations. It is no accident that many heavily unionized industries are in a steep decline, and that our failing inner city public schools are controlled by unions, as are many unresponsive and monopolistic state governmental agencies. (See Jeff Jacoby, Boston Globe, Feb. 11, 2007 (concerning Massachusetts’ failure to privatize its inefficient state motor vehicles bureau), http://www.boston.com/news/globe/editorial_opinion/oped/articles/2007/02/11/

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In this age of competitive globalization, the last thing this country needs is to grant labor unions the legal power to “mandate” how private employers run their businesses. The American economy should not be re-made to mirror the failing French economy. Indeed, mandating first contracts is akin to American athletes trying to compete in an Olympic swimming event with cinder blocks tied to their necks.

Our nation needs to unfetter employers so that they can operate in a lean and efficient manner. Economist Joseph Schumpeter referred to this as “creative destruction,” whereby dynamic market forces are constantly allowed to tear down outmoded business models to create new and more vibrant ones. Society as a whole, and millions of ordinary workers, benefits from these dynamic market forces. Having unions and the government mandate the terms of first contracts would be a disaster for our economy, our free market system, and ultimately, for workers. 

Is there any union conduct that negates the validity of an employee’s signature on a union authorization card? For example, if a union organizer tells an employee that “the only purpose of the card is to get more information about the union,” and the employer thereafter signs, should that card be valid or invalid for purposes of “card check recognition?” If a card solicitor conducts an unexpected “home visit” in the evening and ominously tells the employee that “we know where you and your children live,” should an authorization card signed at that time be valid or invalid? (See, e.g., HCF Inc., 321 NLRB 1320 (1996) (card solicitor tells employee the union would “come after her children” and “slash her tires”).) Describe in what circumstances, if any, you believe that an employee’s signed authorization card should be considered invalid based upon union misrepresentations about the nature or purpose of the card, or other harassment or coercion occurring at or near the time the card is signed.



You raise the specter of misrepresentation and coercion in card checks. The Supreme Court elaborated standards for validating authorization cards when demonstrating majority support for union recognition in Gissell v NLRB (395 U.S. 575 (1969)). Although it found elections, if free of serious employer misconduct, preferable, the Court stated: “where an employer engages in conduct disruptive of the election process, cards may be the most effective—perhaps the only—way of assuring employee choice.” (Id. at 602.) Mandatory card-check recognition is necessary when employer unfair labor practices “have the tendency to undermine majority strength and impede the election process.” (Id. at 614.) In today’s NLRB elections, employer misconduct which “impede[s] the election process” is the rule, not the exception.

We accept the Gissell standards to determine validity of cards. Unions use, and Gissell concerned, “single-purpose cards”, which clearly state that the signer wishes union representation. The employers argued that even single-purpose cards are unreliable because unionists mislead card signers to believe their signature will be used only to obtain an election, not as basis for union recognition. The Court disagreed, stating: “employees should be bound by the clear language of what they sign unless that language is deliberately and clearly canceled by a union adherent with words calculated to direct the signer to disregard and forget the language above his signature.” (Id. at 606.)

Similarly, the Court determined that the law provided substantial and adequate protection against coercion. (Id. at 604.) Unions may not coerce employees to sign cards in any manner. For example, unions may not use or threaten violence, threaten to force the employer to discharge anti-union employees, or call immigration on anti-union workers. They may not induce workers to sign cards by offering to waive initiation fees for those who sign prior to recognition or by improperly offering other benefits. We believe these basic protections are appropriate and that they are adequate.

Your question misreads HCF, Inc., (321 NLRB 1320 (1996)). No fact-finder determined that any such threats were made; they were mere allegations concerning an employee (not a union representative) during an election campaign (not a card check). The reality is that union coercion during organizing drives is an insignificant problem, especially compared to today’s massive, routine employer firings and threats. Not surprisingly, you do not point to cases in which a judge or arbitrator found union organizer violence or threats to obtain signed cards. Fact-finders dismiss these claims in the overwhelming majority of cases. Even the anti-union HR Policy Association claims only 113 cases of union coercion and/or misrepresentation in gathering cards over a sixty-nine year period. But even this claim is way overblown: analysis of these cases reveals that there were only forty-two cases of union coercion or misrepresentation in obtaining cards, or less than one a year. The paucity of union coercion/misrepresentation in obtaining cards contrasts starkly to the over 30,000 employees who suffered anti-union discrimination in cases decided or settled by the NLRB in 2006 alone.

              In 1998,  the workers at Goya Foods in Miami Florida voted for representation by UNITE HERE in two NLRB elections by a combined 83-31 margin.  The Company ran the usual vicious anti-union campaign, including captive audience meetings (requiring workers to listen to anti-union diatribes on work time), harassment and threats.  The NLRB issued a complaint against Goya for 23 separate pre- and post-election violations, including threats of plant closing and firing four workers. In 1999, Goya unlawfully withdrew recognition from the Union.  Then in August 2006, the Board finally ruled in favor of the workers.  For eight years, these brave Goya  workers have continued to suffer from low wages, bad conditions and a lack of respect on the job that they sought to change with their votes in an NLRB election.  The case is currently in the Court of Appeals, assuring Goya that it will need not bargain for additional months, if not years.  For more details, see “Losing by Winning” by Bruce Raynor, UNITE HERE President, in American Prospect, at http://www.prospect.org/web/page.ww?section=root&name=ViewWeb&articleId=12346.   Has the NLRB election process protected the Goya workers right to free choice? 

             The annals of labor law are filled with every parties’ anecdotes.  I point to this one: After a particularly brutal organizing effort at Overnite Transportation in 2003, the Teamsters union was forced to sign an NLRB settlement agreeing to “cease and desist from using or threatening to use a weapon of any kind, including but not limited to guns, knives, slingshots, rocks, ball bearings, liquid-filled balloons or other projectiles, picket signs, sticks, sledge hammers, bricks, hot coffee, bottles, two by fours, lit cigarettes, eggs, or bags or balloons filled with excrement against any non-striking Overnite employee or security guard.”  (NLRB Case 9-CB-10716).  These are not the kind of folks I would want to appear on my doorstep seeking my signature on a union authorization card!

 

Anecdotes aside, the NLRB election process did protect the Goya Foods workers’ right to free choice.  By your own admission, UNITE HERE won two NLRB secret-ballot elections by a combined 83-31 margin, and the union was certified as the winner of these elections. These election victories occurred in the face of what you characterize as “the usual vicious anti-union campaign.”  Your own facts prove the superiority of the secret-ballot election process, and prove the ability of employees to make up their own minds despite the determined campaigning of their employer.

 

Most of the conduct found unlawful in the Goya Foods case occurred after the election had been certified.  Most concerned the post-certification bargaining process, and Goya Foods’ discipline of employees who a) disparaged the company’s products (with allegations of “rodent infestation”) and b) participated in a disruptive demonstration at a large customer’s supermarket.  Thus, even if Goya Foods had voluntarily recognized the union based on a “card check” agreement, that action would have been irrelevant to these post-certification conflagrations. 

As I have stated previously, no employer coercion or labor law “horror stories” justify the notion that a “card check” procedure is superior to a secret-ballot election.  With a “card check,” union officials know with certainty how each employee “voted” and can viciously pressure those who “voted” wrong; in a secret ballot election, no one but the employee knows how he actually voted, so all pressure is minimized or eliminated.  It is ironic that the AFL-CIO argues that employee petitions and cards advocating decertification “are not sufficiently reliable indicia of the employees’ desires,” and that employees and employers should only be able to remove a union pursuant to a secret-ballot election.  See Brief of the AFL-CIO in Chelsea Industries & Levitz Furniture Co., NLRB Case 7-CA-36846, at 13. Union officials are not advocating “card check” because they sincerely believe that this method reflects employee sentiment more reliably than an NLRB-supervised secret-ballot election.  Rather, they advocate the “card check” process solely to advance their self-serving interests.

Finally, you imply that Goya Foods is “gaming the system” with its appeal, but unions regularly “game the system” with incessant “blocking charges” to prevent decertification elections from occurring.  See, e.g., Saint-Gobain Abrasives, 342 N.L.R.B. No. 39 (2004).

              We have not yet discussed in detail the burgeoning state statutes and local ordinances which require companies doing business with public entities to provide unions with “neutrality and card check.”  Obviously, unions push their political allies in the state legislatures and municipal governments for such statutes and ordinances in order to grease the skids in favor of unionization. 

 

Common themes in such “neutrality” statutes and ordinances are gags on lawful employer speech, limits on lawful employer conduct, and general interference with the rules for organizing created by the NLRA.  As one federal judge has stated, “It is difficult, if not impossible to see . . . how an employee could intelligently exercise  . . . [his Section 7] rights, especially the right to decline union representation, if the employee only hears one side of the story – the union’s. Plainly hindering an employer’s ability to disseminate information opposing unionization ‘interferes directly’ with the union organizing process which the NLRA recognizes.” Healthcare Ass’n v. Pataki, 388 F. Supp. 2d 6, 23 (N.D.N.Y. 2005), vacated on other grounds, 471 F.3d 87 (2d Cir. 2006).

 

Several federal courts have struck down such statutes and ordinances as federally preempted, see, e.g., Healthcare Ass’n v. Pataki, 471 F.3d 87 (2d Cir. 2006); Metropolitan Milwaukee Ass’n of Commerce v. Milwaukee County, 431 F.3d 277 (7th Cir. 2005); Aeroground, Inc. v. City & County of San Francisco, 170 F. Supp. 2d 950 (N.D.Cal. 2001), but others, most notably the divided Ninth Circuit sitting en banc, have upheld them. Chamber of Commerce v. Lockyer, 463 F.3d 1076 (9th Cir. 2006); see also HERE Local 57 v. Sage Hospitality Resources, 390 F.3d 206 (3d Cir. 2004). Aren’t these state and local “neutrality” statutes and ordinances simply a way to undermine the NLRA by “a thousand cuts,” or, as one Ninth Circuit panel recognized, “a state-by-state effort to de facto rewrite the NLRA”?  Lockyer, 422 F.3d at 978 n.4.  Given the need for a nationally uniform labor law, is it proper to allow the “balkanization” of federal labor law by 50 states and hundreds of municipalities?  See also Retail Industry Leaders Association v. Fielder, ___ F.3d ___, 2007 WL 155152 (4th Cir. Jan. 17, 2007) (striking down as preempted under ERISA Maryland’s law requiring Wal-Mart to provide a certain level of health benefits).

              State and local legislation can alleviate  the abject failure of the federal government to protect employees’ rights to organize.

New York and California have passed legislation prohibiting employers from using tax dollars to deter or promote unionization.  These measures protect public funds by eliminating subsidies of anti-union campaigning.   The 9th Circuit correctly found that the California law did not interfere with the NLRA.  It permits employers to oppose unionization, if they used their own money, not the taxpayers’. Chamber of Commerce v Lockyer, 463 F.3d 1076; 1091 (9th Cir. 2006).  The Second Circuit reversed summary judgment which had found the NY statute pre-empted, remanding for trial. Healthcare Ass’n v Pataki, 471 F.3d 87 (2nd Cir. 2006). 

Independence Residences, Inc., JD(NY)-43-04 and JD(NY)-25-04, illustrates the dirty reality behind employer complaints about these statutes.  IRI, which performs services for NY State, campaigned against the union with captive audience meetings, leaflets and one-on-one meetings.  The NLRB Judge found that the employer had reduced the hours of and fired a union supporter, interrogated and threaten workers, and  granted or timed wage increases to discourage unionization.  Yet, IRI had the nerve to object to the union election victory, due to the NY statute.  The Judge, who assumed without deciding that the statute was preempted, upheld the 2003 union election victory since the statute did not unduly meaningfully limit the employer’s campaign. Four years later, the workers still await their first day of bargaining as the NLRB sits on the case.    

Many local governments have enacted “labor peace” ordinances to protect revenue streams by which they are repaid when they extend loans to hotel developers.  The ordinances protect the government’s revenues by requiring the developer to obtain a labor peace agreement, thus avoiding strikes in the business generating the revenue for the government. The 3rd Circuit upheld the lawfulness of such ordinances in Local 57 v Sage Hospitality Resources, 390 F.3d 206 (3rd Cir. 2004).  In that case, the Pittsburgh ordinance led to a labor peace agreement that included card check recognition.  After seeking and obtaining governmental largesse to develop a hotel, Sage sought to renege on its freely-assumed obligations and refused to recognize the union selected by an uncoerced majority of its employees.      

States are “laboratories of democracy.”   States pioneered labor standards legislation, such as  minimum wage, maximum hours and banning child labor despite hostility from  federal courts.  Eventually our national labor policy followed the example set by progressive states.  Today, progressive states are establishing universal or greatly expanded health care in the face of 47 million Americans lacking health care.  They and local governments are enacting minimum and living wage measures as the federal minimum wage’s value plummets. States such as New York and New Jersey have provided for card check recognition for employees who are covered by state labor law.  Hopefully, Congress will follow suit by passing the Employee Free Choice Act, granting employees the right to unionization when a majority sign up for it.

Brent Garren - I would like to extend my thanks to the Federalist Society and Glenn Taubman for the opportunity to participate in this debate. We promised the Federalist Society a spirited debate, and I think we delivered. I trust that it was informative as well.

A strong labor movement is vital to maintaining the American Dream. Capitalism can create great wealth, but without vigorous unions that wealth results in enormous inequality and a massive lower class of working people, African-Americans, and immigrants excluded from civil society. The strong labor movement in the post-war period resulted in millions of workers, skilled and unskilled, becoming able to buy their own homes, send their kids to college, retire with dignity on substantial pensions and enjoy high quality health care. In recent decades, millions of workers have lost union jobs, taking away affordable health care, pensions and middle class incomes. Their kids face a future worse than their parents. Inequality deepens as real wages for unskilled workers stagnate or fall and the wage and benefit differentials suffered by African-Americans, other minorities, and immigrants, worsen. Our society needs a federal labor policy that facilitates workers’ ability to join unions when they choose, rather than making them run a gauntlet of coercion which only the brave few dare to attempt.

Secret ballot elections are a mere form. No one believes that the secret ballot election of the President of Kazakhstan last summer with 91% vote was democratic. While NLRB elections are not as phony as those run by one-party dictatorships, merely repeating the mantra of “secret ballot elections” does not render them democratic. As in one-party elections, employers in NLRB elections have enormous advantages in access to and power over the voters. The Dunlop Commission reported that 79% of Americans believed that workers are “somewhat” or “very” likely to be fired for trying to organize a union. With this correct perception in the workers’ minds, is an employer bombarding workers with fear-mongering images of strikes, violence, plant closings and other dire consequences of unionization rational debate in the free market place of ideas? No, it is highly coercive, especially when it is so frequently backed up by unlawful threats and firings. As polls show, tens of millions of workers want union representation, but do not have it. The NLRB process does not protect employee free choice.

Similarly, merely asserting that card check is inherently coercive does not make it so. Despite being challenged to provide evidence of coercion, Glenn cited only anecdotes and unproven allegations relating to strikes or elections, rather than card checks. Union coercion and/or misrepresentation in obtaining cards is as rare as hens’ teeth. Union representatives talking to workers about the advantages of collective bargaining and signing them up is no more coercive than a representative of the Boy Scouts or a PTA talking to prospective members about the value of their organization.

Which process better protects workers’ rights? When the province of British Columbia switched from card check recognition to elections in 1984-1993, employer unfair labor practices doubled. (M.G. Zorkin & Sons Ltd. and Office and Technical Employees’ Union, B.C.L.R.B. No. B220/93 (July 13, 1993).)  Doubling employer coercion cannot serve employee free choice. Majority sign up recognition, as set forth in the Employee Free Choice Act currently before Congress, would be a giant step towards delivering on the NLRA’s promise of a right to organize.



Glenn Taubman - Several “procedural” disclaimers and credits need be delivered: (1) My questions to Brent Garren and my responses to his questions reflect my own personal views, not necessarily those of my employer, the National Right to Work Legal Defense Foundation; (2) I want to sincerely thank the Federalist Society for providing a forum for these discussions. I am honored to have been asked to participate; (3) I want to thank Brent for participating with me. He is a skilled advocate for his cause, and I thank him for our stimulating discussion; (4) Finally, my thanks go to my colleague and collaborator, NRTW Foundation staff attorney William L. Messenger, for his advice and assistance on this and many similar projects.

Now, on to the substance of the issues... The questions posed in this discussion reflect broad policy issues facing our nation. What role, if any, do unions retain in the American marketplace? Having already achieved extraordinary powers such as the power of “exclusive representation” and the power to have employees fired if they refuse to pay union dues, should unions now receive even more privileges, such as the right to enter into secret organizing agreements with employers in order to end secret balloting and hasten employees’ unionization? Should federal labor law be amended solely to stem unions’ decline? Should the United States adopt European-style social policies to protect unions? These are some of the fundamental issues that lie at the heart of this discussion.

In analyzing such issues, I rely upon certain basic principles: 

First, the free market is what provides this nation with the prosperity it has long enjoyed. Employers’ ability to structure their own affairs, freely move capital, and utilize flexible labor markets must be fostered for the overall good of our society. The American entrepreneurial spirit has served us well, and economists from Milton Friedman to Friedrich Hayek have written extensively about this. Joseph Schumpeter coined the term “creative destruction” about the amazing ability of the free market to tear down old business models and create new, better ones. Without this freedom our economy will mirror the stagnation of Europe, and American workers will suffer.  

Second, American workers can be trusted to make up their own minds about unionization, after a full debate. They can be trusted to vote their conscience in secret-ballot elections, without pressure or coercion from any entity. Forcing American workers to “vote” in public, under the watchful eye of the union, is inimical to free choice. Employees must have the right, but must not be obligated, to form and join unions.

Third, the so-called “Employee Free Choice Act” is cynical and unjust. In my law practice, I am regularly confronted by employees who were coerced or misled about the nature and purpose of union authorization cards. It is a pathetic joke to call such cards a “vote,” as if they were the equivalent of a real vote cast solemnly in a secret-ballot election. Unions are obviously having grave problems adjusting to the rigors of the free market. Our nation’s labor laws, however, should not be re-made to save them from their own excesses and corruption, which have been well-publicized over the decades. Indeed, unions suffer not from “employer opposition,” but from “employee opposition.” As former NLRB Member Robert Brame cogently stated, “unions exist at the pleasure of the employees they represent. Unions represent employees; employees do not exist to ensure the survival or success of unions.” (MGM Grand Hotel, Inc., 329 N.L.R.B. 464, 475 (1999).) 

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