Labor Board May Rule on Union Tactic

Organized labor’s hopes of rebuilding itself as an economic force may ride on changes being contemplated by a federal board that oversees union elections.

The five-member National Labor Relations Board, dominated by Bush administration appointees, has indicated that it may rule on two cases in ways that would hamper union organizing efforts. Labor leaders hope the board will hold off until after the November presidential election, when one seat on the board will become vacant. It is unclear when the board will issue its decision.

“The right to organize totally depends on who wins this election,” said Stewart Acuff, organizing director for the AFL-CIO. He said unions were “breaking our backs to make sure” that Democrat John F. Kerry “is in the White House next year.”

What’s at issue is “card check recognition,” used in the Justice for Janitors campaign in Los Angeles and to unionize tens of thousands of communication workers, hotel workers, people who make auto parts and others around the country.

In the card check process, an employer agrees to recognize a union if a majority of employees sign pledge cards; they don’t cast ballots, as in a federally supervised vote. Often, the agreement comes with a promise by the employer to remain neutral throughout the recognition campaign. Under those conditions, unions rarely lose.

Card check recognition bypasses the traditional NLRB election process, with its highly litigated system of complaints and appeals. Under that process, about half the elections are won by unions, but many campaigns are abandoned before they ever make it to a vote.

Union leaders and labor experts claim that the NLRB elections are routinely manipulated by employers. Workers are often threatened or fired for supporting a union even though such actions by employers are illegal, according to extensive reviews of NLRB cases by Cornell University labor researcher Kate Bronfenbrenner. The penalties for such behavior are slight, the review found, and can be years in coming.

“The representation election looks democratic,” said David Brody, a UC Davis emeritus professor of history and an authority on union organizing. “The reality is, it’s a platform for coercion.”

For their part, card check opponents say the informal and unregulated process opens the door to abuse by unions. Some organizers intimidate or bribe workers into signing cards, critics contend, noting that employers have no redress if they think the process was rigged.

“We feel very strongly that the best way to limit coercion is to let people, at the moment of decision, be out of the scrutiny of the union or the employer,” said Stefan Gleason, vice president of the National Right to Work Legal Defense Foundation.

The nonprofit group brought the two cases before the NLRB. In its 3-2 decision agreeing to review the cases, announced in mid-June, the board cited the growing use and success of card check campaigns as cause to reconsider them -- and noted “the superiority of board-supervised secret ballot elections.”

Both cases are against the United Auto Workers, a union crippled by the massive outsourcing of jobs. The UAW recently has been organizing U.S. auto parts manufacturers, many of which have agreed to the card check process partly to ensure labor peace. In late 2003, several plants recognized the union, including one in Ohio owned by Dana Corp. and another in Pennsylvania owned by Metaldyne Corp.

Within weeks, dissident employees at the two plants, backed by the National Right to Work group, demanded elections to decertify the union. Regional NLRB officials dismissed their petitions, saying the union and employer needed a reasonable amount of time to negotiate a contract before dealing with an anti-union campaign.

Case law generally bars a decertification election for a year after a union is recognized. The Right to Work foundation argued that the ban shouldn’t apply to card check recognition. In those cases, it said, a decertification election should be held right away if at least 30% of workers ask for one.

The focus of the NLRB ruling would be on that narrow point -- whether card check recognition is subject to an immediate decertification vote.

But experts say the ruling’s effect will be far greater if the board signals that the card check approach is flawed or less deserving of protection than a secret ballot election.

Brody, the historian, said such a ruling would inevitably set off a series of employer challenges that would gradually make the card check approach unworkable.

“If the law moves toward saying the only way [to organize workers] is to have a representation election, the labor movement is doomed,” he said.

The card check question could ultimately be decided in Congress, where two competing bills are in play. A labor-backed Democratic version, known as the Employee Free Choice Act, would sanctify card check as the NLRB’s preferred method for gauging union support. Among the hundreds of cosponsors are Kerry and running mate Sen. John Edwards.

The Republican-sponsored Secret Ballot Protection Act, on the other hand, would essentially outlaw the card check approach and force unions into NLRB elections.

Unions contend that the card check approach has always been an option under federal labor law. In fact, it was the preferred way of measuring union support in the frenzy of organizing that followed the creation of the NLRB in 1935. In those years, employers weren’t allowed to interfere in a campaign, even to express an opinion. Labor flourished, and gained political and economic power.

In 1947, the Taft-Hartley Act clipped labor’s wings. Among other things, it made secret ballot elections the only way to gain NLRB certification, which forces employers to recognize a union and bargain with it -- though employers can still choose to recognize a union without certification, as they do in the card check process. The act also permitted employers to actively campaign against the union.

Employer resistance grew more intense and sophisticated over the years, spawning an industry of anti-union consultants. Unions lost elections time and again, often after spending huge sums of money on organizing campaigns.

Among private-sector workers, 8.2% are union members today, about half the rate of two decades ago. That severely limits the ability of unions to push for higher wages and benefits, making them less relevant as an economic force.

Attempts to reverse the trend have foundered except in unions that have focused on card check neutrality, such as the fast-growing Service Employees International Union. The SEIU’s Justice for Janitors campaign, which had brought thousands of Los Angeles janitors under union contract in the last decade and raised their wages and benefits, relied exclusively on card check agreements. The SEIU has since mounted a similar effort for Los Angeles security guards.

Card check is “probably the most innovative tactic the unions have come up with in decades,” said Mark Theodore, a law partner at Proskauer Rose in Los Angeles who represents employers in labor disputes.

“It arouses a great deal of passion,” Theodore said. “Unions know that in virtually every case, they’ll get an almost 100% success rate if they secure this type of arrangement. And so they go to extremes to get them, talking to customers, talking to banks, shareholders, holding demonstrations. Employers get pummeled and they don’t like it. Nobody likes to be bullied into signing anything.”

Business interest in the NLRB cases has been high, evidenced by the dozen friend-of-the-court briefs filed on behalf of the anti-union workers. Those supporting card check restrictions include the U.S. Chamber of Commerce, two security companies targeted by the SEIU and the Associated Industries of Kentucky, a trade group that represents 3,000 manufacturers.

In their brief, the Kentucky group accuses union organizers of harassing employers into signing neutrality agreements against their will.

“The employer can either hold fast to its principles and allow the union to destroy its business and the jobs the business provides, or the employer can capitulate and give the union what it wants -- the ‘neutrality/card check agreement,’ ” the brief says. “This has been a gut-wrenching choice for many companies.”

Some employers filed on behalf of the union. Among them: Liz Claiborne Inc., Levi Strauss & Co. and Lear Corp., an auto parts maker with 50 union plants in the United States.

According to the Lear brief, 35 of those factories were organized through card check agreements, without any disruption or ill will.

“Lear is a living example,” the brief says, “of how the process should and does work effectively.”