Unions exist to allow workers to present a
united front to their employers and to protect the economic
interests of the workers they represent. For this reason, labor law
explicitly gives workers the right to support or not to support a
union, prohibits "company unions," and insists that a union
demonstrate it has the support of a majority of workers in any
bargaining unit before it may represent those workers.
In
recent years, unions have adopted new organizing tactics that
represent an end run around the prerogatives of those workers.
Unions' increasing use of neutrality and card-check arrangements
denies workers the privacy and security of a secret-ballot election
and allows unions to win representation rights through intimidation
and collusion with employers. To strengthen union accountability to
workers, Congress should either establish that secret-ballot
elections will be held before workers may be organized or, at a
minimum, strictly limit the use of card-check and neutrality
agreements.
Under the National Labor Relations Act
(NLRA), a union may be recognized as the representative of a
bargaining unit when it demonstrates that it has the support of a
majority of those workers. A union will typically begin this
process by collecting workers' signatures on "authorization cards."
With signatures from a simple majority of workers, the union may
request that the employer recognize the union voluntarily. If the
employer refuses, the union may petition the National Labor
Relations Board for a secret-ballot election. If a majority of
those voting indicate support for the union, that union must be
recognized.
The
Problem
Neutrality and card check change this process,
undercutting the right of workers to decide whether to allow a
union to negotiate on their behalf. In theory, neutrality
agreements ensure that an employer will not actively oppose
unionization or criticize the union. In practice, they often allow
union representatives access to employees during company time or
provide union officials with employees' personal information (e.g.,
addresses and phone numbers). Card check commits the employer to
recognize the union once presented with signed authorization cards
from a majority of workers. Yet authorization cards are notorious
for overstating the level of union support: Unions frequently lose
secret-ballot elections even after collecting signatures from
two-thirds of workers.
A
combination of card check and neutrality is likely to overstate
union support. Employees may sign authorization cards to avoid
union coercion--a possibility that increases when the union has
personal information about employees. After observing a pro-union
meeting held on company time, workers may conclude that the union
has the employer's endorsement. Either situation will create "false
positives"--workers who are mistaken for union supporters.
Unions secure card check and neutrality
through corporate campaigns or by making concessions to employers.
Corporate campaigns involve a wide range of groups and tactics:
Civic groups may try to create public pressure; the employer's
customers may be encouraged to take their business elsewhere; and
charges may be leveled against the company that damage its
reputation or lead to litigation. Corporate campaigns take many
different forms, but they share one common feature: The objective
is to pressure the company--not its workers--into approving union
representation.
In
some instances, unions have agreed in advance to make concessions
or to limit future wage and benefit demands in exchange for
neutrality and card-check agreements. For instance, the United
Steel Workers agreed to limit all wage increases as part of one
neutrality agreement, and the United Auto Workers has apparently
agreed to lower wages for its workers in order to secure a
neutrality agreement with an auto parts supplier.
Options
Because card check and neutrality may be negotiated with
management before the union has demonstrated any support among
workers, they can allow an employer to collude with union officials
and effectively choose a union for its employees. Misuse of
neutrality and card check might eventually allow for the creation
of "company unions" beholden to management and lethargic about
protecting workers.
To
ensure that unions have genuine support among workers before
recognition by employers, the NLRA should be amended to limit the
use of neutrality and card-check arrangements. For example:
- Requiring a secret-ballot election before
a union may be recognized will ensure that workers have the final
say on who, if anyone, represents them and minimize the risk that
neutrality agreements will lead to the creation of company
unions.
- If Congress is unwilling to mandate
elections, it should at least prohibit "neutrality" agreements that
provide direct assistance to unions. Particularly, employers should
be prohibited from disclosing employees' personal information to
union officials. Congress should also consider allowing workers who
oppose unionization to intervene and force a secret-ballot
vote.
- Card check is an unreliable measurement of
worker sentiment. Employers should retain the right to call for a
vote if they have any doubt about union support. Congress should
reject calls for legislation that would force employers to
recognize a union solely on the basis of signed authorization
cards.
Conclusion
Unions should be directly accountable to the workers they
seek to represent. Labor law should scrutinize arrangements that
weaken union accountability. Neutrality and card-check agreements
can lead to the recognition of unions over the objections of a
majority of workers--a result that is completely contrary to the
purposes of labor law. If Congress will not abolish neutrality and
card-check agreements, it should at least strictly limit their
use.
Paul Kersey is
Bradley Visiting Fellow in Labor Policy in the Thomas A. Roe
Institute for Economic Policy Studies at the Heritage
Foundation.