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Union Card Checks and Neutrality Agreements

by Robert Vercruysse and Gary Fealk

Labor unions may be on the decline, but they’re once again ramping up organizing efforts, especially in stronghold states. More and more unions are seeking to avoid the traditional National Labor Relations Board (NLRB) election process and are requesting employers to enter into card-check and neutrality agreements.

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Neutrality and card-check agreements
Traditionally, workers have organized by contacting a labor union because they believe their employer treats them unfairly. The union then assesses workers’ interest, brings in a professional union organizer, distributes authorization cards, and seeks employee support for the union. If a majority of the employees in an appropriate bargaining unit sign the cards, the union ordinarily will request that the employer recognize it for bargaining.

The employer can lawfully recognize the labor union if it has majority support. Employers usually decline and request an NLRB secret-ballot election. After an employer declines, the union usually petitions the NLRB to schedule a secret-ballot election in which it can demonstrate its majority status. That election usually is conducted within about 30 days from the petition’s filing or slightly longer if there’s a hearing to determine who should be included in the bargaining group.

Absent a neutrality agreement, employers — with counsel, consultants, or both — campaign against the union.

They speak and write about why labor unions aren’t in the best interest of the employees, the company, or the business’ long-term future. They talk about strikes, union dues, union fees, and the right to be free of all that without a union. They suggest that unions won’t get any more in wages and benefits than employees have now because they already pay competitive wages and benefits.

Labor unions hate delay and accuse companies of intimidation when they exercise free speech and talk about the downside of unionizing a plant or business. When they seek recognition from an employer, they normally already have a majority of the employees signed to authorization cards.

Unions prefer a card check instead of waiting 30 days for a secret-ballot election. That’s because if an employer conducts a serious campaign that ends with a speech to a captive audience of employees 24 hours before the election, the union might lose the support it had before the delay and the employer’s exercise of free speech. That’s why unions seek neutrality agreements.

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Why do employers agree to neutrality and card-check agreements?
Some employers agree to give up their rights to campaign against the labor union and to an NLRB election to avoid threatened work stoppages and product interruption and because of pressure from a principal customer that’s organized. They seek to avoid the union engaging in picketing and public relations campaigns that hurt the company’s reputation in the community.

Some employers agree to these procedures to obtain union seed money for a project or the union’s political support for legislation. Unions are taking efforts to make it uncomfortable for employers to oppose organizing efforts and pressure employers to agree to neutrality and card-check agreements.

What do an employer do if it is asked to enter a neutrality or card-check agreement?
If a company doesn’t believe it would be in its interest to have a represented workforce, it has the right to refuse to enter into a neutrality or card-check agreement and can take advantage of its right to free speech.

If the labor union obtains signed cards, an employer shouldn’t examine the cards, even if it didn’t agree to a card-check procedure. If the employer examines cards and acknowledge the authenticity of signatures, it could be forced to recognize the union without an election. Employers should politely tell the union that they aren’t authorized to examine the cards and that it can seek an election if it chooses.

Also, a company should have a non-solicitation policy in place well in advance of any organizing campaign. If an employer doesn’t have a written policy prohibiting solicitation and distribution of literature, it will be required to let outside union organizers onto its property to organize its employees.

Employers should create and uniformly enforce a non-solicitation/nondistribution rule that prohibits all solicitation and distribution of literature by non-employees on company property. While employees must be permitted to solicit on behalf of a labor union and distribute literature in non-work areas and on non-work time, an employer may prohibit them from soliciting and distributing literature in work areas and on work time.

Forced card-check process
The use of card checks has been so effective for laborunions that they have been pressuring Congress to pass legislation doing away with the right to an NLRB election. The House of Representatives passed the Employee Free Choice Act. A Senate version of the bill didn’t survive the current session. Unions have been seeking this type of legislation for years and appear to be closer than ever to removing a major obstacle to organization — the NLRB election.

Read the latest news on the Employee Free Choice Act (EFCA)

Bottom line
Signing a neutrality and card-check agreement makes an employer highly susceptible to labor union organization. The company will be a high-priority target, and there’s a high probability that the union will be successful in organizing the workforce.