Commentary: Labor Protections and the Role of Card-Check Agreements

On March 16,1968 Robert Kennedy started his run for President, four days after United Farm Worker (UFW) founder César Chávez ended a 23-day fast in Delano, California with 4,000 supporters, Kennedy among them, at his side. Two years earlier, Kennedy had listened as the Kern County Sheriff related to the Subcommittee on Migratory Labor how his deputies arrested peaceful picketers because they were being threatened by growers. Kennedy suggested that the sheriff and the district attorney read the Constitution of the United States. Then he visited the union hall and picket lines, supporting the strikers.


George Miller (D-CA) identified a disturbing trend July 13, 2006, in President Bush’s National Labor Relations Board [NLRB] Rolls Back Labor Protections, and introduced H.R. 800, authorizing card check-off campaigns to establish union representation unless 30% of workers wanted a NLRB-run secret ballot election. The bill, which also would increase penalties for unfair labor practices, overwhelmingly passed the House on March 1, 2007, with critics claiming the status quo, in which employers can require NRLB elections, evoked the democratic tradition and protected workers.

James J. Brudney in Isolated and Politicized: The NLRB’s Uncertain Future (October 2005) details decisions, accessible by case number at the NRLB website. In Neutrality Agreements and Card Check Recognition: Prospects for Changing Labor Relations Paradigms (February 2007), he questions the critics’ rhetoric and suggests changes may be in order.

Front groups, such as the Center for Union Facts and Grover Norquist’s Alliance for Worker Freedom, and anti-union organizations such as the U.S. Chamber of Commerce, the National Association of Manufacturers, the National Right to Work Committee, and the Public Service Resource Foundation and Council, have launched a concerted campaign to stop the measure. President Bush has promised a veto.

Brudney refers to successful Canadian and British card-check practices and to Adrienne E. Eaton’s and Jill Kriesky’s “Union Organizing under Neutrality and Card Check Agreements,” (October, 2001, Industrial & Labor Relations Review via Lexis-Nexis). Examining 118 organizing efforts, they found “strong evidence that card check agreements reduced management campaigning …use of illegal tactics such as discharges and promises of benefits, and also substantially increased the union recognition rate [as did] campaign time limits and requirements that employers provide unions with employee lists.”


Great Depression-era workers could unionize and strike, but employers could fire them, easily hiring replacements. Labor strife ensued and on July 5, 1935 the National Labor Relations Act established the NLRB to protect commerce by “encouraging …collective bargaining and …protecting the… designation of representatives of… [workers’] own choosing, for…negotiating the terms and conditions of their employment or other mutual aid or protection.”

Bureau of Labor Statistics Current Population Survey (CPS) charts union status of employed workers since 1983. Email Karen Kosanovich for its Directory of National Unions and Employee Associations for 1930 to 1980, not entirely comparable, as it includes dues paying union members who are unemployed, on strike, layoff, or retired and excludes professional and public employee association members.

In 1930 3,401,000, 6.8% of workers were union members vs. 2,689,000 (5.2%) in 1933. By 1937, with promised NRLB protection, membership rose to 7,001,000 (13.0%), reached 26.9% — 16,948,000 — in 1953 and 20,246,000 (19.8%) in 1978. In 1983, the new reporting charted 17,717,000 members (20.1%). The percentage fell each year thereafter: by 2006 the figure was 12% or 15,369,000 members. The Center for Economic and Policy Research’s (CEPR) John Schmitt and Ben Zipperer found that while 2006 union membership had fallen .5% overall from the previous year, the manufacturing sector dropped 1.3%. Figures would have sunk lower were it not for public sector unionization’s rate, 36.2%, which “accounted for almost half of union members, even though public-sector employment comprised less than one-fifth of the economy.”

In January, CEPR released Schmitt’s and Zipperer’s Dropping the Ax: Illegal Firings During Union Election Campaigns. NLRB statistics revealed firing rates of pro-union workers rising steeply since 2000 compared with the last half of the 1990’s. Union organizers and activists make up about 10 percent of pro-union workers and bear the brunt of such firings– “estimates suggest that almost one-in-five…can expect to be fired as a result of their activities in a union election campaign and about one-in-seven…are illegally fired while trying to organize unions at their place of work,” taking into account non-election card-check campaigns.

In Increasing Inequality in the United States (November 2006), CEPR’s Dean Baker says firing practices became common during the 1980s and led, in part, to redistribution of wealth away from low and middle income workers. “While it is illegal for an employer to fire a worker for their union activity, it is difficult to prove an employers’ motivation [and]… the penalties for…violating this law are sufficiently trivial that employers risk [them]…in exchange for keeping a union out of their workplace.” Reagan’s firing of the air traffic controllers undermined the strike as a labor tool and the subsequent surge in the hiring of permanent replacement workers meant “the ability of unions to secure wage gains for their members was further diminished.”

Richard Freeman and Joel Rogers directed the Worker Representation and Participation Survey in 1994-5 with “technical assistance from…business and labor.” On February 22, 2007, the Economic Policy Institute (EPI) published Freeman’s Do workers want unions? Now more than ever in which he wrote, “T he rise in the desire for union representation…suggests… that if workers were provided the union representation they desired in 2005, then the overall unionization rate would have been about 58%.”


The current Republican NRLB majority comprises attorneys who represented companies against unions, including recess-appointment Peter Kirsanow, whom Ted Kennedy (D-MA) criticized as “an ardent foe of basic worker protections, including the minimum wage and prevailing wage laws, and … a vehement opponent of affirmative action.”

The trend rolling back labor protection continues. NLRB voted September 29, 2007 – 3-2 along party lines, to define nurses, building trades workers, and newspaper and television employees as “supervisors.” EPI’s Lawrence Mishel and Ross Eisenbrey predicted in Supervisors in Name Only that “hundreds of thousands of employees could be stripped of their contract protections and [over seven] millions more across the economy could be denied the right to form unions or engage in collective bargaining.” February 5, 2007 the NRLB announced another 3-2 vote along party lines to reverse a series of Clinton-era decisions, so that “a decertification petition filed after the occurrence of alleged unfair labor practices by the employer, and prior to settlement of those charges, should not be dismissed.”

Meanwhile, Industrial Relations Consultants, Inc. boasts “We’ve been keeping companies union free for over 30 years.” The Jackson Lewis law firm provides “preventive strategies” in “4 times zones and 27 major locations coast to coast.” Strike management firm Management Support Services “has discreetly and confidentially helped more than 900 companies…face the specter of strike.” Industrial psychologist Charles L. Hughes’s firm claims its approach “is not anti-union, nor is it pro-management,” but describes his Making Unions Unnecessary: Twenty-First Century Edition as the “first [book] to set forth the philosophy: “Any management that gets a union deserves it.” In The Union Avoidance Industry in the United States (December 2006), John Logan writes that “Over three-quarters of employers hire consultants when confronted by organizing campaigns.”

In Spotlight on Union Busters the late Tim Lally detailed employers’ pressure on workers during the weeks leading up to an NLRB election. Kate Bronfenbrenner’s Uneasy Terrain: The Impact of Capital Mobility on Workers, Wages and Union Organizing (September 6, 2000, U.S. Trade Deficit Review Commission) examined a random sample of more than 400 NLRB certification election campaigns between January 1, 1998 and December 31, 1999, finding:

· Fear of plants moving elsewhere constrained wages and union activity even in tight labor markets.

· More than half of all employers made threats to close all or part of the plant during the organizing drive, 68% in mobile industries, compared to 36% in relatively immobile industries such as construction, health care, education, [and] retail.

· The high threat rate occurred despite the unions’ shift of organizing activity away from more mobile industries.

In December 2005, American Rights at Work (ARAW) published Undermining the Right to Organize: Employer Behavior During Representation Campaigns. Chirag Mehta and Nik Theodore reported “when faced with organizing drives, 30 percent of employers fire pro-union workers, 49 percent threaten to close a worksite if the union prevails, and 51 percent coerce workers into opposing unions with bribery or favoritism.”

March 21, 2006, ARAW released a national telephone survey by Eaton and Kriesky of 430 randomly-selected workers from 2002 elections and card-check campaigns, including those who voted for and against the union in campaigns which the union won and lost “to examine whether claims were true that card check campaigns leave employees more vulnerable to union pressure than during NLRB elections.”

· Workers in NLRB elections were twice as likely (46% vs. 23%) as in card check campaigns to report management coerced them to oppose the union.

· Four times as many workers reported management coerced them “a great deal” as opposed to the union (22% vs. 6%).

· Fewer workers in card check campaigns felt pressure from coworkers to support the union (17% vs. 22%).

· Fewer than one in twenty (4.6%) workers who signed a card with a union organizer reported they felt pressured to sign the card.

· Employers who favored the card check process said it significantly reduces the cost vs. drawn-out conflicts that commonly surround NLRB elections.

Union avoidance doesn’t stop just new representation, it works for decertification elections, or barring that, finds other ways to end contracts. Horizon Coal declared bankruptcy. Charles Krug-Mondavi fired all its laborers July 7, 2006 – the day the California Agricultural Labor Relations Board announced it would file an official complaint alleging the vineyard had no right to refuse to bargain over renewing the UFW contract, nor to fire workers. Over nine months later, the Board has set no hearing. The union is asking for signatures on an online petition and a boycott of all the winery’s products, as well as requests to distributors not to carry the products, until the contract is restored.

As ARAW Executive Director Mary Beth Maxwell states, “one can only conclude that card check opponents are trying to solve the wrong problem. If protecting workers’ free choice is really the goal, then you’ve got to start by ending management coercion.”

Posted in: Congress, Legal Research, Legislative