Can "Card-Check" Lead to Labor's Comeback?

By Kim Moody, Labor Notes. Posted October 29, 2008.

Employers do everything in their power to make sure workers don't get a chance to vote for a union. They flout labor law, making a joke of the familiar National Labor Relations Board procedures where the government's job is to oversee a "fair fight" election between the union and the boss.

As a result, unions have embraced neutrality agreements and card check procedures as an alternative road to growth. Since the mid-1990s their use has accelerated.

Several studies say the win rate for card check is about 70 percent, compared with 55 to 60 percent for recent NLRB elections. The numbers recruited are also larger, mainly because the organizing targets are larger, too. The AFL-CIO says that three years ago its affiliates -- before the split -- organized 150,000 new private sector members by such procedures. That's more than twice the 70,000 brought in through NLRB elections that year.

But the fact is that card check is still not widely used.

The NLRB is still the primary avenue to union recognition, although the data don't take into account the number of workers involved in each drive.

Most unions, including the primary users of card check -- UNITE HERE, Communications Workers (CWA), UAW, SEIU, and Steelworkers -- still use the NLRB far more often. The Teamsters and SEIU used NLRB elections last year more than all AFL-CIO unions combined.

The exception is UNITE HERE, which seldom uses the NLRB.

Volunteers, Anyone?

Why don't unions use card check more often? Employer resistance has made it more and more time-consuming and expensive.

One distinct approach to card check and neutrality agreements is called "bargaining to organize." It involves employers where the union already represents some portion of the company's workforce. The union uses its muscle in bargaining to convince the employer to accept an expedited procedure at the non-union facilities.

Examples include CWA's agreement with AT&T Wireless, UNITE HERE's with Hilton and Starwood hotels, UAW's with 11 auto parts suppliers, and the Teamsters' 2007 agreement with UPS Freight.

Although these are national agreements, the unions still must organize one workplace at a time in most cases.

Winning a card check procedure is not easy. Such agreements often take years to win. Sometimes the employer agrees and then ignores the deal, as when Verizon's mobile phone division double-crossed CWA.

The problem becomes more severe at non-union companies, which have even less incentive to agree to card check. Forcing them can take time and money.

The 2005 SEIU victory in Houston that brought in 5,000 janitors took a massive community mobilization, pressure from religious leaders and the mayor, and a 10-day strike to get the contractors to accept card check. It took another year and a strike to win a first contract.

A 2007 ruling from the NLRB has made matters worse. The Dana/Metaldyne decision says that within 45 days after card check recognition, anti-union workers may file for a decertification election. After an NLRB-supervised vote, in contrast, no decert can take place until a year has passed.

Even before Dana, the NLRB sided with challenges to card check and ordered workers to vote. The unions involved won those elections, but the new ruling will mean more delays, more costs, and, inevitably, some reversals.

Looking to Congress

The labor movement has therefore gone to Congress with the Employee Free Choice Act. EFCA includes a mandatory card check procedure, arbitration of first contracts, and substantial fines for breaking the law.

Last year, the Republicans talked the bill to death despite a massive AFL-CIO pressure campaign, which failed to move more than one Republican. The hope now, of course, is that the Democrats will win 60 seats, a filibuster-proof majority in the Senate, and pass EFCA.

But the last time the Democrats had 60 senators was 1977-79 under Jimmy Carter -- when labor law reform failed to pass.

Card Check to the Rescue?

If it were to pass, EFCA no doubt would improve organizing prospects.

But by how much? The signs from Canada are not encouraging. Canadian labor expert Roy Adams writes, "Union density and bargaining coverage are falling even in provinces such as Saskatchewan and Quebec that have card check and first contract arbitration clauses in effect."

Canadian employers have learned from their American counterparts how to intimidate workers, and even under better laws, unions aren't organizing fast enough to halt declining density.

While employers are the main problem, unions themselves share responsibility for slow growth. A few years ago, AFSCME's Paul Booth told an AFL-CIO organizing summit, "What we need is an army, and that can only come from our underutilized membership ranks."

CWA organizer Louie Rocha agrees. "The national union is of the opinion that we should wait until EFCA passes," said Rocha, who stepped down from the presidency of Local 9423 to head his local's organizing of Comcast cable workers. "The hell with that."

"In our campaign, stewards are doing all the follow-up calls. They're gaining experience that would take decades to learn if they were just taking orders."

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