By Colette Perold and Eric Dirnbach
As a major part of this mission, the NLRB oversees union representation elections at nearly all private-sector workplaces. The Railway Labor Act serves a similar purpose for the transportation sector, with the National Mediation Board overseeing union elections under slightly different procedures. A similar system has been set up by the federal government and in many states for public sector workers through public employee relations boards.
In the years following the NLRA, a standard form of union organizing through these elections and subsequent contract negotiations has developed. The traditional process is as follows.
In practice, every step of this organizing and bargaining process is often obstructed by the employer. Upon learning of the union organizing campaign, the employer will typically engage in union-busting practices, both legal and illegal, designed to instill doubt and fear in the workers. It will likely hold mandatory “captive audience” meetings on a regular basis to misinform workers. It may try to exclude certain workers or include others in the official list of eligible voters based on where it assesses union support in the workplace. If the workers win, the employer may protest and appeal to the NLRB to delay certification. Even if the workers certify a union, the employer may not bargain a contract in good faith.
Often these employer tactics are unfair labor practices (ULP), which the union can bring to the NLRB for prosecution. However, ULPs can take many months or longer to process, and the penalties are usually so minor that they don’t impact the employer’s behavior. Also, long delays in scheduling elections, certification, and bargaining, all while worker turnover occurs at the workplace, hurts the ability of the workers to build and maintain solidarity.
These delays are one of the main ways employers bust union organizing, using refined psychological techniques during the months leading up to an election to scare workers away from unionizing. If the employer has dragged out the bargaining process long enough, a group of workers may be so frustrated (usually misdirecting their anger at the union) that they will try to decertify their union after the fact, sometimes with employer assistance.
Despite this employer opposition, unions are fairly good at winning these elections, with a win rate of about two-thirds in recent years. But these workplace elections and contract negotiations are time consuming and labor intensive, which is why unions are running fewer of them now. Bargaining a new contract takes an average of more than one year, and some workers never get a contract at all—the employer delays and the workers just give up.
The Economic Policy Institute reports “While 86% of workers who chose a union were able to win a first contract in the 1950s, that share declined to less than 70% in the 1970s. By the 1990s, it was down to 56%.” Workers having to go through this elaborate process, often under intense employer interference, means that far too few workers are successfully organizing unions and bargaining contracts in this way. This has led to the search in recent decades for alternative ways of organizing, and efforts to reform labor law.
The NLRB allows for an employer to voluntarily recognize a union. Thus, another organizing approach is for the union and workers to convince the employer to agree to recognize the union, or use an alternative union recognition procedure based on the majority of workers showing interest.
One example is called “card check neutrality.” With card check, the employer agrees to be neutral and recognize the union based on a majority of the workers signing union authorization cards, often checked by a mutually chosen third party, and sometimes within a specified time period. If the workers achieve a verified majority, they are certified by the NLRB and contract bargaining begins.
To achieve the employer agreement to this process often requires an intense pressure campaign over time. But if successful, the advantages to this approach are that there is no specific election time period where the employer engages in union busting, and no particular date set by the NLRB where the union is judged to have won or lost.
The union has much more time to organize and can submit the cards at the time of its choosing. The workers sign cards under a neutral atmosphere and submit them for certification when they are ready. However, the fight with the employer usually can’t be avoided—it’s either a fight for the card check procedure, or during the union election and contract bargaining.
Card-check certification has grown in recent decades, but is still used less often than elections, although the data on this is harder to find. Card-check certification can have multiple dynamics. The worst-case scenario is when union leadership makes concessions to the employer in advance, often behind closed doors, to get an agreement from the employer before beginning to actually organize workers. The best scenario is when a union organizing campaign is so powerful that it forces management to concede to its demand for recognition directly.
Related to this approach is what are often called “labor peace” agreements. This is often a policy attached to economic development supported by public subsidies.
In these cases, the government will require that the employers benefitting from public assistance sign a labor peace agreement with a union where they essentially agree to the card-check neutrality process. The guiding rationale is to promote collective bargaining and that employers benefiting from public subsidies should not fight union organizing. However, the efforts to obtain these agreements can sometimes offer too many concessions by unions that trap workers in a process that undermines their full rights to organize and strike.
A recognition strike happens when workers who are not officially certified as a union go on strike to force their employer to recognize the union and bargain a contract. This is protected activity under the NLRA but comes with some legal restrictions. For example, picketing can usually occur for no more than 30 days.
More commonly used in the past, recognition strikes can be a powerful strategy. As with other strikes, there’s a risk that the employer may try to replace the workers with scabs. Labor law unfortunately allows in most cases for the temporary or permanent replacement of striking workers. However, unions should consider how this tactic could be revived and used much more often in the right circumstances. The Cornell Labor Action Tracker 2021 Annual Report identified 19 strikes that had union recognition as a demand.
There is an argument, advanced by law professor Charles Morris and others, that the NLRA should allow for “members-only” collective bargaining. This means that any group of workers should be able to form a union, without an election, and demand contract bargaining from their employer for their members only.
This was a more common occurrence in the pre-NLRA era, but NLRB practice evolved fairly quickly to exclude this possibility. Reclaiming this right would take a prolonged fight by the labor movement, a friendly NLRB, and overcoming the inevitable challenges in court. There may also be the problem of the formation of company-friendly members-only unions. (See debates about members-only bargaining here and here.)