Card Check Recognition: New House Rules for Union Organizing?

I. INTRODUCTION A significant policy debate has been occurring regarding union organizing methods in the United States. This debate focuses on the appropriateness of granting union recognition based on majority support as demonstrated by union authorization card signatures, also known as "card checking." (1) Critics describe the practice as anathema to basic democratic principles and accuse unions of wanting to deal from the bottom of the deck to secure undeserved representation of employees. (2) Proponents of card check recognition argue that reliance on National Labor Relations Board ("NLRB") organizing procedures fails to protect employees' rights to organize, and forces unions to compete against a stacked deck that unfairly favors employers. (3) Indeed, the labor movement in the United States has long been dissatisfied with the legal framework under which unions operate. (4) This frustration was illustrated by American Federation of Labor and Congress of Industrial Organizations ("AFL-CIO") President Lane Kirkland's statement in the early 1980s suggesting that the National Labor Relations Act ("NLRA") (5) be repealed, thereby allowing unions and employers to operate within the "law of the jungle." (6) Perhaps owing to sustained union membership losses, unions have recently fought hard for legislation that will facilitate the organizing process. (7) Specifically, unions are supporting amendments to the NLRA, such as the Employee Free Choice Act of 2007 ("EFCA"), which requires employers to recognize a union when the employer is presented with evidence of majority support for union recognition via card check. (8) The EFCA requires the NLRB to develop model authorization language and procedures for establishing the validity of signed authorization cards. (9) The EFCA also provides stronger penalties for employers' violations occurring while employees are attempting to form a union or attain a first contract. (10) These amendments would represent a significant departure from the NLRA, which currently allows for card check organizing based only on voluntary acquiescence of the employer, an unlikely event given the strident opposition to unions by U.S. employers. (11) Despite their importance, little has been written in the academic literature about the experiences of unions and employers with the use of the card check organizing process. (12) This Article seeks to fill this gap. We collected data on every organizing event the AFLCIO publicly reported between 1998 and 2005. (13) The list of events includes government-conducted elections, card checks, and other events. (14) While the data are not exhaustive of all union organizing events, the data provide a more comprehensive view of the recent experience with card checks than other currently available sources. The data also allow us to evaluate some of the justifications that have been advanced in support of the proposed changes to existing law, as well as to explore the possible consequences of those changes. We examine the claim frequently made by supporters of the proposed legislation that, for all practical purposes, unions have abandoned the election route to representation in favor of the card check process. (15) Citing data from the AFL-CIO, supporters of proposed reforms claim that less than twenty percent of all union organizing is conducted through Board certified elections and that most new members are now joining the labor movement via card check recognition or some alternative procedure. (16) Our data do not support this claim. In particular, we find that during the period from 1998 to 2005, unions reported organizing the majority of their workers through some type of government-sponsored election. While non-trivial, the number of non-election events (e.g. card checks, mergers, and affiliations) and the number of employees organized through these events do not account for the majority of union organizing activity. More importantly, we find that the current rate of card check use appears to be limited to a few unions in specific industries. …