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Tuesday, February 27, 2007

Union elections and the Employee Free Choice Act

You may have noticed the full-page ad on the back of the N.Y. Times Week in Review section about the Employee Free Choice Act.  The ad has a photo of two women and asks, "What happened to RNs Peg and Laura when they decided to form a union?"  A discussion follows of the employer's campaign against the union and the delay in negotiations for a contract.  The ad ends with a plea for the Employee Free Choice Act "[s]o workers can make a free choice to bargain for better treatment at work and a better life for their families."  Readers are directed to an AFL-CIO website, EmployeeFreeChoiceAct.org, for more information.

Although I know of no polling data, I would guess that the majority, if not the overwhelming majority, of labor law professors would support the Employee Free Choice Act, particularly the card-check authorization portion.  I would support card-check as well.  But at the same time, I think the N.Y.Times ad gives the reader an unrealistic impression of union organizing.  And as I detail further in a recent paper, we need to reconceptualize our notions of union representation to better accord with the reality of the unionization process.

Harvard labor law professor Paul Weiler first championed the "card-check" system of union certification in the 1980s.  In essence, the system allows for a group of employees to choose union representation by filling out a card, rather than voting in a secret ballot election.  Under the NLRA (as amended by Taft-Hartley), employees must vote through such an election if the employer does not agree to recognize the union.  The primary effect of a card-check system would be to get rid of the pre-election campaign, in which the union and the employer are allowed to lobby for employee votes.  Unions have long argued that the campaign period allows employers to intimidate and coerce employees, using lawful and unlawful means.  Such tactics are described in the NYT ad: anti-unions mailings "three times a week," forced attendance at anti-union meetings, allegations that unions are violent and dangerous.

Research by academics such as Paul Weiler and Kate Bronfenbrenner has demonstrated the deleterious effects of such anti-union campaigns.  And that's why most labor law professors, I believe, would support a way to eliminate the campaign.  Card-check certification would remove the time period when employers can most intimidate employees into voting against the union.

At the same time, however, I think the end of the campaign causes a problem: there would no longer be any period of time for employees to publicly consider their unionization decision.  This public time is useful for employees to get information about the union, discuss what the union would mean, and weigh the costs and benefits collectively.  And that is what I think is somewhat unrealistic about the NYT ad.  The ad's narrative implies that the decision by Peg, Laura, and their coworkers arose spontaneously among these workers as a group.  For example, the ad says that the RNs signed cards "to form a union."  Well, my guess is that they didn't actually "form a union," in the sense of creating their own organization.  Instead, they probably chose to join an existing union.  And I would guess that the union was an AFL-CIO affiliate.  Workers can form their own independent union, but that's not what happens during a union organizing drive.  During a drive, union organizers try to get employees to sign up with an exisiting union, so they can enjoy the benefits that that union provides.

Similarly, the ad states that the employer showed videos "saying unions are violent and would slash their tires.  Laura says she looked around the room and couldn't believe any of her co-workers would slash her tires."  But it's not her co-workers that the ad is talking about -- it's union organizers.  In fact, nowhere does the ad mention the name of the union, or the fact that the cards they signed were provided by an existing union.

Now, you might say that this doesn't matter that much -- it's just rhetorical spin.  But I think it helps to confuse the nature of what's going on when folks join a union.  Unionization is generally not a spontaneous, internal blossoming of a desire to participate in the workplace.  It is instead an effort by a organization to get other folks to join that organization.  Indeed, in many ways it is like a purchase of services: a group of workers are collectively deciding to buy representation services from a non-profit service provider.

This reconceptualization has ramifications for the union certification process, as I detail in my paper Information and the Market for Union Representation. Essentially, the paper argues that the market is not equipped to provide employees with the proper information about their representation choice.  Unions have an incentive to "sell" employees on the benefits of unionization; they have no incentive to highlight the costs.  Since unions generally don't compete with one another, there are no competitive forces to create comparative advertising and information.  Employers may generally have incentives to provide information about the costs of unionization, but those incentives are not aligned well with employees' interests.  In fact, the incentives are completely reversed: an employer has the most incentive to dissuade employees when it has the most the lose from unionization.  That often means that an employer will fight the union the hardest when employees have the most to gain from it.

I presented the paper at the Stanford/Yale Junior Faculty Forum last summer, and I will also be presenting it at the ALEA annual meeting this spring.  I will be posting the paper soon.  And I also plan to develop the further ramifications of the purchase-of-service paradigm in future research.  Your thoughts on the endeavor would be greatly appreciated.

Posted by Matt Bodie on February 27, 2007 at 11:00 PM in Corporate | Permalink


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all are good idias but i have aske one question abut union why the emplyee priore to the union?rather than the organazation

Posted by: abenet abara | Mar 29, 2007 3:24:18 AM

Matt wrote: "...In response to Elliot, you can't have an election without having a campaign period. That's the problem with the secret ballot..."

That was really a great (and incredibly telling) quote. What could be more outrageous than free speech! It must be tamped down so everyone votes the right way. Just like campaign finance reform, right?

Posted by: Lucky Jim | Mar 6, 2007 1:06:48 AM

Matt wrote: "...In response to Elliot, you can't have an election without having a campaign period. That's the problem with the secret ballot..."

The secret ballot is the corner stone of all elections! I go into a booth, close the curtain, and make my choice. Nobody knows what decision I made and even if I tell people afterward I could be lying. The basis of the system is simple salesmanship, the company and the union compete for the votes of the employees based on what each has said they can do for them.

I was an elected union official for 8 years I know the tricks that both sides like to play and know full well both sides would LOVE to know who voted which way so they could retaliate for the next round!

Keep the check card if you must, but allow the employee to take it home, fill it out, and mail it back IN HIS OWN PLAIN ENVELOPE with no identifying bar codes. Secrecy is important for all parties! With it no one can claim they were fired for pro union support, because nobody knows; no one can claim they are being harassed for not voting for the union because nobody knows.

Posted by: Ric | Mar 3, 2007 7:32:37 AM

Friends bare with me and hopefully people can understand both side. This is a true story and our Family is dealing with this right now in the Construction Trade ( Electrical) I was brought up in a Democratic Household where my Dad worked in a brewery plant for over 30 years and a hard core Temaster, When the day's unions were severly needed.
jump 30 and 40 years and the electrical trade is in very short demand of qualified technicians who will be willing to work 40 hours a week
starting late 90's 98 or 99 the union started salting electrical contractors, for those who do not know it is when the Union Employee (s) go to a Business and falsly fill out a application in order to get hired on for the sole purpose of disrupting work by trying to coerce employee's to join the union,Keep in mind at this time it was illegal to refuse someone from filling out a application in one occasion a union organizer followed atleast 2 of our Employee's home after work and harrasing them there, it happened because the employee came to the job site the next day complaining about it.
One organizer wore a rat suit to the job site, yes that is right a rat suit. Non union shops were called rat shops by the union. (the job was a Grocery store remodel) and walked around in it. He was asked by his foreman to sit up front while they decide what to do. It was determined that he was wearing clothing hazardous to his work environment because it could get caught up in a Electrical panel, he was asked to go home for the day and return back the next day with proper attire to work in. The union person did not show up the next day but instead 2 weeks later the company received a NLRB suit against them for firing a Employee for no reason even though he only worked for 2 days. ( what happened to 90 day trial period ) more on NLRB later.

And when you did not hire a union organizer mainly because it did not fit your needs at the time either by pay or experience, now keep in mind that Employers did not know they were organizers because of falsified Employment Applications and gave fake numbers and companies that went back to the Union hall phone bank so when you called for reference they would get great reviews about their work.
Anyway when the word got out about what the union was doing non union Contractors set up a data base to help field possible employee's applications.
All perspective employee's had to got to one location like the union hall does to fill out a application but it was at the College where Companies pay to send the Employee's to be trained in the field.
We'll long story short ( well not really sorry )a Company in business for over 30 years had a lawsuit filed against them in 1999 when they went through the applications looking for a beginning helper that had data cable experience and making 9 or 10 Dollars a hour.
The union got wind of this company and 5 other companies and filed law suit after lawsuit with the NLRB.
By using the NLRB the union does not have to use any resources to sue a non union shop our tax dollars does it for them, but the Non union shop has to pay enormous lawyer fee's to fight the lawsuit.
if you are wondering what the big deal is.
The 5 Union Organizers were on the payroll of the Local union being paid weekly all 5 were getting 23.50 a hour. the jobs that I am familiar with only requires a 9 to 10.00 dollar a hour helper because they already had a foreman.
well after 8 years it is still in the NLRB court under appeal because the Company will have to not only hire the 5 Union organizers but pay them their full back pay of the last 8 years of what they would have received if they were employed with a Non union Company.
Never mind there are records showing they were paid weekly by the union and the NLRB Judge ( not a normal Judge) was out with union bosses the night before the court drinking and having a good time, and there are pictures well she claimed it did not matter if they had 10 jobs and we only wanted someone to cut the grass we should have hired the 5 union people instead of the 1 helper.

if this continues the company will have to pay upwards of 2.5 million dollars in back pay,benefits and pay roll taxes and do not forget penalties and interest for the IRS for not paying the taxes.
oh and by the way the NLRB has as much right to Garnish assets and properties in order to settle the law suit.

if the Non union wins the appeal because the judge having pictures of her out with the union or that on her review of the case or her findings she fabricated testimony or answers from people to form her decisions based on lies. if the get their appeal then the non union shop will have to spend another 150 to 200,000 in lawyers fees retrying the case and the union does not spend a time thanks to a government agancy provided by our tax dollars. Did I mention all 5 union organizers have been working ever since and 3 of them went back to their home state of New hampshire, and the only time they were here in our state was the 2 months to file a application and then to file the suit with the NLRB. they then went back home and the NLRB and our tax dollars do their dirty work,

I am not trying to slam every union but there is only one side of effect being discussed and yes the Companies has allot to loose but so does the Employees.
Right now we pay our Employee's more than union scale and more benefits with no union dues, but if we get organized what happens when you get troubled Employee's who will not work 40 hours a week and you depend on them. We have 24 Employee's in the field if only 2 call in sick for some reason that is 10 % of our work force not in ( which happens atleast twice with ususally the same employee's)

On a side not if the Union is a non profit organization who in the world does it have enough money to spend milliond upon million upon million in politics, no to mention that the big bosse's have muli million dollars home as a boss of a non profit organization, if there is no profit where did all this wealth come from ?
Thanks for reading and this is honest and truthfull account of a current situation

Posted by: james | Mar 3, 2007 12:18:26 AM

"What Unions Can Do: Demand you join a union. Ask you to join a union. Threaten to screw you if you don't support the union and one is created."

Vandalize your car. Leave a dead animal's head on your doorstep. Encourage other employees' kids to harass your children. Arrange a workplace "accident" for you. Kill your dog. Paint "SCAB" on your garage door.

All these things and worse have happened during union organizing campaigns. The history of union violence is long and well documented.

There has also been intimidation and violence by employers, and organizers are sometimes desperate people struggling against ruthless and oppressive companies.

Secret-ballot votes insulate the worker from intimidation by both sides. Would "labor law professors" support a law allowing decertification of a union with no secret ballot if employers could get a majority of workers to sign decert cards?

Posted by: Rich Rostrom | Mar 2, 2007 1:12:23 PM



Things an Employer Can Do To Keep You From Joining A Union: Force you into captive meetings. Threaten to close your plant/store/site. Threaten to fire you. Actually fire you. Hire professional union busters. Give preferential treatment, either through scheduling or promotion, to employees willing to identify union supporters. Reduce the hours or inconveniently schedule suspected union supporters. Fire union supporters. Reassign you.

What Unions Can Do: Demand you join a union. Ask you to join a union. Threaten to screw you if you don't support the union and one is created.

Posted by: Bart Motes | Mar 2, 2007 10:35:13 AM

Thanks for the cites, Matt. I've read Eaton & Kriesky's older piece, but hadn't seen the newer one. I'll have to check it out.

Posted by: Eric Fink | Feb 28, 2007 11:18:42 PM


I don't dispute what you say. It simply seems the greatest opportunity for intimidation by either side is offered when there is no secret ballot. If we want to create an atmosphere where intimidation is most effective, removal of the secret ballot, and exposure of everyone's position, appears to be the best way to accomplish that. This is true of pressure from any quarter.

I'd also suggest any competent union delivers far more than a few minutes talk from an organizer about an impending vote. They are just as aggressive as the company, and have just as much access. The BA might get in just a few minutes talk, but the union uses converted employees to deliver their message all day long. Both union and company produce a nonstop carrier wave of propaganda, threats, and intimidation. A worker may have to attend a mandatory company meeting, but he also has to work next to converted union hands who keeps up the drum beat all day long.

I don't see either the company or union as the underdog. Each moves for its own advantage, and that's what we are seeing now. The unions have the House, the companies have 41 votes in the Senate. Let the games begin.

Posted by: Elliot | Feb 28, 2007 9:23:38 PM

I am avowedly pro-union in most cases, so I won't claim to be unbiased or academic about it. However, I do think that your contention that employers will not be allowed to campaign against unions is overblown. I have about as much experience in low wage non-union jobs as anyone who worked through college and high school (i.e. about 7 years of part-time work in 4 different non-managerial positions) and it is my experience that employers at non-union jobsites begin low grade anti-union campaigns the moment they hire. I have never experienced one of the famed Walmart-esque anti-union meetings but it was a rare week that I did not hear anti-union comments from someone with supervisery power over me. I think that these comments from someone who could fire me (or even make my working hours and conditions worse) would have influenced my behavior at least as much as a union organizer talking with me for a few minutes about joining a union.

Posted by: Ben | Feb 28, 2007 8:39:02 PM


I understand about the campaign period, but wouldn't we simply be trading a secret ballot for a secret card campaign? The cards are not suddenly checked without some period of campaigning. There will always be a campaign. The unions say the firms have an unfair advantage in the campaign now. It appears the unions now want to shut out the frm and take their own unfar advantage.

If there are problems with the campaign, are they best addressed by eliminating the campaign.

One other question. Under this proposal can a union be decertified with the same card procedure?

Posted by: Elliot | Feb 28, 2007 7:55:54 PM

Professor Slater,

Thank you for clarifying several matters in a particularly pellucid manner.

Posted by: Patrick S. O'Donnell | Feb 28, 2007 5:53:26 PM

Here are some cites on empirical work on neutrality agreements: Adrienne E. Eaton & Jill Kriesky, Union Organizing Under Neutrality and Card Check Agreements, 55 INDUS. & LAB. REL. REV. 42, 52 (2001); Adrienne E. Eaton & Jill Kriesky, Dancing with the Smoke Monster: Employer Motivations for Negotiating Neutrality and Card Check Agreements, in JUSTICE ON THE JOB: PERSPECTIVES ON THE EROSION OF COLLECTIVE BARGAINING IN THE UNITED STATES (R. Block et al. eds., 2006).

There has to be some incentive -- a carrot or a stick -- for employers to enter a card-check or neutrality agreement. Incentives I've seen are: prior relations with the union, pressure from government or community groups, an agreement between the union and employer on terms prior to recognition.

In response to Elliot, you can't have an election without having a campaign period. That's the problem with the secret ballot.

Posted by: Matt Bodie | Feb 28, 2007 4:49:04 PM

Can someone present the argument against a secret ballot? None of the proposed benefits I have read about would be lost if there was a secret ballot. I'd be particularly interested in how an employee can be intimidated in a secret ballot.

Posted by: Elliot | Feb 28, 2007 3:44:06 PM

Before a brief comment on the policy, we legal types might want to look at the actual language of the NLRA, and current practice. First, no part of the NLRA on says that an election is required to certify a union, and in fact, in the U.S. today, unions are not infrequently certified by card-check recognition. So, folks that have issues with that practice would need to address that practice, not just what would happen if this bill passes.

Second, the legal rule the NLRB and the courts currently use is arguably contrary to statutory language. The current rule says that while an employer is allowed to recognize a union based on a majority showing of cards, the employer may always demand an election, at it's option. That wasn't always the rule; labor law jocks will recall the Joy Silk doctrine, under which employers were required to recognize a union if it produced a legitimate, uncoerced majority showing of interest by, for example, signed cards.

So, what does the NLRA actually say about this? Again, no part of the NLRA requires an election. The relevant statutory language is Section 9(a), which states: “representatives designated or selected for the purposes of collective bargaining by the majority of employees . . . shall be the exclusive representative of all the employees.” The “designate or select” language does not mandate elections if an employer wants one, and card check would seem an acceptable way a union could be “designated or selected.”

The rule that an employer can force an election comes from a case called _Linden Lumber_, and from a strict statutory construction viewpoint, I think there's a good argument that case is wrong. So, this bill would just be correcting that problem.

From a policy standpoint, the "top beneficiaries of this bill" are not going to be labor law profs -- I'll be fine either way, thanks. Rather, it would be workers whose ability to make a truly free choice would be enhanced.

Repeated surveys show that between 2/3rds and 40% of workers currently not in unions would like to be in one. And, not coincidentally, that's about the rate of unionization in the public sector, where employers don't run million dollar anti-union campaigns and routinely fire workers for organizing (sure, it's illegal, but the sanctions are insignificant). And of course, however intimidating the stereotyped image of union thug might be, there are no union "captive audience" meetings; unions don't routinely, falsely, threaten to close shop if a union comes in, unions don't fire anti-union workers (again, employers routinely fire pro-union workers) etc. Those who think union elections are anything like free and fair should look at the studies Matt B. cites. The system is profoundly broken.

Having said all that, I look forward to reading Matt's paper on how best to fix it.

Posted by: Joseph Slater | Feb 28, 2007 3:26:26 PM

I'd be interested to know whether Matt, or anyone else, is aware of any empirical research on card check campaigns that have occurred thus far. I've been developing a project to study the circumstances under which employers voluntarily enter into card check recognition agreements. Another line of inquiry, suggested by the discussion here, would focus on the workers who are the targets of card check organizing drives. Perhaps others have done such work and I've somehow missed it?

Posted by: Eric Fink | Feb 28, 2007 3:16:46 PM

The difference is that the employer has a lot more economic power over employees. Your employer can fire you, or just make your job a lot harder. I agree that there should be stronger penalities against union threats and intimidation, and the labor movement hurts its cause when it turns a blind eye to those concerns.

Posted by: Matt Bodie | Feb 28, 2007 2:20:32 PM

Matt writes: "But I think the notion that employees sign cards because they are privately intimidated is somewhat of a bogeyman. Sure, there might be some peer pressure, but there is also peer pressure the other way. I don't understand why folks who generally trust individuals to make their own economic decisions suddenly think that people turn to goo when asked to sign a union card."

Why is this a "bogeyman"? The pro-union side obviously thinks these same people "turn to goo" when confronted with a secret ballot. The argument is seemingly that employers can intimidate their employees, even in a secret vote but the public signing of cards will be free of any taints.what exactly is it about open-air voting that supposedly strengthens one's resolve? Remarkably, this bill turns up the heat (via enhanced penalties) on employers all the while giving union-types an increased opportunity for organizing mischief while providing for no new penalties on them. (Am I missing something - are there $20,000 penalties imposed on a too-strong-arming union organizer?)

Matt's right - Unions are a 'special case' but they will continue to be treated as such only as long as they remain a reliable source of Democratic cash and votes. Does anyone seriously doubt that the top three beneficiaries of this bill are Union Officials, Labor Lawyers (including Labor Law Profs whose subject matter would get a shot of adrenaline) and Union-dependent politicians?

Posted by: Maryland Conservatarian | Feb 28, 2007 1:16:57 PM


You're not looking at it from the employees' perspective. What if there's a union that's friendly with or even has a financial side agreement with management? The employer will not have any incentive to dissuade employees from joining the union. Employees and employers have very different interests when it comes to unionization. Employees want the best representation at the least cost; employers want to prevent employees from empowering themselves and demanding better terms. That's why the election analogy is so flawed.

I agree that card check would exacerbate some information problems. That's why I think a card-check system needs to be paired with a solution to the information problems.

Posted by: Matt Bodie | Feb 28, 2007 12:02:08 PM

I'm confused. The union, which presents the upside of organizing, fights hardest when it has the most to gain. The employer, which presents the downside, fights hardest when it has most to lose. How are these incentives mis-aligned, if the employees are making a binary union/no-union choice? And if the problem is that there isn't competition among unions, wouldn't card-check make that problem even worse?

Posted by: anon | Feb 28, 2007 11:31:31 AM

I think the breadth of comments here shows the divide on this issue. The first two commenters cite the public pressure on employees to join unions, while Patrick's comment describes public pressure against joining a union. Violence, lies, or intimidation by one side or the other should of course be penalized. In fact, I'd like to see tort damages against employers and unions for doing things like this. But I think the notion that employees sign cards because they are privately intimidated is somewhat of a bogeyman. Sure, there might be some peer pressure, but there is also peer pressure the other way. I don't understand why folks who generally trust individuals to make their own economic decisions suddenly think that people turn to goo when asked to sign a union card.

Patrick's notion of continuing expansion of the union sales force is an interesting one. I agree that unions occupy a special niche, and there are a lot of reasons why "buying" union services is very different than buying a car, an attorney, or even an agent. When you join the union, you are not only buying the representation services, you are also now a member. In that way, it's a little like buying a stock: you are buying certain rights from the organization but you are also becoming a voting member. Unions are a special case, and they should be treated as such. But I think it's important to make the leap, because the analogy to political elections in a democratic state is just too flawed.

Posted by: Matt Bodie | Feb 28, 2007 10:13:29 AM


I look forward to reading your paper, the thesis of which I'm perhaps predisposed to look with favor on.

'Indeed, in many ways it is like a purchase of services: a group of workers are collectively deciding to buy representation services from a non-profit service provider.'

That may very well be. However, union organizing efforts are often means whereby unions recruit and train new organizers in the course of the drive so as, in part, to lessen the strain on union resources (acknowledging that money is set aside for such efforts). Indeed, a successful union organization drive would often seem to depend upon how many *potential* union members themselves become an integral part of the organizing efforts (such persons often 'rewarded' for their efforts if and when they become part of the union). The 'purchase of services' model would seem to downplay this fact, although I don't think it in any way means, therefore, that the model is not useful. Which brings me to a related and more important point, and perhaps you address this in your paper, and that is to what degree unions are are fighting pre-existing and rather trenchant ideological beliefs about unions in general that unionization campaigns often cannot address, let alone overcome, in the (relatively, comparatively) short time of an organizing drive. In other words, the (rational) weighing of costs and benefits is short-circuited from the outset. I witnessed this in a unionization effort at our campus (and a similar thing occurred at my wife's workplace), as many if not most of the faculty members had clearly made up their minds to vote one way or the other at the outset of the union's campaign. Many influential faculty members refused to even consider the information or evidence provided them, believing it was 'tainted' from the outset and thus not worthy of their time and attention. They spouted things about unions that were often clearly false, these propositions being part of an overaching ideology that supported or reinforced such false beliefs (In other words, and for example, none of them have ever read Freeman and Medoff's What Do Unions Do? [1984]). Unions need to be involved in public education efforts to a far greater degree than they do now so as to at least give their unionization drives a better chance that folks will indeed weigh the costs and benefits before making a decision. (I hope this is not too afar from the subject matter of your post.)

Posted by: Patrick S. O'Donnell | Feb 28, 2007 9:45:38 AM

Card-check revokes secret voting. How democratic.

Posted by: Dave | Feb 28, 2007 8:26:44 AM

...so the unions get to campaign one-on-one but the company wouldn't. And the employee who thinks union dues are a waste and would rather not spend her hard-earned money on them, would have to publicly decline signing that card in front of the union partisans making the pitch....yeah, what could be fairer?

Posted by: Maryland Conservatarian | Feb 27, 2007 11:35:20 PM

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