|
If you are an owner, developer or manager of hotel property, particularly in an urban market that is heavily unionized, you may already be familiar with "Neutrality" or "Card Check" agreements. They have been in use for at least 40 years and, according to some commentators, have become the principal means by which unions like UNITE HERE organize new hotels and resorts. Unfortunately for these unions, and for the developers, owners and management companies with which they deal, these agreements violate at least two federal statutes and expose their signatories to criminal prosecution.
What follows is a brief summary of the current state of the law. For a more detailed description of the issues involved, contact the author at rmurphy@gordonrees.com.
The standard form, garden variety neutrality agreement used by many hospitality industry unions provides that in exchange for "labor peace" during the construction of the property and through the opening, the employer agrees to give the union exclusive access to the property and to the names and addresses of its employees for the purpose of facilitating the recruitment of those employees by the union. The employer also agrees to refrain from speech or conduct that might be deemed anti-union during the recruiting drive.
Typically the union circulates "authorization cards" by which an employee evidences his assent to have the union represent him. Once the union collects cards from at least half of the employees in the unit it wishes to represent, the cards are presented to a third party, usually a local religious or political figure, for verification of the signatures. When the signatures have been verified, and the employer is notified of that fact, it is bound by the terms of the neutrality deal to recognize and begin bargaining with the union.
So what's wrong with this picture? As far as organized labor is concerned: nothing. Unfortunately for them, and for you if you sign off on one of these agreements, the National Labor Relations Board ("NLRB") and the United States Department of Justice have a different view.
The two statutes involved are the National Labor Relations Act ("NLRA") and a little known criminal statute called 29 U.S.C. Section 186. The former is administered by the NLRB;the latter by the Department of Justice.
Let's look at 29 U.S.C. first. In general terms it makes it a crime for an employer to give and for a union representative to accept a "thing of value" except as specifically authorized by law. It is a "general intent" crime which means that ignorance of the law is no excuse and premeditation is not required. Penalties range from fines of up to $15,000 and/or imprisonment for up to five years.
More importantly, the phrase "thing of value" has been very broadly construed by the courts to include things other than money, stocks, jewels and the like, so that exclusive access to otherwise private property or to confidential information like the names and addresses of employees will likely attract the attention of the local federal prosecutor. These "things of value" make it possible for the union to dispense with what would otherwise be a much more expensive, albeit less legally suspect, method of organizing employees and, by so doing, secure for the union an incalculable amount of future dues payments.
Which brings us to the reason for the NLRB's interest in neutrality deals: by circumventing the traditional methods and procedures of organizing specifically sanctioned by the NLRA and the implementing regulations, neutrality agreements deprive employees of their right of self determination. The NLRA guarantees to each employee the right to determine for himself in a secret ballot election whether he wants to be represented by a union. The election is supervised by the NLRB pursuant to procedures designed to insure that that there is no interference with freedom of choice.
In contrast, there is no mention of neutrality or card check agreements in the NLRA possibly because they replace the secret ballot with an unsupervised, and therefore prone to abuse, process that is substantially less likely to reflect an employee's true wishes.
There are several cases currently pending before the NLRB which raise as their central issue, the legality of neutrality agreements. Most observers believe that the Board will act to declare such agreements unlawful,following which, it is anticipated that organized labor will mount an effort in Congress to amend the NLRA. Stay tuned
The bottom line is that the next time a local union organizer approaches you with one of these deals and tells you "That's the way business is done in this town" tell him very politely that if he wants to be the bargaining representative of your employees he'll have to do it the old fashioned way: by winning a secret ballot election. And have the phone number of the local U.S Attorney handy just in case he disagrees with you.
| 
