Marianne Garneau looks at the evolution and significance of “neutrality agreements” between unions and employers, which establish the ground rules for an organizing campaign, independent of the NLRB and its processes.
Image © May Pamintuan, Flickr.
The NLRB has signaled that it may revise how it views neutrality agreements between unions and employers. A neutrality agreement is an understanding that a union and an employer enter into prior to the union becoming certified as the bargaining agent in the workplace, i.e. during the course of an organizing campaign. For example, the union may ask the employer to refrain from speaking against the union, and in turn the union may agree not to leaflet or picket the company.
To be sure, this move on the part of the NLRB is part of a larger push to undermine unions – you can blame the Trump administration, or see this as part of a 50-year trend attacking workers’ rights. However, it’s worth taking a broader look at these agreements – what they are, how they function, and what kind of unionism they reflect.
Bargaining to organize
The very first neutrality agreement seems to have been one negotiated between the UAW and General Motors in 1976. General Motors was opening plants in the South in the 1970s, which the UAW perceived as an attempt to do an end-run around the union, by relocating production to states with lower unionization rates. The UAW negotiated for GM to back off from campaigning against their organizing efforts at the plants in the South, in exchange for agreeing to “restructure” the existing plants in the north, renegotiating unexpired contracts with concessions in wages and benefits. The UAW then successfully organized a handful of plants in the South.
This strategy of using existing representation to capture more members is sometimes called “bargaining to organize” and it generally involves getting the employer to agree to “card check,” whereby it grants recognition to the union in a given workplace if the union can get more than 50% of workers there to sign union cards (or a recognition petition). Unions have successfully used it to capture thousands of new union members at a time, including CWA at AT&T, Teamsters at UPS Freight, UNITE HERE with Hilton and Starwood hotels, and the SEIU at various health care employers.
As Steve Early has pointed out, however, there have also been some pretty ugly executions of this strategy, where unions have offered big concessions to employers for the sake of snapping up new members. This has even been done in a way that significantly lowered the floor in an industry for the sake of basically raiding another union: in 2012, the UAW muscled the Teamsters out of transporting Ford SUVs (for a company called Jack Cooper Transport), by pre-arranging a collective bargaining agreement with a different contractor (Voith) at basically half the wage the Teamsters were getting paid.
Not all executions of neutrality are as cutthroat, of course. And not all involve bargaining to organize.
The big upsurge in the use of neutrality agreements happened in the 1990s. Unions were on their heels, having lost a lot of membership thanks to a decades-long, aggressive political assault against them, including the erosion of jobs in union-dense manufacturing, through automation and relocation outside of North America. Employment was now shifting towards the service sector, and towards more casual jobs — part-time, high-turnover, etc. Unions were looking for a way to recapture some lost ground: the new head of the AFL-CIO, John Sweeney, expressly articulated a mandate to go out and organize new members.
In taking up that mandate, unions trended away from the standard organizing tactic of talking individual workers into the union, and then filing for an election. They did so not only because of the difficulty of capturing members in a casual and high-turnover situation, but because they recognized that the NLRB election and certification process was not a very reliable way to win.
In the bigger picture, you could say that the “post-war compromise” – a rising middle-class standard of living in exchange for labor participating in a highly regulated negotiation framework — was coming apart. Unions perceived that the government was no longer interested in facilitating union membership for the sake of labor peace. Unions had been defanged by the Wagner and Taft Hartley Acts and the courts, and were no longer militant and scary enough to incentivize either employers or the government to negotiate. Employers were fighting unions, as they always do, but now the government was no longer as interested in making them come to the table.
And so, unions were looking for different, non-NLRB mechanisms for organizing. That included developing and expanding worker centers, as well as pursuing “neutrality” in organizing campaigns – asking the employer to back off from union-busting, and to agree to “card check.” Card check removes the pressure of the do-or-die deadline of an NLRB election, and (ideally) alleviates some of the employer lobbying against the union. When not “bargaining to organize,” unions would pursue this through a “corporate campaign” of publicly pressuring the company (shaming the brand and so on), or mobilizing community members for symbolic pickets, sending workers to talk to the media, etc.
Eric Dirnbach (a frequent contributor to this site) recalls when UNITE, where he was working at the time, decided to go after H&M’s warehouses in New Jersey in the early 2000s. “The idea was to fight a war on our terms: fight an open-ended campaign until we get them to concede.” The strategy involved combining “the best shopfloor worker organizing – house visits and everything – with a well-executed corporate campaign.” In addition to doing outreach to the workers, the union exposed sweatshop conditions in the manufacturing of H&M’s clothing in Thailand and elsewhere. UNITE also reached out to the German and Swedish unions which had presence at H&M in Europe, and asked for their help in pressuring the company to come to the table in the US.
Neither of those tactics yielded easy results. Reflecting on the campaign, Dirnbach says:
How do you run a corporate campaign in the right way that gets card-check neutrality? You have to commit to it, it has to be relentless, you have to surprise them with new things all the time. It’s a death by a thousand cuts. The workers have to be involved and not just sitting around waiting. And if you’re not going to be relentless about it, it kind of dies. Did we need to do 30 things to the company, or did we need to do 30 things to the company over the course of two years, and just not go away?
Dirnbach says the fight was just as hard as it would have been for any election campaign; the whole point was simply to avoid an NLRB election. “We had to beat up the company so much to get neutrality, that by the time we did, the campaign ended pretty quickly.” Workers signed cards, the company recognized the union, and a collective bargaining agreement was signed.
Workers at H&M’s retail stores in New York were simultaneously organized with the RWDSU. Stephanie Basile worked on a similar campaign with RWDSU at Zara, another European clothing manufacturing with retail presence in Manhattan. She says, “The idea was to look at companies based in Europe that didn’t have unionization on the American side. At Zara they had a global agreement that explicitly said they would not fight unions.” The company fought the union anyway – “they would say, ‘business is different in the US. We would go out of business in the US [if we allowed a union].’”
For years, RWDSU put pressure on Spanish management at Zara – while also doing outreach to workers in New York. Organizers would hang out outside of Manhattan stores and talk to workers on breaks, meet with them in cafes, identify racist managers and help put together petitions. “What we were hoping to achieve was to draw the US management into doing some anti-union things so we could embarrass them publicly, then show the Spanish management ‘your US management is making you look bad by engaging in these practices.’ Which we accomplished with the racist stuff.” Eventually, a neutrality agreement was hammered out, with managers instructed not to say anything about the union, even if asked. Store-wide meetings were held at each location, where “managers would speak for a few minutes, then a union rep would speak for a few minutes, and then workers would sign cards.” Basile recalls, “We would always get something like 92% cards.” Once those cards were signed in every location, RWDSU bargained a collective agreement with the company.
Again, the strategy was to avoid the NLRB – “because of the constant degrading of labor law over time, the employer could get away with anything,” argues Basile. Moreover, she says, “I can’t imagine organizing in midtown Zara and winning an election with 400 workers where 100 are going to be turned over in a month. And I’ve won elections in high-turnover retail.”
On the one hand, she recognizes that neutrality would not have been won without real organizing on the ground: “The racist practices we exposed, that was only because we engaged the workers. Could we have leveraged neutrality without them? I don’t know.” On the other hand, she acknowledges that the campaign relied less on a direct deployment of worker power. “To use [Jane] McAlevey’s model of advocacy-mobilizing-organizing, at its best, the Zara campaign was mobilizing.”
Early research indicated that the campaigns that fought via neutrality tended to be much more successful both at securing union representation, and negotiating a first contract. In 2001, Adrienne Eaton and Jill Kriesky found that campaigns that secured some form of neutrality had a 68% success rate in winning formal recognition, compared to 46% for NLRB elections, and that 96% of successful campaigns with neutrality signed a collective agreement.
But that was at a time when fighting for neutrality was part of a deliberate and concerted strategy. Since the mid-’00s, asking for neutrality has become standard practice for unions in the US. “You don’t really hear the phrase ‘we’re fighting for card-check neutrality,’” Dirnbach notes. “It’s a more natural way of doing things now. You see campaigns launch and ask for neutrality right away.” This makes it harder to track its success as a discrete organizing approach.
This means that, unlike the examples discussed in the last section, there is no longer an attempt to beat up the employer until they accept terms. Instead, it’s an opening move, often in order to get a contact list for workers in the first place, with the perhaps implicit threat of some disruption like leafleting or targeting the brand (unions are entitled to a contact list 30 days before an NLRB election, but that is a very short timeframe in which to reach out to workers, especially in a large workplace). But this is negotiating before you have built any real power. Power comes from the ability of workers to take collective action – that is what employers ultimately fear. Negotiating before you have developed the capacity to disrupt work looks more like horse trading. If an employer is conceding neutrality before the workforce is even organized, it’s because they are getting something out of the bargain.
To see what employers might be getting out of the bargain, it’s worth looking at examples.
In 2004, when UNITE HERE was organizing at a Florida racetrack and casino called Mardi Gras Gaming, the company agreed to give the union a contact list of employees, not speak against the union, allow organizers to visit the worksite, and allow card check. In return, the union pledged $100,000 towards a ballot initiative to legalize casino gambling, and agreed to refrain from picketing, striking or boycotting during the drive.
In other words, sometimes the union will help the business in some external way, like advocating for them in relation to government. The same happened with SEIU in the Pacific Northwest, which Jane McAlevey blasts in her book No Shortcuts. Local 775 made agreements with nursing home operators that involved the union helping to secure increases in Medicaid and other forms of funding and limiting employers’ legal liabilities, in exchange for signing up workers at ten nursing homes in Washington state. McAlevey harshly criticized the deals, which included paltry or nonexistent increases in wages and benefits, and signing away the right to strike even outside of the life of the contract.
Sometimes employers agree to neutrality as a kind of hedge, when it involves hammering out an outline of what will be agreed to between the union and the employer at the table, should the union succeed in organizing the workplace. In 2003, Freightliner, a truck manufacturing company, entered into a neutrality agreement with the UAW, which gave the union access to its worksites, and even required employees to attend union presentations on company time. It also agreed to card check. In exchange, the UAW agreed to make certain concessions at the table, like establishing wage differences in different units, and not making demands in relation to job security or severance.
No employer wants a union, but if they believe the union has a credible chance of organizing the workplace, these kinds of agreements are a way to say “thus far and no further.” Dana Corp, an automotive parts manufacturer, gave the UAW a contact list and agreed to remain neutral to the organizing effort and accept card check; in return, the UAW agreed not to strike, and the company and union agreed in principle on matters involving health care and wages, and allowing mandatory overtime.
James Brudney, a professor of labor and employment law, summarizes the employer approach: “employers’ decision to enter neutrality agreements—like their decision to resist unions—is at root a matter of business judgment.”
Even though one might argue that neutrality agreements sometimes give workers short shrift, the legal challenges to them have all come from the right, like the National Right to Work Foundation. Usually an anti-union worker will serve as the plaintiff in a complaint that the agreement between the union and the company removes their freedom of choice with respect to the union, because the company has given the union an unfair advantage. The piece of law that is referred to is a ban against unions receiving any kind of consideration from the company. Companies are not allowed to bribe or influence unions, because that would allow the creation of “yellow unions,” which are really just employer organizations, and that would scam workers out of actual collective representation. So the argument is that in a neutrality agreement, the union is receiving something of value from the employer.
Again and again, the NLRB has rejected these arguments, for one stated reason: neutrality agreements are good for labor peace. Remember that the Board was created for the sake of keeping work churning (that’s in the title of the Act: “to diminish the causes of labor disputes burdening or obstructing interstate and foreign commerce”), by brokering dialogue and compromises between owners and workers. The NLRB is not primarily concerned with the content of collective-bargaining agreements, or how well workers are doing; it rather wants minimal disruption of work. Accordingly, in cases involving neutrality agreements, the NLRB has repeatedly politically prioritized the “industrial peace” they bring – even as they circumvent its own processes! – over any concerns about collusion between employers and unions.
Moreover, some employers have even submitted briefs in these cases, arguing in favor of neutrality agreements. This is not because they are ideologically pro-union or pro-worker, but because they recognize that these agreements can constitute another means of exercising their “business judgement.”
Does neutrality undermine worker action? A case study
Neutrality agreements are one tool among many for unions, and are not good or bad in themselves. However, as a whole, the approach is less reliant on worker engagement. Carried too far, that risks undermining the lifeblood of a campaign, which is worker action.
Workers at the Immigrant and Refugee Community Organization (IRCO) in Portland begin organizing in the spring of 2018. IRCO employs about 250 workers, as social workers, ESL teachers, advocates and administrators. About 75% of its employees are immigrants or refugees themselves.
Workers were concerned about racism and inequity in pay and promotions, bullying of staff by managers, lack of respect on the job, as well as employees being misclassified as casual in order to deny them benefits.
Around December, they began working with AFSCME, which had a reputation for organizing at nonprofits in the city. An AFSCME organizer would occasionally attend the workers’ committee meetings, although “he was on his way out,” according to Andrea, an administrator in development who was part of the organizing effort. Independently, workers decided to put together a petition with a number of demands, including giving eligible workers their benefits, and conducting an equity audit. “We wrote the petition and in one day, we got like 40 signatures,” she says.
The move was pretty successful: those workers did start receiving their health benefits, and the organization agreed to an audit committee (albeit led by managers). …It also hired a union-busting attorney, who began holding captive audience meetings with the staff. Andrea says the move backfired: “Imagine a smarmy white attorney talking to a room with a lot of immigrant workers. They were like, ‘what’s wrong with a union?’” In the wake of the petition, the committee grew to about 25 people, with ten to fifteen showing up to weekly meetings.
AFSCME also sat up and took notice, assigning a new organizer to the workplace, who “was very involved and wanted to meet,” recalls Andrea. Soon the AFSCME organizer began pushing hard for a neutrality strategy. “Our organizer was like, ‘we think there is a mole, we think management knows a lot more, they are retaliating, this is so bad, we have to get this neutrality agreement now, or they’re just going to start firing people.’” The idea was for AFSCME to reach out to the directors, and ask for them not to union-bust, and to hand over an employee list.
This made little sense to Andrea, who says that workers had an internal email directory, and the organizing committee had already assessed about 70% of the workforce in one-on-one conversations, which “given how big we were and how social services people often travel to meet clients where they’re at, was pretty good.
“I thought that our pace was okay for having to assess 250 people with a group of 25 people. But it seemed like after a couple of weeks, they [AFSCME] were unsatisfied with the progress we had made in our assessments, so they were like, ‘we just won’t be able to do anything until we get the neutrality agreement. Workers are too scared.’ Which in my mind was frustrating. I was like, ‘You don’t know what the situation is on the ground.’ For me it was always, ‘this is a capacity issue. We just need help.’”
AFSCME’s other argument for a neutrality strategy was that Multnomah County was soon going to pass a resolution that organizations who receive 20% or more of their funding from the county, which IRCO does, could not union-bust. The resolution failed. “They made it seem like this was for sure going to pass at the county level and it still hasn’t,” notes Andrea.
Perhaps for this reason, among others, IRCO simply refused to meet with AFSCME, let alone offer neutrality or a list. A letter AFSCME sent to management and the board was ignored. Even the union local’s president couldn’t get her calls returned. Finally, IRCO informed the union they would not be meeting. Andrea says, “They also sent out an all-staff email saying that ‘the neutrality agreement means that the union will come to your house and we don’t want people to get bullied. And a card-check election means you could get intimidated.’”
Asked if the organizing committee ever gave their okay to the neutrality strategy, Andrea says “I don’t want to publicly disparage AFSCME in any way, but it was pretty obvious they had already decided that was going to happen. We said, ‘What happens if they call our bluff? What’s our plan B?’ And [the organizer] said, ‘There’s no way. They’re scared of us. We have leverage with the county, we can go public with this, funders would be really upset.’ They didn’t really answer a lot of questions about the worst-case scenario.”
That worst-case scenario was realized later in the year. IRCO has an annual fundraising gala in May. AFSCME bought a table, and was going to bring workers who have been bullied out of the organization. “During the special appeal, where you ask for money, they were going to stand up and walk out,” Andrea says. IRCO reached out to AFSCME before the gala and said they had changed their mind about meeting, offering to meet in two weeks. Andrea recalls what unfolded next: “So then AFSCME was like, ‘oh no, if we protest at the gala, then they won’t do our meeting.’ So like, AFSCME paid $1000 and just… went to the gala. It gets worse. Whatever timeline they gave right before the gala, the day after the gala, IRCO said ‘actually we need to postpone it for a few weeks.’”
Finally, eventually, AFSCME and IRCO sat down. AFSCME’s strategy was to use the organization’s Unfair Labor Practices (violations of workers’ right to organize) as leverage in asking for neutrality. But IRCO “sent back a neutrality agreement that doesn’t have card check, that won’t give updated employee info, that doesn’t say they won’t union-bust, but just says they will follow the law. It doesn’t say they won’t fire people. They sent back almost no concessions,” Andrea says.
For months, AFSCME had put all of its eggs in this basket, and got very little as a result. In fact, pursuing neutrality so ardently arguably undermined the organizing campaign. Workers were discouraged from taking action, for fear of angering management. “We were going to wear buttons [at work],” Andrea relates, “and they were like, ‘no that will be perceived as aggressive, and they won’t want to meet with us.’ Or we were going to do a walkout at one of their pay equity [meetings], like ask a pointed question and then all walk out, and they said ‘no, don’t do that.’” Instead, she says, the union would put together press kits for a corporate campaign. “They were trying really hard on the corporate angle, and pressuring funders. That was an important part of their strategy, it just didn’t involve us workers as much.”
In the months following the fundraiser gala debacle, members of the organizing committee, demoralized and facing management intimidation, began to quit – including Andrea. Others were given trumped-up supervisory duties to try to exclude them from the potential bargaining unit. The union effort began to lose momentum.
“Part of it was just the feeling that we weren’t doing anything,” Andrea reflects. “What gave us the most numbers was doing something and being like, ‘See? They gave those people health insurance because we spoke up.’” After months with no progress, “there was just a sense of, ‘I can’t just wait [any longer]. How long is it going to keep getting worse?’” Although she has left, she keeps in touch with workers there – and the news isn’t good. “Turnover has been so high that there are some people who think the union thing was just a rumor, and don’t even think it was a real thing.”
Asked about how she feels about neutrality agreements in general, Andrea replies: “I don’t have any other experience with neutrality agreements, but there’s already the law. The law already says you can’t fire people for organizing, and they do it anyway. And they’re already breaking the law, that’s why we need a union. And if you want to enforce the neutrality agreement, it’s like, I just don’t know. I don’t know what it can do if someone doesn’t follow the law and doesn’t care.”
Pushes for neutrality are going to work better when they are undergirded by good on-the-ground organizing, as the H&M and Zara examples show. But that’s the thing: neutrality campaigns are an alternative strategy to directly organizing workers (socially mapping the workplace, identifying leaders, agitating and educating, etc.) and deploying their power.
In the IRCO/AFSCME example, sort of a limit case, securing neutrality came to be treated as an end in itself, and the union actively inhibited workers’ collective activity – the PR “air war” ended up sabotaging the ground game of actual organizing.
One organizer I spoke to, actively involved in a bargaining-to-organize campaign with a major union, noted how neutrality agreements have been instrumental in maintaining the union’s density in that industry. Asked about the downside, she said, “These workers are not really getting an experience of fighting with their coworkers. It creates the environment where the union is viewed as an insurance company that provides the benefits. What got us to the point of being able to bargain for neutrality was the more militant action.”
Neutrality agreements arose in light of how badly unions had been beaten back – plummeting in membership, politically reviled and legally hamstrung. As a tactic, they can be very effective, but it behooves us to ask: effective at what? They sign up new members and presumably still significantly raise standards for those workers. But they don’t create worker power.
It is understandable that unions were looking for different, innovative means of organizing. However, it’s also usually the case that strategy or policy set in response to crisis isn’t the greatest. It usually involves shortcuts. Neutrality agreements (like worker centers) are part of a trend in which unions have become less reliant on their membership. Backing down on developing worker power or militancy is still a form of political retreat.