Union representation elections and labor law reform: lessons from the Minneapolis Hilton.

The statistics are well-known: in 1953, 35.7 percent of U.S. private, nonagricultural employees belonged to labor unions whereas in 1993, 11.2 percent belonged to unions (Troy and Sheflin, 1985; U.S. Department of Labor, 1994). The reasons underlying this drastic decline in private sector union density are controversial and highly-debated, however. Since the potential reasons for this decline are numerous, including changing workforce demographics, employer resistance, and union obsolescence, there have been calls for reform in a variety of areas. Perhaps no area however, has been as controversial as reforms to labor law, especially because the actual effects of various reform proposals if implemented are not known. This article uses the events to organize the Minneapolis Hilton and Towers by the Hotel Employees and Restaurant Employees International Union and the Teamsters to illustrate the potential effectiveness of several reforms to one aspect of labor law: the union certification process.

More specifically, the lease agreement between the City of Minneapolis and the Hilton's developer guaranteed labor organizations rights of access to employees at work, voluntary card-check recognition, a pre-defined bargaining unit, and a neutral employer during any organizing drives. The result of these rights, namely union certification in 32 days, contains important lessons for labor law reform. The case study also provides useful lessons for local unions pursuing innovative strategies for organizing.

Union Representation Elections and Labor Law Reform

On the surface, U.S. labor law pertaining to union representation is straightforward: Section 9(a) of the Wagner Act (1935) and the Taft-Hartley Act (1947) states:

Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining. . . .

In short, if a union has the support of a majority of the employees, it is entitled to be certified as the exclusive representative.(1) In practice, the designation or selection of a representative by a majority of the employees is anything but straightforward: unions and employees are generally required to seek representation through a National Labor Relations Board (NLRB) election process in which union organizers have minimal rights of access to employees while employers have rights of full participation. After nearly 60 years of evolving labor law doctrine, employers clearly have a legal advantage in the union election process (Block, Wolkinson, and Kuhn, 1988).

The Wagner Act provided that if there was a question pertaining to "the representation of employees," the NLRB "may take a secret ballot of employees, or utilize any other suitable method to ascertain such representatives" [[section]9(c), emphasis added]. Until Cudahy Packing Co., 13 NLRB 526 (1939), and Armour & Co., 13 NLRB 567 (1939), the NLRB used a variety of "other suitable methods" to determine majority status: authorization cards, petitions, union membership applications, employee affidavits of membership, strike participation, and employee testimony (Becker, 1993; Murphy, 1988). The Taft-Hartley Act explicitly made secret ballot elections of primary importance: section 9(c) was re-worded to provide that if the NLRB finds that "a question of representation exists, it shall direct an election by secret ballot." Moreover, in Linden Lumber Division, Summer & Co. v. NLRB, 419 U.S. 301 (1974), the Supreme Court ruled that an employer could still request that a secret ballot election be held, even if majority status as indicated by signed authorization cards is not in doubt. Thus, employees and unions currently can be, and generally are, forced to endure the lengthy NLRB election process.

The early doctrine regarding employer participation in organizing campaigns has similarly undergone major change. The Wagner Act does not make any provisions for including employers in the election process (Becker, 1993) and some early NLRB decisions forbade such participation (e.g., Wickwire Brothers, 16 NLRB 316 (1939)). However, in NLRB v. Virginia Electric & Power Company, 314 U.S. 469 (1941), the Supreme Court ruled that employer rights of free speech allowed them to participate in the organizing process as long as their participation was not coercive. Section 8(c) of the Taft-Hartley Act codified this approach by explicitly allowing employer participation in the election campaign process, as long as "such expression contains no threat of reprisal or force or promise of benefit."

An important topic within employer participation in the election process is the captive audience speech whereby an employer requires its employees to attend a meeting in which the employer discusses unionization. These captive audience speeches were ruled to be in violation of the Wagner Act before the passage of Taft-Hartley (Clark Brothers Co., Inc., 70 NLRB 802 (1946)). Although section 8(c) of Taft-Hartley was interpreted to allow captive audience speeches (Babcock & Wilcox, 77 NLRB 577 (1948)), Bonwit Teller, Inc., 96 NLRB 608 (1951), established a right of reply for unions. In other words, if an employer used a captive audience speech during an organizing drive, under the Bonwit Teller doctrine the employer must provide the union with an equal opportunity to address the employees. The Bonwit Teller doctrine was reversed in Livingston Shirt, 107 NLRB 400 (1953). Currently, absent a history of unfair labor practices (J.P. Stevens and Co., 245 NLRB 20 (1979)), unions do not have a right to respond to captive audience speeches.

In fact, NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 112 (1956), allows employers to (non-discriminatorily) bar nonemployee union organizers from its private property as long as "reasonable efforts by the union through other available channels of communication will enable it to reach the employees." Moreover, the NLRB nearly always determines that other channels exist - the main exceptions being isolated resort hotels (NLRB v. S&H Grossinger's Inc., 372 F.2d 26 (2nd Cir. 1967)), logging camps (NLRB v. Lake Superior Lumber Corp., 167 F.2d 147 (6th Cir. 1948)), mining camps (Alaska Barite Co., 197 NLRB 1023 (1972)), or petroleum facilities (North Star Drilling Co., 290 NLRB 826 (1988)). More recently, in Lechmere, Inc. v. NLRB, 112 U.S. 841 (1992), the Supreme Court allowed union organizers attempting to organize workers at a store in a shopping mall to be banned from the mall's privately-owned parking lot (Estlund, 1994). Thus, non-employee union organizers have minimal rights of …