Non-Legislative Labor Law Reform and Pre-Recognition Labor Neutrality Agreements: The Newest Civil Rights Movement

A central component of the overhauled union organizing strategy is greater reliance on the pre-recognition neutrality agreement negotiated with an employer whose employees a union is attempting to organize. This article examines these neutrality agreements. Part I locates the neutrality agreement within unions\u27 revitalized approach to organizing. This discussion shows that neutrality agreements can redress four disadvantages unions confront when organizing: employer intimidation, harmful delay, inadequate access to employees, and inability to secure a first contract. These disadvantages, widely understood as contributing significantly to the decline in union membership during the last quarter of the twentieth century, constitute the core of the unions\u27 complaint about the Taft-Hartley Act\u27s representation processes and the NLRB\u27s administration of it. Rectifying these impediments to effective organizing constitutes the nucleus of proposals for legislative labor law reform. What emerges from this discussion, therefore, is a clearer understanding that the neutrality agreement is not simply another innovative organizing tool. It is that. But it is also an elegant mechanism carefully fashioned to provide the labor movement non-legislative labor law reform. Sweeney calls this reform the civil rights issue of the 1990s\u27\u27 because it makes the right of self-organization more meaningful. Part II examines the important question of how unions manage to secure these agreements. Normally, unions trade for them. What a union can offer depends on many factors, such as whether some of the employer\u27s operations already are organized, whether an employer needs to resolve certain legal conflicts with a union, and whether the employer is vulnerable to the vagaries of governmental regulation and in need of the union\u27s assistance in winning beneficial regulatory rulings. One of the most important ways a union secures a neutrality agreement is when a state or local government requires one from a private sector employer with whom it does business. In addition, unions sometimes are able to leverage their own financial power by investing union funds only with corporations that agree to enter into neutrality agreements. Part III catalogs the most important legal issues neutrality agreements are likely to generate, locates the primary points of disagreement within each issue, and clarifies the likely considerations on which the outcomes will depend in neutrality agreement litigation. Neutrality agreements are likely to create both statutory and constitutional litigation. The statutory issues will arise under the Taft-Hartley Act. They will involve the negotiation and enforcement of neutrality agreements as well as their effect on third parties. The constitutional controversies will arise because neutrality agreements can create labor preemption concerns. Preemption issues will most likely arise-when local government requires a neutrality agreement from a private developer as a condition of being provided access to public land or public financing