The Wall Street Journal’s editorial page argued last week that the Supreme Court should hold in favor of Mulhall and declare organizing agreements “thing[s] of value” that employers may not “pay, lend, or deliver” to unions. In the course of making this argument, the Journal makes a significant legal error. It’s worth pointing this out because the error is a common one and there’s a risk of the Journal’s mistake becoming a trope in the Mulhall debate.
Here’s what the Journal says: “Since the 1990s, unions have turned more frequently to neutrality agreements that don’t require unions to persuade a majority of workers who are increasingly skeptical of union benefits.” The mistake, which will be clear to people familiar with this area of law, is this: under a neutrality agreement – indeed, under any kind of organizing agreement – the union always maintains the legal obligation to “persuade a majority of workers” to support it. Only by securing majority employee support, and verifying that support, can a union claim the right to represent and bargain on behalf of employees.
The law is perfectly clear on this subject, and the Journal’s editorial actually confirms the point obliquely. As the Journal notes, unions win about 78% of campaigns conducted under organizing agreements (at least organizing agreements that require card check). If organizing agreements dispensed with the requirement that “unions persuade a majority of workers,” that win rate would be 100%. It’s not 100% because the burden of persuasion always remains with the union.
If an employer ever agreed to recognize a union that had not persuaded a majority of employees to support it, the recognition would be flatly illegal under § 8(a)(2). Neutrality agreements restrict what employers can say in opposition to a union drive. But such agreements don’t, and can’t, waive the requirement that unions convince a majority of employees that unionization makes sense.