One of the most effective means of organizing a new group of employees is to enter into a “labor peace” agreement with their employer. This form of agreement — also called a neutrality agreement — is an arrangement by which an employer voluntarily agrees to concede some of the rights they have under federal labor law to oppose employee efforts to organize and seek union representation. These agreements are fully enforceable contracts under Section 301 of the National Labor Relations Act.

The thrust of a labor peace agreement is that employers agree to remain neutral during a union organizing campaign. They further agree to grant union organizers access to the employer’s premises to engage in organizing activity, so long as there is no disruption of the employer’s operations.

LABOR PEACE IS GOOD FOR WORKERS

Typical language in a labor peace agreement is below. Note that this list is long — and that should tell you something. This list gives you a sense of all of the anti-union “rights” that employers already enjoy under current labor law, thanks to decades of weakening. These are the rights that employers voluntarily agree to give up under labor peace:

• Employers agree to maintain a neutral position regarding the unionization of covered employees.
• Employers agree that they will not, individually, or collectively, take any action or make any statement that directly states or indirectly implies its position as to unionization in general or preference for or opposition to any particular union, including the union.
• Employers further agree not to engage in captive audience meetings, one-on-one meetings, or polling or questioning of employees regarding their decision to join or support a union and agree not to engage in delay tactics otherwise engage in unfair labor practices for the purposes of discouraging union representation.
• Employers will not disrupt efforts by the union to communicate with and attempt to organize and represent employees at the premises.
• Employers agree to provide union staff with physical access to employees at the premises, and further agree to provide such access before, during and after the completion of the renovation.
• Employers may, upon notice to the union, limit union access to covered employees to non-working times in non-public areas of the premises and/or during such other periods and locations as the parties may mutually agree in writing.
• Employers further agree to provide the union access to, and the ability to post notices agreed upon by the parties upon, electronic bulletin boards, web sites, and/or similar media which provide for the posting of notices to employees.
• Employers agree to post a written notice, agreed upon by the parties, at all places where such covered employers typically place notices to employees. The notice shall advise employees that they have freedom of association and a choice to join or not join a union, that the employer is neutral with regard to whether employees choose union representation and that there will be no retaliation against individuals if they choose to join or support the union
• Finally, employers will inform all managerial employees and supervisors of their obligations under this labor peace agreement and will take prompt action to stop and correct any violations of this agreement.

As you can see, the provisions in a labor peace agreement severely limit an employer’s ability to utilize pernicious tactics that inhibit a union’s ability to form new bargaining units. These tactics include captive audience meetings with employees during which an employer will denounce union organizations, hiring an anti-union consultant to prevent organizing, delaying representation proceedings, and taking an anti-union stance amongst their employees.

It should be highlighted that employer neutrality requires them to take no position with respect to the benefits or disadvantages of their employees joining a union. Thus, employers cannot discourage — or even encourage — employees to join a union. To do so would transgress the National Labor Relations Act.

Finally, an employer’s violation of any of these contractual requirements can result in a breach of contract action or arbitration proceeding.

VOLUNTARY RECOGNITION

Some labor peace agreements go even further and provide for voluntary recognition if the union demonstrates majority support by producing union authorization cards. (This is also called a card check.) A card check is a faster and more efficient route for workers to achieve union recognition. The labor peace agreement thus becomes a conduit through which collective bargaining ultimately may be achieved. Labor peace agreements that permit voluntary recognition may use the following language. (I’m reprinting it below because it may be of help to union organizers.)

SAMPLE CARD CHECK LANGUAGE

1. When a majority of the employees of any Covered Employer support the Union, the Covered Employer shall grant voluntary recognition of the Union upon a check of union authorization cards for majority status, to be conducted by a neutral mediator designated by the Federal Mediation and Conciliation Service (“FMCS mediator”). Card check shall be conducted in accordance with the FMCS Card Check Agreement.
2. The Union shall initiate the card check process by notifying the Covered Employer in writing via mail, email, or any other means to which the Parties agree, that it has majority status (the “Union Majority Notice”), with a copy to FMCS, along with an executed FMCS Card Check Agreement and a copy of this labor peace agreement. Upon receipt of such Union Majority Notice, the Covered Employer shall immediately furnish to FMCS a list containing the names and job classifications of each of the Covered Employees employed as of the date of the Union’s Majority Notice, as well as an executed FMCS Card Check Agreement.

WHY SHOULD EMPLOYERS AGREE?

So why would employers voluntarily choose to enter into a labor peace agreement with a union? It would be naïve to assume that moral compulsion would be their motivation. But one answer is that employers may be concerned about a damaging public relations campaign prompted by workers and their union. Employers seeking public approval may select the labor peace agreement route rather than suffer damaging bad publicity. Entering into a labor peace agreement certainly places the employer in a kinder light. Further there is no guarantee that a neutrality agreement will achieve voluntary recognition or that voluntary recognition will produce a collective bargaining agreement. There may not be great employer “risk” to this choice.

However, more commonly, it is statutory requirements that may compel an employer to secure a labor peace agreement. For instance, a New York City law (Section 6-146 NYC Administrative Code) enacted on Dec. 24, 2021 requires that certain employers enter into labor peace agreements with unions seeking to represent their covered employees. Some of these employers include: retail and food service establishments that are recipients of $500,000 or more in city financial assistance; establishments that receive city funding for developing or improving their property; and certain contractors (for instance those who seek a license to sell marijuana). However, this law is currently subject to a challenge in federal court since it allegedly is pre-empted by the National Labor Relations Act.

There’s another statutory example — and this is quite relevant to Local 802, Section 1346 of the New York State Gaming Law requires all parties seeking a license to operate a casino in New York State to enter into a labor peace agreement. As a result of this law, Local 802 won a labor peace agreement* with SL Green Realty Group and Caesars Entertainment, Inc. for their proposed Times Square Casino project. Whether or not these parties receive the license will likely be determined in December of this year. If they are awarded a license, Local 802’s labor peace agreement will be instrumental in achieving voluntary recognition and the ability to negotiate on behalf of the musicians who will be employed there.

Harvey S. Mars Esq. is the in-house counsel for Local 802. Contact him at hmars@local802afm.org.

*See our labor peace coverage in the January 2023 issue of Allegro: