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Union representation elections and labor law reform: lessons from the Minneapolis Hilton Authors: John W. Budd and Paul K. Heinz Date: Winter 1996 From: Labor Studies Journal(Vol. 20, Issue 4) Publisher: Transaction Publishers, Inc. Document Type: Article Length: 6,864 words

Abstract: As part of the development package to build a major hotel with significant public funding in Minneapolis, Minnesota, labor organizations were granted rights to access employees at work and to seek voluntary recognition based on signed authorization cards and the management company pledged to remain neutral in any organizing drive. Thirty-two days after the hotel's opening, the employees achieved union representation. This case contains important lessons for labor law reform and for local unions seeking innovative organizing strategies.

Full Text: 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 access to employees. In lieu of access to employees at work, Excelsior Underwear, Inc., 156 NLRB 1236 (1966) grants unions a list of names and addresses of bargaining unit employees after an election is scheduled.

Given the potential contradiction between employees' rights to organize unions and the above doctrines, there have been numerous proposals for reforming these aspects of the union certification process.(2) In terms being able to force unions and employees to go through the union election process (Linden Lumber Division), card-check recognition has been advanced as desirable replacement for the secret ballot election (Gould, 1993; Murphy, 1988). In a system with card-check recognition, if a union is able to collect signed authorization cards from a specified percentage of the bargaining unit, it would be certified without a secret ballot election - as often occurred before 1939. In fact, this type of recognition system is widely used in Canada: most of the provinces plus the federal government certify unions on the basis of signed authorization cards accompanied by a nominal membership fee (Weiler, 1983; Murphy, 1988). In Ontario, for example, the required majority is 55 percent and if a union collects less than 55 percent, a secret ballot election will be held. Alternatively, Weiler (1983, 1990) proposes instant elections: if a union collects 55 or 60 percent (for example) signed authorization cards accompanied by a nominal membership fee, the NLRB would have to conduct a secret ballot election within 5 days. This system is also utilized in Canada in Nova Scotia (Weiler, 1983; Murphy, 1988). The Commission on the Future of Worker-Management Relations (a.k.a. the Dunlop Commission) (1994) argues for NLRB elections within two weeks.

With respect to employer participation in the election campaign, it has been argued that the employer should be removed from the campaign process (Becker, 1993; also see Weiler, 1983). More specifically, Becker (1993) advocates a system in which employers are not a formal party to NLRB hearings and have no right to challenge voter eligibility, captive audience speeches are illegal, elections are held on neutral ground, and employers must give unions the opportunity to use whatever campaign methods the employer chooses to utilize. Craver (1993) and Bronfenbrenner (1994) recommend a return to the Bonwit Teller doctrine granting unions equal opportunity to respond to employer captive audience speeches. Estreicher (1993) advocates providing unions with the opportunity to give a captive audience speech before an NLRB election. Bierman (1985) proposes institutionalizing a specified number of election debates on working premises during work hours as a replacement for captive audience speeches. Alternatively, it has been argued that Excelsior lists should be more readily available: for example, on demand at any time (White, 1991) or after a union collects 20-30 percent signed authorization cards (Craver, 1993; Estreicher, 1993).

Finally, with respect to nonemployee union organizer access more generally, Estlund (1994), Korn (1984), and Klare (1988) advocate greater union access to employees at work. More specifically, the rulings of Babcock & Wilcox and Lechmere that place the burden on the union to show that no other channel of communications exists should be replaced with greater access for union organizers with the burden of proof on the employer to show that such access interferes with the business (as is the standard set forth in Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945) for employees discussing unionization during nonworking times). The Commission on the Future of Worker-Management Relations (1994, p. 23) is of the view that Lechmere should be reversed by Congress and that the NLRB revise its "rules relating to access."

Many aspects of these reform proposals have been introduced in Congress. The Labor Law Reform Act of 1977-78 contained provisions to require elections to be held within a specified number of days (depending on the complexity of the case) and to provide unions with equal access to employees if the employer engages in campaigning (Townley, 1986; Rosen, 1979). The House of Representatives version of the bill also provided for the opportunity for the employer to address employees at a local union hall (Townley, 1986). In the Senate version of the bill, unions would have access to employees at work only after showing support of the employees and only after an employer captive audience speech (Townley, 1986). While the Act passed the House of Representatives in October 1977, a filibuster prevented the Act from coming to a vote in the Senate in the summer of 1978.

More recently, Senator Paul Simon (D-IL) introduced eight bills in Congress in May 1995 ranging from contract debarment for labor law violators to first contract arbitration. Most relevant for the issues in this paper are bills S. 777 and S. 778 (also introduced in 1993 as S. 1532 and S. 1529). Bill S. 777, the Labor Organizations Equal Presentation Time Act of 1995, would add subsections 8(c)(2) and 8(c)(3) to the NLRA. Subsection 8(c)(2) would require that if an employer addressed employees at work, then a union would be allowed an equal opportunity to provide information to the employees "without loss of time or pay." This would be a return to the Bonwit Teller doctrine in which unions have a right to reply to captive audience speeches. Subsection 8(c)(3) would give labor organizations access to employer bulletin boards, mailboxes, and "other communication media" as well as the "right to use the employer's facilities for the purpose of meetings with respect to the exercise of the rights guaranteed by this Act." Bill S. 778, the Labor Relations Representative Amendment Act of 1995, would add subsection 9(f) to the National Labor Relations Act (NLRA) requiring that an NLRB certification election be held within 30 days if a union produced signed cards from 60 percent of the bargaining unit. This expedited election would not be allowed to be delayed for any reason. Representative Bernard Sander (I-VT) also introduced H.R. 1355, the Workplace Democracy Act of 1995, which would, inter alia, replace representation elections with card- check certification.

While all of these reform proposals, academic and Congressional, are important, a major gap in knowledge still persists: the actual effects of such reforms in the United States. Many reforms are aimed at reducing or counteracting employer legal, and especially illegal, certification election involvement. As is well-known, the actual effects of such participation are controversial (LaLonde and Meltzer, 1991; Weiler, 1991; Lawler, 1990; Cooper, 1984; Dickens, 1983; Getman, Goldberg, and Herman, 1976). Moreover, even if employer captive audience speeches, for example, reduce the probability of union certification (Bronfenbrenner, 1994), forbidding captive audience speeches (as some advocate) may have very different effects than providing unions with rights to respond (as others advocate). The higher union density rates both in the U.S. public sector and in Canada relative to the U.S. private sector potentially indicate strong effects of broad-based reform (e.g., see many of the chapters in Friedman, Hurd, Oswald, and Seeber, 1994). On the other hand, there are so many differences between these sectors that the actual effects of such reforms in the U.S. private sector are still unclear, especially if one considers a single area of reform, e.g., certification elections, in isolation. The following case study of the Minneapolis Hilton does not totally solve this knowledge gap, but it does provide a stark illustration of the potential possibilities of even isolated reform.

Lessons from the Minneapolis Hilton(3)

With the impending construction of a new convention center, Minneapolis, Minnesota lacked a major convention-center hotel. In 1985, the Minneapolis City Council chose Hilton to establish a new, major hotel in downtown Minneapolis to serve as the focal convention-center hotel. Ultimately, in a financing package approved in 1989, Minneapolis would spend $40 million to buy and clear the land for the hotel and build a new parking garage and loan another $44.5 million to the hotel's developer, 717 HB Minneapolis Inc., to help construct the $93 million hotel. Exhibit 1 presents an overall chronology of key events in the development and union organization of this convention-center hotel, the Minneapolis Hilton and Towers.

In 1988, the Minneapolis Community Development Agency (MCDA) and its legal consultants set out to devise a non-negotiable section pertaining to union organizing to be included in the development and lease agreements with the hotel's developer. Local 17 of the Hotel Employees and Restaurant Employees International Union (hereafter Local 17) assisted the development of the lease language by providing information on organizing procedures while the MCDA determined to what extent certain procedures could be required. The MCDA was unable legally to take a pro-union stance, but it was able to require that certain procedural steps be fulfilled by the hotel's developer and owners.

The result of the efforts of Local 17 and the MCDA is Section 4.10 of the lease between the MCDA and 717 HB Minneapolis Inc. signed in October 1989. The text of Section 4.10 is reproduced in Exhibit 2. Section 4.10 of the lease agreement and its results are the focus of this paper. This section guarantees significant organizing rights to the hotel employees and any union wishing to organize the Hilton employees - rights not provided by Federal labor legislation. More specifically, as shown in Exhibit 2, any labor organization is entitled to "a complete and accurate list of the names and addresses" of bargaining unit employees [[section] 4.10(a)(i)], "timely and reasonable access to the hotel" for campaigning purposes [[section] 4.10(a)(iv)], "adequate space" for accessing the employees [[section] 4.10(a)(v)], a pre-defined bargaining unit [[section] 4.10(d)], and voluntary recognition via a card- check election [[section] 4.10(e)]. Moreover, the hotel must allow employees "reasonable access" during nonworking time to the space provided to the labor organization for disseminating information [[section] 4.10(c)] and the hotel must remain neutral in any organizing drive [[section] 4.10(b)].

In short, Section 4.10 is a striking set of rights that effectively repeal, for this lone bargaining unit, decades of Congressional, NLRB, and court decisions regarding union organizing. Section 8(c) of the Taft-Hartley Act, Livingston Shirt, Linden Lumber Division, NLRB v. Babcock & Wilcox Co., Lechmere, and Excelsior are all superseded by a developer agreeing to abide by Section 4.10 of the lease agreement.

When the Hilton opened its doors on November 1, 1992, joint union campaigns by Local 17 and Teamsters Local 638 began. Due to the provisions in the lease agreement, union organizers were able to staff a table in the hotel's employee cafeteria and have contact with and provide information to employees on a daily basis. To prevent any legitimate questions of majority, the unions decided to try to collect signed authorization cards from 80 percent of the bargaining unit. Not only would this give them a clear majority to gain recognition, but also a continued majority as the Hilton expanded its workforce. On December 2, 1992, the 80 percent goal was attained and the unions were certified by the Minnesota Bureau of Mediation Services after a simple check of the signed authorization cards.(4)

In sum, Locals 17 and 638 and employees at the Minneapolis Hilton and Towers achieved certification in 32 days. In contrast to the average length of the traditional NLRB certification ordeal, 32 days to achieve certification is remarkable. The average length of time between filing a petition with the NLRB for an election and conducting the actual election is 2-3 months (Bronfenbrenner, 1994; Weiler, 1983). However, this does not include post-election challenges which can significantly increase the delay to certification. Add

in the average pre-petition card solicitation effort of 14 weeks (Cooper, 1984) and a single certification effort (with less than a 50 percent chance of succeeding - and even less if one defines success by a signed first contract) may easily take nine months.

It is our contention that Section 4.10 facilitated employee choice through three avenues that provide insightful lessons into the potential effectiveness of various labor law reform proposals. First, the lease agreement explicitly specified that the hotel was to remain neutral in any organizing campaign [[section] 4.10(b)] and not discriminate on the basis of union support [[section] 4.10(f)]. Of course, this latter provision is already guaranteed by section 8(a)(3) of the NLRA, but its inclusion in the lease agreement provides an additional penalty (the breaking of the lease) if it is violated.

Second, union access to employees was guaranteed through three provisions in the lease agreement: guaranteeing unions the names and addresses of the employees [[section] 4.10(a)(i)] and space in the hotel for the union to access the employees [[section] 4.10(a)(iv) and (v)], and guaranteeing employees the right to access such space [[section] 4.10(c)]. This access is a drastic change from current doctrine (see Lechmere), but is clearly a more effective method of providing for informed employee choice. Note that this type of access provision avoids the criticisms of returning to the Bonwit Teller doctrine in that employees are not disrupted during working periods. Locals 17 and 638 simply staffed a table in the employee cafeteria and had access to employees during non- working time in a nonwork area.

Moreover, the access provision in the lease agreement is superior to a return to the Bonwit Teller doctrine in that the lease gives unions the ability to respond to informal employer campaigning such as one-on-one discussions by supervisors. This type of (potentially crucial) campaigning is too subtle to trigger a formal response mechanism such as in the Bonwit Teller doctrine. Finally, even though the lease agreement provides for names and addresses, providing access to employees at the hotel renders the names and addresses to secondary importance which alleviates important questions of violations of employee privacy at home (Bierman, 1985). It is our contention that these access at work provisions were instrumental in allowing the employees to exercise their rights to choose union representation in an efficient manner.

Third, the scope for employer resistance was drastically reduced. Consistent with Weiler's (1983) arguments for instant elections, the voluntary certification via a card-check replaced a typical extended election campaign in which typical employers employ numerous legal and illegal tactics to discourage unionization and to delay the process.(5) Recall that the typical election occurs 2-3 months after filing a petition with the NLRB. During these months the employer might actively campaign against the union via captive audience speeches, individual meetings, and flyer distributions (and potentially more threatening tactics). Even the simple employer delay tactic of challenging the composition of the bargaining unit is prevented by the lease agreement which specifies the bargaining unit in section 4.10(d).

We believe the fact that the employees at the Minneapolis Hilton and Towers were able to secure union certification within 32 days starkly illustrates the potential effects of enacting such reforms at the national level. However, as is typically the case with all types of research methodologies, we cannot prove that the lease agreement facilitated union representation. It may have been the case that the employees would have easily secured union representation without the lease agreement. However, comparisons with not only the aggregate national experience, but also with other experiences of Local 17 suggest that the lease provisions were quite significant.

To wit, Local 17 has spent nearly 15 years (intermittently) trying to organize the Hyatt in Minneapolis using the standard NLRB certification process. Local 17's organizers build up support using leaflets and letters, management responds with captive audience speeches and informal pressure, an NLRB election is eventually held (usually), Local 17 fails to win a majority, and the process repeats. In other words, at the Hilton, Locals 17 and 638 were able to do complete in 32 days a process generally denominated in months or years. An additional set of events further bolsters the apparent effectiveness of the lease agreement: negotiating a first contract.

Epilogue: Negotiating a Contract

On December 2, 1992, Locals 17 and 638 were certified as the exclusive bargaining agents of the Hilton employees. The hotel and its developer, 717 HB Minneapolis Inc., had adhered to the organizing conditions specified in the lease agreement, but as soon as its obligations were fulfilled, traditional resistance and antagonism followed. On December 3, the locals' organizers were not allowed back into the Hilton. Traditional, hard-lined bargaining over a first contract ensued. The Hilton refused to accept the same contract that Local 17 had with other major hotels in Minneapolis and eventually suspended negotiations indefinitely.

This traditional adversarial behavior by the Hilton reinforces our contention that the provisions of access, neutrality, and card-check certification were instrumental in allowing the Hilton employees to exercise their rights to form a union. This adversarial behavior suggests that Hilton management would likely have undertaken a traditional election campaign or some other type of union avoidance strategy. This is not to say that Locals 17 and 638 would not have ultimately won recognition, but the likelihood would have been lower, and the process probably would not have been as efficient or as respectful of employee rights.

In fact, it took six months to reach an agreement. On June 18, 1993, bargaining unit workers at the Minneapolis Hilton and Towers ratified a four-year contract by a vote of 187-9. In addition to gaining substantial wage increases throughout the life the contract for all employees, the unions negotiated company-paid health care benefits, a retirement plan with contributions made entirely by the company, company-paid dental benefits, life insurance and weekly disability pay.

The experiences of Locals 17 and 638 at another Minneapolis hotel further reinforce the lessons of the Minneapolis Hilton and Towers. The Radisson Plaza VII, like the Minneapolis Hilton and Towers, was initiated as a convention center-oriented hotel, but the project was eventually downsized and turned into a mixed-usage hotel. Nonetheless, the city still pursued union neutrality assurances because it believed that a unionized Radisson would help set the standard for the next proposed convention center-oriented hotel (which turned out to be the Hilton) and for other hotels in the area.

The Radisson reopened in March of 1987 after closing in 1981. The same unions were involved in organizing this hotel, and in July of 1988, they submitted a majority of signed authorization cards. The Radisson, like the Hilton, agreed to voluntarily recognize and bargain with the unions based on a card check. The Radisson officially recognized the unions, and on July 29, 1988, the parties began negotiation.

Since then, however, the bargaining process has been a series of unsuccessful negotiations, unfair labor practice charges and appeals. In Radisson Plaza Minneapolis and Hotel Employees and Restaurant Employees International Union, Local 17, 307 NLRB 10 (1992), the NLRB ruled that the Radisson had, inter alia, violated section 8(a)(5) of the NLRA by engaging in surface bargaining. The U.S. Court of Appeals upheld the NLRB's decision in 1993 (Radisson Plaza Minneapolis v. NLRB, 987 F.2d 1376 (1993)). In the ruling the court stated, "Radisson treated the union as irrelevant with respect to issues of vital significance, including wage and schedule changes, and then refused to provide the unions with basic information concerning unit employees." Thirteen bargaining sessions took place in 1993. The Radisson's last offer involved pay cuts for 113 of the 138 workers represented by Local 17. In January 1994, the NLRB's regional office in Minneapolis recommended that the Radisson be found in contempt of eight counts of the court's 1993 order.

The case of the Radisson further illustrates the potential effectiveness of the extension of union access and card check certification. Given that the Radisson's behavior after certification has been so resistant as to merit recommendation of contempt charges, it seems logical to infer that strong union avoidance tactics would have been employed during an organizing drive in which employees and unions did not have voluntary recognition rights similar to those provided for in Section 4.10 of the Hilton lease agreement. The fact that the unions were able to obtain representation in spite of this probable anti-union stance strengthens the argument that this type of union representation election reform would be effective.

Finally, these cases reinforce why reform should not be limited to the union organization stage. Though the City of Minneapolis expected the Hilton and the Radisson to bargain in good faith, it is apparent that assurances to remain neutral in an organizing campaign do not necessarily extend to the first contract negotiations arena. While these cases illustrate how rights of access and simplified certification procedures can aid employee rights in certification, these rights are ineffective in obtaining a signed first contract. Thus, these reforms are very important, but are only a first step. Reforms to facilitate obtaining a first contract are also necessary for workers' rights to be truly protected.

Conclusions

There have been numerous proposals for reforming many aspects of U.S. labor and employment law. However, the actual effects of such proposals, while widely speculated upon, are not known. The experiences of Locals 17 and 638 in organizing the Minneapolis Hilton and Towers illustrate the potential power of several reforms of the union certification process. By providing labor organizations with access to employees at work during nonwork time, by obtaining the employer's pledge of neutrality, and by avoiding the lengthy NLRB election process, the lease agreement at the Hilton appears to have allowed the employees to obtain union representation in 32 days. While any link between the lease agreement and the organizing outcome cannot be proven, comparisons with typical organizing campaigns (lasting months or even years) and with Local 17's attempts at organizing another major Minneapolis hotel, the Hyatt, suggest that these straightforward reforms appear quite effective. The Hilton's and Radisson's resistant behavior in negotiating contracts further reinforce the likelihood of a typical organizing campaign in the absence of these additional rights. Thus, in illustrating the potential effectiveness of such rights, the Minneapolis Hilton experience contains important lessons for labor law reform proposals.

On the other hand, the success of the campaign should not be attributed exclusively to the terms of the lease agreement. It is unlikely that Section 4.10 of the lease agreement created a demand for unionism where none would have existed otherwise. It is also unlikely that the local unions would have been successful if they pursued organizing strategies unrelated to the conditions and preferences of the employees. However, the rights specified in the lease facilitated employee choice about whether or not to choose union representation. And this is exactly the point of labor law reform: to allow workers to exercise their rights guaranteed in section 7 of the Wagner Act.(6)

In closing, we emphasize two important recommendations for reforming the union certification process. First, the length of the campaign for recognition should be drastically shortened. The card check method contained in Section 4.10 of the lease agreement accomplishes this goal. However, the card check method is often criticized for being a questionable representation of workers' preferences and for being unconvincing to employers (see Weiler, 1983). Since the main benefit of the card-check recognition provision in the Minneapolis Hilton case appears to have been the prevention of a lengthy election campaign, an instant election (Weiler, 1983) or instant ballot (Murphy, 1988) in which a secret ballot election is held within five days of a union filing a certification petition would provide the same benefits. Second, access to employees by union organizers needs to be increased. The provisions in the lease agreement with the Minneapolis Hilton provide a good model for accomplishing this goal: labor organizations are guaranteed access to employees during nonworking time in a nonwork location. This is less disruptive and less costly to the employer than granting unions a right to reply to captive audience speeches and does not invade employee privacy as do Excelsior lists.

Finally, absent reform of the certification process, Section 4.10 of the lease agreement provides a good model for local unions to follow in situations where it is feasible to get such language included in a similar document. However, only with national reform of the certification process will employees be able to exercise their 60-year-old rights "to self-organization, to form, join, or assist labor organizations, [and] to bargain collectively through representatives of their own choosing" (The Wagner Act, [section]7).

1. For overviews of the organizing process, see Gagala (1983), Getman (1986), and Schlossberg and Scott (1991).

2. Other dimensions of the union certification process have also received a lot of attention, especially the lack of punitive damages for discriminatory actions against union supporters (section 8(a)(3) unfair labor practices), but these other dimensions are not as relevant for the Minneapolis Hilton case which is the focus of this paper. The interested reader is referred to Friedman, Hurd, Oswald, and

Seeber (1994), Becker (1993), Gould (1993), and Weiler (1983, 1990).

3. The descriptive material in this section and the subsequent section is based on interviews with Martin Goff and Dan Kuschke of Local 17 and Phil Handy of the MCDA. Additional accounts can be found in the Star Tribune (Minneapolis, MN) (October 31, 1992, May 15, 1993, June 20, 1993, January 25, 1994) and the Catering Industry Employee (Washington, DC) (September/October, 1993). Interpretations of the events are those of the authors.

4. Locals 17 and 638 jointly represent the single bargaining unit at the Hilton with front desk and shipping employees belonging to Local 638 and food, bar, and housekeeping employees belonging to Local 17.

5. The UAW's experience organizing General Motors' southern plants further illustrates the effectiveness of such provisions. After six years of unsuccessful organizing attempts by the UAW within the traditional NLRB framework, in 1982 the UAW-GM contract contained a provision to recognize the UAW at the nonunion southern plants based on a majority of signed authorization cards. Three of the four plants were then certified within six months (Labor Relations Reference Manual (Washington, DC: Bureau of National Affairs), September 13, 1982.

6. Although going one step further, it merits remembering that section 1 of the Wagner Act declares that "encouraging the practice and procedure of collective bargaining" is the policy of the United States (emphasis added).

References

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EXHIBIT 1 Chronology of the Minneapolis Hilton and Towers Project

1985

The Minneapolis City Council chooses Hilton to establish a new 800 room hotel to be the primary convention center hotel.

1988

With input from local unions, the Minneapolis Community Development Agency and its legal consultants develop a legal section pertaining to union organizing rights to be included in the development and lease agreements between the city and the hotel's developer.

1989

February

The Minneapolis City Council approves 717 HB Minneapolis Inc. as the hotel's developer and approves a preliminary financial plan.

July

The Minneapolis City Council approves the final financial plan which includes $40 million to acquire and clear the land for the hotel and build an underground parking garage. The plan also includes a $44.5 million loan to 717 HB Minneapolis Inc. to help build the $93 million hotel.

October

The development agreement is completed.

1992

November 1

The Minneapolis Hilton and Towers opens in downtown Minneapolis.

November

An unimpeded organizational campaign is conducted by the Hotel Employees and Restaurant Employees Local 17 and Teamsters Local 638.

December 2

Locals 17 and 638 submit signed authorization cards from 80 percent of the bargaining unit and are certified as the representatives of the Hilton employees by the Minnesota Bureau of Mediation Services.

1993

January

Negotiations begin for a collective bargaining agreement between Locals 17 and 638 and the Minneapolis Hilton and Towers.

May 17

Locals 17 and 638 announce a June 12 deadline for a negotiated contract.

June 12

A tentative agreement is reached.

June 18

Locals 17 and 638 Hilton employees ratify the contract 187-9.

EXHIBIT 2 Section 4.10 of the Lease between the Minneapolis Community Development Agency and 717 HB Minneapolis Inc.

4.10 Labor.

(a) To accommodate a free and informed decision of the employees of the hotel operated in the Project respecting joining or representation by a labor organization, Tenant and Tenant's hotel management company shall, upon request by any labor organization:

(i) provide such organization with a complete and accurate list of the names and addresses of the employees of the hotel working in the jobs set forth in subsection (d) of this Section;

(ii) immediately comply with such organization's request under clause (i) even if the hotel that the employees will work in has not yet actually opened for business. The Tenant and Tenant's hotel management company shall not withhold names pending the actual opening for business of any or all of the Project;

(iii) allow such organization to refer applicants for employment at the hotel consistent with the Minneapolis Affirmative Action Program;

(iv) at such time as the hotel begins seeking, accepting, or interviewing applicants for employment, provide to such organization's members and representatives timely and reasonable access to the hotel for the purpose of providing employees with information about the labor organization; and

(v) provide adequate space in the Improvements to conduct the activities in clause (iv).

(b) Tenant and Tenant's hotel management company shall at all times maintain neutrality with respect to any organizing campaign or to any decision by the hotel employees whether to join or to be represented by any labor organization.

(c) Tenant and Tenant's hotel management company shall allow employees of the hotel during non-working periods reasonable access to the facilities and information available via clauses (iv) and (v) of subsection (a) of this Section.

(d) Tenant and Tenant's hotel management company shall agree that the following bargaining unit is appropriate for purposes of collective bargaining: all employees of the hotel including food, steward, beverage, service, housekeeping, hotel maintenance, and front office departments, and including the classifications of waiter, waitress, busperson, cook, bartender, room service, housekeeper, valet parking, limousine services, front desk, audit, doormen, banquet setup, engineers, laundry, or such other classifications as may fall within the foregoing departments, but excluding all clerical employees, supervisors as defined by the National Labor Relations Act, sales employees, managerial employees, guards and professional employees.

(e) Tenant and Tenant's hotel management company shall agree to voluntary recognition, based upon a card check, of one or more labor organizations demonstrating that it or they represent a majority of the employees in the bargaining unit set forth in subsection (d) of this Section. Said card check shall be conducted by the Minnesota Bureau of Mediation Services.

(f) Tenant further agrees that any interest demonstrated by employees of the hotel in joining a labor organization or membership with a labor organization shall not constitute grounds for discriminatory or disparate treatment nor adversely impact a potential employee's ability to be hired.

John W. Budd is an assistant professor of industrial relations at the University of Minnesota. Paul K. Heinz received a Master of Arts degree in industrial relations from the University of Minnesota. The authors are grateful to Martin Goff and Dan Kuschke of Local 17 and to Phil Handy of the MCDA for their aid in this project and to Chuck Davis, Ken Gagala, and Morrie Kleiner for helpful comments. All views expressed herein, however, are solely those of the authors.

Copyright: COPYRIGHT 1996 Transaction Publishers, Inc. http://www.transactionpub.com/cgi-bin/transactionpublishers.storefront Source Citation (MLA 9th Edition)

Budd, John W., and Paul K. Heinz. "Union representation elections and labor law reform: lessons from the Minneapolis Hilton." Labor Studies Journal, vol. 20, no. 4, winter 1996, pp. 3+. Gale OneFile: Business, link.gale.com/apps/doc/A18742647/ITBC?u=oran95108&sid=bookmark-ITBC&xid=70165d8b. Accessed 25 Oct. 2021.

Gale Document Number: GALE|A18742647