Doorey David J Neutrality Agreements Bar

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Citation: 13 Canadian Lab. & Emp. L.J. 41 2006-2007
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Neutrality Agreements:
Bargaining for Representation Rights
in the Shadow of the State
DavidJ Doorey*
This paper examines the rise ol "neutrality agreements" as a

mechanismJor unions to obtain recognitionIrom an employer outside o
statutory certificationprocedures,particularlythose based on a manda-
tory representation election. Although neutraliy agreements originated
in the US. as a response to the long delays, one-sided communication
rules and weak remedies Jbr unfair labourpractices associatedwith the
NLRA model, Canadian unions have also begun to use them - a trend
which the author expects to continue, given the move in severaljurisdic-
tions Irom card-check certification to mandatory elections. Particular
emphasis is placed on neutrality agreements as a form ol "decentred
regulation," i.e. regulatory techniques whereby the state utilizes indirect
methods to achieve desiredpolicy outcomes, by influencing the condi-
tions in which standards and practices are privately negotiated by non-
state actors. The author contends that, in contrast to British law, US.
and Canadian law does not actively promote the voluntary ordering o
union recognition issues. Nevertheless, he notes, there are strong argu-
ments in favour ol state supportfor neutrality agreements, and it would
be open to the state to use its regulatory authority to encourage such
agreements as a means ol advancing labourpolicy objectives. To illus-
trate this point, the authorprovides a detailed analysis ol how the law in
Ontario influences neutraliy agreements atfour key stages: during bar-
gaining, in the determination of the content ol the neutraliy agreement,-
in the implementation ol the agreement, and in its enjorcement.
* Assistant Professor, Atkinson School of Administrative Studies, York University.

My thanks to the following people, who provided me with helpful comments
and suggestions on parts of this paper: Bernie Adell, Harry Arthurs, Cathy
Braker, Paul Davies, Matthew Finkin, Judy Fudge, Brad James, Frank Luce,
Hemi Metic, Bob Simpson, Sara Slnn, Paula Turtle, and Bruce Pierce. The
author is responsible for the content and opinions expressed.
42 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [13 C.L.E.L.J.]
1. INTRODUCTION
Union organizers have obtained what they say is majority support in one of
the biggest unionisation drives in the South in decades, collecting signatures
of thousands of Houston janitors ....An agreement signed inAugust calls
for the American Arbitration Association to inspect cards and certify the union
has received majority support. The janitorial companies have promised to rec-
ognize the union once that happens ....Union leaders said the cleaning com-
panies had agreed to remain neutral because of pressures from building
owners and pensions funds, and because the services employees had threat-
ened to pressure operations elsewhere, as it did with sympathy strikes in
California, Illinois, New York, and Connecticut ....
- S. Greenhouse, "Union Claims Texas Victory with Janitors,"
The Nen., York Times, November 28, 2005
The Canadian Auto Workers union is on the verge of organizing the workforce
at Freightliner LLC's Sterling Trucks operation in St. Thomas, in a dramatic
turnaround from the union's previous failures at the plant ....If 573 of
Sterling's 1145 workers sign union cards, the truck maker has agreed to rec-
ognize the union voluntarily as the bargaining agent for the workers and waive
the need for an official vote as required normally under the Ontario Labour
Relations Act.
G. Keenan, "CAW Nears Unionizing Sterling,"
The Globe and -ail, October 2, 2002
A battle is raging in American labour law. The subject matter

is so-called "neutrality agreements," which one author has described
as the "most important development in [American] Labor Law in
decades." 1 Neutrality agreements are privately bargained contracts
between unions and employers that define a set of rules by which
union organizing campaigns and voluntary recognition will take
I J. Brudney, -Neutrality Agreements and Card-Check Recognition: Prospects for

Changing Paradigms' (2005), Iowa L. Rev. 819, at p. 819. See also R. Hartley,
"Non-Legislative Labor Law Reform and Pre-Recognition Labor Neutrality
Agreements: The Newest Civil Rights Movement" (2000), 22 Berk. J.Emp. &
Lab. L.369; "Neutrality Agreements Take Center Stage at the NLRB" (2006),
57 Lab. L.J. 117.
NEUTRALITY AGREEMENTS 43
place at specified non-union facilities controlled by the employer. 2

The provisions of such agreements vary considerably, but they may
require employers to "remain neutral," to permit union organizers
access to the workplace to communicate with employees, or to "vol-
untarily" recognize the union on the basis of union membership evi-
dence confirmed by a neutral. These agreements are usually the
subject of collective bargaining, as unions attempt to expand their
bargaining rights with an employer with whom they already have a
bargaining relationship. In other instances, unions have won neutral-
ity agreements with non-union employers by leveraging new sources
of power, including "corporate campaigns" and partnerships with
social allies, such as religious, environmental, and consumer advo-
cacy groups, politicians, and pension plans.' These agreements repre-
sent a new frontier of legal pluralism in American industrial
relations, and they are coming to Canada.
Discouraged by what they perceive as the dismal failure of the
NationalLabor Relations Act (VLRA) 4 to protect freedom of associa-
tion, American unions have achieved surprising success at using
neutrality agreements to win recognition from employers outside of
2 For reviews of the law of neutrality agreements in the U.S., see ibid.; C. Cohen,
"Neutrality Agreements: Will the NLRB Sanction its Own Obsolescence?"
(2000), Lab. Law. 201, C. Cohen & J. Fritts, "The Developing Law ofNeutrality
Agreements" (2003), 54 Lab. L.J. 278; B. Garren, "The High Road to Section 7
Rights: The Law of Voluntary Recognition Agreements" (2003), 54 Lab. L.J.
263; G. Davies, "Neutrality Agreements: Basic Principles of Enforcement and
Available Remedies" (2000), Lab. Law. 215. National Labor Relations Board
legal opinions and decisions relating to neutrality agreements can be obtained
from the NLRB website, online: <http:iiwww.nlrb.govnlrbihome/default.asp>.
3 See, e.g., J. Budd & P.Heinz, "Union Representation Elections and Labor Law
Reform: Lessons from the Minneapolis Hilton" (1996), 20 Lab. Stud. J. 3; S.
Greenhouse, "Union Claims Texas Victory with Janitors," The Ne., York Times,
November 28, 2005, p. 1; A. Eaton & J. Kriesky, "Union Organizing under
Neutrality and Card-Check Agreements" (2001). 55 Indus. & Lab. Rel. Rev. 42;
L. Chavez-Thompson, "How New Alliances Are Restoring Our Right to
Organize" (Fall/Winter 1998), New Labor Forum 110; D. Benz, "The Case for
Card Check Campaigns" (Fall/Winter 1998), New Labor Forum 110; Brudney,
supra, note 1.
4 NationalLabor Relations Act, 29 U.S.C. §§ 151-169.
44 CDN. LABOUR & EMPLOYMENT LAW JOURNL LLAL
[13 C.L.E.L.J.]
the VLRAs mechanisms. A recent study found that organizing

campaigns in which neutrality agreements restricted the employer's
right to campaign against the union, and required "voluntary" recog-
nition on the basis of a privately conducted card check, resulted in a
union recognition success rate of 78 percent, which was significantly
higher than the success rate under the NLRA election model.' The
authors, Eaton and Kriesky, found also that unions which were rec-
ognized under a neutrality agreement achieved a first collective
agreement in virtually every instance.6
This level of success has attracted hostile resistance from those
powers who prefer the enfeebled NLRA certification model, which is
characterized by excessive delays, intense and prolonged employer
opposition campaigns, weak remedies for unfair labour practices,
and most of all, low union success rates. In June 2004, in the Dana
case, a sharply divided National Labor Relations Board (NLRB) sur-
prised the labour relations community by agreeing to hear two com-
plaints that recognition flowing from neutrality agreements was
inconsistent with the policies underlying the NTLRA. 8 The narrow
issue in the Dana case was whether the NLRBs 'recognition bar" -
which prohibits applications for termination of bargaining rights for
a "reasonable period" following a voluntary recognition- should
apply when a union had obtained recognition based on a privately
bargained card check rather than an NLRB election. However, oppo-
nents of neutrality agreements hope to encourage the NLRB to take a
broader look at those agreements, in the hope that a Republican-
appointed Board will strike them down or at least significantly
5 Eaton & Kriesky, supra, note 3,at p. 52.

6 Ibid. "The rate of reaching a first contract after gaining recognition approaches
100 percent."
7 Union success rates in NLRB elections have tended to fall within the range of
45-55 percent since the 1960s. In 2001, unions won 54.1 percent of the time:
Annual Reports of the NLRB.
8 Dana Corp. and C.Atherholt (Petitione) and U.A. 1 . and Metaldvne Corp. and
A. Krug and J. Sample (Petitioners) and U.A. VV(June 7, 2004) (Cases 8-RD-
1976, 6-RD- 1518 and 6-RD-1519) [hereinafter Dana].
NEUTRALITY AGREEMEN TS 45
restrict their effectiveness. 9 The objective is nothing less than to abol-

ish voluntary recognition under the VLR4, an outcome that worries
not only American unions but also many employers. 10
Neutrality agreements have been largely ignored by Canadian
unions because the traditional "Canadian model" of union recogni-
tion created a considerably more favourable organizing environment.
However, card-check certification, which historically characterized
that model, came under attack in many provinces during the 1990s by
neo-liberal governments intent on discouraging union growth. The
majority of Canadian workers are now subject to a mandatory elec-
tion regime, so Canadian unions must confront the challenges associ-
ated with preserving union support throughout the period leading up
to the vote." In response, some unions, including the Canadian Auto
Workers (CAW) and the Canadian section of the United Steelworkers
of America (USWA - Canada), began recently to explore neutrality
agreements, and we can anticipate greater interest in such agree-
ments as we move forward.
Neutrality agreements are an intriguing example of labour
norms developed through private negotiation, without direct input by
the state. Labour law has always been distinguishable by the extent to
which it permits and encourages employers and unions to develop
their own standards and norms, most notably through the mechanisms
9 See, for example, the 4mici Curiae brieffiled on behalf of a long list of business
associations, including the National Association of Manufacturers, Associated
Builders and Contractors, and the Society of Human Resource Management, at
p. 11: "The Ainici urge the Board to take the opportunity to go further and to crit-
ically examine the negative consequences and potential implications for a
national policy of denying employees the free choice of secret ballot elections
through neutrality/card check recognition agreements." All briefs filed in the
Dana application can be found online at: <http:iiwww.nlrb.govnlrbiabout/foiai
DanaMetaldyne!DanaMetaldyneAmicusBriefs.asp>
10 A range of employer perspectives are presented in the various briefs filed in the
Dana case, supra, note 8.For company opinions supporting voluntary recogni-
tion and neutrality agreements, see for example, the submissions of General
Motors, Ford, DaimlerChrysler, Delphi, and Liz Claiborne Inc., ibid.
11 See S. Slinn, "AnAnalysis of the Effects on Parties' Unionization Decisions of
the Choice of Union Representation Procedure: The Strategic Dynamic
Certification Model" (2005), 43 Osgoode Hall L.J. 407.
[13 C.L.E.L.J.]
of collective bargaining and grievance arbitration.12 The state's role in

setting substantive labour standards is often subtle: it uses regulation
to establish the framework that enables these private norm-producing
activities to function effectively, but leaves it to the parties to define
most of the substantive rules of employment. In this way,the state is
"decentred" in the governance process. The state plays a similar role
in relation to neutrality agreements. These agreements are bargained
privately, but within specific parameters defined by labour law,
including state regulation and legal decisions of courts and adminis-
trative tribunals. The state establishes an environment in which neu-
trality agreements can operate and make industrial relations sense, yet
leaves it to the parties to decide whether such an agreement will be
useful to them and, if so, what its content and form should be.
This paper examines the emergence of neutrality agreements in
the U.S. and the nascent interest in these agreements in Ontario, with
an emphasis on the role of the state in their emergence, form, and
likely development in the future. I focus on the use of neutrality
agreements by unions, in sectors other than construction, to facilitate
organizing non-union employees of an employer with whom the
union already has a collective bargaining relationship. 13 Precisely
how useful neutrality agreements prove to be for unions will depend
largely on how the Ontario Labour Relations Board (OLRB) inter-
prets the province's Labour Relations Act in key areas touching on
these agreements. 14 This means that the state will play a crucial role
in determining the viability of this particular form of private order-
ing. If it perceives value in permitting unions and employers to nego-
tiate conditions of organizing, it could use law to encourage this sort
of negotiation. If. on the other hand, the state believes that neutrality
agreements undermine its objectives in relation to freedom of associ-
ation and the right to organize, it can use law to discourage, weaken,
or prevent neutrality agreements. In either case, the regulatory exer-
cise requires the state to take stock of an emerging model of private
12 H. Arthurs, "Labour Law Without the State?" (1995). U.T.L.J. 1.

13 For descriptions of campaigns in the U.S. to win neutrality agreements outside
of an existing collective bargaining relationship, see supra, note 3. The rules of
voluntary recognition and certification are significantly different in the Ontario
construction sector, where the following analysis does not apply in all respects.
14 Labour Relations Act. 1995. S.O. 1995. c.I. Sch. A.
ordering which operates "in the shadow" of existing labour law, and
then to consider how law might be used to manage these initiatives in
order to further state objectives.
The next part of this paper considers the development of neu-
trality agreements in the U.S. as a strategic response by American
labour to the challenges presented by the NLRA certification model,
and concludes with an overview of common terms found in American
neutrality agreements. In Part 3, 1 examine how recent changes in
Canadian labour law have caused some Canadian unions to begin
exploring neutrality agreements. Part 4 situates neutrality agreements
within the discourse of decentred regulation. Finally, in Part 5. I turn
to the role of the state and Ontario labour law in encouraging, shap-
ing, and steering unions and employers toward neutrality agreements
of a particular form and substantive content. Of special interest is
how the law both encourages and impedes the development of neu-
trality agreements as a model of private ordering.
2. AMERICAN EXPERIENCE WITH NEUTRALITY

AGREEMENTS
(a) The JNLRA Model of Union Recognition
The ALRA requires, as a condition of voluntary recognition,

that a union satisfy the employer that it represents a majority of the
bargaining unit employees. 15 The principle of majoritarianism as a
mechanism for determining union recognition is a distinctly American
idea, later copied in various forms by other countries, including
Canada and, more recently, the United Kingdom. 16 For obvious rea-
sons. it is a model that invites comparison to political electoral democ-
racy, and particularly in the United States, this analogy has heavily
influenced labour law discourse and the development of the NLRB's
approach in union recognition proceedings. 17 The NLRB long ago
described its role in VLRA elections as providing "a laboratory in
15 .L.G.WV.2 A.VLRB,366J.S. 731 (1961).

16 Trade Union and Labour Relations (Consolidation) Act, 1992, Sch. Al.
17 C. Becker, "Democracy in the Workplace: Union Representation Elections and
Federal Labor Law" (1993). 77 Minn. L. Rev. 495; Brudney, supra, note 1.
which an experiment may be conducted, under conditions as nearly

ideal as possible, to determine the uninhibited desires of employ-
ees.""I However, this image of the NLRB has always been of greater
emotive appeal than descriptive accuracy.19 Three aspects of the NLRA
model in particular have combined to substantially impede union suc-
cess in NLRB elections: delay, communicative access for the
employer, and ineffective remedies for unfair labour practices.
(i) Delay
Since the 1974 decision of the U.S. Supreme Court in Linden

Lumber, American employers have had the right to insist on an
NLRB ballot as a condition of recognizing a union.2" This signalled
the end of the card check as a means of obtaining union recognition,
unless the employer waived its right to a ballot and voluntarily recog-
nized the union. Most U.S. employers insist on NLRB elections
because they guarantee a significant time to engage in a campaign
against unionization prior to the certification vote. In contrast to the
"quick vote" model typically used in Canadian mandatory election
jurisdictions, the NLRB conducts pre-election hearings to resolve
outstanding issues related to the union's petition. This means that an
employer can delay an election by raising any number of legal issues,
2
such as employee status or bargaining unit description. '
18 General Shoe Corp., 77 N.L.R.B. 124, at p.127 (1948).

19 P.C. Weiler, "Promises To Keep: Securing Workers' Rights to Self-Organization
under the ALRA" (1983). 96 Harv. L.Rev. 1769 [hereinafter "Promises"]; A.
Strom, "Rethinking the NLRB's Approach to Union Recognition Agreements"
(1994), 15 Berk. J. Emp. & Lab. L. 50.
20 Linden Lumber Division, Summer & Co.v LRB,419 U.S. 301 (1974); NLRB v
Creative Food Design, 852 F.2d 1295 (D.C. Ct. App. 1988).
21 See U.S. Commission on the Future of Worker-Management Relations, 1994
[hereinafter the "Dunlop Report"], at p. 18: "the automatic availability of such
hearing procedures means that a party seeking delay 'can safely assume' that it
will be able to push an election back three to six months. In practice, it takes
an average of seven weeks for workers to secure a vote from the time of their
petition." See also R. Seeber & W. Cooke, "The Decline of Union Success in
NLRB Representation Elections" (1983). Indus. Rel. 34 (documenting the nega-
tive link betw een employer challenges to bargaining unit description and union
success rates).
The general counsel to the NLRB reported that, in 2003, the

median time from petition to election was 40 days.' 2 However, when
complaints alleging illegal activity during the organizing campaign are
filed, a Board decision certifying the union can be delayed months or
even years. 2' This is significant because there is a well-documented
negative correlation between delay in processing certification applica-
tions and union success in recognition elections. 2 4 Moreover, even after
a union has won an NLRB ballot, the employer can effectively refuse
to bargain until a court order is issued, which can take years. 2 As a
result, delaying the processing of certification applications through
frivolous legal challenges and the commission of unfair labour prac-
26
tices is an extremely effective union avoidance strategy in the U.S.
22 See Brudney, supra, note 1, at p. 15 and footnote 49, citing the NLRB General
Counsel Report for the Year 2003.
23 See Brudney, ibid., at footnote 53 and accompanying text, reporting an average
time of 557 days for the NLRB to decide these cases; F. Feinstein, "The Challenge
of Being General Counsel" (2000). 16 Lab. Law. 19, at pp. 34-35, estimating that
it takes two years to litigate an unfair labour practice before the NLRB.
24 For American studies, see: M. Roomkin & R.Block, "Case Processing Time and
the Outcome ofElections: Some Empirical Evidence" (1981), U.Ill. L. Rev. 75;
K. Bronfenbrenner, "Employer Behaviour in Certification Elections and First
Contract Campaigns: Implications for Labor Law Reform," in S. Friedman et
al., eds., Restoring the Promise oJ Aierican Labor Law (Ithaca: ILR Press,
1994) 75; C.Scott, J.Simpson & S.Oswald, "An Empirical Analysis of Union
Election Outcomes in the Electrical Utility Industry" (1993), 14 J.Lab. Research
355; Brudney, supra, note 1;S.Murphy, "A Comparison of the Selection of
Bargaining Representatives in the United States and Canada: Linden Lumber,
Gissel, and the Right to Challenge Majority Status" (1988). 10 Comp. Lab. L.J.
65: R. Prosten, "How Come One Team Has to Play with Its Shoelaces Tied
Together?" (1993), 44 Lab. L.J. 477. For Canadian studies, see T. Thomason,
"The Effect of Accelerated Certification Procedures on Union Organizing
Success in Ontario" (1994), 47 Indus. & Lab. Rel. Rev. 207; K. Bentham,
"Employer Resistance to Union Certification" (2002). 57 I.R. 159; M.
Campolieti, C. Riddell & S. Slinn, "Employers, Bureaucrats and Certification
Delay: Empirical Evidence from British Columbia and Ontario, 1987-1998."
unpublished manuscript (2004).
25 See Weiler, "Promises," supra, note 19 at pp. 1796-1797; Garren, supra, note 2,
at p. 265.
26 See, e.g., Garren, ibid., describing how an employer delayed a certification
process by arguing that the Union of Needletrades, Industrial and Textile
Employees (NITE) was not a labour union under the ALRA.
50 CDN. LABOUR & EMPLOYMENT LAW JOURN [LLAL
[13 C.L.E.L.J.]
(ii) inequality o/Access to Employees
There have been numerous attempts over the years, through leg-
islative reform, to reduce the delay in the NLRB's processing of
recognition petitions. None has succeeded. 27 The principal defence of
the NLRA model put forth by its supporters in Congress and else-
where is that employers need time to ensure that employees are fully
informed before they vote. 28 This argument assumes that employees
can easily obtain information from the union and its supporters, and
that the law should give employers a fair opportunity to present "the
other side of the story." In practice, however, American labour law
confers on employers a marked advantage over unions in terms of
29
their respective rights to communicate with workers.
Employers may exploit their control over workers during work-
ing hours to proselytize a negative message about unions and col-
lective bargaining by means of written material distributed to
employees, "captive audience meetings,' ° or one-on-one meetings
between managers and employees." Unions. on the other hand, have
no right of access to employer property to discuss unionization with
employees, even during non-working time, except in the rare circum-
stance where union access to employer property is granted because
27 See Weiler, "Promises," supra, note 19, at p. 1812. The Dunlop Report too rec-
ommended a reduction in the delay between petition and ballot, proposing a
shift to pre-hearing elections and a maximum of two weeks between petition and
ballot: supra, note 21. at pp. 18-19.
28 See Weiler, "Promises," ibid. For example, see the Anici Cri ie brief filed on
behalf of a long list of employer associations in the Dana case: supra, note 9, at
p. 15 (NLRB ballots and an employer campaigning period are necessary "to
assure that employees [are] fully protected and fairly informed prior to casting
their ballots").
29 See Dunlop Report, supra, note 21. at pp. 22-23; M. Zimmy, "Access of Union
Organizers to 'Private Property' " (1974), 25 Lab. L.J. 618; R. White, "Union
Representation Election Reform: Equal Access and the Excelsior Rule" (1991),
67 Indiana L.J. 129; Comment, "Labor Law Reform: The Regulation of Free
Speech and Equal Access in NLRB Representation Elections" (1979), 127 U.
Pa. L. Rev. 755; Hartley, supra, note 1, at p. 384.
30 Peerless Plyvood, 107 N.L.R.B. 427 (1953).
31 Electro-Wire Products, 242 N.L.R.B. 960 (1979).
of the remoteness of the workplace.12 Unions must therefore attempt

to communicate by less effective means, such as leafletling outside
employer property or trying to persuade employees to attend meet-
ings during their leisure time- methods that even the NLRB has
33
acknowledged are inferior.
In an attempt to address this obvious imbalance, the NLRB
decided in 1957 that unions were entitled to contact workers at their
homes.14 However, the utility of the "home visit doctrine" is limited
by the fact that the list of names and addresses of bargaining unit
employees need only be provided to a union that has garnered at least
the 30 percent support needed for an election, and only about 10 to
20 days before the vote.3 5 Thus, even if the union has the resources to
visit every employee's home, there is often insufficient time to do so,
particularly if the unit is relatively large. And, in contrast to the
employer's captive audience meetings. there is no guarantee that the
employee will be available when the organizer calls. So, while the
NLRB encourages a "campaign" prior to a vote, it has made little
serious attempt to ensure that unions can communicate with bargain-
ing unit employees effectively and on a relatively equal footing with
the employer.
32 The leading decision is ALRB v.Babcock & Wilcox Co., 351 U.S. 105 (1956),
where the Supreme Court ruled that non-employee organizers are not entitled to
enter upon employer property unless the "usual channels" are not available, such
as mail, telephone, or solicitation off that property. For a general discussion, see
W.B.Gould, A Primer on American Labor Law, 3d ed. (Cambridge, Mass.: MIT
Press, 1993). at pp. 64-67.
33 Excelsior U7nderwear Inc., 156 N.L.R.B. 1236, at p. 1241 (1966); White, supra,
note 29, at p. 148. And see J.Getman, S. Goldberg & J.Herman, UTnion
Representation Elections: Law and Reality (New York: Russell Sage
Foundation, 1976) (only 36 percent of employees attended meetings organized
by unions during a campaign, compared to 83 percent who attended employer
"captive audience meetings").
34 Peoria Plastic Co., 117 N.L.R.B. 545 (1957); Plant City Melding, 119 N.L.R.B.
134 (1957); White, supra, note 29.
35 Excelsior Uinderwear, supra, note 33; Dunlop Report, supra, note 21, at
pp. 22-23; M. Bierman, "Toward a New Model for Union Organizing: The
Home Visits Doctrine and Beyond" (1985), 27 B.C.L. Rev. 1; Harltey, supra,
note 1, at p. 384.
(iii) ineffective Remediesfor Unfair Labour Practices
Employer opposition campaigns and union avoidance strategies

have been a distinctive characteristic of American industrial relations
under the NLRA since at least the late 1970s. 36 A remarkable percent-
age of U.S. employers are prepared to violate the law as part of their
strategy to defeat an organizing campaign. A recent study concluded
that one out of eighteen employees involved in an organizing cam-
paign suffers discrimination for union activity. 7 Freeman and
Kleiner found that American employers commit unfair labour prac-
tices in 24 to 36 percent of organizing campaigns .3 The 1995 Dunlop
Report concluded that illegal dismissals for union activity occur in
3 9
one of four organizing campaigns leading to an election.
A now-extensive literature confirms a correlation between
employer campaigning and the probability that the employees will
vote against collective bargaining. 4 Unfair (illegal) labour practices
are a particularly effective strategy for employers intent on ensuring
that a union loses an NLRB election. The unlawful act itself will often
intimidate workers into rejecting collective bargaining at the poll, and
as previously noted, committing an unfair labour practice has the
36 W. Guzick, "Employer Neutrality Agreements: Union Organizing Under a

Nonadverserial Model of Labor Relations" (1984), Indus. Rel. L.J. 421, at pp.
428-429: Hartley, supra, note 1. at p. 379; T.Kochan, H. Katz & R. McKersie,
The Transformation of 4merican Industrial Relations (Ithaca: Cornell
University Press, 1994), chap. 3.
37 S.Herzenberg, "Reinventing the U.S. Labor Movement, Investing Postindustrial
Prosperity: A Progress Report" (ILO Discussion Series, Paper 119/2000).
38 R. Freeman & M. Kleiner, "Employer Behavior in the Face of Union Organizing
Drives" (1990), 43 Indus. & Lab. Rel. Rev. 351.
39 Dunlop Report, supra, note 21, at p. 19.
40 Examples include Bronfenbrenner, supra, note 24; W. Dickens, "The Effect of
Company Campaigns on Certification Elections: Law and Reality Once Again"
(1983), 36 Indus. & Lab. Rel. Rev. 560; M. Kleiner, "Intensity of Management
Resistance: Understanding the Decline of Unionization in the Private Sector"
(2001), 22 J.Lab. Research 519; Freeman & Kleiner, supra, note 38; Bentham,
supra, note 24; C.Riddell, "Union Certification Success under Voting Versus
Card-Check Procedures: Evidence from British Columbia, 1978-1998" (2004),
57 Indus. & Lab. Rel. Rev. 493 [hereinafter "Certification Success"]: C. Riddell,
"Union Suppression and Certification Success" (2001), 34 Can. . Econ. 396
[hereinafter "Union Suppression"].
additional, indirect effect of significantly delaying the resolution of a

recognition petition, giving the employer time to erode employee sup-
port for the union before bargaining begins. Contributing to the prob-
lem are the weak remedial practices of the NLRB in unfair labour
practice cases. 41 Successful complaints usually result in a cease-and-
desist order and a restorative remedy, such as reinstatement and back-
42
pay if an individual employee has been unlawfully dismissed.
However, backpay awards are often small because they are subject to
4
a duty to mitigate on the part of the dismissed employee. '
(b) The Strategic Response by U.S. Labour:

Private Ordering of Union Recognition
These often-cited deficiencies in the JVLRA model have con-

tributed to the U.S. labour movement's dismal success rate in elec-
tions and to the declining union density rate since the 1970s. Hartley
argues that by the mid-1990s. the American labour movement was
44
"paralyzed" by a lack of vision about how to revitalize organizing.
41 See, e.g., the Dunlop Report, supra, note 21, at p. 20: "The increase in discrimi-
natory discharges documented in the Fact Finding Report indicates that the
remedies available to the Board do not provide a strong enough disincentive to
deter unfair labour practices of some employers during certification elections
and first contract campaigns."
42 In rare cases involving a serious employer unfair labour practice that undermines
the union's majority support and renders a flair election impossible, the Board
will issue a "bargaining order," even though the union has not won a vote (a
"Gissel order"): \'LRB v. Gissel Packing Co., 395 U.S. 575 (1969). The bargain-
ing order requires the employer to bargain with the union in good faith as if the
union had won an election. But this exceptional remedy is extremely limited in
scope. It can be given only if the union establishes that it had majority support
among the employees before the employer's unfair labour practice: Gourmet
Food Inc., 270 N.L.R.B. 587 (1984). Even when the NLRB has made a Gissel
order, the courts often reverse the order on review: T. Bethel & C. Melfi,
"Judicial Enforcement of NLRB Bargaining Orders: What Influences the
Courts?" (1988), 22 U.C. Davis L. Rev. 139. Brudney has observed that this
judicial resistance has drastically reduced the NLRB's use of the remedy, from
approximately 100 cases per year in the 1960s to about 15 per year by the early
1990s: Brudney, supra, note 1.
43 Republic Steel Corp. v. ALRB. 311 U.S. 7 (1940).
44 Hartley, supra, note 1. at p. 371.
[13 C.L.E.L.J.]
He credits the election of AFL-CIO president John Sweeney in 1995

with jolting it out of this paralysis. 45 Sweeney and the new AFL-CIO
administration challenged affiliates to increase organizing budgets to
at least 30 percent of their overall budgets by 2000, a target many
unions met or surpassed. 46 The AFL-CIO pressed for the use of more
creative forms of organizing that drew on existing union power. and
for new alliances with sympathetic actors in society. "Bargaining to
Organize" became a new catch-phrase of the American labour move-
ment, reflecting a concept that encouraged unions to explore ways
to grow membership that largely bypassed the unfriendly NLRA
mechanisms. Union "corporate campaigns" that sought new forms of
leverage by identifying and exploiting vulnerabilities of specific cor-
porations became more sophisticated and were better funded within
the labour movement.
Prominent among the new "bargaining to organize" strategies
were neutrality agreements. These agreements had their roots in the
1970s. but unions were encouraged to take a fresh look at them as a
potentially powerful tool.
(i) Neutrality Agreements: The Early Days
A 1976 agreement between the UAW and General Motors is usu-

ally cited as the first neutrality agreement. 47 The UAW had succeeded
in organizing only a couple of the dozen new plants opened in the U.S.
during the 1970s. 8 The union accused GM of promoting a "southern
strategy" of union avoidance, i.e. shifting investment from the highly
unionized northern states to greenfield sites in southern states with low
union densitV.49 At the same time, though, GM was seeking the UAW's
45 Ibid., and see T. Dark, "Debating Decline: The 1995 Race fbr the AFL-CIO
Presidency" (1999), 40 Lab. Hist. 323.
46 Hartley, supra, note 1, at pp. 374-375.
47 J. Craft, "The Employer Neutrality Pledge: issues, implications, and Prospects"
(1980), 31 Lab. L.J. 753, at p. 755; Guzick, supra, note 36, at p. 436; A. Kramer,
L. Miller & L. Bierman. "Neutrality Agreements: The New Frontier in Labor
Relations -Fair Play or Foul?" (1981), 23 B.C.L. Rev. 39, at p. 40; Strom,
supra, note 19; Hartley, supra, note 1, at p. 377.
48 Ibid.: L. Simison, "UAW Changes Tactics as It Loses Members in the U.S. Auto
Slump," The 4all StreetJournal,May 30, 1980, at pp. 1, 32.
49 Craft, supra, note 47.
cooperation in restructuring operations in its northern facilities. The

union refused to cooperate with GM so long as the company continued
to undermine its growth and stability, and was ultimately successful in
pressuring GM to sign a neutrality agreement as a condition of secur-
ing its cooperation throughout the organization.° The neutrality agree-
ment took the form of a letter incorporated into the collective
agreement. It provided that the employer would neither discourage nor
encourage worker support of the UAW, and that the union, in return,
51
would not demean the company or its officials.
The UAW built on that agreement in subsequent collective bar-
gaining. In 1982, it persuaded GM to recognize the union at its non-
union facilities in the U.S. on the basis of a card check conducted by
a neutral arbitrator. This followed a similar agreement reached in
1979 between the UAW and Ford.5 2 Within six months of the execu-
tion of the neutrality/card-check agreement, the UAW succeeded in
obtaining recognition at three southern GM plants that had been the
5
target of unsuccessful NLRA campaigns over the previous six years. 3
The UAW's success inspired other unions, and by the early
1980s neutrality agreements were being hailed as a major develop-
ment in American collective bargaining, as unions sought to bypass
the futile NLRB recognition procedures. 54 Such agreements were
negotiated in various forms by most major unions, with the "interna-
tional unions"'55 leading the way, targeting principally large corpora-
tions that already had a high level of union density and a strong
history of collective bargaining.56 The early agreements were, however,
50 Kochan, Katz & McKersie, supra, note 36. at pp. 60-61.

51 Kramer, Miller & Bierman, supra, note 47.
52 Guzick, supra, note 36, at p. 436, especially footnote 71.
53 Weiler, "Promises," supra, note 19, at footnote 145.
54 Craft, supra, note 47; Kramer, Miller & Bierman, supra, note 47; Strom, supra,
note 19; Kriesky & Eaton, supra, note 3.
55 In particular, the UAW. the United Rubber, Cork, Linoleum and Plastic Workers
of America (URW), the United Food and Commercial Workers International
Union (UFCW),the International Union of Electrical, Radio and Machine
Workers (UE), the USWA, and the Bakery, Confectionery and Tobacco Workers
International Union (BCT).
56 Examples include GM,Ford,Dana Corp., Philip Morris, American Tobacco, and
B.R Goodrich Tire and Rubber Corp. See, e.g., Craft, supra, note 47, at pp. 762-
763; Guzick, supra, note 36, at pp. 439-440.
relatively modest by today's standards, being restricted usually to a

,neutrality pledge" on the part of the employer. Few contained a
card-check process such as that bargained by the UAW and GM.
(ii) The Expansion ofNeutraliri Agreements in the I 990s
Neutrality agreements experienced a rebirth in the mid-1990s,

fueled by the labour movement's renewed focus on organizing
through non-NLRB mechanisms. Combining broader-based corporate
campaigns with more traditional sources of union leverage, American
unions were surprisingly successful throughout the late 1990s in
negotiating neutrality agreements and using them to organize new
members. 5 7 Anecdotal evidence of successful campaigns in which
neutrality agreements were applied began to accumulate." For exam-
ple, the UFCW claimed to have organized 70,000 new members in
199619 and approximately 73,000 in 199760 by means of privately
negotiated card-check agreements. In 1997. the Hotel Employees and
Restaurant Employees International Union claimed that it had
increased its membership from 18,000 to nearly 45,000 in a decade,
exclusively through card-check agreements. 61 The AFL-CIO was suf-
ficiently impressed by these results that in 2000 it prepared an exten-
sive "how to" manual for its affiliates. with model language. accounts
of the successful use of neutrality agreements, legal analysis, and
6 2
strategies to harness bargaining power to win neutrality agreements.
(c) Common Terms in Neutrality Agreements
Many neutrality agreements are negotiated as part of the

broader process of collective bargaining for bargaining unit employ-
ees. The terms of neutrality agreements reflect the give-and-take of
57 See supra, note 3.

58 "Labor's New Organizing Tactic," editorial, The New York Tines, March 26,
1997.
59 A. Bernstein, "Sweeney's Blitz," Business lVeek, February 17, 1997, p. 56.
60 Benz, supra, note 3.
61 S. Greenhouse, "Unions, Bruised in Direct Battles with Companies, Try a
Roundabout Tactic," The New York Times, March 10, 1997. p.B7.
62 AFL-CIO, Bargainingto Organize (2 00 1); on file with author.
collective bargaining, and the power relations and bargaining strate-

gies of the contracting parties. The following is a general description
of the most common terms found in American neutrality agreements.
(i) Requirement that the Employer Remain Neutral
A core component of virtually all neutrality agreements is a

requirement that the employer remain "neutral" during an organizing
campaign at facilities covered by the agreement. Kriesky and Eaton
found that 93 percent of the neutrality agreements in their sample
included a neutrality pledge in some form. 6' A small minority of
agreements required the employer to actively encourage employees
to consider unionization. Most agreements negotiated by the UAW,
the USWA and the Communications Workers of America (CWA)
defined neutrality as "neither helping nor hindering" the union's
organizing efforts, while permitting the employer to communicate
"facts" to workers (though in some cases only when employees made
specific enquiries)." Some agreements prohibited the employer from
making derogatory comments about union officials or about unions
generally, while others limited employer speech to expressions that
were "pro-company" rather than anti-union, or that were "fact-
based. ' 65 Many agreements included a reciprocal duty on the union,
for example, by requiring the union to refrain from comments that
were critical of the employer and its treatment of employees. Some
included a term that relieved the employer of its neutrality obligation
if the union made untrue or derogatory comments about the employer,
its representatives, or its policies. 61' Kriesky and Eaton found that
neutrality agreements that included neutrality pledges alone did not
improve the union's success rate in votes conducted under such
agreements over that in other NLRB electionsY.
63 Kriesky & Eaton, supra, note 3.

64 Ibid.
65 See Hartley, supra, note 1, at p. 380.
66 Kriesky and Eaton, supra, note 3, found that the presence of a "reverse pledge"
reduced the probability of the union's achieving recognition.
67 This may be a result of the high level of employer violations of neutrality agree-
ments that include only neutrality pledges. Kriesky and Eaton found that
employers were alleged to have violated such agreements in 90.5 percent of
cases studied: ibid., at p. 49.
(ii) Union Access to Employees
The right to early access to a list of employees, with such infor-

mation as job title and home address, is included in many neutrality
agreements as a way to bolster the "home visit doctrine." which
requires only that this information be given to the union at a very late
point in the campaign." Many agreements require employers to grant
the union access to the workplace to meet with employees during
working or non-working time. 69 A typical term requires the employer
to permit a non-employee union representative to address employees
at the workplace during working hours.
(iii) Determining llajority Szapport. Card-Check

Recognition and Expedited Elections
Approximately three-quarters (73 percent) of the neutrality

agreements in the Kriesky and Eaton study included a card-check
recognition provision that enabled the union to bypass the NLRB
election procedures. 71 Usually, a card-check agreement provides for a
neutral arbitrator to confirm the authenticity and quantity of union
membership cards on the basis of a list of employees, including
68 Kriesky and Eaton found that 35.7 percent of sample agreements included a pro-
vision requiring a list of employees with more information than that required by
the VLR4 process: ibid.
69 Kriesky and Eaton reported that 66.3 percent of the neutrality agreements in
their study included a term permitting union access to the employer's property:
ibid., at p. 49.
70 An example of card-check language is found in the agreement between the
USWA and U.S. Steel:
If. at any time during the Organizing Cmnpaign... the Union demands recog-
nition, the parties will request that a mutually acceptable neutral .. conduct a
card-check within 5 day s of the making of the request. The neutral shall com-
pare the authorization cards submitted by the Union against original handwrit-
ing exemplars of the entire bargaining union furnished by the Company and
shall determine if a simple majority of eligible employees has signed cards.
The list of eligible employees shall be jointly prepared by the Union and the
Company. Ifat any time during the Organizing Campaign, the Union secures
a simple majority of authorization cards of the employees in an appropriate
unit, the Company shall recognize the Union as the exclusive representative of
such employees without a secret election conducted by the [NLRB].
signatures, provided by the employer. Instead of a card check, some

agreements call for a "quick vote," to be conducted privately rather
than through the NLRB mechanisms. I Kriesky and Eaton found that
campaigns relying on a card check resulted in a union success rate of
62.5 percent. 2 which increased to 78.2 percent when the card check
was combined with a neutrality pledge. Card-check provisions also
substantially decreased the incidence of employer campaigns (by
approximately 50 percent), and reduced their intensity. Furthermore,
the incidence of unfair labour practices substantially decreased when
a card-check agreement was in effect.
(iv) Dispute Resolution Mechanisms
Many neutrality agreements provide for dispute resolution by

private arbitration. Often, an expedited procedure is included. This
has the dual benefit of avoiding the lengthy delays associated with
NLRB proceedings and allowing the parties to choose their arbitra-
tor. In addition, the parties can choose to include specific remedies in
the agreement. A properly worded arbitration provision can clothe an
arbitrator with jurisdiction to make the orders necessary to ensure a
fair recognition process.
(v) ExpandedDefinition of the Employer
Many neutrality agreements include an expanded definition of

"employer" in order to allow the organizing campaign to be as broad
as possible. By their very nature, neutrality agreements are intended
to govern employer conduct in workplaces where the union does not
have bargaining rights. This raises privity problems where the target
of the campaign is a separate legal entity from the employer party to
the agreement. The clearest method of binding the various legal enti-
ties is to have them become parties to the agreement. The USWA
adopted this approach in its agreement with US Steel, in which the
employer agreed to "cause all of its existing Parents, Affiliates,
and/or Ventures that are covered [by these definitions] to become a
71 Hartley, supra, note 1. at p. 382.

72 Kriesky & Eaton, supra, note 3, at p. 52.
party/parties to this appendix and to achieve compliance with its pro-

visions." This model is effective when the union's bargaining rights
are with the entity that controls the other companies in the corporate
family. Another solution is to have the parent corporation execute the
agreement "on behalf of itself and its controlled subsidiaries and affil-
iates," which was the approach taken in the UAW's agreements with
the Big Three auto manufacturers. So far, these efforts to expand the
scope of a neutrality agreement to other businesses controlled by the
employer have been upheld. However, the general counsel to the
NLRB recently opined that this type of arrangement may violate
s. 8(e) of the NLRA,the so-called "hot cargo" prohibition, Which inval-
idates contracts between employers and unions in which the employer
agrees to refuse to do business with another employer or person.3
(vi) Other Terms
A minority of neutrality agreements include additional provi-

sions. Some require the employer to offer preferential hiring to exist-
ing bargaining unit employees if vacancies arise in non-union
facilities. The obvious objective of such a term is to increase the
number of employees in the facility who will be inclined to support
unionization. A few agreements also include arrangements for con-
cluding a first collective agreement in any new facility organized pur-
suant to the neutrality agreement. 4 This may include accretion of the
new unit into an existing collective agreement through an "after
acquired" clause, which extends a collective agreement to a new unit
if the union can establish majority support in that unit. 7 5 A small
number of neutrality agreements also provide for interest arbitration
in the event that the parties are unable to reach an agreement.
73 For a discussion, see M.W. Finkin, "Employer Neutrality as Hot Cargo:

Thoughts on the Making of Labor Policy" (2006). 20 Notre Dame L. Ethics &
Pub. Pol'y [forthcoming]; Cohen, supra, note 2, at pp. 210-211.
74 See Hartley, supra, note 1, at p. 386.
75 Ibid. See also Advice Memorandum, Local Joint Executive Board of Las Vegas,
Culinary Workers Union, Local 226 and Bartenders Union, Local 165 (Sahara
Hotel & Casino), Case No. 28-CB-4349 (November 30, 1995), available at 1995
WL 937191 [hereinafter Sahara leinorandiun],at pp. 13-15.
3. THE EMERGING INTEREST IN NEUTRALITY

AGREEMENTS IN CANADA
(a) From Card Check to Mandatory Election
The laws that govern organizing campaigns in Canada parallel

the American model in many key respects. Canadian law protects non-
coercive employer campaigning 76 and "captive audience meetings,"
77
both of which are a common feature of Canadian labour relations.
With a few exceptions relating to workers who reside on employer
property in remote areas, unions have no legal entitlement to organize
on company property. 71 In contrast to the U.S., unions in Canada are
generally not entitled to employee names, addresses, or phone num-
bers at any point before being certified. 79 The key traditional differ-
ence between the Canadian and American models has been the
domination, until recently, of the card-check process in Canada. This
limited the practical opportunity of Canadian employers to campaign
against the union, whether by lawful or unlawful methods."0
The legislated move from card check to mandatory elections in
a number of provinces has required Canadian unions to deal with the
challenge of winning a vote in the face of an employer campaign. In
contrast to the ALRA model, the Canadian process requires that a
"fast vote" be held, usually within 5 to 10 working days of the
union's application. Therefore, concerns about delay in the process-
ing of certification elections, which have dominated American union
opposition to the NLRA model, are less significant in Canada. Weiler
argued that a fast-vote model was a preferable mechanism even to a
76 For example, OLRA, s.70.

77 Bentham, supra, note 24, at p.173. Canadian employers held captive audience
meetings in 56 percent of campaigns examined.
78 See, e.g., OLRA, s. 13.
79 But see the Canada Labour Code, R.S.C. 1985, c. L-2, s. 109.1. which allows
the federal Board to order production of names and addresses of employees who
work "off-site," including home-workers. See also }ork (City) Board of
Education, [1985] O.L.R.B. Rep. (May) 767.
80 Weiler wrote that the statutory card-check model virtually eliminates employer
opposition campaigns not by a "heavy battery of regulations and sanctions" but
by a legal environment that renders such tactics "fruitless": Weiler, "Promises,"
supra, note 19, atp. 1806.
card-check system because the results would tend to be accepted as

more legitimate, especially by employers." This argument assumed
that an employer could not mount an effective opposition campaign
if there were only a few days between application and ballot. In such
a short period, according to Weiler, it would be "nearly impossible
for the employer to mount a sustained offensive aimed at turning the
employee sentiments around through intimidation and discrimina-
tion. 82 Weiler largely discounted the potential harmful effects of
-
quick but harsh employer action taken immediately before a ballot.1
However, recent studies on employer conduct and vote out-
comes in Canada indicate that even under a fast-vote model, employ-
ers can wage effective opposition campaigns. For example, Chris
Riddell studied union recognition applications over a period of 20
years (1978-1998) in British Columbia. This included a nine-year
period under a mandatory fast-vote model (elections had to be held
within approximately ten days of the application filing date). That
nine-year period was preceded and followed by two six-year periods
under a card-check system (1978-1984 and 1993-1998).14 Riddell
found that private-sector union success rates fell by about 19 percent
when mandatory fast votes replaced the card-check model, and that
this decrease could be attributed almost entirely to the change in
model." He found also that, while the incidence of employer opposition
81 Weiler, ibid., at p. 1812; P.C. Weiler, Governing the Workplace: The Future of
Labor and Einploymnent Law (Cambridge, Mass.: Harvard University Press,
1990). at p. 255.
82 Weiler, "Promises," ibid.
83 Weiler was speculating, because Nova Scotia, the only North American jurisdic-
tion using a last-vote model at the time he was writing, did not have enough
experience with it to enable broad conclusions to be drawn.
84 Riddell, "Certification Success," supra, note 40. See also Riddell, "Union
Suppression," supra, note 40, and S. Johnson, "Voting or Card-Check: How the
Union Recognition Procedure Affects Organizing Success" (2002), 112 Econ. J.
344. Johnson reviewed certification application results from nine Canadian
jurisdictions during the period from 1976 to 1997, and found that success rates
fell by 13 percent when the mandatory fast-vote model was used rather than the
card-check model.
85 Riddell, "Certification Success," ibid., at p. 507.
to union organizing campaigns did not change across the models,

management opposition was "twice as effective" in defeating an
6
application for certification under the fast-vote model.1
Because the transition from card check to elections is a tacit
strategy by the state to discourage the spread of collective bargaining
it is usually accompanied by other changes consistent with that strat-
egy. For example, in Ontario, in addition to introducing mandatory
elections in 1995, the government repealed provisions which
required that unfair labour practice complaints be heard expedi-
tiously, and which empowered the Labour Relations Board to order
interim reinstatement of dismissed employees during an organizing
campaign and to order remedial certification if egregious employer
unfair labour practices had prevented a vote from testing the true
wishes of employees. The government also reduced the number of
Board vice-chairs, resulting in delays in the processing of unfair
labour practice complaints.88 The effects of these changes are appar-
ent in the success rates of union certification applications in Ontario,
which decreased from approximately 71 percent in the year prior to
the introduction of mandatory votes in 1995 to approximately 48 per-
cent in 2002-2003.19 This rate is similar to the one in NLRA represen-
tation applications, which has hovered just below 50 percent for
years. 90 Confronted by these grim statistics, some Canadian unions
began to examine the experiences of American unions with neutrality
agreements.
86 Ibid., at p. 505.
87 These changes were enacted by two bills: Bill 7,S.O. 1995, c.1,Sch. A; and Bill
31, S.O. 1998, c.8.
88 R. Lebi & E. Mitchell, "The Decline in Trade Union Certification in Ontario:
The Case for Restoring Remedial Certification" (2003), 10 C.L.E.L.J. 473, at
pp. 475,478.
89 Lebi & Mitchell, ibid., at p.477. The volume of union certification applications
fell noticeably as well, from 1,166 in 1993-1994 to 729 in 2003-2004: see Slinn,
supra, note 11. at pp. 434-435.
90 See Eaton & Kriesky, supra, note 3, at p. 52 (citing the average success rate in
NLRB representation votes between 1983 and 1998 as 45.64 percent).
64 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [13 C.L.E.L.J.[
(b) Neutrality Agreements in Canada
Leading this exploration have been the "international" unions,

including the USWA - Canada and the CAW. 91 These unions are
among the most active in organizing in Canada, and have institutional
and historical links to the American labour movement which facilitate
cross-border learning and information-sharing about organizing
strategies and tactics. One of the earliest known examples of a neu-
trality agreement was bargained in 1988 by the USWA - Canada and
INCO. 92 In that round of bargaining, the union raised the subject of
organizing the employees of a wholly-owned Ontario subsidiary of
INCO known as Continuous Mining Systems (CMS). 1NCO agreed to
provide the union with the names and addresses of CMS employees
and to allow a union representative to speak to them at the workplace.
A list of names and addresses was subsequently provided to the union,
but the USWA - Canada did not attempt to arrange access to the
workplace. The union was later certified by the OLRB for employees
of CMS in accordance with the statutory card-check model in effect in
Ontario at the time. It is unclear how much the union's success was
aided by the agreement, but the CMS case represents a rare example
of a neutrality agreement in a card-check jurisdiction.
In 2000, the USWA - Canada again convinced 1NCO to agree
to a Letter of Understanding, this time in respect of all Canadian
operations where INCO directly or indirectly owned more than
50 percent of the voting authority and had the power to direct
91 1 have interviewed representatives of the USWA, CAW, and UNITE-HERE,

have researched case law and press reports, and have stumbled across neutrality
language in Canadian collective agreements in my legal practice. I have not tried
to track down all Canadian neutrality agreements, and it is likely that some such
agreements can be found in Canada in various forms that are not described here.
There is very little literature on neutrality agreements in Canada. See B.
Murnighan, "Organizing at a Crossroads" (July 2003). Our Times, p. 23; D.J.
Doorey, "An American Organizing Strategy Comes to Canada" (2002), 9 mt'l
Union Rights J. 22.
92 The facts are described in Continuous Mining Systems Ltd, [1990] O.L.R.B.
Rep. (April) 404, at p. 405. That case dealt with a complaint by a group of CMS
employees who alleged that the provision of the list constituted unlawful
employer assistance to a union, contrary to s. 15 of the OLRA. I consider the law
on that issue below.
management and policy.9 ' The Letter specified that INCO: (1) would
post a notice at the workplace telling employees that the employer
did not oppose collective bargaining or unionization. and would not
interfere with the free choice of employees on unionization; and
(2) would remain "neutral," which was defined to mean that it would
not "in any way, directly or indirectly, involve itself in any attempt by
the union to represent such non-represented employees." The neutral-
ity pledge remained subject to the employer's right to advance its
interests in any labour board proceedings. The Letter indicated that,
in the event of an alleged breach, the parties would "work together in
good faith to resolve" the dispute. The USWA - Canada was subse-
quently successful in organizing workers employed by a subsidiary
of INCO at Voisey's Bay, although it is unclear what role the neutral-
ity agreement played.
One of the more interesting issues that arises in relation to neu-
trality agreements in Canada is whether agreements made in the U.S.
between American unions and multinational corporations apply to
the corporation's operations in Canada. There are a number of exist-
ing International Framework Agreements between multinational cor-
porations and global union federations which place restrictions on
employer speech during organizing campaigns, and some of these
apply in North America. 94 Strictly speaking, these agreements are not
enforceable at law, but they can have important normative effects.
More common are neutrality agreements bargained in the U.S.
between "international" unions and corporations with operations in
both Canada and the U.S. If the agreement applies on its face to the
entirety of the corporation's operations or to wholly-owned sub-
sidiaries, it would presumptively apply to an organizing campaign at
one of those operations in Canada. However, interesting enforceabil-
ity questions may arise, depending upon how the contract is drafted.
The USWA - Canada recently sought to apply a neutrality
agreement concluded in the U.S. between the American USWA and
93 "Letter of Understanding Between the USWA and INCO Ltd.," on file with
author.
94 See, e.g., the agreement between DaimlerChrysler and the International
Metalworkers Federation, which requires the company to "remain neutral" in all
organizing campaigns in any of its facilities, anywhere in the world. Available at
<http:iwww.imfmnetal.org>.
Goodyear Inc. Goodyear Canada is a Canadian subsidiary of the

employer party to the neutrality agreement. That agreement required
the employer to give the union the names, home addresses, job titles
and work locations of employees in the potential bargaining unit, and
provided for voluntary recognition based on evidence of majority
support confirmed by a privately conducted card check. However,
more than 50 percent of the bargaining unit employees asked the
employer not to give their names and addresses to the union, and the
employer refused to provide the information for those employees.
The USWA - Canada filed a grievance under the collective agree-
ment alleging a breach of the neutrality agreement that had been bar-
gained and executed in the U.S. The arbitrator upheld the employer's
refusal to disclose the information, on the basis that Ontario arbitral
law recognizes a right of employee privacy which "includes the right
to control to whom information they consider to be confidential can
be communicated. ' 95 This outcome distinguishes Ontario from
American law on the important point of the legality of disclosure of
employee names and addresses in neutrality agreements. I will say
more about this decision later. 96 For now, it is useful to note that the
arbitration proceeded on the basis that the American neutrality agree-
ment applied to organizing activities at Canadian subsidiaries.
In the period prior to the CAW-UAW split in 1985, collective
bargaining on many issues involving the Big Three automakers was
conducted at a transnational level. As a result. neutrality pledges bar-
gained by the Big Three and the UAW, which often appeared as let-
ters attached to the collective agreement, purported to apply to
Canadian operations as well as American. Remnants from that period
appear, for example, in a letter attached to the collective agreement
between the CAW and Navistar. The letter dates from 1980, and
requires the employer to remain neutral during any campaign at a
newly established manufacturing operation of the employer. 97 This
term was introduced into the Canadian agreement when the pattern
95 Goodyear Canada Inc. and ii .A., unreported award of Arbitrator Robert

Herman (December 15, 2003) [hereinafter Goodyear], at p. 5.
96 See Part 5(b)(ii), below.
97 Collective agreement between CAW and Navistar Corp., on file with author.
negotiated between Navistar and the UAW was adopted, and it sur-
vived the separation of the CAW from the UAW.
Neutrality agreements attracted significant media attention in
Canada during the 1999 round of bargaining between the CAW and
the Big Three. 98 Ultimately, the CAW obtained separate letters from
all three corporations, which apply to all of their "Canadian manufac-
turing plants." 99 The letters generally provided that the employers
would "remain neutral" during any campaign at a covered facility,
refrain from retaliation against any union supporter, send letters to
each employee in the target workplace affirming its neutrality pledge,
and give the CAW access to the workplace to address the employees
during working hours. 10 The CAW relied on this language in the fall
of 2000 during its attempt to organize Sterling Truck, a wholly owned
subsidiary of DaimlerChrysler. Buzz Hargrove, the CAW president,
was permitted to address the approximately 1,700 employees of
Sterling Truck at the workplace. 1°1 The CAW alleged publicly that.
contrary to the neutrality agreement, the employer engaged in intimi-
dation of workers prior to the vote, and threatened to close the plant if
the union won. However, these allegations were never litigated. 102 In
any event, the CAW subsequently lost an OLRB-conducted election
in October 2000, receiving only 36.6 percent of the votes.
Then, in September 2002, the CAW negotiated a letter with
DaimlerChrysler that required the employer to recognize the CAW at
its subsidiaries if a card check verified that the union had majority
98 G. Keenan, "Is Ford's 'neutrality letter' an empty gun?" The Globe and ,Vail,
September 23, 1999, p. B1; V Lu. "CAW pushes for help in unionizing drives,"
The Toronto Star, September 29, 1999, p. E5; V. Lu. "CAW presses drive for
union at Magna," The Toronto Star, October 7. 1999, p. DI; "The CAW wins
big but loses face: Unions shouldn't try to organize one company by threatening
strikes against a second," lhe Globe and Mail, October 7,1999, p. A18; G.
Keenan, "CAW claims majority at site of former defeat," The Globe and -Wail,
October 11, 1999, p. B9.
99 Letter on file with author.
100 Letter from DaimlerChrsyler to Buzz Hargrove, 1999, on file with author.
101 CAW Press Release, "Agreement allows CAW president access to workers dur-
ing organizing drive" (October 10, 2000); Keenan,"CAW claims majority at
site of former defeat," supra, note 98.
102 "Canadian Auto Workers Lose Vote for Representation at Sterling Truck Plant,"
Daily Labor Report, October 18, 2000, p. A-9.
support among bargaining unit employees. A couple of months later,

the CAW successfully used that letter at the Sterling Truck plant. A
card check conducted by a Labour Relations Officer of the OLRB
confirmed that the union had obtained approximately 70 percent
membership support. 10 3 As a result, the employer "voluntarily" rec-
ognized the CAW. 04
4. NEUTRALITY AGREEMENTS, LABOUR POLICY

AND REGULATORY THEORY
(a) "Decentred" Regulation and the Role of the State
From the perspective of regulatory theory, the most interesting

aspect of neutrality agreements is that they have emerged without the
direct involvement of the state, and sometimes because of pressures
exerted on employers by a multitude of private actors working along-
side the unions. However, while neutrality agreements constitute a
form of "self-regulation" -a system of private governance created
and defined by non-state actors- the state is not entirely absent.
Rather, neutrality agreements are bargained "in the shadow" of the
state's labour laws, and are designed specifically with that state-
based regulation in mind.
This description borrows liberally from the discourse associ-
ated with the "decentred" school of so-called post-modern regulatory
theories, which includes Teubner's "reflexive law," 105 Ayres and
103 See Sterling Trucks, a Division of Freightliner Ltd., [2002] O.L.R.D. No. 3575
(QL). The OLRB dismissed as frivolous a complaint by an employee that the
recognition was void because employees had not had an opportunity to partici-
pate in a ballot. See press release, "Freightliner Sterling Truck Certified after
10 Year Campaign,' available online at <http://www.caw.ca/news/videonews/
arch ivesiFreightliner certified.asp>.
104 Ibid.
105 Gunther Teubner has developed the theory of reflexive law in a body of work
that includes "Substantive and Reflexive Elements in Modern Law" (1983), 17
Law & Soc'y Rev. 239 [hereinafter "Reflexive Elements"]; Law as an
Autopoietic System (London: Blackwell, 1993) [hereinafter Autopoietic System];
"After Legal Instrumentalism? Strategic Models of Post-Regulatory Law," in G.
Teubner, ed., Dilemmas in the elfare State (Berlin: DeGruytner, 1985). See
also R. Rogowski & T.Wilthagen, eds., Reflexive Labour Law: Studies in
Industrial Relations and Employment Regulation (Deventer: Kluwer, 1994).
1 6 1° 7
Braithwaite's "responsive law," 1 and the "third way' associated
most directly with the work of Anthony Giddens. 1°*
These theories
share important normative and prescriptive similarities. First, they
perceive the state as possessing limited capacity to govern complex
social and economic behaviour through "command-and-control" (or
"substantive") regulation, which seeks to obtain instrumental out-
comes by commanding actors to comply with rules under the threat
of state-backed sanctions. 1°9 The extent to which the supposed
demise of the state's power to command substantive outcomes is
emphasized varies among the authors. Teubner has argued that the
autonomy of social subsystems in complex societies means that
"[o]nly indirect intervention is possible,"' 0 and that legal regula-
tion "has little chance of being obeyed when it comes into direct con-
flict with the profit motive.""' Others, especially North Americans,
argue that while command-and-control regulation continues to be
both necessary and preferable in many instances, experience has
shown that it cannot deal effectively with some types of economic
106 1.Ayres & J. Braithwaite, Responsive Regulation: Transcendingthe Regulation

Debate (Oxford: Oxtord University Press, 1995).
107 See A. Giddens, The Third Tay: The Renewal of Social Democracy
(Cambridge: Polity Press, 1998); H. Collins, "Is There a Third Way fbr Labour
Law?" in A. Giddens, ed., The Global Third R~ay Debate (London: Blackwell,
2001); W. Gould, "The Third Way: Labor Policy Beyond the New Deal" (2000),
48 U. Kan. L. Rev. 751; K. Miller, "Recognition of Trade Unions: A Third
Way" (2000), 4 Edinburgh L. Rev. 206.
108 For a description and analysis of the emergence of these "decentred" regulatory
approaches, see J. Black, "Decentring Regulation: Understanding the Role of
Regulation and Self-Regulation in a 'Post-Regulatory' World" (2001), 53 Curr.
Legal Probs. 103 [hereinafter "Decentring Regulation"]; J. Black, "Procedural-
izing Regulation: Part 1" (2000), 20 Oxford J. Legal Stud. 597 [hereinafter
"Proceduralizing, Part I"]; J. Black, "Proceduralizing Regulation: Part IF' (2001),
21 Oxtord J. Legal Stud. 33.
109 See Black, "Decentring Regulation," ibid., at p. 106.
110 Autopoietic System, supra, note 105, at p. 79.
111 lbid., atp. 91.
and social problems. 112 In either characterization, decentred regu-

lation is proposed as a solution to the incapacity of command-and-
control regulation.
Second, the decentred approach to regulation emphasizes the
pluralistic nature of modern governance. Underlying each of the the-
ories is the recognition that the state "does not have a monopoly on
the exercise of power and control, rather that it is fragmented
between social actors and between actors and the state." 113 Therefore,
the decentred approach, like legal pluralism more generally, empha-
sizes the many places and settings in which norms are developed and
implemented, and the many actors involved in the creation of these
norms. The state is only one of many sources of governance in a soci-
ety, and the causal relationship between formal regulation and private
behaviour is perceived as ambiguous at best.
The third common element of all decentred approaches to regu-
lation relates to the regulatory strategies they prescribe. The common
theme is that the state should act "indirectly," by influencing the
development of norms by non-state actors, while still playing an
important role in defining what those norms should be:
The normative aspect of the new understanding of regulation is that interven-
tion in the self-regulation of social actors .. has to be indirect. It has to har-
ness that self-regulatory capacity but ensure that it is used for public policy
ends, by adjusting. balancing, structuring, facilitating, enabling, negotiating,
but never directly telling and never directly trying to control.'14
Thus, the decentred approach challenges the state to recognize its own
regulatory limits and, at the same time, the potential of private actors
to develop norms and practices that are consistent with the aims and
objectives of state policy. These theories maintain that, rather than
"command" substantive legal outcomes, the state should encourage
112 See, e.g., E. Orts, "Reflexive Environmental Law" (1995), 89 Nw. UL. Rev.
1227, at pp. 1257-1260, and p. 1263: "Given conditions of social complexity
including the phenomenon of social differentiation, one may inquire in each
particular area of law whether reflexive strategies would be preferable to
others. From this perspective, modern law may usefully be conceived as a
mixture of ideal types: tormalimarket based, substantive/command and control,
and reflexive."
113 Black, "Decentring Regulation," supra, note 108, at p. 108.
114 Ibid., atp. 126.
"negotiative strategies of regulation," and pursue instrumental policy

objectives by influencing the conditions under which actors in a soci-
115
ety bargain and engage one another in the private sphere.
Ayres and Braithwaite argue that "responsive regulation" must
recognize the important role that civil society groups can and do play
in influencing corporate conduct, and learn to harness their power
through effectively designed regulation." 6 Giddens, similarly, writes
of the need to "harness" the energy of civil society groups "in ways
7
that benefit local communities as well as the society as a whole!" 1
And Teubner argues in his theory of "reflexive law" for the empow-
erment of the norm-producing potential of "intermediary institu-
tions" situated between the state and markets. which include unions
and NGOs. 11s Decentred regulation emphasizes procedural regula-
tion, the establishment of the conditions or frameworks under which
norms are created. Thus, for example, Rogowski and Wilthagen1 19
argue that the role of "reflexive labour law" is to provide "the proce-
dural framework" within which labour norms and standards are
developed through self-regulation -for example, collective bar-
gaining and grievance arbitration.120
(b) Decentred Regulation and Labour Law
The relationship between labour law and decentred regulatory

theories is an ambivalent one. On one hand, those who understand
decentred regulation as prescribing a diminished role for the state
in the governance of labour relations and work tend to react with
115 See, e.g., Black, "Proceduralizing, Part I,"

supra, note 108, at p. 601.
116 Ayres & Braithwaite, supra, note 106. See also N. Gunningharn & P.Grabosky,
Smart Regulation: Designing Em,ironmental Policy (Oxford: Clarendon Press,
1998).
117 Giddens, fhe Third May,supra, note 107, at p. 80.
118 Tuebner, "Reflexive Elements," supra, note 106. See also Orts, supra, note 112,
at p. 1264.
119 R. Rogowski & T. Wilthagen, "Reflexive Labour Law: An Introduction," in
Rogowski & Wilthagen, supra, note 105, p.1,at p. 16.
120 R.Rogowski, "Concept of Reflexive Labour Law: Its Theoretical Background
and Possible Applications," in J.Priban & D. Nelkin, eds., Law s New
Boundaries: The Consequences oJ Legal Autopoiesis (Aldershot: Ashgate,
2001) 179, at p. 182.
suspicion or outright hostility. 12 1 Decentred regulatory theories are

often criticized on the basis that they lack substantive content. Black
has argued, for example, that by focusing on the procedural means of
achieving state objectives. decentred theories "can divert attention
from the issue of how those ends should be defined, and by
whom." 122 Decentred approaches to regulation which draw on sys-
tems theories, including reflexive law, attract the criticism made
against systems theories more generally: that they tend to absorb,
internalize and minimize the role of social and class conflict, and that
they disregard power discrepancies within society and the state's role
1
in perpetuating them. 23
These are serious criticisms because, in the famous words of
Kahn-Freund, the "main object of labour law has always been, and...
will always be, to be a countervailing force to counteract the inequal-
ity of bargaining power which is inherent and must be inherent in the
employment relationship."' 21 The state is presumed to play a crucial
role in altering power relations in the employment context, as it alone
can legitimately use force to impose restrictions on the exercise of
social and economic power by employers, and to confer rights on
workers and unions. A prescription to "decentre" the state in the gov-
ernance of labour relations sounds alarmingly similar to calls to
"deregulate," a mantra that is also usually (although not always accu-
rately) associated with a reduced role for the state and greater
reliance on other governance mechanisms.
On the other hand, despite this resistance to decentred regula-
tory theory within the labour law academy, the bundle of laws we
understand as "labour law" has long included components that are
121 D. Kettler & P. Warrian, "American and Canadian Labour Regimes and the
Reflexive Law Approach," in Reflexive Labour Law,supra, note 105, p. 95, at
p. 97.
122 Black, "Proceduralizing, Part 1"supra, note 108, at p. 598.
123 See, e.g., H.Collins, Reflexive Labour Law - Book Review (1998), 61 Mod. L.
Rev. 916, atp. 920.
124 0. Kahn-Freund, Labour and the Law (London: Stevens & Sons, 1972). at
p. 8.
decentred in both form and philosophy.125 Legal models which regu-

late union recognition and "good faith" collective bargaining, which
define appropriate bargaining units, which encourage and guide pri-
vate models of dispute resolution (such as grievance and interest
arbitration) and shield those processes through strong privative
clauses, and which recognize and regulate the "right to strike," are
designed to promote private negotiation of norms and rules within a
framework that seeks to alter power relations in matters of contract
and property. In this way,the state uses regulation to influence sub-
stantive outcomes indirectly while preserving the autonomy of pri-
vate bargaining. As Arthurs has noted, the central goal of labour law
has always been to "regulate and reform the indigenous production
and enforcement of norms within the workplace."' 26 The same obser-
vation led Teubner to identify collective bargaining law as a principal
127
example of reflexive regulation.
(c) Neutrality Agreements in the Shadow of the Law
Much of the controversy I have just outlined arises from misun-

derstandings or disagreements about what precisely is intended by
the notion of decentred regulation in the labour law context. For my
purposes here, I describe decentred labour regulation broadly to
125 See, e.g., J. Murray, "The Sound of One Hand Clapping? The Ratcheting
Labour Standards Proposal and International Labour Law" (2001), 14 Austl. J.
Lab. L. 306, at p. 308, noting the "long history of regulatory innovation in
labour relations, which has for over 100 years exhibited at least some of the
characteristics of the recently proclaimed 'new'techmiques of regulation", P.
Selznick, Lan Society and Idustrial Justice (New York: Harper, 1978).
126 Arthurs, supra, note 12, at p. 3.And see also Gould, supra, note 107, at p. 752,
describing the "genius" of the Magner AIct as being its fundanental presump-
tion that responsibility for the social contract should be placed "inthe hands of
the parties themselves to be resolved through collective bargaining."
127 Teubner, "Reflexive Elements," supra, note 105, at p. 276: "Labor law ...is,
with respect to collective bargaining, characterized to some degree by a more
abstract control technique in which we can recognize a 'reflexive' potential.
The legal regulation of collective bargaining operates principally by shaping the
organization of collective bargaining, defining procedural norms, and limiting
or expanding the competencies of the collective actors. Law attempts to balance
bargaining power, but this only indirectly controls specific results."
include those regulatory techniques that are intended by states to pro-

duce labour standards and practices consistent with public policy, not
by directly legislating them into employment contracts, but by influ-
encing the conditions and settings in which standards and practices
are negotiated privately by workers and employers. Even this rela-
tively broad and straightforward definition leaves considerable room
for disagreement, both in identifying when decentred regulation is
present and in evaluating its success or failure.
Consider, for example, the state's role in the emergence and
form of neutrality agreements in North America. Neutrality agree-
ments define norms through private negotiation, but they do so in the
context of the existing labour law. That law influences the sources of
leverage and power that the parties can use to seek or reject these
agreements. It influences the content of the agreements, informs the
parties what will happen if an agreement is reached, and determines
the default position if one is not. It also determines when, how, where
and whether neutrality agreements can be enforced. By adjusting any
of these aspects of the law relevant to neutrality agreements, the state
can influence their utility and viability as an industrial relations tool.
But does the fact that labour law so clearly influences neutrality
agreements as a form of private ordering establish that there is decen-
tred regulation at work here? After all, in both Ontario and the U.S.,
voluntary recognition and other private arrangements governing cer-
tification campaigns pre-date the enactment of labour legislation, and
are therefore not inventions of the state and of regulation. The fact
that private actors react to a law, and arrange their affairs in response
to legal signals and restraints, is not sufficient to make that law
decentred; all types of regulation can, and are intended to, cause
those sorts of reactions. What is needed is policy, a deliberate strat-
egy of the state to use regulation to achieve policy objectives by har-
nessing and influencing in an indirect manner the norm-creating
potential of private actors.
Thus, we might understand neutrality agreements as attempts
by private actors to avoid the state's union recognition process, to
avoid a law that is perceived to conflict with the interests of the actors
(expanding union membership, improving cooperation and trust in
the workplace, and so on). In that understanding, the state is a victim
of the limitations of regulation: it wants the parties to behave in a
particular way, yet they resist and devise other ways of ordering their
affairs that make more sense to them. However, we can imagine a

world in which the state has a decidedly different relationship to neu-
trality agreements. For example, a state may believe that the labour
relations climate will be more stable if unions and employers bargain
recognition issues themselves rather than have outcomes imposed on
them. The state might therefore seek to use regulation to encourage
unions and employers to negotiate recognition issues and neutrality
agreements as a means of implementing the state's vision - for
example, by empowering unions to bargain such arrangements, and
by building in incentives for employers to voluntarily recognize a
union that represents a majority of workers.
This latter approach is evident in the statutory recognition sys-
tem introduced in Britain in 1999.128 The Employment Relations Act,
1999 created a highly complicated process, the end result of which
may be an order by the Central Arbitration Committee (CAC) that the
employer recognize and bargain with a union which has proven that a
majority of bargaining unit employees are "likely to favour recogni-
tion." 129 However, a recognition order is the default model; the legis-
lation is clearly designed to "edge the parties into voluntary,
collective agreements without resort to legal sanction.' i0
The process begins when a union requests voluntary recogni-
tion after having collected union membership cards. The employer
can refuse this request, but then will find itself swept into the regula-
tory process, which includes "built in provisions at every stage to
help the parties reach agreement, in the first instance or later." 13 1The
employer knows that if no deal is reached, certification based on a
card-check process may result, or a recognition election will be
ordered. If a vote is ordered, the law imposes strict obligations on the
employers, including a duty to "co-operate" in the process, to pro-
128 Trade Union and Labour Relations (Consolidation) Act, 1992, Sch. Al.
129 For analysis of the British recognition model, see Miller, supra, note 107: S.
Wood & J. Godard, "The Statutory Union Recognition Procedure" (1999), 37
Brit. J Indus. Rel. 203; B. Wedderburn, "Collective Bargaining or Legal
Enactment: The 1999 Act and Union Recognition" (2000), 29 Indus. L.J. 1; B.
Simpson, "Trade Union Recognition and the Law: A New Approach" (2000),
29 Indus. L.J. 193.
130 Wedderburn, ibid., at p. 2. See also Wood & Godard, ibid., at p. 204: Simpson,
ibid., at p. 194.
131 Wedderburn, ibid., at p. 34.
76 CDN. LABOUR & EMPLOYMENT LAW JOURN [LLAL
[13 C.L.E.L.J.]
vide the union with access to the workplace to communicate with

employees, and to give the names and addresses of employees to
a CAC scrutineer, who can then forward union literature to the
employees. The employer must also share the cost of the election
with the union. Thus, the longer the employer resists voluntary
recognition, the more the state interferes with the employer's prop-
erty rights. Moreover, the union retains the right throughout to use
the strike weapon to push the employer toward recognition, provided
that the union satisfies the usual procedural requirements, including
winning a strike vote. The expectation of the Labour government was
that most employers would forgo the arduous statutory process, vol-
untarily recognize the union, and get on with bargaining, either to
avoid the statutory process altogether or to avoid most of it once they
realized that the union was likely to obtain bargaining rights in any
event. Law is therefore used to facilitate this desired outcome, and it
12
has been quite successful in this pursuit. 1
Note that there is an important difference between the "third
way" approach to union recognition in Britain and the state's role in
the governance of neutrality agreements in North America. The
British government uses regulation to encourage voluntary recogni-
tion, and to this end has legislated the sort of rights North America
unions have tried to achieve privately in neutrality agreements- a
card check process, communicative access to employees, and "coop-
eration." The state uses these mechanisms as disincentives for
employers to resist voluntary recognition if a union has the support of
a majority of workers. In Ontario and the U.S., on the other hand,
governments do not actively encourage voluntary recognition, even if
the union has the expressed support of every employee eligible for
collective bargaining in the form of a membership card. Rather, vol-
untary recognition is tolerated, but the employer preference for the
adversarial statutory certification process is clearly reflected in the
governing public policy, which grants employers the unilateral right
132 See, e.g., S. McKay & S. Moore. "Union Recognition in the Shadow of the
Law" (2004), 33 Indus. L.J. 374: G. Gall, "The First Five Years of Britain's
Third Statutory Union Recognition Procedure" (2005), 34 Indus. L.J. 345, at
p. 347.
to insist on a vote regardless of the union's level of support, and

which protects the sanctity of employer property rights during the
pre-election period. The point is not that the British model is prefer-
able the differences in industrial relations culture, history, and
supporting law make direct comparison difficult- but rather that
there are different ways the state can use regulation to influence pri-
vate ordering of union recognition issues.
We should anticipate that this distinction between active state
encouragement of voluntary ordering (in Britain) and mere toleration
of it (in North America) will be evident in the law that governs neu-
trality agreements. An examination of this law is the subject matter of
the remainder of this paper. In particular, I explore the role of the
state in influencing the development, the form, and the viability of
neutrality agreements as a form of private ordering in Ontario. This
exercise presents an opportunity to explore the law of neutrality
agreements at an intriguing early stage in their development. It also
allows us to consider the potential usefulness of a decentred orienta-
tion to regulation in the context of a specific form of private ordering
which purports to facilitate expressed state objectives, including the
promotion of access to collective bargaining and greater cooperation
between unions and employers in resolving disputes.
5. NEUTRALITY AGREEMENTS AND ONTARIO

LABOUR LAW
Decentred regulation is instrumental law. The state must define

its policy objectives, which is the necessary first step in every regula-
tory exercise. Does the state wish to encourage collective bargaining
and unionization, or to discourage them? Does the state want to limit
industrial conflict, or does it see the threat of economic sanctions as a
useful device for resolving conflict and redistributing economic and
social power? Is its goal to promote individual rights at work or col-
lective rights, or both, and if the latter, how should these two goals be
balanced? Does it want to encourage cooperation between employers
or unions, or strengthen the rights of employers to manage their busi-
nesses as they deem necessary? Neutrality agreements must then be
assessed in relation to their potential to advance the state's objec-
tives. My discussion of neutrality agreements and the Ontario law
begins, therefore, with a brief discussion of the potential contribu-

tions to labour relations of this form of private ordering.
(a) Neutrality Agreements and Labour Policy
In the U.S., some opponents of neutrality and card-check agree-

ments argue that they amount to contracting out of the state's objec-
tive of encouraging "democracy" in the form of representation
elections and contested campaigns. The problem with this argument
is that the state and the legal subsystem have for many years commu-
nicated conflicting objectives, favouring votes. even though, as
Brudney notes, "encouraging management and unions to resolve
their differences on a voluntary and peaceful basis - through agree-
ments that are individually tailored and privately enforceable - has
long been a fundamental tenet of federal labor policy."' 33 One obvi-
ous manifestation of this policy objective is the system of voluntary
recognition, which both pre-dates the Wagner Act and is respected in
it. If the union can prove its majority support in some way, the state
accepts voluntary recognition as a valid and useful process which
furthers industrial peace and access to collective bargaining. The pol-
icy is evident too in how the law treats the campaign period. True,
employers are afforded considerable discretion to exploit property
and expression rights for their own advantage, but American law has
never required employers to resist unions or to deny them access to
employer property.
The same is true of Ontario law. Voluntary recognition has a
long history in Canadian industrial relations, and for good reason. It
reduces the strain on public resources by avoiding protracted admin-
istrative hearings, and both unions and employers support it as a rea-
sonable and useful tool where neither party perceives added value in
using the labour board's certification process. Indeed, amendments to
the OLRA by the governing New Democratic Party in 1993 conferred
important new rights on voluntarily recognized unions, including the
right to conciliation and the right to strike, and these amendments
survived a flurry of statutory amendments introduced by subsequent
133 Brudney, supra, note 1. at footnote 184 and accompanying text; MGM Grand
Hotel, 379 N.L.R.B. 464 (1999), at pp. 466-467.
Conservative and Liberal governments. 1 4 This sends a strong signal

that the state supports voluntary ordering at the recognition stage.
Moreover, there is a strong normative claim that neutrality agree-
ments promote values that Ontario public policy ought to support.
These agreements seek to reduce the level of hostility and mistrust
between employers and unions, and among employees, which is often
generated by hard-fought organizing campaigns and which can linger in
a workplace and disrupt productivity long afterwards. Neutrality agree-
ments can encourage cooperation, goodwill, and mutual respect
between employers and unions, 13 5 qualities that a growing body of liter-
ature emphasizes as important to successful labour relations in the age
of globalization.' 36 Insofar as neutrality agreements might facilitate
union organizing, they advance the values usually associated with col-
lective bargaining, including greater democracy in the workplace,
which in turn can have positive effects in other social and economic
contexts. Recent evidence indicates that neutrality agreements make it
more likely that a first collective agreement will be reached. r For
employers, neutrality agreements offer a bargaining chip that can be
used to obtain union concessions in other areas. For unions, the process
of negotiating neutrality agreements might have the additional benefit
of facilitating a greater sense of worker solidarity, because it focuses the
attention of unionized workers on the interdependence between their
own interests and those of non-unionized workers. And because such
agreements allow parties to address solutions to local problems, they
are supported not only by unions but by many employers as well. 138
From the perspective of state policy, these are strong theoretical
and normative arguments in favour of state support for neutrality
134 OLRA, s. 16. The 1993 amendments clarified that the right to serve notice to
bargain (which in turn activates the duty to bargain in good faith and the right to
invoke conciliation) applies not only to a certified union, but also to one that is
voluntarily recognized.
135 See, e.g., Craft, supra, note 47, at p. 757.
136 See, e.g., Conference Board of Canada, IndustrialRelations Outlook: Shifting
Ground Shifting Attitudes (Ottawa, 2006).
137 See Kriesky & Eaton, supra, note 3.
138 See the submission of Liz Claiborne Inc., which argued that neutrality agree-
ments and the card check "can help maintain stable labor relations by avoiding
election campaigns that may be disruptive." Available online at <http:iiwww.
nlrb.govinlrbiabout/foia/DanaMetaldyne!DanaMetaldyneAmicusBriefs. asp>.
agreements. However, even if the state accepts at a general level that

neutrality agreements may advance useful labour policy objectives, it
still needs to sort out how far this support should go, and what form it
should take. There is obviously an important difference between tol-
erating private ordering and encouraging it, a difference that is essen-
tial to understanding decentred regulation.
For example, a state may find value in permitting bargaining
autonomy so long as employers find neutrality agreements useful and
enter into them voluntarily. The state might adopt a quite different view
if employers were to complain that unions were using threats (legal or
otherwise) to pressure them to accept such agreements. The state might
also be concerned about the impact of neutrality agreements on not-yet-
unionized employees who are the target of the agreements. It must
ascertain the effect of neutrality agreements on employees' opportunity
to make a free, informed decision about unionization. It could then
consider whether and how regulation might seek to influence bargain-
ing outcomes, so that the benefits of voluntary ordering are realized
without sacrificing other important state objectives.
These are difficult challenges. A useful point of departure is to
observe how unions and employers are already engaging one another
in the process of bargaining and implementing neutrality agreements.
This will help us to identify how the state's legal signals are being
translated into practice by private actors, and it may uncover possi-
bilities for regulatory intervention that might nudge the parties
toward negotiated outcomes desired by the state.
To that end, I now turn to a discussion of existing law in Ontario,
and of how it influences neutrality agreements at four key moments in
the life of those agreements: (1) at the bargaining stage; (2) in the
determination of the content or substance of the neutrality agreement;
(3) in the implementation of the agreement; and (4) in its enforcement.
(b) How Do Ontario's Labour Laws Influence

Neutrality Agreements?
(i) Collective BargainingLaw and the Right to Strike
The state can influence the negotiation of neutrality agreements

by adjusting the relative power of the parties during the bargaining
process. For example, if the state allows unions to take strike action
to win neutrality agreements, it communicates a message to employ-

ers to bargain seriously about these union proposals, and to carefully
weigh the costs and benefits of relinquishing the right to oppose
unionization and to insist on an election. It sends a similar message to
the union and to bargaining unit employees, because it requires them
to weigh carefully how important neutrality agreements are, and
what costs they are prepared to incur to win them. It is notable that in
the U.S., when unions have won neutrality agreements, it has rarely
been through industrial action but through other forms of union pres-
sure, including public relations campaigns against corporations and
threats of non-cooperation or disruption of corporate initiatives.
Therefore. we should not overestimate the importance of the right to
strike in considering the state's role in the development of neutrality
agreements. But it is important to understand whether that right
exists, because its presence or absence will affect the power balance
and can tell us a good deal about how much the state values this form
of private ordering.
In the U.S., as in Canada, the state uses the duty to bargain in
good faith to guide the subject matler of collective bargaining toward
a bundle of topics acceptable to the state. The NLRB has developed a
dichotomy between mandatory and permissive subjects of bargain-
ing. 1' 9 Strikes are permitted in support of proposals for mandatory
terms, but not permissive ones. 14° Although the parties can voluntar-
ily negotiate on a permissive subject, neither party is required to do
so, and if a party presses a permissive subject to impasse, that consti-
tutes a breach of the duty to bargain in good faith. 1 ' Under American
labour law, a mid-term breach of a collective agreement provision is
also a violation of the duty to bargain, contrary to the NLRA, but only
139 ATLRB v Borg- arner Corp., 356 U.S. 342 (1958).

140 See, e.g., Lone Star Steel Co. v AiLRB, 639 F.2d 545 (1980).
141 NLRA, s. 8(d). See also Allied Chemical & Alkali Workers oJ Anierica v.
PiatsburghPlate Glass Co., 404 U.S. 157 (1971). at pp. 185-186: "just as s. 8(d)
defines the obligation to bargain to be with respect to mandatory terms alone, so
it prescribes the duty to maintain only mandatory terms without unilateral mod-
ification for the duration of the collective bargaining agreement."
if the provision governs a mandatory subject of bargaining. 142

Therefore, if an employer who agrees to a neutrality agreement later
resiles from the agreement, the union can file an unfair labour prac-
tice complaint alleging a breach of the duty to bargain. In that sce-
nario, a threshold issue for the NLRB is whether the terms the
employer is alleged to have violated are mandatory.
A mandatory subject of bargaining is one that governs wages,
hours, and other terms and conditions of employment of bargaining
unit employees. It also includes terms that, while directly addressed
at the interests of third parties (such as non-bargaining unit employ-
ees), "vitally affect" the terms and conditions of employment of bar-
gaining unit employees as well. 11 3 With respect to a neutrality
agreement, this test requires an assessment of the linkage between
the terms of the agreement and the interests of the existing bargaining
unit members. It asks, in other words, whether bargaining unit
employees benefit from agreements that purport to make it easier for
their union to gain representation rights for non-union employees of
their employer.
It is not difficult to envision the potential benefit of such agree-
ments. Greater union density enhances the power of unions in a num-
ber of ways; for example, it reduces the threat that the employer will
14
contract out bargaining unit work to avoid a collective agreement.
However, the NLRB and U.S. courts have not always perceived the
problem in these terms, and the law remains in a state of flux. The
D.C. District Court recently considered a term in a letter of agree-
ment which required the employer to "extend recognition" to the
union at a non-union facility "in the event that [the employer]
142 Ibid See also Houston Division of Kroger Co., 219 N.L.R.B. 388 (1975). A
breach of a permissive term may be challenged at arbitration or in court under s.
301 of the Labor-.fanagemcnt Relations Act, U.S.C.A. §185(a), but not before
the NLRB as a breach of the duty to bargain.
143 Teamsters v. Oliver, 358 U.S. 283 (1959); Pittsburgh Plate Glass, supra,
note 141.
144 See [EC.FC1 v ,Afeler Inc., 329 N.L.R.B. 69 (1999), where the Board upheld
the right of a union to use dues to organize non-union employees on the basis
that the spread of collective bargaining "may ultimately inure to the benefit of
the members of the local union by virtue of their membership." See also Pall
Corp. v. \'LRB, 275 F.3d 116 (D.C. Cir. 2002).
employs one or more employees performing bargaining unit work" at

that facility.141 When that event happened, the employer refused to
abide by the term in question. The union filed an unfair labour prac-
tice complaint, arguing that because the recognition clause was a
mandatory subject of bargaining, the employer was in breach of the
duty to bargain by not complying with it." 6 The employer contended
that the recognition clause was permissive, and could therefore be
unilaterally revoked.1 17 Thus, the issue before the NLRB was whether
the agreement to recognize the union was a mandatory term. The
Board agreed with the union, read into the contract a requirement that
the union prove majority support before the clause would take effect.
and found that the employer had waived its right to an NLRB vote
when that condition had been met.'
The reviewing court disagreed.1 9 It applied a two-pronged test.
The first prong required that the contract term "vitally affect" the bar-
gaining unit employees. This was satisfied here, because the employ-
ees were so concerned about their work being transferred to the
non-union facility that they engaged in a strike until the employer
agreed to the letter of understanding. However, the agreement failed
the second prong of the test, which required that the term constitute
,a direct frontal attack upon a problem thought to threaten" the inter-
ests of the bargaining unit employees. The Court ruled that a contract
which required the employer only to recognize and begin to bargain
with the union did not attack the threat directly. because there was no
145 Pall Corp., ibid.

146 This was the reasoning in the earlier case of Kroger, supra, note 142.
147 As noted, the agreement might be enforceable at arbitration if the agreement
included an arbitration clause, or under s. 301 of the LAIRA. However, there are
benefits to unions in obtaining a remedy from the NLRB. For example, employ-
ees who engage in a strike because of an employer unfair labour practice
(including a failure to bargain in good faith) are entitled to reinstatement to
their employment following the strike. Employees who engage in an "economic
strike" (i.e., one not instigated or prolonged by employer unfair labour prac-
tices) can be permanently replaced: see P. Hardin & J.Higgins, eds., The
Developing Labor Law: The Board, the Courts, and the National Labor
Relations Act, 4th ed. (Washington: Bureau of National Affairs, 2001), vol. 2, at
pp. 1471-1478 and cases cited therein.
148 Pall Corp., 331 N.L.R.B. 192 (2000).
149 Pall Corp., supra, note 144.
guarantee that it would lead to a deal which protected these employ-

ees. The peculiar result under this test is that whether a neutrality
agreement is mandatory or permissive depends upon how compre-
hensive it is in terms of imposing an actual collective agreement on
the newly organized employees. 1"' It is an odd, circular test, because
it makes the distinction between mandatory and permissive terms
contingent upon the outcome of bargaining. It encourages unions to
propose neutrality agreements that impose not only requirements for
neutrality, access, and voluntary recognition upon proof of majority
support, but also the extension of existing collective agreements to
newly organized units. The more onerous the requirements in the
unions proposal, the more likely it is that the agreement will be
treated as a mandatory subject of bargaining entitling the union to
strike to achieve it.
The NLRB general counsel took a different approach in a case
called Sahara Hotel.1"' He started from the assumption that "after
acquired" clauses, which apply an existing collective agreement to a
new unit of employees upon a showing of majority support by
employees in that unit are mandatory, in accordance with the NLRB's
earlier decision in Kroger."52 The general counsel surmised from this
that terms which facilitate the implementation of an "after acquired"

clause, such as union access and the provision of an employee roster.
are also mandatory subjects of bargaining.' 11 Thus, according to the
General Counsel, of the typical clauses found in U.S. neutrality agree-
ments, only neutrality pledges were permissive, while all other terms
were mandatory subjects of bargaining. Neutrality pledges were per-
missive because they involved a waiver of an explicit statutory right to
1
engage in non-threatening, non-coercive speech. 4
To put it mildly, the mandatory/permissive distinction in U.S.
law transmits an extremely ambiguous signal to the industrial rela-
tions actors about the utility of neutrality agreements. Despite over
150 See M. O'Brien Hylton, "The Impact of Pall on Bargaining: A Circuit By

Circuit Analysis" (paper presented to the ABA Labor and Employment Law
section, February 16-19, 2003, Puerto Vallarta, Mexico).
151 Sahara Mernorandum, supra, note 75.
152 Kroger, supra, note 52.
153 SaharaMemnorandu, supra, note 75, at pp. 3 and 7.
154 Ibid., at p. 6. See also Hartley, supra, note 1, at pp. 397-398.
30 years" experience with these agreements, it remains unclear

whether certain terms commonly found in them constitute permissive
or mandatory subjects of bargaining, and thus whether workers can
go on strike to obtain them.
The mandatory/permissive dichotomy has not been followed in
Canada. The general approach of Canadian labour relations boards is
to confer wide discretion on the parties to define the scope of collec-
tive bargaining and to limit the role of the boards in regulating the
content of bargaining proposals. 155 For example, as Chair of the B.C.
Labour Relations Board, Weiler ruled that a union could bargain to
impasse terms that applied to former employees or non-bargaining
unit employees. 56 In doing so, he rejected the employer's argument,
along American lines, that proposed terms not directly relating to the
conditions of work of bargaining unit employees were "permissive."
Weiler wrote:
The whole point of a system offree collective bargaining is to leave it to the
parties to work out their own boundary lines between the area of mutual
agreement and the area of unilateral action ....[T]he test of whether a partic-
ular objective is sufficiently pressing to one party to have moved into the area
of mutual agreement is the price that that party is willing to pay for such a
move: either by concessions elsewhere in the contract or by the losses
7
5
inflicted by a work stoppage.
In other words, the parties can bargain to impasse even matters that
do not directly govern the conditions of employment of bargaining
unit employees.'
As in B.C., the law in Ontario permits the parties to choose their
own bargaining topics, subject to the important proviso that neither
155 Pull) & Paper IndustrialRelations Bureau and CP1, [1978] 1 Can. L.R.B.R.
60 (B.C.L.R.B.).
156 Ibid., at p.80.
157 Ibid., at pp. 79-80 [emphasis in original].
158 But see Masonry Contractors Ass'n of Toronto, [1996] O.L.R.B. Rep.
(November/December) 951, where the Ontario Board ruled that it was a breach
of s.17 of the OLRA for a union to bargain to impasse a term that "has nothing
directly to do with the collective bargaining relationship" (at p. 963). The union
sought to require the employer to pay dues to an employers' association wxith
whom the employer did not have an existing relationship. The Board recog-
nized that this was an unusual finding involving unusual facts.
party can bargain to impasse a term that is illegal 159 or otherwise

inconsistent with the scheme of the OLRA. 160 For example, a union
cannot bargain to impasse a term requiring the employer to "volun-
tarily recognize" the union for a new unit of employees because vol-
untary recognition in the absence of majority support within the
bargaining unit is inconsistent with "an underlying requirement" of
16
the Act that representation rights be based on such support. ' If
either statute or common law prohibits the release of home addresses
of employees, a term requiring disclosure to a union which does not
162
have representation rights for the workers would be illegal.
In Brantford Expositer, the Board explained that bargaining
unit scope and "other matters of recognition" were "fundamental to
the scheme of the Act," and that the parties therefore cannot bargain
these issues to impasse. 16' Neutrality agreements do not typically
require recognition without evidence of majority support, so the con-
cern about the absence of majority support will not usually arise. On
the other hand, a neutrality agreement that requires voluntary recog-
nition in a new unit based on a card check would appear to raise
"matters of recognition." For example, if an employer refuses to
agree to the bargaining unit description for a unit which would be
recognized pursuant to a card check, the OLRB would not likely per-
mit the union to call a strike over that issue, for the reasons expressed
159 T Barbisen & Sons, [1960] O.L.R.B. Rep. (May) 80; Croven Ltd., [1977]
O.L.R.B. Rep. (March) 162; Canada Bread (1945), 46 C.LL.C. 1116,430 (Ont.
L.R.B.): Cyprus Anvil Mining Corp., [1976] 2 Can. L.R.B.R. 360 (C.L.R.B.).
160 Connercil Graphics Ltd., [1993] O.L.R.B. Rep. (June) 483. See also
Cyberinedtx Ltd., [1981] O.L.R.B. Rep. (January) 13; Carpenters Einployer
BargainingAgency, [1978] O.L.R.B. Rep. (August) 776 ["Carpenters"].
161 Carpenters, ibid. at p. 784. However, in Masonry ContractorsAss 'n, supra note
158, the OLRB found that the reason a party cannot bargain to impasse an
extension to a bargaining unit description is that "the legislation as a whole
operates to prohibit [voluntary recognition] being forced upon a party outside
of the statutor certification .. process" (at p. 957).
162 Whether such a prohibition exists in Ontario is an interesting question, but one
which I will not attempt to explore fully here. Arbitrator Herman has found that
arbitral law recognized a privacy right of workers not to have their addresses
disclosed against their wishes: see Goodyear, supra, note 95, at p. 4. See dis-
cussion in Part 5(b)(ii), below.
163 [1988] O.L.R.B. Rep. (July) 653, at para. 15.
in Brantford Expositer. If that is the case, it appears that the

American dichotomy between mandatory and permissive subjects of
bargaining affords unions greater scope to leverage neutrality agree-
ments by means of industrial action than Ontario law does. because
recent developments in American law suggest that, in at least some
situations, there is a right to strike to win a card-check agreement. 161
Less clear is whether a neutrality clause, a term allowing a
union access to address workers, or a term requiring the employer to
give the union employee lists to facilitate organizing are "matters of
recognition." By themselves, these sorts of requirements do not
directly determine anything relating to bargaining unit description or
recognition. However, unions may need to overcome yet another hur-
die if they want to engage in strike action to win such language.
Section 76 of the OLRI prohibits a union from seeking by intimida-
tion or coercion to compel a "person" to refrain from exercising rights
under the Act. 161 Striking, or threatening to strike, could be construed
as intimidation or a threat within the meaning of this provision.
Finding a breach would, however, depend on the answers to two other
distinct legal questions. One is whether the terms of neutrality agree-
ments seek to compel employers to refrain from exercising rights
under the OLRA. The other is whether an employer is a "person"
within the meaning of s. 76. With regard to the latter question, the
OLR,4 clearly distinguishes throughout between "employers,"
"employers organizations," "unions," and "persons," and on its face,
s. 76 appears to require that the "victim" be an individual, not an
"employer." The OLRB has adopted similar reasoning to find that a
union is not a "person" within the meaning of s. 76.166 However, in a
recent decision, the OLRB has found that a union breached s. 76 by
6
threatening an employer with abandonment of its bargaining rights.' 7
164 See discussion of Pall Corp. and Sahara fHotel, above.

165 Section 76 reads:
No person, trade union, or employers' organization shall seek by intimida-
tion or coercion to compel any person to become or refrain from becoming
or to continue to be or to cease to be a member of a trade union or of an
employers' organization or to refrain from exercising any other rights under
this Act or from performing any obligations under this Act.
166 See ffoodall Construction Co. Ltd., [1979] O.L.R.B. Rep. (June) 597.
167 Enka ContractingLtd., [2004] O.L.R.B. Rep. (September/October) 926, at p. 940.
Unfortunately, there is no discussion in the decision about why an

employer can be the victim under s. 76, whereas a union cannot.
With regard to the first question, it is possible that language
commonly found in neutrality agreements might be held to restrict
employers' statutory rights. For example. s. 70 could be construed to
confer on employers a right to communicate in a non-threatening
manner in order to oppose unionization. 168 If it were, striking or
threatening to strike in order to obtain a neutrality pledge might
breach s. 76 - if an employer can indeed be a victim under that sec-
tion. 169 A similar analysis could be applied to other types of clauses
found in neutrality agreements. For example, if the OLRA creates a
legal entitlement for employers to have their employees' wishes
tested through an OLRB ballot, 17 a work stoppage aimed at obtain-
ing future voluntary recognition based on a private card check may
amount to coercion in violation of s. 76, even though that recognition
would not take effect until the union had shown that it represented a
majority of the bargaining unit employees.
These are questions that will require a litigated answer if neu-
trality agreements become more common in Ontario, and there is suf-
ficient ambiguity in the statute that the outcomes are not certain.
However, since the OLRA gives a high priority to the employer pref-
erence for recognition elections and the employer right to engage in
non-threatening anti-union persuasion, there is good reason to
believe that the OLRB would disapprove of union attempts to use
economic force to win neutrality agreements. If so, the state could

No employer or employers' organization and no person acting on behalf of
an employer or an employers' organization shall participate in or interfere
with the formation, selection or administration of a trade union or the repre-
sentation of employees by a trade union or contribute financial or other sup-
port to a trade union, but nothing in this section shall be deemed to deprive
an employer of the employer's freedom to express views so long as the
employer does not use coercion, intimidation, threats, promises or undue
influence.
169 The NLRB general counsel adopted similar reasoning in the S ahara femora -
dun, supra, note 75, where he opined that neutrality pledges are permissive
since they involve a waiver of an explicit statutory right to free speech.
170 This appeared to be the Board's opinion in Ilasonr v Contractors Ass n, supra,
note 158, at p. 957.
discourage neutrality agreements as a form of private ordering by

restricting the bargaining leverage of unions and protecting the
default right of employers to campaign against unionization and to
insist on a vote. An alternative approach would permit bargaining
unit employees to decide whether obtaining a neutrality agreement is
an important enough objective to warrant a work stoppage. There is a
strong probability that employees would go on strike to win a neu-
trality agreement only if they saw the non-union employees who are
the target of the proposed agreement as a real and imminent threat to
their employment security. A state that is supportive of collective bar-
gaining would likely see resort to industrial action in those circum-
stances as legitimate.
(ii) Regulation of the Content of Neutrality Agreements
It is unlikely that the OLRA would be held to prohibit unions and

employers from agreeing that the employer will give the union a list of
the employees' names, or access to the workplace to address the
workers. 171 However, in Goodyear, as noted above, the arbitrator ruled
that in Ontario an employer cannot disclose to a union, pursuant to a
neutrality agreement, the name and address of an employee who
72
expressly informs the employer that she objects to the disclosure.'
The arbitrator cited jurisprudence that required a balancing of
employees' interest in privacy against the interest sought to be
advanced by the disclosure, and he concluded that employees' privacy
rights outweighed any interest in disclosure. 173 The decision takes a
narrow view of the purpose and value of allowing unions to communi-
cate with workers outside of the workplace- and indeed does not
mention it at all. It will be recalled that in both the U.S. and Britain,
the state ensures that unions can communicate with workers at their
homes, because employees may otherwise have no opportunity to
171 See, e.g., Coca-Cola Bottling Co., [2004] O.L.R.B. Rep. (January/February)
23; University of Toronto, [1988] O.L.R.B. Rep. (March) 325.
172 This outcome puts employees in the uncomfortable position of having to signal
to their employer whether they support the union's right to communicate with
employees through direct mail or home visits.
173 Goodyear, supra, note 95, at pp. 5 and 6.
90 CDN. LABOUR & EMPLOYMENT LAW JOURN [13
1LLAL
C.L.E.L.J.]
hear the union's arguments. 174 On a balancing test, it is questionable

whether the value of facilitating a dialogue about the exercise of a fun-
damental human right (whether to support collective bargaining) is
outweighed by an employee's preference for non-disclosure of his or
her name and address, which a union can often obtain in other, more
7
time-consuming ways (telephone listings, or asking co-workers). 1
While both the VLRA and the OLRA4 recognize that employers
have a limited right to campaign against collective bargaining and
unionization, 171 these provisions are drafted in permissive terms-
they describe a right of employer speech, without commanding that
employers actually exercise that speech. 77 Clearly, employers can
elect to "remain neutral." It would make little industrial relations sense
to command employers to campaign against unionization, even if that
were possible in a state where freedom of expression is constitution-
ally protected, as in Canada.' 71 While anti-union campaigning by an
employer, even lawful campaigning, can be very effective in discour-
aging unionization. it never contributes to a positive industrial rela-
tions climate if the union is successful. As Brudney has argued,
neutrality agreements further the policy of the JVLRA by "respecting
both parties' decisions to forego reliance on a potentially more divisive
election process and by signalling more generally a preference for vol-
179
untaiy (and peaceful) resolution of union-management differences."'
174 The inequality of access was evident in Goodyear The employer used its privi-
leged access to the names and addresses to send letters to all of the employees'
homes about the organizing campaign: Goodyear, ibid., at p. 3.
175 In any event, the parties could avoid the privacy issue by requiring that union
literature be forwarded to the employees' homes by the employer or by a neutral
using name and address labels provided by the employer, as under the British
model.
176 OLRA, s. 70; VLRA, s.8(c).
177 See, e.g., Dana Corp., 278 F.3d 548 (6th Cir. 2002), at p. 559.
178 A number of courts and labour boards have ruled that statutory and board-ordered
restrictions on employer speech during organizing campaigns either do not vio-
late s. 2(b) or are saved by s. I of the Charter oJ Rights and Fi eedoins (Part I of
the Constitution Act, 1982, being Seh. B to the Canada Act 1982 (U.K.), 1982, c.
11). See, e.g., Cardinal Klassen, [1996] B.C.L.R.B.D. No. 344 (QL); MaI-Mart
Canada Corp. v Saskatchewan (Labour Relations Board), [2004] SJ.No. 704
(QL) (C.A.), at para. 53; Bank of Montreal and Cnion of Bank Employees
(Ontario), Local 2104 (1986), 10 Can. L.R.B.R. (N.S.) 129 (C.L.R.B.).
179 Brudney, supra, note 1. See also Garren, supra, note 2, at pp. 268-270; J.P.
.foigan Hotel, 996 F.2d 561 (2d Cir. 1993).
Some opponents of neutrality agreements in the U.S. have nev-

ertheless advanced the peculiar argument that an agreement by an
employer to "remain neutral" or to otherwise contractually restrict
its right to communicate during an organizing campaign violates
employees' statutory right to receive the eiployer s views against
unionization.8 0 Advocates of this position argue that s. 7 of the
NLRA gives employees a "right" to vote in free, informed and open
representation elections, and that neutrality pledges impede this
right. 8' The argument is misleading, since employees do not have a
right to participate in an NLRB election, and it relies on the odd
proposition that employers cannot agree to refrain from opposing
unionization by their employees. 182 Those who make this argument
concede that an employer can chose to remain silent, but they argue
that the 'VLRA is breached the moment an employer reduces that
choice to writing in an agreement with the union. 11' Neutrality is fine,
they say, but a contractual agreement requiring neutrality is not,
because it amounts to an unlawful waiver of a constitutionally pro-
tected right of speech. American courts and the NLRB have so far not
been swayed by this argument.184 In both the U.S. and Canada, the
main challenge for unions lies not so much in proving the legality of
neutrality pledges, but in devising ways to enforce these pledges, an
issue that I will address below.
180 Kramer, Miller & Bierman, supra, note 47, at pp. 72-77; Garren, supra, note 2,
at p. 267; E. Mullikin, "The Corporate Organizing Campaign: A Double-Edged
Sword" (1989). S.C.L. Rev. 449, at p. 479: and see Dana Corp., supra, note
177, at p. 558, where the employer argued that its agreement to remain neutral
was legally void because its silence would violate the statutory rights of the
employees.
181 Section 7 protects the right ofemployees to join or not join a union.
182 See, e.g., Kramer, Miller & Bierman, supra, note 47, at p. 76. See also the
Anici Curiae brief in support of petitioners, supra, note 9, which repeatedly
refers to an alleged "right" of employees to an NLRB election: e.g., p. 1: "The
Board should now preserve the right of eniplovees to petition for a secret ballot
election testing the majority status of any union whose representation claims
rests on cards obtained under the auspices of an employer neutrality or card-
check agreement" [emphasis added].
183 Ibid., at p. 73: Guzick, supra, note 36, at p. 457.
184 See, e.g., Dana Corp., supra note 177; Guzick, ibid., at pp. 458-459, Brudney,
supra, note 1.
The same is true of card-check agreements. The legislation does

not prohibit employers and unions from agreeing to voluntary recog-
nition conditioned on a private card check confirming majority sup-
port. In fact, in Ontario, the statute actually encourages voluntary
agreements backed by majority evidence in the form of membership
cards."' Here is an example of how a state can guide the content of
private bargaining. A union voluntarily recognized on the basis of a
private card check enjoys all the rights and obligations of a certified
union, including the right to serve a notice to bargain (s. 16), the right
to request a conciliation officer (s. 18(3)), the right to strike once the
usual preconditions have been satisfied (s. 79). and the same protec-
tions against termination and displacement applications as a certified
union.11 6 During the first year of voluntary recognition, s. 66(1) per-
mits a bargaining unit employee to require the union to prove that it
was "entitled to represent the employees in the bargaining unit" at the
time the voluntary recognition was entered into. 18 7 However, s. 66(2)
then permits the Board to accept any evidence it thinks appropriate as
proof of the union's entitlement to represent the employees, and
union membership card evidence is the most obvious method of
establishing majority support.'
In other words, the practical effect in Ontario of voluntary
recognition based on a privately conducted card-check is to trans-
form the voluntary recognition into a Board-ordered certification.8 9
Section 66, along with other provisions identified, steers the parties
toward voluntary recognition supported by a card check by rewarding
them with stability. 9 The state's guiding role is subtle, but the signal
is clear enough: the state's preferred model of voluntary recognition
mimics the old statutory card-check model.
185 See Penagal Trim, [2000] O.L.R.B. Rep. (March/April) 332, at p. 341.
186 lbid.
187 Ibid., at p. 340.
188 See Cedarvale ff oodworking Ltd., [1990] O.L.R.B. Rep. (August) 836, at p.
842: "unless there is adequate evidence to rebut the presumption, membership
cards are sufficient evidence of entitlement to representation." See also Spring
PlasteringLtd., [1967] O.L.R.B. Rep. (December) 887.
189 lbid.
190 Cedarvale Woodworking, ibid., at p. 840.
(iii) lftplementing Veutrali Agreements. Unlatwi Employer

Support under s. 70
An important measure of freedom of association models based

on majoritism is the extent to which they recognize and control the
power of employers to exploit the position of economic dependence
of most employees. Even subtle signals by employers about the con-
sequences of unionization, or about choosing one union over another,
can be perceived as threatening by economically vulnerable employ-
ees. One way that both American and Canadian law attempts to deal
with this dynamic is by prohibiting employer participation in the for-
mation and selection of unions. The stated aspiration is to create an
environment where workers are free to decide whether to support
unionization, and which union to support.
Thus, s. 70 of the OLRA prevents employers from participating
or interfering in the "formation, selection, or administration" of a
union. Section 15 prohibits the Board from certifying a union if the
employer has participated in its formation or administration ("select-
ing" a union is omitted from s. 15). The VLRA includes roughly paral-
lel language in s. 8(a)(2). 191 These provisions communicate an
ambiguous message to the parties about the utility of neutrality agree-
ments. Is neutrality by an employer unlawful interference or participa-
tion? What about providing an employee list, giving a union access to
employer property, or agreeing to forgo a representation election in
favour of a voluntary card-check process? Applied literally, these pro-
visions could preclude employers from agreeing to any of the terms
usually found in neutrality agreements that make organizing easier.
Labour boards have tended to interpret these statutory "no inter-
ference" provisions purposively. The OLRB and the NLRB have found
that they were intended to prohibit "company unions" and "sweetheart
deals" between employers and non-arm's-length unions. In Edwards,
for example, the OLRB described the purpose of s. 15 as follows:
The section is clearly aimed at "company-dominated" trade unions which
are not entitled to be certified, on the theory that a trade union fostered
191 The YLRA, in s. 8(a)(2), prohibits an employer from dominating or interfering

with the "formation or administration of any labor organization" and from con-
tributing financial or "other support" to it.
by an employer cannot be considered as having been freely chosen by

employees .... We consider it is intended to be applied where emplover
activities are of such a character or are of such proportions that it is reason-
able to injer that employees have not exercised afee choice in the matter of
the selection oJ a bargaining agent, or where an employer has given naterial
assistance to a trade union in connection with its organizationa!... activities-
where in other words, the particular applicant is not truly the chosen bargain-
ing agent of the employees concerned. 92
Applying this purposive approach, the OLRB has certified unions

that were aided in their campaign by the employer's neutrality or
silence- provision of a list of employees. with names and addresses;
giving the union access to employees on company property-, and giv-
ing it access to internal mail systems for the purpose of communica-
tion. 93 In each case, the Board was convinced that, notwithstanding
the employer's cooperation or assistance, the employees were able
to freely choose an independent, arm's-length union. 194 Therefore,
typical neutrality agreement language should not give rise to con-
cerns that it violates the statutory "no interference" provisions - at
least when only one union seeks to rely on that language, as the
employer's assistance does not impair the ability of employees to
make a free choice.
192 Edwards and Edwards (1952). 52 C.L.L.C. 17,027, at p. 1394 [emphasis

added]. And see Brudney, supra, note 1, at footnote 124; and M. Barenberg,
"The Political Economy of the Wagner Act: Power, Symbol, and Workplace
Cooperation" (1993), 106 Han. L.Rev. 1381, at pp. 1465-1489.
193 Ontario cases include Continuous fining Systems, supra, note 92; Coca-Cola,
supra, note 171; Covertite i .,stern
Ltd., [1996] O.L.R.B. Rep. (May/June) 386;
Edwards, ibid.
194 Contrast Tri-Canada Inc., [1981] O.L.R.B. Rep. (October) 1509, where the
employer assisted in the formation of an employee association by providing a
list of employees' names and addresses. The Board found that the employer had
cooperated for the purpose of facilitating an employee association to defeat a
campaign by the LAW. A similar approach is evident in the NLRB jurispru-
dence: see, e.g., \'LRB v.Keller Ladders Southern Inc., 405 F.2d 663 (5th Cir.
1968), at p.667 (the ALRA is not violated so long as the employer's cooperation
does not "interfere with the freedom of choice of employees"); New England
Motor Freight Inc., 297 N.L.R.B. 848 (1990) (an employer may facilitate meet-
ings between unions and employees on employer property, and even inform
employees that it prefers to work with unions). See also Hartley, supra, note 1,
at pp. 401-402; Davies, supra, note 2. at pp. 223-224.
Much more difficult is the question of how these "no interfer-

ence" clauses should be applied when there are competing unions
vying to represent the same group of workers. A truly independent
union that wins a neutrality agreement in collective bargaining will
almost always have given some consideration in exchange. If other
unions can access the benefits of a neutrality provision without giving
equal consideration, ss. 15 and 70 may discourage neutrality agree-
ments by undermining the signatory union's position. This is a classic
"free rider" problem. Unions may not be inclined to negotiate such
agreements if they believe that competing unions will learn of the
agreement (they often will not), will attempt to rely on it (which some
may), and will be entitled to access its benefits without equal sacri-
fice. Employers too will be less inclined to enter into neutrality agree-
ments if they do not know exactly who will have a right to access its
provisions. An employer that executes a neutrality agreement in order
to improve relations with an existing union, for example, will see lit-
tle benefit in the deal if it restricts the range of employer options in
responding to organizing campaigns by other unions.
However, there is an obvious risk in allowing employers and
unions to agree to preferential organizing arrangements to the exclu-
sion of other unions. The risk is that these deals may effectively allow
the employer to control which unions obtain bargaining rights. It is
easy to imagine employers being eager to execute a neutrality agree-
ment with a preferred union in order to fend off organizing threats by
"less friendly" unions. 195 One response to this concern is that the
OLRA contains checks and balances to protect workers from having a
sweetheart deal foisted upon them. Under a typical neutrality and
card-check agreement, the union must collect membership cards
from a majority of bargaining unit employees. If the union can garner
sufficient support to win recognition, it will still have to prove its
worth to the employees by negotiating a collective agreement that a
majority of them will endorse in a ratification vote, and it will still be
subject to having its entitlement to represent the employees tested
under s. 66(1).196 The neutrality agreement simply seeks to make it
195 See, e.g., Tri-Canada,ibid

196 Section 44(1) of the OLRA provides that a collective agreement has no effect
until it has been ratified.
easier for a union to obtain a "licence to bargain" on behalf of the

employees.
Nevertheless, neutrality agreements can have a signalling effect
for employees, although it is hard to predict what that signal will be,
particularly where there are multiple unions seeking representation
rights. In that scenario, an employer who suddenly signs a neutrality
agreement with one of the competing unions will signal to employees
its preference for that union. However, depending on the dynamics of
the workplace, the unions involved, and the character and sophistica-
tion of the workers, this signal may either cause employees to sup-
port the favoured union or to question its independence from the
employer. An employer who attempts to use a neutrality agreement
as a means of influencing employees to select a particular union may
find that this strategy backfires.
The difficult challenge in regulating neutrality agreements is to
find the right balance between supporting bargaining autonomy and
protecting the ability of workers to choose whether to support a
union, or which union to support. In the U.S., the terms of neutrality
agreements must be made available to any union that seeks to access
them, not only to the union party to the agreement. 19' In the Goodyear
arbitration award considered earlier, the arbitrator opined that the
same conclusion likely applies in Ontario. 98 Making neutrality
agreements accessible to all unions would in theory be a healthy
development, since it could encourage unions to compete to win the
support of workers in a more supportive environment. If the state
were to interpret neutrality agreements in this manner, it would cre-
ate a bubble around employers that execute such agreements, within
which the rules of union organization and recognition are defined
largely by private agreement rather than by public statute. That is an
interesting result, but it is one that is also likely to discourage
employers from accepting neutrality agreements.
197 See Finkin, supra, note 73, at p. 5.

198 Goodrear, supra, note 95, at p.5:"Ifit were only the USWA that was to be pro-
vided with the names and addresses of employees when it was organizing and
no other union was to receive such information, then I would conclude that the
provision of such information to the USWA would constitute impermissible
support within the meaning of s. 70 of the Act."
An alternative approach to the problem would recognize rights

and obligations under a neutrality agreement only as between the
contracting parties. In this scenario, ss. 70 and 15 would be inter-
preted purposively to protect against sweetheart deals disguised as
neutrality agreements. This means focusing on the independence
from the employer of the union that is a party to the neutrality agree-
ment. Concerns about sweetheart deals, or about employers that play
an active role in organizing workers, or that try to use neutrality
agreements as a tool to defeat campaigns by independent unions in
favour of "company" unions, can be weeded out under these provi-
sions. 199 But truly independent unions that give consideration to win
neutrality agreements would have leeway to exploit their bargain,
even if the effect is to provide a benefit to that union relative to other
unions. The role of regulation would be limited to ensuring that the
signatory union is truly independent and that the employees are able
to make a free and non-coerced decision about whether to support it.
This type of approach can be seen in the OLRB's recent decision
in Coca-Cola. 2 0 That case involved a competition between the CAW
and the UFCW to represent employees of Coca-Cola. The CAW had

won an OLRB ballot by an overwhelming margin, thereby displacing
the UFCW as the bargaining agent. The UFCW sought to have the
vote result quashed on the basis that the employer had provided
unlawful assistance to the CAW, by permitting its organizers to com-
municate with employees and to have union membership cards signed
during working hours. This access had not been granted pursuant to a
neutrality agreement, but we can easily imagine that it had been.
The OLRB dismissed the UFCW's complaint. It emphasized
that the purpose of ss. 70 and 15 was to prevent sweetheart deals with
non-arm s-length unions. 20 1 The issue therefore was whether the
employer's behaviour rendered the CAW "unqualified or unable to act
independently on behalf of the affected employees in their relations
199 See, for example, Davis Superinarkets, 306 N.L.R.B. 426 (1992). affirmed 2
F.3d 1162 (D.C. Cir. 1993). where the Court found that the employer unlawv-
fully aided the USWA when the owner called a meeting of employees and
directed them to sign USWA cards rather than UFCW cards. See also Tri-
Canada,supra, note 194.
200 Coca-Cola, supra, note 171.
201 Ibid., at pp. 29-30.
with their employer.' 2 2 The Board noted that the contest was
between two "very sophisticated, large unions, whose independence
from employers is unquestionable.1'03 This made it highly unlikely
that the mischief intended to be caught by the Act arose. Only if the
employer's involvement has "substantial@ interfere[di with tle
employees" choice of a bargainingagent" would that involvement
amount to a breach of s. 70.204
(iv) The State and Enforcement ofNeutralit) Agreements
A state that seeks indirectly to influence the private negotiation

of norms and practices must ensure that appropriate enforcement
mechanisms are in place. In the U.S., neutrality agreements are
enforceable as legal contracts in a variety of forums, including pri-
vate arbitration if the agreement includes an arbitration provision, the
NLRB if the dispute raises issues within the jurisdiction of that tribu-
nal, or the federal court pursuant to s. 301 of the Labor-Management
Relations Act.2 °5
Section 301 grants jurisdiction to the district courts over "suits
for violation of contracts between an employer and a labor organiza-
tion respecting employees." The courts have interpreted this to
include any contracts that are "significant to the maintenance of labor
202 Ibid, at p. 30.

203 Ibid, at p. 31.
204 Ibid., at p. 29 [emphasis added]. Two additional factors were noted by the
Board: (1) there was no evidence that the CAW was aware of the employer's
alleged support, and (2) there wxas evidence that many of the employees had
supported the CAW even before the employer's alleged "assistance" to that
union. The first factor would obviously not be met in the case of a neutrality
agreement. However, it is not clear why the union's knowledge of the
employer's "support" should matter if the concern is to protect the right of
workers to decide. The second factor was used as a proxy by the OLRB to
assess the impact of the employer's alleged "support" for the CAW. However,
where there is a neutrality agreement, it may be that the union had not even
approached the employees betore negotiating the agreement. Pre-existing sup-
port for a particular union may be relevant, especially if there is an allegation of
coercion, but it should not be a prerequisite for upholding recognition under a
neutrality agreement.
205 Supra, note 142; Cohen, supra, note 2.
peace between the parties. ' '2°6 Applying this test, courts have ruled
they have jurisdiction to interpret and enforce neutrality agreements,
provided that they are not called on to decide "representational
issues," such as bargaining unit description or whether there was, in
fact, majority support. 21 7 The NLRB has jurisdiction over representa-
tional issues and, as discussed earlier, if a term of a neutrality agree-
ment relates to a "mandatory" subject of bargaining, the term can be
enforced by the Board under s. 8(a)(5). 201 Finally, if the parties have
agreed to refer a dispute under a neutrality agreement to arbitration.
the arbitrator has jurisdiction to decide that dispute, even if it
involves representation issues.20 9 Thus, there is a somewhat complex
210
and overlapping system of enforcement available in the U.S.
There is no functional equivalent to s. 301 in Ontario, so the
courts'jurisdiction over a neutrality agreement would be governed by
the common law, the OLRA, and the Rights of Labour Act, which
denies unions legal status at common law unless they would have such
status notwithstanding the rights and obligations conferred upon them
by the OLRA. 211 The Rights of Labour Act obstacle could likely be
overcome by careful drafting, perhaps by naming as a party the chief
union organizer or some other union official in his or her personal
capacity. However, given the courts' historical antipathy to unions and
union organizing, it is probable that unions which have enough bar-
gaining power to persuade an employer to execute a neutrality agree-
ment would try to enforce it at arbitration rather than in the courts. For
this reason, the courts are likely to play a smaller role in the develop-
ment of neutrality agreements in Canada than in the U.S.
206 Retail Clerks InternationalAss 'n v. Lion Diy Goods Inc., 369 U.S. 17 (1962);
JP .Morgan Hotel, supra, note 179.
207 H.E.R.E., Local 2 v. Marriott, 961 F.2d 1464 (9th Cir. 1992)- JP Morgan
Hotel, ibid.; 4.C. f Wi v. Facetglas Inc., 845 F.2d 1250 (4th Cir. 1988);
Carpenters' Union, No. 1694 v. 'f Galliher & Bros., 787 F.2d 953 (4th Cir.
1986).
208 See Kroger, supra, note 142; and PittsburghPlate Glass, supra, note 141.
209 See, e.g., IA.WA AK Steel Coip., 163 F.3d 403 (6th Cir. 1998); Dana Coip.,
supra, note 177; JP forgan Hotel, supra, note 179.
210 For a discussion of the various remedial options, see Cohen, supra, note 2;
Cohen & Fritts, supra, note 2; Davies, supra, note 2.
211 Rights of LabourAct, R.S.O. 1990, c. 33, s. 3(2).
A union can seek to enforce a neutrality agreement before an

arbitrator by incorporating it into a collective agreement, since all
disputes over the interpretation, application, or alleged violation of a
collective agreement must go to arbitration. 21 2 The parties must
ensure that the arbitrator has jurisdiction to make an order applicable
to the targeted workplace, where the employer may be a distinct legal
213
entity from the employer party to the neutrality agreement.
However, apart from issues of privity of contract, an arbitrator would
presumably be entitled to provide a remedy for most breaches of neu-
trality agreements. For example, an arbitrator could order an
employer to give a union access to the workplace to address workers.
or to comply with a neutrality pledge- which would essentially
amount to a cease-and-desist order.2 4 The Goodyear decision raises
doubts about whether an arbitrator can order the employer to disclose
to the union the names and addresses of employees, at least of those
who have asked the employer not to do that.
An interesting question relates to the appropriate remedy if an
employer refuses to abide by a card-check agreement after the union
has established the level of support required by that agreement.
Should employers be held to their promise to forgo an election?
Card-check provisions in neutrality agreements have been upheld in
the U.S. as enforceable waivers of the employers statutory right to
insist on an NLRB vote. 2 1 An employer who has agreed to recognize
and bargain with a union that has met the conditions of a card-check
agreement is therefore in breach of the duty to bargain in good
faith. 2 6 Whether the same result would follow under Ontario law is
unclear. The issue is whether a commitment to voluntary recognition
212 OLRA, s.48(1); Weber v Ontario Hydro (1995), 125 D.L.R. (4th) 583 (S.C.C.).
213 See discussion under "Expanded Definition of the Employer" in Part 2(c)(v),
above.
214 Arbitrators have made these sorts of orders in the U.S. under neutrality agree-
ments incorporated into collective agreements. See, e.g., AK Steel Corp., supra,
note 209, ordering the employer to grant the union access to address the
employees; and see the discussion in Davies, supra, note 2, at pp. 218-221.
215 Kroger, supra, note 142; Central Parking Systems Inc., 335 N.L.R.B. 390
(2001): Ierizon InformationSystems, 335 N.L.R.B. 558 (2001).
216 Ibid. See also Cain Industries Inc., 251 N.L.R.B. 11 (1980), enforced 666 F.2d
411 (9th Cir. 1982).
conditioned on a privately conducted card check is enforceable, so as

to confer on the union a legal bargaining status.
Recognition issues generally fall within the jurisdiction of the
OLRB, but if the parties have elected to incorporate a card-check
model of voluntary recognition into an existing collective agreement,
an arbitrator would presumably have jurisdiction to enforce that bar-
gain. An arbitrator would, for instance, be entitled to order the
employer to recognize the union as the bargaining agent for a new
group of employees if the collective agreement under which the arbi-
trator was appointed required the employer to recognize the union in
those circumstances. However, from a practical perspective, an arbi-
trator's award ordering the employer to "voluntarily" recognize the
union in accordance with the neutrality agreement may be of little
use on its own. The real objective of the union would likely be access
to the statutory bargaining machinery, including the duty to bargain
in good faith, conciliation, and the right to strike. This would require
the union to convince the OLRB that a valid voluntary recognition
was in effect.
There are a number of ways in which the issue of enforcement
of a card-check agreement could come before the OLRB. One way is
through the voluntary recognition provisions in the OLRA. That Act
confers a special status on "voluntary recognition agreements" that
meet the conditions in s. 18(3): that the agreement be in writing, that
2 17
it be signed by the parties, and that it define the bargaining unit.
Agreements which meet these conditions confer access to the same
collective bargaining processes and protections available to certified
unions. Here again, we find an example of the state guiding the par-
ties toward a particular form of private arrangement. The parties can
enter into a neutrality agreement that requires the employer to "vol-
untarily" recognize the union for a defined bargaining unit upon
satisfaction of certain conditions precedent, especially a majority
card-check confirmation by a neutral.
217 OLRA, s. 18(3) reads:

Where an employer and a trade union agree that the employer recognizes the
trade union as the exclusive bargaining agent of the employees in a defined
bargaining unit and the agreement is in writing signed by the parties, the
Minister may, upon the request of either party, appoint a conciliation officer
to confer with the parties and endeavour to effect a collective agreement.
By drafting the agreement in this format, the parties would

access the statutory bargaining process, and would simultaneously
clothe the OLRB with jurisdiction over the recognition agreement.
Once the neutral had ruled that the conditions precedent to the volun-
tary recognition agreement were satisfied, either party would be enti-
tled, pursuant to s. 16 of the OLRA, to serve a notice to begin
collective bargaining.2 ' If one of the parties then refused to com-
mence bargaining as required by s. 17,219 the other party could file a
complaint with the OLRB alleging bad faith bargaining or apply for
conciliation under s. 18(3). The OLRB would then have to decide if
there had been voluntary recognition within the meaning of the
statute. Since the parties drafted the agreement specifically to satisfy
the requirements of the Act (so that it is "in writing," signed, and
includes a bargaining unit description), the Board should have little
difficulty finding that the employer has voluntarily recognized the
union. On the question of whether the conditions precedent in the
agreement were met. the OLRB could either defer to the neutralfs
finding, or consider the union's membership evidence.
Neutrality and card-check agreements could come before the
OLRB in other ways as well.22 Section 96(7) of the OLRA permits
the parties to a settlement of an application under the Act to ask the
Board to enforce the settlement. Thus, a union and an employer

Following certification or the voluntary recognition by the employer of the
trade union as bargaining agent for the employees in the bargaining unit, the
trade union shall give the employer written notice of its desire to bargain
with a view to making a collective agreement. [emphasis added]
219 Section 17 reads in part:
The parties shall meet within 15 day s from the giving of the notice... and
they shall bargain in good faith and make every reasonable effort to make a
collective agreement.
220 One possibility relates to the first contract arbitration provisions of the OLRA.
Section 43(2)(a) provides the Board with the power to order first contract arbitra-
tion where "the process of collective bargaining has been unsuccessful" because
of "the refusal of the employer to recognize the bargaining authority of the trade
union." Could this be applied to an employer who refuses to recognize and bar-
gain with a union, despite the tact that an arbitrator has ruled that the employer
has voluntarily recognized the union pursuant to a neutrality agreement?
might agree to neutrality agreement language as part of the settle-

ment of an unfair labour practice complaint or some other matler, and
that agreement would then be enforceable by the OLRB. It is also
possible that breach of a neutrality agreement could amount to an
unfair labour practice. Assume, for example, that a union has satis-
fied the conditions precedent to voluntary recognition in a neutrality
agreement, but the employer refused to recognize the union. The
union should now be recognized, but the employer's unlawful con-
duct (breach of the neutrality agreement) is "interfering" with that
outcome. The employer in this scenario could easily be found in
breach of s. 70's prohibition of employer conduct which interferes
with the formation, selection, or administration of a union. In each of
these scenarios, the OLRB would have jurisdiction to find that the
employer had voluntarily recognized the union, and it could therefore
order the employer to commence bargaining in good faith.
6. CONCLUSION
This paper has emphasized the relationship between a system of

private ordering and the state's use of law to pursue public policy
objectives. Neutrality agreements are attempts by private actors to
define norms that build on the state's primary model of freedom of
association, but that also modify it. The parties have a certain auton-
omy to define norms of conduct suitable to their own circumstances,
though the state, through the law, restrains, guides and influences
them, both in the conduct of bargaining and in substance of their
agreements. In contrast to British law, American and Canadian law
does not explicitly encourage voluntary ordering of union recognition
issues. Neutrality agreements are not the outcome of a public policy
strategy, but of the labour movement's frustration with the state's pre-
ferred model, which is characterized by contested campaigns, state-
run ballots, and the primacy of employer property rights.
In this light, the state might be said to encourage neutrality
agreements only in the unintentional sense that it is the law's per-
ceived shortcomings that cause unions to seek privately bargained
recognition arrangements in the first place. There is little evidence in
Ontario that the state affirmatively wishes to encourage neutrality
agreements as a way to expand unionization or encourage greater
cooperation between employers and unions. The state could decide
that unions and workers are allowed to go on strike to win neutrality
agreements, which would no doubt influence the conduct of bargain-

ing by altering power relations. More likely, though, the state will
tolerate neutrality agreements where employers find them useful,
while protecting the fundamental right of employers to oppose
unionization and to insist on a representation election whenever they
are unprepared to agree to less adversarial alternatives.
However, the state has not been completely idle in the develop-
ment, form, and implementation of neutrality agreements. For exam-
pIe, ss. 18(3) and 66 of OLRA guide the parties toward a particular
form of voluntary recognition agreement that can be used as a model
for workable neutrality agreements. Those provisions include virtu-
ally no commands, but recognize that unions and employers enter
into recognition arrangements quite apart from the formal certifica-
tion process set out in the statute. They also signal to the parties that
such arrangements are legitimate, if certain formalities are met (the
agreement is in writing, signed, and includes a bargaining unit
description), and if employees' wishes are respected by some
method, most obviously through a privately conducted card check.
The OLRA also provides ways to enforce neutrality agreements, and
the voluntary recognition that might result from such an agreement.
Ultimately, however, neutrality agreements threaten to disturb a
particular balance of power that the state seeks to preserve during
organizing campaigns. These agreements disturb that balance by
shifling power from employers to unions. They challenge the state
model while working within its parameters. The state is "decentred"
only in the sense that it provides a framework within which neutrality
agreements can operate, but its preference for contested elections is
clearly identifiable in its maintenance of that model as the default
process. This leaves fundamentally unaltered the power structure in
which organizing campaigns take place.
That is why, in their struggle for neutrality agreements in the
U.S., unions have sought to harness non-traditional sources of lever-
age that act on employer vulnerabilities beyond the level of the work-
place. The real novelty of this emerging form of private ordering may
lie here. New coalitions of unions and other private actors, including
NGOs, churches, consumers, politicians, and investors, seek to stig-
matize employer resistance to unionization as an act of social
deviance and irresponsibility, even if the state model facilitates it.
Neutrality agreements are held out as a symbol of corporate respon-

sibility, in contrast to the antiquated state model. The objective is to
invalidate compliance with that model as a benchmark of "good"
conduct, by uniting a critical mass of actors who choose a less adver-
sarial approach to freedom of association.
In the short term, the labour movement will measure the suc-
cess of neutrality agreements in terms of the number of collective
bargaining relationships achieved with their aid. In the longer term,
success might be better measured by the extent to which the state's
legal model of contested campaigns is replaced by a model that more
closely mirrors what the parties themselves have negotiated in neu-
trality agreements. State law follows private law. That may seem like
fantasy at this stage, but systems of private ordering of industrial
relations have often been co-opted by states, and then codified into
labour law. Neutrality agreements are a symptom of tension between
the state's union certification model and the expectations and practi-
cal needs of the actors. We should not discount the possibility that
this tension will ultimately be resolved through modifications to the
legal model that resemble the solutions being bargained privately in
the form of neutrality agreements.

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Citation: 13 Canadian Lab. & Emp. L.J. 41 2006-2007

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This paper examines the rise ol "neutrality agreements" as a

* Assistant Professor, Atkinson School of Administrative Studies, York University.

A battle is raging in American labour law. The subject matter

I J. Brudney, -Neutrality Agreements and Card-Check Recognition: Prospects for

place at specified non-union facilities controlled by the employer. 2

the VLRAs mechanisms. A recent study found that organizing

5 Eaton & Kriesky, supra, note 3,at p. 52.

restrict their effectiveness. 9 The objective is nothing less than to abol-

of collective bargaining and grievance arbitration.12 The state's role in

12 H. Arthurs, "Labour Law Without the State?" (1995). U.T.L.J. 1.

2. AMERICAN EXPERIENCE WITH NEUTRALITY

(a) The JNLRA Model of Union Recognition

The ALRA requires, as a condition of voluntary recognition,

15 .L.G.WV.2 A.VLRB,366J.S. 731 (1961).

which an experiment may be conducted, under conditions as nearly

Since the 1974 decision of the U.S. Supreme Court in Linden

18 General Shoe Corp., 77 N.L.R.B. 124, at p.127 (1948).

The general counsel to the NLRB reported that, in 2003, the

(ii) inequality o/Access to Employees

of the remoteness of the workplace.12 Unions must therefore attempt

(iii) ineffective Remediesfor Unfair Labour Practices

Employer opposition campaigns and union avoidance strategies

36 W. Guzick, "Employer Neutrality Agreements: Union Organizing Under a

additional, indirect effect of significantly delaying the resolution of a

(b) The Strategic Response by U.S. Labour:

These often-cited deficiencies in the JVLRA model have con-

He credits the election of AFL-CIO president John Sweeney in 1995

(i) Neutrality Agreements: The Early Days

A 1976 agreement between the UAW and General Motors is usu-

cooperation in restructuring operations in its northern facilities. The

50 Kochan, Katz & McKersie, supra, note 36. at pp. 60-61.

relatively modest by today's standards, being restricted usually to a

(ii) The Expansion ofNeutraliri Agreements in the I 990s

Neutrality agreements experienced a rebirth in the mid-1990s,

(c) Common Terms in Neutrality Agreements

Many neutrality agreements are negotiated as part of the

57 See supra, note 3.

collective bargaining, and the power relations and bargaining strate-

(i) Requirement that the Employer Remain Neutral

A core component of virtually all neutrality agreements is a

63 Kriesky & Eaton, supra, note 3.

(ii) Union Access to Employees

The right to early access to a list of employees, with such infor-

(iii) Determining llajority Szapport. Card-Check

Approximately three-quarters (73 percent) of the neutrality

signatures, provided by the employer. Instead of a card check, some

(iv) Dispute Resolution Mechanisms

Many neutrality agreements provide for dispute resolution by

(v) ExpandedDefinition of the Employer

Many neutrality agreements include an expanded definition of

71 Hartley, supra, note 1. at p. 382.