Card Check Labor Certification: Lessons from New York
During the debate over the card check proposal in the Employee Free Choice Act of 2009 (“EFCA”), there has been a notable lack of discussion about New York’s fifty-year history and experience with card check certification. This article challenges and contradicts much of the prior scholarship and debate over EFCA by examining New York’s development and administration of card check procedures. The article begins with an overview of the history of New York public sector labor relations prior to the establishment of collective bargaining rights. As part of that historical overview, it examines the development of informal employee organization representation, the codification of a prohibition against public sector strikes, and the establishment of formal grievance procedures by public employers which were the precursors of collective negotiations. It then describes the largely untold story behind the development of New York City’s collective bargaining system for municipal employees, which included a card check procedure similar to the one that had existed under the National Labor Relations Act. Following the description of New York City’s adoption of card check, the article analyzes the history, procedures, and precedent with respect to the use of card check under New York’s Public Employees’ Fair Employment Act, the New York City Collective Bargaining Law, and New York’s Labor Law. Finally, the article sets forth the important lessons to be learned from New York’s history, precedent, and experience, which can enhance the debate over card check.