Neutrality Agreements and Card Check Recognition: Prospects for Changing Paradigms

Abstract

This article is the first comprehensive treatment of neutrality agreements, which are themselves the most important development in Labor Law for decades. The labor movement's new approach to organizing displaces NLRB-supervised elections with negotiated agreements that provide (i) for employers to remain neutral during an upcoming union campaign, and (ii) in most instances, for employees to decide if they want to be represented through signing authorization cards rather than through a secret ballot election. The article demonstrates the substantial, perhaps predominant, role played by this new contractually based approach over the past 5-10 years; it also explains why so many employers have chosen to participate. The article then considers and rejects the principal doctrinal arguments challenging the facial validity of the neutrality and card check approach. Finally, borrowing from Thomas Kuhn's famous paradigm-based analysis of how change occurs in the natural sciences, the article responds to the argument that freedom of choice in the union representation context is best realized through the elections process, and instead contends that the government-supervised election paradigm should be substantially modified if not entirely supplanted in light of the evidentiary record over the past 30 years and the development of a credible alternative model.

Keywords: Labor Law, unions, labor organizing, elections

JEL Classification: J50, J53, J58, K31