Stacking the Deck: Privileging Employer Free Choice Over Industrial Democracy in the Card-Check Debate

In the American system of labor relations, unions may only represent employees in collective bargaining if they prove they have the support of a majority of the employees they seek to represent. The representation election process created by the National Labor Relations Act (the NLRA or the Act ) in 1935 is the statutory method of making this showing for most private-sector employees. In the last decade, card check organizing has become increasingly popular with unions as an alternative to representation elections. In contrast to political elections, which occur within the framework of our existing democracy, union representation elections are the starting point for industrial democracy. Thus, the battle over elections and election alternatives in the labor-relations world is, at its root, a battle over whether collective bargaining should even occur, and the conditions under which its occurrence would be acceptable. The rise of card-check organizing has given new grist to those who ask whether and under what circumstances American employers should be made to collectively bargain with their workers. This Article will discuss how Dana Corp., the recent landmark decision on card check from the National Labor Relations Board (the NLRB or the Board ), illustrates a fundamental shift in the framing of American labor relations. The emphasis on safeguarding the rights of employees to collectively bargain over their conditions of employment has increasingly given way to a new concern with safeguarding the ability of employers to choose whether to engage in collective bargaining at all. Parallel events occurring at the state level indicate that the considerations that have driven this shift are not uniquely confined to decision-makers at the federal level. This Article will also analyze how the history of the Act reveals this shift to be a rejection of the very basic understandings that drove the creation of the labor-relations system in this country in the 20th century