Neutrality Agreements and Card Check Recognition: Prospects for Changing Paradigms

The rise of neutrality agreements is a major development in labor-management relations in this country. The union movement\u27s new approach to organizing displaces elections supervised by the National Labor Relations Board (NLRB) with negotiated agreements that provide for employers to remain neutral during an upcoming union campaign and (in most instances) for employees to decide if they wish to be represented through signing authorization cards rather than through a secret ballot election. Professor Brudney demonstrates the substantial role now being played by this contractually based approach to union organizing. He also explains why so many employers have agreed to neutrality and card check as a matter of business judgment. The Article then considers and rejects the principal doctrinal arguments challenging the facial validity of neutrality and card check. Finally, the Article questions the continued persuasiveness of the longstanding theory that employee freedom of choice in the union representation setting is best realized through Board-supervised elections. The election paradigm is no longer descriptively accurate in that over 80 % of new organizing in recent years has occurred outside the ALRB elections process. The paradigm also is no longer normatively justified: an array of findings and studies indicate that the NLRB elections regime regularly tolerates, encourages, and effectively promotes coercive conditions that preclude the attainment of employee free choice. The Article concludes by suggesting that the election paradigm should be substantially modified if not entirely supplanted in light of the evidentiary record over the past 30 years and the emergence of a credible alternative model for promoting employee free choice