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

• Publication year: 2021

87 Nebraska L. Rev. 329. Stacking the Deck: Privileging Employer Free Choice Over Industrial Democracy in the Card-Check Debate

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

Raja Raghunath(fn*)

TABLE OF CONTENTS

I. Introduction: The New Prominence of Employer Choice
in the Creation of Industrial Democracy.................. 330 R
II. The Debate Over Card-Check Organizing.................... 334 R
A. The Increasing Preference for Card Check Over
Elections............................................. 334 R
B. The Employee Free Choice Act ......................... 336 R
III. Recent Dissatisfaction at the Federal and State Level
with Card Check.......................................... 338 R
A. Dana Corp. and the Ephemeral Threat of Union
Coercion ............................................. 339 R
B. The Failure of California's Proposed Revocation
Regulations .......................................... 344 R
C. The Presumed Intent of the Illinois Card-Check
Law................................................... 349 R
IV. The Asymmetry of Workplace Power: A Founding
Principle of the NLRA ................................... 351 R
V. The Inversion of the Principles of Gissel Packing by the
Board in Dana Corp. ..................................... 358 R

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VI. The Novel and Overriding Importance of "Employer
Free Choice"............................................. 367 R
VII. Conclusion: Proposed Solutions .......................... 370 R

Language may serve to enlighten a hearer . . . but the light it sheds will be in some degree clouded, if the hearer is in his power.

. . . .

Words are not pebbles in alien juxtaposition; they have only a communal existence; and not only does the meaning of each interpenetrate the other, but all in their aggregate take their purport from the setting in which they are used . . . .What to an outsider will be no more than the vigorous presentation of a conviction, to an employee may be the manifestation of a determination which it is not safe to thwart.(fn1)

I. INTRODUCTION: THE NEW PROMINENCE OF EMPLOYER CHOICE IN THE CREATION OF INDUSTRIAL DEMOCRACY

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")(fn2) 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.(fn3)

In contrast to political elections, which occur within the framework of our existing democracy, union representation elections are the starting point for industrial democracy.(fn4) 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

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be made to collectively bargain with their workers. This Article will discuss how Dana Corp.(fn5) 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.

Card-check organizing, a relatively common method of organizing workplaces until it was supplanted by Board-run elections in the 1940's,(fn6) involves employees and union organizers gathering cards signed by employees asking for a union. These card signatures are "checked" against the employer's records, and recognition of the union is granted or refused by the employer according to the verified wishes of a majority of its employees. In its modern iteration, card check is most often conducted pursuant to private agreements between a union and an employer. The Board does not need to be involved at any point in the process.(fn7) Authorization cards are still collected in a Board-run election, but are usually checked only for the purpose of showing sufficient employee support for an election.(fn8)

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Many scholars have examined the merits of the criticisms and arguments in favor of card check.(fn9) This Article does not engage in such an analysis. The arguments for and against card check are examined where they reveal the framework within which the parties making those arguments view the role of card check in American labor relations as a whole. Most of the arguments about card check are ostensibly made in furtherance of employee free choice, and so, taken literally, none acknowledge that any other frameworks apply, or should apply. For example, parties on all sides of the debate have cited the Supreme Court's venerable card-authorization decision NLRB v. Gissel Packing Co.(fn10) in support of their arguments. But missing from this debate is an explanation of how card check should interact with the fundamental principle of labor relations that Gissel Packing and other decisions of the Court from that era, such as NLRB v. Exchange Parts Co.,(fn11) embody namely the principle of asymmetrical employer power in the workplace, and what that power means for the creation of industrial democracy.

The Board implied that its decision in Dana Corp. took this principle into consideration when it proclaimed that the decision balanced "two important but often competing interests under the [NLRA]: `protecting employee freedom of choice on the one hand, and promoting stability of bargaining relationships on the other.'"(fn12) However, the Board's focus in Dana Corp. on the adequacy of employer information as to employee sentiments reveals a different, overarching interest: that of "employer free choice" to recognize or not recognize a collective bargaining representative, and whether such free choice is adequately safeguarded in the card-check process.

The Board's preoccupation with this issue can be seen in the contradictory decisions Shaw's Supermarkets, Inc.(fn13) and Wurtland Nursing and Rehabilitation Center,(fn14) respectively issued a few months prior to and on the same day as Dana Corp. The Board in these decisions allowed an employer to withdraw recognition from a bargaining representative and refuse to bargain on the basis of employee-signed slips and a petition. In each case, it allowed the employer to so withdraw based upon proof of employee sentiment that fell far short of the authorization cards at issue in Dana Corp.(fn15) The timing of the issuance

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of these decisions in relation to Dana Corp. makes clear that the position of the Board is that employers in this country should not be made to participate in the system of collective bargaining where there is any reason whatsoever for those employers to doubt whether a majority of their employees actually wish for such bargaining to occur.(fn16) In this way, the Board has come to openly doubt the first principles of American labor relations.(fn17)

In its many forms, the main argument made against card check is that "union organizers will bully workers into signing pro-union cards."(fn18) Indeed, it was just such concerns about union coercion, fraud, and misrepresentation that ultimately dominated the reasoning of the Board's Dana Corp. opinion.(fn19) The AFL-CIO protested that such concerns are based "on inaccurate stereotypes from a bygone era"(fn20) of labor union power, and do not accurately reflect the greatly- diminished modern-day role of unions in our society and the real legal restrictions on their access to unorganized employees.(fn21) Yet it is precisely the diminished presence of labor in American society that has allowed the criticisms of card check, whatever their degree of accuracy, to resonate with courts and public policy-makers,(fn22) and has lim

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ited the argument over card check to the still-unanswered question of whether or not to even engage in the system of collective-bargaining. The American labor movement will never be able to move beyond the Sisyphean task of arguing this point rather than arguing the merits of its record of representation to specific employees in specific workplaces so long as the principle of asymmetrical employer power is left out of the card-check debate. This Article seeks to refocus the card-check debate on this fundamental principle, and its importance in understanding how the arguments for and against card check should be considered.

II. THE DEBATE OVER CARD-CHECK ORGANIZING

A. The Increasing Preference for Card Check OverElections

The American labor movement has made no secret of its serious concerns with the ways in which the Board and the federal courts have shaped the union representation election since passage of the Act during the Great Depression:

If general political elections were run like NLRB elections, only the incumbent office holder, and not the challenger . . . would be able to talk to voters, in person, every...