Neutrality Agreements Take Center Stage at the National Labor Relations Board
Becker, Craig, Brudney, James J., Cohen, Charles I., Flynn, Joan, Labor Law Journal
When a union and an employer agree to forego a secret ballot election by executing a neutrality and card check agreement under which employees will decide whether to be represented by a union, how far may they go in the agreement? If the parties go beyond agreement on the process for demonstrating majority support, can they specify what they'd like to see in any future collective bargaining agreement once the union demonstrates majority support and the employer extends recognition? Can they do that through aspirational language? Can they sketch the broad outlines of an agreement, or agree to specific terms?
One way or another, it appears the National Labor Relations Board (NLRB or Board) is finally poised to address the relatively recent shift away from NLRB-supervised secret ballot elections in favor of voluntary recognition through the use of neutrality and card check agreements. Two years ago, the Board invited amicus briefs in two consolidated cases to consider whether the voluntary recognition bar should operate to bar a decertification petition filed by employees who were not parties to the neutrality and card check agreement between their employer and the union.1
Recently, the NLRB, with a full complement of members once again, invited amicus briefs in a case involving the same employer and union that raises the issue of whether and to what extent an employer and a union can lawfully negotiate and reach an agreement that sets forth the conditions under which union organizing will occur, a provision for card check recognition, and some of the terms and conditions that will be embodied in any eventual collective bargaining agreement.2
At the same time, the Board has also agreed to review a Regional Director's determination that an after-acquired stores clause in a collective bargaining agreement waived an employer's right to a Board election.' At stake in that case is the Board's longstanding Kroger4 doctrine.
According to Professor James Brudney, these cases are important because neutrality agreements-with or without card check-are the most significant development in union organizing in decades. "Many other controversial doctrinal issues under the NLRA, such as the weakness of Board remedies and the use of permanent replacements for economic strikers, involve a default or status quo that favors management's legal and policy positions," he observed. "In these cases, however, the status quo is entirely in support of labor's approach, which is unusual."
This is not an issue that has oscillated back and forth with every new administration, Professor Joan Flynn added, noting that voluntary recognition has been well established in Board law since at least 1961. "Moreover, the Board held in 1966 in Keller Plastics Eastern,'' that voluntary recognition insulates the union for a reasonable time to negotiate a contract without having to 'look' over its shoulder," she explained.
According to Flynn, the Board's grant of review in Shaw's also threatens to take away a highly successful organizational tool-after-acquired stores clauses-by allowing an employer who enters a card check agreement to renege and file an RM petition. "If the Board follows through, that would also overturn 30 years of Board law under Kroger."
The Board has long viewed a secret ballot election following a controlled but adversarial election campaign as the crown jewel of its regulatory system, Brudney observed. "These cases, reflecting a trend that employees may exercise genuine free choice when management and union decide together to modify or forego the traditional Board-supervised election campaign, raise important institutional issues for the Board, apart from any ideological dimensions presented," he said.
In 2003, Dana Corp. and Metaldyne Corp. each entered into a neutrality and card check agreement with the United Auto Workers (UAW). Several months later, the union informed each employer that it had the support of a majority of the unit employees. …