Neutrality Agreements Take Center Stage at the National Labor Relations Board

By Becker, Craig; Brudney, James J. et al. | Labor Law Journal, Summer 2006 | Go to article overview

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.

DANA/METALDYNE

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. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Neutrality Agreements Take Center Stage at the National Labor Relations Board
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.