Stacking the Deck: Privileging 'Employer Free Choice' over Industrial Democracy in the Card Check Debate

40 Pages Posted: 11 Mar 2008  

Raja Raghunath

University of Denver Sturm College of Law

Date Written: March 10, 2008


"Card check" organizing is the most controversial issue in labor law today, and this article is the first to analyze Dana Corp., the landmark decision on card check that was issued by the National Labor Relations Board in September 2007. The Dana Corp. decision represents a fundamental shift in American labor relations, away from safeguarding the rights of employees to collectively bargain, and towards safeguarding employer choice as to whether to engage in collective bargaining at all. The purpose of this article is to call attention to this shift, and to refocus the card-check debate on the fundamental principle of asymmetrical employer power in the workplace. The importance of this principle in understanding the arguments surrounding card check is heightened by the shift in labor relations signaled by the Dana Corp. decision, as well as two significant recent developments in the California and Illinois public sector that also have gone unanalyzed.

This article highlights the sharp contradictions between Dana Corp. and settled decisions of the Supreme Court regarding employer power and card authorizations, and argues that the principle of asymmetrical employer power, central to the National Labor Relations Act, has been largely lost in the current debate. This article does not evaluate the validity of the arguments for and against card check, but rather seeks to draw attention to what those arguments reveal about the perspectives the parties making them have regarding the system of labor relations as a whole.

JEL Classification: J50, J53, J58, K31

Suggested Citation

Raghunath, Raja, Stacking the Deck: Privileging 'Employer Free Choice' over Industrial Democracy in the Card Check Debate (March 10, 2008). U Denver Legal Studies Research Paper No. 08-10; Nebraska Law Review, Vol. 87, 2008. Available at SSRN:

Raja Raghunath (Contact Author)

University of Denver Sturm College of Law ( email )

2255 E. Evans Avenue
Denver, CO 80208
United States

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