Union membership in the United States has been declining for years. Fifty years ago, more than a third of America's workforce (about 35%) belonged to a union. Today, the number of union members is higher, but unions represent less than 8% of American workers in the private sector and just 12.5% of all workers. In an effort to reverse this trend, unions are using new tactics to organize workers. For example, unions have pushed for card check procedures and neutrality agreements as a means to gain Board certification.
The National Labor Relations Act
As observed by the United States Supreme Court in 1992, "the NLRA [or National Labor Relations Act] confers rights only on employees, not on unions." (Lechmere, Inc. v. NLRB). In that regard, the plain language of the NLRA confirms that it was enacted and designed to protect employees, not unions and not employers. In keeping with this core purpose, Section 7 of the NLRA provides that employees have the right to engage or refrain from union activity, and Section 9(c) provides for a secret ballot election that is conducted by the National Labor Relations Board to measure employee support of a union.
The History on Card Checks
Before 1947, the Wagner Act provided that the Board could certify unions by relying on a secret ballot election or "any other suitable method." One commonly used "other suitable method" was "card checks," a procedure in which union agents would obtain the signature of workers on cards authorizing the union to represent the employees.
By the late 1930's, the Board started to seriously question the reliability of card checks and switched to a policy of not relying on union authorization cards "in the interest of investing . . . [union] certifications with more certainty and prestige by basing them on free and secret elections conducted under the Board's auspices." (General Box (82 NLRB 678 (1949)).
In 1947, Taft-Hartley amendments were passed which changed Section 9(c) and made the secret ballot election the exclusive means by which a union may obtain Board certification to act as the collective bargaining agent for a group of employees. Since 1947, the Board has repeatedly stated that "Board-conducted elections are the preferred way to resolve questions regarding employees' support for the unions." (Levitz Furniture Co. of the Pacific, Inc., 333 NLRB 105 (2001)). The Supreme Court also has held firm to the view that "secret ballot elections are generally the most satisfactory, indeed the preferred method of determining employee free choice." (NLRB v. Gissel Packing Co).
Certification by Secret Ballot Alone
It is still permissible for an employer to voluntarily recognize a union as the exclusive bargaining agent for a group of employees if the employer is presented with evidence that the union has the support of a majority of those employees. Further, to demonstrate majority support, unions continue to utilize the ancient "card check" procedure. However, an employer that is presented with the requisite number of signed cards can always insist that an election be held pursuant to Section 9(c) of the NLRA.
The NLRA does not expressly provide for card checks as a way to demonstrate majority support because Congress specifically removed the "other suitable methods" phrase from the statute in 1947. There is only one statutory basis for employees to show that they favor the union so that the union may be certified as their collective bargaining agent – that is, through a secret ballot election. The reason for this is simple; card checks are poor indicators of union support and are susceptible to intimidation, coercion, and outright trickery by the unions.
For nearly seventy years, the Board and the U.S. Supreme Court have refused to embrace the card check procedure and have consistently rejected its utility. The Supreme Court has described card checks as "inherently unreliable" because of the "natural inclination of most people to avoid stands which appear to be nonconformist and antagonistic to friends and fellow employees." (NLRB v. Gissel Packing).
Workers presented with a union authorization card may sign it because they do not want to offend the person before them, or they may want the union agent to just leave them alone. The workers are sometimes led to believe that they are signing something else, such as a request for a secret ballot election or a non-binding statement of interest. At other times, the workers are simply threatened into signing the card.
In one documented case, an employee was told to sign the authorization card or else "the union would come get her children and it would also slash her tires." (HCF, Inc. d/b/a ShawneeManor (321 NLRB 171 (1996)). Secret ballot elections, on the other hand, allow for the comfort of secrecy in voting and provide employees with the opportunity to carefully consider their choice after being fully informed by both the union and the employer of the advantages and disadvantages of union representation.
Top Down Pressure From Unions
Many unions, including the Service Employees International Union (SEIU), have all but abandoned the election process that safeguards employee rights. To reverse declining membership, these unions have adopted what is commonly referred to as the "corporate campaign." The corporate campaign is a "top down" organizing approach in which the union attacks the employer's public image, makes it difficult for the employer to conduct business, and then pressures top level management to succumb to union demands.
Often, the unions seek a neutrality agreement from the employer, stating that the employer will not say anything to its employees while union agents solicit signed authorization cards. The whole neutrality/card check process is unregulated; signatures are collected at the worksite, in employees' homes, in all sorts of places except under the watchful eye of the Board.
In most cases, the unions even secure bargaining concessions from the employers beforehand so that once the card check is complete, a bargaining agreement quickly follows. The employees are now subject to the terms and conditions set forth in the agreement although they never exercised their right to vote and decide for themselves whether they want to be represented by a union.
One union leader, Bruce Raynor, President of UNITE-HERE, espoused the notion that "[t]here's no reason to subject the workers to an election." Mr. Raynor's statement seems at odds with the underlying mission of a purportedly democratic organization like UNITE-HERE.
But What About Decertification?
It is doubtful that Mr. Raynor and other union leaders actually believe that card checks are better than Board-conducted elections as a means of registering majority support. While unions are pushing for legislation, ironically titled the "Employee Free Choice Act," that would give them the ability to gain Board certification solely though the card check procedures, they also continue to trumpet the purity and desirability of secret ballot elections in the context of decertification cases. (See also S.2142 Workplace Democracy Act (2016)).
The unions would like to have lower standards with regard to demonstrating majority status, but higher standards for demonstrating a lack of employee support. It is therefore obvious that the unions are only interested in promoting the policies that underpin the NLRA when such policies serve to further the union's institutional interests. The NLRA, however, is not focused on the union's rights or bolstering union membership. The NLRA protects the employees' rights, and it is those rights that must be preserved.
Secret Ballot Elections Protect Employee Rights
The U.S. Supreme Court and Board have announced on more than one occasion that the "core principle" of the NLRA is "voluntary unionism." In the final analysis, the only way to secure this principle is through a secret ballot election in which the employees choose for or against union representation. The Board-monitored secret ballot election not only guarantees the exercise of this right, but it is a time-honored process that ensures such rights are not illusory.
The Board has more than sixty years of experience in conducting representation elections, and over the course of that experience, the Board has developed an elaborate process in which employees are able to secretly cast an informed, carefully considered, and confident vote, insulated from the coercive pressures of the union and the employer.
The Board has devoted lengthy practice guides and manuals to describe in detail the manner in which each election should be conducted. The result is a proven method – consistent with the fundamental principles of democratic freedom – for each employee to make known whether he or she has voluntarily decided in favor of union representation.
Simply stated, the secret ballot election has been the exclusive and preferred method of Congress, the Board, and the Supreme Court for over a half a century because it is the only fair and sure way to maintain workplace democracy.