Card Check Recognition: the Ongoing Legal and Legislative Battle
A great debate has been brewing for years over whether unions should be able to organize employees outside of the traditional election procedures provided by the National Labor Relations Act (“NLRA” or “the Act”). Typically, in an organizing drive, a union solicits support from employees to indicate a desire to run a National Labor Relations Board (“NLRB” or “Board”) election. The union does this by collecting cards from employees affirming the employees’ desire to have a representation election. If the union collects valid cards from at least one-third of eligible employees in the appropriate bargaining unit, the union may then petition for a Board election. If the majority of employees support the union in the election, then the employer must recognize the union and bargain in good faith with the union for an initial labor contract. During the period between the representation election and the completion of the first collective bargaining agreement, the NLRA bars the employer, the employees, and competing labor unions from challenging the representative union’s majority status for a reasonable period of time.
Board elections have long been the preferred method of obtaining union recognition. Recently, however, many unions have begun focusing on another organizing strategy known as card check recognition. In card check recognition campaigns, a union demonstrates majority support of the employees in a bargaining unit by collecting cards from a majority of employees that express the employees’ desire to have the union represent them and gaining the consent of the employer to recognize the union as the representative of the employees without the formality of a Board election. Unions generally negotiate neutrality agreements with employers prior to launching a card check campaign to ensure the employer will not oppose the union during the organizing drive. If the employer refuses to recognize the union, then the union may petition the Board for an election.
Though the NLRB and courts prefer Board elections, unions generally prefer card check campaigns because they are vastly more likely to result in a successful unionization drive than Board elections. However, anti-union groups criticize this approach as an unfair coercion of employees to join unions.
In 2004, the NLRB granted review of several cases that called into question the underlying principles of card check recognition. In Dana Corporation and Metaldyne, the Board, reversing a Regional Director’s dismissal of the complaints, decided to hear cases where the dispute concerned whether or not voluntary employer recognition of a union based on a card check campaign should be given “election bar quality.” An election bar is the period of time during which a union’s right to represent the bargaining unit cannot be challenged by an employer, employees, or another union. The Board took the cases to determine whether unions certified as a result of a card check campaign should be granted the same amount of protection as unions certified through a Board election. In Shaw’s Supermarkets, the Board reversed the Regional Director’s dismissal of a case where employees’ attempted to decertify the union, which the employer voluntarily recognized based on the union’s presentation of signed cards supporting unionization. Again, the Board’s decision to hear such a case indicated its willingness to consider treating union recognition based on card check as inferior to recognition based on Board elections.
While awaiting the Board’s verdict, a rich legislative debate over card check recognition has been renewed. This year, Republicans and Democrats introduced opposing legislation specifically related to card check recognition. Republicans introduced the Secret Ballot Protection Act (“SBPA”), which would make NLRB elections the exclusive method for union recognition, prohibiting employers from voluntarily recognizing a union based on a demonstration of majority support. Across the aisle, Democrats introduced the Employee Free Choice Act (“EFCA”), which would mandate that an employer recognize a union upon demonstration of majority support by submission of employee-signed union authorization cards to the NLRB.
This article argues: (1) that the NLRB should define the “reasonable period of time” for a certification bar following union recognition based on a card check campaign to be commensurate with election bar quality; (2) that the NLRB should not narrow the availability of card check recognition as an organizing tool in its resolution of Shaw’s Supermarkets; (3) that Congress should reject the Secret Ballot Protection Act’s effort to prohibit card check recognition campaigns; and finally, (4) that Congress should, perhaps with some minor amendments, pass the Employee Free Choice Act. Section II of this article provides contextual background surrounding the issue of card check recognition. Section III provides legal analysis of Dana Corporation and Shaw’s Supermarkets, including legal history supporting card-check recognition as a legitimate organizing tool. Section IV analyzes the legislative efforts to prohibit and to codify card check recognition.
Civil Law | Civil Rights and Discrimination | Economics | Labor and Employment Law | Law and Politics
Date of this Version
Michael E. Aleo, "Card Check Recognition: the Ongoing Legal and Legislative Battle" (February 13, 2006). bepress Legal Series. bepress Legal Series.Working Paper 957.