NLRB General Counsel Calls for Union Organizing Through ‘Card Check’

Allen Smith, J.D. By Allen Smith, J.D. April 20, 2022
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National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo has called for employers to be required to recognize unions that organize through "card checks" rather than secret-ballot elections.

If the NLRB accepts this argument, there will be a "drastically heightened risk of unionization," said David Pryzbylski, an attorney with Barnes & Thornburg in Indianapolis.

Under current labor law, a union needs at least 30 percent of workers signing unionization cards to get an election scheduled with the NLRB, Pryzbylski noted.

When a union has acquired signed cards from over half of the employees, the employer may agree to recognize the union but often declines, triggering the NLRB union election process, said Robert Boonin, an attorney with Dykema in Ann Arbor, Mich. In a brief filed April 11, the general counsel said she wants employers to decline when there is a majority of signed cards only if they have a good-faith basis to doubt the authenticity of the cards.

Abruzzo asked the board to reinstate a 1949 standard under Joy Silk Mills, which would enable the NLRB to recognize a union that has support through card check. In her brief, she said, "Joy Silk is logically superior to current board law's ability to deter election interference. It directly disincentivizes an employer from engaging in unfair labor practices during organizing campaigns to avoid a bargaining obligation, as doing so will typically result in the imposition of a bargaining order."

Abruzzo wrote that "the board's current remedial scheme has failed to deter unfair labor practices during union-organizing drives and provide for free and fair elections." She added, "After the board replaced Joy Silk, the commission of unfair labor practices during election campaigns, including unlawful discharges, increased dramatically. In turn, the number of elections fell precipitously and, as a result, the rate of unionization now rests near all-time lows."

Risk of Coercion

"In my experience, the card-signing process often is not an accurate indicator of actual interest in or support for a union," Pryzbylski said. "Many employees are peer pressured or coerced into signing cards, but if and when permitted to vote in a secret-ballot election, [they] vote against union representation."

During the card-check process, union organizers or employees supporting a union may ask workers repeatedly, "Have you signed yet? Did you sign? When will you sign?"

"Some workers relent and sign just to get them off their backs," Pryzbylski said.

"I've also seen inaccurate statements made" during the card-check process, he noted. "For instance, employees being told that if they don't sign a union card, they'll lose their jobs if the union is voted in, which isn't true, so they then decide to sign."

Employees may have believed they were signing a card to learn more about unions or solely to request an NLRB secret-ballot election, rather than authorizing the union to act as their legal representative, wrote Darlene Haas Awada, an attorney with Ogletree Deakins in Detroit, and Thomas Stanek, an attorney with Ogletree Deakins in Phoenix, in a joint e-mail.

An employee might sign because they didn't know they could say no, according to Boonin. An employee might not understand that it's unlawful to retaliate against workers for not signing, he noted.

"There are several reasons why a card-check process can increase the risk of coercion," said Michael Carrouth, an attorney with Fisher Phillips in Columbia, S.C.

First, unions typically solicit card signatures in the early stages of the organizing process, when workers have less access to information and only know the union's side of the story, he said.

"Second, many employees have little experience with unions or know how they work," he said. "Third, card-signing activity is often done covertly, giving rise to the prospect of undue pressure and coercion."

Pryzbylski added that in the "majority of elections, the number of votes for unions is almost always vastly less than those who signed authorization cards."
In a secret-ballot election, no one but the individual employee knows how they voted. In a card-check system, anyone might know who signed and who didn't. "That model in and of itself lends itself to more potential problems, like coercion," he said.

Employer Communications

Often, a company doesn't know there is union interest until a majority of the workforce has signed unionization cards, according to Pryzbylski.

"Under the current system, once a petition is filed and the company becomes aware, it can communicate to its employees its position on unionization generally or [on] a particular union, and why it may believe the workforce is better off without labor representation," he said.

With card check, a union could get a majority without the company ever having a chance to weigh in on the issue, he noted.

For example, with card check, employees may not hear about the loss of their individual voice with the selection of an exclusive bargaining representative, the risk of losing current benefits in the give-and-take of collective bargaining negotiations, or the risks of a work stoppage and its negative impact on employees, said Thomas Servodidio, an attorney with Duane Morris in Philadelphia.

Brief Criticized

Contrary to the theme Abruzzo's brief seems to be espousing, the National Labor Relations Act (NLRA) "is not designed to promote unionization, but rather, it's designed to protect the employee's right to choose," Boonin said.

He added that "Congress has rejected efforts to promote recognition on the basis of card checks on many occasions."

"Secret-ballot elections supervised by the NLRB are the cornerstone of the NLRA, and there is a long history of ensuring a process that is balanced, confidential, democratic and free from coercion," Awada and Stanek wrote. "Forcing card check in the manner the general counsel is urging diminishes these long-standing principles."

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