August 21, 2024
The process of union certification is a critical area of labor rights, acting as a precursor to collective bargaining. One method, card check, simplifies this process by allowing workers to express their desire for union representation through majority sign-up. Because it reduces opportunities for employer interference and expedites union certification, card check has come under significant fire from those who oppose unions.
Card check is a quick and efficient way for workers to indicate whether they want to be represented by a union. Workers who desire a union simply sign authorization cards indicating their support. If a majority (typically 50 percent plus one) sign cards, the union is recognized as the employees’ representative, and the newly authorized union and its members begin negotiating a collective bargaining agreement. Card check certification allows workers to move quickly from establishing majority support for their union to meeting their employer at the bargaining table.
Card Check vs. Secret Ballot
Card check is an option for union certification in the US, but there is a catch. While private sector employers can voluntarily recognize their employees’ union based on card check, they are not obligated to do so; employers have the option to petition the National Labor Relations Board (NLRB) even if the majority of workers have signed cards in support of the union. The NLRB adjudicates the matter by running a secret ballot election to determine whether the majority of those eligible for the bargaining unit support the union.The secret ballot election typically involves a prolonged campaign period, which gives employers ample time to interfere.
The National Labor Relations Act (NLRA) gives the NLRB jurisdiction over union certification in most of the private sector. Though some state and local card check laws are written to apply to all employers in that state or locality, those laws are preempted by the NLRA for the vast majority of private-sector workers. Since the NLRA does not apply to government workers, however, public sector certification requirements can and do vary by state and locality.
The distinction between card check and secret ballot elections may seem inconsequential, but it makes a significant difference in union certification success rates. Evidence from Canada highlights the difference in outcomes. Canada shares a similar legal framework with the United States regarding firm-level union elections, but allows provinces more flexibility with respect to certification rules, even in the private sector. This makes the Canadian experience a helpful case study for understanding how variations in the certification process can influence unionization outcomes. Johnson (2000, 2002) estimated that mandating secret ballot elections for union certification in parts of Canada corresponded with a reduction in successful certifications, and that by 1995, 17 to 26 percent of the Canada-US union density gap could be attributed to union election rules in the US. Other researchers — Bentham in 1999, Godard in 2000, and Slinn in 2004 — found similar relationships between card check and increased certification success rates for unions in Canada. Canadian union certification elections typically take place between five and ten days after being filed, while in the US there is often a gap of several months between the petition filing and the election. This reduces the likelihood of employer interference in Canada relative to the US, and suggests that a switch to default card check may have an even bigger effect on union certification success in the US than in Canada.
Meanwhile, there is some evidence from the public sector that card check supports union organizing in the US context. Illinois enacted a statutory amendment requiring employers to recognize unions based on card checks in 2003. Gely and Chandler (2010) compared public sector union certification activity in Illinois with neighboring Ohio before and after the Illinois law went into effect. They found that the Illinois legislation prompted card-check-oriented shifts in union organizing, with especially dramatic changes in organizing activity involving smaller bargaining units. This card-check effect is especially notable because ensuring that smaller units are able to form unions has been an ongoing challenge. Unions may be more reluctant to direct limited resources toward organizing drives at workplaces with fewer workers because it is harder for the union to recoup the organizing costs from the relatively limited dues base. By making it easier and more accessible for workers to translate their majority support into an actual union, card check certification could help employees from smaller bargaining units access the benefits of unionization at a rate more comparable to their peers in larger bargaining units.
Secret Ballots Are Not More Democratic
Some have asserted that secret ballot elections are an inherently more democratic method of certifying a union. They are not. Secret ballot and majority sign-on (of which card check is a form) are both ways for a group of individuals to determine and communicate majority support for some effort or idea. In this case, the group doing the deciding is supposed to be the workers and only the workers. Though US law allows management to be a non-voting party to union certification, management does not get to vote or sign a card because it is not their decision to make; only members of the potential bargaining unit are eligible to make that decision. This right is also recognized internationally. Article 23 of the United Nations’ Universal Declaration of Human Rights affirms workers’ right to form and join unions; it does not say, “Workers may form and join unions only if their employer also agrees.”
Of these two ways of determining and communicating the will of the majority in a bargaining unit, secret ballot elections provide more opportunity for management—a party that isn’t supposed to get a say in the decision—to put its thumb on the scale. If a majority of workers have already signed cards declaring their support for the union, asking them to also do so via secret ballot serves to second-guess their decision-making capacity. It is tantamount to asking, “But are you sure?” in response to the majority making a decision that management may not like, which is not a democratic practice. Employers who demand secret ballot elections even after most of their workers have signed union cards are behaving anti-democratically. The insistence on secret ballot elections has nothing to do with democracy and everything to do with employers trying to undermine unionization efforts.
Why Bosses Prefer Ballots
Those who oppose card check certification often express concern that workers will be pressured by other workers to sign cards. They maintain that the decision to sign a card is more likely to be made under duress compared with voting by secret ballot. This line of argument falls short in several ways.
First, both secret ballots and signed cards may reflect pressure exerted on the individuals casting their votes or signing. Not all sources of pressure are created equal, however. In a non-union workplace, the power dynamics favor the employer over the worker. Most workplaces have a hierarchical structure that gives bosses and managers wide-ranging discretionary authority to hire and fire, shape job roles, set work pace, alter company policy, and otherwise direct the working environment. It would therefore be a mistake to assume that pressure from co-workers and pressure from an employer are equally threatening to the decision-making process of workers. To do so ignores the considerable power imbalance between workers and their bosses; this imbalance makes pressure from an employer a far bigger threat.
Employers don’t prefer secret ballots because they want their employees to be able to make pressure-free decisions about the union. Employers prefer secret ballots because secret ballots give employers more opportunity to exert pressure — even though, while parties to the decision, they are not legally supposed to have a say in the decision. It’s important to be clear-eyed about which source of pressure poses a greater threat to a worker’s free and uncoerced decision-making. If we care about workers’ ability to make uncoerced decisions about unions, and secret ballot elections are more likely to introduce pressure from a more concerning source, it makes sense to favor card check certification.
Secret ballot certification also falls short in another, more fundamental way. In “What’s More Democratic Than a Secret Ballot? The Case for Majority Sign-up”, Gordon Lafer makes the case that deciding to form a union and voting to elect someone to public office are fundamentally different acts, and therefore deserve different considerations with respect to democratic procedure. Elections for public office are most people’s reference point for democracy, but Lafer argues that it’s the wrong analogy for union certification. He writes:
“The decision to form a union is not equivalent to the choice of which candidate should occupy a preexisting slot in the government. It is rather an attempt to change the form of government in the workplace, from one-party rule to something slightly more democratic.”
Deciding to form a union is a choice to create a representative structure independent of the firm’s managing authority – and that is potentially at cross purposes with it. Organizing a union is usually a delicate matter because employers are fiercely committed to preserving the current default system, under which the employer exercises unilateral rule. Workers also know that even if they succeed in changing the system, they will remain largely subject to the authority of the employer who opposed their efforts.
Forming a union is a more fundamentally collective enterprise than voting for a representative to public office; workers do not form unions as atomized individuals independent of their co-workers. Instead, employees who back a unionization effort are signaling sufficient confidence in their co-workers to want to come together with them and wield more power as a group vis-a-vis their boss. Signing a union card can be understood as workers’ pledging to each other their commitment to work together to secure a fair contract. As Lafer notes, acknowledgment of this commitment is reflected in the fact that one of the questions workers tend to ask themselves when deciding whether to support the union is, “Are enough of us on board to make this a worthwhile endeavor?” Secret ballot elections, then, may serve to individualize a fundamentally collective action.
The Future for Card Check
There have been pushes to codify unions’ right to use card check certification in the US. As noted earlier, some states have already done so, and though their efforts are preempted by the NLRA in most of the private sector, state and local laws can make card check the default for some or all public sector employees in those jurisdictions. At the federal level, the doomed Employee Free Choice Act of 2007 would have amended the NLRA to require immediate union certification if the majority of workers signed cards indicating their support for the union.
There have also been some encouraging certification-related rulings by the NLRB in the last few years. The NLRB’s 2023 ruling in Cemex Construction Materials Pacific, LLC shortened the available window for management’s anti-union campaigning by requiring employers to either voluntarily recognize the union based on card check or file for an election within two weeks. Prior to the Cemex decision, employers could simply reject authorization cards as valid proof of a worker majority and put the onus on the union to file an election petition with the NLRB. The resulting delays gave employers that much more opportunity to bust the union.
The NLRB also published its Fair Choice–Employee Voice Final Rule this year. Among other things, the rule restores the “voluntary recognition bar,” which ensures that unions certified via card check and voluntarily recognized by the employer aren’t challenged in short order, allowing them to move on to negotiating a collective bargaining agreement. The rule reverses a 2020 NLRB decision that required a 45-day challenge period following voluntary recognition, during which any employee could demand that the NLRB relitigate the union’s recognition and impose an election instead.
While the recent NLRB edicts have helped, the union certification process remains onerous for workers. Even the Protecting the Right to Organize Act of 2021 (commonly known as the PRO Act), often held up as the gold standard in labor law reform with many important pro-worker changes, leaves the flawed elections process mostly in place. Though the PRO Act does tackle some of the worst employer delay and obstruction tactics, the closest it comes to enshrining card check certification is by imposing it as a penalty on employers who fail to abide by tightened election rules.
This Labor Day, workers deserve to see lawmakers tackle one of the key areas of policy hindering their right to organize unions. Federal lawmakers should move to not only codify card check as a valid means of union certification, but also change the laws that give employers undue standing and ability to interfere in union organizing. Lawmakers should also ensure that public sector employees – who are not covered by the NLRA – have the same rights to join and form unions as their peers in the private sector. State and local governments that have not already done so should also move to validate union certification based on card check. Such provisions would immediately benefit workers in the public sector. They would also act as an additional potential legal backstop in case federal protections are weakened in a way that gives state and local governments more jurisdiction over private sector union certification.
As discussions around labor rights continue, ensuring that card check certification is recognized and supported remains crucial to empowering workers and strengthening their ability to advocate for fair treatment in the workplace. Given the evidence of its effectiveness, policymakers at every level of government should resist flawed and bad-faith arguments and instead prioritize this crucial pro-worker policy.
