The Employee Free Choice Act: When Voting Isn’t Private

By February 5, 2007Articles

Some critics have called it the beginning of the end of secret ballot elections in America.   H.R. Bill 800, better known as the “Employee Free Choice Act” is currently weaving its way through Congress with surprising bipartisan support.  If signed into law, H.R.  800 will amend the National Labor Relations Act to require certification of a union — without requiring a majority vote from a secret-ballot election of the employees — whenever  a majority  of the bargaining unit has signed authorization cards (“card checks”) designating the union as their exclusive representative.   Opponents of the bill fear that the law will allow unions to pressure and coerce workers to “vote” in favor of being unionized –by merely signing a piece of paper from the union.

Under current law, the NLRB conducts secret ballot elections for union representation when a union, employer or employees file a petition requesting one, if at least 30% of employees have signed a petition or union authorization cards. An employer is not legally required to recognize or deal with a union if the union has card signatures from more than 50% of the bargaining unit.  Although elections are not required under federal labor law before a union is recognized or certified, an employer or group of affected workers have the legal right to demand an election to determine whether the union should be certified.

Opponents of the proposed change in labor law point out that H.R. 800 strips away the current legal right of employees or an employer to demand a federally supervised private election ballot during union organizing drives, before recognizing a union as the exclusive bargaining representative.  Under the ‘card check’ process, a union has few limitations it must abide by in seeking card signatures, unlike the many “campaign” restrictions for union certification elections.   In addition, because the card-check procedure is a open and not private, both the union and employer know the names of every worker in favor of union representation and the names of those workers who refused to sign an authorization card.  Many employers feel that this will allow a union to unlawfully obtain a majority of support through signed authorization cards through coercive tactics, illegal threats and other unfair labor practices aimed at employees

As an August 2006 Hartford Courant editorial explained, “[n]ot surprisingly, the card-check procedure almost always results in a union victory because the union controls the entire process.”  But the real cost is paid by working Americans—the card-check procedure steals workers’ rights to a personal, anonymous vote on whether or not they want to pay union dues and all that unionization entails.

For any questions or comments regarding this Labor Law Update please contact attorney Michael Daly of the Daly Law Firm at (619) 525-7000 or

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