NLRB General Counsel Calls for End to Secret Ballots in Workplace Elections

The general counsel for the National Labor Relations Board (NLRB) is calling on the agency to unilaterally adopt “card check” rules for all union elections. The change, if adopted by the full board, would effectively end secret ballot votes by workers in most cases and inevitably lead to greater instances of fraud and coercion in union organizing drives. The five-member board currently has three Democrats and can operate by simply majority, so it could attempt to adopt the rule, though it would be on shaky legal ground.

NLRB general counsel Jennifer Abruzzo, a former lawyer with the Communication Workers of America, justified the proposal by saying the current rules had “failed to deter unfair labor practices during union organizing drives and provide for free and fair elections.” That is doublespeak. Exactly how does it “provide for free and fair elections” by preventing elections from happening in the first place?

Card check rules would force an employer to recognize a union whenever the latter claims to have the support of a majority of workers. The claim is usually demonstrated through cards signed by workers, hence the term. Under current law, employers can request the NLRB, an independent federal agency, to oversee a workplace election to verify that the workers want representation.

The secret ballot elections often represent the only chance workers have to weigh in on whether the union truly speaks on their behalf. The cards may be legitimate or they may have been obtained through deception, coercion or simply forged. There have been numerous reported cases of the latter. Federally monitored workplace elections serve as a check against that.

The general counsel’s office made the case for the change in a legal brief filed on April 11, in a case called Cemex Construction Materials v. Teamsters. It called on the board to reinstate an older doctrine dubbed Joy Silk that would allow card check.

Replacing workplace elections with card check has long been a goal of unions, who have been seeking a way to reverse the long-term decline in union numbership. Unions made a major push during President Obama’s administration to amend the National Labor Relations Act to include card check, but Congress never voted on the legislation, even when Democrats had a majority in both houses. Lawmakers were fearful of the rule’s impact on the business community.

The change would likely be unconstitutional. Nancy Schiffer, who served on the NLRB during the Obama administration, told a Senate panel in 2013 that the board lacked the authority on its own to enact card check. Congress would have to pass legislation first.

The general counsel said the new rule should require an employer “to recognize and bargain with a union, where the union presented evidence of a card majority and the employer refused recognition but was unable to establish a good faith doubt as to the union’s majority status.” That would effectively eliminate most workplace elections because establishing “good faith doubt” is difficult absent any obvious example that fraud was involved. It is the election that reveals if any fraud occurred.

Elections could still theoretically happen, but they would do so entirely at the discretion of the NLRB. The general counsel argued:

For example, an employer may ask a union to respond to good faith concerns it has about the authenticity of card signatures or the appropriate scope of the unit. However, it may not simply refuse to respond or object to authorization cards as a method of demonstrating majority status.

In addition, Abruzzo’s standard would have the board weigh that decision against the employer’s actions. No election would happen if the NLRB judged that the employer was acting solely to prevent the creation of a union. That would constrain most employers against doing anything to counter a union’s organizing bid, since any opposition could be construed by the NLRB as reason to grant the union recognition.

The card check proposal comes one week after Abruzzo took aim at so-called “captive audience meetings” held by employers, arguing that it is unfair to coerce workers to attend them. The general counsel said the board should prohibit employers from requiring workers to attend the meetings, which typically involve the employer making the case against unionization. The change, if adopted, would effectively limit workers to only hearing the pro-union side. Card check would skew the rules further in unions’ favor.