Under the National Labor Relations Act, a union can organize through a secret ballot election or via card check. The union must turn in cards to the National Labor Relations Board signed by at least 30% of employees voicing their support for a union in order to request a secret ballot election. If a union collects signed cards from a majority of employees (50% plus one), it can then ask the employer and the Board for voluntary recognition via card check. If the employer agrees, then the union is certified as the exclusive bargaining representative without having to win a secret ballot election and can start negotiating a first contract. However, the employer can choose to protect the private choice of their employees and ask for a secret ballot election to determine if the union has sufficient support of the employees.
How this plays out in actual practice is not as cut and dry as this may seem. Unions often bring great pressure on employers to sign what is known as “neutrality agreements.” The primary goal of these agreements is to get the employer to recognize the union as the employees’ exclusive bargaining representative via card check. In exchange, the union promises a certain level of “labor peace” — not to disturb the workplace as much as they might otherwise in their push to organize workers. If an employer resists signing a neutrality agreement, however, unions often launch what is known as a “corporate campaign” against the employer.
The goal of a corporate campaign is a “death of a thousand cuts,” whereby the union, aided by political allies, leads a series of coordinated attacks against the employer in an effort to hurt the business financially and more. These often include personal attack against the owners of the company, trying to damage their reputations in their local community. Unions cease these campaigns only after employers relent and allow the union to organize its workers through card check.
Workers who do not want to join a union can only voice their dissent in a secret ballot election if their employer resists this pressure to recognize card check. Effectively, then, an employer who accepts card check recognition can deny employees this right to a private vote.
If employees are allowed a secret ballot vote, the NLRB will administer the election. Like United States elections for political office, no campaign material is allowed near the voting area and only designated observers from the union and employer are allowed to be present alongside NLRB agents. The final result is determined by the majority of votes cast. If a majority of voters elect to have the union represent them, the employer is obligated to start collective bargaining negotiations with the chosen union.
The NLRB will set the election aside — not recognize the results — “if conduct by the employer or the union created an atmosphere of confusion or fear of reprisals and thus interfered with the employees’ freedom of choice.” The NLRB also has other remedies to encourage a fair election, such as reinstatement of employees with back pay if an employer wrongfully dismissed them in an attempt to influence the election and other penalties against either the employer or the union.
Once a union is recognized, either by secret ballot or by card check, neither employees nor other unions may challenge their exclusive representation rights for “a reasonable period of bargaining,” not less than six months and not more than one year after bargaining begins.