In the 1966 Excelsior case, the NLRB mandated that employers share their employees’ contact information with unions. The Board explained its rationale for this decision:
Among the factors that undoubtedly tend to impede such a choice [concerning a union election] is a lack of information with respect to one of the choices available.
In other words, an employee who has had an effective opportunity to hear the arguments concerning representation is in a better position to make a more fully informed and reasonable choice.
The Board was correct to highlight the importance of information in a union election, but card check certification can exacerbate a lack of information in two ways. First, an employee can sign a card authorizing unionization without a full grasp of what that authorization means and what it will cost him, especially with the PRO Act provision allowing the NLRB to set aside an election and accept cards. An employee may sign a card simply hoping for more information and to make a final choice during an election. An employer under pressure from a union, however, can accept that authorization card instead of asking for an election, and if the PRO Act is passed, the employee’s secret ballot vote could be more easily cast aside.
Second, a card solicitor can actively deceive an employee to sign the card, either directly or by omission. Unfortunately, the Board’s current standard allows many types of deception. Historically, the Board has vacillated on its definition of deception, forcing employers, workers, unions and states to adapt according to the whims of the politically appointed board.
The U.S. Court of Appeals for the 9th Circuit, in NLRB v. Best Products Co., outlines the back-and-forth that continued for decades. The NLRB’s current usage of the standard for evaluating misrepresentation in campaign propaganda — of which the 9th Circuit approved — was established in a different case: Midland National Life Insurance Co. This standard holds that elections may be set aside because of misleading information used in an organizing campaign only if the union used “forged documents which render the voters unable to recognize propaganda for what it is.”
In cases that use the reasoning established in the Midland case, the Board seems to have assumed extraordinary powers on the part of workers to separate fact from fiction. In Shopping Kart Food Market, Inc., for example, the NLRB distinguished itself from prior rulings and rejected the idea that “employees needed [the NLRB’s] ‘protection’ from campaign misrepresentations.” In 2018, the U.S. Court of Appeals for the 3rd Circuit even upheld an NLRB decision that allowed a union to use fabricated information intended to portray employee support of the union before an election.
Other Board rulings have held that unions may promise wage and benefit increases to workers because “such statements fall within the category of customary and legally unobjectionable pre-election propaganda used by unions in an organizational campaign.” And they can do so even when those promises are clearly impossible, because “employees generally understand that a union cannot automatically obtain benefits by winning an election, but must attempt to achieve them through the collective-bargaining process.”
No matter how good employees may be at telling fact from fiction, their ability to make an informed decision is undermined when they are provided with misinformation. To make sense of such misstatements, workers deserve time for investigation into the veracity of claims made by unions and their supporters as well as those made by their employer. Card check certification typically does not provide workers the time needed to separate the information “wheat” from the propaganda “chaff.” While no one can force an employee to verify the information they’ve received, a secret ballot election at least allows them more of a chance to do so.
But misinformation is only one way employees can be deceived. In some instances, union representatives will deceive workers about the actual nature of what they are signing with a card check authorization.
For example, at the aforementioned 2007 committee hearing in the U.S. House, Karen M. Mayhew, an employee of Kaiser Permanente, submitted a prepared statement in which she described how the Service Employee International Union tried to organize her workplace using deceptive practices. Kaiser Permanente had entered into a neutrality agreement with SEIU prior to the union’s organizing efforts.
In her statement, Mayhew detailed how the SEIU hosted a question and answer session where it told employees that signing cards only meant expressing an interest in receiving more information about the union and that employees would have an election to decide whether or not to bring in the union for representation. “It was made clear to all of us there in attendance that those authorization cards did NOT constitute a vote right there and then for exclusive representation by SEIU,” she said. “We were told by the union agents that if 30% of us signed those cards, we would be allowed an election to vote on exclusive representation by the SEIU.”
When the union received a majority of the cards, Kaiser Permanente automatically recognized it. As Mayhew told the committee, “When we were told that 50% plus one had signed the union’s authorization cards, and that no election would be held, it did not take long for many employees to announce that they would not have signed the cards if they had known that there would be no election.”
The misleading statements and other tactics used by the SEIU against Kaiser Permanente employees led Mayhew to file several charges against the union and her employer, called “unfair labor practices.” Kaiser Permanente and the SEIU eventually settled the charges, providing that the company revoke the voluntary recognition of the union and stipulating that if the SEIU were to represent Mayhew’s department “for the next several years, it would have to obtain such status through a National Labor Relations Board-supervised secret ballot election.”
Another example of these types of deceptive tactics comes from Ryan Canney, an employee of Somers Building Maintenance-Siltronic. He alleged that SEIU Local 49, during a card check election at SBM, coerced employees, used out-of-date cards and deceived workers into signing cards which they were told were “information flyers.”
SBM agreed to voluntary recognition via card check and the SEIU Local 49 was established as the exclusive bargaining representative. After the majority of SBM employees signed two separate petitions asserting their wish to remain nonunion, Canney, with the help of the National Right to Work Legal Defense Foundation, filed charges against the union with the NLRB. Under a settlement in 2007, SEIU Local 49 was forced to suspend organizing efforts at SBM, and were banned from being recognized through card check for a period of one year.
Both legal and illegal forms of deception can deprive workers of the Excelsior standard of having an opportunity to make a fully informed decision on whether to join a union or not. Forcing employees to make a snap decision during what could be a very stressful encounter with a union organizer, while being subjected to misinformation, undermines the value of their choice.