Despite the use of card check certification, courts around the country have pointed to the superiority of the secret ballot in union elections. As Cohen testified, “As the Board and the Supreme Court have acknowledged the use of authorization cards to determine majority support is the method of last resort.”
The U.S. Supreme Court, in NLRB v. Gissel Packing Co., noted, “The Board itself has recognized, and continues to do so here, that secret elections are generally the most satisfactory — indeed the preferred — method of ascertaining whether a union has majority support.”
Despite the “acknowledged superiority of the election process,” however, the Court also noted that card check was not “totally invalid.” It pointed to instances where an employer disrupts the election process and said that card check may be preferred in those cases.
In its Gissel decision, the Court did not address — and is unlikely to have envisioned — legislation to effectively mandate card check or unions’ increased reliance on strong-arm tactics, such as corporate campaigns, to obtain card check authorization.
The U.S. Court of Appeals for the 2nd Circuit, in NLRB v. Flomatic Corp., wrote, “[I]t is beyond dispute that secret election is a more accurate reflection of the employees’ true desires than a check of authorization cards collected at the behest of a union organizer.” It then referred to a 5th Circuit case that held, “[T]he authorizations on which the union relies did not represent the thoughtful and deliberate action of the employees but were the results of a rash act.” Likewise, the 6th Circuit said in United Services for Handicapped v. NLRB, “An election is the preferred method of determining the choice by employees of a collective bargaining representative.”
The NLRB has a long history of expressing a preference for secret ballots as well. In 1952, in a case involving Sunbeam Corp., it noted, “This Board has also long recognized that authorization cards are a notoriously unreliable method of determining majority status of a union as a basis for making a contract where competing unions are soliciting cards.” The NLRB’s own publications acknowledge the secret ballot as a right. A voter’s guide states, “You are entitled by federal law to vote your free choice in a fair, honest, secret-ballot election to determine whether employees want union representation.” An NLRB case manual reads, “The ultimate device by the Board in resolving a valid question concerning representation is the election by secret ballot.”
It is clear that courts prefer the secret ballot to card check elections. It is also clear from the Gissel case and its progeny that card check’s original intent was to only be used to remedy the most flagrant election abuses and that it was not meant to be used as a common or default organizational process. However, the PRO Act’s requirement that employers prove a negative when charged with interfering in an election — effectively defaulting to a guilty verdict — could make card check the most commonly used method to certify unions. Instead of being an exception, card check would likely become the rule.
Further, card check elections are redundant as a remedy to disruptions of the NLRB election process. Remedies can be achieved by enforcing existing unfair labor practices at the NLRB. For instance, the Board has the ability to reinstate and compensate employees whom an employer unlawfully discharged during an election campaign. The Board also has the ability, in extreme cases, to order an employer to bargain with a union without an election.