Employers Must Prepare for Card Check: Union Organizing without Elections

The NLRB’s General Counsel seeks a return to the long-abandoned Joy Silk doctrine.

Under Joy Silk, unions can organize a workforce simply by claiming to have a majority of employees support the union. This is called card check. No election needed.

Card check is usually done through signing cards that authorize the union to be the bargaining representative of the employees.

Currently, if a union claims representational status and an employer objects, a union election is held to determine whether the employees want the union. Under card check, employers lose the ability to have an election determine union status.

Secret ballot elections are the preferred method of determining union status. Elections are run by the National Labor Relations Board have several checks and balances to ensure fairness and allow employees to cast their vote privately.

Card signing is unregulated and often done by pro-union employees approaching other employees and “requesting” they sign the card in the presence of the pro-union employees.

Employees may not fully understand the purpose of the card. Often they are told to just sign the card to get more information about the union, get on the union’s mailing list, or to seek a union election. Sometimes cards are distributed and signatures “requested” after a night hanging with the union at the local pub.

Union proponents have long sought to re-establish “card check” as the preferred method of union organizing. They have tried and failed to enact card check through federal legislation. Now, the NLRB GC seeks to reverse 50 years of Board precedent to make card check a reality without the need for legislation.

Card check fell out of favor in the 1960s when employers were allowed to insist on a secret ballot election to determine representational status.

Is it just a coincidence that unionization rates have steadily fallen since secret ballot elections became a possibility? Is there a correlation between an unregulated card check system and increased unionization rates?

The current make-up of the NLRB is 3 pro-union, Democrat appointees and 1 pro-business, Republican appointee. This makes the return of card check a virtual certainty.

Coupled with the proposed elimination of captive audience meetings, micro bargaining units, severe increases in penalties for minor violations of labor law, and the return to card check, the NLRB is establishing procedures that will make union organizing activity escalate exponentially.

Employers must take steps now to protect against a union’s demand for recognition based on a clandestine card-signing campaign. Learn to recognize union organizing efforts. Educate employees about life with a union. Help employees see through common union false promises and propaganda. Most importantly, inform employees on what it means to sign a union card so they can make a full, informed decision before signing one.

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