Organized labor's highest legislative priority is the
deceptively named Employee Free Choice Act (EFCA). EFCA replaces
secret ballot elections -- the method by which most workers join
unions -- with publicly signed union cards. While eliminating secret
ballots is extremely unpopular, many EFCA support ers argue
that the legislation merely gives workers the choice between
organizing using secret ballots or pub licly signed cards. This
argument is false; nothing in the legislation gives workers any
control over union organizing tactics. Though EFCA still allows for
secret ballot elections under unusual circumstances, stan dard
union organizing tactics ensure that publicly signed union cards
will dominate the recognition pro cess. As a result, the
misnamed Employee Free Choice Act effectively eliminates secret
The Current System
Under the National Labor Relations Act (NLRA), workers may be
organized in one of two ways: card -- check recognition or secret
ballot elections. To begin organizing workers, a union must solicit
employee signatures on union authorization cards. Once the union
has collected signatures from enough employ ees -- a minimum of 30
percent -- the union submits the cards to the company and requests the
company recognize the union. This process is called card -- check
recognition. Very few employers accept card -- check as the sole means
of recognition. Indeed, between 1998 and 2005 only 13 percent of
new AFL -- CIO members joined through card -- check with out an
Employers routinely refuse to recognize unions on a
card -- check -- only basis because publicly signed cards do not reflect
employees' preferences. Public card signing exposes workers to
pressure, harass ment, and threats from the union. Even
union organizing guidebooks state that a worker's signa ture on
a union card does not mean that worker supports the union.
If, as in most instances, the employer doubts the cards reflect
its workers' preferences, union orga nizers then submit their
cards to the National Labor Relations Board (NLRB) and request an
election. The typical election occurs six to seven weeks after the
union submits its petition. If a majority of workers -- expressing their
choice in the privacy of the voting booth -- support the union, then
the company must begin bargaining with it. If most workers vote
against the union, then it does not represent them and must cease
its organizing activ ities. Unions win recognition in over 60
percent of these elections.
Card -- Check
EFCA requires employers to recognize a union -- without an
election -- once organizers collect cards from a majority of
employees. Indeed, the act states that once the union
submits signatures from over 50 percent of the employees to the
NLRB, it must certify the union without an election. Under EFCA,
holding a secret ballot election once unions collect cards from a
majority of workers would become illegal.
Additionally, a card -- check -- only recognition pro cess strips
workers of their privacy. Polls show that most Americans strongly
oppose denying workers the privacy of the voting booth when
deciding whether to join a union. In response to such
criti cism, unions now argue that EFCA does not end secret
ballot elections. Instead, proponents argue that EFCA gives workers
the choice between orga nizing using public card -- check or
Unions make this claim because union organiz ers can call
for an organizing election after cards have been signed by at least
30 percent of employ ees. Since card -- check recognition
under EFCA occurs after organizers submit cards signed by a
majority of workers, secret ballot elections could -- in theory -- occur
under EFCA if organizers submit ted cards signed by 30 to 50
percent of workers.
In practice this scenario will not happen. Noth ing in the
legislation gives workers any control over what organizing method
unions use. That decision is left to union organizers. Organized
labor's well -- documented preference for card -- check recognition makes
it clear that EFCA effectively eliminates secret ballot
Unions Do Not Submit Cards from a
Minority of Workers
Unions virtually never call for elections with cards signed by a
minority of workers. Organizers are generally instructed to collect
cards from 60 to 70 percent of workers in a company before going to
the polls. Unions openly state that they do not go
to an election without a supermajority of cards:
- International Brotherhood of Teamsters: "The general
policy of the Airline Division is to file for a representation
election only after receiving a 65 percent card return from the
eligible voters in a group."
- New England Nurses Association: "Have 70 -- 75
percent of members sign cards; if unable to reach this goal, review
- Service Employees International Union (SEIU): "...[T]he
rule of thumb in the SEIU is that it's unwise to file for an
election when fewer than 70 percent of the workforce has signed
Effective End of Elections
As these organizing guidelines demonstrate, unions do not file
for an election with cards signed by only 30 to 50 percent of
workers. Rather, they only file for an election when they have a
superma jority of cards because workers who sign in front of an
organizer often vote "No" in the privacy of the voting booth.
Internal union studies show that the union does not have even odds
of winning an election until 75 percent of employees sign cards.
Unions will not go to the polls without majority support because
they know they are unlikely to win and, if they lose, federal law
bars them from calling for another election for a year.
Under EFCA, once cards have been obtained from a majority of
workers, unions would not file for an election. In fact, EFCA
specifically bars the NLRB from conducting an election if the union
turns in cards from a majority of workers. Union organizers' jobs
are to recruit new union members to pay 1 to 2 percent of their
wages as dues to the union. They are not paid to give workers a
chance to rethink the wisdom of union membership.
Union leaders openly state that they will not call for elections
if given the choice. United Food and Commercial Workers President
Joe Hansen admits that "We can't win that way anymore."
UNITE HERE President Bruce Raynor says that he sees "no reason to
subject the workers to an election." SEIU Local 32BJ President
Mike Fishman flatly states, "We don't do elections."
Under EFCA, organizers would submit all their cards directly to
the NLRB and demand immediate recognition. This mandatory
check -- card process would represent a dramatic departure from the
cur rent norm of secret ballot elections that give work ers
an opportunity to privately express their views. Every circumstance
that currently leads to a secret ballot organizing election would,
under EFCA, lead to card -- check recognition without an election.
On paper EFCA leaves secret ballot elections a possibility. In
practice EFCA eliminates secret ballot organizing elections for
Unions Mislead Workers
Union organizers frequently demonstrate that they have no
interest in giving workers the choice of how to join a union,
especially when such a choice would interfere with Organized
Labor's primary objective -- recruiting new members who will pay new
dues. Organizers in many campaigns tell work ers that the cards
they are signing only count toward an election, and then request
card -- check recogni tion on the basis of those cards.
For instance, union representatives attempting to organize Trico
Marine told workers the cards were only requesting a vote, and then
tried to pressure Trico to recognize the union only on the basis of
the cards. Culinary Workers organizers in Las Vegas
told the same thing to workers at the MGM Grand.
SEIU workers also made the same promise to Kai ser
Permanente employee Karen Mayhew. The SEIU then used signed cards
to pressure Kaiser into recog nizing the union, without the
Union organizers do not want to give workers a choice about how
to join a union; they only want to collect new dues from new union
Workers Have No Choice
Workers have no say in the methods union orga nizers use.
EFCA does not permit workers to sign cards that call for an
election without also counting those signatures toward a card -- check
majority. In fact, under federal law, a worker's signature on a
union card counts as a "showing of interest" in union
If workers at a company targeted by union orga nizers
collected signatures to call for a secret ballot election the union
could, under EFCA, use those signatures to count towards a
card -- check majority. For instance, in an attempt to preempt a
card -- check -- only organizing drive, employees might col lect
cards from 35 percent of fellow employees, turn them in to the
NLRB, and request an election.
The 35 percent of employees who signed the cards do not
necessarily want a union; they simply want an opportunity to
consider the matter before casting a private vote. However, in
response to the employees' efforts to prevent card -- check
recogni tion, union organizers could submit additional signed
cards they had collected from pro -- union employees. If the combined
total of cards col lected -- from both pro -- union employees and
unde cided employees seeking to protect their privacy -- was
greater than 50 percent, the union would be recognized as the
workers' exclusive representa tive -- without an election.
Under such circumstances, it is possible that only a paltry 16
percent of employees were in favor of union representation. After
all, 49 percent of employees may have been outright hostile to the
idea of organizing, while 35 percent -- though undecided about
representation -- wanted to pro tect their ability to make a
decision in a private voting both. Yet, under EFCA, the NLRB would
have to consider the 35 percent employees' signa tures not as a
decision to reserve a right to con sider the matter privately,
but as an overt gesture of union solidarity. Subsequently, EFCA
provides an opportunity for a small minority of pro -- labor employees
to impose their agenda on a majority of employees who desire only
to make a thoughtful, private decision.
Workers could not insist that they only wanted to vote in
privacy and not recognize the union. Under EFCA, employees do not
have that choice.
EFCA Effectively Ends Worker
EFCA strips workers of their freedom to choose in privacy. It
requires companies to recognize unions without an election once
unions collect cards publicly signed by a majority of employees.
Unions contend that because the union could file for an election
with signatures from 30 to 50 per cent of the workers in the
company, EFCA does not end secret ballot elections. This is highly
mislead ing. Unions do not file for elections with cards signed
by a minority of employees because they know they will probably
lose. Their leaders openly state they have no intention of seeking
elections if they can avoid them. Once unions have the majority of
cards they need for card -- check recognition, unions would demand
immediate recognition, not request an election.
EFCA gives union representatives -- and these representatives
alone -- the choice of how to orga nize workers. Union organizers'
goal is to recruit new dues -- paying members, not give workers an
opportunity to privately say "No" to union repre sentation.
Unions will tell workers that cards count only toward an election,
then demand recognition without a vote. Employees cannot sign cards
to request an election without having those cards count toward a
card -- check majority. Unions have demonstrated that they have no
interest in allowing workers to privately reject union
representation. The misnamed Employee Free Choice Act
effec tively ends secret ballot organizing elections for
James Sherk is
Bradley Fellow in Labor Policy in the Center for Data
Analysis at The Heritage Foundation.
Rafel Gely and Timothy Chandler, "Card Check
Recognition: New House Rules for Union Organizing?" Fordham
Urban Law Journal, Vol. 35 (2008), p. 247, Table 2.
Employee Free Choice Act, H. Rep. 800, 100th
Cong., 1st Sess., March 1, 2007, Section 2.
James Sherk, "Workers Reject Card Checks, Favor
Private Ballots in Union Organizing," Heritage Foundation
WebMemo No. 1363, February 16, 2007, at
National Labor Relations Act (NLRA), 29 U.S.
Code § 159 (e).
David L. Cingranelli, "International Election
Standards and the NLRB: Representative Elections," Parts 1-3 in
Richard N. Block, et al., eds., Justice on the Job: Perspectives
on the Erosion of Collective Bargaining in the United States
(Kalamazoo, Mich.: W.E. Upjohn Institute, 2006), p. 42.
Steven Henry Lopez, Reorganizing the Rust
Belt: An Inside Study of the American Labor Movement,
(Berkeley, Cal.: University of California Press, 2004), p. 38.
Sherk, "Unions Know."
AFL-CIO, AFL-CIO Organizing Survey
(Washington, D.C.: AFL-CIO, 1989).
NLRA, 29 U.S. Code § 159 (c)(3).
BNA Business Report, "UNITE HERE Picks Hilton
as Target for 'Hotel Workers Rising' Campaign," March 24, 2006, p.
Timothy Aeppel, "Not-So-Big Labor Enlists New
Methods For Greater Leverage," The Wall Street Journal,
August 29, 2005, at p. A-2.
Clyde Jacob, testimony before the
Subcommittee on Employer-Employee Relations, Committee on Education
and the Workforce, U.S. House of Representatives, April 22,
Bruce Esgar, testimony before the
Subcommittee on Workforce Protections, Committee on Education and
the Workforce, U.S. House of Representatives, July 23, 2002.