NLRB Decisions Could Make Card Check a Reality

If the right case comes along, the National Labor Relations Board could rule that a company must recognize a union formed through the card-check process.

July 7, 2009
If the card-check provision of the Employee Free Choice Act fails to survive legislative negotiations, it may not necessarily die.

There is a possibility that the National Labor Relations Board could rule, if the right case comes along, that a company must recognize a union formed through the card-check process. Card check, also known as majority sign-up, means that a company recognizes a union if a majority of employees sign cards authorizing a bargaining unit.

Currently, employers can require a secret-ballot union election supervised by the NLRB, or they can agree to card-check authorization.

The five-member board is poised to have a Democratic majority now that a Democrat is in the White House, giving it a pro-union orientation. Currently, the board only has two commissioners—one Democrat and one Republican.

President Barack Obama has nominated two people for board positions. One of them, Craig Becker, is the associate general counsel to the AFL-CIO and the Service Employees International Union.

Each side in the EFCA debate has a different view of whether the new board will—or even can—make card-check recognition compulsory. Those who support EFCA say it is plausible. Those opposed to EFCA say that the NLRB lacks the authority.

In 1947, the National Labor Relations Act was amended so that the NLRB had to resolve representation disputes through a secret-ballot election. In 1974, the Supreme Court ruled that an employer does not have to recognize a union even if a majority of workers have signed authorization cards. Instead, it could insist on a secret-ballot election.

But in making its ruling, the Supreme Court relied on the expertise of the NLRB in reading the labor statute, according to William Gould, a professor of law at Stanford University who was NLRB chairman from 1994 to 1998.

Gould says that the board frequently reverses itself in its interpretation of labor laws. A new NLRB could take a fresh look at card check and decide that is an acceptable way to create a union.

“The board could develop new expertise based on new evidence and new facts and come to a different conclusion,” Gould says. “In my judgment, yes, the board could issue such a ruling.”

An employer-side attorney, however, says that the NLRB has always favored secret-ballot union elections, regardless of its political leanings.

“That’s been a consistent philosophy of the NLRB through Democratic and Republican administrations,” says Matthew Damon, a shareholder at Halleland Lewis Nilan Johnson in Minneapolis. “It’s a pretty fundamental point.”

But precedent doesn’t stand for much at the NLRB, and its new chair, Democrat Wilma Liebman, may be inclined to bolster card check through adjudication, according to Jim Rowader, vice president and general counsel at Target.

“She’s very open to rule making to make significant changes to labor law,” Rowader says. “It will result in a lot of conflict and litigation all the way up to the Supreme Court.”

Before the board gives new life to card check, it should more effectively use enforcement mechanisms that are already available, says Arnold Perl, a partner at Ford & Harrison in Memphis, Tennessee.

For instance, the NLRB can issue a bargaining order that would effectively authorize the formation of a union through card check. The board doesn’t often make such a move, and it usually comes in response to egregious employer behavior.

“The Obama board can be much more aggressive in their administration of the statute by providing effective remedies to address serious instances of employer unfair labor practices,” says Perl, who served on an NLRB advisory panel during the Clinton administration.

Rowader favors strengthening the board’s punitive options. For instance, it should be able to impose economic damages on employers, such as forcing cost-of-living benefit adjustments, or to impose mandatory arbitration. But the latter should be a board option, not a codified mandate, as it would be under EFCA.

“If employers are going to violate the law, then let’s come at them with a remedy that would disincent them from doing the wrong thing in the first place,” Rowader says.

It’s difficult to predict whether the new NLRB will address card check. But experts agree that the board will revisit decisions made during the Bush administration.

One previous board ruling held that employees could file a decertification petition within 45 days of voluntary recognition of a union.

“That case will clearly be overturned by the Obama board,” says Charles Craver, a professor of law at George Washington University.

The information contained in this article is intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion. Also remember that state laws may differ from the federal law.