NLRB General Counsel Jennifer Abruzzo has formally called on the Board to compel employers to recognize and bargain with unions that show signed authorization cards from a simple majority of the employees they seek to represent. The process—called card check—would make unionization a much easier and quicker process, particularly in smaller single-facility organizing efforts.
Current law: The secret ballot election is currently the typical path for a union to gain recognition as the exclusive bargaining representative of a private sector workforce. The NLRB orders an election if the union shows that 30% of employees in a potential bargaining unit have signed authorization cards expressing interest in union representation. If more than 50% have signed cards, the employer may lawfully recognize the union. Far more often, the employer insists instead on a secret ballot election conducted by the NLRB—generally a weeks- or months-long process.
Emphasizing card check: Under General Counsel Abruzzo’s approach, an employer could be forced to recognize and bargain with a union that has obtained signed authorization cards from a majority of the employees it seeks to represent. If a company refused to bargain with a union that presented it with evidence of majority support, and it could not show any good faith reason to doubt that majority status, the Board could compel the employer to recognize and bargain with the union even if the company had not committed an unfair labor practice during the representation process.
Implications: If the Board adopts General Counsel Abruzzo’s approach, it would represent a significant change to federal labor law and make it much easier for unions to organize workers. Organized labor and its legislative allies have spent years attempting to legalize mandatory card checks by amending the National Labor Relations Act—the Employee Free Choice Act of 2009 and the current PRO Act were two such attempts—without success, even where Democrats controlled the U.S. Senate, House, and White House. General Counsel Abruzzo’s approach would allow the Board to bypass the legislative route and implement card check authorization through Board decision-making.
Outlook: Going forward, employers can expect the General Counsel and unions to file charges against employers who refuse to recognize a union where more than 50% of the employees have signed cards. It remains to be seen whether the Board will adopt Abruzzo’s approach in full or in part, with a decision expected sometime in the coming months, at the earliest. If the Board ultimately agrees with Abruzzo, those employers could be required to accept the union as representatives of their employees.
General Counsel Abruzzo will address our FWPC Mid-Year Conference on June 22 in Washington, D.C., where we will be discussing these developments and more—you can find registration information here.
