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WORKERS, UNCHECKED: THE CASE FOR CARD CHECK THIS LABOR DAY  
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Hayley Brown, Sylvia Allegretto
August 21, 2024
CEPR
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_ This Labor Day, workers deserve to see lawmakers tackle one of the
key areas of policy hindering their right to organize unions. _

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The process of union certification is a critical area of labor rights,
acting as a precursor to collective bargaining. One method, card
check, simplifies this process by allowing workers to express their
desire for union representation through majority sign-up. Because it
reduces opportunities for employer interference and expedites union
certification, card check has come under significant fire from those
who oppose unions.

Card check is a quick and efficient way for workers to indicate
whether they want to be represented by a union. Workers who desire a
union simply sign authorization cards indicating their support. If a
majority (typically 50 percent plus one) sign cards, the union is
recognized as the employees’ representative, and the newly
authorized union and its members begin negotiating a collective
bargaining agreement. Card check certification allows workers to move
quickly from establishing majority support for their union to meeting
their employer at the bargaining table.

CARD CHECK VS. SECRET BALLOT

Card check is an option for union certification in the US, but there
is a catch. While private sector employers can voluntarily recognize
their employees’ union based on card check, _they are not obligated
to do so_; employers have the option to petition the National Labor
Relations Board (NLRB)
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if the majority of workers have signed cards in support of the union.
The NLRB adjudicates the matter by running a secret ballot election to
determine whether the majority of those eligible for the bargaining
unit support the union.The secret ballot election typically involves a
prolonged campaign period, which gives employers ample time to
interfere.

The National Labor Relations Act (NLRA)
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the NLRB jurisdiction over union certification in most of the private
sector
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Though some state and local card check laws are written to apply to
all employers in that state or locality, those laws are preempted by
the NLRA
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the vast majority of private-sector workers
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Since the NLRA does not apply to government workers, however, public
sector certification requirements can and do vary by state and
locality.

The distinction between card check and secret ballot elections may
seem inconsequential, but it makes a significant difference in union
certification success rates. Evidence from Canada highlights the
difference in outcomes. Canada shares a similar legal framework with
the United States regarding firm-level union elections, but allows
provinces more flexibility with respect to certification rules, even
in the private sector. This makes the Canadian experience a helpful
case study for understanding how variations in the certification
process can influence unionization outcomes. Johnson (2000
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estimated that mandating secret ballot elections for union
certification in parts of Canada corresponded with a reduction in
successful certifications, and that by 1995, 17 to 26 percent of the
Canada-US union density gap could be attributed to union election
rules in the US. Other researchers — Bentham in 1999
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in 2000
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and Slinn in 2004
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found similar relationships between card check and increased
certification success rates for unions in Canada. Canadian union
certification elections typically take place between five and ten
days after being filed
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while in the US there is often a gap of several months
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the petition filing and the election. This reduces the likelihood of
employer interference in Canada relative to the US, and suggests that
a switch to default card check may have an even bigger effect on union
certification success in the US than in Canada.

Meanwhile, there is some evidence from the public sector that card
check supports union organizing in the US context. Illinois enacted a
statutory amendment requiring employers to recognize unions based on
card checks in 2003. Gely and Chandler (2010)
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public sector union certification activity in Illinois with
neighboring Ohio before and after the Illinois law went into effect.
They found that the Illinois legislation prompted card-check-oriented
shifts in union organizing, with especially dramatic changes in
organizing activity involving smaller bargaining units. This
card-check effect is especially notable because ensuring that smaller
units are able to form unions has been an ongoing challenge. Unions
may be more reluctant to direct limited resources toward organizing
drives at workplaces with fewer workers because it is harder for the
union to recoup the organizing costs from the relatively limited dues
base. By making it easier and more accessible for workers to translate
their majority support into an actual union, card check certification
could help employees from smaller bargaining units access the benefits
of unionization at a rate more comparable to their peers in larger
bargaining units.

SECRET BALLOTS ARE NOT MORE DEMOCRATIC

Some have asserted that secret ballot elections are an inherently
more democratic method of certifying a union
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They are not. Secret ballot and majority sign-on (of which card check
is a form) are both ways for a group of individuals to determine and
communicate majority support for some effort or idea. In this case,
the group doing the deciding is supposed to be the workers and only
the workers. Though US law allows management to be a non-voting party
to union certification, management does not get to vote or sign a card
because it is not their decision to make; only members of the
potential bargaining unit are eligible to make that decision. This
right is also recognized internationally. Article 23 of the United
Nations’ Universal Declaration of Human Rights
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workers’ right to form and join unions; it does not say, “Workers
may form and join unions only if their employer also agrees.”

Of these two ways of determining and communicating the will of the
majority in a bargaining unit, secret ballot elections provide more
opportunity for management—a party that isn’t supposed to get a
say in the decision—to put its thumb on the scale. If a majority of
workers have already signed cards declaring their support for the
union, asking them to also do so via secret ballot serves to
second-guess their decision-making capacity. It is tantamount to
asking, “But are you sure?” in response to the majority making a
decision that management may not like, which is not a democratic
practice. Employers who demand secret ballot elections even after most
of their workers have signed union cards are behaving
anti-democratically. The insistence on secret ballot elections has
nothing to do with democracy and everything to do with employers
trying to undermine unionization efforts.

WHY BOSSES PREFER BALLOTS

Those who oppose card check certification often express concern that
workers will be pressured by other workers to sign cards
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They maintain that the decision to sign a card is more likely to be
made under duress compared with voting by secret ballot. This line of
argument falls short in several ways.

First, both secret ballots and signed cards may reflect pressure
exerted on the individuals casting their votes or signing. Not all
sources of pressure are created equal, however. In a non-union
workplace, the power dynamics favor the employer over the worker. Most
workplaces have a hierarchical structure that gives bosses and
managers wide-ranging discretionary authority to hire and fire, shape
job roles, set work pace, alter company policy, and otherwise direct
the working environment. It would therefore be a mistake to assume
that pressure from co-workers and pressure from an employer are
equally threatening to the decision-making process of workers. To do
so ignores the considerable power imbalance between workers and their
bosses; this imbalance makes pressure from an employer a far bigger
threat.

Employers don’t prefer secret ballots because they want their
employees to be able to make pressure-free decisions about the union.
Employers prefer secret ballots because secret ballots
give _employers_ more opportunity to exert pressure — even though,
while parties to the decision, they are not legally supposed to have
a _say_ in the decision. It’s important to be clear-eyed about
which source of pressure poses a greater threat to a worker’s free
and uncoerced decision-making. If we care about workers’ ability to
make uncoerced decisions about unions, and secret ballot elections are
more likely to introduce pressure from a more concerning source, it
makes sense to favor card check certification.

Secret ballot certification also falls short in another, more
fundamental way. In “What’s More Democratic Than a Secret Ballot?
The Case for Majority Sign-up
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Gordon Lafer makes the case that deciding to form a union and voting
to elect someone to public office are fundamentally different acts,
and therefore deserve different considerations with respect to
democratic procedure. Elections for public office are most people’s
reference point for democracy, but Lafer argues that it’s the wrong
analogy for union certification. He writes:

_“The decision to form a union is not equivalent to the choice of
which candidate should occupy a preexisting slot in the government. It
is rather an attempt to change the form of government in the
workplace, from one-party rule to something slightly more
democratic.”_

Deciding to form a union is a choice to create a representative
structure independent of the firm’s managing authority – and that
is potentially at cross purposes with it. Organizing a union is
usually a delicate matter because employers are fiercely committed to
preserving the current default system, under which the employer
exercises unilateral rule. Workers also know that even if they succeed
in changing the system, they will remain largely subject to the
authority of the employer who opposed their efforts.

Forming a union is a more fundamentally collective enterprise than
voting for a representative to public office; workers do not form
unions as atomized individuals independent of their co-workers.
Instead, employees who back a unionization effort are signaling
sufficient confidence in their co-workers to want to come together
with them and wield more power as a group vis-a-vis their boss.
Signing a union card can be understood as workers’ pledging to each
other their commitment to work together to secure a fair contract. As
Lafer notes, acknowledgment of this commitment is reflected in the
fact that one of the questions workers tend to ask themselves when
deciding whether to support the union is, “Are enough of us on board
to make this a worthwhile endeavor?” Secret ballot elections, then,
may serve to individualize a fundamentally collective action.

THE FUTURE FOR CARD CHECK

There have been pushes to codify unions’ right to use card check
certification in the US. As noted earlier, some states have already
done so, and though their efforts are preempted by the NLRA in most
of the private sector
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state and local laws can make card check the default for some or all
public sector employees in those jurisdictions. At the federal level,
the doomed Employee Free Choice Act of 2007
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have amended the NLRA to require immediate union certification if the
majority of workers signed cards indicating their support for the
union.

There have also been some encouraging certification-related rulings by
the NLRB in the last few years. The NLRB’s 2023 ruling in _Cemex
Construction Materials Pacific, LLC_
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the available window for management’s anti-union campaigning by
requiring employers to either voluntarily recognize the union based on
card check or file for an election within two weeks. Prior to
the _Cemex_ decision, employers could simply reject authorization
cards
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valid proof of a worker majority and put the onus on the union to file
an election petition with the NLRB. The resulting delays gave
employers that much more opportunity to bust the union.

The NLRB also published its Fair Choice–Employee Voice Final Rule
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year. Among other things, the rule restores the “voluntary
recognition bar,” which ensures that unions certified via card check
and voluntarily recognized by the employer aren’t challenged in
short order, allowing them to move on to negotiating a collective
bargaining agreement. The rule reverses a 2020 NLRB decision
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required a 45-day challenge period following voluntary recognition,
during which any employee could demand that the NLRB relitigate the
union’s recognition and impose an election instead.

While the recent NLRB edicts have helped, the union certification
process remains onerous for workers. Even the Protecting the Right to
Organize Act of 2021
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known as the PRO Act), often held up as the gold standard in labor law
reform with many important pro-worker changes, leaves the flawed
elections process mostly in place
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Though the PRO Act does tackle some of the worst employer delay and
obstruction tactics
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the closest it comes to enshrining card check certification is by
imposing it as a penalty on employers who fail to abide by tightened
election rules.

This Labor Day, workers deserve to see lawmakers tackle one of the key
areas of policy hindering their right to organize unions. Federal
lawmakers should move to not only codify card check as a valid means
of union certification, but also change the laws that give employers
undue standing and ability to interfere in union organizing. Lawmakers
should also ensure that public sector employees – who are not
covered by the NLRA – have the same rights to join and form unions
as their peers in the private sector. State and local governments that
have not already done so should also move to validate union
certification based on card check. Such provisions would immediately
benefit workers in the public sector. They would also act as an
additional potential legal backstop in case federal protections are
weakened in a way that gives state and local governments more
jurisdiction over private sector union certification.

As discussions around labor rights continue, ensuring that card check
certification is recognized and supported remains crucial to
empowering workers and strengthening their ability to advocate for
fair treatment in the workplace. Given the evidence of its
effectiveness, policymakers at every level of government should resist
flawed and bad-faith arguments and instead prioritize this crucial
pro-worker policy.

_HAYLEY BROWN is a Research Associate at the Center for Economic and
Policy Research._

_Her research spans a wide range of subject matter, including labor,
disability, inequality, and the role of the social state in creating
an inclusive economy. Hayley recently served as the President of the
Nonprofit Professional Employees Union, which represents the staff at
CEPR and many other nonprofits throughout the United States. She
previously worked in the Research, Markets, and Regulations division
of the Consumer Financial Protection Bureau, and for the Brookings
Institution’s Metropolitan Policy Program. She studied geographical
sciences and philosophy at the University of Maryland, College Park._

_SYLVIA ALLEGRETTO is a senior economist at the Center for Economic
and Policy Research._

_Previously, Dr. Allegretto was the Co-Chair of the Center on Wage and
Employment Dynamics at the University of California, Berkeley. Before
that, Dr. Allegretto worked for several years at the Economic Policy
Institute after receiving her Ph.D. in economics from the University
of Colorado, Boulder. She has published in top-tier academic journals
and has written extensively on topics that include long-term
unemployment, family budgets, teacher pay, public employee
compensation, low-wage labor markets, inequality, minimum wages, and
sub-minimum wages received by tipped workers. Her recent research
concerns the growth in MSA-level hospital consolidation and how it has
affected the growth in nurse wages. Preliminary results show that less
competition in hospital markets has suppressed the growth of nurse
wages._

_Dr. Allegretto has appeared on national television and radio network
news programs, is widely cited in, and had commentaries published by,
major print publications including The Washington Post, The New York
Times, Wall Street Journal, and Los Angeles Times._

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