Danger! Card Check!

10/20/2008 -


In the early to mid part of the 20th century, unions represented more than 40% of all American workers. Today, that number is around 13% or lower, mostly in the public sector. According to the US Bureau of Labor Statistics, the percentage of union members in Florida is 5.2%. It’s 14.2% in West Virginia -- mostly in the coal mining industry -- 9.8% in Kentucky and 3.3% in North and South Carolina. You can check your state at Union membership has been steadily declining for 50 years and unions are looking for ways to increase membership.

Under current regulations, a union campaign against an employer has several steps. First, there is an expression of interest, which can occur when one or more employees become interested in a union, or where the union picks an employer as a specific target. Next, comes a card signing campaign, during which union representatives will try to get employees to sign union cards. If 30% of the employees sign a card, the NLRB will order a secret ballot election. Then, both the employer and the union conduct a campaign and, to win, the union must receive more than 50% of all votes cast. All of this usually takes between 6 to 12 weeks. If the employer wins, the union cannot come back for one year. If the employer loses, the requirement is to negotiate a contract in good faith. The employer is not required actually to reach a contract, only to negotiate in good faith. If either the employer or the union is alleged to have acted improperly, either side may file an Unfair Labor Practice, which will be heard and decided upon by the National Labor Relations Board.


The Employee Free Choice Act, currently under consideration by Congress, would eliminate a secret ballot election and would impose a procedure known as “Card Check.” That is, if 50% of employees sign a union card, the NLRB would order the employer to bargain with the union without the benefit of a secret ballot election. It is well known that employees sign union cards for multiple reasons, often under a cloud of intimidation, peer pressure and threats, and many employees may sign the union cards but have no intention of voting for the union in a secret ballot election. Thus, the result of the Employee Free Choice Act would be more union victories, but at the cost of employees not being able fully to express their wishes in a secret ballot election – the union that would “win” a Card Check is likely to lose a secret ballot election. Thus, most management observers see Card Check as inherently unfair, both to employers and employees. The prevailing wisdom is that the Employee Free Choice Act would easily pass in a Congress that is controlled by the Democratic Party, which is seen as more favorable to unions. This will affect every non-union employer in America.


[1] The term “Free Choice” may be an oxymoron because, under this proposed legislation, employees would actually lose their right to a free choice through a secret ballot election.


1. If you believe the Employee Free Choice Act is unfair and are opposed to it, contact your Senator and your Representative to express your view and ask them to vote against it.

2. If you want your business to remain non-union, you must be pro-active and take specific steps to protect the interests of you and your employees, and avoid being taken by surprise by a union campaign.

a. Establish and communicate a written policy of treating all employees with fairness and equality, respect and dignity, without the need for a third party.

b. Conduct an employee opinion survey at least every 18 months, in which employees tell you how they feel and what they think about their pay, benefits, working conditions, supervision and other job related factors. Seay Management can conduct this for you, either electronically or by paper and pencil. This is the number one management tool for improving and enhancing employee morale, bar none.

c. Conduct a management training program for your supervisors so that they will be able to recognize the signs of union activity and will be able to react swiftly and within the regulations. Sometimes supervisors are hesitant to take action or to talk with employees, for fear of violating an NLRB rule. The fact is, however, that supervisors have more freedom to talk and act than they might imagine, using the acronym TIPS.

d. Instruct supervisors never to look at a stack of union cards that an employee or a union representative presents to them. If so, you could have a union right on the spot.

3. Have Seay Management conduct a Union Vulnerability Audit, to determine if you have areas of vulnerability that a union could exploit, with specific recommendations on strengthening your position and eliminating the vulnerability.


If the Employee Free Choice Act passes, it will be the strongest move against employers and in favor of unions in more than 50 years, and will represent a seismic change in union organization activity. However, if you have employees who are happy and satisfied with their jobs, who believe they are treated fairly, and who do not want a union and don’t think they need a union to represent them, you will not have to worry about a union organization campaign at your business. As always, if you have a question about Card Check, labor relations, union activity or any other Human Resources Management issue, please call or email your Seay Management consultant. We are always delighted to talk with you and appreciate having you as a client of our firm.

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