Committee on Education and Workforce
U.S. House of Representatives
2176 Rayburn House Office Building
Washington, DC 20515

RE: Request for Information (RFI) on reforming the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA)

Dear Chairman Walberg and Chairman Allen,

Thank you for inviting me to submit a written comment to help Congress in its efforts to reform the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA). I would like to submit a comment for the public record to answer the question below:

Should a union be required to hold a secret ballot vote of membership to ratify a collective bargaining agreement?

Introduction

Currently, there are two ways workers can elect, through a simple majority (50 percent plus one), whether they want to be represented by a union: through a secret ballot election or a “card check” certification.

A secret ballot vote occurs when workers decide whether to ratify a collective bargaining agreement with their employer in a National Labor Relations Board (NLRB)-administered election, in which their decision is made in the privacy of a voting booth, in a manner similar to that of a typical political election. Because the vote is made in private, nobody else would know whether they voted “yes” or “no.” Workers in this private setting are able to cast their vote in accordance with their conscience, free from any unwanted pressure that may influence their decision-making process.

A card check certification, on the other hand, occurs when workers decide whether they want to be represented by a union by signing authorization forms or “cards” that authorize unions to represent them for the purpose of collective bargaining. These cards are signed not in private, but in front of solicitors, leaving the voters susceptible to pressure, intimidation, and deception.

A worker’s decision to be represented by a union is not one to be taken lightly, as it has ramifications not only on an employee’s ability to determine the terms and conditions of his or her employment, but also on broader social, political, or policy positions that may be taken by the union. Therefore, it is important that this vote be done in a manner that most accurately reflects the true wishes of each individual worker.

The only way to ensure that each and every vote cast by workers represents their true opinions is to require that secret ballot elections be held to ratify collective bargaining agreements. No other method of voting, such as card checks, can best ensure that each vote is an accurate representation of each worker’s values.

To preserve workers’ right to participate in free, fair, and democratic elections to determine whether a union should represent them, several bills have been introduced in Congress to require a secret ballot, the Secret Ballot Protection Act being a recent example.

Background: How the Current Union Election Process Works

The election process begins when a union files a petition with the NLRB with signed cards demonstrating that at least 30 percent of employees support the petition to form a union. If this 30 percent criterion is met, the NLRB would conduct a secret ballot election. If a majority of the employees have signed the cards stating their support for union representation, the union can then ask the employer to voluntarily recognize the union as the exclusive bargaining representative. The employer can then choose to accept the voluntary recognition without a secret ballot election, or the employer can petition the NLRB for a secret ballot election to ensure a fair election process.

Unions, to avoid a secret ballot election, may try to find ways to expedite the voting process via card check. One strategy is to request that an employer sign a “neutrality agreement,” which is a contract between a union and an employer wherein the employer agrees to not interfere with the union’s ability to organize. Neutrality agreements often include a provision to recognize the union as the exclusive bargaining representative via card check, as opposed to a secret ballot election. If the employer does not agree to the terms of these neutrality agreements, unions may launch what is known as a “corporate campaign,” whereby they attempt to damage the company’s public image or finances to get the employer to agree to the union’s demands. Since employers often sign these agreements as a result, card check elections are more common than they might otherwise be.

Secret Ballot Elections Are Superior to Card Checks

The reason secret ballots are a better way to ratify collective bargaining agreements is straightforward and intuitive. Because secret ballot elections are done in a private setting, they are a better way of maintaining the integrity of elections compared to card checks. Indeed, both the courts and the NLRB have recognized secret ballot elections as the “gold standard” for unionization elections.

Card check certification is problematic because it opens the door to union tactics that pressure, intimidate, or even deceive employees into voting in the union’s favor. Although not all union organizers engage in such tactics, card check elections can make employees vulnerable to union coercion.

Evidence shows that card checks work to unfairly sway elections in unions’ favor. One study suggests that “unions with a 50- to 70-percent majority card showing won only 48 percent of elections.” Furthermore, “Even unions with more than a 70-percent card showing won only 74 percent of the elections,” indicating that outside pressure from card check certifications influences workers to vote more in favor of the union.

Secret ballot elections eliminate the problems that card check certifications present to more accurately represent the will of the majority of workers. When employees cast their vote in the privacy of a voting booth, they are free from any intimidation tactics or misinformation strategies that may interfere with their ability to cast a vote that best represents their conscience.

Keeps Employees Free From Pressure and Intimidation

Proponents of card check certification argue that a majority of card signatures adequately represents the will of the employees and that secret ballot elections would only allow employers to “put (their) thumb on the scale” during the election process. Card check certifications, however, possess inherent characteristics that lend themselves to creating an unfair election environment.

The public nature of card checks places undue pressure on employees to vote the “right” way, as card solicitors can attempt to coerce the workers into signing the cards. Often employees choose to sign the cards as a polite gesture to the solicitor. Courts have acknowledged this pressure, as the Seventh Circuit Court of Appeals in 1983 stated:

Workers sometimes sign union authorization cards not because they intend to vote for the union in the election, but to avoid offending the person who asks them to sign, often a fellow worker, or simply to get the person off their back, since signing commits the worker to nothing (except that if enough workers sign, the employer may decide to recognize the union without an election).

Furthermore, card check elections can even open the door to more extreme tactics that involve threats of violence to get employees to sign the cards. In one case, a card solicitor threatened an employee by claiming the union would “come and get her children and it would slash her car tires” if she did not sign the card. A former United Steelworker union organizer, Ricardo Torres, testified before Congress that senior union officials asked him to threaten to report the company’s migrant workers to immigration authorities if they did not vote with the union.

In a secret ballot election, any pressure or intimidation tactics by the union or employer would have little-to-no influence on the outcome of an election, as the employees would cast their vote in the privacy of a voting booth. As employees’ votes would be private, their votes could not be used against them.

Prevents Deceptive Union Practices

Along with card check elections making employees vulnerable to pressure and intimidation tactics that could sway the election in the union’s favor, they also open the door to deceptive practices in two main ways. First, employees can often sign cards without knowing exactly what they are signing or understanding the full gravity of what they are voting for. Because card checks are done in front of others, employees often do not have time to do their own research to decide if union representation is right for them or to verify the truthfulness of the claims made by the union or the employer. A secret ballot election, on the other hand, provides the time and space for employees to research and think about the choice that would best suit their interests.

Second, employees can actively be misled into signing authorization cards to ratify a union. In May 2024, Michael Alcorn, a crew member at Trader Joe’s, testified to Congress that union organizers misled him into signing an authorization card, believing that he was signing a petition to initiate an election for forming a union. To his dismay, he later found out that he was actually voting in an election:

I was lied to by the organizer. They misrepresented what was really needed in order to have a union election, which is 30% support for a union, not an election. To this day I wonder how many of my co-workers might have gotten the same pitch, and might have been deceived into signing the cards.

Had Alcorn participated in a secret ballot election, he would have been more likely to understand exactly what he had been voting for. He also would have been granted the time and space to do his own research, and to look at both sides of the argument to form his conscience prior to voting.

What Congress Can Do To Ensure Collective Bargaining Agreements Are Ratified Through Secret Ballot Elections

The above reasons indicate that card check certifications cannot be a trustworthy source to ratify a collective bargaining agreement, as they allow unions to pressure, intimidate, and deceive workers into voting for the union’s interest. If Congress seeks to ensure that union representation elections most accurately represent the true voice of workers, requiring secret ballot elections is a sensible step.

The Secret Ballot Protection Act, for example, amends the National Labor Relations Act to guarantee the right of a secret ballot conducted by the NLRB. The Employee Rights Act also contains a provision that protects a worker’s right to a secret ballot in unionization elections.

 

Respectfully Submitted,

Emmet Bowling
Labor Market Policy Analyst
American Action Forum
ebowling@americanactionforum.org