A union is conducting a “card check” organizing drive at my workplace, and I am not interested in union representation. What are my rights?
If a union collects signed “authorization cards” from 50% plus 1 of the employees at your workplace, your employer could declare that the union is the so-called “exclusive representative” of all employees without a secret ballot election.
You have the legal right to: (1) not sign a union authorization card; (2) revoke any authorization card you may have signed; and (3) sign and circulate a petition against monopoly union representation. Before August 26, 2011, you had the right to demand a secret ballot election within 45-days of your employer recognizing a union as your representative (this was referred to as Dana decertification rights), Dana Corp., 351 NLRB 434 (2007), but President Obama’s National Labor Relations Board overruled that precedent and denied workers the right to an election for anywhere from six months to one year after the recognition, and up to three years more if the employer and union sign a contract. Lamons Gasket Co., 357 NLRB No. 72 (2011). We will continue to fight to see Dana reinstated, and will update our website with further developments related to this effort when they occur. In the meantime:
(1) You have a legal right to refrain from signing a union authorization card. Whether you wish to sign a union authorization card is completely up to you. It is unlawful for an employer or a union to threaten or coerce any employee to sign a union authorization card, or to misrepresent the purpose of the card.
For example, it is unlawful for a union or employer to tell employees that they will be fired when the union gets in if they don’t sign a card. Employees should also beware of union propaganda that claims, “We already have a majority of signed cards, and we want you to sign in order to show the employer that we really have a unanimous workforce.” If the union truly had a majority of signed cards, it would likely have already demanded monopoly representation status from the employer, and would not be wasting its time collecting more signatures.
(2) You have a legal right to revoke any union authorization card that you have signed. It is illegal for a union to restrict your right to revoke a union authorization card that you signed.
You may revoke any union authorization card you have signed by signing a letter, card, petition, or other document stating that you do not support the union, or that you support another union. Under the National Labor Relations Board’s “dual card” doctrine, it is well-established that when an employee signs two documents with conflicting statements of union support — for example, signing a card both for and against union representation — then neither document is a valid proof of the employee’s representational preference. See Parkwood Developmental Center Inc., 347 N.L.R.B. 974 (2006); Le Marquis Hotel, LLC, 340 N.L.R.B. 485 (2003). Quite simply, the two documents cancel each other out.
However, if you do not inform the union or your employer that you have revoked the union authorization card that you signed, there is a possibility that the union or employer may count you as a union supporter during any card count (even though your card is invalid as a matter of law). Moreover, recent Board cases have questioned the Board’s treatment of dual signers, at least in some circumstances. E.g., Johnson Controls, Inc., 368 NLRB No. 20 (2019).
Thus, if you wish to revoke a union authorization card, you should notify in writing both the union and your employer that you are specifically and unequivocally revoking the authorization you previously signed to ensure that your representational preference is known and honored. You should send a letter by certified mail, return receipt requested, so that you have proof of delivery. Click here to see a Sample Letter Revoking an Authorization Card.
(3) You have a legal right to sign and circulate petitions against union representation. You have the legal right to campaign against union representation if you choose, provided that it is done on non-work time (such as during work breaks) and in non-work locations (such as in break rooms, lunch rooms or parking lots). An employer cannot discriminate or retaliate against employees based on their support or opposition to union representation, if done on non-work time in non-work areas.
You have the legal right to sign and circulate cards or petitions against union representation, on non-work time and in non-work areas. If you oppose the representation of a union, signing and circulating such a petition is perhaps the most important thing that you can do to exercise your legal right to refrain from union representation. Click here to see a Sample Petition.
One reason circulating such a petition is important is that, under the “dual card” rule, an employee’s signature on a card or petition against union representation may invalidate any union authorization card that he or she may have signed before for up to one year. Thus, if 50% of more of employees in a bargaining unit sign a card or petition against union representation, it is mathematically impossible for the union to organize your facility via a “card check” for one year.
In conclusion, every employee has a protected legal right to decide whether to sign a union authorization card, free from threats, restraint, harassment, coercion, or misrepresentation. The Foundation takes no position about how you should exercise your right to join a union or refrain from joining a union. The Foundation simply wants all employees to be able to make this choice in an atmosphere free of restraint, threats and coercion.
If you decide to pursue a decertification petition to oust an unwanted union or need answers to other questions, you may contact Foundation staff attorneys to get answers about how to proceed, or assistance in dealing with the NLRB or in overcoming legal difficulties that interfere with your efforts.