The 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 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; (3) sign and circulate a petition against union representation; and (4), if your employer recognizes the union as your representative, request a secret-ballot election to decertify the union under the NLRB’s ruling in Dana Corp., 351 NLRB No. 28 (2007).(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 exclusive 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 may signed. You may revoke any union authorization card you have signed by simply 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. No. 95 (2006); Le Marquis Hotel, LLC, 340 N.L.R.B. No. 64 (2003). Quite simply, the two documents cancel each other out. Under the “dual card” doctrine, you do not need to communicate your opposition to union representation to the union, or to your employer, to render your prior union authorization card invalid as a matter of law. 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). Thus, we strongly recommend that, if you wish to revoke a union authorization card, you notify in writing both the union and your employer that you are doing so to ensure that your representational preference is known. 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 or lunch rooms). An employer cannot discriminate 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” doctrine, an employee’s signature on a card or petition against union representation invalidates any union authorization card that he or she may have signed before, or signs in the future, 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. Moreover, signatures on cards or petitions against union representation can be used to support a request for a secret-ballot election if your employer recognizes a union by a card check in the future. As explained below, if 30% or more of employees sign cards or petitions against union representation, employees can later use those signatures to request a secret-ballot election within 45 days after card-check recognition is announced. Click here to see a Sample Petition.(4) Employees have the right to request a secret-ballot vote if their employer recognizes a union based on union authorization cards. Under the NLRB’s ruling in Dana Corp., 351 N.L.R.B. No. 28 (2007), employees can file a petition for decertification with the NLRB to obtain a secret-ballot election, provided that the petition for decertification is filed within 45 days after the employees are publicly notified of the “recognition” of the union. Under Dana Corp., unions and employers must notify the NLRB when the employer recognizes a union as an exclusive representative. When this happens, the NLRB will give the employer and union an official notice that must be posted in conspicuous places in the workplace. That NLRB notice will inform employees that: (1) the employer (on _____ date) has recognized the union as the employees’ exclusive bargaining representative based on evidence indicating that a majority of employees in a described bargaining unit desire its representation; (2) all employees, including those who previously signed cards in support of the recognized union, have the right to be represented by a union of their choice or by no union at all; (3) within 45 days from the date of the posting of notice, a decertification petition signed by 30 percent or more of the unit employees may be filed with the NLRB for a secret-ballot election to determine whether or not the unit employees wish to be represented by the union; (4) any properly supported petition filed within the 45-day period will be processed according to the Board’s normal procedures; and (5) if no petition is filed within 45 days from the date of this notice, then the recognized union’s status as the unit employees’ exclusive majority bargaining representative will not be subject to challenge for a reasonable period of time following the expiration of the 45-day window period, to permit the union and the employer an opportunity to negotiate a collective-bargaining agreement. In short, if a union is recognized as your exclusive representative via a “card check,” you have 45 days from the date of posting of the official NLRB-prepared notice to petition for a secret-ballot election to decertify the union. To petition for a secret-ballot election, you must: (1) obtain a “showing of interest” petition signed by 30% or more of employees stating their opposition to representation by the union and desire for an election (Sample Petition), and (2) fill out an NLRB Form 502. The “showing of interest” petition and four copies of NLRB Form 502 must then be submitted to your local NLRB Regional Office. If the official NLRB-prepared notice of recognition of a union is not posted, but you learn in some other way that your employer has recognized a union without a secret-ballot election, a decertification petition can be filed at any time. It is important to remember that the signatures on the 30% “showing of interest” can be collected BEFORE the “recognition” is declared, so employees need not wait to begin collecting the signatures. In fact, if employees oppose union representation and oppose having a union come into their workplace based only on “authorization cards” with no secret-ballot election, they can begin collecting signatures immediately, even while the union is collecting its own signatures. Click here to see a Sample Petition. 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, you may contact Foundation staff attorneys to get answers to questions about how to proceed, or assistance in dealing with the NLRB or in overcoming legal difficulties that interfere with your efforts.