Card Check: Unreliable, Courts Say

By February 4, 2009Labor Unions

A useful reading for those attending today’s rally in favor of replacing secret-ballot elections with “card check. From the United States Court of Appeals, Fourth Circuit, NATIONAL LABOR RELATIONS BOARD, Petitioner, v. S. S. LOGAN PACKING COMPANY, Respondent. Argued May 5, 1966. Decided Oct. 27, 1967.

It would be difficult to imagine a more unreliable method of ascertaining the real wishes of employees than a ‘card check,’ unless it were an employer’s request for an open show of hands. The one is no more reliable than the other. No thoughtful person has attributed reliability to such card checks. This, the Board has fully recognized. So has the AFL-CIO. In 1962, Board Chairman McCullock presented to the American Bar Association data indicating some relationship between large card-signing majorities and election results. Unions which presented authorization cards from thirty to fifty per cent of the employees won nineteen per cent of the elections; those having authorization cards from fifty to seventy per cent of the employees won only forty-eight per cent of the elections, while those having authorization cards from over seventy per cent of the employees won seventy-four per cent of the elections. This suggests that the greater the majority of authorization cards, the greater the likelihood of a union election victory, but, obviously there are exceptions. Though ninety per cent of the employees may have signed cards, a majority may vote against the union in a secret election.
Overwhelming majorities of cards may indicate the probable outcome of an election, but it is no more than an indication, and close card majorities prove nothing.

The unsupervised solicitation of authorization cards by unions is subject to all of the criticisms of open employer polls. It is well known that many people, solicited alone and in private, will sign a petition and, later, solicited alone and in private, will sign an opposing petition, in each instance, out of concern for the feelings of the solicitors and the difficulty of saying ‘No.’ This inclination to be agreeable is greatly aggravated in the context of a union organizational campaign when the opinion of fellow-employees and of potentially powerful union organizers may weigh heavily in the balance.

That is not the most of it, however. Though the card be an unequivocal authorization of representation, its unsupervised solicitation may be accompanied by all sorts of representations. ‘We need these cards to get an election. You believe in the democratic process, don’t you? Do you want to deny people the right to vote? Isn’t it our American way to resolve questions at the polls? Do you want to deprive us of that right? Are you a Hitler or something?’

The Supreme Court cited this ruling in its 1969 opinion, “NLRB v. GISSEL PACKING CO., 395 U.S. 575 (1969)

ADDENDUM The citation includes footnotes, which we’re not immediately able to reproduce as links in the excerpt. See here.

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