Playing With Cards: The Incompatibility of the Employee Free Choice Act and the National Labor Relations Board’s Current Doctrines and Practices Governing Union Authorization Cards

Source: Daniel V. Johns, Labor Law Journal, Vol. 60 no. 1, Spring 2009

This article addresses whether the National Labor Relation Board’s current doctrines and practices concerning union authorization cards make sense in a post-EFCA card recognition world. At present, the Board generally does not allow any employer challenges to a union’s showing of interest through authorization cards during representation hearings. Nor will the Board allow employers to examine authorization cards in order to look for evidence of fraud or other misconduct in the card-signing process. Moreover, the NLRB generally holds that any organizing campaign is timely, provided it is no more than one year old. Such rules perhaps make sense under the National Labor Relations Act’s current scheme for resolving union representation issues, wherein cards generally are used only to determine whether there is sufficient interest in unionization among the sought-after unit of employees before the NLRB orders a secret ballot election to determine in the employees will be represented.

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