How Would Card Check Work with Someone Like Kashi Nelson?
For once, I’m not trying to be provocative, this is a legitimate question.
Alexander Russo at This Week in Education wanted to find out more about the much-ballyhooed union drive of teachers at a KIPP school in New York City. The United Federation of Teachers put him in touch with Kashi Nelson, who didn’t start the organizing drive, but was an early supporter.
This morning, Russo reports that Nelson changed her mind about supporting a union at KIPP and has notified UFT of her decision.
Those who will write about this will focus on whether Nelson was unduly influenced to change her mind, or whether she was unduly influenced to support the union in the first place. But I think her actions bring up a procedural question about card check.
Card check would only apply to the private sector, but suppose a union got a bare majority of workers to sign authorization cards, and applied for recognition (the stage at which the KIPP union currently resides). What happens if one or more who signed cards changed their minds and reduced the signatories to less than a majority? Are they out of luck? Remember, there is no “reverse” card check. You can’t use it to get rid of a union. Would they then be required to go through the normal secret ballot decertification election process?
My guess is that the card replaces your vote and cannot be rescinded, whatever your second thoughts afterwards. If someone knows for certain, respond in the comments.
March 16th, 2009 at 15:19
To answer your questions:
1. “What happens if one or more who signed cards changed their minds and reduced the signatories to less than a majority? Are they out of luck?”
The answer is that it depends on the timing of the recision. The dispositive question is whether a union enjoys the support of a majority of employees at the moment the union is recognized by the employer as the exclusive representative of its employees. If an employee rescinds their support for the union BEFORE the union is recognized as an exclusive representative, then the employee’s card is invalid and cannot be counted toward the union’s ostensible majority. But, if an employee rescinds their support for the union AFTER the union is recognized as an exclusive representative, the recision is meaningless because it is too late.
Note that employees can rescind any union authorization card they sign by simply signing a card/petition against the union or a card for a rival union. Under the “dual card” doctrine, two contrary indications of support automatically cancel each other out. Employees do not need to beg a union boss for their signed card back to revoke it.
2. “There is no “reverse” card check. You can’t use it to get rid of a union. Would they then be required to go through the normal secret ballot decertification election process?”
A union can be decertified in two ways. First, if more than 30% of employees sign cards or petitions against the union, a secret ballot election can be requested. Second, if more than 50% of employees sign cards or petitions against the union, the employer can (i) withdraw recognition without an election, or (ii) request an election.
However, the National Labor Relations Board has concocted several rules that make it extremely difficult for employees to decertify unions. First, the “contract bar” prohibits decertification during the first 3 years of any contract, except for a small window period near the end of the time frame. Second, the merger doctrine permits unions to combine bargaining units together into a single, multi-location unit that is all but impossible for employees to decertify. For example, the UFCW can organize one grocery store in a chain and then merge that store into a single, super-unit of all grocery stores in the chain throughout the country. To decertify, an employee will need the support of over 30% of all employees employed in all of the chain’s unionized stores together. They cannot decertify at just their store, which renders decertification all but impossible.
I hope this answers your questions.
Sincerely,
William Messenger
Staff Attorney, National Right to Work Foundation