Responding to Union rhetoric:
The Reality of the American Workplace
A U.S. Chamber of Commerce White Paper
The Union Representation Process Under the
National Labor Relations Act: Maintaining
Employee Free Choice for over 70 Years
LABOR, IMMIGRATION &
EMPLOYEE BENEFITS DIVISION
U.S. CHAMBER OF COMMERCE
The U.S. Chamber of Commerce is the world's largest business federation,
representing more than three million businesses and organizations of every size,
sector, and region, with substantial membership in all 50 states.
The Labor, Immigration & Employee Benefits Division works with a cross
section of Chamber members, through policy committees, subcommittees, and task
forces, to develop sound labor and employment policy and advocates for that policy
before Congress and the Executive Branch. The Chamber’s labor and employment
policy priorities include issues related to union-management relations and union
organizing, employment nondiscrimination, minimum wage and wage and hour,
occupational safety and health, immigration, work-family balance, and emerging
international labor policy.
U.S. Chamber of Commerce Labor and Employment Issues Staff
Randel Johnson, Vice President, Labor, Immigration & Employee Benefits Division
Michael Eastman, Executive Director, Labor Law Policy
Marc Freedman, Director, Labor Law Policy
Kai Hirabayashi, Senior Manager, Labor Law Policy
Janel Dear, Administrative Assistant to Vice President
Michael Dendas, Coordinator, Labor & Immigration
Ryan Kearney, Staff Assistant
LIEB Division: (202) 463-5522
© 2008 U.S. Chamber of Commerce
The Union Representation Process
Under the National Labor Relations Act: Maintaining
Employee Free Choice for over 70 Years
For several years, organized labor has embarked on a campaign to advance its
legislative agenda using messages that demonize employers and pillory U.S.
labor laws and those responsible for implementing and enforcing them. This
paper is another in a series that will examine organized labor’s rhetoric and
provide an alternative perspective. In particular, it will explore the union
organizing and recognition process under the National Labor Relations Act
(“NLRA”), beginning with a brief discussion of the history of the Act, and how
Congress sought to balance the competing rights of employers in a free market
economy with the rights of employees who want union representation. This
paper describes how this process works today and how the law protects
employee rights in choosing to be represented, or not, by a union. As
demonstrated below, this process is carefully designed, tested by time, and
produces an accurate measure of employee sentiment regarding union
representation. It should not be displaced.
1935 – The Initial Balance
By 1935, and well before that year, the need for a comprehensive, federally
legislated, national labor policy was clear. American economic life had long since ceased
to be dominated by agrarian and artisanal work and had become industrial. The dominant
socioeconomic philosophies of the day essentially differed by reason of how one viewed
capital and labor. In Europe, variations of Marxian socialism took hold and sought to
exalt labor, making capitalism subservient or greatly restricted in its reach. In the United
States, the inherent value of private property held sway and included the right to use
one’s property for business and profit. In either case, whether under socialism or
capitalism, capital and labor were recognized to be natural adversaries.
Much of the history of the 19th and 20th centuries up until 1935 seemed to prove
the proposition of permanent labor/capital strife. Labor disputes were overwhelmingly
resolved in favor of property and capital in the courts, while labor did better, at a great
cost, in the streets. As a follow-on to the 1926 National Railway Act, and the 1933
National Industrial Recovery Act (“NIRA”),1 the principal ingredient of the New Deal,
the 1935 Wagner Act (or the NLRA) was born.
Section 1 of the NLRA sets forth the findings and policies upon which its
provisions are based. In significant part they are:
The denial by some employers of the right of employees to
organize and the refusal by some employers to accept the
1
Ch. 90, §§ 3-10, 48 Stat. 195 (1933) (declared unconstitutional in A.L.A. Schechter Poultry Corp. v. U.S.,
295 U.S. 495 (1935)).
1
procedure of collective bargaining lead to strikes and other forms
of industrial strife or unrest, which have the intent or necessary
effect of burdening or obstructing commerce . . . .
The inequality of bargaining power between employees who do
not possess the full freedom of association or actual liberty of
contract, and employers who are organized in the corporate or
other forms of ownership association substantially burdens and
affects the flow of commerce, and tends to aggravate recurrent
business depressions . . . .
Experience has proved that protection by law of the right of
employees to organize and bargain collectively safeguards
commerce from injury . . . by encouraging practices fundamental
to the friendly adjustment of industrial disputes . . . and by
restoring equality of bargaining power between employers and
employees.2
Significantly, each of these findings and policy statements are bottomed on the
need to protect commerce. Congress’ power in this arena was not based on the need to
“provide for the . . . general Welfare of the United States,” but instead, the prevailing
thinking of the time was that Congress could only act pursuant to the Commerce Clause. 3
Consistent with this policy, the core of the Act is the statement of the rights of
employees set forth in Section 7, as follows:
Employees shall have the right to self-organization, to form, join,
or assist labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in other
concerted activities for the purpose of collective bargaining or
other mutual aid or protection, and shall also have the right to
refrain from any or all of such activities.4
The balance of the Act created the National Labor Relations Board (“NLRB” or
“Board”) and established procedures and an enforcement mechanism to implement the
core unionization rights created. The process for choosing to be represented by a union is
set forth in Section 9, the key elements of which are:

a chosen union would be the exclusive representative of
all employees;

in an appropriate unit for collective bargaining; and
2
National Labor Relations Act of 1935 § 1, 29 U.S.C. § 151 (2008).
U.S. Const. art. 1, § 8, Cl. 1.
4
29 U.S.C. § 157.
3
2

chosen by a majority of the employees in the unit.5
These “questions concerning representation,” as they are termed, would be
decided by secret ballot elections conducted in the workplace by Board agents. Employer
recognition of a union based upon a showing of majority support demonstrated in some
manner other than a Board election was not prohibited, but the Board supervised secret
ballot election was the preferred method. The Act’s author, Senator Wagner, said as
much:
[A]s to . . . representation of the workers you cannot have any
more genuine democracy than this. We say under Government
supervision let the workers themselves . . . go into a booth and
secretly vote, as they do for political representatives in a secret
ballot, to select their choice.6
Notwithstanding this preference for secret ballot elections, the Act permitted the
Board to resolve these questions concerning representation “by any other suitable
method” rather than its own secret ballot process. The most common “other” method
was pursuant to the employer’s review of union membership cards signed by a majority
of employees in an appropriate unit – a process which has come to be called “card check”
recognition.
In these early years of the Act, the NLRB took the position that employers were
required to remain neutral on the question of union representation. Thus, employers were
not permitted to persuade employees not to join a union. In 1941, however, the Supreme
Court held that the NLRB’s interpretation of the Act was too restrictive and that the Act
does not prohibit an employer from expressing its views on unionization as long as such
speech is not coercive.7 The decision is consistent with an employer’s right under the
First Amendment. Yet, despite the Supreme Court’s ruling in 1941, the NLRB continued
to regulate employer speech during an organizing campaign – until Congress acted on the
issue in 1947.8
1947 – The Balance Refined
In the 12 years following passage of the Wagner Act, unions prospered and
membership expanded dramatically. Their growth and increasing influence, however,
was not without controversy. Their conduct was largely unregulated; noted excesses in
their exercise of domination in the workplace occurred; and the post-World War II
Congress determined to do something about it. In what represents a majority of
congressional thinking on the subject, the following statement of the House Education
and Labor Committee on the need to amend the Act is illustrative:
5
Id. § 159.
National Labor Relations Board: Hearings on S. 1958 Before the Senate Comm. on Education and Labor,
74th Congress, 1st Sess. 642 (1935).
7
NLRB v. Va. Elec. & Power Co., 314 U.S. 469 (1941).
8
One often cited example is, Clark Bros. Co., Inc., 70 N.L.R.B. 802 (1946).
6
3
For the last 14 years, as a result of labor laws ill-conceived and
disastrously executed, the American workingman has been
deprived of his dignity as an individual. He has been cajoled,
coerced, intimidated, and on many occasions beaten up, in the
name of the splendid aims set forth in section 1 of the National
Labor Relations Act. His whole economic life has been subject to
the complete domination and control of unregulated monopolists.
He has on many occasions had to pay tribute to get a job. He has
been forced into labor organizations against his will. At other
times when he had desired to join a particular labor organization he
has been prevented from doing so and forced to join another one.
He has been compelled to contribute to causes and candidates for
public office to which he was opposed. He has been prohibited
from expressing his own mind on public issues. He has been
denied any voice in arranging the terms of his own employment . .
. . In short, his mind, soul, and his very life have been subject to a
tyranny more despotic than one could think possible in a free
country.9
The result was the Taft-Hartley amendments to the Act, officially titled the Labor
Management Relations Act of 1947.10 The amendments sought to rebalance the interests
of employers and employees by curbing union excesses. Again, the ultimate
congressional purpose was to enhance the free flow of commerce while declaring the
federal government's neutrality regarding union representation in the workplace. The
core employee right to participate in, and be represented by unions remained, as
determined by a majority in an appropriate unit and as supervised by the NLRB. In the
effort to improve the balance between employees, their unions, employers and the public,
all of which are the stakeholders in “the free flow of commerce,” the Taft-Hartley
amendments:
9

specifically added the employee right to refrain from Section 7
organizational rights;

provided that employees, even if represented by a union, could
present their own grievances to their employer;

added a provision guaranteeing employers the right to express
their views concerning union issues so long as it contains no
threat of reprisal or promise of benefit;

set forth correlative union unfair labor practices, and included
the prohibition of secondary boycotts;
H.R. Rep. No. 80-245, at 4 (1947) (“Necessity for Legislation”).
Pub. L. No. 80-101, 61 Stat. 136 (1947).
10
4

set forth a definition of good faith bargaining and provided
minimal procedures to be observed by the parties in doing so;
and

established the Federal Mediation and Conciliation Service to
assist unions and employers in reaching negotiated collective
bargaining agreements.
Analysis of the Congressional Design – Core Principles of Stakeholders’ Rights
Taken together, the Wagner Act and the Taft-Hartley amendments may fairly be
construed to have distilled the national labor policy into four central operative principles.

Principle 1 – employee free choice including the right to “self organization,”
the right to bargain “through representatives of their own choosing” and the
right “to refrain from any or all of such activities . . . .” Included within this
principle is the employees’ right to affect changes in working conditions
through strikes and other “concerted activity.”

Principle 2 – exclusive representation – i.e., the notion that representatives
designated or selected “by the majority of the employees” in an appropriate
bargaining unit “shall be the exclusive representatives of all the employees” in
that unit. The union must fairly represent even those employees who do not
favor the union.

Principle 3 – overseeing the process of collective bargaining but not
mandating what the bargain must be. Although the Board has developed
standards identifying good faith bargaining, the Act “does not compel either
party to agree to a proposal or require the making of a concession.”

Principle 4 – the overarching constitutional purpose to be served by this
statutory balancing is the achieving of true economic stability free from
excessive “industrial strife and unrest.”
Achieving a political consensus concerning this balance has always been
understandably difficult given the importance of the issue to employees, employers,
unions, and the public. The Wagner Act was passed amidst a hue and cry from
employers while the Taft-Hartley Act was enacted over President Truman’s veto and
organized labor’s objections. The Act and the Board are constantly under attack from
one group or another and clever lawyers have pushed and pulled the text of the law and
the Board’s decisions in many directions over the years. Notwithstanding these efforts to
expand or restrict the rights and requirements, the statutory process for determining union
representation and the Board’s administration of those processes is essentially sound and
should not be changed. The decline of unions in the private sector is due to many factors,
including fundamental societal, economic, institutional and geopolitical changes, but the
process of how employees choose a union, or not, is not one of them.
5
The Union Election Process as It Exists Today
In many ways, the union election process administered by the NLRB incorporates
the same democratic principles that govern elections for public office. Similar to political
elections, NLRB elections are conducted by secret ballot and are decided according to the
principle of majority rule. A majority of the actual votes cast determines whether a union
will represent all employees in a particular workplace. As in political elections, an open
and public debate of the issues is important to ensure that voters make an informed
choice. Indeed, in a recent case brought by the U.S. Chamber of Commerce, the Supreme
Court reaffirmed the importance of an “uninhibited, robust, and wide-open debate” on the
issue of union representation.11 The following summarizes the union election process as
it exists today:

The process commences with union efforts to secure signed union
“authorization” cards from employees. The union controls the timing of this
process, usually without the employer’s knowledge.

A petition for an election can be filed with the NLRB if as few as 30 percent
of the employees in the relevant bargaining unit sign cards indicating their
support for a particular union.

Once a petition is filed with the support of at least 30 percent of the
employees in the bargaining unit, the NLRB conducts a secret ballot election
within a matter of weeks. In fiscal year (“FY”) 2008, the median time
between the filing of a petition and the holding of an election was 38 days,
and 95 percent of all initial representation elections were held within 56 days
of the filing of the petition.12

During the pre-election time period, the NLRB works to resolve all issues
such as the scope of the appropriate bargaining unit and the eligibility of
particular employees to vote. In FY 2008, 92 percent of all union
representation elections were held by agreement of the parties.13

If an agreement is not reached regarding these pre-election issues, the NLRB
conducts a hearing (typically within 14 calendar days) to take evidence
regarding the disputed issues and then renders a decision.

During the pre-election process, the employer is required to provide a list of
the names and home addresses of all employees who are eligible to vote in the
11
U.S. Chamber of Commerce v. Brown, 128 S. Ct. 2408, 2414 (2008) (quoting Letter Carriers v. Austin,
418 U.S. 264, 272-73 (1974)).
12
See Memorandum GC 09-03, Summary of Operations (Fiscal Year 2008), at 6 (October 29, 2008),
available at http://www.nlrb.gov/shared_files/GC%20Memo/2009/GC%200903%20Summary%20of%20Operations%20FY%2008.pdf.
13
Id.
6
election. The NLRB provides this list (known as an Excelsior list) to the
union so that it may contact the employees and solicit their support in the
election.

The employer is permitted to communicate its views about the union to
employees, as long as such speech does not contain any threat of reprisal if
employees vote for the union or promise of benefit if employees vote against
the union.

The employer may not compel employees to attend speeches regarding its
position on the union organizing drive in the 24 hours immediately before the
election

On the day of the election, the NLRB brings portable voting booths, ballots,
and a ballot box to the workplace. The election process occurs outside the
presence of any supervisors or managerial representatives of the employer.
No campaigning of any kind may occur in the voting area. The only people
who are allowed in the voting area are the NLRB agent, the employees who
are voting, and certain designated employee observers.
Either the union or the employer may claim that improper conduct committed by
the other party affected the result of the election. Claims with seeming merit are subject
to an evidentiary hearing conducted by the NLRB. The Act and the Board’s decisional
law prohibits any employee from being subjected to threats, interference, restraint, or
coercion – either by employers or unions – in relation to their sentiments about union
representation. The law also protects all employees from any type of employment-related
retaliation or discrimination based upon an employee’s sentiments for or against union
presentation. Any violations in this regard may result in an election being overturned and
a new election held after the unlawful conduct has been remedied.
In extreme cases, rather than ordering a new election, the NLRB may order an
employer to bargain with the union if the NLRB finds that its traditional remedies would
not be sufficient to ensure a fair rerun election and if there is a showing that a majority of
employees at one point of time desired union representation (e.g., through a count of
authorization cards). The Supreme Court affirmed the Board’s power to issue this
extraordinary remedy in NLRB v. Gissel Packing Co., 395 U.S. 575 (1969). The Court
held that a secret ballot election is the “most satisfactory -- indeed the preferred -- method
of ascertaining whether a union has majority support.”14 But the Court found that the
remedy of a bargaining order may be warranted in some cases.15
14
Gissel Packing, 395 U.S. at 602.
Id. at 591-92 (“If, however, the employer commits independent and substantial unfair labor practices
disruptive of election conditions, the Board may withhold the election or set it aside, and issue instead a
bargaining order as a remedy for the various violations.”).
15
7
Existing Remedies for Unlawful Employer Conduct During the Organizing Process
If an employee or a union believes that an employer has engaged in unlawful
conduct during an organizing campaign, they may file an unfair labor practice charge
with the NLRB. An employee or a union need not hire an attorney to pursue such a
charge. The General Counsel arm of the NLRB prosecutes all meritorious claims and
charges at no expense to the charging party. If, for example, the NLRB finds that an
employer unlawfully discharged an employee during an organizing campaign, the NLRB
will order the employer to reinstate the employee and compensate him or her for any lost
pay or benefits.
Although unions claim that existing NLRB procedures and remedies are slow and
cause the results of an election to be unduly delayed, the vast majority of representation
cases are brought to closure within a period of only a few months. In FY 2008, 84
percent of all representation cases were closed within 100 days.16
Existing Law Gives Unions More Flexibility and Discretion than Employers in
Election Campaigns
Unions complain that employer hostility and the structure of the NLRB election
process is the cause for their steady, 55-year membership decline. If employer hostility
oversteps the legal boundaries, it is remediable as described above. Even within the legal
boundaries, however, employers may still exhibit hostility to a union. Lawful hostility is
the product of factors and elements which the law cannot prevent and which will exist
more or less in response to the degree that unions bring limitations on operational
flexibility, anti-employer attitudes, rhetoric, and conduct into play. That has been the
case since 1935 and will remain the case unless employers and unions find ways to
respect and collaborate with each other in a new, non-adversarial relationship. No
current or proposed law effectuates that change. If the adversarial relationship continues,
the question then is whether unions are disadvantaged in the election process. In the
following respects, they are not:
16
1.
Timing. Employees and unions interested in potential representation of a
particular workforce have complete discretion in terms of when they
demand representation and/or file a representation petition with the
NLRB.
2.
Lack of Notice to Employer. There is no obligation to provide notice to
the employer when authorization cards are being secured or other efforts
are being made to generate support for or by a union. Employers are
prohibited from asking employees questions about potential union
activities.
3.
Union Promises. Under existing law, unions are freely permitted to make
promises about benefits that would result from union representation. On
See Introduction to Memorandum GC 09-03, supra note 12, at 5.
8
the other hand, employers are strictly prohibited from making any
promises (or conferring benefits) relating to a decision by employees not
to be union-represented.
4.
Neutrality Agreements. Under existing law, unions have the ability to
approach employers and make the case to agree to various types of
neutrality in connection with union organizing efforts. Neutrality
agreements typically result in employers forfeiting their right to express
their opposition to union organizing. Although these agreements are
frequently the result of pressure exerted on the employer, many unions
have secured such agreements from employers and these agreements have
been enforced under existing law.
5.
Time Frame for Deciding Whether to Be Represented. The Board
typically schedules an election no more than 42 calendar days after a
union has petitioned the Board for an election (as previously noted, the
median time frame is 38 days). This time frame, during which employees
must make an informed decision about whether to choose union
representation compares favorably to what Congress and the courts have
determined is a sufficient amount of time for employees to make
“knowing and voluntary” decisions in other significant employment
events. For example, the Older Workers Benefit Protection Act
(“OWBPA”) mandates a consideration period of at least 45 days for
employees to decide whether to waive potential legal claims against their
employer in exchange for severance pay during a group layoff.17
Using the advantages provided by existing law, a majority of unions now win
secret ballot elections conducted by the NLRB. Between October 2007 and March 2008,
unions won 62 percent of all 700 elections involving new organizing conducted by the
NLRB during that time period.18 In 1965, unions won 61.8 percent of elections in RC
cases (RC is the standard shorthand for a Certification of Representative petition, a
petition normally filed by a union seeking an election to determine whether employees
wish to be represented by a union).19 After 1965, unions’ election win rate declined
before rising back to the level where it is today:

In 1975, unions won 50.4% of elections in RC cases.20

In 1985, unions won 48% of elections in RC cases.21
17
Older Workers Benefit Protection Act of 1990, 29 U.S.C. § 623.
NLRB Election Report; Six Months Summary – October 2007 through March 2008 and Cases Closed
March 2008, at 17, available at
http://www.nlrb.gov/nlrb/shared_files/brochures/Election%20Reports/ER2008/October%202007March2008.pdf.
19
See Thirtieth Annual Report of the National Labor Relations Board, at 198 (1965); for a plain English
description of RC petitions and other types of petitions, see The National Labor Relations Board and You:
Representation Cases, available at http://www.nlrb.gov/nlrb/shared_files/brochures/engrep.pdf.
20
See Fortieth Annual Report of the National Labor Relations Board, at 233 (1975).
18
9

In 1995, unions won 50.9% of elections in RC cases.22

In 2005, unions won 56.8% of elections in RC cases.23
These statistics demonstrate that the NLRB’s secret ballot election process has not
been the cause of the decline in union membership among private sector workers in
recent decades. In fact, unions’ win rate in NLRB representation elections has risen
significantly – from 48 percent to 62 percent – since 1985.
Conclusion
Criticism of the Act and the Board’s administration of it has figuratively been a
blood sport since 1935 with unions and employer groups each seeking an advantage in
what is an adversarial process by design. If true employee free choice is to remain at the
core of U.S. labor policy, then the public and Congress should not be beguiled into
allowing unions or employers to coerce, intimidate, or discriminate against employees in
an effort to influence their decision on the important question of union representation.
Nor should employees be denied the opportunity to vote in a secret ballot election
conducted under the supervision of the federal government. Indeed, the Supreme Court
in Linden Lumber Div., Summer & Co. v. NLRB, 419 U.S. 301 (1974), held that an
employer may lawfully refuse to recognize a union based on authorization cards and
insist instead on an NLRB-supervised secret ballot election.
The secret ballot election is recognized by federal courts as the best vehicle for
employees to render an uncoerced decision about union representation.24 Anything short
of that will send the process of card signing into the back alleys of unregulated,
uncontrolled, and un-remediable coercion and intimidation by both sides. Employees, the
public, and the “free flow of commerce” will lose if the card check process is permitted
to replace the existing process of government-supervised secret ballot elections.
21
See Fiftieth Annual Report of the National Labor Relations Board, at 176 (1985).
See Sixtieth Annual Report of the National Labor Relations Board, at 153 (1995).
23
See Seventieth Annual Report of the National Labor Relations Board, at 16 (2005).
24
See, e.g., Gissel Packing, supra note 14.
22
10