In a February 25 Politico article, Lisa Lerer reported that the Employee Free Choice Act “would allow workers to organize a union by signing a card instead of holding secret-ballot elections.” However, Lerer's suggestion that a secret-ballot election is currently required before obtaining union representation at a workplace is false. Under current law, a union that shows it has the support of a majority of workers can represent the workers if their employer voluntarily agrees to recognize the union, without holding such an election.

As Media Matters for America has noted, the National Labor Relations Board, in its September 2007 Dana Corp. decision, noted the existence and legality of voluntary recognition: “We do not question the legality of voluntary recognition agreements based on a union's showing of majority support. Voluntary recognition itself predates the National Labor Relations Act and is undisputedly lawful under it.” In the decision, the board later observed that when an employer voluntarily recognizes a union, "[t]he employer's obligation to bargain with the union attaches immediately. For instance ... the union can begin its representation of employees, its processing of their grievances, and its bargaining with the employer for a first contract." In addition, the dissent in Dana stated that “it is beyond dispute that an employer may voluntarily recognize a union that has demonstrated majority support by means other than an election, including -- as in the present cases -- authorization cards signed by a majority of the unit employees.”

According to American Rights at Work, under current law, “employers can recognize a union if a majority of employees demonstrates that they wish to be represented by a union -- usually by signing forms designating the union as their collective bargaining representative” but “employers are under no obligation to recognize a union” established under such majority sign-up procedures. Under the Employee Free Choice Act, “the union must be certified when authorization forms have been signed by a majority of employees, whereas under current law the employer can refuse to recognize the union and insist instead on an NLRB election.”

From the February 25 Politico article, headlined “Unions not discouraged by card check”:

Business lobbyists are cheering signs that progress may have slowed on passage of the Employee Free Choice Act.

A top priority of organized labor and its Democratic allies, the controversial legislation has yet to be reintroduced this year in either the House or the Senate.

“This definitely represents a major loss of momentum in this legislation,” said Steven Law, chief legal officer and general counsel at the U.S. Chamber of Commerce. “This delay is helpful.”

The legislation -- well known by the moniker “card check” -- is vehemently opposed by business. The bill would allow workers to organize a union by signing a card instead of holding secret-ballot elections.

Union lobbyists say they are not bothered by the delay, which they blame on an already packed congressional agenda being overtaken by the current economic crisis.