In a February 25 USA Today article, reporter Matt Kelley wrote that the Employee Free Choice Act “would allow workers to form a union by gathering signed cards from a majority of employees, rather than the current method of winning a secret-ballot election overseen by the National Labor Relations Board [NLRB].” However, Kelley's suggestion that an NLRB 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.

The NLRB, 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.”

Further, Kelley wrote that "[o]pponents of card check such as the U.S. Chamber of Commerce say it would allow union organizers to coerce or intimidate workers and would lead to higher costs that could drive some companies out of business." Kelley did not note, as Media Matters for America has noted, that supporters of the legislation say employers often use the election process to delay, obstruct, and intimidate workers in an effort to resist organizing efforts.

American Rights at Work notes that under current law, “employers can recognize a union if a majority of employees demonstrates that they wish to be represented by a union” but “employers are under no obligation to recognize a union.” 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 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. It is illegal for employers to recognize a union that does not have majority support. On the other hand, employers are under no obligation to recognize a union even if 100 percent of employees have signed such authorization forms. For this reason, employees in many workplaces ask management to enter into so-called “majority sign-up” agreements, in which management agrees to voluntarily recognize the union if a majority of employees sign authorization forms or “cards.” Employers may enter into these agreements to maintain good relations with their employees, to maintain good relations with unions at their other worksites, or to maintain a favorable public image. Respected community leaders or professional arbitrators are typically designated as neutral third parties to monitor the agreement and to verify that authorization forms have been signed by a true majority.

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Under the Employee Free Choice Act, when a majority of employees sign union authorization forms, they can file a petition with the National Labor Relations Board (NLRB; and the NLRB must investigate the petition. If the NLRB determines that authorization forms have been signed by a majority of employees, it must certify the union as the employees' collective bargaining representative. The principal difference with current law is that 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. Another difference is that the NLRB, rather than another neutral third party, must directly determine whether a majority of employees have designated the union as their collective bargaining representative.

American Rights at Work further noted that Cingular Wireless was one company that agreed to “remain neutral and allow workers to indicate their choice through majority sign-up.” From American Rights at Work:

At Cingular Wireless, over 17,000 employees chose to join a union in less than a year when the company and union agreed to remain neutral and allow workers to indicate their choice through majority sign-up. Said Executive VP of Human Resources Rick Bradley, “We believe that employees should have a choice...Making choice available to them results, in part, in employees who are engaged in the business and who have a passion for customers.”

From the February 25 USA Today article:

The head of the country's largest labor union says he expects victory by August on one of labor's top priorities in Congress: legislation designed to make union organizing easier.

Andrew Stern, president of the 2 million-member Service Employees International Union, said Wednesday he thinks there are enough votes in the House and Senate to approve the bill known as “card check.” The measure would allow workers to form a union by gathering signed cards from a majority of employees, rather than the current method of winning a secret-ballot election overseen by the National Labor Relations Board.

Stern, in an interview with USA TODAY, cast the issue as a way to help workers during hard economic times and change the balance “between big business and people who work.”

“It's not about unions. It's about how America is going to rebuild the middle class,” Stern said.

Opponents of card check such as the U.S. Chamber of Commerce say it would allow union organizers to coerce or intimidate workers and would lead to higher costs that could drive some companies out of business.