An NBC News/Wall Street Journal poll question about the Employee Free Choice Act, currently before Congress, advanced the false claim made by opponents of the bill that a secret-ballot election is currently required before workers can form a union. The poll question stated, “As you may have heard, Congress is debating legislation that would change the way in which workers unionize. This change would allow workers at a company to join a labor union if a majority of workers at that company sign a petition saying they want to form a union, rather than by requiring the vote take place in a federally supervised secret ballot election as they do now” [emphasis added]. In fact, current law allows an employer to recognize a union if it has the support of a majority of workers. Indeed, the legislation would not eliminate employees' right to a secret ballot; as The New York Times reported, “Business groups have attacked the legislation because it would take away employers' right to insist on holding a secret-ballot election to determine whether workers favored unionization” [emphasis added]. As the Christian Science Monitor has noted, “The proposed law gives workers a choice of forming a union through majority sign-up ('card check') or an election by secret ballot.”

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.”