Eliminating an Employee's Chance to Cast a Secret Ballot: The Right to Privacy and NLRB Elections

President-elect Barack H. Obama's historic journey to the White House and the Democratic Party's increased control of Congress has revitalized the hopes and dreams of organized labor of reversing the slow decline of unionization in the United States. Since the 1980s, unionization in the private-sector workforce has dropped by nearly 20%. Indeed, only 7.5% of today's private-sector workers are unionized.

In its attempt to reverse the decline in membership, organized labor has made the enactment of the Employee Free Choice Act (''EFCA'') a top priority. Unions generally agree that EFCA ''would make it easier to organize workers'' by allowing them to unionize ''as soon as a majority signs cards in favor of a union, a process known as 'card check.' '' In other words, under EFCA, ''once a union gets a majority of ... workers to sign a card expressing a desire for a union, that union is automatically certified as the bargaining representative of, and empowered to negotiate on behalf of, all workers'' without giving those employees a chance to vote privately. The legislation explicitly does so by prohibiting the National Labor Relations Board (the ''NLRB'' or the ''Board'') from holding an election where a majority of workers in a work unit has signed cards.

Copyright © 2008 LexisNexis Matthew Bender. This article was written by Martin F. Payson, Joseph J. Lazzarotti and James J. LaRocca, attorneys in Jackson Lewis LLP, for Bender's Labor & Employment Bulletin (Dec. 1, 2008 – Vol. 8; No. 12). The article is reproduced with the kind permission of LexisNexis Matthew Bender.

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