In amicus brief at Ninth Circuit, employee shows how controversial Labor Board decision undermines rank-and-file workers’ freedom of choice

San Francisco, CA (February 12, 2024) – Tami Kecherson, a retail employee for the Seattle Mariners of Major League Baseball, has filed an amicus brief in Cemex Construction Materials Pacific LLC v. National Labor Relations Board (NLRB), a federal case currently before the Ninth Circuit Court of Appeals in San Francisco, CA.

The case is a challenge to the Biden NLRB’s radical overhaul of federal labor law that grants union bosses the power to bypass a traditional secret ballot election when trying to gain monopoly bargaining power over a workplace. Kecherson is receiving free legal aid from the National Right to Work Legal Defense Foundation.

Controversial NLRB Decision Lets Union Bosses Quash Secret Ballot Elections

The NLRB issued a decision in Cemex in August 2023 which requires employers to either grant a union’s demand for recognition based on “card check,” or immediately petition for a secret ballot election. Card check is a process that uses “authorization cards” collected by union organizers as a substitute for votes in a secret ballot election. The card check process lacks the security of a secret ballot union vote, and exposes workers to coercion and intimidation as union officials seek to collect authorization cards. Even AFL-CIO organizing guides admit card check drives aren’t representative of how workers would vote in elections, and that many workers sign cards just to “get the union off my back.”

Under Cemex, an employer who declines to recognize a union is required to quickly ask the NLRB to hold a secret ballot election. But the NLRB doesn’t have to grant that request. A union can easily prompt the NLRB to cancel an employee vote (or even overturn an election that doesn’t go in the union’s favor) by filing charges against the company and showing the employer committed an unfair labor practice during the “critical period” leading up to the election.

Seattle Mariners Employee Defends Workers’ Right to Secret Ballot Elections

Kecherson and her coworkers from the Seattle Mariners’ retail shops were the targets of a card check organizing drive by United Food and Commercial Workers (UFCW) union officials in October 2022. Kecherson filed a petition at the NLRB challenging the card check-based imposition of the union and demanding a secret ballot election to test if the union had the support it claimed.

In May 2023, the NLRB Regional Director in Seattle ordered an election over the objections of UFCW union bosses, noting UFCW union officials had not properly informed employees of their right to file for such an election. Kecherson and her colleagues eventually voted by a margin of 50 to 9 to remove the UFCW union.

Kecherson and her colleagues were able to request such a vote under the auspices of the Election Protection Rule (EPR), a set of Foundation-supported reforms that the NLRB adopted in 2020. The EPR gives workers a 45-day opportunity to request a secret ballot vote to challenge a union’s card check-based claims of majority support after the completion of such a campaign. The process by which workers can challenge card check drives was established by Foundation attorneys in the Dana Corp. NLRB case. Though this 2007 decision was overturned in 2010 by the Obama NLRB, “Dana elections” were codified in the EPR – but may soon be nixed due to Biden NLRB rulemaking.

As Kecherson’s amicus brief states, the situation in her workplace (where 85% of workers voted to reject the union despite the union’s claims of majority support via cards) demonstrates how the Cemex decision wrongly promotes union-solicited authorization cards as a reliable alternative to secret ballot votes. “In short, Local 3000’s ostensible claim to majority employee support, which was based on authorization cards the union collected from the employees, was totally refuted when tested in the crucible of a secret ballot election,” Kecherson’s brief says. “Yet under Cemex, the NLRB will routinely impose compulsory union representation on employees based on card checks and without a secret-ballot election.”

“In Cemex, the Biden NLRB is promoting union boss power to the detriment of employee free choice, a right that is supposed be at the center of the National Labor Relations Act,” commented National Right to Work Foundation President Mark Mix. “Ms. Kecherson’s story, where she and her colleagues overwhelmingly voted against the union despite union boss claims of majority support, is just the latest demonstration of what countless NLRB decisions, the U.S. Supreme Court, and even unions have admitted: Card check is unreliable and inferior to secret ballot elections where union organizers cannot see how each individual voted.”

“To defend the rights of rank-and-file workers like Tami Kecherson, the court must reject the NLRB’s biased and cynical Cemex framework that undermines the NLRA’s clear statutory preference for secret ballot votes,” added Mix.

The National Right to Work Legal Defense Foundation is a nonprofit, charitable organization providing free legal aid to employees whose human or civil rights have been violated by compulsory unionism abuses. The Foundation, which can be contacted toll-free at 1-800-336-3600, assists thousands of employees in about 200 cases nationwide per year.