The NAM and 18 other associations filed a brief at the National Labor Relations Board urging the Board to allow secret ballot elections when there is doubt about whether the employees actually authorized a union to represent them. The cases arose where the companies had agreed to neutrality agreements with the UAW, whereby the companies would not communicate information to employees, or lawfully express views, arguments and opinions which the union perceived as critical of the union. The union then obtained signatures from a majority of the employees authorizing them to represent the employees, but the validity of that majority was subsequently challenged. This neutrality agreement/card-check procedure has proven significantly more effective for union organizing than other methods.
The NAM argued that in this situation the NLRB's procedures should allow for a secret ballot to accurately and definitively determine whether the union enjoys majority support, rather than require employees to have to wait until a contract is negotiated and run its course before being allowed to have an election. The NAM joined with Associated Builders and Contractors, the National Restaurant Association, Printing Industries of America, the Society of Human Resource Managers, and 14 NAM-member employer association groups around the country in the brief.
On Sept. 29, 2007, the NLRB agreed by a vote of 3 to 2. It ruled that employees must have 45 days after their employer recognizes a union based on card-check authorizations to file a petition to decertify the union or to support an election petition from another union. The Board underscored the preferred method of having a secret election to determine the majority status of a union. The majority found that card-check procedures are much less reliable as indicators of employee free choice on union representation than secret elections. To have an election, an employee petition must be supported by 30% or more of the unit employees eligible to vote. The new rule will be applied prospectively only, so the decertification petitions involving the two companies in this case were dismissed.