In the face of steadily declining union membership, labor union bosses have made the euphemistically dubbed Employee Free Choice Act—also known as “card check”—a top legislative priority.
The legislation seeks to alter the National Labor Relations Act (NLRA) and the powers of the National Labor Relations Board (NLRB), the independent federal agency tasked with enforcing the act and overseeing unionization elections.
The primary aim of the bill is to allow unions to eliminate non-unionized employees’ right to private ballot elections, by substituting a public voting system known as card check. The act passed in the U.S. House of Representatives in 2007 as H.R. 800 but was defeated in the Senate.
The legislation, which critics call a threat to workers’ rights, is expected to reappear in the next Congress.
Declining Union Membership
In the past 50 years the United States has seen a sharp decline in private-sector union membership. According to Wendell Cox Consultancy, in 1958, 39 percent of U.S. private-sector employees were union members. The Bureau of Labor Statistics reports that number had dropped to 7.5 percent by 2007.
In response, union officials are pushing federal legislation to regain the financial and political power they enjoyed in the 1940s.
Under current federal labor law, NLRB supervises private-ballot votes of employees on whether to make a union their primary bargaining unit. To initiate such an election, union organizers must collect dated signatures from 30 percent of the workers in a given company.
Once those signatures are verified by NLRB, a private-ballot election takes place. If most of the employees vote for union representation, NLRB certifies the union as the exclusive bargaining representative of the employees.
Denial of Choice
Card check would change four fundamental aspects of NLRA and union organizing.
* The private ballot would be eliminated and replaced by the card-check system, in which union organizers may physically approach employees and ask them to sign a card endorsing union representation.
* Not all employees would necessarily have a chance to vote, as card check wouldn’t initiate an employee-wide ballot; the card check itself would be the vote. The proposed law would require only the slimmest majority for union certification—50 percent plus one of an organization’s employees. That means union organizers could specifically target the individuals they believe are most likely to sign off—perhaps because they support the union or seem likely to cave to personal pressure—and rob the remaining employees of any say whatsoever.
* In addition to increased penalties against employers, NLRB would be required to file injunctions whenever unfair labor practices are alleged, regardless of their assessed validity.
* The bill would require employers to bargain with union representatives within a certain time frame or be subjected to binding arbitration mediated and potentially decreed by a government agency.
Under a card-check system, employees could be approached by union organizers anywhere—at home during dinner, at a child’s soccer game, at a bar—and asked to sign a card then and there.
The threat card check poses to workers’ physical safety is hardly a theoretical one. In 2006 alone, NLRB reported 5,261 charges filed against unions for illegal worker restraint or coercion.
Union leaders and their supporters in Congress know the negative effects intimidation can have on an election. In 2001 both the AFL-CIO and several members of Congress were rightly concerned about a similar card-check process taking place in Mexico.
Writing to the Mexican government, Rep. George Miller (D-CA), senior Democrat and chairman of the Committee on Education and Labor, stated, “We feel that the secret ballot is absolutely necessary in order to ensure that workers are not intimidated into voting for a union they may otherwise not choose.”
Nonetheless, in 2007 Miller introduced the AFL-CIO-supported card-check legislation that would deny American workers the secret ballot he and his colleagues insisted workers in other countries deserve.
In addition to increasing dramatically the monetary damages unions can extract from employers, the act would require NLRB to seek an injunction in any case where an employer is accused of firing a worker or discriminating against a worker in any way during a union drive.
This is a needless provision, as NLRB already has the ability to move for an injunction at its discretion. Requiring it to do so in every case of alleged unfair labor practices adds an unnecessary burden to both the government and employers, particularly small businesses that don’t have the means to fight frivolous accusations. That threat could force such firms to capitulate to union demands even if their employees don’t want to unionize.
The Employee Free Choice Act is nothing short of an end run around democracy by a select few intent on gaining power and influence at the expense of the best interests of the workers they claim to represent. The private ballot is a cornerstone of a free society, and card check is fundamentally anti-worker and anti-democratic.
Declining union membership, dues, and influence should not serve as excuses to shortchange American workers.
John O’Hara ([email protected]) is The Heartland Institute’s membership manager and a former staff member in the Office of the Secretary at the U.S. Department of Labor.