Excellent piece on card check...
Bill would allow unions to expand at all costs
By Patrick J. Bannon | January 18, 2009
BLAMING its lack of appeal with private-sector workers on employer intimidation and trickery, organized labor is pushing Congress and President-elect Obama to pass the "Employee Free Choice Act." A more accurate title would be the "Union Expansion at All Costs Act." In the name of strengthening unions, the bill would jettison two bedrock principles that workers and management should both defend.
First, the bill would actually make it harder for employees to choose freely whether to have a labor union negotiate their employment terms. For 60 years, with few exceptions, employees have made that choice by secret ballot. The federal National Labor Relations Board enforces fair campaigning, sets up voting booths, and counts ballots.
If the Employee Free Choice Act becomes law, unions need only collect signed authorization cards from over 50 percent of a group of employees to be certified as representing the group. Union organizers could visit employees at their homes, take them out for drinks, or ask them to sign cards in front of co-workers. They could publish lists of who signed and who refused. The National Labor Relations Board would be prohibited from holding an election to determine whether the cards reflected the employees' true preferences.
Today, employees feeling pressure can publicly appease the union (or management!) and then vote their conscience in the privacy of the ballot booth. The Employees Free Choice Act would eliminate that protection. No less a friend to labor than former Democratic presidential nominee George McGovern calls the bill "a disturbing and undemocratic overreach" that could cost workers "the right to make a decision without anyone peering over their shoulder, free from fear of reprisal."
What about union claims that employers monopolize the flow of information and intimidate employees? Given the resources unions bring to organizing campaigns, and the many protections they've secured over six decades from the National Labor Relations Board and federal courts, these complaints are hard to swallow. Indeed, many union talking points count each accusation and settled complaint as an instance of wrongdoing.
But even if union criticisms were valid, how does eliminating secret ballots help unions communicate with employees? Under the bill's card-check alternative, how are employees protected against intimidation? These criticisms are camouflage for the bill's real logic: it would help union organizers succeed more often, so who cares how?
A second feature of the bill is more disturbing than the loss of secret ballots. For decades, so long as a labor union and a business owner negotiate in good faith, the end result of their negotiations has been up to them. Under the bill, if an employer fails to sign a contract with a new union within 130 days, a panel of labor arbitrators would dictate contract terms binding for two years.
Suppose, for example, the United Auto Workers obtained authorization cards from 51 percent of assembly line workers at a formerly nonunion Toyota plant and insisted that the labor contract for the plant mirror its standard Detroit Three contracts. If Toyota refused to agree within 130 days, a panel of labor arbitrators would impose an agreement. For two years, pay and benefits, work rules, and use of subcontractors at the plant would be decided not by Toyota but by the arbitrators.
Saddling businesses with obligations imposed by labor arbitrators makes no more sense than taking secret ballots away from workers. Congress and Obama should not sacrifice core principles of American labor relations to promote union expansion at all costs.
Patrick J. Bannon is a labor and employment law partner in the Boston office of McCarter & English.
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