Proposed Legislation Could Change Union Organizing

Kim Clarke Maisch
National Federation of Independent Business
We all enjoy the right to vote for our chosen candidates in private. It is something that many of us cherish and some take for granted. There are laws that protect us from invasive and intrusive politicians, such as prohibiting “electioneering” too close to polling places on Election Day. But anyone who owns a television or gets mail knows that we all face a deluge of political rhetoric, some offensive and some downright intolerable, during election time. At the end of the day, though, we can walk into that polling place and vote in private and no one has to know how or for whom we voted. It’s the American way.

The system is similar when labor unions attempt to organize nonunion shops. Currently, while an organizing campaign is underway, federal law has protections for both labor unions and employers. As you can imagine, it can sometimes be a volatile workplace environment in which employers try to protect their businesses and unions try to grow their membership by convincing workers they need representation.

Many small businesses recoil at the thought of having a unionized shop. One of the main tenets of being a small business owner is being in charge—having the freedom to run a business without answering to anyone. In a union environment, many of those freedoms are taken away or hampered. So it is not surprising that small business owners throughout this nation are furious over legislation that would take away some of their rights when it comes to union organizing.

The Employee Free Choice Act, or the “Card Check Bill,” as it is known by its opponents, would remove employers’ and employees’ rights to a private election when it comes to whether or not to have union representation. S. 1041 and H.R. 800 would eliminate the use of a private ballot system and allow unions to organize with publicly conducted card checks. Under a card check system, a union gathers authorization cards signed by workers which supposedly express their desire to unionize. Under current law, an employer may voluntarily recognize unions based on card checks, but it is not required. In addition, an employer can insist upon an election administered by the National Labor Relations Board (NLRB). However, employers are often pressured into accepting card checks by union picketing, threats or comprehensive corporate campaigns to discredit or smear the employer publicly.

If the federal legislation passes, an employer’s right to a federally supervised private vote to unionize will be taken away. Employees will be open to union harassment and intimidation tactics, as their votes will be made public to other employees and union organizers.

This legislation would also mandate compulsory, binding arbitration, meaning that a small business owner would be forced to recognize the first contract presented by a union within 120 days of the card check recognition. If an agreement is not reached, a government representative would step in and make all decisions related to pay and benefits for the business—silencing the voice of small business owners for their own business.

NFIB believes in the freedom to vote and the freedom to vote privately. This freedom has been questioned over the last 10 years, as we have seen an increased effort by organized labor to seek union recognition outside of the protected private ballot process. The use of so-called "card check agreements" has become a critical component of labor's organizing strategy, since labor unions have struggled for years to win workplace elections.

The NFIB and our small business members are strongly opposed to the card check method for several reasons:

  • Small businesses are the most vulnerable to corporate campaign tactics typically associated with union authorization cards. Small businesses are less likely to have labor counsel and more susceptible to complicated legal restrictions that employers face during organizing drives. Election statistics from the NLRB demonstrate that the bulk of union organizing targets small businesses. For the fiscal year ending September 30, 2005, the NLRB conducted 2,649 representation elections. More than 20 percent of these secret ballot elections involved bargaining units of fewer than 10 employees and a full 70 percent of these elections involved bargaining units of fewer than 50 employees.
  • Free employee choice is based on private ballot elections. Outside the privacy of a voting booth, it’s too easy for union leaders to intimidate employees into signing something they don’t really understand. By their very nature, card checks also leave employees vulnerable to harassment, misinformation and union pressure. Card checks strip workers of the right to choose, freely and anonymously. A secret ballot election administered and supervised by the NLRB is the only way to protect the integrity of a worker’s right to vote.
  • Secret ballot elections are more accurate indicators than authorization cards of whether employees actually wish to be recognized by a union. According to Mark Jodon, an employment lawyer with Littler Mendelson in Houston, with a secret ballot election, unions win only 54 percent of the time, but with a card check, pressured employees will recognize a union more than 90 percent of the time.
  • Employers should have a chance to present their side. A discussion solely between a union representative and an employee is too one-sided. Organizing by card check is conducted so quickly that companies do not have a chance to explain to workers why they should not join unions. And with this, threatened employers are often pressured into signing non-disparagement agreements with unions, barring them from expressing any real concern or opposition.

Unfortunately, this proposal has already passed the U.S. House of Representatives. In mid-June the Senate held a “test” vote which would have allowed the bill to be voted on with limited debate. That procedural move failed 51 to 48; it needed 60 votes to pass. However, we fully expect organized labor to push for a vote again in the Senate. President Bush has vowed to veto it if it gets to his desk. You can get more information on the “Card Check Bill” at IBI