Monday, January 26, 2009

Card Check Union Elections

Email from Hoss:

"Card Check: Obama is 100% behind the Employee Free Choice Act. This is about as left as it gets.
Taking away private balloting is about as undemocratic as it gets. I find it hilarious that the democrats
held private balloting when they changed house leadership, yet want to make workers declare publicly if they
don't support unionization. Go ahead, [Tomb]. Spin away..."

I promised to respond to the question from memory and I have - for the most part.  I did wait to confirm a couple of things with the union-busting attorney down the hall (he's a labor attorney and a union-buster in the literal sense), so here it goes.

First off all, the Hoss' initial statement is factually incorrect.  During the campaign, Obama indicated that he would sign the EFCA if placed on his desk.  Since the election, however, he has softened his position.  He stated that if there is a way to achieve the same goals with a measure that doesn't anger business quite as much, he would consider it.  He has also stated that the EFCA is not an administration priority at this point.  So, he stills supports it, but it's not the 100% support Hoss alleges. 

Second, many KPers might be shocked to learn that card check elections already exist [gasp]!  In fact, organizers use card check procedures to demonstrate consent for the 30% of employees needed to obtain an NLRB secret ballot election.

Now, under current law, if organizers obtain the consent of the majority of workers using card check procedures, the organizers can submit the results to the NLRB for certification.  Existing rules allow a large percentage of employees or the employer to challenge the card check election and request a secret ballot.  Employers almost always demand a secret ballot.  According to labor advocates, employers use the previously signed cards to identify union supporters and use the extra time before the next NLRB election to apply pressure to employees and influence the outcome of the final ballot.

So, here is the requested spin: union supporters believe that providing employers the right to demand an NLRB election even after a majority of workers have already indicated their desire to organize provides employers with an unfair advantage.  In effect, it provides employers with two bites at the apple, even after workers have already spoken.

The EFCA would require the NLRB to certify a majority vote obtained through card check procedures.  Employers can still challenge the results by citing evidence of coercion or fraud in the card check process.  In those instances, a secret ballot NLRB election would follow.  Absent that, certification and collective bargaining would proceed. 

Thus, the EFCA does not do away with secret ballot elections.  They would proceed either under the 30% rule or if it appears there were irregularities in obtaining a majority of card check authorizations. 

What is curious is how so many opponents have seized on the notion that the EFCA does away with secret ballots.  In addition to being factually inaccurate, the argument is a bit of a red herring.  Based upon personal experience and familiarity with Roberts Rules of Order, elections by secret ballot within private organizations are the exception, not the rule.  The default is a voice vote, which is followed by a roll call vote if the voice vote is not definitive.  The idea that a vote to organize must be secret simply does not find support in practice or in history.

Finally, I think we can all agree that employers and unions have a strong sense of mutual distrust.  Employers will argue that the EFCA subjects employees to coercion.  Organizers say the the EFCA would have the opposite effect and actually decrease the amount of employer coercion.  What is clear is that the EFCA does provide a secret ballot election in those cases where there is objective evidence of unions attempting to obtain card checks by dishonest means.  This appears to strike a common sense balance. 

1 comment:

GammaBoy said...


Good post. Lots of good facts, and some clever spin subtly inserted to fill some glaring cracks.

I don't know nearly as much as you clearly do about the subject, but you've inspired me to read up. To quote a drowning Governor of note, I'll be back.