Should Unions Be Allowed to Organize Without Secret Ballot Elections?
Article Summary
“Labor Bill Faces Threat in Senate” appears above the fold in the March 10, 2009 print edition of the Wall Street Journal. The article highlights key issues that could potentially derail passage of the Employee Free Choice Act or “Card Check” as it is sometimes referred to. According to the authors, key Senate Democrats and Republicans are backing off supporting the legislation originally introduced in 2005 and revived every Congress since.
The legislation is “seen as a power struggle among labor unions and businesses,” and is a key test of whether moderate Democrats and Republicans will rail against Congressional leadership and the Whitehouse. (Trottman) A central issue of the proposed legislation is the elimination of requirement of the age-old secret ballot for union organizing. It should be noted that The Wall Street Journal offers no opinion on the legislation, but provides insight into the difficulty the legislation faces to become law.
Background
Authority for Federal labor law derives from Article 1, Section 8 of the United States Constitution stating,
“The Congress shall have Power… To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;” (U.S.C. 1: Section 8)
Commonly referred to as the Commerce Clause, it provides Congress authority to regulate interstate commerce. Extrapolated, this means Congress can regulate almost anything involving interstate commerce, including labor. Labor relations laws date to President Franklin Delano Roosevelt, who signed the National Labor Relations Act (29 U.S.C.) in 1934. Shortly after passage, its constitutionality was challenged in National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937). Chief Justice Hughes delivered the opinion of the court and found, “it clear that the National Labor Relations Act may be construed so as to operate within the sphere of constitutional authority.” Further opining that the right to organize and bargain collectively was, “a fundamental right.”[1] Leaving no room for misinterpretation, the Court also ruled that the law did not violate the Fifth or Seventh Amendments to the Constitution.
Labor relations law is specific to union organizing, collective bargaining and rights of the employer and employee. The agency formed in 1935 to regulate and conduct secret ballot elections to determine whether employees wish to form a union is the National Labor Relations Board. The Board consists of five members appointed by the President, with advice and consent of the Senate. When enacted, this law was “expressly enacted to take power away from management-friendly state courts.”[2] The basis for this theory is premised on the observation that State Courts tended to more friendly towards the employer and less to the employee. It was believed that a Federal regulator could manage these types of labor issues more efficiently and without the expense, time delays, and perceived unfair advantages provided to employers often found in litigating such issues at the state level.
Since enactment, several modifications to the NLRA have passed congressional and presidential muster. The Taft-Harley Act of 1937 and Labor Management Reporting and Disclosure Act of 1959 made significant changes to the original legislation. In 2008, union membership stood at 12.4% of the hourly and salaried workforce in the United States totaling 16.1 million members.[3] This membership is significant in the amount of money its representative unions spend lobbying Congress and donating to political campaigns at both the national and state level.[4]
The Issue
The central issue in the current debate is whether Unions should be allowed to organize without a secret ballot vote and with only card signatures indicating a willingness on behalf of the employees to join or form a Union for the basis of collective bargaining. Existing law requires a petition bearing signatures of 30% of the employees on cards to indicate a willingness to form a Union. Once the petition is certified by the NLRB, the NLRB conducts a secret ballot election to determine the outcome.[5] As proposed, the Employee Free Choice Act would provide a less stringent requirement for union formation, requiring that if the petition bears a majority of signatures, “the Board shall not direct an election but shall certify the individual or labor organization as the representative described in subsection (a).”[6]
Support: Allow Union Organizing without a Secret Ballot
Most of the support for allowing Union organization without the use of secret ballot elections comes from existing Unions. Unions argue that passage of the legislation would allow Americans a better route to reach middle class status. To support this thesis, the AFL-CIO asserts that Union members make 28 percent more than workers without Union representation.[7] Union members are also 52 percent more likely to have employer-provided health insurance, and the benefits and costs are better.[8] Other proponents view the Employee Free Choice Act as just a start and that further legislative initiatives are required to ensure union vitality for decades to come. At the 2007 meeting of the Association of American Law Schools Section on Labor Relations and Employment law, Lance Compa, a Senior Lecturer at the School of Industrial and Labor Relations, Cornell University argued,
“Labor law scholars have important contributions to make in this movement. My modest effort is to frame union organizing and collective bargaining as human rights endeavors, to help build political alliances with religious, human rights and other civil society communities to advance workers’ rights.”(Compa)
The Employee Free Choice Act is much more than elimination of secret ballot elections. It’s about human rights and securing legislation that vindicates,
“workers’ freedom of association by coercing unwilling employers into a collective bargaining relationship. Since most employers in the United States are unwilling to bargain voluntarily, that’s what the law should do: bring the power of the state to force employers to bargain with organized employees exercising rights of association.”[emphasis added] (Compa)
These are noble goals worthy of consideration. The Employee Free Choice Act is a down-payment on basic human rights for workers subject to a corporate culture where intimidation, coercion, harassment and employment termination are the tools of denying workers basic wages and benefits.[9] It’s about reversing the pendulum from a corporate dominated culture of greed and excess to a worker dominated system of improved benefits, pay and standard of living.
In essence, the Employee Free Choice act is about making it easier to form a union and garner better wages and benefits for members through collective bargaining or Government mandated arbitration. It would provide workers an easier method to create a union without undue coercion from management. Union membership has suffered over the last five decades and it’s hoped that this legislation will reverse that trend.
Opposition: Keep Secret Ballot Elections for Union Formation
Opponents of the Employee Free Choice Act are just a vigorous in their opposition. In a 2008 survey, 79% of Americans polled supported the right to secret ballot elections.[10] The trend of support for secret ballot elections among every demographic group was steady, with the strongest support coming from persons identifying themselves as Democrats at 82 percent. James Sherk of the Heritage Foundation argues that “Card Check” and other creative forms of organizing will be used to pressure or deceive workers into joining a union.
Rian Wathen, a former organizing director of UFCW Local 700 in Indianapolis, told the Heritage Foundation that union organizing is the life blood of any union and further that membership dues are often misappropriated or mismanaged for personal gain by union bosses. (Sherk) If the Employee Free Choice Act becomes law, the business wouldn’t even know that a union was working to organize or have the right to petition for a secret ballot election.
The EFCA would apply to any non-retail establishment with gross revenues of more than $50,000 a year and retail businesses with gross revenues of $500,000 or more; effectively bringing another potential 4 million small businesses into the crosshairs of union organizers.[11] Small businesses are the least able to afford collective bargaining for benefits the company cannot afford. Under the EFCA, the business has 90 days to collectively bargain with the newly formed union. If no agreement is reached within the 90 day period, the process is turned over to a binding Federal arbitrator for conclusion.[12]
Opinion
The Employee Free Choice Act is legislation that refuses to die in Congress. Its best chance for passage is now with both houses of Congress and the White House controlled by Democrats. A citizen’s right to secret ballot is engrained in the very thread of American culture. The ability to go behind a closed curtain and vote your conscious without fear of reprisal or intimidation is a cornerstone of American democracy.
Employments rights organizations and unions argue that unions are the very backbone of America, protecting workers rights and ensuring safety in the workplace. Further, they argue that unions do the job of protecting workers that OSHA[13] fails to do. While I agree that worker safety is of paramount importance, if OSHA is broken, then it needs to be fixed. We do not need to substitute another non-governmental entity to perform a job the Federal Government has the authority and resources to accomplish.
Alexander Hamilton warned in Federalist #1, “that a dangerous ambition more often lurks behind the specious mask of zeal for the rights of the people than under the forbidden appearance of zeal for the firmness and efficiency of government.”[14] It is the former who begins as a demagogue and ends a tyrant. It should be of concern then to all Americans, when those who profess ardently to support the human rights of the worker, to advocate the elimination of a fundamental right of the American experience.
Works Cited
“Democracy in the Workplace: Americans Fiercely Defend the Right to Secret Ballot Elections,” The Polling Company™, Inc. for American Solutions, March 31, 2008. http://www.americansolutions.com/media/4CDF1CEC-779C-4699-A123-A8992F4D9219/635f24f7-c83a-4d82-ab2a-d273a00f72f3.pdf, Retrieved on 16 March 2009.
Compa, Lance, “New Ways Of Governing The Workplace: Proceedings Of The 2007 Meeting Of The Association Of American Law Schools Section On Labor Relations And Employment Law”, 11 Empl. Rts. & Employ. Pol’y J. 111, 2007
Employee Free Choice Act. HR800. 110th United States Congress. http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=110_cong_bills&docid=f:h800eh.txt.pdf . Retrieved on 15 March 2009.
Paul M. Secunda & Jeffrey M. Hirsch, Debate, Workplace Federalism, 157 U. PA. L. REV. PENNUMBRA 28 (2008), http://www.pennumbra.com/debates/pdfs/WorkplaceFederalism.pdf. Retrieved on 17 March 2009
Phillips, Meghan Brooke, “Using The Employee Free Choice Act As Duct Tape: How Both Active And Passive Deregulation Of Labor Law Make The EFCA An Improper Mechanism For Remedying Working Class Americans’ Problems”, West Virginia Law Review, 111 W. Va. L. Rev. 219, (Fall 2008)
Sherk, James, “Card Check Creates Government-Run Workplaces”, The Heritage Foundation, March 10, 2009. http://www.heritage.org/Research/Labor/wm2334.cfm , Retrieved on March 18, 2009
Sherk, James, “EFCA Authorizes Government Control of 4 Million Small Businesses”, The Heritage Foundation, March 12, 2009. http://www.heritage.org/Research/Labor/wm2341.cfm , Retrieved on March 15, 2009
Trottman, Melanie and Brody Mullins. “Labor Bill Faces Threat in Senate”. The Wall Street Journal. March 10, 2009. A1 and A4
What Is The Employee Free Choice Act, AFL-CIO. http://www.aflcio.org/joinaunion/voiceatwork/efca/whatis.cfm . Retrieved on 15 March 2009
What is the National Labor Relations Act? , National Labor Relations Board, http://www.nlrb.gov/Workplace_Rights/i_am_new_to_this_website/what_is_the_national_labor_relations_act.aspx . Retrieved on 15 March 2009.
“Why Majority Sign-Up is Needed”, American Rights At Work, http://www.americanrightsatwork.org/employee-free-choice-act/resource-library/why-majority-sign-up-is-needed.html. Retrieved on 17 March 2009
Foot Notes
[1] 301 U.S. 1, 57 S. Ct. 615, (1937), Retrieved from LexisNexis® Academic on March 16, 2009
[2] Paul M. Secunda & Jeffrey M. Hirsch, Debate, Workplace Federalism, 157 U. PA. L. REV. PENNUMBRA 28 (2008), http://www.pennumbra.com/debates/pdfs/WorkplaceFederalism.pdf. p.3
[3] “Economic News Release: Union Member Summary”, US Bureau of Labor Statistics, January 28, 2009 http://www.bls.gov/news.release/union2.nr0.htm,
[4]“ Labor: Long-Term Contribution Trends”, Center for Responsive Politics, http://www.opensecrets.org/industries/indus.php?ind=P Retrieved on March 16, 2009
[5] 29 U.S.C. 159.C(1)(b)
[6] HR800, Employee Free Choice Act, http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=110_cong_bills&docid=f:h800eh.txt.pdf Retrieved on March 15, 2009
[7] “Why Does America Need the Free Choice Act”, AFL-CIO, January 2009, http://www.aflcio.org/joinaunion/voiceatwork/efca/upload/why_does_america_need_EFCA_1-09.pdf Retrieved on March 16, 2009
[8] The wage and healthcare assertions by the AFL-CIO could not be substantiated and no reference was provided on the document. Information provided by the Bureau of Labor indicates a median wage for union workers of $880 per week and $691 per week for non-union workers in 2008; a 21% increase. A further assertion regarding union members having a higher percentage of company sponsored pension plans could not be confirmed, but likely true based on the move by many employers to phase out Pension funds in favor of 401k plans and profit sharing agreements.
[9] “Why Does America Need the Free Choice Act”, AFL-CIO, January 2009, http://www.aflcio.org/joinaunion/voiceatwork/efca/upload/why_does_america_need_EFCA_1-09.pdf Retrieved on March 16, 2009
[10] “Democracy in the Workplace: Americans Fiercely Defend Right to Secret Ballot Elections”, The Polling Company, Inc., March 31, 2008, http://www.americansolutions.com/media/4CDF1CEC-779C-4699-A123-A8992F4D9219/635f24f7-c83a-4d82-ab2a-d273a00f72f3.pdf, Retrieved on 16 March 2009.
[11] Sherk, James, “EFCA Authorizes Government Control of 4 Million Small Businesses”, The Heritage Foundation, March 12, 2009. http://www.heritage.org/Research/Labor/wm2341.cfm , Retrieved on March 15, 2009
[12] HR800, Employee Free Choice Act, http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=110_cong_bills&docid=f:h800eh.txt.pdf Retrieved on March 15, 2009
[13] Occupational Safety and Health Administration, a U.S. Government Agency
[14] Hamilton, Alexander, The Federalist No. 1, For the Independent Journal, http://www.law.ou.edu/ushistory/federalist/federalist-1-9/ , Para. 5, Retrieved on March 12, 2009
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