Why Union Check-Cards Are Coercive
Posted on June 25, 2006 at 9:14 pm by Chuck Muth
by Carl Horowitz
The secret ballot is the engine of representative democracy. A person casts a vote in complete confidence without fearing coercion, bribery or blackmail by onsite opponents.
For some 70 years American labor law has operated on this principle. If and when employees decide whether to be represented by a particular union, they shouldn’t have to worry about pressure from their peers, the union or the employer. The National Labor Relations Board (NLRB) supervises this process.
A growing number of labor officials don’t like this arrangement. The right to vote, after all, implies the right to vote “no.” Given that only 12.5 percent of all American workers—less than 8 percent in the private sector—belong to a union, organized labor’s eagerness to eschew the secret ballot is understandable.
As an alternative, unions have been stepping up their usage of the card-check agreement. Here, organizers—often workers themselves—accost employees at their workplace, home or other location, hand them a card, and ask them to sign if they want to join. A card typically has separate lines for the signer’s address, phone number, Social Security number and other personal information. For a union to be eligible for representation, it must acquire signatures from more than 50 percent of all affected workers. At that point, the employer may voluntarily recognize a union as a bargaining agent.
The card check, though allowed under law, is not terribly democratic. Common sense dictates that once a union acquires a safe majority of signatures, the preferences of those workers not having a chance to make their choice become moot.
Organized labor’s allies in Congress aren’t troubled by this. Led by Rep. George Miller (D-Calif.) and Sen. Ted Kennedy (D-Mass.) they’re sponsoring the misnamed Employee Free Choice Act (H.R. 1696, S. 842) that would force an employer to accept as binding any card-check acquiring a majority of worker signatures.
Such legislation flies in the face of long-standing court opinion. In Gissel Packing Co. (1969), for example, the U.S. Supreme Court noted that cards are “admittedly inferior to the election process.”
It’s true that card-check has the advantage of being quick. And the results are immune from employer challenge, especially when attached to an employer “neutrality agreement.” Unfortunately, this method also enables unions to strong-arm consent.
There’s no mystery in this. A worker unlikely to lend support to a union campaign may think twice if his choice is open to retaliation. While such coercion is illegal, unions have never been known for their scrupulous adherence to the law. The Washington-based HR Policy Association in 2004 noted that the absence of federal supervision in union representation campaigns has “resulted in deceptions, coercion, and other abuses.” In a case brought before the NLRB in 1996, HCF, Inc. d/b/a/ Shawnee Manor, an employee testified that a co-worker warned her “the union would come and get her children and it would also slash her tires” if she didn’t sign.
The card-check process also plays upon a worker’s desire to be seen as cooperative; he may sign simply to avoid giving offense to the organizer. For this reason, notes lawyer and former NLRB member Charles Cohen, authorization cards overstate union support.
This past spring, organizers with the Service Employees International Union took this emotional blackmail to a new low at the University of Miami (Fla.). The SEIU convinced any number of students to go on a hunger strike in support of its (eventually successful) card-check campaign against UNICCO, a janitorial-services contractor. Even University President Donna Shalala termed the union’s actions “unconscionable.”
Unconscionable or not, the card-check campaign works, and that’s why unions use it. A 1999 report by the AFL-CIO’s George Meany Center for Labor Studies, examining the results of more than 100 such campaigns, discovered that in 78 percent of all cases the union won status as a collective bargaining agent. By contrast, the success rate in secret-ballot elections was only 48 percent.
Card checks succeed similarly in Canada, which for decades has mandated recognition from employers. That explains why roughly a third of that country’s workers are unionized—and possibly why its unemployment rate since the 80s has averaged a few percentage points above ours.
Even union advocates, when letting their guard down, admit the Canadian model is no substitute for monitored elections. In an August 2001 letter to Mexican labor officials, Rep. Miller and 15 other members of Congress wrote, “The secret ballot is absolutely necessary.” Otherwise, workers may be “intimidated into voting for a union they might not otherwise choose.” And in 1998 the AFL-CIO joined in a brief to the NLRB that criticized the card-check as inferior to the secret ballot.
Some members of Congress actually want to give force to such words. Rep. Charlie Norwood (R-Ga.) and Sen. Jim DeMint (R-S.C.) have introduced the Secret Ballot Protection Act (H.R. 874, S. 1173) to make it an unfair labor practice for an employer to recognize or bargain with a union not having majority support in an NLRB-supervised election. The measure also would prohibit a union from pressuring an employer to avoid an election.
A union’s right to compete for worker representation does not come with a guarantee of victory. It’s time for law to affirm that principle once and for all.
Carl F. Horowitz is director of the Organized Labor Accountability Project at the National Legal and Policy Center in Falls Church, Va. He has done extensive research on labor, immigration, housing and other domestic policy issues. He has a Ph.D. in urban planning and policy development from Rutgers University.
