The Public Policy

Beyond Card Check

Card check may be unpopular, but a repackaged version of the Employee Free Choice Act remains in the works.

By 12.1.09

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Next up for the far-left on Capitol Hill could be a repackaged version of legislation replete with highly coercive, anti-democratic language inserted at the behest of labor bosses to rejuvenate their depleted ranks.

With public opinion heavily weighted against the "card check" provision of the Employee Free Choice Act (EFCA), key Democratic senators have signaled their interest in offering up a compromise to mollify moderates in their own party.

At least six Senate Democrats appear willing to drop card check in exchange for maintaining other labor priorities such as binding arbitration. Sen. Tom Harkin (D-Iowa), EFCA's lead sponsor in the upper chamber, has joined with Sherrod Brown of Ohio, Thomas R. Carper of Delaware, Mark Pryor of Arkansas, Charles E. Schumer of New York and Arlen Specter of Pennsylvania to discuss the possibility of a compromise, according to other press reports.

Bergen Kenny, a spokesperson for Sen. Tom Harkin (D-Iowa), EFCA's leading sponsor in the upper chamber, has said that labor law reform remains alive in the current session of Congress. She has declined to comment on the details of on-going negotiations.

Under card check, the National Labor Relations Board (NLRB) would be required to certify a union without a secret ballot election once labor representatives obtained signatures from 51 percent of a company's workforce.

In practice this means workers would no longer have the opportunity to debate the merits of a particular union and to cast their votes in private. Moreover, union bosses would be in control of the cards and would know who signed for and against representation.

Free market advocacy groups such as the Workforce Fairness Institute (WFI), National Right to Work (NRTW) and the Chamber of Commerce have helped to galvanize public opposition by flushing out the bill's anti-democratic provisions. Polling data suggests their campaign has been effective.

Over 60 percent of Americans favor the use of secret ballots in unionization elections, while only about 30 percent support card check as an alternative, the most recent Rasmussen Reports survey shows. Another poll organized through the National Retail Federation (NRF) found that union and non-union members oppose card check in roughly equal measure.

Almost 82 percent of non-union members favored keeping the secret ballot in comparison with almost 84 percent of union members, according to NRF data.

Even so, EFCA remains the top legislative priority for organized labor, which contributed substantial sums to congressional Democrats and the Obama Administration.

In the 2008 election cycle, labor union political action committees (PACS) contributed over $66 million dollars to congressional candidates with 92 percent of those contributions going to Democrats, according to OpenSecrets.org. Labor PACs also contributed $531,711 to Barack Obama that same year, the most of any U.S. senator.

Obama also received $28 million in independent expenditures from the Service Employees International Union (SEIU) for his presidential campaign. It is also worth noting that Labor Secretary Hilda Solis has received over $900,000 from organized labor for her congressional campaigns, including over $30,000 from the SEIU.

The connection with SEIU is of particular importance because it continues to lead the charge for EFCA, even as it loses support. Despite talk of a possible compromise, SEIU President Andy Stern has been insistent upon a straight up and down vote on card check.

Ivan Osorio, a labor expert with The Competitive Enterprise Institute (CEI) has identified the SEIU has the single biggest driving force behind EFCA. He anticipates that its communications strategy will become even more strident now that some Democrats appear to be backing away.

Union bosses understand that labor unions have become less relevant to the needs of workers in the 21st century. In an economy where workers are more mobile between jobs and employers place a greater premium on individual skills, the idea of collective bargaining is properly viewed as an antiquated notion.

The manufacturing economy of the 1940s and 1950s has been replaced by an information-based economy that leaves little room for organized labor. Private sector unionization has fallen from its high of 35 percent of the eligible workforce in 1954 to about 8 percent today.

EFCA is needed because it would help to reverse this trend by way of coercion. Stern, the SEIU president, forecasts that union membership would grow by 1.5 million members every year over the next 10 to 15 years, if the bill became law.

But there's the rub. If Democrats cannot reach the magic number of 60 in the U.S. Senate now, the opportunity for transformative labor legislation could well be lost for a generation. Sen. Blanche Lincoln (D-Ark.) has already said that she would oppose card check.

Katie Packer, executive director of WFI, has identified other swing votes. Sen. Ben Nelson (D-Neb.), Sen. Mary Landrieu (D-La.), Sen. Evan Bayh (D-Ind.), Sen. Dianne Feinstein (D-Calif.) and Sen. Jim Webb (D-Va.) could be pliable, she suggested.

Sen. Specter (D-Pa.), who announced earlier this year that he would oppose card check, now appears to have a more congenial view of the legislation after attending an AFL-CIO convention in September.

The compromise being considered on Capitol Hill calls for workforce representation elections to be held 10 days after 30 percent of workers sign cards in favor of organizing. Although the card check phrase would be dropped, the legislation would be still very weighted against business, Greg Mourad, director of legislation for NRTW, has observed.

"This so called compromise is really just window dressing," he said. "These quick snap elections would give the unions as much time as they want to propagandize the workforce and collect petitions, while the other side has just 10 days. The current average is 42 days when petitions are turned in to when elections take place and we think this is a reasonable time frame."

Brett McMahon, vice-president of Miller and Long, a Maryland-based concrete construction company, concurs. The maneuvering on card check and proposed substitution of new, seemingly benign language is a typical labor tactic, he warned.

"They usually give ground on one of their most unreasonable demands after all the objections have been made," he said. "Then they come back with something even worse and claim the moral high ground for having 'compromised' on their first demand."

So far, labor bosses have received little return on their campaign investments in the way of new legislation. Once Democratic leaders clear the deck with healthcare, they will be expected to reintroduce card check, but under a different name.

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About the Author

Kevin Mooney is an investigative reporter with free market think tanks associated with the Franklin Center for Government and Public Integrity. He has also written for the Daily Caller, the Washington Times, the Washington Examiner, NetRightDaily.com and NewsBusters.