Political Hay

Secret Ballots for Me But Not for Thee

The Senate prepares to vote on the Big Payback to Big Labor for its Big Victory last November.

By 4.24.07

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Organized labor was perhaps the biggest winner of last November's congressional election. The Democratic leadership has moved quickly to begin paying off its campaign debt.

Observes Mark Mix, president of the National Right to Work Committee: Nancy Pelosi "knows union political operatives are largely if not primarily responsible for making her speaker, and union officials want votes on card check." Thus, the House has passed, and the Senate will soon consider, legislation to replace elections with the so-called "card check" process, which would enable labor organizers to intimidate their way to union recognition.

That's not how labor activists put it, of course. But they want to drop today's system, which requires a secret ballot election whenever 30 percent of workers sign a card supporting a union, with automatic recognition if 50 percent-plus-one workers sign a card.

Supporters of the legislation say they want to drop the inconvenient step of representational elections to prevent employer intimidation, though evidence of systemic problems is scant. In fact, a secret ballot makes retaliation against rank-and-file workers well nigh impossible. And the National Labor Relations Board reports few cases -- under two percent -- in which vocal union organizers are fired.

Actually, the fact that secret ballot elections limit the opportunities for abuse is the primary reason why organized labor insists on elections before a union can be decertified. In a 1998 case the AFL-CIO and two individual unions cited the U.S. Supreme Court in asserting "that a representation election 'is a solemn...occasion, conducted under safeguards to voluntary choice.'" Indeed, the unions added, the "representation election system provides the surest means of avoiding decisions which are 'the result of group pressures and not individual decision.'"

Quite true. Thus, elections cannot be spared when workers want out of a union. But organized labor has a different view of "group pressures" deployed as part of an official organizing campaign.

INDEED, UNIONS ASSIDUOUSLY ATTEMPT to undermine "individual decision" through "group pressures." Labor activists regularly intimidate workers into signing cards and supporting unionization. Hence the enthusiasm for "card check" union recognition.

For instance, Mike Ivey, a Materials Handler for the Freightliner Custom Chassis Corporation in Gaffney, South Carolina, went to the National Right Work Legal Defense Foundation in response to pressure from the United Auto Workers. He pointed to conscious misrepresentations by union organizers: "Employees are told at off-site meetings that signing a card only certifies that they attended a meeting" and are offered t-shirts for signing, without being told "that these cards are a legally binding document."

Recalcitrant workers are called and visited at home multiple times. Indeed, Ivey complains: "In the work place, the employees running the organizing campaign for the UAW are relentless in trying to get the employees to sign union cards. This has created a hostile work environment," a situation which, if caused by the employer, would result in a lawsuit.

Karen M. Mayhew, an employee of Kaiser Permanente in Portland, Oregon, tells a similar tale of fraud and abuse, through which she and her fellow workers, also assisted by NRWLDF, were able to get the union decertified because of its misbehavior. The cards, said labor organizers, merely indicated interest in receiving more information. She adds: "Throughout this whole ordeal, my colleagues and I were subjected to badgering and immense peer pressure."

As long as unions claim that intimidation is not their official policy -- and are smart enough to avoid creating any written evidence to the contrary -- workers have little recourse. In a 1996 case a majority of National Labor Relations Board commissioners held that "alleged threats of violence, even when made in the course of card solicitation, cannot be construed by any reasonable person as representing 'purported union policies.'"

In that case, a union activist went up to another employee and, reported the NLRB, "allegedly stated that the employee had better sign a card because if she did not, the Union would come and get her children and it would also slash her car tires." Maybe the threat was unauthorized, but if the union is not held responsible for intimidation like this, what will stop future organizers from making similar threats, especially when a signed card is so much more valuable -- bringing activists closer to recognition, and not just an election which they might lose?

Which ultimately is why organized labor desires card check recognition. It is a lot easier to browbeat 50 percent plus one of the employees to publicly sign a card than to get the same number to vote for the union in a secret ballot. Indeed, a 1989 AFL-CIO organizing survey concluded: "It is not until the union obtains signatures from 75% or more of the unit that the union has more than a 50% chance of winning the election."

First, some workers sign who have been fooled into thinking that the card has no legal effect. Second, some employees sign to avoid union pressure, including threats against their children. Third, a number of workers change their minds when they hear both sides of the argument leading up to the election.

No wonder Bruce Raynor of UNITE HERE says simply: "There's no need to subject the workers to an election." The union wants to generously choose for them.

FOR THE NEXT TWO YEARS, the White House is likely to pose an obstacle to Card Check, since President George W. Bush is expected to veto any card check bill. But then, nothing is guaranteed with an administration that has expanded government power in so many ways.

Moreover, President Bush's Iraq failure makes the election of a Republican as successor problematic. And organized labor will work as hard if not harder to win in 2008 than 2006. Opines the AFL-CIO's Stew Acuff: "If we have to elect a president to sign it, we will."

Thus, the upcoming Senate vote is a critical round in a battle that will grow even more fierce if the Democrats win control of the presidency along with Congress. Then only a filibuster will stop card check. National Right to Work reports that 36 senators have promised to uphold a veto, but 41 votes are necessary to sustain a filibuster, which will require overwhelming Republican unity, since few Democrats will break ranks. Yet Sen. Arlen Specter (R-Pa.) co-sponsored the legislation in the past; other Northeastern senators may also hesitate to cross organized labor. Breaking the 41 mark this time is necessary to create an impassable Senate barrier in the future.

Organized labor might think elections are unnecessary for union recognition, but workers disagree. A Zogby poll found that 84 percent of union members believed employees should be able to vote about joining unions (only 11 percent were opposed).

Ironically, even Rep. George Miller (D-Ca.), the chief House sponsor of card check, believes in union recognition elections. For other nations.

In 2001 he joined with 15 colleagues to affirm their deep concern "with international labor standards and the role of labor rights in international trade agreements." Thus, they urged Mexico "to use the secret ballot in all union recognition elections." In their view, "increased use of the secret ballot in union recognition elections will help bring real democracy to the Mexican workplace."

But apparently not in America.

Incidentally, there's no obvious reason why even a majority employee vote should force workers to join unions, as is often required, or even force companies to recognize only this one union, as the law demands. But if recognition is to be mandated by law, it should only follow victory in a secret ballot election. As the AFL-CIO has admitted: the "representation election system provides the surest means of avoiding decisions which are the result of group pressures and not individual decision."

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About the Author
Doug Bandow is a senior fellow at the Cato Institute. A former Special Assistant to President Ronald Reagan, he is the author and editor of several books, including The Politics of Plunder: Misgovernment in Washington (Transaction).