02/ 02/ 2007
Threats on Capitol Hill and in the U.S. Supreme Court could add strength to organized labor movements
Small businesses are facing a two-pronged threat from union organizers this year. NFIB is fighting legislation that would make it easier for unions to obtain certification, while the Legal Foundation has asked the U.S. Supreme Court to uphold a law requiring unions to get consent from nonmembers before using fees for political purposes.
How card checks work: For years, unions have organized within a company by holding a secret-ballot election of employees. Now they are attempting to bypass the long-held principle of secret ballots through a method known as card checks, a critical part of labor's organizing strategy designed to offset recent declines in membership.
The method is at the centerpiece of federal legislation known as the Employee Free Choice Act. Under current law, a business can voluntarily recognize unions based on card checks, but it's not required. If proposed legislation passes, unions would be allowed to choose a card-check campaign, rather than a secret-ballot election, effectively shutting employers out of the process and achieving recognition in as little as 60 days.
NFIB's position is that true choice comes in the privacy of the voting booth, where employees aren't subject to intimidation, harassment or other coercion. The election process also guarantees companies six months to discuss with their employees the pros and cons of joining a union.
Unions favor card checks, Mark Jodon, an employment lawyer with Littler Mendelson told the Houston Chronicle, because unions win just 54 percent of secret-ballot elections. Under a card-check process, employees, who may feel pressured, will recognize a union more than 90 percent of the time.
According to news reports, the Communications Workers of America have used card checks to organize about 22,000 workers since 2005, including many in largely nonunion Mississippi. The Service Employ-ees International Union organized 5,000 janitors in Houston.
Legislation allowing unions to use card checks is expected to be introduced this spring, which, given the level of support in the last Congress coupled with the makeup of the 110th, means NFIB faces a tough fight.
NFIB will be at the forefront in lobbying Congress to prevent card checks from being enacted into law as part of the steering committee of the Coalition for a Democratic Workplace, which was formed to combat the union effort.
Using nonmembers' dues for political activities: In the meantime, the NFIB Legal Foundation filed an amicus brief in a U.S. Supreme Court case concerning a 1992 Washington law that requires unions to obtain employees' authorization in order to use their fees for political purposes. In essence, Washington adopted an opt-in mechanism for nonunion employees who pay agency fees.
"If the court sides with the unions and finds this law to be unconstitutional, its ruling could open the door to labor plans to roll back established limits on the use of union dues," says Elizabeth Gaudio, Legal Foundation senior executive counsel.
The Supreme Court has never addressed the constitutionality of an opt-in procedure. In its brief, NFIB pointed to a long judicial history that prohibits organizations from forcing nonmembers to support a union's political activities.
NFIB.com
To track the legislation, go to "Labor Issues" on www.NFIB.com/issues. Get the latest on the Legal Foundation's fight on www.NFIB.com/legal.
