05/ 30/ 2007
by Emily McMackin
How card-check agreement legislation would limit your and your employees' democratic rights
For a decade now, Randy Truckenbrodt has been locked in the fight of his life, trying to save his business from being unionized--and possibly destroyed. Truckenbrodt, owner of Randall Industries, an Elmhurst, Ill.-based company that distributes and leases aerial-lift equipment to contractors, has lost customers and spent countless hours and half a million dollars trying to resolve an endless power struggle for his business.
Ever since the International Union of Operating Engineers Local 150 decided to organize his industry in 1997, the group has been determined to bring his business aboard. From the beginning, organizers have used scare tactics, implied threats, boycotts and legal assaults to not only intimidate his 25 employees into joining them, but also bully Truckenbrodt into relinquishing control of his business.
"If they can get employees on board willingly, they'll try that first," says Truckenbrodt, whose business has been targeted three times by the same union. "If they can't, they'll resort to other tactics."
Everything has been fair game, Truckenbrodt says. Running employees off the road on their way home from work. Stalking them at night. Vandalizing equipment and slashing delivery truck tires. Picketing against Truckenbrodt's customers. Hoisting an inflatable rat named Randy in front of his business and tying a noose around its arm.
All of this occurred before the union was able to garner enough support among employees for a private-ballot election administered by the National Labor Relations Board. And it has continued, despite the union's failure to win the elections and in spite of a National Labor Relations Board document hanging on Truckenbrodt's office wall acknowledging a civil contempt ruling against the group.
"Before the ink dried, they were doing it again," Truckenbrodt says. "As long as there's no monetary punishment or jail time, the document has about as much value as a wet piece of toilet paper."
And he doesn't have much faith in the capability of the NLRB, which he says is forced to favor the union in its interpretation of the law. The first time an election took place at Truckenbrodt's business, it took five months to arrange and another 17 to certify. In the meantime, organizers continued to harass his employees and customers, nearly running him out of business.
"It's like being in a championship fight with two boxers--one holds you up in the corner so the other one can pummel you," Truckenbrodt says.
A few years ago, his employees voted--using a private ballot--to bring in a union, but this one wasn't as militant as the one that targeted his company before. Being unionized offers him some protection from more ruthless unions, but when his contract expires with the group in three years, his workforce will be up for grabs once again.
Protecting private votes
In many cases, the private-ballot vote is the only safeguard left that protects an employee's right to choose whether to belong to a union. Without that, Truckenbrodt envisions anarchy.
"I don't understand what lawmakers mean when they say they have to level the playing field to make it easier to organize businesses," he says. "To me, the real issue is if you expose an employee for how he votes, you open him up to intimidation by the union as well as the employer.
"The essence of democracy in this country is the private-ballot election. Why would you take away that right and make an employee declare his intentions in front of a union and an employer? I find it bizarre and very dangerous."
Stripping employees of their right to choose through a private ballot whether they want union representation and shutting employers out of the process is exactly what "The Employee Free Choice Act" seeks to do. The legislation, which the House of Representatives passed and the Senate is now debating, would allow unions to organize businesses using card-check agreements.
That means if a union sets its sights on your business, organizers would only need to convince a majority of your workforce to sign authorization cards, and the law would require you to recognize and negotiate with the union, possibly without even allowing you to verify signatures. The misnamed bill contradicts the democratic rights of the employees it supposedly protects, exposing them to a system rife with potential for manipulation, NFIB President and CEO Todd Stottlemyer says.
"America was built on the idea that true choice comes in the privacy of the voting booth," Stottlemyer says. "In a private ballot, employees aren't subject to intimidation, harassment or other coercion."
Forget talking to your employees first to explain how their decision to unionize would affect your business. The card-check process could unfold in as little as a weekend and could happen without you even realizing it--at least not until a union organizer knocks on your door.
If you refuse to agree on the first contract the union presents within 120 days, a government arbitrator could set wages and benefits for your employees. Arbitration would prevent small-business owners from making the best decisions for their businesses--even exposing them to fines for offering improved benefits or working conditions--as well as deprive unionized employees of voting on their contracts, which NFIB Executive Vice President Dan Danner says is unacceptable.
"We oppose any legislation that compromises the rights of small-business owners to establish workplace policies and benefit plans that best suit their business and employees," Danner says.
For their part, unions argue that the deck is stacked against them in NLRB elections. They say that employers can discuss the union with employees anytime, while they are restricted from communicating with workers. They claim that employers often fire union advocates or threaten to close or relocate the business if workers unionize.
Truckenbrodt finds these claims laughable.
"There are a lot of freedoms extended to unions that aren't extended to the employer," he says.
For instance, union organizers often approach his employees on job sites and lure them to a coffee shop or pizza joint to talk. While Truckenbrodt doesn't like to see his employees pulled away from work, he knows that trying to stop the conversation would only violate federal law. When he broaches the subject with employees, he's careful with his words and tone.
"You can't intimidate employees or threaten to shut the company down--that's illegal," he says. "You have to be cautious about what you say--anything can be used against you as an unfair labor charge."
Unions also claim card-check agreements would prevent employers from using the period before an election to coerce employees into voting their way, but Truckenbrodt experienced the opposite.
"When unions know they can't win an election or intimidate employers into succumbing in advance, they'll disrupt it, so employees don't have an opportunity to vote--or so they can inflict economic harm on the company," he says.
Pulling political strings
The politics behind the card-check issue reveals much about the motive behind the legislation. The bill, sponsored by California Rep. George Miller and Massachusetts Sen. Edward Kennedy, comes at a time when congressional power has shifted to the Democrats, many of whom accepted hefty campaign contributions in the last election from labor unions. President Bush has promised to veto the legislation if it passes the Senate, but regardless of what happens this session, the issue isn't likely to fade anytime soon. New Jersey has already legalized card-check agreements.
The sway of organized labor over the American workforce is waning, down to a low of 7 percent in the private sector from 20 percent in the 1980s--and unions are eager to reverse that trend. Election statistics suggest that most unions focus organizing efforts on small businesses. Of the 2,679 elections the NLRB conducted in 2005, 70 percent involved groups of fewer than 50 employees, and more than 20 percent consisted of fewer than 10 workers. "It's disheartening that small businesses are being unfairly targeted by unions in a last-ditch effort to reverse the trends of their decreasing membership," Danner says.
The smaller your business, the greater your risk of being singled out for a card-check campaign, since fewer signatures are required to reach a majority. If your funds and counsel are limited, you'll hardly be a match for the well-financed campaigns and legal teams of most unions.
Misleading workers
Legalizing card-check agreements scares Truckenbrodt because he knows how manipulative they can be. All organizers have to do is get workers to express interest in the union to get them to sign a card--and some operate more covertly than that.
One of Truckenbrodt's employees signed a card after an organizer claimed that he had to return it to his boss to prove the two had talked. When the man realized his mistake, organizers accused him of lying. Truckenbrodt knows some employers who've been intimidated into signing cards for their employees--and he understands the frustration that led them to that point.
"During some of our more drawn-out organizing drives, employees would say to me, 'Should we just sign with the union to save the business?' Almost like they were doing me a favor," Truckenbrodt says.
Treating employees with respect remains his best defense against union intimidation. He gives employees flexibility and quarterly bonuses when the company does well and tries to understand their challenges.
"I don't want someone else telling me how to treat my employees," Truckenbrodt says. "Anybody I hire has a choice to come to work for me. If I don't create the right environment, there aren't bars on the doors to keep them from going somewhere else. Why, then, shouldn't I have the same option of doing what's best for my company?"
Defining the Issue
A shift in the balance of power in Congress has opened the door to new legislation supported by labor unions that could have serious implications for your small business. The so-called "Employee Free Choice Act"(H.R. 800) would make it easier for unions to come into your business and organize your employees. You've probably heard lawmakers and the media debating this issue already, but here's what's at stake:
Private-ballot elections: Current law protects an employee's right to choose union representation via a private-ballot election overseen by the National Labor Relations Board--a process initiated when 30 percent of a workforce sign cards expressing interest in a union. Employers who yield to an organizing election get six months to discuss with employees how unionization would impact the business.
Card-check agreements: If H.R. 800 passes, federally supervised private-ballot elections to recognize unions would be abandoned. Without a ratifying vote, unions would need only to coerce a majority of employees to sign authorization cards. This "card check" petitioning could take place outside of the workplace and in front of union organizers and co-workers who support unionization, subjecting employees to intimidation, misinformation and other tactics that might ultimately pressure them into signing cards. Once a majority sign, a business is unionized--and employers would have 120 days to agree to a union's first contract or have wages and benefits dictated by a federal arbitrator.
