NFIB

Card-Check Agreements Bad for Employees and Business

More and more, employers are being forced to recognize labor unions without first holding a private-ballot employee election -- the election process that is guaranteed in law and administered by the National Labor Relations Board. To prevent intimidation or harassment, the law establishes that neither a union nor an employer may coerce, harass or restrain employees in exercising their right to choose whether or not to support the union. Each employee's choice is made in the privacy of a voting booth, with neither the employer nor the union knowing how any individual voted.

Card-check agreements becoming more common
In the last 10 years, however, we have seen an increased effort by organized labor to seek union recognition outside of the protected private-ballot process. The use of so-called "card-check agreements" has become a critical component of labor's organizing strategy, since labor unions have struggled for years to win workplace elections. Under a card-check system, a union gathers "authorization cards" signed by workers which supposedly express their desire to unionize. Under current law, an employer may voluntarily recognize unions based on card checks, but it is not required. An employer can always insist upon an election administered by the NLRB.  However, employers are often pressured into accepting card checks by union picketing, threats, or comprehensive corporate campaigns to discredit or smear the employer publicly.

Card-check enjoys substantial support in 110th Congress
The card-check method is at the centerpiece of federal legislation shrewdly named as the Employee Free Choice Act, but it also contains provisions for triple damages from employers that violate the law as well as provisions for unions to obtain injunctions. Given the co-sponsorship levels in this Congress in addition to the newly elected Democrat members, opposition to the legislation certainly faces an uphill battle. In June 2007, the bill passed in the House by a vote of 241-185. It now awaits further action in the Senate. The bill's Senate companion, S. 1041, was referred to the Committee on Health, Education, Labor & Pensions on June 19, 2007.

Card checks: Bad for small business

NFIB's position against the card-check method can be broken down in five principle areas:

• Small businesses are most vulnerable to corporate campaign tactics typically associated with union authorization cards. Small businesses are less likely to have labor counsel and are more susceptible to complicated legal restrictions that employers face during organizing drives. Election statistics from the NLRB demonstrate that the bulk of union organizing targets small business. For the fiscal year ending Sept. 30, 2005, the NLRB conducted 2,649 representation elections. More than 20 percent of these secret-ballot elections involved bargaining units of fewer than 10 employees and a full 70 percent of these elections involved bargaining units of fewer than 50 employees.
• Free employee choice is based on private-ballot elections. Outside the privacy of a voting booth, it's too easy for union leaders to intimidate employees into signing something they don't really understand. By their very nature, card checks also leave employees vulnerable to harassment, misinformation and union pressure. Card checks strip workers of the right to choose, freely and anonymously. A secret-ballot election administered and supervised by the NLRB is the only way to protect the integrity of a worker's right to vote.
• Secret-ballot elections are more accurate indicators than authorization cards of whether employees actually wish to be recognized by a union. According to Mark Jodon, an employment lawyer with Littler Mendelson in Houston, when it's a secret-ballot election, unions win only 54 percent of the time, but when there's a card check, pressured employees will recognize a union more than 90 percent of the time.
• Employers should have a chance to present their side. A discussion solely between a union representative and an employee is too one-sided. Organizing by card check is conducted so quickly that companies do not have a chance to explain to workers why they should not join unions. And with this, threatened employers are often pressured into signing nondisparagement agreements with unions, barring them from expressing any real concern or opposition.
• Employees become pawns. That's what a corporate campaign is all about. Stripping workers of their right to a secret-ballot election, it becomes grossly apparent that the incentive for unions to want card checks is not generated by worker advocacy, but by their higher success rate. NFIB has long supported limitations that protect non-union employees from unwittingly or unwillingly supporting political causes with which they do not agree.

Furthermore, included in this legislation is a provision that mandates compulsory, binding arbitration on the employer and the employees as part the collective-bargaining process. This misguided language would have a third-party, government official making labor contract decisions within 30 days of mediation that are binding upon both parties. This would mean that the small-business owner would have no real voice in the union contract shaping their own business.