LABOR RELATIONS

Down the Rabbit Hole? Unionization without an Election and Arbitrated Collective Bargaining Agreements

June 2007

By Anne G. Scheer*

Could this possibly be? Democratic legislators in Washington, D.C., currently are trying to pass legislation for unions that would mandate that private employers recognize a union as the representative of its workers without a secret ballot election if a majority of affected workers sign cards authorizing union representation. And, this legislation is being advocated by unions on assertions such as stated by ASL-CIO President John J. Sweeney that employers, but not unions, "routinely threaten, harass and coerce employees..." during election campaigns.

Based on such assertions, which are not grounded in either fact or logic, Democratic lawmakers in Washington are now trying to pass legislation that would take away from employees a very cornerstone of our democracy, the right to a secret ballot election to choose whether or not the employee wants to continue to negotiate directly with their employer on their wages, hours and benefits or to have a union representative do so. Yes, Alice we may have fallen down the hole into Wonderland.

Currently, under longstanding labor law, a union that wants to represent employees of a private company must first get "authorization cards" signed by at least 30% of the workers of the group the union is seeking to represent. These cards typically state that the employee is interested in having a union represent their interests in the workplace. If at least 30% of the group of workers do sign such cards the union can file a Petition for Election with the National Labor Relations Board ("NLRB").

Alternatively, under current law if 51% or more of the employees have signed an "authorization card" a union can go to the employer and request that the employer voluntarily recognize the union's right to represent the workers. At that point an employer can either agree to do so, or knowing that employees sometimes feel coerced to sign authorization cards when requested by co-workers and union representatives the employer may decline in order to give its employees an opportunity to make their choice in a secret ballot election.

To understanding this issue, it is important to understand how a union gets "authorization cards" signed. Unlike a secret ballot election run by the NLRB there are virtually no rules governing tactics a union can use to encourage, and yes some would say threaten, harass and/or coerce employees to sign an authorization card. It is certainly not unusual for a union when trying to obtain authorization cards to barrage employees at home and at work with personal visits, telephone calls and electronic and non-electronic written communications from both outside union organizers and co-employees to convince them that they should sign.

There is nothing secret about this process for an employee. Many workers do feel pressured to sign an authorization card even when they don't want a union to represent their interests. But, at least under our current system, employees have the opportunity to rectify this situation by their vote in a secret ballot election run by the NLRB.  It is hard to believe that anyone can argue with a straight face that taking away the right to a secret ballot election is being done in the interest of workers, rather than to help unions gain more dues paying members.

On this same issue, in New Hampshire both the House and Senate recently passed slightly different versions of this same legislation for public employers. It is expected that the New Hampshire House and Senate will work out the small difference between their bills by mid-June, and that this legislation will be signed into law by Governor Lynch shortly thereafter, and will become effective 60 days after its passage.

Unlike New Hampshire’s legislation on this issue for public employers, the pending legislation in Washington doesn’t stop at taking away the right to a secret ballot election. The Washington legislation further provides that if a union is recognized as the representative of employees in a workplace and the company and the union are unable to reach agreement on a first contract within 90 days that their dispute will be referred to the Federal Mediation and Conciliation Service. And, if this Service is unable to achieve agreement between the parties their differences will be referred to binding arbitration. Talk about federal interjection into the private workplace.

This proposed legislation in Washington is called the "Employee Free Choice Act" a title some might find an oxymoron. Also called the "Card-Check" bill, H.R. 800 was passed by the House, including the sponsorship and votes of New Hampshire’s representatives, Paul Hodes and Carol Shea-Porter. This legislation is being championed in the Senate by Senate Health, Education, Labor and Pensions Committee Chairman Edward Kennedy.  On the other side Vice-President Cheney has said that the Administration will "defend (the right of workers) to vote yes or no by secret ballot, and the right to fair bargaining. H.R. 800 violates these principles." In addition Labor Secretary Elaine Chao has said that she would recommend veto of this bill stating that "It is a workers fundamental right in a democracy to be able to vote in a private ballot election without outside pressure or public disclosure.  If this bill were presented to the President, I would recommend that the President veto it."

Less you believe this writer has a horse in this race, let me be clear that I am an independent voter and I am neither pro nor con unions representing employees in the workplace. Over the years I have represented unionized companies in which the union's efforts on behalf of its members have benefited both the employer and the employees. What I am opposed to is taking away from employees one of the very cornerstones of our democracy, the right of an employee to choose by a secret ballot election whether they want a union to represent their interests in the workplace.  Especially when taking this right away is based on a false premise that employers not unions strong arm workers during a secret ballot election process. Of course a secret ballot election is not always perfect, but it is the best system we have, and is a foundation of our democracy. Similarly, there is no basis for the government intruding into the right of private individuals and companies to reach agreement on contract terms by mandating binding arbitration.

Neither law nor logic should allow Washington legislators to trample on private employee and employer's rights in this way as a payback to unions from Democratic legislators for the 2006 election results. If this legislation is something you oppose or support you should contact your United States Senator and Representative and let them know how you feel about this legislation. The U.S. Chamber of Commerce has organized an e-mail campaign for its member companies and others to voice opposition to this bill, and unions are currently engaged in similar campaigning.

* Anne Scheer is admitted in New Hampshire and Massachusetts.

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