Will Unions Force Employers to Recognize Card Checks?

“Card Check: The Sequel” has arrived. No, it’s not a movie. It’s a congressional bill. And labor unions are counting on a happy ending this time. On October 6, Sen. Bernie Sanders, I-Vt., and Rep. Mark Pocan, D-Wisc., unveiled the Workplace Democracy Act (S. 2142, H.R. 3690). The measure would force nonunion private-sector employers to recognize a union as a bargaining agent if it obtains signed pledge cards from over half of all potentially affected workers. This organizing tactic, known as a “card check,” is legal. And unions often use it as a prelude to, or a substitute for, a secret ballot representation election. The bill’s name is misleading. It’s no more about democracy than its almost identical forerunner, the Employee Free Choice Act, was about freedom of choice. And its economic effects are not likely to be salutary.

Union Corruption Update covered this issue extensively in 2007 and 2009, when “card check” were the two biggest words in the world of labor policymaking. In each of those years, Congress was close to delivering to labor officials the Employee Free Choice Act (EFCA). If ever a case could be made for subjecting federal legislation to Truth in Advertising laws, this was it. Originally sponsored by Sen. Ted Kennedy, D-Mass., and Rep. George Miller, D-Calif., EFCA would have forced a private-sector employer targeted by a union in an organizing campaign to recognize that union as the sole bargaining representative if organizers convinced more than 50 percent of the workers to sign cards indicating a desire to join. It also would have forced employers into quick negotiations following initial certification and forced them into mediation in the event collective bargaining yielded no agreement. EFCA had extensive support in the Democratic-majority House of Representatives – it actually passed the full House in March 2007 by a 241-185 margin – but each time faltered in the face of an imminent Republican-led Senate filibuster.

Card check campaigns are legal under the National Labor Relations Act. And unions have found them useful in organizing nonunion work sites. For one thing, a card check that snags a commitment to join from at least 30 percent of workers triggers a National Labor Relations Board-supervised secret ballot election. Moreover, unions often prefer to go well beyond that point as a show of strength. If a card check produces signatures from a large majority of workers – typically around 75 percent – it’s a sure sign the union can win an election. In such cases, the employer may decide to accept the union as a bargaining agent rather than deal with the irritants that inevitably accompany the election process. A 1999 study by the AFL-CIO’s George Meany Center for Labor Studies, after examining the results of more than 100 card check campaigns, concluded that in nearly 80 percent of all cases the union won sole collective bargaining agent status. The success rate in standard secret ballot elections, by contrast, was slightly under 50 percent. While the latter figure at times has been around the 60 percent mark, card checks remain a more effective method of winning representation. Union organizers know that each signature may function as a vote for representation.

Though unions have a potent organizing tool in the card check, they are frustrated. Under current law, employers are not obligated to recognize the results of a card check, however successful. Legislation that unions and their allies in Congress have been pushing these last several years would change that. Their goal is to force employers into recognizing the results of card checks that generate pledges to join from a majority of affected workers. This provision was at the heart of the Employee Free Choice Act several years ago; it is at the heart of the Workplace Democracy Act today. The Sanders-Pocan bill is nothing more than old wine poured into a new bottle, right down to its disingenuous language. The legislation is not about “democracy” any more than it is about “free choice.” It is about union institution-building, so that potentially non-joining workers will join. Unions see mandatory card check recognition as a way to restore clout. By forcing a nonunion employer to recognize a card-check majority as a de facto union election victory, it would tell that employer it no longer has any right to remain nonunion. Unions now represent less than 7 percent of the private-sector work force in the U.S., way down from over 30 percent back during the late Fifties and early Sixties. Their leaders want to get that figure back to something resembling those halcyon days.

Supporters in Congress, realizing that unions are not terribly popular with the general public, promote forced card check recognition as an affirmation of liberty, fair play, democracy and other all-American virtues. In their morality play of economic decline, employers are the villains and unions are the unsung heroes. The driving force behind the Workplace Democracy Act, Vermont Senator Bernie Sanders, now a Democratic presidential candidate, justifies his bill as protecting the “millions of Americans who want to join unions and are unable to do so because of the coercive and often illegal behavior of their employers.” The bill would:

Make it easier for workers to form unions through a majority sign-up (i.e., card check) process. This section would allow the National Labor Relations Board (NLRB) to certify a union as the collective bargaining representative if a majority of eligible workers sign valid authorization cards and the NLRB verifies that majority. Workers will get to elect which process to use to form unions, rather than allowing employers to dictate the course of action.

And should a union win recognition this way, the bill would:

Ensure companies can’t prevent a union from forming by denying a first contract. This section would require an employer to begin negotiating within 10 days after certification. If no agreement is reached after 90 days of negotiation, either party can request compulsory mediation. If no first contract is reached after 30 more days of mediation, the parties would submit the remaining issues to binding arbitration.

The summary of the Sanders-Pocan bill, couched in the language of radical populism, views unions as guarantors of prosperity:

Today, corporate profits are at an all-time high, while wages as a percentage of the economy are near an all-time low. The middle class is disappearing; nearly 47 million Americans are living in poverty; and the gap between the very rich and everyone else is growing wider and wider.

There are many reasons for the growing inequality in our economy, but perhaps the most significant reason for the disappearing middle class is that the rights of workers to join together and bargain for better wages, benefits, and working conditions have been severely undermined.

In this narrative, the American middle class is collapsing, and the best way to reverse this trend is to grant unions new organizing and bargaining powers. The reality is far different. Forcing majority card checks and contract arbitration upon reluctant employers – and, by extension, workers who prefer not to sign – is a bad idea based on flawed premises and misleading facts.

First, the National Labor Relations Act of 1935 (i.e., the Wagner Act) from the start has safeguarded the basic right of private-sector workers to form or join a union. Under NLRA, it always has been illegal for employers to interfere with these rights. Court rulings repeatedly have affirmed this principle. The tools for enforcement are firmly in place. The Workplace Democracy Act would not restore worker rights that were never taken away in the first place. What it would do is: 1) give unions the ability to expand their turf; and 2) give the Federal Mediation and Conciliation Service (FMCS), an agency created by the Taft-Hartley Act of 1947, unprecedented and arguably unconstitutional authority to create union-favorable contracts at workplaces across the nation.

Second, the empirical evidence that unions muster to demonstrate systematic denial of workers rights doesn’t hold up. Labor officials for several years have been citing one study in particular, sponsored by a Washington, D.C.-based, union-funded nonprofit group, American Rights at Work, concluding that every 23 minutes an employee somewhere in this country is fired or otherwise punished for attempting to organize or join a union. Yet this report, based on NLRB data, leaves a lot more out than it includes. It assumes that the 31,358 workers who received back pay in 2005 were victims of illegal employer discrimination. In point of fact, back pay claims usually occur when a worker, often himself a union member, sues an employer for failing to negotiate in good faith. Such complaints may invite numerous others at that place of employment. They may be well-founded, but the larger point is that they usually have nothing to do with employer suppression of union organizing.

Third, the card check process in practice can be highly coercive. Like obnoxious telemarketers looking to close a sale, union organizers often go the extra mile to convince skeptical workers to sign a membership pledge card. They are not above paying surprise visits to an employee’s home or known tavern hangout if they cannot acquire a signature at the workplace. And the union style of persuasion is not of the “pretty please” school. A little over a decade ago, the Washington, D.C.-based HR Policy Association concluded that union card check drives have “resulted in deceptions, coercion, and other abuses.” In one NLRB case, HCF Inc. d/b/a Shawnee Manor, an employee testified that a co-worker warned her “the union would come and get her children and it would slash her tires” if she didn’t sign a card. Making mandatory the recognition of a union in the event of a majority card check would give organizers all the more incentive to apply high-pressure and possibly criminal tactics.

Fourth, far from spurring job creation, mandatory card check and arbitration would inhibit it. A study released in March 2009, authored by economist Anne Layne-Farrar, “An Empirical Assessment of the Employee Free Choice Act:  The Economic Implications,” concluded: “Passing EFCA would likely increase the U.S. unemployment rate and decrease U.S. job creation substantially.” Layne-Farrar projected that a three percentage point increase in union membership attributable to card checks and mandatory arbitration would result the following year in a rise in the unemployment rate of 1 percent and a drop in new jobs of 1.5 million. As the Workplace Democracy Act amounts to a carbon copy of EFCA, why would anyone expect the consequences to be that different?

No committee action yet has been taken. And the short-run prospects for passage aren’t good. Unions and their backers in Congress failed in 2007 and 2009 to enact this organizing boon; it’s not likely they can pull it off given current Republican majorities in the House and Senate. But majorities can dissipate. And Hillary Clinton, the Democratic presidential frontrunner, speaks virtually the same language as Bernie Sanders on domestic issues. It is inconceivable she would oppose forced card check legislation, especially in the wake of last month’s endorsement of her by the Service Employees International Union. Executive action under the current administration can’t be ruled out either. President Obama, always impatient with legislative process, may circumvent the will of Congress in a manner not unlike his grant of “temporary” amnesty for hundreds of thousands of illegal immigrants under cover of Deferred Action for Childhood Arrivals (DACA). Whatever the outcome, the salient fact remains: the Workplace Democracy Act is an attempt by unions to gain members, money and power. And if they can’t win this round, they will be back for another.


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