Wednesday, August 27, 2008

The Wall Street Journal's Big Labor Bogeyman

After I blogged yesterday on the decidedly ill-informed Wall Street Journal op-ed regarding the Employee Free Choice Act, I got to wondering why the Journal wasted ink and paper on a bill that died in the Senate nearly 1½ years ago on a 51-48 cloture vote. The answer, I think, was revealed in this morning’s Journal. Yesterday’s op-ed was a lead-in to set the stage for today’s lead editorial entitled “Big Labor’s Comeback,” which explains in Journalese why card check authorization will spell the end of life on Earth as we know it.

Unlike the Marcus op-ed yesterday, today’s editorial isn’t simply ill-informed. Rather, it’s completely wrong. It says
The main vehicle [for rewriting federal law to promote union organizing] is “card check” legislation, which would eliminate the requirement for secret ballots in union elections. Unable to organize workers when employees can vote in privacy, unions want to expose those votes to peer pressure, and inevitably to public intimidation. This would arguably be the biggest change to federal labor law since the Taft-Hartley Act in 1947.

The underlying suggestions of the editorial are that under federal law today, all unions are organized by means of a secret ballot election, and that the proposed legislation would prohibit secret ballot elections. Both are false.

First, as I pointed out yesterday, union drives almost always begin with petitions or authorization card drives, which are non-secret. It is only when an employer contests the results of the drive that a secret ballot election is held. Any employer is free today to recognize the results of a card drive and bargain with the winner of the drive. This is nothing radical. It was cemented in a unanimous 1969 Supreme Court decision called NLRB v. Gissel Packing.

Second, the proposed legislation would in no way prohibit secret ballot elections. The law regarding secret ballot elections would remain unchanged: if a substantial number of employees, but not a majority, sign cards, then a secret ballot election would still be held.

If you’re looking for radical changes to federal labor law, you need only look to the Republican counterproposal to the Employee Free Choice Act. It’s called the “Secret Ballot Protection Act”, and it would change federal law to prohibit employers from bargaining with a union unless the union had been designated in a secret ballot election under the auspices of the NLRB. In other words, if an employer was presented by all of its employees with a petition for collective bargaining, and the employer was absolutely convinced that all of the signatures were genuine and voluntarily given, and the employer had had a full and fair opportunity to make its case against unionization to the workers, and the employer decides that it wants to recognize that union and enter into negotiations, the Republican proposal would prohibit the employer from doing so. It would be an unfair labor practice for the employer to bargain with the union, and it would be an unfair labor practice for the union to ask the employer to bargain.

It’s worthwhile to note that secret ballot elections don’t happen overnight. For example, in a recent case involving the election at the Trump Plaza Hotel & Casino, it took about 18 months from the time that the union filed its petition for an election to the date on which the NLRB issued a decision certifying the results of the election. That’s 18 months in which the workers, who overwhelmingly supported unionization, had no representation. Twelve- to eighteen-month delays are commonplace. In service industries where there’s a high rate of employee turnover, the delay inherent in the election process effectively renders the right to join a union meaningless.

If it takes the NLRB, at current staffing levels, more than a year to certify an election with a bargaining unit of 30 workers, imagine what would happen if the “Secret Ballot Protection Act” were the law. Congress would have to appropriate money to the NLRB to staff the election process, and oversee far more elections than there are today. The result would be an overwhelmed NLRB, and elections would either be delayed or simply not conducted at all.

Posted by Craig J. Albert