Presentation on Federal “Card Check” Legislation

I presented on an issue I normally don’t get to talk about at the New Mexico Restaurant Association‘s legislative panel today. Federal “card check” legislation will be a top priority of the next Congress, particularly if Obama is elected President. The following are my brief comments:
Passage of the “Employee Free Choice Act” is one of the Democrats’ top priorities in 2009. The legislation which is also known as “card check” was introduced in both the House and Senate as HR 800 and S. 1041.
So, what is “card check” and why is it important to the business community, especially restaurants? Today, employees are entitled to a private-ballot election when deciding whether they want union representation in their workplace. These elections are overseen by the National Labor Relations Board, which has numerous procedures in place to ensure fair, fraud-free elections.
1) If adopted by Congress and signed by the President, the “Employee Free Choice Act” would allow unions to abolish secret ballot organizing elections for unionization votes. Rather than giving employees the ability to make a private decision in a secret ballot (as is currently done) as to whether or not to unionize, a union would be certified if organizers could convince a majority of workers to sign union cards.
Unlike the current secret ballot system, the cards would be signed in public, often under the watchful eye of party bosses and others who might threaten and attempt to coerce people who would otherwise wish to contract privately with their employer. Abolishing the secret ballot exposes workers to the kind of intimidation high-pressure tactics which secret ballots are designed to avoid.
As bad as some of the controversies we are seeing in the election over allegations of fraudulent voter registration and voter intimidation, we can at least take comfort as voters in the fact that the particulars of how we vote is not public information that can be used against us. Union bosses wouldn’t like it very much if employers got to stand over their employees’ shoulders and watch how they voted, I don’t see why union organizers should be able to do that when they are organizing a union.
2) A second component of the “Employee Free Choice Act” is binding arbitration. This aspect of the law would require the federal government to appoint a mediator and impose a contract if management and labor cannot come to an agreement. It would allow either party (usually the union) to delay coming to an agreement in the hope of getting more in binding arbitration than they would get in bargaining.
Obviously, if one party in a negotiation has no desire to come to an agreement on a particular issue, this further tilts the likely outcome of the negotiation to the benefit of the unions.
3) Lastly, the legislation as it is now written would increase penalties for employers, but not for unions or others, who violate union organizing laws.
The Employee Free Choice Act passed the House 241 – 185 in March or 2007, but did not make it to the Senate floor for an up or down vote this Congress.
As far as New Mexico’s delegation is concerned, Wilson and Pearce voted against it and Udall voted for it. The New Mexico House of Representatives passed a memorial in support of the federal “Employee Free Choice Act” on February 4, 2008. I have passed out a roll call vote listing from the Foundation’s new legislative tracking site As an aside, I’d urge all of you who have business in Santa Fe to take advantage of this free and easy to use site. It is much more user-friendly than the Legislature’s site.
So, why are the unions pushing this issue right now? First and foremost, unions have shrunk dramatically relative to the overall workplace over the years. In 1973, private sector unions could count 25 percent of the work force as members. That number is down to about 7.8 percent of the work force currently. Public sector labor unions have not experienced the same decline with membership remaining consistently between 35 and 40 percent of the work force over the same time period.
The fact is that private sector unions are desperate for members and they want to use this fall’s Democratic electoral landslide to increase membership. Many elected officials and Democratic Party activists are enthusiastic about this legislation because strong union support could cement electoral gains for years to come.
Regardless of the political implications associated with this legislation, it is hard to believe that a party that calls itself “Democratic” would undermine a core tenet of the Democratic process, the secret ballot.
If you as a business owner are concerned about this issue, it seems doubtful that the House of Representatives will move to the right after this election. Nonetheless, with three new House members in New Mexico, it is probably still worth talking to them. The real action, of course, will be in the US Senate. Also, while New Mexico’s House of Representatives is on record as supporting the federal legislation, the Senate may not be as enthusiastic about passage of a Memorial.
Certainly, it would not hurt to explain what this legislation could mean to your employees. You can’t be afraid to approach your employees with information. After all, a recent Zogby poll found that union members themselves believed, by an 84 percent to 11 percent margin, that employees should be able to vote on union membership. You will likely receive a receptive audience if you provide non-biased information in a non-threatening manner about the potential negative impacts of this legislation and get your employees involved.
While it might seem that Congress will be more than happy to pass Card Check legislation, it will be easier to preserve the secret ballot in Congress than it will be to head off anti-democratic card-check unionization drives at your work site.