The way to save card check

By Michael J. Goldberg

After last fall's election, unions had high hopes for labor-law reform. But even with the eventual addition of Minnesota's Al Franken to the Democratic ranks in the Senate, there won't be a filibuster-proof majority in support of the Employee Free Choice Act.

Already, a half-dozen or so Democratic senators, including Delaware's Tom Carper and the newly converted Arlen Specter of Pennsylvania, have indicated they won't support the current bill. So if reform is to become a reality, there will have to be compromises on both sides.

The legislation's most controversial provision, known as "card check," would make it easier for unions to obtain official recognition without a secret-ballot vote. Under card check, workers would voice their preferences by signing, or declining to sign, union authorization cards. If a majority of eligible employees sign, the union would be in.

Opponents have successfully attacked the bill as eliminating the secret ballot and opening the door to bullying by union officials soliciting signatures. The scare tactics used in some anti-union ads are undoubtedly over the top and often based on unfair, outdated stereotypes. One such ad cast the actor who played Tony Soprano's mobster nemesis as a union boss.

But if supporters of card check hope to make it acceptable to moderates like Carper and Specter, then "Version 2.0" must assure that card-check results legitimately reflect the views of a majority of relevant employees.

For example, the bill could require the National Labor Relations Board to mandate secret ballots whenever there's evidence of unlawful union pressure. It could also require a "supermajority" of 60 percent or 67 percent for certification by card check, and reiterate that a secret ballot would be available when requested by at least a third of workers.

Although the legislation's opponents exaggerate the threat of union intimidation, the bill's supporters should not pretend unions are without their flaws. Version 2.0 should reassure those worried about union abuses by strengthening internal union democracy.

For example, the bill could guarantee union members the right to ratify contracts, protect against improper takeovers of local unions by their parent organizations, and mandate that officers of intermediate union bodies be chosen by direct elections, which are currently required only at the local level.

Card-check proposals are a response to serious problems with the way the National Labor Relations Board conducts secret-ballot elections. It's not secret-ballot elections that trouble supporters of the Employee Free Choice Act; it's the threats and intimidation that too many employers engage in during the weeks or months that lapse between the scheduling of an election and the actual balloting.

With or without card check, the next version of the legislation should require something more like Canada's "instant" union elections, which are held five to 10 days after they are scheduled. With that approach, which has been endorsed by former NLRB chairman William Gould, legal disputes related to elections get sorted out afterward, rather than dragging on for months before elections are held.

Even when employers refrain from threatening or firing union supporters in violation of the law (which studies indicate they do in 25 percent of organizing drives), the playing field in the months before the voting tilts dramatically in the employers' favor under current law. Employers have unfettered access to the voters - their workforce - for 40 or more hours a week until an election takes place. They can hold countless "captive audience" meetings and one-on-one "counseling" sessions, subjecting their employees to an anti-union barrage instead of a two-sided debate.

Union organizers, in contrast, are not even allowed to circulate literature in a company parking lot, and they have no access to employees' contact information until late in the process.

Version 2.0 should therefore incorporate some of the ideas Rep. Joseph Sestak has proposed. Sestak (D., Pa.) would mandate equal time and equal access for union representatives when employers saturate their workplaces with anti-union propaganda.

If the opponents of card check are sincere in their dedication to equitable union elections, they should recognize that when only one side has any meaningful opportunity to campaign, even a secret ballot is not necessarily a fair one.