Many of the provisions of the National Labor Relations Act are based on the notion that wherever there is opposition to unionism, management must be behind it. With that in mind, unions are now pushing to amend the NLRA in favor of mandatory "card check." Unions claim such a move would protect workers from employers by abolishing secret-ballot elections completely and requiring that unions be automatically recognized when they collect signatures from a majority of workers.
The problem with this is that doing so only serves to leave employees more exposed to harassment from union organizers.
For instance, consider the current process by which a union is recognized. Once a union gains a sufficient number of signatures from workers, it can petition for certification. At this point the employer has a choice: It may either begin contract negotiations with that union, or it may call for a secret-ballot vote to determine whether a majority of workers truly want the union. Card check, however, would do away with the secret-ballot option.
Unions should not be imposed where they are simply not wanted, and the NLRA says that a union should be recognized only where a majority of workers desire union representation. Having the employer, instead of the workers, decide whether or not an election is necessary makes sense if you assume that the employer would never want a union if it can avoid having one. This is an error. Workers have at times opposed unionization even when management supports it. There is nothing so bad about our labor law that it cannot be made worse in the name of standing up for the little guy, who is presumed to want a union even when he doesn’t.
The union argument for card check boils down to the assertion that something has gone terribly wrong with the election process because unions are not winning as many elections as they think they should. Union officials claim that this is happening because employers let go of union supporters, wrongfully threaten plant closings and hire consultants to manage their anti-union campaigns.
Management already is prevented by law from threatening to close a plant if a workplace unionizes. The law does, however, quite appropriately allow employers to tell workers about the possible consequences of union actions. The hiring of anti-union consultants is little more than the company finding advisors who can help it put together an effective presentation and avoid legal trouble. Managers are people, too, and they have First Amendment rights, including the right to tell employees about the possible downside of unions.
The accusation that employers are more likely to let go of union supporters is a serious one, but the unions’ case here isn’t as compelling as it might seem. First, union advocates frequently cite the results of a single survey of union organizers by the University of Illinois at Chicago suggesting that 30 percent of employers let go of union supporters; meaning that, by the admission of union organizers, more than two-thirds of employers don’t resort to firing union supporters. For the remaining minority of employers there is good reason to believe that most of these firings are for legitimate reasons. Discriminatory firing of a union supporter is already an unfair labor practice, but in the majority of cases the union did not file a ULP complaint against the employer with the National Labor Relations Board.
It is fairly well established that employee signatures are a poor indicator of union support. The AFL-CIO itself has acknowledged that only when they have signed authorization cards from 75 percent of bargaining unit members do their chances of winning an election reach 50-50. Some of that drop-off in support may be due to employers’ anti-union campaigns. Some of the discrepancy could well be due to union tactics that have ranged from bribery to deception to intimidation, used to coax reluctant workers to sign authorization cards. Congressional testimony from employees describes how union organizers will offer food, mislead workers about what they are signing ("it’s just so we can send you information about the union"), threaten to have employees fired after the union gets in, call workers repeatedly at night and even visit employees at their homes, unannounced and uninvited in attempts to get them to sign cards. Workers targeted in card-check campaigns have been known to sign just to bring this harassment to an end.
Using card check as the exclusive means for determining whether workers want a union is almost guaranteed to result in the imposition of unions in places where workers do not want them. In Michigan, with a heavy union presence and no shortage of union members to make surprise house calls, the effects of mandatory card check could be particularly distorting.
UAW President Ron Gettelfinger concedes, "American employers no longer routinely break heads to bust unions." But the possibility of intimidation by union supporters remains real, and card check only aggravates this problem. If anything, the secret-ballot election should be made mandatory to ensure that workers have at least one chance to express their preferences free from the fear of recriminations from either side.
Employers may have become more bold about resisting unionization than they once were, but that doesn’t mean that unions are entitled to major changes to labor law so they can have their old winning record back, especially when much of what employers are doing differently is using their freedom to speak more effectively. Most of us, at some point in our childhood, have heard the saying: "Sticks and stones may break my bones, but words can never hurt me." There is great wisdom in this, wisdom which should guide us as we balance the relative threats to workers from employer anti-union messages on one hand and intimidation by union organizers on the other.
Paul Kersey is senior labor policy analyst at the Mackinac Center for Public Policy, a research and educational institute headquartered in Midland, Mich. Permission to reprint in whole or in part is hereby granted, provided that the author and the Center are properly cited.