Obama Labor Board Kills Important Secret Ballot Precedent

Worker advocate denounces NLRB’s ruling to take away protection workers have against card check forced unionism

Washington, DC (August 30, 2011) – Today, Barack Obama's National Labor Relations Board (NLRB) overturned its Dana Corp. decision, in which National Right to Work Foundation attorneys secured for employees the right to challenge union card check organizing campaigns with a secret ballot vote.

Under the Foundation-won Dana decision, workers may collect signatures to request a secret ballot election during a 45-day window period following notice that their employer has recognized a union based on a card check organizing drive. The ruling is intended to counteract coercive practices frequently associated with card check, which allow organizers to bully or mislead employees into signing cards that count as "votes" toward unionization.

The NLRB overturned Dana just as President Obama-appointed NLRB Chairwoman Wilma Liebman's term expired. Meanwhile, Obama-appointed Board Member Craig Becker, who co-authored a union brief in the original Dana case, refused to recuse himself from the case. Becker, a recess nominee, faces bi-partisan opposition to his confirmation in the U.S. Senate. One Board Member, Bryan Hayes, vigorously dissented and called the ruling a blatant roll back of employee freedom.

Any decertification votes that have been cast but not counted by the NLRB will now be discounted, thereby invalidating the voice of thousands of workers nationwide.

Read the entire release here.

Worker Asks Federal Appeals Court to Overturn Backroom Deal Between Union and Company Officials

Union organizers obtained workers’ personal information as part of a quid pro quo with the company to force employees under union control

Hollywood, FL (February 3, 2011) – With free legal assistance from the National Right to Work Foundation, a Mardi Gras Gaming employee is taking his case against local union officials and his employer to a federal appeals court.

In 2008, Unite Here Local 355 and Mardi Gras Gaming officials entered into an agreement in which union officials agreed to spend over one hundred thousand dollars in workers’ forced union dues on a gambling ballot initiative and guaranteed not to picket, boycott, or strike against the facility.

In return, Mardi Gras officials promised they would hand over employees’ personal contact information (including home addresses), grant union operatives access to company facilities for the purpose of organizing through a coercive card check campaign, and refrain from requesting a federally-supervised secret ballot election to determine whether employees actually wanted to unionize.

With the help of Foundation attorneys, Mardi Gras Gaming employee Martin Mulhall filed a lawsuit against Unite Here in 2008, arguing that the company’s concessions to the union are of substantial monetary value because the company made the union organizing process easier and less expensive.

Read the entire release here.

Today, House Republican leader John Boehner called on President Barack Obama to veto any controversial legislation that passes during the post-midterm election lame-duck Congressional session. One of those controversial bills is the Card Check Forced Unionism Bill.

As Right to Work Foundation legal director Ray J. LaJeunesse details in the Spring 2010 issue of the Texas Review of Law & Politics journal, this draconian bill's three primary provisions contain many injustices toward American workers and job providers.

Regarding the bill's provision to strip workers of their rights to a secret ballot election and opening them up to intimidating "home visits":

...the absence of a formal election process works an obvious unfairness, facilitates intimidation and deception of workers, and runs contrary to the American tradition of secret ballots and the freedom to vote in privacy. The United States Supreme Court has already spoken to the issue, recognizing that “secret elections are generally the most satisfactory—indeed the preferred—method of ascertaining whether a union has majority support.”

There also is a serious question whether EFCA will unconstitutionally deny employers and employees their free speech rights... Because there would be no open campaign leading up to a secret-ballot election, EFCA would eliminate open debate, thus curtailing the speech rights of employers and individual employees opposed to the union.

As for the unconstitutational, government-mandated binding arbitration provision:

Mandatory governmentally-imposed binding interest arbitration... runs afoul of various provisions of the U.S. Constitution.

Moreover, in requiring governmentally-imposed arbitrators to dictate contract terms, EFCA would unconstitutionally take the property of employers and give that property to their employees (as wages, for example) for a non-public use, in violation of the takings clause...

And finally, regarding the lopsided nature of the penalties imposed on job providers:

These drastic new penalties for unfair labor practices that apply to employers but not to unions raise concerns under the Equal Protection Clause of the Fourteenth Amendment and may violate the Seventh Amendment right to a jury trial.

These one-sided changes in the NLRA’s remedial scheme would adversely affect employees as well as employers. With the Damoclean sword of punitive remedies looming, employers faced with union organizing campaigns will be more likely to gag themselves to avoid unfair labor practice charges by unions, thus depriving employees of the “information opposing unionization,” which they have an implicit “right to receive” under NLRA section 7, and which is necessary to make an informed and free choice about whether to support unionization or not.

As LaJeunesse clearly explains, the Card Check Forced Unionism Bill certainly "presents serious legal and policy issues" indeed.

The full article is published in the Texas Review of Law & Politics Vol. 14, No. 2.

Obama Recess Appointee Refuses to Recuse Himself in Twelve of Thirteen Cases Despite Clear Bias, Conflicts of Interest

New federal labor board member and former SEIU union lawyer Craig Becker thumbs his nose at much-touted Obama ethics policy

Washington, DC (June 9, 2010) – Craig Becker, President Barack Obama’s controversial recess appointee to the National Labor Relations Board (NLRB), responded this week to 13 motions for his recusal filed by National Right to Work Foundation attorneys in cases pending before the Board.

After President Obama installed Becker on the NLRB in late March, Foundation attorneys quickly filed recusal motions in all Foundation-supported cases due to Becker’s extreme level of hostility against the Foundation and its legal arguments for workers’ rights, even when the NLRB or United States Supreme Court have agreed and ruled against unions for their abusive practices. Additionally, some of the cases directly involve affiliates of the Service Employees International Union (SEIU), Becker’s employer up to the date of his recess appointment.

But Becker has only agreed to recuse himself in Dana Corp., one pending case in which Becker’s conflict of interest was so great even he could not ignore it. In that case, Foundation attorneys filed unfair labor practice charges against an employer and the United Auto Workers (UAW) union for illegal pre-recognition bargaining. In exchange for active company assistance during a coercive card check organizing campaign, UAW union officials made explicit concessions as to workers’ wages and benefits. Becker himself coauthored a joint brief for the UAW and AFL-CIO union hierarchy in that case.

Click here to read the full release.

Workers Prevail in Battle for Secret Ballot Vote After Corrupt Card Check Unionization Scheme

Communications union bosses collude with AT&T to lock local group into union ranks without majority support

Seattle, WA (February 11, 2010) – A group of AT&T Mobility employees have won a legal victory countering union officials’ domination of their workplace using a coercive card check unionization campaign that occurred after union organizers colluded with AT&T officials to sweep the workers into union ranks in exchange for contract concessions.

Per a so-called “neutrality agreement” between the Communications Workers of America (CWA) union hierarchy and AT&T, workers in a 140-employee bargaining unit (which consists of various locations across the state of Washington) were “card checked” into the CWA union’s regional monopoly bargaining unit which consists of thousands of employees.

In exchange for AT&T foisting CWA monopoly bargaining on workers through a card check organizing drive, union officials agreed to subject employees to a contract which results in lost benefits for the workers, including promotion opportunities. Moreover, the employees’ inclusion in the larger regional unit would make it virtually impossible for them to later organize to remove the union officials’ monopoly bargaining privileges.

However, using precedent won by Right to Work Foundation attorneys in the National Labor Relations Board’s (NLRB) landmark 2007 decision in Dana Corporation, Joseph Simpson of Redmond and his colleagues filed a decertification petition demanding a secret ballot election to remove the unwanted union from their workplace.

Click here to read the full release.

Recently, former West Wing actors Martin Sheen and Bradley Whitford lobbied in favor of the woefully misnamed Employee Free Choice Act (better known as the Card Check Forced Unionism Bill) at a press conference with so-called American Rights at Work, the same militant lobbying group which Labor Secretary Hilda Solis played a formal role while a member of Congress.

CNS News asked the actors why they support a bill which would effectively eliminate the secret ballot in workplace unionization drives.  Whitford responded (emphasis mine),

The notion that the labor movement is out to abolish their own members’ rights to a secret ballot just doesn’t pass the laugh test. And people who are propagating the rumor that it does, their sudden compassion for worker’s rights is just not believable.

There are so many problems with that one, incredibly misinformed sentence.  As I explained last week, the card check bill makes the secret ballot a virtual dead letter.  But Whitford's comment shows he is willing to believe whatever union bosses tell him.  Union bosses routinely work to undermine employee freedom -- it's nothing new, except to hardcore union partisans.

But Whitford also made another error.  In a sense, he's right that the labor movement is not "out to abolish their own members' rights to a secret ballot" -- but only because the Card Check Forced Unionism Bill doesn't have anything to do with unions' "own members."  The bill would eliminate the secret ballot for prospective members as well as independent-minded workers who do not want the union's "representation."  Union bosses want to destroy the secret ballot in unionization campaigns so that they can intimidate and trick employees into signing cards.

Fortunately, Sheen and Whitford just play politicians on TV.

In the debate over the grossly misnamed Employee Free Choice Act (more accurately called the Card Check Forced Unionism Bill), union bosses have gone out of their way to convince the media that the bill does not eliminate the secret ballot in workplace unionization drives.

But legal experts here at the National Right to Work Legal Defense Foundation have examined the bill and the state of the current law and come to the following conclusion:

Under the Card Check Forced Unionism Bill, the provisions of the National Labor Relations Act (NLRA) that refer to the secret ballot election would be rendered a dead letter, even though they are not technically stricken from federal law.

Big Labor spin artists can claim all they want that the workers can still "choose" to have a secret ballot election, but there simply is no way by which workers can force union bosses to file for a secret ballot election -- and it is union bosses, not workers, who are in possession of the cards.  Reporters who repeat this union boss talking point owe their readers a correction.

The simple fact is that professional union organizers hold tremendous power in a unionization drive. If this forced unionism power grab becomes law, workers will only be privy to the information union bosses disseminate.

The text of the bill clearly states that once union bosses collect a simple majority of signed cards, "the [National Labor Relations] Board shall not direct an election but shall certify the individual or labor organization as the representative" or monopoly bargaining agent of all employees in the unit.

As former NLRB member John Raudabaugh told U.S. Senators last year,

Were the union to come up short of 50+ percent signed cards, would it really proceed to file a petition for an election? No, the secret ballot would not remain an option under the EFCA proposal.

If union bosses can't get a majority through card check -- a process during which many workers sign cards not due to actual support for the union but due to lies and intimidation by union organizers -- they obviously won't be able to win through the more fair and private secret ballot process.  As James Sherk of the Heritage Foundation and Paul Kersey of the Mackinac Center for Public Policy note,

An election would occur only when union organizers submit cards signed by a minority of workers; but union organizers do not call for an election without signed cards from a majority of workers. They know that unions usually lose these elections. The AFL-CIO's internal studies show that unions win only 8 percent of elections that are called after less than 40 percent of workers have signed cards.

Less obvious, however, is that union bosses don't think they can win secret ballot elections even if they collect a simple majority of cards.  Sherk and Kersey explain (emphasis mine):

Consequently union guidelines call for organizers to collect cards from 60 to 70 percent of workers in a company before going to the polls. Unions openly state that they do not go to an election without a supermajority of cards:

1. International Brotherhood of Teamsters: "The general policy of the Airline Division is to file for a representation election only after receiving a 65 percent card return from the eligible voters in a group."

2. New England Nurses Association: "Have 70-75 percent of members sign cards; if unable to reach this goal, review plan."

3. Service Employees International Union (SEIU): "[T]he rule of thumb in the SEIU is that it's unwise to file for an election when fewer than 70 percent of the workforce has signed interest cards."

The secret ballot is much better than the alternative in workplace unionization drives because of what monopoly unionization actually means in practice under the law. Once a union is in place, it is virtually impossible to remove it. More importantly, independent-minded workers who would prefer to represent themselves, or even workers who would prefer a different union's representation, are forced to accept the certified union as their monopoly bargaining agent. And unless those workers live in one of 22 states with Right to Work protections, they will be forced to pay dues to an unwanted union.

In other words, an individual worker's desire to belong to a particular union -- or indeed the collective desire of a simple majority of workers in a unit -- is different from an individual's desire to belong to any other private organization. The decision forces one's coworkers -- current and future -- to also accept the "representation" of this particular union. A secret ballot can't overcome this fundamental violation of individual rights, but at the very least, the secret ballot provides workers with a degree of protection against intimidation. And that protection will be lost under EFCA.

A few Right to Work-related updates from over the weekend:

1.) A recent survey shows broad, bipartisan support for maintaining secret ballot elections in the workplace. Although the erroneously-titled "Employee Free Choice Act" has gained legislative momentum, 82% of all Democrat voters, 77% of all Republicans, and 79% of Independents oppose replacing secret ballot elections with coercive "card-check" organizing drives.

2.) Both the SEIU and the United Steelworkers unions are considering overseas expansion in concert with unions in Australia, Great Britain, and elsewhere. International efforts at unionization may exacerbate existing tensions within the SEIU over inadequate local representation.

3.) Implictly rebutting the claims advanced by union officials in a recent Detroit News op-ed, community and business leaders in Michigan are speaking out in favor of greater worker freedom. Here are a few choice excerpts (emphasis mine):

Michigan as a whole is at a critical crossroads. West Michigan wants a voice of its own," Jeanne Engelhart, president of the Grand Rapids Chamber of Commerce, told me in a recent interview . . .

. . . Engelhart doesn't trash the Mackinac conference; she has attended in past years and found it useful. But she does suggest that west Michiganders might be more willing than Detroiters to push hard for government spending cuts and discuss controversial topics like right-to-work legislation, which would ban compulsory labor union membership."

. . . Dick Haworth, chairman of Holland-based Haworth Inc., believes a serious discussion of right-to-work status for Michigan is worth pursuing. "The union environment," he said, "does not allow you to adapt quickly, or at all, to the world we live in."

It's not just about wages and benefits; it's more about flexibility, Haworth said. "In a lot of cases, we're not using world-class methods and processes. We need to be better students of what world-class is."

 

The International Association of Machinists (IAM) has a long and troubled relationship with true workplace representation.  In fact, the union bosses' authoritarian nature of governance more closely resembles communist North Korea.

Section B-2 of the IAM's "Official Circular No. 813 - Strike Sanctions and Benefits" (pdf) lays out the organization's procedures for accepting a renegotiated contract or rejecting a new offer from management and going on strike:

". . . a secret ballot vote by the membership present and voting must carry by a two-thirds (2/3) majority in order to declare a strike."

Section B-3 makes it perfectly clear that IAM officials can unilaterally "ratify" a collective bargaining agreement even if a majority of employees vote against the new contract. In other words, IAM representatives are empowered by their own regulations to ignore workers' preferences:

"In the event that a strike vote fails to carry by the required two-thirds (2/3) majority vote, the collective bargaining agreement at issue will be accepted." [Emphasis in original]

Not exactly what you'd call fair -- vote no, but get yes. A recent NLRB administrative law judge ruling (pdf) involving a collective bargaining dispute in Indiana reveals that local IAM officials agreed to a renegotiated contract despite the fact that a majority of employees had already rejected management's new offer:

"The union put the agreement [the new contract] to a vote of employees and, following its established procedures, when less than a majority voted in favor of the contract, this triggered a strike vote requiring supermajority approval, and failing to garner approval for the strike, the contract was deemed accepted."

This situation lays bare the fraud of exclusive representation, also known as monopoly bargaining.  Unfortunately, workers have little voice when the union hierarchy is installed as the middleman... and often given other compulsory unionism privileges to boot.

With help from Foundation staff attorneys, several employees have come forward to challenge the IAM's monopoly bargaining privilege in the above-referenced workplace. These workers are interested in having a real workplace voice, not meaningless sham elections that can be ignored on a whim. Their appeal (pdf) to the NLRB General Counsel is pending further review, but we'll continue to post updates as the case progresses.

The American flag will now fly at election sites where employees vote over whether or not to unionize, according to a recent announcement by the National Labor Relations Board. How ironic, considering that union officials are pressing to eliminate secret ballots over whether to unionize in favor of the coercive "card check" process, where employees are often pressured individually.

Unfortunately, the secret ballot election process is not without fault either. If 1,000 employees vote overall, and 501 vote to unionize, the other 499 must accept unwanted union "representation" over their wages and working conditions, and in 28 states pay dues or be fired. Such tyranny of the majority has no place over such fundamental choices as the Right to Work in a country that prides itself on individual freedom to choose.