Obama’s lawyers seek electronic card check as alternative to congressional approval

Kevin Mooney Kevin is a journalist and investigative reporter for the Commonwealth Foundation in Harrisburg, Pennsylvania, and the Heritage Foundation in Washington D.C.
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Free market organizations that are now mobilized against the possibility of a repackaged version of “card check” legislation should remain mindful of administrative actions that could enshrine union favors without congressional approval. With mid-term elections looming, union bosses who spent millions to elect a Democratic president and congress are going for broke to secure transformative policy changes that could reinvigorate their membership rolls.

The key player here is National Labor Relations Board (NLRB), which sent out an official request for electronic voting services in June that could be used in union organizing elections. The idea here is to institute electoral rule changes consistent with labor union demands that have thus far failed to muster sufficient support on Capitol Hill. What could not be achieved in a straight about and down vote in no less than Democratic controlled congress could still become a reality through the use of remote technology.

Under the card check scheme included as part of the Employee Free Choice Act (EFCA), the National Labor Relations Board (NLRB) would be required to certify a union without a secret ballot election once labor representatives obtained signatures from 51 percent of a company’s workforce. In practice, this means workers would no longer have the opportunity to debate the merits of a particular union and to cast their votes in private. Moreover, union bosses would be in control of the cards and would know who signed for and against representation.

Fortunately, the public became privy to the anti-democratic features of “card check” before it could advance on Capitol Hill thanks to a well-organized and aggressive communications strategy organized through the Chamber of Commerce, National Right to Work, the Workforce Fairness Institute and other proponents of private industry. Opinion polls have consistently shown that most Americans are strongly opposed to the idea of replacing the secret ballot in union organizing elections.

Even so, Sen. Tom Harkin (D-Iowa), EFCA’s lead sponsor in the upper chamber, and House Speaker Nancy Pelosi (D-Calif.) have suggested over the past few weeks that they may be able to force the bill through during the lame duck session. In response, WFI has launched a new interactive web site that will enable constituents to instantaneously connect with members of congress and other grassroots activists. Still, without the support of Sen. Blanche Lincoln (D-Ark.), an outspoken opponent of card check, it is difficult to see where Democratic leaders can muster the 60 votes needed in the U.S. Senate. Organized labor suffered a significant setback in June when Lincoln prevailed over their preferred candidate in her party’s primary.

On the surface, it would seem union bosses have lost out despite all the political advantage they have enjoyed for the past two years. After funneling over $66 million in Political Action Committee (PAC) funds to congressional candidates in the 2008 election cycle (with 92 percent of those donations going to Democrats), labor has received paltry legislative returns on their investments. As a general rule, coercive anti-democratic measures do not normally prevail on the merits when they are pursued through democratic means. The pursuit of an electronic card check system aimed against the use of secret ballots has become the fallback position for Obama administration lawyers who now occupy positions on the NLRB.

In a letter addressed to board members, the National Right to Work (NRTW) Legal Defense Foundation argued that the board could not field enough agents to properly monitor electronic voting. Moreover, union organizers would be free to pressure workers into voting on Blackberries, laptops and notebooks in full view without privacy, the letter suggested.

“There isn’t much difference going door to door with the card you want workers to sign and going door to door with a PDA or a lap top and getting them to submit that way – it’s difficult to determine what the contours of an electronic voting scheme would look like in this stage, it looks like the NLRB is just putting out feelers,” Will Collins, deputy communications director with the NTRW explained in an interview.

“It’s very easy to imagine how a remote voting scheme that relies on portable electronics can be abused particularly in an era where everyone is walking around with cell phones and lap tops that connect to the Internet immediately. That’s why we are very opposed to the idea of remote voting when it comes to unionization elections. Ideally they should all be conducted with a secret ballot.”

Craig Becker, a recess-appointee to the NLRB board who previously served as legal counsel to The Service Employees International Union (SEIU) and the AFL-CIO, has made it clear in his academic writings that he supports the implementation of major policy changes without congressional consent. NRTW has asked the NLRB’s inspector general to investigate Becker for possible conflicts of interest in cases that involve its Legal Defense Foundation and SEIU local affiliates. He has already been cleared in one case and answered the Foundation’s objections himself in a recent NLRB decision. Becker has thus far denied 12 of 13 motions filed by parties represented by the NRTW Legal Defense Foundation concerning his affiliation with the SEIU and AFL-CIO.

Business groups that have successfully lobbied against card check on Capitol Hill should know that Becker and other Obama lawyers will remain strongly positioned to advance electronic voting schemes as a substitute for the EFCA bill regardless how the November elections turn out.

“Electronic voting could be the first step to card check,” Vinnie Vernuccio, a Labor Policy Counsel with the Competitive Enterprise Institute (CEI) said in an interview.  The push for electronic voting is yet another example of how Big Labor and the Obama administration are operating in tandem to circumvent the legislative process through regulation, he added.

“What is extremely troubling is the board was only seeking vendor comments,” said Vernuccio, who previously served in the Bush administration Labor Department. “Usually the first step to a change in policy is to put a request for information on a regulation, not simply asking contractors how they would implement it. The typical request for information allows the public to comment on whether the change is a good idea or not. The electronic voting request for information only asked vendors to submit how they would implement the change, not if it was a good idea.”

Kevin Mooney is an investigative journalist and reporter in Washington, D.C.