The National Labor Relations Board’s attack on the secret ballot

Peter Schaumber Contributor
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The recent lawsuits filed by the National Labor Relations Board (NLRB) against Arizona and South Dakota are an attack by the federal government on states that adopt laws that are consistent with federal law but inconsistent with the views of the current NLRB political leadership. With the exception of its lone Republican, Brian Hayes, the board’s political appointees seek to promote the interests of organized labor without regard to legitimate managerial interests, as amply demonstrated by the recently filed complaint against Boeing, but also without regard to employee rights.

The issue is whether elections should be decided by secret ballot or by card check. In 2009 and 2010, voters in Arizona and South Dakota overwhelmingly adopted state constitutional amendments “guaranteeing” a secret ballot election when a question of union representation in the workplace arises and federal law permits or requires elections.

Federal law is no different. The National Labor Relations Act established the secret ballot election as the preferred method for determining employee free choice. Although the act has been interpreted to permit voluntary recognition by card check, the results of a secret ballot election are certified by the board; the results of a card check are not. Certification prevents rival unions or employees from challenging the results of the secret ballot for one year.

Current federal law guarantees a secret ballot election to both employers and employees. An employer does not have to acquiesce to a union’s demand (or its employees’ request) for recognition based on a card check; the employer can demand a secret ballot election. Similarly, if an employer voluntarily recognizes a union based on a showing of majority support by cards, its employees are given 45 days to demand a secret ballot election challenging the union’s majority claim.

Unions prefer card check, however, for two main reasons. First, card check is less costly. Second, unions are more successful at securing an employee’s signature on a card than they are in earning the employee’s vote when it is cast in secret. The reasons are not hard to find. A card check subjects an employee’s vote to the scrutiny of third parties, peer pressure from fellow employees, and even coercion. Unions collect cards over time, often in secret and without the knowledge of the employer, and open workplace debate on the issue of unionization. A secret ballot election takes place after a campaign participated in by the union, the employees and the employer; it reflects employee sentiment, educated by the campaign’s debate, at one point in time.

For these reasons, the Supreme Court and circuit courts have consistently cited the secret ballot election as the “the most satisfactory — indeed the preferred method” for ascertaining whether a union has majority support.

The current Democratic majority on the board and the agency’s acting general counsel are unabashed union advocates. They turn a blind eye to the impact of card check on employee free choice. Because card check favors the interests of organized labor, they want to promote card check as the equivalent to the secret ballot election and use their power to chill citizen expression to the contrary.

The lawsuits filed by the board against Arizona and South Dakota also pave the way for the board to strip employees of their right to challenge their employers’ recognition of a union by card check. In August 2010, the board asked for written argument on this issue. The board majority is undoubtedly prepared to take this step without regard to employee rights and in the face of its own statistics showing that unions lose approximately 25% of the elections demanded by employees after their employers’ recognition of a union based on cards.

The board is demonstrating unquestionable bias

The chairman of the House Education and Workforce Committee, Rep. John Kline, in a letter to the board’s chairman, described recent board actions as “unquestionably biased.” If you were inclined to dismiss Chairman Kline’s description as partisan Republican rhetoric, consider the following.

First, the board’s complaints concede that even if the state constitutional amendments “support the NLRA’s guarantee of a secret ballot election,” they are unlawful because they create a parallel enforcement mechanism. But the ink is hardly dry on the amendments, no enforcement actions have been threatened and it is highly speculative that they ever will be.

Second, while Board Chairman Wilma Liebman voted to instigate these state lawsuits, she voted against authorizing the board to file an amicus brief against a California statute that favored organized labor by requiring state contractors to remain neutral during a union organizing campaign.

Third, Chairman Liebman, together with her two Democrat board colleagues, gave effect last August to a clearly pre-empted New York statute that required New York contractors to remain neutral during a union organizing campaign despite uncontradicted evidence that the law inhibited the employer’s ability to convey its views on the unionization to its employees.

Fourth, the board has taken no action with regard to an Oregon statute that prohibits mandatory employer meetings with employees to discuss unionization despite it being plainly inconsistent with existing law.

Congress contemplated a board of “impartial government employees” to protect employee rights under the National Labor Relations Act while balancing the legitimate interests of organized labor and management. Much has happened since the original National Labor Relations Act was passed in 1935. The current board’s extreme bias in favor of the narrow interests of organized labor — demonstrated in these recently filed state lawsuits — undermines its credibility with the American people and its future effectiveness in fostering balanced, productive labor-management relations in the private sector of our economy.

Peter Schaumber is the former chairman of the National Labor Relations Board (NLRB).