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Washington Report
February 2007
ICCFA Alarmed at Congressional Proposal to End Employee "Secret Ballot" in Labor Union Elections
 By Michael S. Pepperman, Esq., Guest Columnist
An employee's right to a secret-ballot election as a way to determine whether or not to have union representation has long been at the heart of American labor law. However, efforts are currently underway in Congress to curtail this right, making it the most radical change in labor law in the past fifty years. Proposed legislation would strip employees of the democratic rights and protections provided by the secret-ballot election and could cause employers to lose control over what goes on in their own workplace. The bill, misnamed the "Employee Free Choice Act," was introduced in 2005 in both the House (H.R. 1695) by Rep. George Miller (D-CA) and in the Senate (S. 842) by Sen. Edward Kennedy (D-MA). Since all pending bills expired when the 109th Congress adjourned in December, this legislation will likely be re-introduced in the 110th Congress during the next few months. In fact, House Speaker Nancy Pelosi (D-CA) has stated that action would be taken on this bill in early 2007.
Since 1935, employees in the United States have had the right to form or join a union to collectively bargain with their employer under the National Labor Relations Act. To protect employees against undue coercion, typically a union must demonstrate it has the support of a majority of the employees through a democratically-conducted election process, supervised by the National Labor Relations Board. This "secret ballot" process is the same process used in all national and local elections throughout the country.
However, the Employee Free Choice Act seeks to abandon this democratic process and instead focuses more heavily on the "card-check" method of organizing. Specifically, the Act would require employers to recognize a union when a majority of workers sign cards authorizing union representation-replacing the traditional secret ballot vote with a simple collection of employee signatures. The selection of a bargaining representative exclusively through this card check process causes employees not only to lose privacy, but could also subject them to peer pressure, misleading information, and even intimidation. The democratic secret ballot election, governed by strict, time-tested procedures is set up to preclude such interference with employee "free" choice by both unions and employers. Using the card check method also allows union organizers to obtain representation before an employer has the chance to tell their side of the story to the workers.
The changes do not end there. This "anti-election" bill also provides for mandatory mediation and arbitration if the union and employer do not agree on terms of a first collective bargaining agreement after 90 days of bargaining. The mandatory arbitration part of the bill is unprecedented and would result in contract terms (e.g., wages, benefits, etc.) being involuntarily thrust upon employers. The bill further seeks to significantly increase penalties imposed on employers for violations of the National Labor Relations Act during organizing campaigns. If passed, the Employee Free Choice Act would mandate an award of three times the amount of back pay for certain violations that occur during efforts to organize or when workers are seeking a first contract, and provide for penalties up to $20,000 per violation against employers found to have committed other violations of the National Labor Relations Act.
The bottom line is that workers should be free to decide whether they want union representation without experiencing coercion, indoctrination or misinformation. Additionally, employers should be given the opportunity to present their side of the issues and arguments. If enacted, the Employee Free Choice Act would fundamentally change the law, permanently deny employees their right to a secret ballot, and force compulsory arbitration and punitive damages on employers.
Michael S. Pepperman is a member of the firm of Obermayer Rebmann Maxwell & Hippel LLP, Philadelphia, PA, and serves as the ICCFA Special Labor Law Counsel.
Copyright ICCFA 2007
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