Briefing Report: Card Check Unionization

Changing the Rules when the Rules Become an Obstacle
Wednesday, March 23, 2011

"This version (of card check) is truly an attack on the farm employees' rights," said Barry Bedwell, president of the Fresno-based California Grape & Tree Fruit League. "It's undemocratic and probably un-American."

Introduction

On March 9, 2011, the Senate Labor Committee heard SB 104 (Steinberg), which was supported by Democrats and opposed by Republicans. The following week, the Senate Appropriations Committee also passed this bill on a party-line vote. SB 104 currently resides on the Senate Floor.

Practically speaking, this measure would end secret ballot elections in farmworker unionization drives. In place of the secret ballot election, SB 104 would establish an alternative process that would allow unionization by an undemocratic process commonly referred to as "card check," which is highly susceptible to intimidation, fraud and abuse. This process, which is described by proponents as "majority sign up," would allow for the unionization of farm workers if a majority sign representation cards indicating their desire for union representation. SB 104 is being sponsored by the United Farmworkers of America (UFW) and is supported by a broad coalition of labor unions. Given that the UFW is supposed to represent the interests of farmworkers, it may seem strange that it would be sponsoring a bill that will take away the fundamental right of farmworkers to vote for or against unionization in secret and create the potential for harassment, intimidation and abuse. It may seem even stranger considering the fact that ballot secrecy has been a fundamental part of union organizing efforts since the National Labor Relations Act (NLRA) was amended to provide workers the right to private ballots following widespread employer intimidation of workers during organizing drives in the 1930s and 1940s. This briefing report seeks to understand and explain SB 104 and the "card check" process and to examine why unions want to eliminate a process that is based upon a fundamental democratic principle and protective of worker rights.

Current Farm Worker Protections

SB 104 is unnecessary. The current provisions of the Agricultural Labor Relations Act (ALRA) are sufficient to guarantee and protect the rights of agricultural employees, employers and unions. Enacted in 1975 during Jerry Brown's first term as California's Governor, with the support of labor organizations and several agricultural employer groups, the ALRA was intended to be (and has been described as) one of the nation's most progressive labor laws. The ALRA was patterned after the NLRA, which covers employer and employee relations in the area of unionization and collective bargaining for most sectors of the economy, excluding the agricultural industry and the public sector. Still, the ALRA, as amended, and its regulations, have unique provisions its supporters believed were necessary to protect farm workers' rights to choose or refrain from having a collective bargaining representative.

Some of those unique provisions include a prohibition on voluntary recognition of unions by employers, secret-ballot elections to be the sole means of choosing representatives, access by union organizers to a farmer's private property, a controversial "make-whole" remedy imposed upon farmers who have bargained in bad faith and, most recently, a mandatory interest-arbitration provision to ensure the implementation of a labor contract. Further protecting employee organizational rights is the ability of the Agricultural Labor Relations Board (ALRB) to compel an employer to bargain with a union where the employer's pervasive and outrageous conduct during an organizational campaign has undermined employee support for the union (as evidenced by union-authorization cards) and precludes the holding of a fair and free election.

So, Why "Card Check?"

Although SB 104 is specific to California agricultural workers, it has national implications and is part of a national effort to make is easier for unions to unionize workers in all sectors of the economy. The most recent national effort, dubiously called the "Employee Free Choice Act," was never sent to President Obama, despite the fact that Democrats controlled both houses of Congress in 2009-10. And it is safe to assume that it will never see the light of day in the Republican-controlled House.

The reason that unions, especially private sector unions, are looking for ways to make unionization easier is to stave off further decline in private sector union membership.1 It is important to note that because public sector unions are not regulated under the NRLA, they are not prohibited from unionizing via "card check." This is, at least partially why public sector unions continue to grow their membership while private sector union membership continues to decline.2 In January 2006, UNITE HERE president Bruce Raynor reported that 90 percent of the new members his union obtained over the previous year had been gathered through "alternative means" that avoided elections supervised by the government. The AFL-CIO's organizing director told The Wall Street Journal in August 2005 that at least three times as many workers were unionized through the "card check" method as through traditional secret ballot elections in 2004.3

There are a number of reasons for the constant decline in private sector unions over the past 60 years.4 At the top of the list of reasons is most certainly the fact that when given the opportunity to vote for unionization in the secrecy of a voting booth, increasing numbers of employees are saying, "no thanks." While supporters of "card check" argue that employer intimidation is the reason that unions are not winning a higher percentage of elections, the fact is that they are not winning as many elections as they would like nationally because they have not been able to prove their value to employees5. In the California agricultural industry, unions have been unable to articulate a reasonable answer to the question presented to farm workers which is "what do I get for my 2% union dues?"6

SB 104, Its Predecessors and an Unfair Advantage to Union Organizers

SB 104 is the fifth attempt by unions in California to pass some version of "card check" since 2007. The four prior attempts, SB 180 (Migden) in 2007, AB 2386 (Nunez) in 2008, SB 789 (Steinberg) in 2009 and SB 1474 (Steinberg) in 2010 were all unanimously opposed by legislative Republicans and vetoed by Governor Schwarzenegger. Like its predecessors, SB 104 contains a number of provisions beyond "card check" which provide an unfair advantage to union organizers. First, it will allow the use of the "majority signup" process proposed to certify a union, but will not permit the same process to decertify a union. Second, it mandates a draconian maximum penalty of $10,000 a day against employers failing to timely and completely respond to an election petition. Third, it creates a huge disparity in the remedies provided for unfair labor practices committed by an employer compared to those for unfair labor practices committed by a union. An employer charged with interfering, coercing, or discriminating against an employee in the exercise of his/her rights to unionize, will be subject to a statutory civil penalty of up to $20,000 per violation, and SB 104 requires the Board to give that case priority treatment. No such penalties are provided for unions committing unfair labor practice charges (current law provides essentially the same penalty for both unions and employers committing unfair labor practices).

Obviously, the purpose of these provisions is to make it difficult to employers to make the case against unionization.

What's Wrong with SB 104 and "Card Check?"

In addition to what has already been written above, there are a number of other things wrong with "card check," and SB 104.

First, it contravenes the sacred democratic right of voting secrecy. By forcing an employer to recognize a farm workers' union through the undemocratic "card check" process, farm workers are deprived of the right to a secret ballot which is a fundamental tenet of effective democracy. Without the protection of a secret ballot, there are no effective means to ensure free choice in the voting process.

Second, it provides for state sanctioned fear, intimidation and coercion in organizing tactics. The "card check" process for union organization is ripe with opportunities for union organizers to coerce, intimidate and threaten workers into joining the union. Under this process, union organizers can approach employees at home, at work, in the grocery store, on the baseball field, etc. and ask them in person to sign a card representing their vote for the union. SB 104 allows a union organizer to fill in everything on the card but the signature line. Because these representatives know how the employee voted, the employee would be more susceptible to intimidation, coercion and threats of retaliation.7

Third, it is an invitation to fraud. Under SB 104, cards can be signed and kept for up to a year in advance of being handed over to the ALRB. Additionally, the identities of union supporters and opponents are kept secret from the employer but not from union organizers. There is no procedure for verification of the authenticity of a signature on a card. The employer is required to provide the names of employees and the ALRB will check to see if the name on a card is the same as the name on a payroll record, but there is no way to check whether it was actually John Doe who signed the card bearing his name. Beyond the possibility of fraud perpetrated by a union, the ALRB could commit fraud or make a mistake that the employer and employees would not have an opportunity to correct.

Finally, SB 104 unfairly removes the opportunity for employers to present their case against the unions, as it would deprive employees of the chance to hear and consider other viewpoints on unionization. Such a vigorous dialogue is necessary in a democratic society in order for workers to make fully informed decisions that will directly affect their livelihoods.

Conclusion

Under California law, in order to force a union election, union organizers must collect enough cards to represent a majority of workers in a company. Once enough signed cards are collected, workers are granted the right to vote in secret as to whether they want to be represented by a union. As mentioned above, the secret ballot election was implemented at the behest of the unions to protect workers from employer intimidation and harassment. While it was advantageous to the union, it was ultimately about protecting the rights of workers. It is ironic then that unions, which are supposed to exist to protect workers, are now leading the charge to dismantle this fundamental protection.

 

For more information on this report or other Labor issues , contact Cory Botts, Senate Republican Office of Policy at 916/651-1501.

1 According to the Bureau of Labor Statistics, in 2010, the union membership rate--the percent of wage and salary workers who were members of a union--was 11.9 percent (7.1 million members in the private sector and 7.6 million in the public sector) down from 12.3 percent a year earlier.

2 According to the Bureau of Labor Statistics, in 2010, union membership rate for public sector workers (36.2 percent) was substantially higher than the rate for private sector workers (6.9 percent).

3 http://www.unionfacts.com/cardcheck/shiftingStrategies.cfm

4 It has been estimated that in the 1950 union membership amounted to almost a third of the U.S. workforce.

5 Statistics from the NLRB show that in its fiscal year 2005, 94 percent of representation elections were conducted within 56 days, with unions winning 61 percent of certification elections. And while the number of representation elections (including certification and decertification attempts) decreased by 19 percent between 1996 and 2005, the number of elections resulting in union certification actually increased by 2 percent.

6 According to testimony in 2006 joint legislative hearing from Antonio Barbosa of the ALRB, from 1975 to 2006, the board has held 1,280 elections and issued certifications as either a union win or union loss in 1,071 cases. Between 2000 and 2007, the ALRB has issued 48 certifications, with 29 elections resulting in a plurality for a particular union and 19 resulting in a plurality for "no union".

7 According to a March 1, 2007 LA Times Editorial in opposition to a similar bill in Congress, "Supporters of unionization shouldn't be able to pressure unwilling or hesitant employees to join a union. And you don't have to be a critic of unions to recognize that the card check system invites such abuses."