Critics say NLRB pursuing card check outside legislative process

The Republican victories last November dashed organized labor’s hopes of Congress passing the Employee Free Choice Ace (EFCA), especially its card check provision, which would effectively eliminate the secret ballot in union organizing elections.

However, what the Obama administration could not get through Congress, it now aims to do via regulation.

Obama appointees to the National Labor Relations Board (NLRB) already have taken steps to push a pro-card check agenda. The latest occurred last Thursday, when NLRB General Counsel Lafe Solomon threatened to sue four states that recently amended their constitutions to guarantee workers the right to a secret ballot in union elections.

Voters in Arizona, South Carolina, South Dakota and Utah recently passed Secret Ballot Protection Acts, all with at least a 20 percent margin. The language in each state measure differs, but each guarantees workers the right to a secret ballot in employee representation elections.

The NLRB asserted that a provision in federal law preempts the state acts. In a letter, Solomon gave the states the option of calling the laws unconstitutional and allowing for a judicial order calling the amendments illegal “to conserve state and federal resources.” If the states fail to comply, Solomon threatened, “I intend to initiate [a] lawsuit.”

Solomon’s threat drew harsh criticism in the targeted states. Utah Attorney General Mark Shurtleff said he was ready to take the NLRB to court, asserting, “If they want to sue, my attitude is, bring it on, because we think card-check violates federal constitution protections.”

A spokesman for South Carolina Attorney General Alan Wilson said, “South Carolina voters spoke overwhelmingly to ensure that their ballot votes are kept between them and their Maker — not to be influenced by union bosses.”

Clint Bolick, litigation director at Arizona’s Goldwater Institute and a primary drafter of the ballot language for all four state measures, vowed to fight the NLRB. “The Obama administration has declared war on the right to a secret ballot, which voters in four states overwhelmingly acted to protect,” said Bolick. “Though any battle over federal preemption is a difficult one, the administration will have one heck of a fight on its hands.”

Solomon’s letter comes on the heels of the NLRB decision to hear a case that could overturn decades of legal precedent. The NLRB recently announced it would consider Roundy’s v. Milwaukee Building and Construction Trades, AFL-CIO, a case concerning union access to employer property.

Currently employers can decide who can gain access to their property. For example, a business owner can allow a charity access to solicit donations but can stop a union from holding a protest or trying to organize workers. This is because the charity is engaged in a neutral activity while the union’s action could be seen as hostile to the employer. The Obama NLRB likely will change this to allow unions full access if an employer grants admission to any charity.

Business groups have described the issue as unions vs. the Girl Scouts. Brett McMahon of Halt the Assault and a small business owner commented, “If this new request by union leaders is allowed to become law, its effect will be for many business operators like myself to have no choice but to close doors to any outside groups. … Sorry, Girl Scouts. Sorry, Boy Scouts. Sorry, Red Cross. And the local soup kitchen.”

Finally, last June, the NLRB asked vendors to submit proposals on how they would conduct electronic remote voting (E-voting.) The NLRB’s request highlighted the need for a “proven solution that supports mail, telephone, web-based and/or on-site electronic voting; that includes the necessary safeguards to ensure the accuracy, secrecy, observability, transparency, integrity, accountability, and auditability of Agency-conducted elections.”

Opponents denounced the idea as card check by other means. National Right to Work Foundation President Mark Mix warned, “[M]uch like card check organizing, electronic voting leaves the door open to coercion and identity theft, and will be used by aggressive union organizers to impose forced unionism on more workers.”

The American Hospital Association wrote a letter to the NLRB cautioning,“expanding the use of off-site elections – which could be conducted in employees’ homes or in union halls – dramatically increases the risk of union coercion of employees.” Some argue it would be relatively easy for a union organizer with a laptop or some other mobile electronic device to look over an individual’s shoulder to pressure him to vote for union representation.

The NLRB is also considering expedited elections. Obama NLRB appointee Mark Pearce told students at the Suffolk University Law School that the board should make the time getting to an election “as brief as possible.” Specifically, Pearce cited the system used in Canada where employees could vote in only five to ten days.

Critics call the shortened period ambush elections, since the majority of the time union organizers have months to convince workers to vote their way while employers are only told of the election when the union files the request for it with the NLRB.