Although promoted as a bill to protect the right of workers to organize, the potential effect of the Card-Check Bill is to dramatically increase the ranks of union members and increase dues paid by employees to the unions. Why?  

First, the secret election ballots, supervised by the National Labor Relations Board (“NLRB”), would be replaced by union authorization cards signed by employees under unsupervised circumstances.  Under current law, if union organizers obtain authorization cards from at least 30% of the employees in a voting unit, the authorization cards trigger an election based on secret ballot vote by all targeted employees within the election unit.  The election is supervised by a neutral NLRB agent and conducted under rules imposed by the NLRB following an open campaign which recognizes the free speech rights of employers and employees.  Under Card-Check, authorization cards signed by a simple majority, 50% plus one, is enough to certify the union as the bargaining agent for all workers in the unit.  No campaign.  No debate.  No secret ballot election or vote by the remaining employees.  Under the Bill, union organizers know who has refused to sign and who to pressure.  The Bill provides no rules or restrictions on the card signing process and no penalties for union coercion or intimidation in collecting authorization cards, exposing workers to abusive tactics by union organizers paid to recruit workers.  Large people will appear at employees’ doorsteps at dinner time and “ask” for authorization cards to be signed.  They will be signed.

Another significant change in current law requires the company and newly certified union to begin negotiating a collective bargaining agreement within 10 days of certification by Card-Check.  If the union and company fail to reach agreement within 90 days, the parties may request mediation with a federal mediator.  If within an additional 30 days the parties have not reached agreement on contract terms, the mediator is required to refer the parties to a federal arbitration board which will render a binding decision settling the dispute and imposing all terms of employment, including wages, benefits, work hours, and work rules.  This means that unless the company and the union agreed to contract terms under an unrealistic timeframe, a federal arbitrator, who may be totally unfamiliar with the company’s business model or economic constraints, will set binding terms of employment in effect for two years.  Employers have no right to bargain to impasse, as currently provided under the NLRA, and the Card Check Bill provides no vehicle for an employer to appeal the binding arbitration decision, even if its terms are unreasonable, economically infeasible or cripple a company’s ability to compete.  In addition, unlike current law, the Bill provides no process for decertifying a union as the employees’ representative, even where the employees are unhappy with the terms of the agreement.  The effects of this process are ominous for employers faced with demands for participation in under-funded union pension programs.  Withdrawal liability will face those who extricate themselves from these “contracts” in the future.

In addition, the Card-Check Bill amends the NLRA concerning penalties imposed on companies for violations of “organizational rights,” including treble back pay and penalties up to $20,000 for each “violation.”  The NLRB would be obligated to give “priority” over other charges to investigating charges of discrimination or unfair labor practices related to union organizing and to use its authority to seek injunctions against companies to remedy “discriminatory discharges” during an organizational campaign. 

Finally, card check reduces the costs of organizing, which allow for increases in targeting smaller businesses for union organizing.  For example, a union’s organizer can obtain cards signed by 16 employees after visits to their homes that could lead to a federal arbitrator imposing terms of employment on a company employing just 30 workers within months of the union’s organization efforts.

Faced with the prospect of a Card-Check Bill passing in some form during 2009, there are certain preemptive steps that employers can take now to strengthen employer-employee relations:

 Review current policies and procedures to ensure compliance with the state and federal laws, particularly concerning compliance with wage and hour laws, meal and rest break periods, as well as reimbursement of work-related expenses incurred by employees;

 Review employee benefit plan packages, which may be outdated or fail to provide for the flexibility in benefit elections now available under consumer-driven health care plans, such as health reimbursement arrangements, cafeteria plans, and health savings accounts;

 Increase communications with employees, establishing “open-door” policies to address employee grievances and concerns;

 Implement a non-solicitation policy that complies with the law, but restricts union organizers’ ability to solicit employees in the workplace during work hours;

 Educate supervisors and members of management regarding employees’ rights under the NLRA to ensure that the company is not in violation if union organizers initiate a campaign.  Employers may not threaten workers, interrogate them with regard to union activities or their intentions, or attempt to “buy” an employee’s vote