House Democrats will vote Thursday on legislation that amounts to a wish list for unions but waters down one measure labor leaders have wanted for years: card check.
Card check, which would make labor organizing far easier by effectively removing secret ballot elections, was a goal of Democrats during the Obama administration and was a top priority for unions. Yet the Democratic legislation teed up for this week, the Protecting the Right to Organize Act, doesn’t include it.
The PRO Act does include changes to union election rules, but they don’t go quite as far. “Yes, it isn’t as broad as a card check provision. It is remedial,” said Wilma Liebman, the former chairwoman of the National Labor Relations Board during the Obama administration who is currently an adjunct professor at the New York University School of Law. The NLRB is the federal agency that monitors union elections.
Card check critics counter that Democrats have resorted to backdoor means to advance the idea. “This provision, combined with language that hands over employees’ personal information to union bosses, will subject workers to increased harassment and intimidation from union organizers,” said a Republican aide for the Education and Labor Committee.
The Employee Free Choice Act, the Democrats’ main card check bill in 2009 and subsequent years, would have stripped employers of the right to request a federally monitored election in the case that a union demanded recognition.
Ordinarily, unions present employers with cards signed by workers when they demand recognition. Employers then have the option of accepting the union’s claim or requesting that the NLRB hold an election to verify that the workers do want a union. If the union wins the election, it gets recognition.
Card check, instead, would have made recognition automatic when the union presented the cards, hence the name. Critics allege that card check would leave no way to tell whether the cards’ signatures were forged or whether the workers didn’t understand what they were signing.
Despite a heavy push for this in Congress by unions in Obama’s second term, Democratic leaders at the time never brought card check up for a vote. A strong pushback from the business community lead by the Chamber of Commerce over several years is credited with stalling the legislation. Opposing card check was one of the business community’s top issues during Obama’s second term.
The PRO Act contains numerous provisions that will likely ensure it is not taken up by the Republican-led Senate, such as rolling back “right to work” laws in 27 states. The Democrats’ claimed intent in including them is to promote the ideas in the legislature. There would therefore seemingly be no downside to the Democrats including card check language in the PRO Act as well. A spokesman for Education and Labor Chairman Bobby Scott, a Virginia Democrat and author of the PRO Act, did not respond to a request for comment.
The PRO Act does include language that would allow the NLRB to nullify a workplace election and grant a union recognition at its discretion if an employer is found guilty of a workplace violation during the election. But that would require having an election first, whereas card check would circumvent elections entirely.
That’s close enough to card check, said Ryan Young, senior fellow for the Competitive Enterprise Institute, since it means that unions could in theory be granted recognition even if it is unclear whether they would have won an election. “The PRO Act shifts the burden of proof onto the employer for proving they didn’t interfere in an election,” Young said. “Currently, it’s innocent until proven guilty. The PRO Act would reverse that.”
The PRO Act rules would encourage unions to try to game the system by pushing for recognition if they feel the current NLRB is sympathetic, Young said. The board’s majority is nominated by the president and as a result typically moves along with the current administration.
