Manhattan Moment
Manhattan Moment: Card Check is still alive and deadly for workers
By: James R. Copland
Manhattan Moment Contributor
April 8, 2009
In an encouraging turnabout, Sen. Arlen Specter, R-PA, announced March 24 that he would oppose the so-called Employee Free Choice Act, also known as Card Check.
Specter had previously been the lone Republican to support cloture, a vote to end debate on the bill in the upper chamber, which would effectively have ensured Card Check’s passage, given the Democrats’ wide majority.
Earlier this week, Sen. Blanche Lincoln, D-AR, announced her opposition to Card Check, a development some believe means the proposal cannot win approval in the Senate. But in fact Card Check is still very much alive in Congress and may yet become the law of the land.
Card Check is organized labor’s top legislative priority. The union movement, having seen the forces of global competition and economic change drive its membership down from around 35 percent of the private sector workforce in the 1950s to less than 8 percent today, views the bill as the best hope for reviving its flagging fortunes.
The bill would radically reshape American labor law, which has remained relatively untouched since 1947. The bill’s main provision would enable labor organizers to form a union if they got a majority of workers to sign a card in support.
The secret ballot, which has always protected workers from intimidation by employers and union heavies alike, would go the way of the dodo. Ironically, many of the same Democrats who are pushing for card check in the U.S. have previously extolled the virtues of the secret ballot to foreign leaders.
While this provision is the best-known part of Card Check and has rightly been subject to intense scrutiny, it is actually less dangerous than the bill’s other major legal shift, which calls for compulsory arbitration of labor disputes.
Under a terse provision, Card Check would effectively place all labor contracts – and potentially hosts of business decisions – under the thumb of political apparatchiks in the U.S. Department of Labor.
The bill specifies that if management and labor were unable to agree to a contract after 120 days, the government’s arbitrators would step in and mandate labor terms under “contracts” that would be binding for two years.
A breakdown in negotiations would be a near certainty unless management succumbed to all union demands, given the looming arbitration mandate. The arbitrators’ decision would be final, with no possibility for judicial review.
Card Check places no limits on the Labor Department’s discretion, so nothing prevents the mandates drawn up by arbitrators from deviating far and wide: Business might be barred from outsourcing processes or from merging with other companies, and they might be compelled to support “community” groups or meet “green” targets. The difficulties in government involvement in business decisions, made obvious in the financial- and auto-industry bailouts, would be magnified throughout the private economy.
Lest one think that the Democrats backing Card Check are favorably disposed to arbitration in general, realize that another of their top legislative priorities – at the behest of a different special interest, the trial lawyers – is to gut the Federal Arbitration Act to prevent consumer arbitration.
The same legislative leaders, then, are supporting legal changes that would prohibit businesses and consumers from agreeing to arbitrate their disputes but would require businesses and labor to submit to arbitrators’ decisions.
At a time in which unemployment is up to 8.5 percent, it would seem unfathomable that Congress would pass a bill certain to destroy jobs. But that possibility is very real. Notwithstanding the Specter and Lincoln decisions, considering Card Check dead for good would be the equivalent of presuming the Halloween movies’ Michael Myers to have perished from a single stab or gunshot.
If Al Franken is seated in the Senate once the disputed Minnesota recount is resolved, the Democrats will only be two votes shy of the 60 votes they need to defeat a filibuster. So while business leaders can breathe easier today, Card Check still looms large over our economic recovery.
James R. Copland is the director of the Center for Legal Policy at the Manhattan Institute.
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