The Secret Ballot Protection Act & What the Right is Missing with the Card-Check Scam

Sometimes people can’t see the forest through the trees and, while pointing this out among allies during a war being waged by union bosses on the American workplace gives no great pleasure, a gentle prodding is necessary. Here it is: We need to move past the hyperbole of card check.


Once the new Congress is sworn in, card check will not happen legislatively for at least another two years, period. And, more importantly, there is a way to end the entire card-check argument once and for all by garnering support for and passage of the Secret Ballot Protection Act [let the union-bought Democrats oppose secret ballots openly and publicly]. In the meantime, there are more imperative issues to deal with that are undermining workers’ rights and jobs, while fattening union bosses’ wallets.

Card-check is bad and, if it ever does become law (which is not likely), it will destroy jobs—mostly in small and medium-sized companies. But, here’s the scoop: Card-check has always been a red herring for union bosses to use, as it was only one component of the delusionally-dubbed Employee Free Choice Act.

People often forget that unions (and the Left) will begin negotiations as far to the extreme as possible because, when the other side moves to compromise (usually by abandoning its principles), it will be closer to what the unions (and Left) really want. With EFCA, the real goal was not just to sucker workers into unions via card check, but to lock them into contracts that would extract their dues.

Moreover, card check, though a reprehensible tactic for a myriad of reasons, has always been legal—if an employer chooses to voluntarily recognize a union without workers voting by secret ballot. Card check, though, is a throw-away ploy—a negotiating tactic. This has been hinted at and discussed for well over a year.


And so, as Frank later suggested, a strategic retreat on the most polarizing aspect of EFCA might be an acceptable outcome.

Given that card check probably requires many times more political capital to wedge into the bill than anything else in EFCA, I wouldn’t be surprised to see it abandoned in the final version. And I won’t be joining liberals and progressives in raising cries of betrayal or spinelessness should Democrats wind up settling for only 80 percent. The long game is what matters here.

Politically, one could go further: by accepting that secret ballots are good and valuable and in tune with American ideals, etc., the labor movement would put its opponents on the defensive. It’s hard to see exactly how business groups would counter this move.

So, while unions would love to have card check, with a union-dominated NLRB, they don’t need it when they already win 67% of all elections. And, with the NLRB hinting that it may move to expedited elections and electronic balloting, the union win rate will increase exponentially even without card check.

This brings us to our next point: What good is card check if unions cannot get a contract [which they fail to get nearly 50% of the time for newly unionized workers]?

Unions need workers locked in under contract in order to collect dues money. Ultimately, if they are unable to secure contracts, then there is no point. That is the rub for union bosses and it is one that the former Queen of Labor, SEIU’s Anna Burger, told the SEIU Executive Council back in April in laying out her vision for the future:


Use smart strategies to push the laborfriendly majority on the NLRB to level the playing field and make it easier to organize through regulation and reconciliation to make quick elections and first contract arbitration the law of the land.

You see, for union bosses, the real meat and potatoes issue in EFCA has always been binding arbitration—locking companies and workers into a contract for a minimum two years without any meaningful means of escape. That has always been the the unions’ true goal, having the government dictate private-sector contracts. But, for some, that is less glamorous (and lucrative) to talk about even though it throws both employers’ rights and workers’ rights out the window in a more sinister way than unionization by card check ever could. Like a roach motel, once workers check into the union, due to the obstacles unions and the NLRB place in their path, they rarely check out.

This is why, to those who truly care about workers’ rights, some of you are are missing the boat (or just plain wrong) when writing about last week’s NLRB Dana decision.

The Dana decision issued by the NLRB affirms something that is heinously wrong for workers: It gives unions the ability to negotiate contracts before a union is ever recognized by the employer (card check or not). While the pundits have focused on the card-check aspect of the case, they’ve missed the bigger picture. Unless the case is overturned on appeal, even if card check goes away, the pre-recognition bargaining does not.


You see, by giving unions the right to negotiate “sweetheart deals” before they have been selected by a majority of employees, unions have the ability to trick workers into unionization and lock them into a pre-determined contract, without the employees’ knowledge. And, without card check, what could employers give up for this? Neutrality (which is the promise and practice that the employer will not deter employees from unionizing), as noted here:

At the other end of the continuum, an employer can use the road map of this case to justify dangling a neutrality and cooperation agreement before a labor organization as the reward for agreeing in secret to vital issues in a future collective-bargaining agreement.

Either way, the employees’ rights would be impeded, and labor agreements would, in some key respects, come within the complete control of union leaders and secret deals, extracted often in the context of coercive conduct.

Now, allies, if you really want to help, move off of card check and onto helping to get the Secret Ballot Protection Act passed, which should end the conversation about card check once and for all. This will allow everyone to focus on something more productive—like how union bosses and the Obama administration are really undermining workers’ rights.



“I bring reason to your ears, and, in language as plain as ABC, hold up truth to your eyes.” Thomas Paine, December 23, 1776


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