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As the acting solicitor of labor, I oversee enforcement of more than 180 labor and employment laws, including those that protect the safety and health, wages and hours, and retirement security of American workers. The Department of Labor also defends certain rights of rank-and-file union members. Regulations regarding officer elections within private-sector unions — written pursuant to the Labor-Management Reporting and Disclosure Act of 1959 — make the Labor Department responsible for “safeguarding democratic processes.” Secret ballots are used to protect “the right of a member to vote for and otherwise support the candidates of his choice without being subject to penalty, discipline, or improper interference or reprisal of any kind by the labor organization conducting the election or any officer or member thereof.” We take this responsibility seriously. At any given time, the department has approximately 35 pending cases that deal with purported union election violations, with a number of those specifically dealing with secret-ballot requirements. While the Labor Department supervises internal union elections, a sister agency, the National Labor Relations Board, enforces the laws governing union organizing in the private sector. Under current law, the NLRB supervises the secret-ballot elections in which workers choose whether to be represented by a union. The NLRB also investigates and prosecutes unlawful activities by employers and unions seeking to influence workers’ decisions on whether to form a union. Once a union is certified, the NLRB ensures that unions and employers bargain in good faith, but it does not write the terms of the contract or force either party to agree to any particular terms. A bill now before Congress would dramatically alter the rules for American workers. H.R. 800, also called the Employee Free Choice Act, recently passed the House of Representatives and has been sent to the Senate. The provisions that raise special concerns for me involve a process known as “card check” and the binding arbitration of contract terms. JUST SIGN HERE The card-check provision would allow unions to achieve mandatory recognition for a bargaining unit if 50 percent of the workers plus one additional worker sign authorization cards. The other 49 percent of workers would not necessarily be allowed to participate in the decision to form a union, because there would not be a formal election. In fact, because union organizers may select whom they approach to sign cards, those other workers might not even be aware that an organizing campaign is under way. Opponents of the legislation have noted that under a card-check system, a worker might feel coerced into signing cards. Union organizers would be free to show up anywhere — including at the worker’s home — to get a signature. And there is no dispute that card check publicly reveals a worker’s choice, which may subject him to retribution by disgruntled employers or union organizers. On the other side, card-check supporters argue that the Employee Free Choice Act is necessary to remedy alleged discrimination against employees seeking to unionize. They claim that the bill would allow workers to “freely” choose a union without coercion by employers. Supporters also note that card checks are already permissible methods of organizing in certain instances — when employers agree. I am convinced that the general substitution of card check for secret ballots, as called for by H.R. 800, would inherently lead to worker coercion. But don’t just take my word for it. Card check as envisioned by the current bill was actually tried prior to 1947. Because of widespread coercion of workers, the National Labor Relations Act was amended in 1947 to eliminate the general use of card check. The House report on the 1947 amendments to the NLRA states: “For the last 14 years, as a result of labor laws ill-conceived and disastrously executed, the American workingman has been deprived of his dignity as an individual. He has been cajoled, coerced, intimidated, and on many occasions beaten up. . . . He has been forced to join labor organizations against his will. At other times when he desired to join a particular labor organization he has been prevented from doing so and forced to join another one.” A later conference report similarly noted that a prime purpose of American labor law “is to give employees full freedom to choose or not choose representatives for collective bargaining.” AN �UNRELIABLE METHOD’ Here’s how the U.S. Court of Appeals for the 4th Circuit summarized the problem of card checks in NLRB v. S.S. Logan Packing Co. (1967): “It would be difficult to imagine a more unreliable method of ascertaining the real wishes of employees than a �card check,’ unless it were an employer’s request for an open show of hands. The one is no more reliable than the other. No thoughtful person has attributed reliability to such card checks. This, the [NLRB] has fully recognized. So has the AFL-CIO. . . . Overwhelming majorities of cards may indicate the probable outcome of an election, but it is no more than an indication, and close card majorities prove nothing.” In fact, the U.S. Supreme Court noted in NLRB v. Gissel Packing Co. (1969) that there was no dispute “that secret elections are generally the most satisfactory — indeed the preferred — method of ascertaining whether a union has majority support.” In 1983, the 7th Circuit expressed its concerns with card check in NLRB v. Village IX Inc.: “[B]y itself [a card majority] has little significance. Workers sometimes sign union authorization cards not because they intend to vote for the union in the election but to avoid offending the person who asks them to sign, often a fellow worker, or simply to get the person off their back, since signing commits the worker to nothing.” The 7th Circuit also discussed several studies on card checks: “[E]ven where the union had authorization cards from between 50 and 70 percent of the employees, it won only 48 percent of the elections. . . . Another study found that 18 percent of those signing authorization cards did not want union representation at the time they signed.” The NLRB itself has noted as recently as 2001 in Levitz Furniture Co. that even unions say that “elections are the preferred means of establishing whether a union has the support of a majority of the employees in a bargaining unit.” As you can see, past Congresses, the courts, and the NLRB have all generally supported the primacy of the secret ballot in determining whether workers desire to join a union. Even the supporters of the current legislation have advocated for the use of secret ballots. The AFL-CIO in 2001 supported the primacy of secret-ballot elections for Mexican workers in a filing. And a number of the co-sponsors of H.R. 800 wrote directly to the Mexican government on Aug. 29, 2001: “[W]e feel that the secret ballot is absolutely necessary in order to ensure workers are not intimidated into voting for a union they may otherwise not choose.” CONTRACT BY UNCLE SAM? My second concern involves the fact that under the bill, if a union and an employer have not agreed to contract terms after 120 days of negotiations, a government arbitrator would be empowered to step in and write a binding two-year contract for the parties. As the Supreme Court has long recognized, this is not the way that contracts should be reached. More than three decades ago, the Court, in H.K. Porter Co. v. NLRB (1970), wrote that our labor laws are not intended to force parties to reach agreement but only to ensure that they bargain in good faith: “The object of [the NLRA] was not to allow governmental regulation of the terms and conditions of employment, but rather to ensure that employers and their employees could work together to establish mutually satisfactory conditions. The basic theme of the Act was that through collective bargaining the passions, arguments, and struggles of prior years would be channeled into constructive, open discussions leading, it was hoped, to mutual agreement. But it was recognized from the beginning that agreement might in some cases be impossible, and it was never intended that the Government would in such cases step in, become a party to the negotiations and impose its own views of a desirable settlement.” The Court reiterated in Litton Financial Printing Division v. NLRB (1991) that a central statutory principle of the NLRA was consensual, not compulsory, arbitration: “No obligation to arbitrate a labor dispute arises solely by operation of law. The law compels a party to submit his grievance to arbitration only if he has contracted to do so.” The proposed legislation, however, would transform the government’s role from encouraging collective bargaining to mandating that the parties reach agreement at an early stage, or else the government will set the contract terms for them. It is disappointing that 241 members of the House of Representatives have supported legislation that would take away secret ballots from workers and impose binding arbitration on their contracts. In the past, all three branches of government have agreed that workers are entitled to a secret ballot in choosing whether they are represented by a union. Just as the secret ballot protects voters in elections for public officials and union officers, I believe that the secret ballot for organizing elections ensures that workers will not be subject to reprisal from peers — or employers — for voting as they wish. I also believe that, by negotiating together, employers and workers — through a union representative chosen by secret ballot if they so desire — are better equipped to make decisions about working conditions than are government arbitrators.
Jonathan L. Snare is the acting solicitor at the U.S. Department of Labor.

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