06.30.2010 0

Obama Lawyers Pursue Electronic Card Check as Alternative to Legislation

  • On: 07/20/2010 23:25:02
  • In: Big Labor
  • By Kevin Mooney

    After losing out on “card check” legislation, the Obama Administration is now working aggressively through administrative channels to unravel secret ballot safeguards at the direction of organized labor. The key player here is the National Labor Relations Board (NLRB), which sent out an official request for electronic voting services in June that could be used in union organizing elections.

    Under the card check scheme included as part of the Employee Free Choice Act (EFCA), the (NLRB) would be required to certify a union without a secret ballot election once labor representatives obtained signatures from 51 percent of a company’s workforce. In practice, this means workers would no longer have the opportunity to debate the merits of a particular union and to cast their votes in private. Moreover, union bosses would be in control of the cards and would know who signed for and against representation.

    Thanks to a well-coordinated and aggressive communications campaign organized through free market organizations, the public became privy to the anti-democratic features of card check before it could advance through Congress. Polls have consistently shown that over 50 percent of Americans surveyed oppose efforts to replace the use of secret ballots in unionization elections. Moreover, several Democratic Senators, most notably Blanche Lincoln of Arkansas, have signaled that they will not support the bill.

    Unfortunately, the public’s elected representatives may not have the final say where labor policy is concerned. Craig Becker, a recess appointee to the NLRB with strong ties to organized labor, has made it clear that he favors taking administrative action without congressional approval.

    Brett McMahon, a representative with Associated Builders and Contractors (ABC) who is also vice president of Miller & Long, a Maryland-based concrete construction company, suspects that Team Obama is now “going for broke” on behalf of their union benefactors. Electronic voting devices could be used to compromise anonymity and open the way for coercive techniques.

    “You have to be very careful with election records because it means there’s a time and date and it’s possible that you could match who a person is with their vote,” he warned. “We also don’t know how e-voting is going to be monitored. The NLRB could just spring these electronic devices for use in elections without any safeguards.”

    In a letter addressed to NLRB members, the National Right to Work Legal Defense Foundation argued that the board could not field enough agents to properly monitor electronic voting. Moreover, union organizers would be free to pressure workers into voting on Blackberries, laptops and notebooks in full view without privacy, the letter suggested.

    “There isn’t much difference going door to door with the card you want workers to sign and going door to door with a PDA or a lap top and getting them to submit that way — it’s difficult to determine what the contours of an electronic voting scheme would look like in this stage, it looks like the NLRB is just putting out feelers,” Will Collins, deputy communications director with NRTW, said.

    “It’s very easy to imagine how a remote voting scheme that relies on portable electronics can be abused particularly in an era everyone is walking around with cell phones and lap tops that connect to the internet immediately,” Collins continued, “That’s why we are very opposed to the idea of remote voting when it comes to unionization elections. Ideally they should all be conducted with a secret ballot.”

    The board itself has in the past acknowledged certain defects with voting techniques that take place beyond orbit of a secret ballot. This history was discussed in the NRTW Legal Defense Foundation’s letter as follows:

    “All forms of remote electronic or mail voting have the same defects as the card-check process that Congress has declined to adopt by rejecting the misleadingly named ‘Employee Free Choice Act’ (EFCA), defects which the Board itself recognized in Dana Corp.: ‘unlike votes cast in privacy by secret Board election ballots, [remote votes could be] public actions, susceptible to group pressure exerted at the moment of choice’; (2) ‘union [remote voting] solicitation campaigns [could be] accompanied by misinformation or a lack of information about employees’ representational options’; (3) ‘a Board election presents a clear picture of employee voter preference at a single moment,’ while remote voting would “take place over a protracted period of time’ during which ‘employees can and do change their minds about union representation”; and, (4) ‘the Board will invalidate elections affected by improper electioneering tactics, and an employee’s expression of choice is exercised by casting a ballot in private,’ but there ‘are no guarantees of comparable safeguards in [a remote voting] process,” during which Board agents would not be present to see that coercion, intimidation, or misrepresentation has occurred and ballots would not necessarily be cast in private.

    “By permitting mail balloting only ‘where circumstances tend to make it difficult for eligible employees to vote in a manual election or where a manual election, though possible, is impractical or not easily done,’ the Board’s Casehandling Manual, § 11301.2, implicitly acknowledges that mail balloting is less reliable than secret balloting at polling places monitored by Board agents and the parties’ observers.”

    After spending millions of dollars to help elect a Democratic president and Congress, labor bosses have received very little legislative return on their investments. The idea now is to force through anti-democratic measures using anti-democratic means — including executive fiat.

    Kevin Mooney is a contributing editor to ALG News Bureau and the Executive Editor of TimesCheck.com.

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