Legislation has been introduced in both chambers of Congress that would deny American workers their rights to a fair election when determining whether those employees want union representation. This legislation would replace secret ballot elections with "card check" elections.
Last summer, the Senate failed to pass the "Employee Free Choice Act,“ or card check bill. The House passed this bill earlier in 2007, but the Senate's action slowed down any momentum for 2008. The debate over the secret ballot election process has already begun this Congress and will continue throughout 2009.
The preferred method for determining whether employees want a union to represent them is a secret ballot election overseen by the National Labor Relations Board (NLRB). The NLRB provides procedures that ensure a fair election, where employees may cast their vote confidentially without peer pressure or coercion from unions or employers. Union leadership now claims that secret ballot elections are an impediment to unionization, preferring "card check" elections, where employees are forced to cast their vote in front of union organizers and fellow employees who support unionization.
In some cases, when it may appear clear that a union enjoys a majority of employees' support, the current law allows employers to waive the secret ballot election requirement and recognize a union that produces signed union authorization cards from more than 50 percent of the employees. Unions have now abused this provision by launching attacks on employers in an effort to pressure them to agree to card elections, even where it's not clear that the union enjoys the support of a majority of the employees.
The history of NLRB case law is now full of examples where card check elections have been challenged on coercion, misrepresentation, forgery, fraud, peer pressure and promised benefits. Unions now use various misrepresentations and coercive tactics by organizers in card check elections, including threats of termination, deportation and loss of 401(k) and health benefits for not signing a card. They also make promises of green cards, termination of supervisors and free gifts for employees who do sign cards.
Currently, under the National Labor Relations Act, employees generally determine whether or not they want a union through a secret ballot election held by the NLRB. To ensure a fair election, the NLRB follows strict procedures, such as having an NLRB agent present to oversee the entire voting process and ensure that neither the employer nor the union can determine how an individual employee votes. Elections are generally held promptly, typically within 60 days of the petition, and contrary to concerns regarding union ability to succeed in secret ballot elections, unions win in more than 50 percent of elections. The law prohibits employers from making threats of reprisal, force or promising benefits that might interfere with an election. Prohibited acts include threats of physical force or loss of job or benefits, or promises of pay raises, promotions or other benefits. If employers engage in this behavior, and their behavior disrupts election conditions, the NLRB may order the employer to bargain with the union even where the union lost the election.
Although unionization in the convenience and petroleum retailing industry is not a major issue, it could become so as the unions begin to set their sights on new venues for membership. The services sector is clearly on their list of objectives, and with more than 1.5 million workers, the convenience and petroleum retailing industry may not be far behind.
NACS is opposed to this legislation and will be fighting for its defeat in both the House and Senate.
Contact your member of Congress and express your views on unionization and the secret ballot process.
The Employee Free Choice Act was introduced on March 10, 2009, in the House and the Senate. Rep. George Miller (D-CA.) is the lead sponsor of H.R. 1409 and Sens. Ted Kennedy (D-MA) and Tom Harkin (D-IA) are the lead sponsors of S. 560.
Sen. Arlen Specter (R-PA), senior Republican on the House Judiciary Committee, announced in March that he would not support the Employee Free Choice Act, therefore giving the bill little chance of obtaining the 60 votes necessary to bring it to the Senate floor for final consideration. Sen. Blanche Lincoln (D-AR) also announced that she would not support the bill.