This is an exciting new development. Up until now CEOs, union-busters, and particularly conservative Republicans, have actively opposed the Employee Free Choice Act, mainly because of a provision they call “card check.” But card check provides exactly what they now say that they want – a determination made by the majority of all of those qualified to participate. So, clearly, since they’re so upset by the end of supermajority rule for airline and railroad workers, they’d be happy if Congress intervened and instituted it for all workers by passing the Employee Free Choice Act.
For a little over 70 years, the NMB, which governs collective bargaining by airline and railroad workers, mandated supermajorities. When a group of workers, let’s say Delta Airline Flight Attendants, sought the right to collectively bargain for better wages and working conditions, the NMB conducted an election in which it counted those who voted yes as supporting the proposal; those who voted no as opposing, and all those who didn’t vote as opposing.
The NMB arbitrarily placed the non-voters in the “no” ballot box. To win an election, the NMB required collective bargaining supporters to receive votes from a majority of all those eligible – those who voted combined with those whose ballots the NMB inexplicably stuffed in the “no” box after they did not vote.
Compounding that supermajority obstacle was the NMB practice of permitting employers to determine who was eligible to vote, then excusing them from providing that list to workers seeking collective bargaining. This created an incentive for employers to “accidently” include the names of workers who’d quit or retired -- ineligible voters whose inability to cast ballots created automatic “no” votes. Writing about losing an election in 2008, Delta flight attendant Linda Sorenson said airline officials released its list after the balloting. Among other problems, it included the name of a deceased worker. Sorenson wrote:
“The company acknowledged her death, but the NMB – whose . . . chair had been a Northwest (airline) lobbyist – refused to remove her. She became a vote against representation.”
Airline and railroad workers found the supermajority rule confounding in what is supposed to be a democratic system. Writing the NMB to request the rule change, Jamin B. Raskin, a law professor at American University’s Washington College of Law, noted that the U.S. Supreme Court ruled in 1937 that a supermajority is not required, partly because established democratic practice is:
“Those who do not participate ‘are presumed to assent to the expressed will of the majority of those voting.’”
The NMB ignored the Supreme Court and continued requiring a supermajority – until Monday. Then it joined the National Labor Relations Board, which complied with the Supreme Court decision and allowed majority-rule elections for the vast majority of U.S. workers whose collective bargaining rights it governs.
The minute the NMB proposed the change to majority-rule elections last fall, anti-worker-rights groups started pitching a fit. Union-busting law firm Winston & Strawn wrote, for example, that the NMB should not change a rule that had been in effect for nearly 75 years. It contended that elections for workers should be different from elections for political candidates and referendums:
“The change would enable unions to obtain representation simply by winning a majority of votes cast, as opposed to a majority of all employees eligible to vote on the issue . . . Under the proposed new rule, a minority of workers could effectively select a union representative on behalf of a much larger potential bargaining unit.”
Conservative Republican Sen. Johnny Isakson of Georgia agreed, protesting in a news release that Monday’s decision gave workers the same rights as all others in a democratic system:
“The final rule change, which was issued today, would affect companies under the jurisdiction of the Railway Labor Act by allowing union elections to be decided by only a majority of workers who cast ballots, reducing the number of votes it takes for a union to win.”
The solution to Isakson’s complaint is passage of the Employee Free Choice Act. That legislation would require consent of a majority of eligible workers for the awarding of collective bargaining rights.
Under the Employee Free Choice Act, workers seeking collective bargaining rights would collect signatures among their co-workers. If more than half of all eligible workers signed cards in support, the NLRB or NMB would recognize the workers as having the right to collectively bargain with the employer for the benefit of all of the workers.
This process would guarantee that a majority of all eligible workers supported collective bargaining before it could occur. It is a process that was routinely used to secure collective bargaining rights in the early days of union organizing in this country. It gives anti-worker-rights groups such as Winston & Strawn exactly what they’re demanding – a supermajority.
The process is not an election. But with secret balloting, requiring a supermajority is undemocratic. No one can be compelled to vote in a democratic system. And counting those who don’t vote as supporters of collective bargaining is just as logical as tallying them as unanimously opposed.
The solution provided in the Employee Free Choice Act is elegant and historically valid. It’s great that Isakson and his fellow conservative Republicans in the U.S. Senate now back the supermajority concept that the Employee Free Choice Act achieves through “card check.”