February 26 2009

Card Check: Bad for Women, African-Americans and Plain Undemocratic

President & CEO, Independent Women's Forum
Before the National Black Chamber of Commerce
The National Press Club, Washington, DC
February 25, 2009
(Remarks As Prepared for Delivery)

Thank you for that kind introduction. I am a lawyer by training and before I became president of the Independent Women's Forum, much of my focus was on the international arena.

In fact, some of my first work at IWF was with Iraqi women. We were working to train them so that they could help educate their families and communities about the foundations of democracy. One of the fundamental principles-which we emphasized to those Iraqi women and which the U.S. government and American nonprofit organizations from across the political spectrum espouse throughout the world-is the need for elections to be held using a secret ballot. After all, we all know that for people to be truly able to vote based on their conscience, they must be assured that their vote will be made in private, and remain private, so they do not have to fear retaliation regardless of the outcome of the election.

This is democracy 101, we tell the world. That's why it shocks me that we are now having a debate about whether or not we need to keep secret ballots here in the United States.

Of course, we aren't having that debate about secret ballots when it comes to elections for our federal, state and local governments. I can't imagine that there is any elected official in our country who would suggest such a thing. It is universally accepted that on decisions of such importance privacy must be protected. Yet this should make it even more surprising that so many of those same elected representatives, themselves elected using a secret ballot, are today proposing that we eliminate secret ballots when it comes to union elections.

And let's make no mistake. That is exactly what the misnamed "Employee Free Choice Act" would do.

I want to talk a bit today specifically about how women and minority groups would be particularly affected by this legislation and I think it's helpful to start with the story of a particular woman, who has seen firsthand the tug-of-war between union bosses who want to eliminate secret ballots and workers who want to maintain their rights.

Karen Mayhew of Portland, Oregon, is a healthcare employee at Kaiser Permanente. She didn't want to be part of a union. Yet she and her colleagues were pressured by union officials, from the Service Employees International Union, who were conducting a "card check" campaign.
Current federal law requires a government-monitored election before any company can be forced to recognize a union, but Kaiser decided to accept the signed cards without holding an election. Mayhew complained to the National Labor Relations Board (NLRB) and won a settlement requiring a secret-ballot election before Kaiser could recognize any union.

Karen's experience should remind us that when we are talking about union intimidation, we aren't talking about some theoretical wrong. We already know that this actually happens.

As Karen described: "Throughout this whole ordeal, my colleagues and I were subjected to badgering and immense peer pressure. Some of us even received phone calls at home."
She said further: "I believe this abuse was directed towards me at the request of the union in an effort to intimidate me and have me back down...union abuses of a wide variety are the rule in 'card check' campaigns, not the exception."

And indeed Karen is not alone in complaining of intimidation and coercion. While organized labor claims that companies intimidate outspoken labor activists, the National Labor Relations Board finds few cases of retaliatory firings. Real intimidation comes from union activists, who routinely pressure workers to sign up. Organizers often deceive employees as well, saying that the cards are only requests for information.

Consider another example of another female worker. Housekeeper Faith Jetter filed a claim against the Hotel Employees and Restaurant Employees Union. In her court declaration she detailed union harassment: calls to her home, intense pressure to sign the card and organizers seeking personal information about her. She also maintains that union organizers misled her and other employees about what they were signing.

She explained: "If this union was going to come into the workplace, I would absolutely want to have a secret ballot election so that me [sic] and my fellow employees could vote our consciences in private, without being pressured by the union representative. I would also want to hear all sides of the story, not just the union's side."

Unions don't want employees to hear both sides, because too often for their liking, when employees do hear both sides, they vote against the union.

Today, unions must collect signed cards from at least 30 percent of workers, and then a secret-ballot election is usually held. But Big Labor typically loses if it only collects the minimum number of cards, so union operatives rarely call for an election unless they get far more than a majority of cards. Even then, they lose nearly half of the votes.

That's because most employees don't believe that unions serve their interests. Workers increasingly recognize that cooperation rather than confrontation between employers and employees is necessary to increase productivity and flexibility. High-cost, antiquated work rules have damaged America's manufacturing industries. A new approach is necessary to succeed in today's global economy.

Consider what we have witnessed in the auto manufacturing arena. Sure, union bosses were able to negotiate generous healthcare packages for workers. Yet they have driven those companies into the ground. Now we see massive layoffs and huge companies teetering on the edge of bankruptcy. How are those workers better off when a large part of their entire industry is now in jeopardy?

Union bosses today are frustrated. The proportion of workers who belong to unions peaked in the 1950s. Today just 12 percent of the American workforce is unionized. Only among government employees are unions growing.

Since unions have a difficult time selling workers that their interests will be better served by having unions negotiate on their behalf, union bosses have to find other ways to convince employees to support unionization. And that's why some resort to the kind of intimidation that Karen and her colleagues at Kaiser Permanente faced.

In the past, union officials have argued that acts of violence committed by union members during labor disputes are protected under the U.S. constitution as free speech. A loophole that exists to this day in the 1946 federal Hobbs Act actually gives credence to this profoundly thuggish argument. Despite the fact that the Hobbs Act was meant to stop violence related to labor disputes, the U.S. Supreme Court has held that the act does not apply to efforts aimed at achieving "legitimate union objectives." This means that unions are now exempted from federal extortion law. Union officials may threaten, intimidate and harass.

Imagine how much worse this would become if unions knew that all they had to do to create a union was to browbeat enough employees to publicly sign a union card?

Women would likely be particularly vulnerable to workplace intimidation. There's the obvious: women are physically weaker than men. We are actually more vulnerable when it comes to physical intimidation. It may make some who like to pretend there are no differences between men and women uncomfortable to talk about such things, but all you have to do is picture a couple of union bosses approaching a female employee and you know that there is something different than if they were approaching a man.

But it's more than just a physical threat. Women are also more likely to be financially vulnerable than men. Women on average make less money than men. Women tend to have less seniority. Many working women are supporting children, either as a vital part of their families' total earnings, or on their own, as their children's sole provider.

How does a single mom- working hard to raise her kids, pay her rent or mortgage, save for college and save for retirement-feel when a union official asks her to sign a card check? Perhaps she will sincerely believe that she will be better off as a union worker. But maybe not. Maybe she is among those who want a more dynamic flexible work force and to be able to discuss her specific needs and compensation package with her boss on her own.

That's a decision for that woman to make. Yet if there is someone standing in the room-I don't care if it is the union boss or her actual boss-she isn't going to be able to make that decision freely. She is going to be worrying about her job security. She is going to be thinking about what would happen to her family if she were fired or pushed aside because of the decision she made about this election.

That's not democracy.

There are many on the political left who think I paint a ridiculous picture. They think that unions are there specifically to represent the little guy from "corporate power." But the real history of unions, and the true picture of unions today, are much more complicated. In many ways, unions are intent on protecting and advancing a privileged minority at the expense of the general public.
Consider the Davis-Bacon Act, which was passed in 1934, to require construction firms contracting for the federal government to pay their workers "locally prevailing wages." Unions were very supportive of the bill, for obvious reasons, since it makes sure that union shops can't be underbid by competitors with workers willing to work for less. Lawmakers who supported the bill were explicit that one of the effects of this bill would be to keep lower-skilled African-American workers out of federal construction projects.

Harry Alford, president of the National Black Chamber of Commerce, testified before Congress in 1999 about how the Davis-Bacon Act continues to negatively impact the African-American community. As Mr. Alford stated:

"The exclusivity effect of Davis-Bacon requirements encourages the construction trades to continue its activity of discrimination against African-American labor. Locally, regionally and nationally, construction trades under-represent the African-American population. Go to any city or look at any major project and you will find a great disparity against African-American labor."
He highlighted the perverse outcomes that this law has created: the City of Detroit, a city 77 percent black, built a new football stadium and major league baseball park, making a huge investment in construction and infrastructure. Yet because these projects were "union only," less than 15 percent of those working on the job were African-American.

Black leaders also may have a particular appreciation for the need for a secret ballot given the history of intimidation and unfair voting practices that plagued so much of our nation just a few decades ago. Rev. Al Sharpton, hardly a typical ally of corporations and the community that is represented before you today on this panel, himself expressed concern about the loss of the secret ballot that would occur as a result of this legislation. He said: "Why wouldn't those of us who support workers being protected, why would we not want their privacy protected. I mean why would we want them opened up to this kind of possible coercion?"

The answer for the unions is likely very simple. They want more members. They want more dues and they want more political power.

The political power that they are able to wield is already paying off for their workers. Consider that President Obama already repealed Executive Order 13202, which prohibited federal agencies and those using federal funding from requiring contractors to sign union-only project labor agreements. As the government begins its massive spending binge the pressure to use "union only" labor will be great.

This is bad news for many. It is bad news for more than four out of five construction workers who aren't in a union. It is bad news for blacks, Hispanics, and other minority groups that are less likely to be union workers.

And it is bad news for American taxpayers. Forcing the government to contract with union-only firms drives up the cost of any project as much as 10 or 20 percent. Can the government afford to be this wasteful in today's economy? Perhaps the government no longer cares about controlling costs, but taxpayers should. And if unions are able to artificially drive up their membership numbers by using card check, their political power will increase and they will be able to impose more of such costs on all of us.

The costs that greater unionization are likely to impose on the workforce-driving up labor costs, reducing the number of job opportunities, raising prices for consumers-will affect everyone, but not everyone equally. Women and minorities are likely to be disproportionately affected. Women and minorities are more likely to be poor, which means they will be most affected as prices rise. They also are more likely to have lower skills or be looking for that first job that might just be priced out of the marketplace as union rules drive up the cost of employment.

Yet these economic effects are not really what should be the primary focus of this debate. This debate isn't about economic theory and it isn't even about the effects of greater unionization. No one here would dispute the right of workers to unionize.

This is about democracy. This is a debate about the most basic rights that we enjoy as Americans and indeed that we argue and tell the rest of the world are a part of fundamental human rights: the right to a secret ballot in an election.

Really, how can there be a debate at all?

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