Card Check Would End Secret Union Ballot

APRIL 4, 2011


On March 31, Cesar Chavez Day, the California Senate passed SB 104 to eliminate secret ballot elections for farm workers voting on unionization.

After a 24-14 party-line vote, Senate President Pro Tem Darrell Steinberg, D-Sacramento, ceremoniously marched with farm workers across the Capitol rotunda to the Assembly and presented the bill to Assembly Speaker John Perez, D-Los Angeles. The Assembly will consider the bill this week.

Lawmakers claimed the bill, authored by Steinberg, would make it easier for California farm workers to unionize because employer influence would be lessened.

Opponents of “card check” say it would take away numerous rights and protections currently afforded to workers at companies and businesses where unions are actively seeking to organize.

And individual employee votes can be have been made public to the employer, co-workers, and the union organizers. However, should Brown sign SB 104, secret-ballot elections would be replaced with the “card check” system, which would allows a union to organize if a majority of employees simply sign a card. The card is then made public to the employer, the union organizers and co-workers.

Under a card-check system, workers face intimidation from the union, management or both.

Outside of public-employee unions, in the private sector labor unions have been declining in membership in California and in the rest of the country. Many say that encouraging union activity and membership should occur because workers need the representation. But adulterating the election process is coming under a great deal of scrutiny, because undermining the secret-ballot process will send the wrong message to new or growing businesses that could create jobs.

What is left out of most stories of the Steinberg bill is that the cards can be signed up to one year in advance before ever being used. The bill’s language reads, “A representation card remains valid for 12 months after it is signed by an agricultural employee.”

And, there is no rigorous check on the employment of the card signer, leaving a potential hole in the authenticity of the election.

Different Year, Different Governor

Supporters of SB 104 are counting on this bill to be enthusiastically received by Democratic Gov. Jerry Brown. That would be unlike the reaction from former Republican Governor Arnold Schwarzenegger, who vetoed similar bills.

However, despite Schwarzenegger’s vetoes, he appointed to the Agricultural Labor Relations Board (ALRB) Sen. Carol Migden, author of one of those bills, SB 180.

The California Manufactures and Technology Association has warned about the consequences of national attempts at card check:

Card check could end decades of precedent established under the National Labor Relations Act of 1935 by taking away employees’ freedom to choose under a federally supervised, private ballot election when deciding whether or not to join a union.

The current union procedures provides for a secret ballot election process for agricultural workers. After signatures are collected, union organizers then petition the Agricultural Labor Relations Board to hold a secret ballot election. If the labor union receives more than 50 percent of the vote in a secret ballot election, the union is certified and collective bargaining must begin.

According to the Senate analysis (bold emphasis added):

This bill Creates an alternative procedure to the secret ballot election, the majority signup election, which would allow employees of a collective bargaining unit to select their representative for collective bargaining by submitting a petition….

In determining the validity of the signatures on the cards, the bill reads:

In making this determination, the board shall compare the names on the representation cards submitted by the labor organization to the names on the list of currently employed employees provided by the employer. The board shall ignore discrepancies between the employee’s name listed on the representation card and the employee’s name on the employer’s list if the preponderance of the evidence, such as the employee’s address and the name of the employee’s foreman or forewoman, shows that the employee who signed the card is the same person as the employee on the employer’s list.

The bill also states:

A labor organization may fill out all of the information contained in a representation card, except for the employee’s signature. (7)  A representation card remains valid for 12 months after it is signed by an agricultural employee.”

$20,000 Fine

And, Steinberg’s bill only penalizes the employer with a $20,000 fine should misconduct be found. But union misconduct results in no penalty and no fine:

If the board finds that an employer has willfully or repeatedly committed an unfair labor practice… while employees of the employer were seeking representation by a labor organization or after a labor organization was designated as a representative…, the board may, in addition to any order permitted by this section, impose a civil penalty of up to twenty thousand dollars ($20,000) for each violation.

When asked why his bill had no provision for fines and penalties for union misconduct, Steinberg said that most misconduct is by employers preventing farm workers from unionizing.

“The characterization of this bill as an alternative to the secret ballot is an illusion,” said Barry Bedwell, president of the California Grape and Tree Fruit League. He added that the bill unfairly imposes hefty penalties against employers for potential intimidation, “but has no mention in it about intimidation from the unions.”

Bedwell said that if legislators were really interested in addressing intimidation, “why isn’t current law addressing intimidation, instead of taking away the right of the secret ballot?” 
Bedwell added after the hearing that his association was concerned that passage of the bill would be “a wholesale license for union intimidation.” Bedwell said secret ballots are the only way to protect an individual’s freedom to choose without subtle or overt coercion.

Last August, Governor Schwarzenegger vetoed SB1121, a bill that would have given farm workers overtime for working more than eight hours in one day and more than forty hours in one week. “In order to remain competitive against other states that do not have such wage requirements, businesses will simply avoid paying overtime,” Schwarzenegger said.

Growers opposed the bill because of the potential for harming the crop and food production process by imposing the more strict overtime requirements. With growing seasons often unpredictable and compressed, farmers and growers have said they need the flexibility to be able to schedule workers around production.

Currently, California farm workers earn overtime after 10 hours in one day and 60 hours in one week. Federal law however, does not require employers to pay farm workers any overtime at all.

The Steinberg bill has the support of more than 20 unions and labor organizations, including the California Labor Federation, the Teamsters, the United Nurses Association and the AFL-CIO. Opposition to the bill has come primarily from farm and agricultural growers’ associations.

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