Posted on November 16, 2009 by EFCAreport

Is Card Check Unconstitutional?

At Findlaw, Cornell Law Professor Michael Dorf asks the question: "Is There a Constitutional Right to Sign a Petition Anonymously?"  Professor Dorf notes the recent decision in Doe #1 v. Reed, wherein the Ninth Circuit held that 100,000 people who signed a petition in Washington state had no constitutional right to protect their identities from becoming known by the general public.  Calling it a "difficult" question, the Professor concludes that it might be more prudent to deal with the matter as a policy issue, noting "a regime of public disclosure of petition signers could have a powerful chilling effect on political participation by people holding unpopular views."

Professor Dorf notes the widespread preference for the secret ballot in public elections, yet observes:

But, of course, widespread or even universal adoption of a practice does not necessarily render that practice constitutionally obligatory. Early votes were not cast anonymously, and if the Court were to say that the First Amendment requires the secret ballot, then that ruling could cast doubt on other electoral systems that use various forms of public voting.

Consider the proposed Employee Free Choice Act, which would permit certification of a union as the representative of workers in a bargaining unit without a secret ballot (although a secret ballot could still be used). Is the proposed Act unconstitutional? And what about corporate governance laws, and other laws that permit or require people to cast their votes or otherwise state their opinions without the protection of anonymity. Are they also unconstitutional?

Perhaps the most dramatic denial of anonymity is that effected by the Sixth Amendment, which—except in extraordinarily rare circumstances—requires crime victims to testify in open court in the face of those who wronged them. A Supreme Court ruling that any reasonable fear of intimidation or harassment triggers a right to anonymity could thus have far-reaching consequences.

An interesting column well worth a read.  And should the Supreme Court take up the Doe petition, its decision would have an impact on the legal challenges that EFCA may face if it passes including a card check provision.

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Posted on February 27, 2009 by EFCAreport

Hawaii State Senate Comitteee Approves State Version of EFCA

Last week, we reported on numerous efforts underway to create state-level obstacles to federal card-check legislation.  On the other side of the issue, yesterday's Pacific Business News reports that a Hawaiian Senate Committee has approved a state version of EFCA:

The controversial union card-check measure, which would allow Hawaii labor unions to more easily organize workers by having them sign authorization cards, is gaining ground having cleared its initial committee hearings in the state Senate.

The Senate Committee on Judiciary and Government Operations on Thursday passed Senate Bill 1621, which essentially removes the use of traditional secret-ballot elections by allowing employees to sign cards indicating they’d like to organize under a labor union. If a majority of a company’s workers sign the cards, the union is automatically recognized and free to bargain with management.

The measure also mandates binding arbitration in collective bargaining and removes private-property rights for business owners if the unions want to picket on sidewalks and near entry ways of their establishments. It also establishes legal immunity for unions in actions relating to collective bargaining.

An initial read of the bill indicates that the Hawaiian EFCA is identical in some respects to the federal bill, but includes more drastic measures as well.  A similar bill passed the Hawaiian legislature last year, but was vetoed by Gov. Linda Lingle (R).

It should be interesting to see whether additional states -- similarly viewed as union-friendly -- introduce or pass similar legislation during the next few months.  It may be that long before EFCA is re-introduced in Congress, we have seen numerous related debates play out regarding state opposition measures, state mini-EFCA's and the Secret Ballot Protection Act (H.R. 1176, S. 478).

More information:

 

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Posted on February 23, 2009 by EFCAreport

More on State Efforts to Ban Card Check Organizing

Last week, we noted the recent introduction of a resolution in Florida to amend the state's Constitution to guarantee the use of secret ballots in the designation of a union representative by employees.  A number of other states have, to date, introduced similar measures -- and one has already passed it.

A quick jaunt around the web reveals the introduction of resolutions seeking to preclude the card-check scheme envisioned by EFCA:  SJR25 in Alabama; Senate Resolution 108 in Georgia; Senate Resolution 1828 in Kansas; Legislative Resolution 10 in Nebraska; House Resolution 3305 in South Carolina; House Joint Resolution 008 in Utah; and Senate Joint Resolution 8214 in Washington.   Some of these resolutions seek to pass State Constitutional amendments, others call for the state's federal legislators to oppose EFCA when re-introduced later this year.

As we indicated in our earlier post, proponents of some of these state measures will ultimately need to establish that federal preemption should not preclude these state efforts to regulate labor issues.  Save Our Secret Ballot, an organization supporting some of these resolutions, asserts at its website:

Although the National Labor Relations Act generally pre-empts state laws, the US Supreme Court has ruled that state law may prevail if it safeguards important interests and does not disrupt the federal regulatory scheme. The US Supreme Court has recognized the right to vote by secret ballot and freedom of association as important interests.

 Professor Jeff Hirsch of Workplace Prof Blog is not convinced:

The NLRB's jurisdiction over representational issues in the private sector is given more deference than anything else the Board does, and NLRA preemption clearly applies.  But the initiative is obviously more about the political battle over EFCA, and I have little doubt that it will not be the last of its kind.

More on this issue:

 

 

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