A better fix for the union organizing rules.

The law, lawyers, and the court.
April 16 2009 6:57 AM

Card Check 2.0

A better fix for union organizing than the Employee Free Choice Act.

(Continued from Page 1)

The first alternative to card check would borrow from the model of early voting in U.S. political elections. Increasingly, in states across the country, voters cast their ballot by mail, or they go to a polling place and cast a ballot in the weeks leading up to election day. In the last presidential election, about one-third of all votes nationally were cast through some kind of early voting.

Early voting is easy to translate to the union election process. Union organizers and supportive employees would be entitled, as they are under the proposed card check law, to visit employees and make the case for unionization. The union would then give the National Labor Relations Board (or some neutral third-party established for this purpose) a list of the relevant employees. The NLRB would set up a polling place, where employees could make their decision at any time during the drive, and it would set up a confidential mail-in procedure. Just as is the case under current NLRA law, the rules would prohibit union organizers from interfering with employees while they're making their choices. The NLRB would keep a running tally, and if the union won the support of 50 percent of the prospective bargaining unit (or perhaps a higher percentage if the union wanted some cushion), the NLRB would inform the union that it was entitled to demand recognition from the employer.

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My second approach borrows the successful, but seldom touted, voting technology used in union elections for airlines and railroads. Employees get a confidential voter identification number and then vote in their homes by either phone or the Internet. Union organizers, co-workers, and employer representatives are all prohibited from interfering while votes are being cast. If they don't follow the rules, the election results are overturned.

It would be easy to adapt these technologies to union drives in other industries. The organizing process would be the same as in my first proposal. And again, the NLRB would keep a running tally, and if the union won the support of half the workers, it would be entitled to demand recognition from the employer.

At the end of the process for either of the alternatives I've outlined, employers could raise challenges: They could argue that people voted who shouldn't be included in the bargaining unit, or they could argue that the union interfered. But the challenges would be heard after, rather than before, the votes were tallied, to avoid the unnecessary delays that currently plague organizing drives.

There are undoubtedly objections to my versions of card check 2.0. No decision-making system is perfect. But unlike the current version of the Employee Free Choice Act, both of my alternatives address the biggest fears of business and labor. Workers will be able to choose whether they want a union more freely than they can now, and with more confidentiality than card check allows.

Benjamin Sachs is an assistant professor of law at Harvard, where he teaches labor law. He is the author of a forthcoming law review article on employee choice.

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