Card check survives as way to choose a union

If you believed the Wall Street Journal Washington Wire headline or the rhetoric of Arizona’s attorney general, you’d think the right to use card check to select a union as a bargaining representative had been struck down by a U.S. district court. But it always helps a little to read the court’s decision. And having done so, I’m happy to report that the obituary for card check as a way to select a union was premature, at best.

Arizona, goaded by the Koch brothers and anti-union businesses, passed a constitutional amendment declaring that secret ballot elections are the only permissible way to select an employee representative in Arizona. In other words, card check elections are illegal. (“The right to vote by secret ballot for employee representation is fundamental and shall be guaranteed where local, state or federal law permits or requires elections, designations or authorizations for employee representation.”) Federal law protects card check elections, so the National Labor Relations Board sued Arizona in federal court, and the court issued a decision on Wednesday.

The WSJ headline reads “NLRB loses court challenge over secret ballots” and the story reports that “Arizona Attorney General Tom Horne said in a statement that the judge’s decision is a ‘stinging rebuke to an outrageous National Labor Relations Board attack’ on the sanctity of the secret ballot.”

Actually, the NLRB won before the court ever ruled, and Mr. Horne was just blowing smoke and trying to make himself look better than he deserves.

The fact of the matter is that Arizona conceded early in the case that under the National Labor Relations Act, card check is a legal way for employees to choose a union to represent them. Attorney General Horne told the court that the Arizona constitutional amendment should not be read to conflict with federal labor law.

In effect, the court didn’t strike down Arizona’s constitutional amendment because it effectively rewrote it. As reinterpreted, the amendment no longer prohibits card check as a way for employees to choose a union.

WSJ reporter Melanie Trottman actually noted Arizona’s concession, but she buried it deep in the story. So don’t be fooled by headlines: if they can get an employer to agree, workers still have the option of choosing a union via card check, by getting a majority of employees in a bargaining unit to sign authorization cards. What they still don’t have is the right to such a procedure, which the Employee Free Choice Act would provide. As it stands, unfortunately, the choice of card check or a secret ballot election is really the employer’s choice, rather than the employees’.