Constitutional amendment proposed to combat new union bill

Card-check. It’s a term that describes a process in which employees in a company can sign authorization forms that show whether or not they would like to be organized in a union, and allow collective bargaining with the employer. The process vastly simplifies process and in the words of Investor’s Business Daily, “make[s] union organizing radically easier.”

A bill called the Employee Free Choice Act, introduced for the third time in Congress, seeks to make this process the primary method in getting a union recognized. The idea is that if a majority of employees wish to be a part of a union, the National Labor Relations Board has to recognize the particular union as the official bargaining representative for the employees. If the company and the union cannot come up with a contract in 120 days, a federally-appointed mediator comes in and imposes a ruling from which there cannot be an appeal.

Rep. Eric Bedingfield is trying to head off the bill through state legislation, proposing a constitutional amendment that would ensure the vote on representation would be by secret ballot, instead of the more open card-check method.

“Let’s face facts here — 1.9 million South Carolinians went to the poll and voted by secret ballot in November. Imagine what it would have been like if your neighbor, or your county councilman, or legislator, or pastor would have been able to go into the poll with you watched how you voted,” he said. “It stands beyond reason that we wouldn’t protect the fact that an individual has the right to vote by secret ballot, no matter what he votes for.”

The last time EFCA came up, in 2007, it passed the House and had significant support in the Senate, but failed because of a Republican-led filibuster. The thought is that this year Democrats will be able to obtain the 60 votes necessary to pass the bill without a filibuster. President-elect Barack Obama has already stated his support for the legislation.

“I fully understand that South Carolina is a right-to-work state,” Bedingfield said. “I’m not trying to take a position on whether unions are good or bad. What this boils down to, for me, is simply the fact that small business would be greatly affected, because they don’t have the infrastructure, the staff, or the resources to fairly present their case in a union organizing drive. Without the constitutional amendment, businesses as small as 10 employees could be targeted by labor unions.”

Common belief among opponents of the bill is that it permanently eliminates the possibility of a secret ballot, which is not entirely accurate. What it does is eliminate the chance for an employer to call for a secret ballot. Employees would have the right to choose either card check or the secret ballot option.

Right now, both sides of the debate are gearing up for a fight. The AFL-CIO estimates that the bill’s opponents are putting together a campaign in excess of $20 million, while the pro-union organization American Rights at Work is footing the $3 million bill for a nationwide TV ad buy.

Whether the EFCA has a chance this year is up in the air. If the senators who supported it in 2007 stick with the legislation, it will likely pass. However, recent news reports have said that moderate Democrats like Sen. Mark Warner and Sen. Blanche Lincoln, who depend on independents and Republicans to be elected, could be on the fence.

If EFCA and Bedingfield’s constitutional amendment both pass, it would set up a classic issue between federal and state law.

“In a lot of cases, federal law does preempt state law, but that is not always the case,” Bedingfield said. “Federal law does not automatically trump state constitutional guarantees, if the law in Congress does not specifically preempt the state. The relevant constitutional standard in preemption cases is whether or not Congress intended to fully occupy the area of law to the exclusion of the state.”

He continued, “The National Labor Relations Act generally does beat state law. However, the Supreme Court has ruled that state law may prevail if it safeguards important interests and does not disrupt the federal regulatory scheme. There is some precedent to believe that our constitutional changes could stand up to federal law.”

For the constitutional amendment to pass, it would have to be approved by a two-thirds vote in both chambers of the General Assembly and be approved by a majority of S.C. voters.