Card Check and Union Coercion

50 years of experience in Ontario. Zero cases.

Employer interests have already declared their intention to go nuclear on the Employee Free Choice Act, which would allow unions to be certified if a majority of workers sign a card that they want a union. If it’s too easy to form a union, then of course that would make it hard for them to intimidate workers into not joining, or firing the ones that still want to.

Their tactic is to claim that card check would result in union intimidation. It’s superficially plausible: maybe workers could be intimidated by union toughs (played by Sylvester Stallone in elevator shoes) into signing the cards against their will.

There are lots of reasons to think that this argument is bogus, but no one in the debate has mentioned the most important fact about it: we have evidence about the employers’ claim, and the evidence says that they are dead wrong.

For 50 years, from the 40’s to the 90’s. the province of Ontario had a card-check organizing system, until a right-wing government killed it. (Labour law goes province-by-province in Canada). So what was the record there?

I used advanced research techniques unknown to many reporters, and called up Harry Arthurs of York University, Canada’s pre-eminent labour law scholar. Arthurs literally wrote the book on this stuff. And I asked him: what does the evidence show?

Arthurs answered that in all of his research about labour law complaints under card check, he could not find a single case where the employer complained of a union intimidating workers to unionize when they didn’t want to.

That’s right: zero. Zilch. Nada. Efes. Rien.

Arthurs did find two cases complaining of union intimidation in the card check process: but they were both in cases where two unions were competing against one another, i.e. both the Teamsters and SEIU were trying to organize a particular plant. That’s it.

This isn’t some obscure jurisdiction. It’s Ontario, the largest and richest province in the country. 50 years. A half a century. Zero.

If you think about it for a moment, it becomes clearer why this is so. Employers will have their ears to the ground to find out about such things, and if they have a credible claim, they will be able to call for a secret ballot decertification election. And the workers who are intimidated will take their revenge then. It’s just not in the union’s interest to do it.

Employers don’t hate card check because they despise coercion. And they don’t hate it because they are committed to union “democracy.” They hate it because they want to bust unions. It’s pretty much that simple.

Author: Jonathan Zasloff

Jonathan Zasloff teaches Torts, Land Use, Environmental Law, Comparative Urban Planning Law, Legal History, and Public Policy Clinic - Land Use, the Environment and Local Government. He grew up and still lives in the San Fernando Valley, about which he remains immensely proud (to the mystification of his friends and colleagues). After graduating from Yale Law School, and while clerking for a federal appeals court judge in Boston, he decided to return to Los Angeles shortly after the January 1994 Northridge earthquake, reasoning that he would gladly risk tremors in order to avoid the average New England wind chill temperature of negative 55 degrees. Professor Zasloff has a keen interest in world politics; he holds a PhD in the history of American foreign policy from Harvard and an M.Phil. in International Relations from Cambridge University. Much of his recent work concerns the influence of lawyers and legalism in US external relations, and has published articles on these subjects in the New York University Law Review and the Yale Law Journal. More generally, his recent interests focus on the response of public institutions to social problems, and the role of ideology in framing policy responses. Professor Zasloff has long been active in state and local politics and policy. He recently co-authored an article discussing the relationship of Proposition 13 (California's landmark tax limitation initiative) and school finance reform, and served for several years as a senior policy advisor to the Speaker of California Assembly. His practice background reflects these interests: for two years, he represented welfare recipients attempting to obtain child care benefits and microbusinesses in low income areas. He then practiced for two more years at one of Los Angeles' leading public interest environmental and land use firms, challenging poorly planned development and working to expand the network of the city's urban park system. He currently serves as a member of the boards of the Santa Monica Mountains Conservancy (a state agency charged with purchasing and protecting open space), the Los Angeles Center for Law and Justice (the leading legal service firm for low-income clients in east Los Angeles), and Friends of Israel's Environment. Professor Zasloff's other major activity consists in explaining the Triangle Offense to his very patient wife, Kathy.