Kaine on Card Check: It's Complicated

From labor disputes cases to labor and employment publications, for your research, you’ll find solutions on Bloomberg Law®. Protect your clients by developing strategies based on Litigation...

By Chris Opfer

Aug. 12 — Labor groups have largely hailed Hillary Clinton's choice of Tim Kaine as her Democratic running mate, but the Virginia senator's position on one piece of legislation that unions hold dear hasn't always been easy to grasp.

Kaine “strongly supported” previous efforts to undo the requirement that union representation elections be conducted by secret ballot, a Kaine aide told Bloomberg BNA Aug. 11. As Virginia governor, however, he declined to sign a letter circulated by the AFL-CIO in which 16 Democratic state governors urged Congress to pass “card check” legislation that would have done just that.

The Employee Free Choice Act, which would have required employers to bargain with a union if a majority of workers simply signed on in favor of representation, stalled in the Senate in 2007 after House lawmakers passed the measure earlier the same year. Similar legislation ( H.R. 3690, S. 2142)—championed by recent presidential candidate Sen. Bernie Sanders (I-Vt.)—could come up for consideration again if Democrats take the Senate and White House.

It's unclear why Kaine chose not to sign on to the letter, which was sent to Senate leadership shortly before the vote. E-mails among his gubernatorial advisers raised policy and political considerations, including by referencing Kaine's unique position as a Democratic governor in a southern, right-to-work state.

“The answer on Kaine is simple: He's from Virginia and Virginia is not a labor state,” Anthony Carnevale, director of the Georgetown University Center on Education and the Workforce, told Bloomberg BNA Aug. 12. “Now that he's running for vice president, he can be more pro-labor.”

Ballot Bluster

When EFCA landed on the House floor in 2007, the measure brought with it a swirling debate about employee privacy and the role of unions in the modern workplace.

Under current law, workers can demand a secret ballot vote on union representation if at least 30 percent of the employees sign a union authorization card. EFCA would have automatically required an employer to bargain with the union if more than half the workers signed those cards.

The legislation also would have allowed either side to force binding arbitration in the event that a collective bargaining agreement wasn't reached within 90 days.

Card check supporters say EFCA would make the union elections process more fair. They also argue that the measure would discourage employers from harassing and intimidating workers in the early stages of a representation drive.

Employer groups and Republicans say secret ballots allow workers to vote their conscience without succumbing to pressure from labor bosses. They also assert that the arbitration requirement would give unions an incentive to refuse to bargain and let an arbitrator sort it out.

“There's a lot of peer pressure that goes into the signing of a card,” Michael Lotito, co-chair of Littler Mendelson's Workplace Policy Institute, told Bloomberg BNA Aug. 12. “Often times the cards are being signed before an employer even knows that workers are trying to organize and therefore the cards may be signed with only one side of the story being told.”

Right-to-Work Concerns

Georgetown's Carnevale previously served as political and government affairs director for the American Federation of State, County and Municipal Employees. He told Bloomberg BNA the card check policy goes hand in hand with efforts to combat right-to-work laws, which bar labor organizations and employers from agreeing to require workers to pay union dues as a condition of employment.

“I think if people are going enjoy the benefits of a union, which they do, then they’re going to have to pay for it,” Carnevale said. “Right to work often means the right to work for low wages and no benefits.”

The Kaine staffer told Bloomberg BNA that Kaine opposes federal right-to-work legislation. The aide also said Kaine is against efforts to add Virginia's existing right-to-work law to the state constitution.

Mixed Advice

E-mails between the then-governor's advisers show how the debate over signing the letter in favor of EFCA played out among Kaine's staff. The e-mails were made public by the Library of Virginia.

Kaine policy director Brian Shepard at the time noted that the U.S. Chamber of Commerce opposed the legislation, adding that “the 'elections are democratic' argument is a tough one to refute.”

Delacey Skinner, then the governor's communications director, questioned whether it would “really hurt businesses to give unions some flexibility in their organizing practices.”

Chief of staff Wayne Turnage ultimately recommended that Kaine sign the letter. He also passed along an opposing view from counsel Larry Roberts, who said he didn't think Kaine should be the first governor from a southern state to urge Congress to pass the legislation.

“I would like to figure out ways to be helpful, but I'm not convinced doing this would allow us to be helpful down the road if this gathers momentum,” Roberts said.

Roberts, now a partner at Venable, and Skinner, an advertising executive in Washington, D.C., did not respond to Bloomberg BNA's requests for comment. Shepard, who is CEO of the United Network for Organ Sharing, also did not respond to requests for comment.

Turnage, who runs D.C.'s Department of Health Care Finance, declined to comment on the e-mails. A spokeswoman for AFL-CIO's Virginia affiliate, which led the effort to get Kaine's signature on the letter, also declined to comment.

Kaine's advisers noted in the e-mails that Virginia's congressional delegation was divided over the legislation. All of the Virginia Democrats in the House—and Sen. Jim Webb (D)—voted for EFCA, while all of the state's Republicans and Sen. Mark Warner (D) voted against it.

What the advisers didn't mention is where Kaine's possible future boss came down on the measure. Sen. Hillary Clinton (D-N.Y.) cosponsored the legislation.

To contact the reporter on this story: Chris Opfer in Washington at copfer@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com

Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.

Request Labor & Employment on Bloomberg Law