Employee Secret Ballot Protection Act Exposed

The Employee Secret Ballot Protection Act is listed under ALEC's Commerce, Insurance and Economic Development Task Force. According to ALEC.org, the Act was approved by the ALEC Board of Directors in June, 2008. (Accessed on 7/17/2015).

CMD's Bill Summary

This bill would make it more difficult for unions to get certified to represent a workplace. It prohibits employers and unions from voluntarily agreeing to "card check" or other forms of certification that may be easier and more efficient ways of determining union status. Requiring secret ballots also slows down the process and increases opportunities for management to resist unionization.

Wisconsin Governor Scott Walker included a secret ballot requirement in his "budget repair bill," 2011 Wisconsin Act 10 (in addition to other certification burdens, such as annual recertification and requiring 50% approval of the overall bargaining unit rather than 50% of those who vote).

ALEC Bill Text

Summary

This Act provides that all qualifying union certification efforts in a state must be approved by a majority of collective bargaining unit employees who vote in a secret-ballot process. The state labor official/agency cannot recognize an exclusive bargaining representative without a majority of secret ballots having first been cast in the affirmative for that exclusive bargaining representative. The Act defines the denial of secret-ballot elections as an unfair labor practice. The Act establishes penalties and remedies for violations of the Act’s provisions.

Model Legislation

[Note: If this model language is used in a state that does not allow public-sector collective bargaining, references to government agencies in Sections 3(B), 3(D), and 12(A) should be removed so that these sections are not interpreted to authorize public-sector bargaining.]

{Title, enacting clause, etc.}

Section 1. {Title.}

This Act may be cited as the Employee Secret Ballot Protection Act.

Section 2. {Legislative intent.}

It is hereby declared to be the public policy of the State of [state]:

(A.) That individual freedom of choice in employment-related matters be guarded and maintained;

(B.) That employees have the right to use a secret-ballot election when selecting an exclusive bargaining representative;

(C.) That a secret-ballot election upholds the sanctity of worker free choice;

(D.) That employees be given the opportunity to cast a vote in accordance with their conscience in secret-ballot elections, free from coercion,intimidation, threats, misinformation, or interference from outside influences.

(E.) That a labor organization not be able to pressure an employer to recognize the labor organization as an exclusive bargaining representative based solely on a stated showing of interest by employees without a secret-ballot election; and,

(F.) That an employer not bargain away its employees’ rights to secret-ballot elections for labor representation purposes.

Section 3. {Definitions.}

For the purposes of this Act:

(A.) “Labor organization” means an employee representation committee, organization, or union in which employees participate and which exists for the purpose, in whole or in part, of dealing with an employer concerning employee wages, rates of pay, hours of work, other forms of compensation, grievances, labor disputes, or other conditions of employment.

(B.) “Employer” means any agency, as defined in this Act, or any group or association of employers which is an employer within the meaning of any law of the State of [state] or of the United States, but does not include the United States or any corporation wholly owned by the Government of the United States.

(C.) “Employee” means any individual employed by an employer.

(D.) “Agency” means every governmental subdivision, every district, every public and quasi-public corporation, every public agency and public service corporation, and every town, city, county, city and county and municipal corporation, whether incorporated or not and whether chartered or not, of the State of [state].

(E.) “Secret ballot” means the expression by ballot or voting machine, but in no event by proxy, of a choice with respect to any election or vote taken upon any matter, which is cast in such a manner that the person expressing such choice cannot be identified with the choice expressed.

(F.) “Exclusive bargaining representative” means any labor organization that has been selected or designated by the [state official/agency] pursuant to the provisions of [insert applicable state labor law] as the representative of the employees in an appropriate collective bargaining unit to represent the employees in their employment relations with employers.

(G.) “[State official/agency]” means [insert the official or agency designated to administer this Act].

(H.) “[Court of jurisdiction]” means [insert the court designated as the appropriate court in which to bring actions under this Act].

Section 4. {Employee right to secret ballot.}

(A.) All employees, when seeking to select for themselves an exclusive bargaining representative, have the right to make that selection in a secret-ballot election.

(B.) Any agreement, understanding, or practice, written or oral, implied or expressed, between any labor organization and employer that violates the rights of employees as guaranteed by provisions of this Act is hereby declared to be unlawful, null and void, and of no legal effect. Any strike, picketing, boycott, or other action by a labor organization for the sole purpose of inducing or attempting to induce an employer to enter into any agreement prohibited under this Act is hereby declared to be for an illegal purpose and is a violation of the provisions of this chapter.

Section 5. {Procedures for the [state official/agency].}

(A.) The [state official/agency] shall recognize a labor organization as the exclusive bargaining representative only after a majority of (voting) employees in the collective bargaining unit have indicated their affirmative approval of that recognition through the use of secret ballots in an election.

(B.) The [state official/agency] shall administer the election pursuant to the provisions of [insert applicable state labor law].

Section 6. {Denial of secret-ballot elections deemed an unfair labor practice.}

(A.) It shall be an unfair labor practice by the employer to dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it or to recognize or bargain collectively with a labor organization that has not been selected by a majority of such employees in a secret-ballot election conducted by the [state official/agency] in accordance with [applicable state labor law].

(B.) It shall be an unfair labor practice by the labor organization to cause or attempt to cause an employer to recognize or bargain collectively with a representative of a labor organization that has not been selected by a majority of such employees in a secret-ballot election conducted by the [state official/agency] in accordance with [applicable state labor law].

(C.) Any employee may file an unfair labor practice complaint pursuant to this section with the [state official/agency] in accordance with [existing, applicable state labor law regarding unfair labor practices].

Section 7. {Coercion and intimidation prohibited.}

It shall be unlawful for any person, labor organization, or officer, agent or member thereof, or employer, or officer thereof, by any threatened or actual intimidation of an employee or prospective employee, or an employee’s or prospective employee’s parents, spouse, children, grandchildren, or any other persons residing in the employee’s or prospective employee’s home, or by any damage or threatened damage to an employee’s or prospective employee’s property, to compel or attempt to compel such employee to join, affiliate with, or financially support a labor organization or to refrain from doing so, or otherwise forfeit any rights as guaranteed by provisions of this chapter. It shall also be unlawful to cause or attempt to cause an employee to be denied employment or discharged from employment because of support or nonsupport of a labor organization by inducing or attempting to induce any other person to refuse to work with such employees.

Section 8. {Penalties.}

Any person who directly or indirectly violates any provision of this chapter shall be guilty of a misdemeanor and, upon conviction thereof, shall be subject to a fine not exceeding [insert amount] or imprisonment for a period of not more than [insert time period], or both such fine and imprisonment.

Section 9. {Civil remedies.}

(A.) Any employee harmed as a result of any violation or threatened violation of the provisions of this chapter shall be entitled to relief, including injunctive relief, in the [court of jurisdiction] against any and all violators or persons threatening violations and may in addition thereto recover any and all damages, including costs and reasonable attorney fees, of any character resulting from such violation or threatened violation. Such remedies shall be independent of and in addition to the penalties and remedies prescribed in other provisions of this chapter.

(B.) Any such legal action against a labor organization shall be brought in the [court of jurisdiction] where the alleged violation occurred or where the labor organization maintains its principal office.

Section 10. {Duty to investigate.}

It shall be the duty of [the prosecuting attorneys of each county or the attorney general of this state] to investigate complaints of violation or threatened violations of this chapter, to prosecute all persons violating any of its provisions, and to take all means at their command to ensure its effective enforcement.

Section 11. {Prospective application.}

This Act shall not apply to collective bargaining relationships in which a labor organization was lawfully recognized as an exclusive bargaining representative before the date of the enactment of this Act.

Section 12. {Federal preemption.}

This Act shall apply to:

(A.) Employers that are agencies; and,

(B.) All other employers in the State of [state] that are not subject to the National Labor Relations Act or any other applicable federal labor laws. To the extent that federal law governs employment matters, this Act shall be invalid.

Section 13. {Severability clause.}

Section 14. {Repealer clause.}

Section 15. {Effective date.}