Department of Labor Acting Solicitor General Jonathan Snare offers some good legal arguments against the Employee Free Choice Act (which the Senate Committee on Health, Education, Labor and Pensions will be examining today) in yesterday’s Legal Times:

I am convinced that the general substitution of card check for secret ballots, as called for by H.R. 800, would inherently lead to worker coercion. But don’t just take my word for it. Card check as envisioned by the current bill was actually tried prior to 1947. Because of widespread coercion of workers, the National Labor Relations Act was amended in 1947 to eliminate the general use of card check…

n fact, the U.S. Supreme Court noted in NLRB v. Gissel Packing Co. (1969) that there was no dispute “that secret elections are generally the most satisfactory — indeed the preferred — method of ascertaining whether a union has majority support.”

In 1983, the 7th Circuit expressed its concerns with card check in NLRB v. Village IX Inc.: “[B]y itself [a card majority] has little significance. Workers sometimes sign union authorization cards not because they intend to vote for the union in the election but to avoid offending the person who asks them to sign, often a fellow worker, or simply to get the person off their back, since signing commits the worker to nothing.”

The 7th Circuit also discussed several studies on card checks: “[E]ven where the union had authorization cards from between 50 and 70 percent of the employees, it won only 48 percent of the elections. . . . Another study found that 18 percent of those signing authorization cards did not want union representation at the time they signed.”