Columns » Ernest Dumas

Bad law redux, on union cards



Fifty-two years ago, Arkansas amended its Constitution to proclaim that the laws of the United States would not be enforced in Arkansas. It endured 34 years of shame for having done something so ridiculous and so clearly unlawful and then meekly took it back with the least noisy constitutional amendment on record: “Amendment 44 to the Arkansas Constitution is hereby repealed.”

John C. Calhoun, the great apostle of slavery, had been dead only a century when Arkansas white supremacists decided to resurrect his doctrine in 1956. Hey, maybe it's time to dust off interposition and try it again.

That's exactly what a couple of Republican legal geniuses, state Sen. Gilbert Baker and political consultant Bill Vickery, are going to try to do. Baker, the former chairman of the Republican Party, and Vickery, a party fund-raiser, are pushing a constitutional amendment to override federal law if Congress and the president enact a law allowing the formation of a bargaining unit when most employees of a plant sign cards saying they want to be represented by a union.

If Baker and Vickery succeed, the law would be just as absurd and unenforceable as Amendment 44, which ordered the legislature to pass laws prohibiting the enforcement of U.S. Supreme Court decisions declaring racial segregation illegal. The supremacy clause of the U.S. Constitution says that laws passed by Congress, settled by the courts or promulgated by the president or federal agencies are the supreme law of the land, “the Constitution or Laws of any State to the Contrary notwithstanding.” If there was any doubt, the Supreme Court settled it in 1819 in McCulloch v. Maryland, the second case, after Marbury v. Madison, that every constitutional law student studies.

A nutty and utterly hopeless proposition like interposition got on the ballot and was ratified by raising fears of black kids overrunning the schools and marrying white girls.

The strategy is the same with the secret-ballot campaign, but the fear they'll promote rather than miscegenation is of “big labor bosses” overthrowing democracy in Arkansas and shiftless workers demanding big salaries and health benefits like autoworkers get.

Baker and Vickery didn't come up with the idea or write the amendment. A right-wing organization at Las Vegas calling itself Save Our Secret Ballot did. It picked Arkansas to start the national campaign because the state has an occasional history of thumbing its nose at the U.S. Constitution even if it later recants, as it did in 1990 on Amendment 44.

Save Our Secret Ballot says it knows all about the supremacy clause but that while the states cannot restrict a right guaranteed by the U.S. Constitution or other federal law they can expand on those rights. So the antiunion bunch just wants to expand the “sacred secret ballot” to company bargaining elections.

The secret ballot has never been a federally guaranteed fundamental right for anyone. It isn't mentioned in the U.S. Constitution or the 1874 Arkansas Constitution. The secret ballot didn't come along in the United States until the 1880s. The states can legislate in an area pre-empted by federal law, as the National Labor Relations Act did with labor-management relations, only if it does not directly contradict federal law.  The ballot amendment would prohibit exactly what the union card-check bill seeks to do, which is allow employees to form a union to bargain for them when most of them sign a card saying that is their desire. How do you get more contradictory than that?

The premise of the national campaign against card check is that American workers are about to be deprived of a secret ballot, always described as the “sacred right” of the secret ballot, which would put them at the mercy of union bosses.

You would think that there has been a cry across the land from workers pleading to be protected from union organizers, maybe trained at Guantanamo, to make them sign union cards.

That is the trick of these campaigns: make the victims the perpetrators. As every worker who has gone through a union election knows, it is not union representatives who are the intimidators. Fairly typical was the organizing drive at Smithfield Foods, which runs the world's largest pork slaughterhouse in North Carolina. It took 16 years and repetitive orders by the National Labor Relations Board against company intimidation and firing of employees for the employees to get a vote. Employees were forced to stamp “Vote No!” on hogs they were processing. They voted last month to have the Food and Commercial Workers Union bargain for them. 

That is the sacred system they want to preserve in Arkansas by writing it into the state constitution.

They have a more immediate goal, which is to pressure U.S. Sen. Blanche Lincoln into voting against the card check bill when it comes before the Senate in the next two years. That is as pointless as flouting the supremacy clause. You don't have to cripple the constitution to do that. When the chips are down, she doesn't vote against Wal-Mart.


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