Voters are likely to be confused by Constitutional Amendment A on the Nov. 2 ballot. It would specify that all elections, including those "to designate or authorize employee representation," be by secret ballot. In other words, elections to create union representation at Utah businesses would have to be by secret ballot.
We strongly agree that union organizing elections should be by secret ballot and that they should be administered by a neutral third party, the National Labor Relations Board. That's the way it works today under federal labor law. Otherwise, business owners or union organizers or both could intimidate workers and unfairly influence the results.
However, because, federal law already provides the secret ballot for union organizing elections we see no reason to tinker with the Utah Constitution. Further, we do not believe that the Utah Constitution is the proper place to decide labor law. We would urge Utahns, therefore, to vote "against" Constitutional Amendment A.
The state constitution already provides, in Article IV, Section 8, that "All elections shall be by secret ballot." That means that all elections for public office already are decided by secret ballot. Other issues, such as Constitutional Amendment A itself, bond issues and initiatives and referendums also are decided by secret ballot. There is no reason, then, to change the state constitution to guarantee the secret ballot as a bulwark of representative democracy in Utah.
The reason this measure is on the ballot, then, is because business organizations are worried that the Democratic Congress will pass a bill called the "Employee Free Choice Act." Under existing law, if 30 percent of employees sign cards saying that they want an organizing election, a union can petition the NLRB to conduct an election by secret ballot. If the union gets a majority of the votes, the NLRB certifies the union.
Under the "Employee Free Choice Act," the NLRB would certify the union if it could get more than 50 percent of the workforce to sign the cards. The election by secret ballot would be eliminated.
This would be a mistake, and we strongly urge Congress not to pass such a law. But if it did, the federal law would supersede the proposed amendment to the Utah Constitution. Utah could defend its new constitutional amendment in court, but under the federal Constitution's supremacy and commerce clauses, it likely would lose.
All of which adds up to this: There's no good reason to pass Constitutional Amendment A.