By Aaron M. Rodriguez

Introduction of the Employee Free Choice Act

Employee Free Choice Act

In 2007, Congressman George Miller introduced a bill that would effectively replace the secret ballot election with a signature-based card-check system. If passed, it would provide unions with an easier means to organize in the workplace. Ironically, this bill has been tagged as the Employee Free Choice Act (EFCA).

As the debate brewed on the Hill, Democrat Senators bemoaned the 3 decade decline of the union movement. They called for a bill that would stop the downward slide and re-energize an era of collective bargaining. They pointed to the golden years of bargaining (1947-1973) when unions were nearly twice as strong as they are today. Oddly enough, none of their speeches addressed why a secret ballot election is a good thing for appointing Senators and Presidents, and yet inadequate for appointing union representation. Their speeches unveiled a singular truth that the Employee Free Choice Act wasn’t intended to restore free choice to the workforce, but rather to restore strength and stability to a dying union movement.

Free Choice Act: Card Check and the Secret Ballot

According to U.S. labor law, an employer must recognize the right of employees to form a union. This can occur in one of two ways – either by a “card check” system or by a card check drive followed by “secret ballot” election. If employees choose a card check system alone, then a majority of employee signatures are required on valid authorization forms. Securing at least 51% of signatures will certify a union as an official bargaining unit unless an employer challenges the propriety of the process. But if employees choose to participate in a secret ballot election, then only 30% of total employee signatures are necessary in the card-check drive in order to prompt a vote.

When given the choice, however, unions will prefer the card check process alone over a secret ballot election. The reason is very simple; it’s a matter of winning. To date, unions win a modest 55% of secret ballot elections. But if secret ballet were replaced by a card check system, unions estimate they would win about 80% of the contests.

Not surprisingly, employers prefer a secret ballot election. This is also a matter of winning. Under current law, if an employer suspects that impropriety was present during the card check drive, they can challenge it and require a secret ballot election. And in most cases, employers do just this. Between 1998 and 2005, only 13% of new AFL-CIO members joined without a secret ballot election. Employers know that a small fraction of workers will sign cards with no intention of endorsing a union. Unions recognize this as well. In fact, many unions will not go into a secret ballot election until they acquire at least 65%-75% [a supermajority] of employee signatures.

Free Choice Act: Argument against Secret Ballot Elections

The AFL-CIO advanced an argument detailing why a “majority sign-up” is the best option for preserving “the freedom of working people.” Below is a syllogism that encapsulates an argument found on the AFL-CIO website.

1. The workplace environment has been poisoned by browbeating employers.

2. This poisoning has led to an environment devoid of fair and free choice.

3. A secret ballot election does not undo the coercion of employers.

4. Therefore, Congress should pass a bill that mandates union formation by a simple majority of employee signatures.

A Critique of the Union Argument

Premise 1 is not a real concern. I see no reason to quibble over hyperbole.

Premise 2 is fallacious. A poisoned work environment would certainly make it tricky for a worker to vote their conscience, but it does not eliminate an employee’s free choice. We already know that unions win 55% of their secret ballot elections, so premise 2 cannot be true.

Premise 3 appears to be good, but it presents somewhat of a straw man. I don’t think anyone would expect that a secret ballot election could entirely “undo” employer coercion. This is too high of an expectation. However, this doesn’t mean secret ballots should be dismissed either.

Also, there is nothing to suggest that a card check system would be equally sufficient or even superior at resolving a hostile work environment. It is my contention that whatever protective measures the Employee Free Choice Act intends to put into place in order to safeguard employees from harassment can also be done without discarding the secret ballot process. The cliché “throwing the baby out with the bath water” fits nicely here. Not only is the AFL-CIO attempting to throw out the baby with the bath water, they are trying to replace the water with sewage.

Free Choice Act: the AFL-CIO’s Academic Study

In 2005, the American Rights at Work commissioned Professors Adrienne Eaton of and Jill Kriesky to conduct a telephone survey of workers who voted for and against union organization. The survey found that workers who participated in secret ballot elections were twice as likely to experience employer coercion as those who participated in a card check election. And fewer than 5% of workers who signed a card with a union representative present felt pressure to do so. The conclusion, according to the AFL-CIO, is that card check systems are superior because they reduce overall coercion.

Critiquing the Academic Study

There are a few problems with the survey. The first problem is that the survey’s credibility can certainly be called into question. Professor Adrienne Eaton, Chair of the Labor Studies and Employment Relations Department at the University of Wisconsin, was commissioned to conduct the study by the American Rights at Work organization. Professor Eaton has authored several pro-union books, one of which argues for card check systems.

Second, the survey in question was a single inquiry from a relatively small sample of employees. Depending on the size of the sample, the industry of the employer, or the country where the sample was collected, results could vary significantly from survey to survey.

And most importantly, the survey was conducted on card check elections that specifically had “neutrality agreements.” A neutrality agreement is a contract between a union organization and an employer that essentially serves as a gag order on management. The agreement specifically prohibits the employer from expressing their opinions to employees about the union campaign. Thus, it is entirely reasonable that those who participated in the survey would experience minimal tension from both parties since one side was contractually muzzled.

The Employee Free Choice Act, however, would not include a neutrality agreement. Therefore, employers are free to present their side of the argument. Using a study that included neutrality agreements in order to bolster support for a legislation that will not include neutrality agreements is misleading. The study supports a different sort of card check process, not the legislation in question.

Free Choice Act: Problems with Card Check Elections

The card check system has several inherent deficiencies that a secret ballet doesn’t possess. First, it strips employees of their privacy and makes them vulnerable to intimidation and harassment. Second, it limits the full range of voting options. And third, it allows union representatives the opportunity to misrepresent the purpose of the card check drive, thus eliciting signatures that do not really endorse union formation.

Secret ballot elections are designed to provide employees the most efficient means to be heard by offering a full range of choices, which include voting yes, voting no, or not voting at all if one so desired. It also provides the employee with a strong measure of privacy to vote their conscience. A card check election, on the other hand, precludes the possibility of a “no” vote. If you sign the form, it means “yes.” If you don’t sign it, it means “not yet.” This allows unions enough time to pressure employees into conformity.

James Sherk, a Bradley Fellow in Labor Policy in the Center for Data Analysis at the Heritage Foundation, has analyzed how card check systems can contribute to intimidation and harassment from union representatives. In a testimony before Congress in 2004, Ron Kipling testified that hotel employees in Los Angeles had to seek an injunction against union organizers after groups of eight to ten organizers harassed employees on their homes' porches late at night.

In another instance, according to the testimony of labor attorney Clyde Jacob, Trico Marine employees complained to their employer about union harassment during a card check drive. After 8 visits to a single home, an arrest warrant was issued against one of the union organizers.

To be certain, card check drives do not cause these problems, nor is union harassment prevalent in the U.S., but this system arms both unions and employers with private information about one’s intent to vote, thus enabling both parties to act with indiscretion. During a campaign season, tension and stress can be particularly high. Both parties have invested interests in winning. And this can lead to harassment in the workplace.

For instance, thousands of unfair labor suits have been filed since 2000 including 1,417 for coercive statements, 416 for violence and assaults, 546 for harassment, and 1,325 for threatening statements. In a similar vein, The AFL-CIO purports that 25% of employees have been terminated for engaging in union activity during union drives. Couple this with the knowledge of how employees intend to vote, and we will inevitably have problems. [Interestingly, the ACLU has been suspiciously silent on this issue.]

A card check system also allows the opportunity of misrepresentation. In the case of Trico Marine, union representatives told employees that card signatures were for the purpose of prompting a secret ballot vote. After the signatures were elicited, the union attempted to pressure Trico to recognize the union on the basis of the signatures alone. This also occurred with employees of MGM Grand and employees of Kaiser.

Final Thoughts on the Employee Free Choice Act

According to the Seattle Times, the Employee Free Choice Act would be the most significant overhaul of federal labor law in sixty years. To be certain, there will be a lot of pressure to make this bill into law. If this bill passed in the Senate, it would substantially strengthen the union movement, but only by trampling on our nation’s most revered democratic principles such as the freedom of choice and the right to privacy.

The argument that unions are an important instrument for strengthening the middle class cannot justify sacrificing what is right. We already have a system that has stood the test of time and has protected our privacy, freedom, and our ability to be heard as citizens. If there are problems with intimidation and harassment in the workplace, then they must be addressed without harming the secret ballot process. There is no question about it, Congress ought to preserve our cherished freedoms by killing the Employee Free Choice Act.


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