Employee Free Choice Act Bypasses Secret Ballot

By Aaron M. Rodriguez

Image In my college years, my professors were the epitome of academia. They came from Ivy League schools, had extensive educations, and could advance an argument with such beautiful prose that it could impress any audience. Today, however, it appears that they don’t make them like they used to. I’ve searched extensively across the internet for a rhetorically persuasive, logically consistent, and structurally sound argument that endorses the Employee Free Choice Act. What I’ve consistently found are feeble efforts to sidestep the bedrock principle that secures our democratic freedoms – the secret ballot.

In an article published by the Capital Times, associate professor David Nack of the University of Wisconsin-Extension School of Workers argues that the secret ballot in the workplace is not comparable to the one used for government elections. As a useful footnote comment, there are a few ways to argue against a secret ballot. One could argue that the secret ballot in the workplace somehow causes more harm than good (which is a hard sell). One could argue that the secret ballot in the workplace is somehow compromised by employers and is therefore not a real secret ballot (another hard sell). Or one could argue that the secret ballot in the workplace doesn’t function in the same way as a typical secret ballot conducted in government elections. Professor Nack chose the last option.

The Argument and it’s Problems

Mr. Nack argues that secret ballot elections in the workplace are different because they “take time to set up and run.” This span of time affords employers the opportunity to bully, harass, and threaten employees if they voice a desire to organize. Nack argues that the Employee Free Choice Act corrects this problem by advancing stiffer penalties against employers that are caught engaging in such behaviors. And finally, he concludes that the law was intended to protect employees, and that the Employee Free Choice Act will “help even the playing field that has for too long tilted toward employers.”

The problem with Nack’s argument is that it doesn’t logically warrant bypassing the secret ballot. If Nack is right in that employers routinely harass and threaten employees who want to organize, then laws need to be promulgated that appropriately deter this sort of behavior, but bypassing the secret ballot is not an option. It’s no different than throwing out the proverbial baby with the bathwater. If the bathwater is dirty, then clean it. If employers are harassing and threatening employees, then such behavior needs to be stopped by any reasonable means legally possible.

Subtleties of the Employee Free Choice Act

Interestingly, the Employee Free Choice Act does not flatly outlaw the secret ballot in the union formation process. Instead, it provides unions with the option to choose either the secret ballot or a card check system. The subtleties are clever. Unions win only 55% of secret ballot elections; however, it is projected they would win roughly 80% of elections if it were based upon a card check system alone. So when given the choice, unions will not choose the secret ballot if they really want to win. It becomes a false choice.

Problems with Card Check

Just as employers have threatened employees who favor union organization, organizers have intimidated and harassed employees who refused to sign their cards. Some have even resulted in restraining orders because union representatives have followed employees to their homes. And this is the nature of the card check. A card check system 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.” And since union reps know those who haven’t signed the cards, it affords them the opportunity to find and pressure them over and over again until the signature is attained. This is the very problem that secret ballot was designed to prevent.

Why the Secret Ballot

Professor Nack made another point about organizations that needs to be addressed. He stated that citizens join organizations without the secret ballot process all the time. They do it when they join churches, businesses, and civic groups. On these occasions, the government is not expected to oversee the membership process. Therefore, he concludes, why should employers have the power to require secret ballot elections for union formation?

The answer is that employers own their businesses. They have the right to make decisions that affect the survival and expansion of their investments. Oftentimes, employers invest the whole of their life savings to start and maintain their businesses. It is only fair that those who bear all the financial risk of running a business have the right to an election process that is free from peer pressure and union tampering.

Concluding Thoughts on the Employee Free Choice Act

For decades, unions have been on the decline. In 1945, 33% of the U.S. workforce was unionized. Today, organized labor represents less than 15% of the workforce. Also, only 7.6% of private sector employees belong to unions, whereas it’s 37% in the public sector. The AFL-CIO states that employer resistance is the primary cause of this decline, whereas the Heritage Foundation states that 67% of employees believe that their companies have a strong sense of loyalty to them – implying there is a declining need for unionization.

Part of the problem is that we no longer live in the 50s. We have a post-modern culture that has shifted from an industrial to a service orientated economy. Assembly lines are almost a thing of the past whereas a technological culture that requires less manpower, less staffing, and more expertise is alive and well. This has caused a decline of unions in the private sector and has caused a major concern for the union movement as well. Union organizations like the AFL-CIO understand that their situation is dire and something drastic needs occur to reverse the trend. For this reason, the AFL-CIO bankrolled a large part of Obama’s political campaign by using a record-breaking 53 million dollars to promote his candidacy. Make no mistake about it; the Employee Free Choice Act is less about the free choice of employees and more about resurrecting a dying union movement. Bypassing the secret ballot process, which has stood the test of time, is only evidence that the union movement is becoming more desperate to maintain their power.

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