The Employee Free Choice Act Assails Democracy

By Aaron Rodriguez

1. Wisconsin State Journal Publishes a Pro-Employee Free Choice Act Article

Wisconsin State Journal On Monday, December 15th, the Wisconsin State Journal published an article by Professor William Jones entitled “Free Choice Act Guards Democracy.” Surprisingly, Professor Jones does not attempt to make to make the case that the Free Choice Act (FCA) actually guards democracy. In fact, the op-ed doesn’t resemble the academic excellence one would expect from a professor from Madison. The points of his op-ed are stringed together in such an undisciplined and disjointed way that it was difficult to condense his argument into a simple syllogistic form.

Instead of building the case that the FCA is an asset to employees [by guarding democracy], he loosely ties together a few advantages of unionization speckled with some pot-shots at employers who have the nerve to involve themselves in the organization effort.

2. Jones' Argument for the Employee Free Choice Act

Professor Jones’s argument goes as follows:

1. In troubled economic times, it is important to organize and choose representatives.

2. However, the current election process has been undermined to the point of being ineffective.

3. The FCA deters employers from violating an employee’s right to unionize.

4. Therefore, the FCA is necessary to preserve democratic principles and form much needed union networks.


There are a few problems with Professor Jones’ argument. Each premise is flawed – some more than others.

3. Unions and Troubled Economic Times

Employee Free Choice Act protestorsConcerning the first point, it could be argued that in troubled economic times, unionization could actually cripple a business in an already struggling industry. Jones points out that union members make 28% more than non-union workers. This implies that the employee would enjoy more financial security during harsh economic downturns. Of course this makes sense, however this is the small picture unions like to paint for their employees.

As one can probably figure out, a 28% increase in wages must come from somewhere, and that somewhere is from a company’s gross profits. A hit in gross profits will reduce a company’s net profits, which are often used for reinvestment and expansion purposes. And just like the employee who enjoys a 28% cushion during rough times, companies would also like to enjoy a security cushion during a slow market.

For instance, in the past year, a struggling the auto industry was hit pretty hard with skyrocketing fuel costs and a sluggish economy. Due to the higher wages, plentiful benefits, and expensive legacy costs, the Detroit Big Three are about to go belly up unless they receive a rescue loan by the tax payers. In 2006, GM paid $4.9 billion to 291,000 retirees and surviving spouses. In order to pay this, GM loses about $30.00 an hour per employee currently on the payroll.

The United Auto Workers Union has secured excellent benefits for GM employees, but they most certainly have not protected the auto workers from “troubled economic times.” Arguably, the UAW, by securing favorable contracts and refusing to renegotiate their contract two years early, will probably cost many retirees their pensions. In the case with the UAW, it would appear that unionization is not a good thing during economically troubled times. Companies burdened with the weight of unionization are not light enough to float during hardships.

4. The election process

Concerning the second point, it’s preposterous to conclude that the secret ballot process has been compromised. This is an excuse to do away with the right of privacy that protects employees from the undue pressure, intimidation, or compulsion that determine voting outcomes.

Professor Jones argues that employers have compromised the election process by requiring work meetings that inform employees about the drawbacks of unionization, or by hiring consultants to conduct anti-union campaigns. And although Jones admits that all of this is within an employer’s legal right, he says it violates the spirit of the National Labor Relations Board. In other words, union representatives have the right to criticize management and sell themselves as rightful stewards of the employee, but management ought to keep their mouths shut about presenting their side. What Professor Jones calls “anti-union campaigns” can be described as an effort by management to protect the very viability that provides and secures jobs for their employees.

Concerning the fourth point, the Free Choice Act does not preserve democratic principles as Professor Jones asserts. Quite the contrary, it destroys them. By dismantling the privacy of a secret ballot election, union representatives would use a “card-check” system. In this system, employees can sign their names on cards expressing their desire to unionize. However, this system has been historically fraught with fraud and coercion.

The card-check system allows union representatives to solicit signatures from employees. This system doesn’t allow for a simple “yes” or a “no” vote. A signature on the card means “yes, I want to unionize”, and no signature on the card means “not yet, but feel free to ask me later.” And since the card system does not permit a “no” vote, it allows representatives the latitude to target the same pool of individuals until their signatures are attained. Obviously, this can exert a great amount of peer pressure to conform if one’s signature becomes the deal maker. This is the very situation that a secret ballot system is designed to avoid.

5. Some Abuses with the Card Check System

In a 2004 testimony, some Trico Marine employees were solicited by union representatives at their homes multiple times for their signatures. In one case, it resulted in a restraining order on a union representative. Granted this is far from the norm, but this demonstrates the inherent flaw of a card-check system. It opens the door for fraud in a number of ways.

Union reps have already abused the card-check system by misinforming employees that their signatures would only guarantee an election. And when the cards were signed, they were used to bypass an election in order to start a union. This occurred with MGM, Kaiser Permanente, and Trico Marine employees. This may contribute to a higher success rate of unionization, but the ends do not justify the means.

6. Concluding Thoughts on the Employee Free Choice Act

In conclusion, I challenge Professor Jones to provide a good argument establishing that the Free Choice Act actually guards democracy. If he could do that, I would join him in his effort to applaud Senators Russ Feingold and Herb Kohl in cosigning the bill. Furthermore, I challenge Professor Jones to explain why peer pressure is more valuable than privacy, and why the right to form a union is more important than the freedom to choose our representation without constraint. Until he can do this, I will continue to condemn the Free Choice Act for what it really is, a Free Authorized Opportunity to Harass employees.

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