The Fiction of Business’ ‘Secret Ballot’ Argument

Joe Mathews
Connecting California Columnist and Editor, Zócalo Public Square, Fellow at the Center for Social Cohesion at Arizona State University and co-author of California Crackup: How Reform Broke the Golden State and How We Can Fix It (UC Press, 2010)

It’s still early in 2009, but my award for the most disingenuous p.r. campaign of the year goes to the national, business-backed effort to fight the labor-backed Employee Free Choice Act. The campaign has a deceptively simple message: preserve the “secret ballot” in union elections.

I’m for all secret ballots. Ideally, union elections would be conducted via secret ballots just like an election for governor or mayor; voters would make their decisions freely and fairly and no one knows how they voted. The problem is this: we don’t have anything like secret ballots in union elections. And the business leaders of the effort to discredit EFCA know this.

The truth about union elections is much more complicated. There are two ways that workplaces go union. The first, now favored by labor, is “card check.” In these cases, workers sign cards saying they want to join a union. When workers have a majority, employers agree to recognize the union. Oftentimes, card check recognition comes after months or even years of pressure and/or negotiations between the union, workers and employers. There can be hard feelings, but the process also can be a cooperative one. Security guards in Los Angeles office buildings were recently organized this way.

The second path is the problematic one: an employer, presented with union cards, chooses not to have an election but instead requests a federally supervised election of workers. Sounds fair, right? It isn’t. Yes, the law provides for secret ballots. But union elections are more like small wars than political elections. Businesses routinely hire law firms that specialize in underhanded – if legal tactics – to defeat unions. Workers involved in organizing get fired. Other workers are threatened and intimidated. Litigation is used to delay elections for months and even years. All the while, businesses hold high-pressure “education” sessions in which they campaign against the union. By the time of the union election, it’s no secret how workers are going to vote on the union.

All that said, it’s far from clear that the way to fix these problems is EFCA. The real drawback of EFCA has nothing to do with secret ballots. We don’t have real secret ballots now, and we won’t have real secret ballots if the legislation passed. The real drawback is that the “card check” system envisioned by the act would make it easier for unions to engage in the some of the same coercive, intimidating tactics that businesses routinely employ. I understand why union officials are pursuing this wholesale change; they believe that the current union election system is broken and that even a modified system would quickly be undermined by powerful business lobbies. Perhaps. But a card check system almost certainly would lead to abuses by unions. This is a rotten way to level the playing field.

A better way would be to rewrite federal labor law to remove some of the advantages businesses holds in union elections and to provide more protection for workers engaged in union campaigns. We need tight, enforceable deadlines and timetables for union elections. Appeals to the NLRB must be acted upon quickly. (That means more money for NLRB staff, especially those who investigate complaints). There should be absolutely no dragging out or delays of elections. From the moment cards are turned in, the union election should take place in no more than one week. That would give unions and businesses little time to intimidate workers. Also, there ought to be huge penalties – large enough to put the fear of God in employers – for any businesses that fires workers involved in union campaigns.

As it happens, the closest thing to a labor law like this exists in California: the Agricultural Labor Relations Act. The act provides for an election within 7 days of workers’ filing a petition for an election. The act has some holes that growers have exploited. And the United Farm Workers, whose founder Cesar Chavez championed its passage, now claim the act is outdated. The union prefers a “card check” system similar to the one advanced by EFCA.

But California’s ALRA could provide a template for real reform of the process that would be fair to unions, businesses and workers. In fact, smart changes in the law might produce union elections with ballots that might qualify as secret. But don’t hold your breath. Instead, the public will have to watch a totally dishonest debate between business and labor over “secret ballots” vs. “employee choice.”

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