In the debate over the grossly misnamed Employee Free Choice Act (more accurately called the Card Check Forced Unionism Bill), union bosses have gone out of their way to convince the media that the bill does not eliminate the secret ballot in workplace unionization drives.
But legal experts here at the National Right to Work Legal Defense Foundation have examined the bill and the state of the current law and come to the following conclusion:
Under the Card Check Forced Unionism Bill, the provisions of the National Labor Relations Act (NLRA) that refer to the secret ballot election would be rendered a dead letter, even though they are not technically stricken from federal law.
Big Labor spin artists can claim all they want that the workers can still "choose" to have a secret ballot election, but there simply is no way by which workers can force union bosses to file for a secret ballot election — and it is union bosses, not workers, who are in possession of the cards. Reporters who repeat this union boss talking point owe their readers a correction.
The simple fact is that professional union organizers hold tremendous power in a unionization drive. If this forced unionism power grab becomes law, workers will only be privy to the information union bosses disseminate.
The text of the bill clearly states that once union bosses collect a simple majority of signed cards, "the [National Labor Relations] Board shall not direct an election but shall certify the individual or labor organization as the representative" or monopoly bargaining agent of all employees in the unit.
As former NLRB member John Raudabaugh told U.S. Senators last year,
Were the union to come up short of 50+ percent signed cards, would it really proceed to file a petition for an election? No, the secret ballot would not remain an option under the EFCA proposal.
If union bosses can’t get a majority through card check — a process during which many workers sign cards not due to actual support for the union but due to lies and intimidation by union organizers — they obviously won’t be able to win through the more fair and private secret ballot process. As James Sherk of the Heritage Foundation and Paul Kersey of the Mackinac Center for Public Policy note,
An election would occur only when union organizers submit cards signed by a minority of workers; but union organizers do not call for an election without signed cards from a majority of workers. They know that unions usually lose these elections. The AFL-CIO’s internal studies show that unions win only 8 percent of elections that are called after less than 40 percent of workers have signed cards.
Less obvious, however, is that union bosses don’t think they can win secret ballot elections even if they collect a simple majority of cards. Sherk and Kersey explain (emphasis mine):
Consequently union guidelines call for organizers to collect cards from 60 to 70 percent of workers in a company before going to the polls. Unions openly state that they do not go to an election without a supermajority of cards:
1. International Brotherhood of Teamsters: "The general policy of the Airline Division is to file for a representation election only after receiving a 65 percent card return from the eligible voters in a group."
2. New England Nurses Association: "Have 70-75 percent of members sign cards; if unable to reach this goal, review plan."
3. Service Employees International Union (SEIU): "[T]he rule of thumb in the SEIU is that it’s unwise to file for an election when fewer than 70 percent of the workforce has signed interest cards."
The secret ballot is much better than the alternative in workplace unionization drives because of what monopoly unionization actually means in practice under the law. Once a union is in place, it is virtually impossible to remove it. More importantly, independent-minded workers who would prefer to represent themselves, or even workers who would prefer a different union’s representation, are forced to accept the certified union as their monopoly bargaining agent. And unless those workers live in one of 22 states with Right to Work protections, they will be forced to pay dues to an unwanted union.
In other words, an individual worker’s desire to belong to a particular union — or indeed the collective desire of a simple majority of workers in a unit — is different from an individual’s desire to belong to any other private organization. The decision forces one’s coworkers — current and future — to also accept the "representation" of this particular union. A secret ballot can’t overcome this fundamental violation of individual rights, but at the very least, the secret ballot provides workers with a degree of protection against intimidation. And that protection will be lost under EFCA.
