By John Leschak
Last week, U.S. Senators Jim DeMint (R-S.C.) and Mike Enzi (R-Wyo.) introduced the Secret Ballot Protection Act, S. 478. This bill is allegedly meant to protect workers’ rights, but in fact, it is an attack on workers’ rights.
Under current labor law, workers can form a union through a secret ballot election conducted by the National Labor Relations Board (NLRB), or through “majority sign-up,” where employers freely choose to recognize a labor union when a majority of employees provide signed cards authorizing union representation.
The new bill would make it illegal for an employer to voluntarily recognize a union through majority sign-up and would always require an NLRB election.
The sponsors of S. 478 claim that they are protecting democracy. After introducing S. 478, Senator Enzi said, “Americans get a private ballot when they choose their president, their congressmen… Why should they not have the same rights in the workplace?” But, Enzi’s comparison of political elections with NLRB elections is misleading because NLRB elections fall alarmingly short of living up to most fundamental tenets of democracy.
Democratic political elections are based on equal access to voters and freedom of speech. With NLRB elections, employers have greater access to voters. Employers can keep union organizers off their property, force their employees to attend anti-union meetings during the workday and legally fire employees who refuse to attend anti-union meetings. Freedom of speech is also virtually non-existent because employers can ban employees from discussing the proposed union outside of the break room.
To paraphrase Nancy Schiffer, associate general counsel of the AFL-CIO, if political elections were run like NLRB elections, only the incumbent office holder and not the challenger, would have access to lists of registered voters and their home addresses, because under current labor law, unions are only given access to a list of voters days before the election.
The election would also always be held in the incumbent candidate’s party office, because NLRB elections are held in the workplace. Furthermore, only the incumbent, and not the challenger, would be able to talk to voters in person, and the challenger would need to remain outside the boundaries of the voting district, since union organizers can be completely barred from the workplace.
According to Senator Enzi, “Working Americans deserve to choose what’s right for themselves without fear, coercion or pressure.” He and DeMint claim that without secret ballot elections, unions will force themselves upon employees against their wishes. However, the record shows that union misbehavior is rare. The real problem is rampant coercion by companies. Over the past 60 years, there have been only 42 NLRB findings of union misconduct in organizing campaigns, while in 2008 alone there were over 30,000 NLRB findings of employer misconduct.
In 46 percent of NLRB elections, employers undermine the conditions needed for genuine free choice by using intimidating and illegal tactics, including the firing of pro-union employees, cutting back workers’ hours, threatening to close the work place if the union wins the election, and using company guards to spy on workers. A “secret ballot” at the end of an employer’s campaign of coercion and intimidation is not a fair election.
Real democratic choice is possible through majority sign-up, which allows union organizing campaigns to be conducted without intimidating and coercive interference by employers. Majority sign-up has been used by successful companies like Cingular Wireless, Kaiser Permanente, Harley Davidson and AT&T.
Unfortunately, under current law, an employer can refuse to recognize a union based on majority sign-up, even if the employer knows that the union has real, overwhelming support. Instead, the employer may demand an NLRB election with all its associated deficiencies.
The Employee Free Choice Act offers a solution. It would make it easier for employees to bargain with their employer for better wages and benefits by allowing the NLRB to legally certify a union based on majority sign-up, without an election. Contrary to DeMint and Enzi’s lies, the act does not eliminate the option for secret ballot-elections. If 30 percent of workers petition for an election, a secret ballot election will always occur. The only thing the Employee Free Choice Act eliminates is a company’s ability to unilaterally veto workers’ choices by demanding an election. It should be employees, not employers, who choose the secret ballot.
John Leschak is a second-year law student. You may e-mail him at [email protected].