Union authorization cards and the Employee Free Choice Act

I am not much of a fan of horror fiction. I do not read Stephen King. When I am in the mood for a mix of something scary stupid however, I need only open the pages of the Wall Street Journal and read the editorials and opinions.

One of today's Journal horror stories is an op-ed by Bernie Marcus, the founder of Home Depot, in which he rails against a proposed piece of legislation called the Employee Free Choice Act. He claims that enactment of this amendment to the National Labor Relations Act would “virtually guarantee that every company becomes unionized.” Mr. Marcus's view echoes that of many others who oppose unionization in the workplace.

Since this is a presidential election year, the electorate necessarily is focused on election mechanisms, and little is more emblematic of American elections than the secret ballot. It’s understandable, then, that much of the criticism of the Employee Free Choice Act centers on the canard that it eliminates the “secret ballot.”[1] That’s wrong. It eliminates the need for holding a contested election once a majority of the pool of potential voters have already expressed their choice secretly. What the opponents really protest is the absence of a do-over.

To understand why the criticism of the Employee Free Choice Act is so wrong, one must understand how unions are certified in the workplace today. Under the National Labor Relations Act, any group of employees may approach an employer with a request that they be recognized as a bargaining unit, and the employer is free to bargain collectively with the members of that group collectively through their authorized representative. It is entirely conceivable that a workplace can, under that model, have both collective bargaining with the representative of the group of employees who desire to bargain together, and individual bargaining between the employer and the employees who do not wish collective representation. Employers rarely recognize such an agent, however, and unions rarely seek such limited representation. Instead, the usual fight is over representation of all of the employees in a bargaining unit (in states that permit open shops).

There’s a big difference between when recognition is permitted versus when it’s required. It’s permitted anytime; it’s required only when a majority of the bargaining unit wants representation. Under current law, therefore, whether a union is recognized depends on how it is determined whether a majority of the bargaining unit wants collective representation. The current system is like a political election in that a number of workers – required to be “substantial”, but not necessarily a majority – sign a petition or authorization cards, and the NLRB then decides whether there’s a sufficient number of valid signatures to justify holding a secret ballot election. Then there’s a campaign (often dirty, just like in politics), culminating in a vote. As in a political election, people aren’t required to vote, and the winner is the side with the most votes cast in its favor. As in a political election, the “nominating” petition isn’t secret, but the final vote is. The campaign is often lengthy, dirty, expensive, and characterized by mutual charges of voter intimidation.

As an alternative, imagine that instead of the two-step process of nominating petition followed by contested election, there were a one-step process of petition alone. If the nominating petition or set of authorization cards is signed by a majority of all of the potential voters, then there is no need for a contested election. Even if an election were held, then as long as the voters’ preferences do not change between the time the petition or cards are signed and the time that the election is held, the position expressed in the petition or cards will be the outcome of the election. That’s the idea behind the Employee Free Choice Act; once a majority of the electorate has already expressed its preference through the petition process, the delay and expense of holding an election to rubber-stamp the result is counter-productive.

From the employer’s perspective, though, the availability of the election is the right to a do-over. If the employer has lost in the petition or card drive because a substantial number of employees requested collective representation, then the election provides an opportunity for a second chance to win. And who doesn’t like having a do-over? In my schoolyard, however, do-overs were disfavored. People who whine for do-overs are poor sports. Thus, the rhetoric in this debate is focuses not on demanding a do-over, but instead focuses on arguing “no fair”.[2] Here, the “no fair” part is that the second part of the process – the secret ballot that seems so iconic – is skipped. The necessary assumption is that if the second step were included, then the result might be different. The Employee Free Choice Act eliminates the window of opportunity during which employers can target employees to change their votes, because the employees “votes” – in the form of an authorization card – are secret from the employer, since the employer doesn’t know who signed the cards.

The Employee Free Choice Act creates a new way of designating a collective bargaining representative. Instead of collecting cards or petitions bearing the signatures of a substantial number of employees, presenting the signatures, being rejected, and conducting an election, the employees can instead collect signed authorization cards from the employees and then file a petition alleging that they hold cards from a majority of the workers. The NLRB’s job is then to count the cards, count the number of employees in the bargaining unit, and do the math. If a majority signed cards, then the union is designated as the agent for the bargaining unit. The authorization cards aren’t secret from the prospective representative who solicited the cards, of course, and that’s what Mr. Marcus is condemning as non-secret. But Mr. Marcus’s argument necessarily gives short shrift to the ability of a worker to just say no, and not sign a card.

Surprisingly, if both employers and unions played fair, the proposed legislation actually works no change in the law. It is already the law that if a majority of the employees in a bargaining unit sign valid authorization cards, the employer is required to recognize that unit as the representative of all employees in the unit, rather than just those who signed cards. The practice, however, is for the employer to refuse to bargain, at which time the petition is supplanted by a secret ballot election. In effect, the purpose of the election is to get employees who signed the petition to switch their positions. It is therefore false to argue that the Employee Free Choice Act works a radical change in labor law.

Finally, what could possibly be the basis for Mr. Marcus’s claim that virtually every company will become unionized? One thing only: that in virtually every company, a majority of the workers would sign authorization cards, no questions asked. The experience of union organizers, though, is that unionization drives take a lot of work and a lot of persuasion. If Mr. Marcus is so sure that a majority of workers in virtually every company is ready to sign a card, then that speaks volumes about how bad the state of employer-employee relations has become.

[1] As an aside, it’s worthwhile to note that plenty of elements of American democracy involve non-secret choices, such as nominating petitions, initiative and referendum petitions, recall petitions, caucuses, town meetings, legislative votes, and appellate court decisions. Secret ballots in United States elections did not become universal until the late 19th century.
[2] In my schoolyard, “No fair, do-over” was a doctrine different from the pure “do-over”.

posted by Craig J. Albert