Political Hay

The Secret Ballot Destruction Act

The Pelosi Congress is ready to come through for Big Labor with legislation to keep workers from voting on whether or not to unionize.

By 1.22.07

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There was a time when American leftists actively promoted something called "economic democracy." In their idea of a good and just society you would earn a salary and possess property at their sufferance. The mere fact that you worked for what you received wasn't important: we all should "democratically" decide who got what no matter who actually produced it.

It's not a particularly good way to run an economy, as any number of socialist systems around the world demonstrated. There isn't much difference morally from stealing your neighbor's car and redistributing his salary. On a practical level, it's hard to get people to invest generously, take risks, and work hard if society's most envious people can effectively hire enough politicians to eliminate the reward for entrepreneurship.

Many Democrats moved away from left-wing redistributionism with the election of President Bill Clinton. Despite his personal foibles, Clinton implemented a decidedly moderate fiscal policy. He didn't mind spending money, but he understood that someone had to create it first. That fact alone constrained his willingness to pander to those who desired "economic democracy."

However, the fantasy of running the economy more like the government has never disappeared from the left. The populism of John Edwards and the "new" Al Gore runs in this direction.

But there's one part of the economy where it turns out no liberal likes elections: for workers to decide if they want to unionize. This may be the most consequential decision that an employee makes, but in the view of self-proclaimed representatives of workers it's not worthy of serious debate. To the contrary, liberal activists want the federal government to order companies to accept a union if labor organizers convince a majority of workers to simply sign a card, through a so-called "card check" campaign. Explains the Nation magazine: "Simple recognition when a majority of workers sign cards is a more democratic process" than holding an election. It's a bit like inaugurating a new mayor, governor, or president if his representatives convince enough people to sign an endorsement petition whenever they think his support is strongest.

IN FACT, THE BEST LABOR LAW law would essentially be no labor law. Labor unions are entirely legitimate, but don't deserve federal patronage and certainly should not be sheltered when they, or their members, use violence to intimidate workers and companies. Firms should be able to employ whom they choose, but should not be able to use the police or military to "break" peaceful strikes. Other than forbidding force, fraud, and theft, and enforcing contracts, government should stay out. Whether employees want to unionize and firms want to negotiate with unions, and what are the ultimate employment terms to which everyone agrees, shouldn't be matters of public policy.

But, alas, virtually no labor issue escapes Washington's attention. Labor law has resulted from an intricate political dance, changing whenever either labor or business gains ground in Congress or the White House. Much of the struggle has been conducted before the autonomous National Labor Relations Board (NLRB) and in the courts. Nevertheless, it isn't hard to organize: Uncle Sam mandates an election if just 30 percent of employees sign a petition.

The last major attempt to significantly change the law came in 1978 when organized labor sought to regain through politics what it was losing in the marketplace. Labor law "reform" then failed in the face of a Senate filibuster, despite Democratic control of both ends of Pennsylvania Avenue.

Since then the political struggle has ebbed. Business didn't need to press for significant changes since organized labor represents an ever shrinking proportion of the workforce: less than eight percent today, which is about half the level two decades ago. Union growth occurs primarily among government employees.

Organized labor developed a political agenda, but had little opportunity to advance it. After all, Republicans typically controlled either the White House or Congress; since 2001 they have essentially run both. Although a handful of liberal Republicans, mostly from the Northeast, backed organized labor's demands, the GOP leadership had no intention of aiding union recruiting efforts.

But unions poured an estimated $104 million directly into the November elections; far more, acknowledges union consultant Jon Tasini, is spent on indirect expenditures that need not be disclosed. Organized labor expects a return on its investment. No proposal is more important than the misnamed "Employee Free Choice Act," which would substitute card check for elections, allowing unions to win legal recognition based on a preliminary, and very public, show of hands. (The legislation also includes other remarkably bad provisions, including compulsory arbitration if an employer and union don't reach an agreement.) Says Stewart Acuff of the AFL- CIO, "We want to remind Congress that this is the AFL-CIO's No. 1 priority."

If the government is going to be involved, it's hard to argue against a secret ballot election run by the NLRB as the best method for assessing worker sentiment. The federal courts have routinely endorsed elections in the cases before them.

One circuit court declared in 1965: "it is beyond dispute that secret election is a more accurate reflection of the employees' true desires than a check of authorization cards collected at the behest of a union organizer." Two decades later appellate jurists ruled: "an election is the preferred method of determining the choice by employees of a collective bargaining representative." A decade later another federal court stated: "a secret election is the preferred method of gauging choice."

But don't ask the judges. Ask the workers. A recent Zogby poll found that union members themselves believed, by an impressive 84% to 11% margin, that employees should be able to vote on union membership.

THE ARGUMENT ADVANCED PUBLICLY by organized labor for card check is that elections are, sob!, unfair because of terrible, abusive employers who intimidate their employees. The Nation melodramatically opines: "This is not just a labor issue. It's first of all an issue of basic human rights and democracy, including freedom of association and speech." Slightly less hysterical is Stewart Acuff, who declares: "Congress has an obligation to restore the right to organize." Liberal blogger David Sirota says Congress should "protect people's very basic rights to organize." And do so by preventing them from voting on the issue.

It's a truly astounding argument. The vast majority of representative elections are held within two months of a request. Moreover, a secret ballot makes real business intimidation -- vote against the union or else! -- impossible. If a company pressures or fires pro-union employees, it can be punished under existing law for an "unfair labor practice." In extreme cases the NLRB can simply order a firm to negotiate with the union, as if the latter had won.

Despite wild charges of pervasive employer abuses, the NLRB has found that union organizers were illegally fired in fewer than two percent of cases. Organized labor loses almost as many elections as it wins because the majority of workers today say they don't want to join a union. If left-wing activists really believed that the problem was inadequate penalties, they could propose a specific fix.

Instead, the unions say cancel elections and let us win. (Strangely, they don't advocate authorizing card checks for dropping a union.) Since the other party (never mind our behavior!) sometimes doesn't play fair while campaigning, we should eliminate the ballot. Not improve the process. Not reverse the unfairness. But do away with any inconvenient vote.

Many Republicans probably would like to apply that logic to Congress after last November. Liberal Democrats, left-wing bloggers, trial lawyers, and labor unions unfairly biased the election, so we should choose legislators some other way. Of course, many Democrats probably had the same reaction after George Bush was elected and reelected.

The real reason organized labor wants card check is that representation elections don't deliver the results that unions desire. For decades labor organizers won only half the votes. Even today unions lose more than 40 percent of representation ballots. In the view of labor activists that means elections are ipso facto unfair. Obviously it doesn't make sense for organized labor to ask workers to democratically decide on representation if they vote no almost as often as yes.

Even a super-majority of pro-union cards doesn't guarantee victory in a subsequent election. A few years ago the AFL-CIO acknowledged that only when it collected signatures from at least 75 percent of the workers did it have an even chance of winning a free vote.

In contrast, the AFL-CIO says it "wins" three-quarters of card-check campaigns. This should come as no surprise. Where is intimidation more likely: a secret ballot election overseen by the NLRB, or a union-organized card check campaign in which signatures are public and obtained through "persuasion" by union organizers?

ALTHOUGH UNIONS LIKE TO PRESENT themselves as representing the little guy against Big Business, in fact organized labor is another Big Business. And unions are as likely to ignore the interests of workers in favor of their own interest as are corporations.

Warns Carl Horowitz of Union Corruption Update, card check "opens workers up to undue pressure from union reps and fellow workers who support them." Indeed, for all of labor's posturing about unfair employer practices, the U.S. Chamber of Commerce points out that "the annals of NLRB case law are packed full of examples where card check elections have been challenged on coercion, misrepresentation, forgery, fraud, peer pressure, and promised benefits."

James Sherk of the Heritage Foundation cites such examples as one "when the worker's wife -- alone at the time -- didn't answer the door, union reps circled the home several times, rapping on the windows before finally leaving. Another batch of reps pulled up to a worker's house and began videotaping him and his property." Today, at least, a worried worker can sign a card to escape abuse and then vote no when it really counts, without exposing himself to retaliation. With mandatory card check, which would substitute for an election, unions will have an even greater incentive to muscle recalcitrant workers into signing on.

No wonder organized labor wants to eliminate employee elections. Observes the Nation: "Without this new law, employers will continue to ignore cards and demand elections, even though the only thing these elections have in common with democracy is the casting of ballots." Duh. What would democracy be without the casting of ballots?

Last month House Speaker Nancy Pelosi promised: "We're going to move on 'card check,' because now we set the agenda and that will be part of it." Moving too are opposition groups, such as the Alliance for Worker Freedom and National Right to Work Committee. A number of organizations and business associations also have created The Coalition for a Democratic Workplace. Anyone who believes in economic freedom for workers needs to act, and act now.

Some critics of organized labor might be tempted to rely on a presidential veto. Alas, for six years believers in limited government and individual liberty have been waiting for the White House to do the right thing. Moreover, Democrats likely will attempt to attach card check to a "must pass" piece of legislation that would be difficult to veto. Finally, it's important for Congress to kill the bill, discouraging any resurrection even if the Democrats win the White House in 2008.

Economic freedom is likely to be under attack on many fronts in the new Congress. No battle will be more critical than that over card check legislation -- more accurately called "The Secret Ballot Destruction Act."

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About the Author
Doug Bandow is a senior fellow at the Cato Institute. A former Special Assistant to President Ronald Reagan, he is the author and editor of several books, including The Politics of Plunder: Misgovernment in Washington (Transaction).