Is the secret ballot on its way to becoming extinct in union elections?
It could happen if Sen. Teddy Kennedy (D.-Mass.) and his pro-union allies in Congress have their way, says David Denholm.
Denholm is president of the Public Service Research Foundation, which is based in Vienna, Va., and studies the influence of unions on public policy. He says two similar bills — S. 842 in the Senate and H.R. 1696 in the House — have been introduced that would change the way union elections are conducted, and not for the better.
The legislation, introduced last year, carries the Orwellian name "Employee Free Choice Act" and has been picking up hundreds of co-sponsors and someday could become law. I called Denholm on Wednesday to find out what’s going on.
The Employee Free Choice Act sounds like something anyone could be in favor of, or applaud. What is it?
Denholm: The Employee Free Choice Act — I should say the misnamed Employee Free Choice Act — would take away the right of workers to a secret-ballot vote on whether they wanted to be represented by a union. The normal process, the process established by the National Labor Relations Board under the National Labor Relations Act, is that the employees who want union representation have to petition for an election. That can be done by signing authorization cards. The cards have to be signed by 30 percent of the employees in what’s called the bargaining unit, the unit of employees the union seeks to represent. Then the next step is for the NLRB to schedule and conduct a secret-ballot vote on whether or not a majority of the employees want union representation. That’s the normal process. It’s a government supervised secret ballot and there are some rather strict rules on employer and union interference in the balloting process.
How would this act change all that?
Denholm: The Employee Free Choice Act would say that where a union got a majority of employees to sign authorization cards, then the NLRB would certify the union as the representative of the employees. That is, as opposed to having the workers sign authorization cards and then having a secret vote.
So why would unions want to do away with the secret ballot? Didn’t they once fight for that?
Denholm: Yes. In fact, I think some of the early union leaders would be rolling in their graves to see how low the union movement has sunk. The reason they want to do away with the secret-ballot election is that they find that they can’t win secret-ballot elections. There was a professor at Cornell University who not too many years ago did a survey that found that in order for a union to have a 50-50 chance of winning a secret-ballot election, it had to get 70 percent of the workers to sign authorization cards.
You might ask, "Why would 70 percent of workers sign cards and then a majority of them vote against union certification?" It’s because of the process. There are a lot of workplace reasons where an employee who was asked to sign an authorization card would sign it — having no intention at all of ever voting for a union. One reason would be simply to get the union organizer off their back. Or, perhaps, it’s just to go along to get along. Sometimes, though, it is outright intimidation. I have spoken to workers who have signed cards in a situation because they have felt physically threatened — in other words, "Sign the cards or else."
Are the unions this desperate to rebuild their ranks?
Denholm: Unions have been going downhill steadily for about 50 years. At first that was disguised a bit by the rapid growth of public sector unionism. But since the 1970s, the decline of the unions — particularly in the private sector, where the NLRB is active and where the so-called Employee Free Choice Act would apply — has been steep. They’ve gone down from having almost 35 percent of the work force unionized in the mid-1950s to having less than 8 percent today in the private sector — and going down. Unions have become almost irrelevant to workers’ concerns. Yes, they are desperate to try to find some way to turn around their sagging fortunes.
The Senate bill is sponsored by Teddy Kennedy. We all know who he is. But who is George Miller, the main sponsor in the House?
Denholm: He is a Democrat from California. Just to give you an idea of the dynamics of all this, the Miller bill in the House has 215 co-sponsors. Obviously, that is more than all the Democrats in the House. I would point out to you that every Democratic member of Pennsylvania’s House delegation is a co-sponsor of that bill. But there also are two Republican members of the Pennsylvania House delegation, Jim Gerlach of the 6th District and Curt Weldon of the 7th District.
Imagine that: 215 members of the House of Representatives have so little respect for the working people of America that they would take away their right to a secret-ballot election on union representation. It’s just mind-boggling.
The Senate bill has 42 co-sponsors.
Denholm: Yes — including Pennsylvania’s own Arlen Specter. I don’t think there are any other Republican co-sponsors.
What is the likelihood that these bills will be passed and we’ll get a final law?
Denholm: I think the chances of passage of either of these bills in the present Congress is very slim. And I will tell you that I suspect that is one reason they are getting so much support. I’ve seen this over and over again, not just on this issue. When a member of Congress can do something that gets him kudos from the unions — and when he does it he believes with a certainty that there is no cost to it because the bill is not going anywhere — then they become co-sponsors. I’m thinking back to when the Republicans captured control of Congress in 1994; all of a sudden legislation that was getting support didn’t get support because now these Republicans had to be answerable to it. I’ve also seen situations where Republicans have told me to my face that they are co-sponsoring a bill because it’s not going anywhere.