As public support for the misnamed Employee Free Choice Act
(EFCA) fades,[1] three companies (Starbucks, Costco, and
Whole Foods Market) have proposed replacing card check--the means
by which employees indicate their support for union
representation--with expedited elections: Workers would vote on
whether to organize within a few days of unions filing for
representation with the National Labor Relations Board (NLRB).[2] Days
later, EFCA suffered another blow when Senator Arlen Specter (R-PA)
announced that he is in favor of retaining the secret ballot but
might support these expedited or "snap" elections.
Snap elections would allow EFCA supporters to claim they
preserve the secret ballot--the loss of which is EFCA's most
controversial component. Secret ballot elections exist to protect
voters' right to make an informed, private choice free of
intimidation and pressure and with the time to sort out
misinformation from facts. Snap elections preserve the secret
ballot in name only, because they compromise the election process:
While the direct process of casting a vote in snap elections still
occurs in private, with only a few days to hear both sides of the
issue, employees are deprived of the ability to make an informed
choice when they vote.
With regard to their ability to make an independent, informed
choice on union organization, snap elections are no better than
card check.
Workers Hear Only the Union's
Story
In order to hold an NLRB-conducted election, a prospective union
must file a petition showing it has the support of 30 percent or
more of workers in the company. Frequently, a union's petition for
certification is an employer's first notice that employees have
even begun an organizing drive. Before employers receive this
notice, union organizers have as much time as they want to
persuade--and potentially misinform--workers.
Unions may legally use any number of misleading and outright
dishonest tactics to win worker support. Some union organizers rely
on aggressive sales tactics such as "SPIN selling" to sell workers
on the benefits of unionizing.[3] SPIN stands for Situation,
Problem, Implication, and Need payoff--the four emotional states
through which organizers lead employees in order to secure a signed
union-authorization card. The SPIN technique, like other
high-pressure sales tactics, emotionally manipulates workers.
Unions also train organizers to deflect questions about the
potential downsides to unionization.[4] Organizers do not inform
workers about strike histories, union corruption, or dues
increases.
When an election takes place only days after the company learns
of the organizing campaign, workers largely have only union
information. Therefore, the fact that the ballot-casting is secret
does not do enough to protect workers' rights. Employees must have
the opportunity to hear from management, too, not just from the
union. Only then does a secret ballot serve its full intended
purpose.
Organizing Campaigns Favor Unions
The current election process already provides unions with
tremendous advantages during a campaign. Indeed, according to the
NLRB, in 2007 unions won 59.9 percent of representation elections.
The law gives unions a free hand while severely restricting what
employers may tell their employees. For instance:
- No warning of layoffs. Companies are legally prohibited
from informing workers that, due to resulting costs and
regulations, a union victory might force them to close the plant,
outsource jobs, or take other actions that would harm workers.
Labor organizers are free to warn workers about what they
believe will happen if the workers do not unionize.
- No promises of benefits. An employer may not promise to
raise wages, improve benefits, or otherwise improve working
conditions in exchange for workers choosing not to unionize. Unions
may promise large wage increases or job security if they win, even
if those promises are not kept.
- No grievance solicitation. Employers are generally not
allowed to ask their workers what concerns they have with the
company. Unions are free to ask workers what they do not like about
their jobs and are free to promise to fix these issues through
collective bargaining.
- No asking about union support. An employer may not ask
whether an employee supports the union, a restriction that covers,
for example, asking whether a worker has attended a union meeting,
signed a union card, or seen any other workers do so.Union
organizers may ask workers how they plan to vote and focus their
efforts on persuading workers who do not want to join.
- No equal access to workers. The law allows employees who
support unionizing to campaign for the union at the workplace when
they are not on the clock. The law also requires companies to let
union organizers freely recruit workers during non-work hours,
unless the company has a general policy against soliciting on its
premises. Unions may even campaign at workers' homes.
Employers may only communicate with employees during work
hours.
- No control of election timing. Unions decide when the
vote will take place, so the election does not occur until
organizers believe their support has peaked. If a majority of
workers oppose the union, the organizers simply postpone the
election.
Employees Deserve to Hear Both
Sides
The only thing that can balance these advantages and let workers
hear the full story is time. Time is precisely what snap elections
remove from the union organizing process. Employers learn of the
organizing drive once the union organizers file for an election and
then have only a few days to present the downsides of organizing,
about which union organizers have kept silent.
Employers explain that unions often do not achieve their
promised wage increases but always take 1-2 percent of the
employees' wages in dues. Employers point out patterns of union
corruption, strike histories, and clauses in union constitutions
that levy stiff fines against workers who stray from union
rules.
Traditional election campaigns ensure that employees learn both
the pros and cons of joining a union and can make an informed,
reflected choice. Organizing campaigns present employees with a
great deal of information, terms, and ideas with which they might
not be familiar. It is reasonable to expect that employees need
more than a week to shift through the rhetoric, especially if they
have been hearing only one side for months. Few voters would be
comfortable making their choice for President in only seven
days.
Furthermore, as former union organizer Rian Wathen notes, "There
is nothing in the law that says the union organizer must tell the
truth. ... The government's position is basically that it's okay
[for organizers] to lie to employees because employees have 42 days
to figure out [the truth]."[5]
Employees also need time to discuss the consequences of
organizing not only with union organizers and management but with
one another as well. If Congress agrees to snap elections, workers
will not have 42 days to unravel lies and misinformation and
discuss union organizing with each other. They will have a
week.
Protecting Employees
Although some of the ideas proposed by Senator Specter and the
business community should be seriously considered by lawmakers,
substituting snap elections for card check recognition is not one
of them. Any process that fails to protect an employee's right to
make an informed, private choice about joining a union in an
environment free of intimidation, pressure, or misinformation is
unacceptable. Merely preserving the secret ballot is not enough.
Employees need the opportunity to hear from both management and the
union organizers--and the time to discuss the issues with their
co-workers and personally reflect before entering the voting
booth.
James Sherk is the Bradley Fellow in Labor
Policy, and Ryan O'Donnell is a former private-sector labor
attorney and current Web Editor, at The Heritage Foundation.