How To Deny Employees Free Choice

National Journal

I don’t know whether it would be good for employees, or for the country, if millions more were unionized, as will eventually occur if Congress passes the Obama-backed Employee Free Choice Act, now the subject of a titanic lobbying battle focused on a handful of moderate senators.

I am pretty sure that it has become unduly hard for workers to embrace collective bargaining if they choose, in part because the penalties for employers who fire and intimidate pro-union employees and stall unionization elections are too weak to deter such misconduct.

But I am very sure that the radical changes that the proposed law would make in long-established labor laws are overkill. The most publicized "card-check" provision would essentially end use of the secret-ballot elections that have been required (at the option of employers) for more than 60 years to determine whether a majority of employees want to unionize their workplaces. Even more alarming to some employers is another provision that would empower government arbitrators to dictate contractual terms when unions and management cannot agree.

These measures are not necessary to remedy the employer abuses of which unions complain. They would probably be bad for employees and employers alike, and they might kill countless jobs at a time when unemployment is already soaring.

The card-check provision would require an employer to immediately recognize as its employees’ collective bargaining agent any union that could persuade a majority of the workers to sign union authorization cards. Secret-ballot elections would be held only if requested by unions, which would have little incentive to do so.

The problem is that an employee cannot make anything close to an entirely free choice when asked to sign a union card, perhaps in an unsolicited visit to his or her home by two or more union activists or other co-workers who will be most unhappy if he or she refuses. Not to mention the documented cases of union activists putting workers in fear of physical harm, falsely promising that they would be free to stop paying dues if they come to regret joining the union, and the like.

There is a reason, in the political realm, that secret ballots are used in genuinely democratic elections all over the world. For the same reason, "the secret ballot is absolutely necessary in order to ensure that workers are not intimidated into voting for a union they might not otherwise choose."

These are not the words of some business lobbyist. They come from a letter sent eight years ago to officials in Mexico by Rep. George Miller, D-Calif., and 15 other House members, including Democrats Barney Frank of Massachusetts, Dennis Kucinich of Ohio, and Zoe Lofgren of California. These members have since embraced the free-choice act’s attack on the secret-ballot requirement. (Miller’s spokesman has dismissed this letter — unpersuasively, in my view — as irrelevant because it concerned a contest between an independent union in Mexico and what was seen as a sham "official" union.)


The government’s role is to guarantee the right to strike so that unions can use raw economic power to force concessions.


Even absent intimidation, an employee is not making a fully informed choice when he or she signs a card after hearing only the union’s account of the supposed benefits of unionizing. Employees may not have heard the employer’s case that unionizing would make them worse off — by, for example, requiring them to pay dues for many years to come, or imposing inefficient work rules, or making their workplace uncompetitive.

The bill’s supporters argue that in practice the secret-ballot requirement denies employees a genuinely free choice because many employers fire or otherwise intimidate pro-union workers; use procedural challenges and other tactics to stall elections; and deluge workers with anti-union propaganda.

They cite a new study by the liberal Center for Economic and Policy Research concluding that since 1950 — and especially since 2000 — "the likelihood that a pro-union worker would be fired in a union-election campaign has jumped sharply — to about one in every 52 pro-union workers," and to perhaps 20 percent of the most active union organizers. According to the study, this finding helps explain the steady slide in the percentage of unionized U.S. workers from 32.5 percent in 1952 to 12.4 percent in 2008 — and to less than 8 percent in the private sector.

Employer groups attribute the decline in union membership to factors including the sad state of unionized industries, such as autos and steel; the ability of many successful companies to persuade employees that they are better off without unions; and the adoption in recent decades of employment laws that provide some of the same protections as unions — without charging dues.

Even assuming a need for legislation to deter anti-union coercion and stalling by employers, the logical remedy is not to subject employees to pro-union coercion instead, as the card-check provision would do. The solution is to increase the penalties for employer coercion and other egregious misconduct very substantially — although not as dramatically as another of the bill’s provision would do — and to give the National Labor Relations Board the means to ensure fair and expeditious elections while eliminating its own flagrant delays in deciding disputes.

Congress should also consider empowering the NLRB to certify unions that have shown enough majority support to suggest that they would win a fair secret-ballot election absent clearly established employer intimidation.

In the words of Sen. Arlen Specter, R-Pa. — one of the moderates at whom employers and unions are directing at least $200 million worth of persuasion — Congress needs to adopt stronger remedies against cheating by passing legislation "that focuses on securing employees’ freedom of choice in the workplace, rather than on serving the interests of unions or employers."

The complaints about employer propaganda during election campaigns are simply not persuasive. Anti-union propaganda is no less legitimate than pro-union propaganda. One person’s propaganda is another’s free speech. And the labor laws already address the risk of propaganda being tinged with intimidation by placing strict — perhaps unduly strict — limits on employer communications with employees.

Union organizers can approach employees in their homes, in bars, or anywhere else, without the employer’s knowledge, with visions of better wages, benefits, and working conditions. Employers, on the other hand, can approach employees only in the workplace, and cannot predict ("threaten") that they will close up shop if the union wins — no matter how accurate the prediction might be.

Even when an employer is heavy-handed in pressing its case, employees are free to vote against it without fear of being found out. But the card-check bill would make it impossible for an employee to oppose the union without the union finding out.

The measure’s second radical provision would allow arbitrators to dictate wages, hours, conditions of employment, and other terms if an employer and a union cannot agree on a contract. Specifically, if no agreement is reached within 130 days of a union’s request for bargaining and then for mediation, arbitrators could impose contractual terms for a two-year period.

This would be a revolutionary change. While the National Labor Relations Act has required employers for more than 60 years to bargain in good faith, it has never authorized officials to impose contract terms or order employers to make concessions — and for good reason.

The bill’s supporters say that mandatory arbitration is necessary because more than a third of newly certified unions never succeed in getting the employers to agree to contracts. They complain that many employers go through the motions of bargaining with no intention of reaching agreement.


The government’s role is to guarantee the right to strike so that unions can use raw economic power to force concessions.


This may well be true. But it is not new. The premise of U.S. labor law has long been that the government should not take sides in labor disputes or impose terms on recalcitrant employers, but rather should guarantee the right to strike so that unions can use whatever raw economic power they possess to force concessions.

It may be regrettable that unions often lack the power to win generous contracts. But this proposed cure would be worse than the disease. It would assign arbitrators to make business decisions for which they are little better qualified than lawyers are to perform surgery. One consequence would be to give employers and unions alike incentives to spurn compromise and take extreme positions in the expectation that arbitrators will split the difference.

More broadly, while employees’ rights to unionize are an essential source of leverage to extract a fair share of the fruits of their labor from profit-maximizing employers, it does not follow that the more unions, the better. Even the best unions often introduce inefficiencies such as the thousands of pages of work rules imposed by the United Auto Workers during its heyday.

The most enlightened employers are those that fend off unionization by giving their employees everything that they could get through a union without raising labor costs so high as to lose the competitive edge and profitability on which their employees’ long-run job security depends.

And the worst economic crisis since the 1930s would be an odd time to shift the balance of power so far in favor of unions as to risk sending such employers the way of General Motors.

This article appeared in the Saturday, March 21, 2009 edition of National Journal.