As the debate over the Employee Free Choice Act has gone back and forth, a new union talking point has emerged among the bill's supporters: Unions argue that EFCA doesn't actually abolish secret-ballot elections, it simply creates a new method — card check, meaning that a union can be certified as representative once they have signed authorization cards from a bare majority of bargaining unit members. Workers supposedly can still call for a secret ballot vote if they want one.
In theory that's true. It's also theoretically possible that the Lions could win the Super Bowl next year, but the odds on that are about 1,000-to-1, and those are about the same odds that workers will get a secret ballot in the event that the EFCA passes.
Here's what needs to happen for workers to get a secret-ballot vote if saddled with EFCA: They would need to arrange things in advance so that the union is able to secure signed authorization cards from somewhere between 30 and 50 percent of the workforce. Any lower and the union will be unable to petition for an election. Any higher and the union will have the ability to invoke card check and install itself without a vote, which it will almost certainly do.
There's only one situation where it might be in the union's best interest to hold a vote when they have cards signed by a majority of workers, and that is when the support is so strong that the result is not in doubt. In that case the vote can serve as a public-relations event, but that's not really the best use of the National Labor Relations Board's time and resources.
As things stand now, if a union doesn't have signed cards from a majority, that union will typically not go ahead with a vote. Support normally declines between the collection of authorization cards and the holding of a secret-ballot vote. Most unions will not hold a vote unless it has signed cards from around two-thirds of the workforce.
But let's set this problem aside — if the union understands that the workforce as a whole is working to arrange a vote, maybe it will be assumed there are more supporters who haven't signed cards, and go ahead and schedule the election. The question remains, how do workers arrange all this in advance?
Some sort of random selection might do the trick. A random drawing would be problematic — how do you communicate reliably to individual workers which ones are to sign and which ones aren't? But workers could arrange something similar on an individual basis. They could sign or not sign based on a single die roll done at home: roll a one or a two and you sign as soon as you get the chance, any other roll and you do not sign under any circumstances.
If this process is followed consistently, the union should end up with signed cards from about one-third of workers. This result, 33 percent, is in the low end of the 30-50 percent range but lower is safer, in case the union resorts to arm-twisting to get extra signatures — there's no guarantee a union rep will accept a worker's explanation that he isn't signing because he's trying to arrange for a vote — or if some other sort of error creeps into the process. You can always arrange to sign more cards if it turns out the union has too few, but if you sign too many it's awfully tough to get them back.
Of course, when unions say that workers can still choose an election under EFCA, what they mean is "workers who happen to already be union officials." Those are the workers who will collect the signatures and decide what sort of paperwork to file with the NLRB. The problem is we still don't know if those workers actually speak for the workforce as a whole. But there is a solution to that problem as well: Amend EFCA so that there's a secret-ballot vote to determine who will decide whether or not to have a secret-ballot vote on unionization. That way we'll know that if workers want a secret-ballot vote, they'll get one.
Paul Kersey is director of labor policy at the Mackinac Center for Public Policy, a research and educational institute headquartered in Midland, Mich. Permission to reprint in whole or in part is hereby granted, provided that the author and the Center are properly cited.