NLRB Secret Ballot - in name only

"A secret-ballot election is the American way" cry the anti-union pushers in protest of the Employee Free Choice Act (EFCA), which, in addition to making other long-needed corrections in labor law, would require employers to recognize a union where a majority of the workers designate a union to represent them through signed authorization cards. Such card-check recognitions are perfectly legal under current law. Employers, however, are not required to honor such designations by their workers and may insist that the workers use a so-called secret-ballot election conducted by the National Labor Relations Board (NLRB) to establish their union even if 100% of the employees provide the NLRB with signed authorizations designating the union as their bargaining agent. The EFCA would allow workers to have their union certified as their bargaining agent by the NLRB if a majority of them have signed valid authorizations.

But why do I say it's a "so-called" secret-ballot? University of Oregon Professor Gordon Lafer answered that question at a Congressional hearing two weeks ago:

In the American democratic tradition the principle of the secret ballot is not simply the fact that you go into a voting booth and pull a curtain and nobody sees what you do. It is your right to keep your political opinion private to yourself before, during and after the act of voting; that you can't be lured or coerced into a conversation that is designed to make you reveal your political preferences. In the NLRB, while the vote does take place in a booth where nobody sees what you're doing, management is allowed to engage in a series of behaviors in the lead up to the vote that force the vast majority of workers to reveal how they're going to vote long before they ever step into the booth.

Listen to Professor Lafer testifying two weeks ago before the U.S. House of Representatives Subcommittee on Health, Employment, Labor and Pensions Hearing on Strengthening America’s Middle Class Through the Employee Free Choice Act:




Folks, it's simple: if the NLRB union representation election process were free and fair we wouldn't today be talking about the need or not of an Employee Free Choice Act. But the record is abundantly clear: management's unlawful conduct is rampant in the leadup to a union representation election. According to the NLRB, 31,358 workers received backpay in 2005 as a result of illegal firings and other unlawful discrimination by employers. It is impossible for American-style democratic free and fair elections to take place in such an evil atmosphere.

As professor Lafer pointed out in his written statement, "the [NLRB election] system is profoundly broken, profoundly undemocratic, and...profoundly un-American."