When Workers Say No

March 30, 2009 • Commentary
This article appeared in the National Review (Online) on March 30, 2009.

Organized labor is on the march, with Democrats in control of both ends of Pennsylvania Avenue. The top priority for big labor has been the Employee Free Choice Act; it may not be possible to pass the bill this session, but unions continue to push for it. Even a small electoral change in 2010 could put the issue back in play.

Organizers want Congress to help them intimidate their way to victory, because, as it is, too many workers are saying no to unions. Today just 7.6 percent of private‐​sector workers belong to unions. Only in government employment has unions’ representation been growing. Most Americans recognize that they will have more opportunity in a vibrant, growing economy than in the sort of calcified system favored by labor‐​union executives. This has long been the case: Even in organized labor’s glory years, it never played the leading political role in the U.S. that it achieved in Europe. The American economy always was more open and entrepreneurial.

But union activists don’t get it. In organized labor’s view, if employees vote no — unions lose 40 percent of organizing elections — it must be a result of corporate perfidy. If you listen to the rhetoric of big‐​labor executives, you would think that American unions were battling Adolf Hitler’s Germany or Joseph Stalin’s Soviet Union on behalf of human rights and individual liberty. For instance, the AFL-CIO declared that in America “workers still lack the freedom to form unions.” Apparently labor organizers are being hauled off in handcuffs, and workers are being tossed into the Gulag.

To stop employees from saying no so often, unions have proposed to rig the system: Under the Employee Free Choice Act, whenever a union gets more than half of a company’s workers to sign unionization cards — in a process known as “card check” — the National Labor Relations Board [NLRB] can certify the union right then and there, without an election. Such a process would have two unfortunate effects.

The first would be to reward unions’ misrepresentation and intimidation. Workers across America testify that union organizers use all manner of techniques in pressuring workers to sign, and that they regularly deceive employees about the impact of signing a card (as the law stands today, the NLRB can certify a union based on card check, but only if the employer agrees). Also, card check makes employees’ views on unionization public. Relying on signed cards in lieu of a secret‐​ballot election is akin to a poll in the Soviet Union, where you showed your ballot to the local political commissar before dropping it into the box.

Second, card check would simplify the unpleasant — for organized labor — process of persuading workers that they would get a better deal by joining a union. An organizing campaign allows the company as well as the union to make its case. One reason we don’t choose the president of the United States by collecting signed cards is that we believe that an election campaign, however flawed, helps develop issues and answer questions. If the union’s argument is a good one, organizers shouldn’t fear a vote in which the company can politick as well.

Unions support the Employee Free Choice Act not out of principle, but out of concern for their own success. In fact, labor officials like elections — when workers are seeking to toss out a union. Citing a U.S. Supreme Court case, the AFL-CIO shamelessly contended: The “representation election system provides the surest means of avoiding decisions which are ‘the result of group pressures and not individual decision.’ ” No card check here: If you want to decertify a union, you have to defeat it in a secret ballot.

Still, many efforts to defeat unions succeed. Although the number of organizing elections has been falling in recent years, the number of decertification elections has remained relatively constant over the last decade, at more than 300 annually. While unions have pushed up their win ratio from 50 to 60 percent in certification votes (though participating in fewer elections), they have been consistently losing 60 to 70 percent of decertification ballots.

The NLRB’s records show the extent and breadth of worker dissatisfaction with unions. In its six‐​month report filed last September, the NLRB reported that unions lost 78 of 141 decertification elections. In the prior six‐​month period, unions lost 86 of 149 votes. And in January 2009 alone, unions lost their representation power over the employees of eight companies ranging from the Cradle of Aviation Museum in New York to the Chariton Valley Electric Cooperative in Iowa to the Crystal Care Center in Minnesota. In eight more companies, decertification elections were held, but the unions held on to power.

Workers, not employers, initiated all these votes. Obviously, even though employees often believe a union’s initial sales pitch, many workers come to realize that the union option is not the right one. And with a secret‐​ballot election available to protect them from intimidation and retaliation, they feel free to vote their consciences. As a result, unions lose more often than not.

Labor law is an inefficient mishmash. Instead of micro‐​managing business‐​labor relations, government’s principal responsibilities should be to enforce contracts, prevent intimidation, and punish violence. But having set up a regulatory structure to promote unionization, Washington has a responsibility to protect workers as they express their preferences. And that requires preserving secret‐​ballot elections for union recognition.

That unions take the opposite position should come as no surprise. Contrary to the impression created by the white‐​hot rhetoric of union executives, American workers are not prevented from organizing. In fact, current law guarantees genuine “free choice” for employees by preserving their right to a secret ballot — precisely the problem in the view of labor executives, who want more money and influence. Congress should say no to big labor’s push for the Employee Free Choice Act.

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