06/26/2007 10:42 am ET Updated May 25, 2011

Unions, the Secret Ballot, and American Values

The Senate will probably vote tomorrow on the Employee Free Choice Act, legislation that would amend American labor law to make it easier for workers to join unions. The opposition to the bill has been fierce -- with op-eds and full page newspaper ads (from an outfit called UnionFacts) denouncing the legislation as undemocratic.

The opposition has centered on a provision of the bill that would permit unions to be recognized without a formal election if a majority of workers in the bargaining unit signed authorization cards stating their desire for union representation. Current law provides for a formal secret-ballot election, supervised by the National Labor Relations Board, even if a majority of workers have signed union cards. Under the new legislation, such elections would be held only if workers requested them. If not, the board could certify the union based on the signed cards of a majority of workers; once the union was certified, employers would be obliged (as they are now) to negotiate a contract in good faith.

Critics, including employers' associations and conservative politicians, have denounced this procedural shift as a deprivation of workers' "basic American right" to a secret-ballot election. One business columnist, asserting that the "secret ballot is the very cornerstone of our democracy," claimed that the bill would violate "the American way." Senator Orrin Hatch declared the legislation to be "inconsistent with our nation's history in promoting private ballot elections for the disenfranchised members of society."

These denunciations of EFCA for violating democratic principles are -- if not quite a red herring, at least a pink herring. For one thing, the history invoked is mistaken. There were no secret ballots for the first sixty to one hundred years of American history (depending on the state), and many of our forebearers (including key founding fathers) strongly believed that votes should be cast publicly, with voters proudly declaring their preference for one candidate over others. Most of the voters who supported Jefferson, Jackson, and Lincoln did so either viva voce (by speaking aloud) or by casting clearly identifiable written ballots that were printed and distributed by political parties. Secret ballots emerged only in the latter nineteenth century, in response to concerns about electoral corruption in the new conditions of urban, industrial society; one key concern was the apprehension that industrial employers were utilizing their economic power to pressure their workers to vote for particular candidates. That perception seemed to be validated in the textile capital of Lowell, Massachusetts in the 1850s, when the adoption of the secret ballot led to a sudden drop in electoral support for the pro-business Whig Party.

Having a secret ballot, thus, was never a "right" in itself; it was a means of protecting the right to vote. Secrecy became a key protection for that right in particular contexts, most notably those where some individuals possessed economic power that they could mobilize to influence the political choices of others. The secret ballot sheltered men (and later women) against losing their livelihoods if they cast a ballot that displeased their employer -- whether that employer was a factory owner or a machine politician who controlled patronage jobs. The historical origins of the secret ballot had nothing to do with insulating voters from peer pressure: in the rural nineteenth-century world, the political preferences of farmers did not have to be hidden from the eyes or ears of other farmers.

The conflict over elections under the Employee Free Choice Act is also about economic power and coercion. NLRB-conducted secret-ballot elections likely do protect some workers against unwelcome peer pressure as well as reprisals from employers. Yet the very process of conducting a workplace election campaign opens the door to distinctive dynamics of pressure and coercion from employers. In the six weeks that typically elapse between the signing of pledge cards and the casting of ballots, workers are commonly subjected to employer-sponsored campaigns more intrusive and threatening than anything that happens in the arena of electoral politics. Employers often require workers, individually and in groups, to attend workplace meetings where anti-union arguments and claims are put forward (without any union representatives present to counter those claims); attendees at these meetings are frequently told that their plants will close if the union wins the election. (Unions also campaign during this period, but they do not control the paychecks of their prospective members.) Meanwhile, company officials actively try to gauge the views of individual workers, and, according to one study, roughly twenty percent of all pro-union activists end up getting fired. Such firings are illegal and can be reversed, but the process of reversal is arduous and can take years (and would become more costly for employers under the new legislation).

A secret-ballot election, then, does not effectively shield workers because the coercive power of employers is structural and ongoing; the weeks preceding election day offer employers a prolonged window in which they can mobilize that power to pressure workers to reverse their already-stated preferences. This is a far cry from the purity of the secret ballot. Notably, no secret-ballot elections are required when an employer is seeking to withdraw recognition from an already-existing union and can provide evidence that a majority of workers no longer wish to be represented by an incumbent union.

Claims about democratic procedures and the intrinsic virtues of secret-ballot elections are misleading, at best. The fundamental issue underlying the possible passage of the Employee Free Choice Act is quite simple: should the basic framework of American labor law be amended to make it easier for workers to unionize? In an historical era when workers' wages have been stagnating while income inequalities have widened dramatically, when the number of Americans without health insurance is growing, when polls indicate that between a third and a half of all non-managerial employees would like to have union representation, it is an affirmative answer to that question seems most consistent with both American values and democratic principles.