If Democracy is What We Want, EFCA is What We Should Get

Note: Just as I post this, I've been informed that the Senate has removed the Card Check provision. I'm not sure what the status of it is in the House.

Without a warrant based on the labors of reason or adherence to reality, the concept of democracy has been hijack by the Chamber of Commerce, acting on behalf of the interests of America’s employers. As fabricated around the ensuing debate over the merits of the Employee Free Choice Act (EFCA), which would effectively make it easier for workers in the U.S. to unionize, the Chamber has managed to position itself as the guardian of the secret ballot, and, by extension, democracy and workers’ rights. Yes, your eyes are not deceiving you. I said the Chamber of Commerce! The real deception however, is found in the Chamber’s hallow claim to be a champion of democracy and defender of the rights of workers’.

So, how does the Chamber of Commerce make such claims? Under the current rules established by the National Labor Relations Act (NLRA), or Wagner Act, efforts to unionize workers begin when an employee gets 30 percent of his or her colleagues to sign a petition (cards) calling for an unionization election. After 30 percent of the workers sign cards, the employer decides on whether to have a National Labor Relations Board (NLRB) supervised secret ballot, or to just accept the petition as a the will of the workforce by allowing immediate unionization without an NLRB election. If the employer decides on the NLRB supervised ballot (most of course do), elections will be held several weeks later. The EFCA, or card check, by contrast will allow employees rather than employers to decide on whether or not to allow majority (50 percent) sign-up to go from petition to immediate unionization without an NLRB election. The EFCA opponents cite that taking away the time-tested workers’ right to a secret ballot undermines a core democratic spirit of the unionization process in the U.S. According to a Chamber of Commerce opposition letter to the Senate, the NLRA “established a system of industrial democracy that is similar in many respects to the nation’s system of political democracy.” The EFCA is a threat to that industrial democracy. Sounds great, right? Well, maybe not.

Don’t be fooled. Accepting the Chamber’s position requires one to also accept a few falsehoods about the connection between democracy and voting. What are these falsehoods? The core assumption of the Chamber’s position equates the presence of secret ballots with democracy itself. Yes, one could argue that the secret ballot is necessary for the functioning of democracy. But, if we argue that the secret ballot is sufficient for democracy, as EFCA opponents frequently do, we have just added Zimbabwe, Kazakhstan, Iran, Afghanistan, Saudi Arabia, and many others to our list of democratic countries. In most of these authoritarian cases, the secret ballot is a regularized election practice. Yet, as most visibly demonstrated in the Iran’s June election, we would hardly consider any of them to have free and fair elections or democratic governance.

So, if we can legitimately claim that countries like those listed above are not democratic, a claim I assume the Chamber of Commerce would accept, we must also conclude that the current unionization arrangements are not necessarily democratic by virtue of a secret ballot. The question now becomes, how do current election practices, as governed by the NLRA, measure up to standards of democracy. Drawing a few loose analogies between the current practices leading to a vote on whether or not to unionize on one hand, and actual operation of secret ballot elections in these non-democratic countries on the other hand will help us find the answer to this question.

For starters, let’s equate the place of work to an electoral arena of a country and the employer as the status quo leader of that country. In short, the plant, store, or restaurant is a country and its employer is its president. It’s a bit of a stretch, but, as authority and political power goes, this analogy makes sense. Next, as the Chamber of Commerce does when concluding that NLRA elections resemble the American political system, let’s equate a country’s election laws and practices with the current NLRA laws and practices that shape the process of deciding whether or not to unionize.

Now let’s talk about the election assessment. When gauging the democratic quality of an election, international and domestic monitors look for qualities like freedom to hold political campaigns, media impartiality, and attempts at harassing, intimidating, or disenfranchising opposition parties and their supporters. Where political campaigns are suppressed, where the media is biased, and where harassment, intimidation, and disenfranchisement are widespread, monitors cannot legitimately claim to have observed a democratic election.

So, how do current unionization election practices in the U.S. compare? The key to gauging this is to pay attention to what takes place in the time between the card signing that petitions for an election and the time when the secret ballot is actually held, a time frame spanning several weeks. The evidence suggests quite convincingly that the process which accompanies the vote on whether or not to unionize would rival ‘secret ballot’ elections found in Mugabe’s Zimbabwe or Ahmadinejad’s Iran. A widely cited paper published by the Center for Economic and Policy Research (CEPR) found that, from 2000 to 2007, illegal firings occurred in one out of four NLRB supervised elections (Schmitt & Zipperer, 2009). A survey cited by Brent Garren, a senior associate counsel for UNITE HERE, during his 2004 Congressional testimony found some 79 percent of workers polled to feel “very” or “somewhat” likely to be fired for trying to unionize. More recently, a study by the Economic Policy Institute (EPI) examined NLRB election surveys taken between 1999 and 2003. The EPI found that 63 percent of workers were interrogated during one-on-one meetings with supervisors, while 54 percent were threatened during these meetings. The same study also found that in 34 percent of the cases, pro-union workers were discharged, and, in 22 percent of the cases, benefits or working conditions were changed in retaliation for pro-union activities (Bronfenbrenner, 2009).

What exactly are firings or threats of termination are all about? First, they are an explicit attempt to intimidate or harass workers into submitting to the will of the workplace status quo, just as repression against opposition party leaders and supporters in non-democratic countries are attempts at staving off what most people would see as legitimate political contestation. Secondly, firings also effectively disenfranchise workers by revoking their workplace “citizenship.” What does a terminated pro-union worker mean? It means one less vote for the opposition. Had any of these practices turned up in the elections I monitored as an election observer (indeed they did), I would have had to document these practices as clear violations of the democratic spirit in order to comport with a reasonable and realistic definition of democracy.

Violations of the spirit of democracy however, do not stop there. The pre-election campaign environments in the drive to advance and oppose unionization remind me of the election campaigns dominated by the political regimes I’ve spent most of my academic life studying. During my trip to Kazakhstan to observe the country’s 2007 elections, the incumbent party’s banners, signs, and messages nearly eliminated the ability to hear opposition voices. By comparison, while union activists can access employees more easily during off-work hours, employers have almost exclusive control over the lives of the employees for about a one-third of the day. During this time, employers not only threaten employees, but also construct a propaganda campaign not unlike that seen in secret ballot elections in non-democratic countries. Again, citing data provided by the EPI, in some 89 percent of the NLRB supervised elections, employers held captive audience meetings. In 74 percent of the elections, employers distributed anti-union leaflets, while anti-union videos were used in 41 percent of the election drives. In 75 percent of the cases, employers hired management consultants to help oppose union drives (Bronfenbrenner, 2009).

The effect of harassment, intimidation, disenfranchisement, and campaign bias was duly noted by the CEPR’s senior economist, John Schmitt, when he cited that "Aggressive actions by employers -- often including illegal firings -- have significantly undermined the ability of U.S. workers to unionize their workplaces." The Economic Policy Institute’s analysis of NLRB election surveys confirms Schmitt’s statement. Unionization drives were successful in 72 percent of the cases where employers did not mount an opposing campaign, compared to 48 percent of cases where employers did campaign (Bronfenbrenner, 2009).

If there are any questions about the quality of democracy with or without the EFCA, it is clear that the clients of the Chamber of Commerce are largely responsible for the violations that raise these questions. Will the EFCA take away the secret ballot as currently practiced under the NLRA? In many cases, I would have to say probably so. But, any incentives that workers might have for by-passing the secret ballot are incentives constructed by the undemocratic practices of the employers themselves. Furthermore, the signing of membership cards, as an expression of preference, is still an election. By allowing workers to decide on whether or not to wait several weeks for an NLRB supervised election, what the EFCA will effectively do is limit opportunities for employers to engage in the kinds of intimidation, harassment, disenfranchisement, and propaganda that so typically undermines the democratic spirit of NLRB monitored elections. If the Chamber of Commerce itself really believes in aspiring to make the process in deciding whether or not to unionize mirror the “nation’s system of political democracy,” and if it really does care about workers’ rights and democratic elections, then the Chamber needs to put pair action with its words by lining up behind the EFCA.