Secret-ballot voting is fundamental right

Tuesday, February 17, 2009 | 10:00 a.m. CST; updated 12:24 p.m. CST, Tuesday, February 17, 2009

More years ago than I like to remember, my high school algebra teacher told the class that, through skillfully applied legerdemain, it was possible to demonstrate that two plus two could equal five, or even three. Of course, he also made it clear that this was a product of trickery by which a trained mathematician could hoodwink the inexpert to accept this process over that which was real.

I had all but forgotten this exercise in sleight of hand and obfuscation until I read the guest column “Employee Free Choice Act would empower workers to unionize” in the Feb. 3 issue of the Missourian. The co-authors, a Mr. Herb Johnson, secretary-treasurer of the Missouri American Federation of Labor and Congress of Industrial Organizations, and the Rev. Amy Cortright, a member of the Missouri Jobs with Justice Coalition, attempted to prove that eliminating the requirement for the secret ballot in forming unions does not end secret-ballot elections.

The current authority to assure the right of collective bargaining and to curtail unfair labor practices by employers and unions alike is the National Labor Relations Board (NLRB), which enforces the provisions of the National Labor Relations Act (Wagner Act), passed by Congress in 1935. Under this doctrine, once 30 percent of an employer’s workplace signs an authorization (card check), the employees may demand voluntary recognition. The employer may then opt to recognize the union or demand an election.

Conversely, upon enactment of the Employee Free Choice Act, when a simple majority of the employees signs the card, union recognition is mandatory, thus obviating election by secret ballot. The procedure of signing workers can be accomplished surreptitiously, through intimidation and/or false promise without affording the employer any dialogue with his employees or other recourse whatsoever.

The guest column’s authors somehow failed to address this not-so-subtle change of the rules by ignoring that 50 percent plus one worker signing the card check would set aside the petty notion of elections and establish a union shop on the spot. As a matter of fact, they attempted to becloud the issue by stating “The Employee Free Choice Act does not end secret ballot elections,” when the opposite is true, as spelled out in the pending legislation.

As a matter of interest, Mr. Johnson and Reverend Cortright failed to address any of the provisions of this proposed act except to offer that it would support the worker’s choice over that of the boss, as it enabled them to demand secret-ballot election with as few as 30 percent so requesting. But that provision is already established by the 1935 Wagner Act.

The main thrust of this treatise was little more than an endorsement of unions over right to work by painting employers as habitual abusers of workers rights by using statistics cherry picked in support of their conclusion. In reality, the numbers they quoted to describe the actions of the NLRB Annual Reports in restoring back pay and benefits to unfairly treated employees backfired in that it demonstrated the system actually works.

Boss bashing and employee griping are neither new nor particularly troubling activities in the work place — they are as traditional as motherhood and apple pie. One factor that must be remembered in this age-old struggle between employers and employed, however, is the former is the one who supplied the capital investment that created the workplace.

Additionally, union membership has declined steadily from 35 percent in the 1950s, to 20 in 1983, resting at 12.4 percent today. Pro-union advocates blame the employers for “scare” tactics; nevertheless, it could be that a better informed workforce sees that, while unions may provide short-term wage increases, it is often at the cost of lost long-term job security.

There is a basic problem with the Employee Free Choice Act. First, the right to vote by secret ballot is a fundamental one and has protected the individual in the polling place for more than 100 years. Real and imagined problems in recent elections have underscored the need for both secrecy and accountability in casting individual votes.

Secondly, in studying the provisions of the Wagner Act, the actions of the NLRB and the rules currently in place, it is obvious that the only effect of Employee Free Choice is that it enables unionizing the workplace without a secret ballot. Thus, it exceeds the parameters of “If it ain’t broke, don't fix it" in that the proposed fix invents a problem not in existence.

J. Karl Miller retired as a colonel in the Marine Corps. He is a Columbia resident and can be reached via e-mail at


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Christopher Foote February 18, 2009 | 11:50 a.m.

The purpose of this legislation (EFCA) is to address the fact that employers are breaking the law to prevent unionization. It would be incredibly naive to deny this point, however, it wouldn't surprise me if Mr. Miller does. Lets look at one example: The NRLB under Bush was so appalled by RIte-Aid and its actions at preventing unionization at a distribution warehouse in Lancaster CA, that they threatened them with 49 separate violations of federal law. Rite-aid relented and agreed to rehire two fired union organizers and pay them back pay and post notices about one's rights to unionize (they had fired over 100 workers sympathetic to unions). That was the settlement. There is no downside for corporations to routinely violate the National Labor Relations Act of 1935. In the case of Rite Aid the NRLB found them in violation of the law, but there was no negative consequences. EFCA addresses this by making it easier for unions to form and adds fines for illegal practices that are commonly utilized by corporations today. Contrary to Mr. Miller's view there is a problem and EFCA seeks to address it. Mr. Miller' "cherry picked statistics" are instances of corporate malfeasance against low wage workers. Under current law, these people are fired with impunity if they voice their opinion in favor of unionization. Let's say the number of people fired by corporations for trying to form unions = X. Mr. Miller would have you believe that X number of people were reinstated with their old jobs, thus proving the efficacy of NLRB enforcement. That's like saying there is no crime in the U.S. because we've locked up 2 million people. "In reality, the numbers they quoted ....demonstrated the system actually works." Perhaps someday Mr. Miller can acquaint himself with logic. I won't hold my breath.

(Report Comment)
Charles Dudley Jr February 18, 2009 | 12:29 p.m.

WalMart is one of the worst at working to keep Unions out of their stores.

(Report Comment)
John Schultz February 18, 2009 | 1:24 p.m.

I find it highly hypocritical that 11 Democrat Congressmen sent a letter to a Mexican state to ensure private ballots for union organization there, but voted against it here.

"However, we feel that the secret ballot is absolutely necessary in order to ensure that workers are not intimidated into voting for a union they might not otherwise choose."

(Report Comment)
Christopher Foote February 18, 2009 | 2:58 p.m.

Mr. Schultz,
How did they vote against it here? The legislation adds an amendment to the National Labor Relations Act, thus if 50% +1 openly vote for unionization via card check, than the company is forced to recognize them as a union. Here's the house version that passed Feb 5 2007: "(a) In General- Section 9(c) of the National Labor Relations Act (29 U.S.C. 159(c)) is amended by adding at the end the following:
(6) Notwithstanding any other provision of this section, whenever a petition shall have been filed by an employee or group of employees or any individual or labor organization acting in their behalf alleging that a majority of employees in a unit appropriate for the purposes of collective bargaining wish to be represented by an individual or labor organization for such purposes, the Board shall investigate the petition." You'll notice the amendment begans "Notwithstanding any other provision..." Nowhere is it mentioned that secret ballots will not be allowed. Perhaps you were led astray by Mr. Miller's obfuscations and mis-statements of fact.

(Report Comment)

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