Keep the Secret Ballots

Bush is out the door and Obama is here — but what does this new administration mean for the workplace? There’s the obvious. Many are looking to Obama for his plan to revive the economy, bring us out of the recession, create new jobs, and in effect get us back to recruiting for more requisitions than we know what to do with — the good ‘ol days.

But what else does an Obama administration mean for the workplace and for the recruiting world?

A significant piece of legislation with great potential to impact the American workplace is the Employee Free Choice Act, which amends the National Labor Relations Act. Maybe you don’t recruit for or work in a unionized organization — and as a result, you’re thinking, so what? Should you even care about this? And will it affect you? Yes and yes. If passed, the EFCA would make it easier for your workplace to become organized. And given the legislation has received near-unanimous support from Democrats in the House and Senate both, and full support from President-Elect Obama who pledged to enact it, the EFCA should be on your radar.

The EFCA Basics

About 8% of the American private sector workforce is currently unionized. If the EFCA passes, it’s estimated that the number would increase to nearly 20%, according to the Campaign for America’s Future, as the bill would make it easier for a workplace to become organized.

Under current labor law, when a third of workers have petitioned to unionize, a federally-authorized secret ballot vote takes place. After a campaign period, individuals have the opportunity to choose whether or not to unionize, and the vote is held in private (much like how you vote in any American election) so that each can make their decision free from any pressure, scrutiny, or intimidation by peers.

Under the EFCA, the right to a confidential vote is eliminated and a union would be certified the moment it collects a majority of signed “authorization cards.” This process, known as card-signing, or card-check, not only eliminates the union organizing campaign period, it denies every worker the right to a private vote on joining a union. These changes are the most widely criticized aspects of the bill, with civil rights activists like Al Sharpton coming out against the EFCA, as individuals are stripped of their voting rights and in effect are being coerced into a decision.

Another damaging aspect of the bill is its binding arbitration clause. All first-time contracts would have to be negotiated within 120 days; if agreement isn’t reached between the union and employer, the contract would be sent to federal arbitration where a binding contract would be handed down — and many pro-business advocates argue that most federal arbitrators come from union backgrounds and are generally not very management-friendly. Having to negotiate a contract with 120 days is also seen as an unrealistic requirement given that a first-time contract usually takes an average of one year to be negotiated. The process of coming to agreement is trying, and current labor laws do not require that an agreement even be reached when a union and company are negotiating a contract. They only require that a union and company bargain in good faith.

Recruiting Impact

If we use simple math and say 10% of the workforce is currently unionized, let’s also say that 10% of our recruiting colleagues recruit in a unionized environment for positions covered by a contract. I’ve been part of that 10% in the past and know firsthand the fun it is to read a collective bargaining agreement to determine how you can or cannot recruit. Most recruiting guidelines for a unionized environment are all rule-driven and often restrict your ability to secure the best talent for your organization. Is there an internal job posting requirement? What are the job posting dates you have to follow? Does the recruitment have to be restricted to just the bargaining unit? What preference do bargaining unit members get over other internal candidates, or over external candidates? Can you even pursue external candidates?

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And once you get those rules out of the way, the contract also dictates compensation, and the focus is on tenure rather than performance. Even rarer are any trace of incentives to get high-performing candidates in the door. It’s a difficult recruiting environment to operate in.

Managing and motivating talent in a unionized environment is also difficult. Sure, they may have guaranteed cost of living increases, year after year, but that’s generally it. Workers generally get nothing for going above and beyond; innovation is not rewarded; and A-players, regardless of the industry, have trouble swallowing that pill. Even if you can overcome the recruiting obstacles and attract A-players, the stars will grow stagnant quickly once surrounded by endless mediocrity.

Looking Forward

The EFCA will likely be voted on in the House and/or Senate by the end of the first quarter of 2009. In the meantime, we can expect to see lobbying efforts on both sides of the issue ramp up — and it’s an interesting debate that’s unfolding. The economic climate makes it increasingly ripe for the EFCA to pass, as the American workforce worries about the security and stability of their jobs. The promise of hope from unions could be music to their ears as labor forces like the AFL-CIO use messages in support of the EFCA, saying that it will help America’s working families who are struggling and build a better life, or greedy CEOs are too powerful, but workers in unions can bargain for a better life. But on the flip side, you have strange bedfellows like the pro-business voice of the Chamber of Commerce and civil-rights activists like Al Sharpton both coming out against the bill.

I find myself growing concerned about the EFCA’s passage but perhaps am more concerned with the lack of discussion in the business community about the matter. I continue to encourage my colleagues and communities to educate themselves on the matter — and you can do the same by sharing this article as a starting point. You can also choose to take action by getting in touch with your elected officials and sharing your opinion of the EFCA with them. Or for those involved in the blogging community, you can get in touch with me if you’d like to write on the topic during a week-long blogging action week planned for February.

It’s a historic time as Obama prepares to take office — and change is certainly in the air in Washington as several pieces of employment law have already been voted on by our new Congress. The EFCA will certainly be up to bat soon — but is this the kind of change we were asking for? Or are there other issues affecting the workplace or our industry that you’re concerned about as Obama takes office?

Jessica Lee is the director of digital talent strategy for Marriott International. She leads global talent focused digital and social media efforts across the enterprise which includes a family of 16 brands.


14 Comments on “Keep the Secret Ballots

  1. The Wall Street Journal recently wrote that even many Democrats who previously voted for EFCA are having second thoughts — now that passage is an actual possibility.

    It is important for the business community to press hard, but do so in a way that recognizes that as a matter of federal law collective bargaining is central to American labor policy, and that it may in fact help some workers in these times. The fundamentals of the National Labor Relations Act were, after all, passed as part of the New Deal — precisely for the reasons you state the EFCA may now look attractive.

    Business opposition should also realistically recognize that the law could in fact use some reforms to improve enforcement and streamline a cumbersome process.

    Rather than card check, there should be enhanced enforcement procedures and penalties if employers use illegal and coercive tactics to forestall union elections. We must recognize that this does occur, if not as often as the unions claim.

    Likewise, good faith bargaining for a first contract must be enforced, not by imposing a settlement through arbitration, but through strict enforcement. The EFCA does contain some other provisions that address these points.

    I say this not as a union supporter, but as a management employment lawyer trying to view the political challenge objectively. A successful compromise that does not give the unions all that they ask for would, I think, be in the best interests of the new administration and the country, and I think moderate business voices will be heard and considered by the Obama people just as much as the traditional Democratic Big Labor constituency. They know where the jobs will come from . . .

  2. I think this is a really interesting way to compromise.

    Obama is all about the third way, so I suspect EFCA will look different by the time he and Rahm are done with it.

  3. @george – you’re right that moderate business voices will be heard and considered by Obama… Obama has said that people who simply oppose unions and do not want to see a rise in their numbers won’t have his ear. and that’s fair… i do believe that in engaging our elected officials in the discussion on why the EFCA is harmful, pro-biz folks (i guess like me) have to be careful on what messages we use to oppose the legislation… but to get the attention of recruiting pros, i went straight for the heart of the issue rather than softening it up to sound more balanced – i don’t want to beat around the bush when it comes to getting folks to pay attention to the issue. (the lack of attention worries me.) agreed though… there are a lot of different ways to go about looking at and discussing the issue.

    bottom line for me is that in year 2009, when you have savvy HR pros and employer attorneys like yourself, the need for unions shouldn’t exist. this isn’t the industrial revolution and unions have become beastly political machines. whether they are truly giving “voice” to workers and looking at their best interests is so questionable.

    @laurie – a 3rd way isn’t something i’ve honestly spent much time looking at – and there’s probably something there… we don’t have to accept the legislation as its been proposed thus far and there’s room for compromise no doubt. thanks for sharing – i’ll take a look at the article… truly strange bedfellows coming together it seems.

    thanks both for being part of the discussion. this is all i could have hoped for.

  4. EFCA

    In this day and age of endless privacy notices, I believe that the sanctity of the secret ballot is the primary reason why the provisions of the EFCA will be found to be unconstitutional. The ballot booth falls within the Zone of Privacy created by various court opinions over the years and is derived from our Bill of Rights.

    The Right To Privacy
    The Constitution does not specifically mention a right to privacy. However, Supreme Court decisions over the years have established that the right to privacy is a basic human right, and as such is protected by virtue of the 9th Amendment. The right to privacy has come to the public’s attention via several controversial Supreme Court rulings, including several dealing with contraception (the Griswold and Eisenstadt cases), interracial marriage (the Loving case), and abortion (the well-known Roe v Wade case).

    Consequently, Congress has the obligation to strongly consider this factor when considering this legislation. If the secret ballot is no longer considered sacred, then all other protections to privacy, a very basic and civil right, are in danger.

  5. An interesting article. I view the possible passage of EFCA and other pro-worker legislation as a beginning of the rollback of the tide of harmful pro-business legislation over the past quarter century, during which we have seen the stagnation of wages and earning power for ordinary Americans, the loss of health and pension benefits to additional millions, and a great increase in the economic inequality of the American Economy. Whatever problems may have been caused by organizations representing individuals typically earning under $50,000 and working in corporations, they pale in comparison with the losses generated by the organizations representing those typically earning more than $200,000 per year and running the corporations- look where decades of a self-regulating, winner-take-all economic policy have gotten us. Does anyone actually believe that we would now have the modest wage-and-hour, health-and-safety, and anti-discrimination policies we possess through the actions of the “free market”? If you do, I have a nice international orange suspension bridge to sell- bargain price. The market is a great tool for creating wealth, but not so good at making sure everyone has enough or is treated fairly. I personally look forward to supporting a government that works toward making sure no one gets left behind.


    Keith “Union Made, Plenty Tough” Halperin

  6. Jessica:

    A very interesting discovery you are trying to make for sure. Thanks for writing.

    I have done my research on this bill as it will impact 105 million workers, or 70% of our workforce. Interestingly, it will not impact government, agricultural workers, the self-employed (people like me), or railway or airline workers. The Act also excludes supervisors, which I find a bit odd although I am not sure why.

    So even as someone not covered by the National Labor Relations Act I understand the magnitude of this bill and have been discussing it w/ clients, staff, investors, etc. Hopefully many businesses are taking this seriously, as well.

    I do have some areas that I would appreciate clarification.

    First, the name of this thing confuses me. We currently have the right to choose membership in a union but the name implies otherwise. This may be a silly point but seeing bills and legislation improperly named immediately forces me to question the integrity of thing – I dont know why, but it just does.

    Second, I am having trouble understanding what this is really trying to accomplish by removing secret ballot and replacing it with this card check system. Open ballot/ card check would seem to provide an avenue for coercion or influence by any member of either opposition. Seems like things could get pretty nasty between co-workers.

    Third, and further on this card check system, this literally seems to be members of an organized group or proposed group, confronting co-workers to physically sign cards that state they want to be in a union. But I am told that there is only the option to sign or not sign. There is no option to say “No”. Doesnt that sort of take away a choice/ my voice?

    In general, I like secret ballot. Just like I enjoy voting for the President and Congress by secret ballots. I would grow a bit concerned if we ever turned those elections to open ballot.

    ….. I dont know…. I have never been an environment that required collective bargaining so maybe I dont fully understand what is at stake here but at its core, this bill seems to remove privacy versus protect it.

    I am all for harsher punishment for organizations that attempt to prevent assembly. That is for sure. I am all for freedom to choose representation. That is also confirmed. But this particular bill and recommended process seemingly would expose people to potential union pressure and intimidation. And meanwhile, it takes away the current secret ballot option of voting “no” on union representation.

    Just my $.02.

  7. The purpose of the secret ballot was to protect the workers.

    However, we have opened the doors of job protectionism. In the wake of outsourcing, offshore work, and massive layoffs, people are being led to believe there is a need to protect their jobs. But, these jobs do NOT belong to the workers – it belongs to the employer.

    Unions will intimidate and coerce workers, and jobs will go away forever. Other countries benefit from outsourcing. And, 8% unemployment will look great.

    On the bright side, agency staffing business will grow due to the demand for employers looking only to hire temp and contract work.

    Who owns your job, you or your employer?

  8. @robert – i think you raise some good points. the privacy factor is so crucial when someone is making the choice of whether to unionize… and this is the piece that actually has Al Sharpton most up in arms over the issue… right to privacy and freedom from being coerced into a decision… thanks for your thoughts.

    @keith – i’ve gotta respect your opinion… there’s probably some room for the pendulum to swing back to the middle as far as the balance between pro-biz and pro-worker policies… but i’m firmly of the mindset that laws don’t change or behavior. influence and education will change behavior. wage and hour laws, health and safety laws, anti-discrimination laws are all on the books but have created endless bureaucracy because they are now reporting and enforcement mechanisms. organizations go through the motions of doing what they need to do in order to be compliant and avoid fines – but are they really doing this in the spirit of the intent of the laws? i doubt it…

    i’ll be back later for you, richard… good questions.

  9. Responding to Richard Stack:

    As to the workers excluded from the EFCA, these are simply the exclusions that have always existed under the National Labor Relations Act (NLRA). Railway and airline employees are separately covered under the Railway Labor Act, which also provides for collective bargaining, but has important differences rooted in the central role of transportation in the economy.

    Supervisors are considered to be on the management side of the labor-management dichotomy, and are not covered by the NLRA (now or under the EFCA) in order to allow employers to ensure supervisors’ loyalty to the company team. Who is or is not a supervisor has been a perennial issue in union organizing campaigns and election-related legal proceedings. It was the subject of another “reform” bill in the last Congress that may be reintroduced.

    As to the name of the EFCA, you are absolutely correct. It is an Orwellian name, in my opinion, because it would infringe on free choice by taking away the private ballot, which guarantees such choice.

    There is always another side of the story, however. Here it is the perception of the bill’s supporters that the current system interferes with employee free choice by allowing employers to intimidate and coerce employees.

    It is important to understand that under the current system card-signing plays a crucial role already: a substantial, but non-majority, number of cards is required for a union to obtain an NLRB election. This is followed by a significant period of time (at least several weeks, usually) before the election is actually held.

    Further, under some circumstances, if a majority of employees sign cards, this may be sufficient for the union to get in, even without an election (if the NLRB orders it as a remedy for severe unfair labor practices or if the employer voluntarily recognizes the union based on review of the cards).

    So, in the eyes of EFCA supporters, they are restoring free choice by eliminating this period between card signing and election in which employees are open to maximum employer influence, both lawful and unlawful (influence through campaign letters and forced attendance meetings being generally lawful; coercion and intimidation being unlawful, but not uncommon).

    I’m not sure what option you see as missing for employees under the EFCA, besides signing or not signing the union card when asked. Perhaps you mean saying “I’m not saying I don’t want the union, but I want a secret ballot election, so I will not sign a card.” This is certainly an option under the EFCA.

    It is a “no” to card signing, but could end up being a common “out” for employees mindful of their privacy and unwilling to publicly declare allegiance to either side in the face of significant pressures both ways.

    As the advocates of the bill are fond of saying, it does not actually do away with secret ballot elections. That is, if the union has enough signed cards for a “showing of interest,” but not a majority, the NLRB will still use its existing election procedures. Accordingly, the unions could be deeply disappointed that this “reform” in fact doesn’t turn the tide, because most employees, even those who might vote union, refuse to sign cards, saying they want an election. You better believe employers will be letting employees know they have a right to do this!

    To Michael Glenn: of course, the employer ultimately “owns” the jobs — subject to any contractual obligations it assumes, as well as government regulation and other legal obligations.

    As to “job protectionism,” collective bargaining requires only good-faith negotiation, not imposition of any particular terms of agreement. This would change under the EFCA’s arbitration provision, which is why that provision is as bad as or worse than the card-check one.

    There are many, many steps between recognition of a union and jobs going away forever. Have the two been connected in the past? I would say yes, as the UAW (and entire state of Michigan!) has learned in the last few years. Are they inevitably connected? No. Smart management and smart union leadership will not agree to terms that will have this effect. Job security in the sense of long-term company success, rather than short-term union insistence on ever-increasing wages and benefits should — and in my view increasingly will — dominate the bargaining table.

    Again, I’m not a big fan of unions. I just understand their history a bit and have two semesters of labor law under my belt, plus 23 years of labor and employment law practice, seeing the good, bad, and ugly. For a bit of labor history (mingled with lots of legal blog links), see my popular post for the Blawg Review at:

    You can use the table of contents links at the top of this very long post to jump to the illustrated labor history vignettes sprinkled throughout. Note in particular a couple of things: how labor law helped pacify labor-management relations that had for decades been so full of animosity and exploitation that they periodically erupted into horrendous fatality-filled events; and how organized labor’s efforts led to laws such as the overtime and minimum wage law (Fair Labor Standards Act) that have benefited all workers, and that we now take for granted.

  10. Responding to George Lenard:

    Though I suspect I would be on the opposite side of the fence(or the bargaining table) from George, I commend him on his balanced and thoughtful presentation of useful information to us. Thank you.

    Keith Halperin

  11. Responding to Jessica:

    @keith – i’ve gotta respect your opinion… there’s probably some room for the pendulum to swing back to the middle as far as the balance between pro-biz and pro-worker policies… but i’m firmly of the mindset that laws don’t change or behavior. influence and education will change behavior. wage and hour laws, health and safety laws, anti-discrimination laws are all on the books but have created endless bureaucracy because they are now reporting and enforcement mechanisms. organizations go through the motions of doing what they need to do in order to be compliant and avoid fines – but are they really doing this in the spirit of the intent of the laws? i doubt it…


    Thank you, Jessica. “Laws don’t change behavior”? I believe effective enforceable laws CAN change behavior. As examples: look at the laws requiring seatbelts and restricting the areas where smoking can take place. These may have not been the main cause of changes of public behavior, but can be said to have been influences, because increasing majorities of the populace consider them to be proper and abide by them- if significant and increasing fractions of people disobeyed them they would be largely unenforceable, as is the case with many of the laws used in “the War on Drugs.” As far as the types of business laws and regulations mentioned creating cumbersome bureaucracies, they don’t seem to have adversely affected American firms to do *business easily, **be globally competitive, or our ***indices of economic freedom.

    IMHO, it all comes down to power- *****“countervailing power”:
    Balancing of the market power of one group by that of another group. For example, market power of manufacturers may be balanced by the market power of retailers, and vice versa. Concept of countervailing power was proposed by the US economist John Kenneth Galbraith (1908-) in his 1952 book ‘American Capitalism.’

    I interpret this to mean that if we want to avoid any groups (business, labor, government, churches, organized crime, etc.) from becoming too powerful, we need other powerful groups competing against them, and that we all benefit from this balanced competition. We’re now in the painful process of seeing what happens when this isn’t the case.


    Keith “Lies, Damned Lies, and Statistics” Halperin 415.586.8265

    Ranking of all nations from Ease of Doing Business 2008 report (2006/04-2007/06)
    Rank Country

    1 Singapore
    2 New Zealand
    3 United States
    4 Hong Kong
    5 Denmark

    The following are the top 30 countries in the 2008-2009 Global Competitiveness Report
    1. United States 5.74
    2. Switzerland 5.61
    3. Denmark 5.58
    4. Sweden 5.53
    5. Singapore 5.53

    The Index of Economic Freedom is a measure of economic freedom designed by the Heritage Foundation and the Wall Street Journal.[1]

    Country Rank
    Hong Kong
    United States


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