If a President Obama takes office in January and congress increases its Democratic majority, one of the main progressive pieces of legislation that might get passed is the Employee Free Choice Act. This would, among other things, allow workers to join unions on the basis of what is called a card check sign up. In the case of card check, an employer agrees to the unionization of a workplace when the majority of workers there sign cards in favor of joining a union. Since this is an alternative to the administration of a (secret ballot) election administered by the National Labor Relations Board, union opponents deride card check as anti-democratic. It is not too early to begin pushing back against this argument.

At first glance, it might seem obvious that union opponents are right. Surely a secret ballot election run by the federal government (NLRB) is the gold standard of democracy. If workers want something else, doesn’t that mean that they’re afraid to fight it out in a ‘free and fair’ election?

The answer is no. This anti-union argument is based on a fundamental confusion. Although elections may be at the heart of our democratic system, they are not at the heart of democracy itself. The heart of democracy is free choice. For obvious reasons, secret ballots have proven themselves extremely useful as ways of allowing, promoting and preserving people’s free choice. But they are a means and not an end in themselves. And like any means, there may be circumstances in which they fail to promote their intended end.

The point should be obvious. A secret ballot election in which one candidate is vastly more powerful than the other, and in which representatives of that stronger candidate stand outside the voting booth cracking their knuckles in a sinister way, for example, would not be conducive to freedom of choice. It would clearly be a case of intimidation, despite the fact that the election used secret ballots. Elections in which one candidate is given easy access to the electorate in order to present its case but in which the other candidate is prohibited from comparable access would not promote free choice, even if they involved secret ballots. In short, there is a lot more to an election than the mere act of casting a vote.

Sadly, NLRB-administered elections resemble my hypothetical scenarios all to closely. Employers but not unions have access to comprehensive lists of the voters (the workers). Employers but not unions can use the workplace to post materials and address the workers. Employers but not unions can pressure workers to vote a certain way by holding out promises of pay raises, continued employment, and preferential treatment; or by threatening to fire workers or close the company. Since NLRB elections often take years upon years to arrange, administer and litigate, ‘troublesome’ workers can easily be moved on or fired without obvious connection to the question of unionization.

For all these reasons and more, the elections against which card check is compared are deeply flawed and unfair. It is vital, therefore, that we pass the Employee Free Choice Act as soon as possible and, on that basis, work towards a comprehensive revision of labor law and labor relations in this country.

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