Humpty Dumpty in Pieces: The Truth About EFCA and Secret Ballot Elections

The U.S. Chamber of Commerce has promised to spend $10 million opposing the Employee Free Choice Act (EFCA), the proposed federal law that would allow workers to form unions based on a showing of majority support, sometimes referred to as a “card check” election. Other big bucks are being spent by faux-grassroots organizations with misleading names such as the “Coalition for a Democratic Workplace” and the “Center for Union Facts.” President Barack Obama was not exaggerating when he said, recently, that the business community considers EFCA “the devil incarnate.”

The focal point of opposition to EFCA is the provisions that make it easier for workers to form unions without going through a secret ballot election. Opponents contend that without secret ballot elections, workers will be coerced by union organizers into signing cards or petitions. As one opponent, Rep. John Kline (R-Minn.), put it, "It is beyond me how one can possibly claim that a system whereby everyone – your employer, your union organizer, and your co-workers – knows exactly how you vote on the issue of unionization gives an employee ‘free choice.’”

But fatally undermining this argument is a dirty little secret known as “Wurtland Nursing.”

Wurtland Nursing provides rehabilitative, hospice, and long-term care to residents in Wurtland, KY. A local affiliate of the Service Employees International Union (SEIU), one of the nation’s largest and fastest-growing unions, has represented the maintenance and service employees at this facility since 1997.

In 2003 a Wurtland Nursing employee presented the company a petition signed by over 50 percent of the workers asking for a vote to remove the union. Wurtland Nursing immediately repudiated its relationship with SEIU and declared itself a non-union company.

The union filed a complaint with the National Labor Relations Board (NLRB), the nation’s chief arbiter of labor disputes, contending that Wurtland Nursing had no right to reject the union without a secret ballot election having occurred. Four years later, the NLRB decided in favor of the company, saying that it didn’t matter that there had not been an actual vote. The petition was all the proof the company needed to conclude that the workers no longer wanted to be represented by the union.

The U.S. Chamber of Commerce did not denounce this decision. Neither the Coalition for a Democratic Workplace nor the Center for Union Facts raised a stink. Despite the fact that Wurtland Nursing had stripped its employees of their union on the basis of signatures on a petition, rather than after a secret ballot election, no prominent critic of EFCA has ever criticized the outcome of that case.

Yet the principle supposedly being violated by EFCA, the need for a secret ballot, is violated as much by the Wurtland Nursing rule, which allows employers to repudiate unions based on petition signatures, as it would be by EFCA, which would allow workers to obtain union representation in the same manner.

The truth is that neither business nor labor genuinely doubts that signatures on a petition or on cards are a legitimate and appropriate basis for determining what the majority of workers want. It is high time for employers to acknowledge that truth, along with the fact there is nothing wrong with permitting workers to ask openly to be represented by a union, and for their employers to thereby become obligated to honor that request.

A December 2006 Peter D. Hart Research Associates survey found that 60 million Americans would like to join a union, but are discouraged from doing so by employer intimidation. An April, 2007 Institute for America's Future study estimates that passage of the EFCA would increase union membership by 10 percent, providing an additional 3,537,625 people with health insurance and 2,773,045 more people with pensions.

In this time of economic crisis those numbers are a compelling argument for EFCA. In contrast, the argument that EFCA will undermine secret ballot elections falls apart in light of the Wurtland Nursing rule. And no amount of employer rhetoric can put that argument back together again.