The Corner

If the Employee Free Choice Act Applied to Presidential Elections…

One of the arguments made by proponents of the Employee Free Choice Act (“EFCA”) is that the present secret ballot union election process is broken; the National Labor Relations Board (“NLRB”) process purportedly is weighted in favor of employers and, consequently, isn’t the uncoerced, true and accurate reflection of voter preference that’s found in, say, presidential elections.

This is nonsense. Sure, employers have certain advantages that flow from having control of the workplace. But these are offset by significant procedural advantages enjoyed by unions that any presidential candidate would love to have.

Consider: If the 2008 presidential election had been governed by current NLRB election rules and John McCain were in the position of the union (and while acknowledging the imperfections inherent in a union election/presidential election analogy):

*       McCain would’ve been able to time the election to coincide with when he was leading Obama in the polls

*       McCain could’ve decided which group of voters would be entitled to vote

*       McCain’s supporters could’ve visited voters at their homes. Not so Obama’s. (Obama’s supporters, however, would’ve had access to voters at their jobs)

*       McCain could’ve promised voters more money in their pockets. Not Obama.

*       McCain could’ve promised voters health care. Not Obama.

*       McCain could’ve promised voters security. Not Obama.

McCain would’ve jumped on that deal. And that’s under current law. But McCain’s position would’ve been even more favorable under EFCA:

*       McCain and his supporters could’ve asked voters to fill out cards/ballots in public authorizing McCain to be president

*       McCain’s staffers could’ve filled out the cards/ballots on behalf of the voter

*       McCain’s staffers would’ve retained custody of the cards/ballots until they were counted

*       Obama wouldn’t have known that there was a race for president going on until the votes had been counted

There are numerous reasons for declining union membership. A defective elections process isn’t one of them.

Peter Kirsanow — Peter N. Kirsanow is an attorney and a member of the United States Commission on Civil Rights.

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