Legal Commentary

The ongoing propaganda battle over the Employee Free Choice Act (EFCA) is largely two sides? trading anecdotes. The apparent futility of the debate suggests a larger and depressing possibility ? that uncoercive workplace democracy is simply impossible.

EFCA provides (among other things) that employees can certify their desire to form a union by checking a card rather than by voting in a certification election. Employers? organizations argue that the ?card check? deprives employees of a secret ballot, exposing them to intimidation by union organizers. (The idea that EFCA undermines the secret ballot is a constant refrain in the anti-EFCA press). EFCA supporters respond that the ?secret ballot? in certification elections demanded by Chamber of Commerce types is actually an intimidated ballot: Employers use intimidating tactics ? for instance, threatening to close plants or lay off workers if union representation is approved -- without fear of serious sanction from the NLRB.

Without purporting to be any kind of expert in labor relations, I am inclined to think that both sides are right. It is hard for me to imagine that union organizers would not pressure workers during card-signing campaigns in ways that we would find intolerable in, say, a school board election. (Do union folks seriously contend that a worker who refused to sign the card would never face some degree of ostracism from a pro-union workplace?) Likewise, it is common knowledge that employers pressure workers with thinly veiled threats of job loss if they vote for the union -- threats that often materialize in actual termination. In theory, the NLRB could outlaw tactics deemed to be coercive, and Congress could stiffen the sanctions to make such limits stick. In practice, the NLRB will likely be either Democratic (pro-labor) or Republican (pro-management) and dilute any statutory limits that Congress enacts.

Is the moral of the story that uncoercive democracy in the workplace is a pipe dream? This is a sad thought to someone like myself with a soft spot for Brandeisian localism. But the more the defenders and detractors of EFCA defend their version of democracy, the more dispirited about workplace democracy I become.