What an election year! For those of you who were once “West Wing” junkies (or maybe still are),1 you’re probably thinking two things: First, that Aaron Sorkin could possibly be kin of Michel de Nostredame.2 Second, that the speech writers in these campaigns should hire Sorkin’s writing staff.3
Regardless of your political persuasion, this election year is fascinating. From the Democratic side, history was going to be made from the outset as the party was going to nominate either the first black presidential candidate, or the first female presidential candidate. From the Republican side, a battle between the standard group of codgerly white guys has turned into a three-ring circus. Who would have ever predicted a 72-year-old, rogue independent Republican paired with a much younger female running mate4—much less one from Alaska with a sex/procreation scandal. I mean, really, nobody (other than Sorkin) can make this stuff up! And despite the Democrats’ prolonged primary battles and the Republicans’ inability to vet a vice presidential candidate, it’s a nail biter that has all of America talking politics.5
But who really cares?6 Why does anyone believe that either of these characters is going to actually accomplish anything, anyway? It’s called “hope” and, as Americans, we have lots and lots of it. (It’s also why we have so much Prozac and lithium!) So why am I wasting your time on this article? Because from a labor law standpoint, this election could be huge!
You see, the Democrats’ “allegiance”7 to organized labor makes it much more likely that a bill pending in Congress will get passed. That bill is known as the “Employee Free Choice Act” or “EFCA.” And what it does is give the illusion of choice. (Much like the “Workplace Flexibility Restoration Act” was similarly misnamed—it destroyed employer flexibility and created severe penalties for being flexible with your employees).8
In its current form, EFCA would amend the National Labor Relations Act (the Act that, in real short paraphrasing, allows for unionization and lets an employer confronted by employees who allegedly support a union request that a secret ballot election be had to determine if the union is truly supported by the employees).9 Under EFCA, the secret ballot election is done away with if an employer is presented with cards signed by more than 50 percent of the employees indicating they want to be represented by a union. EFCA is supported by Senator Obama and opposed by Senator McCain.
This is where the concept of choice becomes illusionary. While there’s no doubt that many employees who sign cards do in fact support having a union, many times (understatement) unions employ not-so-even-handed tactics to obtain a signature on the card. For instance, they repeatedly show up at an employee’s house late at night, attempting to “persuade” the employee to sign a card. Or, they obtain signatures of non-English speaking workers by mis-explaining the reasoning behind the card. And, in some cases, they coerce, threaten and obtain signatures under duress. In such circumstances, the only “free” choice is that of the union organizer.
Even in perfectly fair and honest circumstances, an employee’s choice to sign a card sometimes cannot reasonably be said to be free. We know from the thousands of union elections that have been held that, many times, employees don’t understand what it means to be represented by a union. They’re under the false belief that being represented automatically means better wages or benefits, or that the union will be able to obtain more for them than they already have. At the card-signing stage, many employees don’t know their membership in the union could cost them hundreds of dollars a year—even if the union contract doesn’t provide them anything more than they already get from the employer. Amazingly, the pro-labor proponents of the bill haven’t ever proposed that written explanations of these issues be provided to an employee before the employee signs a card!
Currently, the Act has a system to sort these issues out. It’s called a secret ballot election, which is held only after both the union and the company get a fair opportunity to campaign and explain their respective beliefs about the pros and cons of unionization. EFCA gets rid of this concept of an “informed electorate,” instead relying on the concept of “caveat emptor” (“buyer beware”). In other words, in an election year where information about the candidates will be crucial to the outcome of the election, what might hang in the balance is whether you’ll ever have such information at a place you spend most of your time—work. So, for employees anyway, this election might be about more than whom you want in Washington, but about whether you want to have a vote at work.
1 Reruns are on Bravo in the mornings, and every season can be purchased on DVD.
2 Yes, that’s “Nostradamus” for those of you who prefer the Latinized version. I’m a psychic purist.
3 If you want to be entertained by a more eerily similar piece of fiction, read a book titled The Race. Written well before the primaries, it will give you chills with the plot and character similarities to this election year.
4 Wait—does this remind anybody else of the whole Anna Nicole Smith/old billionaire marriage??!!!
5 It’s true and I can prove it. If you say “superdelegate” out loud in theworkplace, people will know what you’re talking about. That was not true in 2007!
6 Address hate mail to my editor. Judging by how often she emails me about my delinquent column, she needs more attention.
7 I use that word charitably. It could be substituted with “ownership by.”
8 How about a statute that penalizes legislators for fraudulent titling of laws?
9 The Act does a lot more, but I have a word limit. And according to my editor’s last email, this is supposed to go to proof today! Editor’s note: Now you know why he gets so many emails.
