Does card check kill the secret ballot or not?

As Congress prepares for battle over the Employee Free Choice Act, the business and labor lobbies are launching multimillion-dollar campaigns. But if the debate is about the sanctity of the (workplace) ballot box—and that's how it's shaping up—then organized labor may as well save its money.

Union elections are more complicated than either side admits. Maybe that's why debate over the EFCA hangs on a single, simple question: Does the measure eliminate the "secret ballot" in union elections? Business groups like the U.S. Chamber of Commerce say yes. (Warren Buffett has voiced his concern as well.) Labor groups like the SEIU and AFL-CIO say no. Which is it? Would the bill eliminate the secret ballot?

In theory, no. In practice, yes. That is, if you believe the secret ballot even exists now.

Here's how it works currently: Say you work at a factory and you want to form a union. First, you approach your favorite union and request a bunch of blank cards. (Here's what they look like.) Then you go around to your colleagues and ask them whether they want to sign up. If they do, they sign their name to the cards. Once you get 30 percent of the total work force to sign cards, you're eligible to hold an election on whether to form a union. (Workers usually wait till they get at least 50 percent or 60 percent, just to make sure they will win the election.) You then present the cards to the National Labor Relations Board and the employer. The employer can then either recognize the union right away or request a secret-ballot election, which must happen within 60 days. If more than 50 percent of employees vote for a union, they've got a union. If not, they don't.

Even though employers are free to recognize a union without an election, in practice they almost always request an election: Why recognize a union before they have to? Requesting an election also gives them more time to lobby against unionization.

The essential change of the EFCA would be to allow the employees—rather than the employer—to decide whether to hold a secret-ballot election. If at least half of the work force signed cards saying it wanted a union, there would be a union—without the rigmarole of a full-blown election.

Workers still have the option of holding a secret ballot election, of course. But, again, as a practical matter, it's hard to imagine why a group of workers, having just won a union, would then also decide to hold an election. Sure, a smaller group of workers—it'd have to be at least 30 percent—could still petition for a secret ballot. But the legislation clearly states that "[i]f the Board finds that a majority of the employees in a unit appropriate for bargaining has signed valid authorizations … the Board shall not direct an election but shall certify the individual or labor organization as the representative."

To be sure, there are cases in which union supporters would want a secret-ballot election. Maybe the company has workers spread across the country, in which case it may be logistically difficult to get 50 percent of workers to sign a card. Easier would be holding an election back at headquarters. Pro-union workers might also want to hold a secret ballot for strategic reasons: Under card check, a majority of all employees is needed for unionization. With an election, only a majority of voters is necessary.

Naturally, this apparent abandonment of democratic principles ticks some people off. Why throw out the secret ballot with the bath water?

The problem is, the secret ballot isn't so secret. In reality, labor leaders argue, it's hardly the democratic process suggested by its name. During unionization campaigns, companies routinely hire consultants to explain to workers, during work hours, why starting a union is such a bad idea. These consultants can also hold one-on-one meetings with workers. *