By Richard Hankins, Kilpatrick Stockton Labor Attorney

In a guest editorial entitled "Union bill to benefit workers, companies," slated for publication in tomorrow’s Atlanta Journal-Constitution, Charles Key, Secretary-Treasurer of the Georgia AFL-CIO, argues that “Unions have been a key reason for America's greatness and should remain a strong voice for America's working families.” As can be seen in his writing, Mr. Key is a passionate advocate of employee rights and has no doubt seen his share of unscrupulous employers over the years. Unlike many EFCA proponents, Mr. Key speaks from personal knowledge and sincerely held beliefs. But one must assume that even Mr. Key, who hails from the not-so-union-friendly South, has seen at least some companies who do not habitually cross the line. Surely he would admit that not everyone who disagrees with union representation is intimidating and coercive.

No one is suggesting that violations of workers’ rights to support unions should not be punished. Proponents of the Employee Free Choice Act assert that the penalties for violating the National Labor Relations Act are weak or non-existent. This is not accurate. As we’ve noted before, there are, in fact, powerful remedial weapons at the disposal of the National Labor Relations Board. (See "Current Law Provides Adequate 'Consequences'").  Those should be brought to bear in the instances that unions point to when suggesting that we are in the midst of a “human rights crisis.” To use an old Southern expression, the government should put them “under the jail.”

But even Rep. Robert Andrews  (D-NJ), chairman of the House Subcommittee on Health, Employment, Labor, and Pensions conceded that "most employers are not bad actors,” and that only “ a few employers” engage in coercive behavior.

The question thus becomes: Why throw the secret ballot out with the bathwater?

Of course, Mr. Key and others are fond of pointing out that:

EFCA does not eliminate the possibility of secret ballot elections. Workers could still petition for a secret ballot election under the provisions in the existing National Labor Relations Act.

It is here that Mr. Key gets it wrong. It is true, of course, that there would still be provisions in the law for secret ballot elections. But it is misleading to suggest that “workers” would be able to choose that option. That leaves one with the impression that any worker can go to the NLRB and have the matter put to a secret vote. But the reality is that the holder of the authorization cards -- the union -- would be the only party with an option. And it is hard to imagine that a petition for a secret ballot election would be anything but a last resort for any union organizer.  Right now employees have the right to a secret ballot election.  That right would disappear under the EFCA.