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"The Employee Not So Free Choice Act"

vincent.jpgBy Vincent Gioia
August 4, 2008

Isn’t it just like liberals to mislabel legislation to make it seem harmless? What else can you think about the phony "The Employee Free Choice Act?" This sounds like an effort to impart fairness to unionizing elections but of course it is the opposite.

Although free secret elections are the foundation of our democratic society, Democrats see it as an obstacle to expanding their power and that of the labor unions supporting their agenda. The Employee Free Choice Act (EFCA) is Democrat-sponsored legislation which would change federal law with regards to the rights of workers to unionize. Specifically, it would make it easier for unions to unionize businesses by eliminating secret elections for workers when they vote to decide whether or not they want union representation. It was introduced in the House and Senate during the 108th, 109th, and 110th Congress. It passed in the House on March 1, 2007 for the first time, but was filibustered by Senate Republicans in June 2007. But Obama and Democrats want to resurrect it and their chances in the next congress are unfortunately better than anytime in the past.

The bill would amend the National Labor Relations Act to require certification of a union as a bargaining representative on the basis of the number of worker-signed cards designating the union as its bargaining representative. Under existing law employees have the right to decide by secret ballot and not on the basis of signed cards which obviously may be the result of coercion and intimidation. In many cases in the past despite obtaining many signed cards, union representation was defeated in secret balloting.

It is obvious to all but unions and Democrats that authorization cards which potential members would sign to supposedly express their desire to unionize are not in the interest of workers. Employee decisions and votes would not be confidential whereas the existing law allows employees votes to be done in secret and without recriminations. The openness of the cards subject workers to peer pressure, harassment, coercion, and misrepresentation.

Representative John Kline (R-Minn.), said "It is beyond me how one can possibly claim that a system whereby everyone – your employer, your union organizer, and your co-workers – knows exactly how you vote on the issue of unionization gives an employee 'free choice . . . . It seems pretty clear to me that the only way to ensure that a worker is 'free to choose' is to ensure that there's a private ballot, so that no one knows how you voted. I cannot fathom how we were about to sit there today and debate a proposal to take away a worker's democratic right to vote in a secret-ballot election and call it 'Employee Free Choice.'"

Another problem with the proposed bill is that it requires workers to make their decision to unionize before employers have the opportunity to tell them why it is not in their best interest.

The Heritage Foundation points out "The Employee Free Choice Act would strip American workers of their right to a private-ballot vote, require companies to submit to binding arbitration, and increase penalties for unfair labor practices committed by employers but not by unions. Each of these provisions would be bad for American workers."

"Congress should instead protect the privacy of American workers and guarantee their right to vote in an election before joining a union. Congress should also guarantee every worker the opportunity to hear arguments from both sides and time to reflect before voting."

Rather than holding a secret-ballot election, the EFCA would institute a card check system, creating a union if a majority of workers submitted cards requesting that one be created. These cards would not protect the identity of submitters, making it clear who was in favor and who was against the creation of a union. Union supporters of the bill say secret-ballot elections would still be held but this is totally untrue. Clearly supporters of the EFCA give misleading information when saying that secret-ballot elections would still occur; union organizers would choose the way such elections would be organized and conducted and secret balloting is not in the cards (no pun intended).

Unions would have an unfair advantage in negotiations with employers because the card signing drives are put together by union organizers, employees would be given a one-sided pitch, and put into a high-pressure signing situation. Again, from The Heritage Foundation a quote by one former union organizer:

"We rarely showed workers what an actual union contract looked like because we knew that it wouldn't necessarily reflect what a worker would want to see. We were trained to avoid topics such as dues increases, strike histories, etc. and to constantly move the worker back to what the organizer identified as his or her "issues" during the first part of the house call."

The EFCA would also impose severe penalties on employers for violations of the law while employees are attempting to form a union or attain a first contract. For example there would be civil penalties with fines of up to $20,000 per violation against employers found to have willfully or repeatedly violated employees’ rights during an organizing campaign or first contract drive. In addition, there would be an increase in the amount an employer is required to pay when an employee is discharged or discriminated against during an organizing campaign or first contract drive to three times back pay.

The NLRB would be required to seek a federal court injunction against an employer whenever there is "reasonable cause" (undefined) to believe the employer has discharged or discriminated against employees, threatened to discharge or discriminate against employees or engaged in conduct that significantly interferes with employee rights during an organizing or first contract drive; courts would be authorized to grant temporary restraining orders or other appropriate injunctive relief.

As bad as the Employee Free Choice Act is for large employers, it may be fatal for small businesses. Under current law, organizing small employers is not very cost effective - small employers are rarely worth the effort and expense given the number of new members the union will get. However under the EFCA only a few organizers will be needed so many employers who were previously ignored by unions will now be directly targeted.

The prospect of becoming an involuntarily union company should be particularly frightening to small employers as they tend to have more personal relationships with their employees. Furthermore, employees in small businesses generally better understand how the business operates and the pressures the business is under.

The EFCA threatens to undermine employer-worker relations in a small company by raising the very real possibility of a union imposing itself between employers and their employees. If a union comes in, the small business owners will lose control of how the business is run. In a union company environment employers would be unable to communicate directly with their employees, on a personal basis. They would have to go through the shop steward and union leadership. In some industries like construction, they would even lose control over employee hiring because "the union would provide the employees according to their priorities such as seniority or how much they favored that particular contractor." (The Heritage foundation)

In the environment of the EFCA the employer will always lose. The union will make promises to get workers’ signatures, e.g. higher wages, greater benefits, more job security, etc. Typically the employer responds with what they can give and then an arbitrator will choose the middle ground that will be more than the employer can provide and the union has loses nothing. Employees get less than promised and the employer pays more than can be afforded so the business is jeopardized. Binding arbitration always rewards the union and worker and disadvantages the employer because whatever is decided is more cost to the business. The worker may get a little more but it is likely it would be not as much in the long run as the employer would have willingly given while preserving worker-management relations. Union management is the biggest winner because they can move on to the next victim with a "victory" to boast about.

Another effect of EFCA is that whatever contract is created is imposed on the company for a minimum of three years without employee approval or further review. Under normal contract negotiations employees have the opportunity to ratify the contract but under the EFCA there would be no ratification by employees. This is another deprivation of workers rights since they have nothing to say about the final settlement under EFCA.

The Employee Free Choice Act will have devastating affects on our economy as small employers are driven out of business leaving employees with the only free choice they have; finding a new job if they can.

Vincent Gioia is a retired patent attorney living in Palm Desert, California. His articles may be read at www.vincentgioia.com and he may be contacted at This email address is being protected from spambots. You need JavaScript enabled to view it. .

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