Attorney Randy Enochs, who writes a great blog for news junkies, is sitting in the guest blogger’s chair today. He talks about the Employee Free Choice Act and what it means to you.
Sixty years ago, 31.8% of the workforce had membership in a union. This past year, that number was at 12.0%, down 12.5% from 2005, reports the Bureau of Labor Statistics. There may be a plethora of reasons why union membership in the United States is steadily declining into nonexistence, but the Employee Free Choice Act (H.R. 800) hopes to eliminate some of the more severe causes by amending portions of the National Labor Relations Act (NLRA).
As currently codified in the NLRA, the first step in the union election process requires the union to file a petition supported by a showing of interest from at least 30% of the “employees” in the group that the union seeks to represent, typically called the “bargaining unit.” This is done by using authorization cards, which are individual forms signifying a worker wishes to be represented by the union. The authorization cards must be signed and dated within six months of when the union files its petition to be valid. If the threshold 30% is obtained, and all other potential challenges are defeated (an employer can challenge the appropriateness of the unit, for example) and the employer does not voluntarily recognize the union (this would require the support of more than half of the bargaining unit), the National Labor Relations Board (NLRB) then schedules a supervised election in which members would vote on whether or not to unionize. An election can take the NLRB weeks and even months to set up.
While an election is being held, an employer has a right to express its support for or opposition to unionization, with limitations. An employer cannot persuade employee votes by threatening to retaliate against positive union votes nor can it promise to enhance employee benefits in return for negative union votes. Often times an employer walks the fine line between its expression for support or opposition and violating the “Laboratory Conditions” (General Shoe Corp., 77 NLRB 124) the NLRB hopes to cultivate and maintain during elections.
After an election is held, a party that wishes to challenge the the outcome of the election must file objections within seven days after the election. The NLRB regional director will then conduct an investigation to determine whether or not any of the charges have enough merit to justify a hearing into them. In addition to protesting the outcome of an election, a party can also file unfair labor practice charges. A hearing on such charges will be held in front of an Administrative Law Judge.
This current union election procedure seems too arduous and vulnerable for employer influence on the outcome, which is why back on February 5, 2007, Rep. George Miller (D-Calif.) introduced the Employee Free Choice Act (EFCA) in the House, for the third time. By the end of February, the EFCA had gained 233 cosponsors, which is more cosponsors it had ever received in the past, and on March 1, 2007, passed in the House by a recorded vote of 241 – 185 (99% of Democrats supporting, 94% of Republicans opposing). The EFCA now faces the Senate where, according to many pundits, its chances look bleak and an almost certain veto from the President-if it makes it that far. Though the EFCA’s reality seems dim, the changes it seeks to attain are worthy of discussion.
The EFCA seeks to make three big changes to the NLRA. First, the bill, if passed, would allow employees to form unions by signing cards authorizing union representation thereby eliminating the election process if 50% plus one employee sign the cards in favor. Secondly, the bill establishes harsher penalties for employers who violate employee rights when workers seek to form a union. And lastly, the Act would institute new mediation and arbitration processes for first-contract disputes. It is the elimination of elections and the use of signed cards to authorize unions that has caused the most stir.
Proponents of the bill say the EFCA will eliminate any negative employer influence on the outcome of a union election while those opposed to the bill argue that the relatively quick nature of union authorization and elimination of elections under the EFCA is not in the best interest of workers because of the important role elections serve. There is also the issue of the voter privacy that is stripped with the EFCA.
Professor Matt Bodie states that while a an overwhleming majority of labor law professors probably support the EFCA and that there is strong evidence that anti-union campaigns that occur during the election period do have strong effects, it is hard to ignore the problem posed by the elimination of campaigns:
“[T]here would no longer be any period of time for employees to publicly consider their unionization decision. This public time is useful for employees to get information about the union, discuss what the union would mean, and weigh the costs and benefits collectively.”
This is particularly troubling, according to Professor Bodie, as “unions generally don’t compete with one another,” thus, “there are no competitive forces to create comparative advertising and information.” However, does the end of the election period really mean the end to the employer’s previous right to its opinion? If the EFCA became reality, is it far-fetched to suggest that employers might engage in anti-union campaigns when it suspects its employees are attempting to unionize? James Sherk, a Bradley Fellow in Labor Policy in the Center for Data Analysis at The Heritage Foundation, notes that NLRB data reveals that union claims that employers routinely fire workers for supporting a union happens in only 1.5 percent of elections and that labor claims of widespread intimidation are “almost entirely baseless,” according to NLRB findings. Also, who would then be informing other employees about their choice on whether or not they should choose to be a part of a union-biased members of the bargaining unit? A Washington Post editorial posits the notion that “the card-check arrangement would give labor too much power to spring unions on employers” and that perhaps the correct approach to take in rebuilding the working class calls for “beefed-up penalties for illegally firing employees and higher fines for employers who deliberately interfered with employees’ organizing rights.”
A short article in the Chicago Tribune noted that the end of the election process and institution of signed authorization cards, “obliterate[s] voter privacy in American workplaces because that basic human right has been construed by some in Washington to collide with their ambition of expanded unionism,” says current Secretary of Labor, Elaine L. Chao.
“With this undercutting of voter privacy, American workers would have no protection from efforts to get them to sign the union cards. One does not need a fertile imagination to anticipate the pressure and coercion that could occur when American workers no longer had the protection of private voting in unionization elections.”
All of this seems to suggest that the coercion stick would simply pass from the employer to the employees as Rep. John Kline (R-Minn.), an opponent to the bill, stated,
“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.’”
None of the other two provisions of the EFCA have received the heat the signed authorization card provision has received and it becomes understandable why this bill is said to face imminent demise, if not at the Senate level, certainly with the veto power of the President. The EFCA appears to take the unionization process from one side of the spectrum to the complete opposite when the best answer may lie either somewhere in the middle or with strenghtening penalties to avoid the problems with what is already in place, according to many experts. Either the EFCA is going to need revising with respect to the card-authorization provisions to please both sides of the aisle and the President or the EFCA is going to have to wait for a more pro-labor Senate and Executive. Even with the laundry list of supporters for the EFCA, the manipulation of the manner in which Americans are accustomed to voting might be to high a price to pay for union representation.