The Employee Free Choice Act.

Posted By on March 11, 2009

Over the past few months you have probably had an opportunity to hear more than your really wanted to hear about the Employee Free Choice Act referred to often as the EFCA, or “card check.  Employers are speaking about the EFCA like it is the worst thing that could happen to their business and to their employees.  Unions speak about the act as if it is something of the greatest benefit to all.  As much as this matter has been hashed over by both sides I would like to take the opportunity to speak practically about this.  As an attorney I have represented a significant number of corporations and on one occasion I was involved on the periphery of a union’s attempt to organize.  Prior to becoming an attorney I worked in blue-collar work at a factory, where I worked 11 years, and there was a well-established union.  I even served as president of this small local of about 140 union members for a term of a year.  Therefore I have the benefit of seeing both sides of this question.  I know the kind of pressure that can occur in a factory or construction setting to go along with the other employees and not rock the boat.  Everyone is trying to get along, for the most part, because so much of your life is spent working with the other employees.  You must depend upon each other to get your job done and for your own safety so this camaraderie is something that is built right into the work force by necessity.

My father was a millwright working in a factory during the latter part of his working career.  But he applied a trade which he learned in the coal mines of West Virginia where he worked for over 20 years of his life as a younger man.  His stories about union organization were heartfelt and compelling when he described the conditions that he worked in before the coal fields, where he worked, were organized.  The union there was a necessity of life and while questions of wage and benefits were a part of the reason for organizing they were not the only concern.  There were real questions involving mine safety and the treatment of workers as human beings which were a strong concern.  The safety laws were not enforced and the worker was imposed upon on a regular basis.  Most of the workers life was controlled by the Company since the Company provided, in many instances, a place for the worker to live and issued script for wages which could only be redeemed at the Company’s store.  These workers needed a strong union to speak on their behalf because individually they had no power over their circumstances.  It is from this southern area of West Virginia that many of the stories of destruction and murder involved with union organization arose.

In 1935 the National Labor Relations Act was passed and it impacts the day to day dealing between the Company and the Employee’s by making union representation available and providing safeguards, for both the Company and the employee, in its application.  http://www.nlrb.gov/about_us/overview/national_labor_relations_act.aspx 

 It is not my purpose in this writing to provide a history of the labor movement but for reference purposes I have provided a link to a copy of the the National Labor Relations Act.  While the NLRA is not the sole provision regarding this matter I am looking no farther than it in regard to our discussion today.

 The union can be a good thing for both the employer and the employee when both are fair-minded and keep a mind to the fact that if an employer has a business which begins to become unprofitable it will probably cut back on benefits or wages and may close.  With the current state of our economy even a well-run business has no guarantees of continuing.   However, it should be the worker, without pressure upon him/her, who should be in a position to make the ultimate decision as to whether to unionize or to remain unorganized.  They should not to be set upon by a union representative who has particular skills to bend an argument or a person in a particular way when an opportunity to further reflect is not provided to the worker.

My greatest concern with the EFCA concerns the provision where the union only needs to obtain a majority of signatures to become a bargaining unit for a group of individuals.  At present in order to have the opportunity to vote upon a union 30% of the workers need to indicate their interest in being represented by a particular union.  When the votes are cast it only requires a majority in order to certify the Union.  There exist many safeguards in the NLRA which protect the employee’s right to both education and from an employer’s actions which overreach and chill this process  It seems to be a poor trade where you take the educational process out of the organizing campaign and provide a quick fix to a situation which is not really broken.

I think it is important that individuals have the opportunity to make a good clear decision as to whether they want a union to represent them when dealing with the employer.  An opportunity which is presented while under pressure is no real choice at all.  It is clear that pressure  could be brought to bear upon individuals one at a time in order to obtain their signature.  The system as it now exists provides the opportunity by means of a process where the union and the employer can both provide information, both pro and con, as to how a union will help or hinder the work force.  In order to make a decision people should have the opportunity to be fully educated in the choices and the impact of any choice which they make.  That is not provided by the EFCA.  This process of educating the worker cannot occur when by a simple majority a union can become certified as the bargaining unit for a group of workers without giving the workers an opportunity to  anonymously make their vote.  For an idea to survive and be strong it must be able to survive the counter argument and if the choice cannot survive a close look then in all probability it is something that the workers really did not want.  I believe  the bottom-line question is whether the workers think that they need a representative in order to deal with the employer in a constructive manner. 

Throughout this whole discussion little consideration is given to the employer who pays the wages and provides the workplace.  If a union comes to his place of business the employer still maintains the ability to sell the business, or close it down, and move on.  While the ability to move on has some restrictions, known commonly as a “runaway shop”, there still exists a lot of leeway for the employer to work within and when they are not given an opportunity to even participate in the process this may become even more of a concern.  Under current law if the Employer wishs a particular union it need only agree to be bound by the results of the initial signature petition and if a majority of the workers sign then the union is certified without ballot.  On occasion this provision has been subjected to some scrutiny as it provides some opportunity for collusion between the employer and the union. 

By its very name, and the general understanding of people for the purpose of its being, a union describes a group of individuals working in a concerted manner to obtain a goal which is in keeping with the majority opinion.  How can this group survive to work together meaningfully if they are  pressed upon to enter into the union without giving due consideration to all of the facts?  Naturally, it is hard to give credence to the employer’s arguments against the EFCA because of the well-known distaste which employers have for unions.  Therefore you would assume the employer would be against any provision which made organization easier.  It is also well known that unions have an agenda which bases their strength upon the size of their membership and therefore anything that would ease the burden of having a union certified in the workplace would be to their advantage.

The employee fair choice act is a poor bargain for both the employer and the employee and the only one winning is the union which is seeking recognition.  In order to be a true union it must have the support and cooperation of the workers and if they have been pressed into making a poor choice then the representative union will have neither.  The employer is being entirely sidestepped in this process and has no place in educating the worker regarding the issue from their standpoint.   If the EFCA is passed I would expect  the question of de-certifying a union will come up on a much more regular basis.  I exerpt from the NLRA reference above as follows:

(e) [Secret ballot; limitation of elections] (1) Upon the filing with the Board, by 30 per centum or more of the employees in a bargaining unit covered by an agreement between their employer and labor organization made pursuant to section 8(a)(3) [section 158(a)(3) of this title], of a petition alleging they desire that such authorization be rescinded, the Board shall take a secret ballot of the employees in such unit and certify the results thereof to such labor organization and to the employer.

The question of whether the bargaining unit really supports the union has the potential to reduce the strength of the unions bargaining position and make the employer reluctant in its dealings with the union.  Our Government has more than enough problems on its plate that it must address and I think this effort to fix a clock that is not broken is both ill-advised and ill-conceived.  I really do not expect the EFCA to pass muster in the Senate as I believe they recognize that the time they are spending on this matter could be spent more profitably elsewhere.   As always I invite your comments.

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