There's nothing 'free' about the Employee Free Choice Act
By Jim Haney President, Wisconsin Manufacturers and Commerce
In November 2008, Americans went to the polls to elect the leader of the free world, along with members of Congress and the Wisconsin Legislature.
What if, on Election Day, voters arrived at polling places and were told that they could not cast a ballot privately? Or, what if two or three “election organizers” visited folks at home with “ballots” and waited for the votes to be cast, watching to see how the ballots were filled out?
The reaction of a vast majority of American citizens to these scenarios would be shock and disbelief. Free and open elections, with the opportunity of every adult citizen to cast a ballot in private, are the cornerstones of every democratically elected government on earth.
However, the ironically named “Employee Free Choice Act” (EFCA) would deny American workers the opportunity to cast a ballot in an election to determine whether they want organized union representation in their workplace. This federal legislation would mandate a “card check” system for union recognition in the United States.
The bill already passed the House of Representatives last session and is under consideration this session. President Barack Obama has indicated he would sign it into law.
Under the National Labor Relations Act (NLRA), since 1935, in order to organize a union in a workplace, union representatives approach the workers and ask them to sign cards indicating that they want an election held in their workplace to establish a union. Once a simple majority of workers sign an authorization card, the National Labor Relations Board, a federal agency, holds an election allowing all the workers in that workplace to cast a ballot privately.
The EFCA would short circuit the current union election system established under the NLRA, abolishing the private balloting process. As with the NLRA today, under EFCA, union representatives would meet with workers who are trying to organize a workplace and ask those workers to sign authorization cards; however, once a simple majority of the workers sign cards, the union would be automatically recognized and become the bargaining agent for all of the workforce in a bargaining unit.
Federal appeals courts have opined on the issue of union elections, with the Fourth Circuit saying “it would be difficult to imagine a more unreliable method of ascertaining the wishes of employees than a ’card check.’” The Second Circuit Court ruled “it is beyond dispute that the secret ballot election is a more accurate reflection of the employees’ true desires than a check of authorization cards collected at the behest of a union organizer.”
In a public opinion survey, American voters across the board rejected EFCA, 79 percent to 14 percent. Democrats reject it by a 78-16 margin, Republicans by an 80-13 split, and independents by 80-15. Not surprisingly, on this issue, a “voter is a voter” and regardless of their political views, Americans hold the integrity of all elections, based on the ability to cast a ballot privately, as a cornerstone of a democratic system.
No less a public figure than former U.S. Sen. and Democratic presidential candidate George McGovern, a strong advocate for organized labor over the years, weighed in opposing the Employee Free Choice Act.
In a guest column in The Wall Street Journal, McGovern wrote: “There are many documented cases where workers have been pressured, harassed, tricked and intimidated into signing cards that have led to mandatory payment of (union) dues.”
EFCA is not just about how union representation is chosen in a workplace. It contains a significant binding arbitration component that could impose contracts on employers and workers.
EFCA addresses the timing and manner in which contract negotiations occur if a union is authorized under EFCA. After union recognition under EFCA, if negotiations are not completed within ninety days, then either party — union or management — may call in the Federal Mediation and Conciliation Service (FMCS).
If FMCS mediation does not result in a contract within 30 days, then the contract is subject to binding arbitration by government arbitrators.
American private sector labor law has never had a binding arbitration component, an approach that has been adopted only sparingly in areas of public sector labor law. Generally referred to as “mediation-arbitration” laws, this approach to contract deliberations often discourages negotiations and usually ends up placing important matters of government fiscal policy in the hands of arbitrators. It is difficult to imagine American businesses, subject to binding arbitration, remaining competitive in the global marketplace.
Election 2008 has come and gone. We’ve elected a new president and a new Congress. Americans exercised their fundamental right of citizenship to cast ballots in private. It is important that we talk to Congressional leaders about EFCA.
American workers should have the same rights as their fellow citizens to cast a private ballot in the workplace on union representation. n
