Sunday, March 15, 2009

The Employee Fair Choice Act

Last week, Democratic members of the Senate and House of Representatives introduced legislation its union contributors and constituents have been championing for the past two years. The Employee Free Choice Act of 2009 (EFCA), which currently has 40 (including Senator Edward Kennedy) co-sponsors in the Senate and 223 (including Representative George Miller) co-sponsors in the House, would amend the National Labor Relations Act by so that union supporters could bypass the secret ballot election employers may insist upon before employees can unionize if a majority of the workers sign onto a unionization authorization card. President Barack Obama reportedly supports this measure.

The card-check process works like the petition process that is used in many states. Union sponsors, like the sponsors of the (seemingly) thousand initiatives and referendums in California, canvass their community (in this case the union supporters' co-workers) to collect the signatures they will need to hold the referendum (in this case, the secret ballot for workplace unionization). If unions gather the prerequisite number of signatures, they can hold an election.

Currently, union backers can ask the National Labor Relations Board to order a reluctant employer to hold an election for unionization once they submit a card filled with 30% of the employees' signatures but they can and in many cases wait until they gather the support of a majority of the employer's workforce when a positive outcome isn't in as much doubt.

An employer can, on his her or its own, waive the need to hold such an election under current law and recognize the employees' decision to bargain through a union. Typically the employer would, however, insist upon an election to buy them the time to peel off some of the union organizers' supporters.

EFCA would keep the 30% threshold where it but let the union supporters effectively bypass the secret ballot process altogether if they can gather the signatures from a bare majority of its employers.

Its proponents say this measure is designed to off-set the intimidation workers who want to unionize face as soon as they submit the card to the NLRB. Service Employees International Union (SEIU) President Andy Stern told MSNBC talk-show host Rachel Maddow last Monday that the employers will hire anti-union consultants. Employees will be called in to one-on-one meetings with their supervisors, people who it should be noted evaluate their job performance, to convince them to vote against unionization by telling them that if the unions had their way, workers may have to be laid off or wages gutted:

What I always say to people, if you want to know what goes on for workers who want a union and you are a regular person, go tell your boss tomorrow that you want to have a union. And the bell will ring, and all of a sudden, these anti-union consultants will arrive. All of a sudden, you‘ll have these one-on-one very special meetings with your supervisor, who will tell you how this is really a bad idea.

Thirty percent of the elections have workers fired simply because they want to have a union. Ninety-two percent have these private captive audience meetings that are illegal in an election for your senator or congressman, but happen every day on work places. So, it is a reign of terror that comes down.

The bill's opponents say this bill will cripple small businesses, lead to the creation of a socialistic or socially democratic welfare state not unlike those now in existence in Europe, and at minimum, instill within the anti-union employees a culture of fear since they will be pressured into signing a card for unionization lest they be ostracized by their co-workers. Like the worker who crosses a picket line, the employee who opposes unionization will be called a "scab."

His or her co-workers, the bill's opponents argue, may refuse to talk to him or her, talk behind his or her back, refuse to take their work breaks with him or her and make derogatory comments that turn his or her working environment into a "living hell." While such opposition might seem unreasonable to the union backer (unions do, after all, fight for higher wages and larger health benefits packages) it is not unheard of. Unionization does have its costs in terms of fees which the worker who opposes unionization may feel he or she cannot support. The new worker may not want to antagonize his or her supervisor lest he or she be given a poor job evaluation.

The bill's proponents say this bill does not eliminate the secret ballot; it merely shifts the decision-making process from the employer to the employees. Neither side's claim regarding the secret ballot rings true.

Expressed concern for the workers' privacy coming from the bill's opponents ring hollow. Many employers have moved their manufacturing operations overseas where they are not required to pay their workers minimum wages and health care benefits that are comparable to the ones offered here while other businesses that have not closed shop rely upon a class of illegal immigrants they can stiff given their illegal status.

The opponent's also dramatize the role which the secret ballot plays in the unionization process. Whether this bill is signed into law or not, employees will still be confronted with a union organizer's request to sign a union authorization card and they will question whether they can withhold their signature without being ostracized or sign it without incurring their supervisors' wrath.

Proponent's claim that the bill does not eliminate the secret ballot is only literally true. The secret ballot is altogether bypassed if and when the union can submit the signatures of a bare majority of workers at a given plant, facility or company. Though the ballot can still be utilized when the union's proponents gather 30% of the workers' support, union supporters probably wouldn't risk a vote with so few supporters.

The Employee Free Choice Act would raise in importance the card-check stage of the process by putting the employee who is confronted by the union organizer in an even more uncomfortable position than he or she is under the current provision. Under the current system, the employee could tell the union organizer that he or she would secretly vote to organize but doesn't want to risk the supervisor's wrath, even if he or she was going to vote against the bill. Likewise, the employee who would comfortably vote for union organization (and strongly supports it) might otherwise refrain from signing the card-check authorization for lest he or she incur the supervisor's wrath.

Congress should vote against this bill, eliminate card-check and in the alternative, write a bill which mandates annual or biannual elections at working facilities where the employees are not represented by a union. To eliminate the coercive elements of one-on-one meetings, Congress could mandate the video-recordings of all one-on-one meetings between a supervisor and his or her employees to ensure that when accusations of corporal misconduct occur the offenders are penalized severely.

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