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Tuesday, May 19, 2009

The Fuss About the Employee Free Choice Act

Over the next few weeks we'll hear more in the press about this piece of legislation, called by some informally as the "Card Check Act", as it winds its way through Congress. Its a bad bill but it may pass anyway as the AFL-CIO has pumped a reported $500m in campaign contributions to both parties in what may be its last stand as an organized body. I say this bill is bad because it will make union campaigns more prevalent, more intimidating and more prone to employee-on-employee threats and violence. I'm not quoting the Chamber of Commerce line on this; I've seen it with my own eyes working on the company side in three Steelworker campaigns in Kentucky.

To understand this bill we first have to visit the process of how a workplace becomes unionized, so I'll digress just briefly.

Union elections are governed by the National Labor Relations Board (NLRB), a federal agency whose members are appointed by the President. Republican presidents tend to stack it with pro-business members and the Democrats stack it with pro-labor members. Its regulations are basically unchanged from decade-to-decade, but how those regs are interpreted changes with each administration.

Under NLRB rules a labor union can petition for an election if it has cards signed from at least 30% of the workforce. A union will begin a card signing drive, person-to-person and often in secret. At some point in the drive if/when word gets around the workforce the union will officially notify the company that it has in-house employee organizers and lists their names. Those individuals are (supposedly) then protected from termination/retaliation by the company.

Once the union can certify to the NLRB that it has 30% cards signed the NLRB notifies the company of an impending election and sets a date. A "campaign" then starts in the open during which time the company campaigns to its workers why it should stay union-free, and the union campaigns as to why the workers should vote for union representation. Finally a secret ballot is held on company property with NLRB observers who certify the results and notify both the company and union. The winning margin for either side is 50% plus 1 vote.

If the workplace votes union, negotiations begin. The union and company can agree to terms, or sometimes they don't. When they do, a contract is signed and the workplace implements the controls and restrictions of a union shop. When they don't, the union may or may not call a strike, after which time the company more often than not hires permanent replacement workers and continues operations.

So what's wrong with this system? Plenty. Unions often use threats, intimidation, and promises it can't keep to get cards signed. Because of this fact, which they know well, no union I know of will petition the NLRB for an election if they don't have at least 60% cards signed. NLRB regs say that only the party with the authority to make good on their promises is bound by its regs to tell the truth in a campaign. Since the union has zero authority to make anything happen, it can promise anything and does. In other words, most unions cheat.

Problem is, so do most companies. Officially a company can't Threaten Intimidate Promise or Spy (TIPS). To do so creates an "Unfair Labor Practice" charge and they can be fined by the NLRB. That's all fine and good, but the fines are a token amount when compared to the added overhead and lost productivity of going union, so most companies cheat. Most workplaces prone to unionization are semi-skilled occupations for which employers can find and train permanent replacement workers. If the company loses it has two nuclear options; replace the workforce in its intirety or close the operation and move it to another state or country. All that is expensive so there's a financial incentive to cheat big.

So what's the solution? According to the unions, who basically wrote the Employee Free Choice Act, the problem is the election. Since companies cheat during elections, the unions propose that we do away with them and have the NLRB certify a union based solely on card signing. In order to keep companies from negotiating too forcefully after that, the company will have 90 days to come to terms with the union before an NLRB arbiter will be appointed to hear both sides and mandate the terms of the contract to the company. The bill will prohibit replacement workers.

Any good organizer will tell you that getting cards signed is the easiest part of the election. I have seen wild promises of promotions and pay raises, I've seen women pulled into restrooms and manhandled until they agreed to sign cards. I've seen people threatened in parking lots to get them to sign cards. People sign the cards and avoid the intimidation knowing that they have a secret ballot and can vote their wishes without fear. Employee Free Choice, ironically, will deny people in the workplace the opportunity to vote their will and conscience free from intimidation.

The solution to the current system's problems is as simple as raising the fines and penalties for unfair labor practices. The existing NLRB system worked well for decades up until the point where it became far more economically feasible to cheat rather than to follow the rules for both sides. Keep the system, multiply the existing fines x 10, pull business licenses for both sides in cases of repeated violations, and keep the private ballot. That provides employees with the most free choice.

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