Wednesday, March 25, 2009

On Unions Going Green & the Employee Free Choice Act

I was recently interviewed by the Machinists News Network on why union members should get behind their employers’ efforts to go green:

Right now there’s a critical labor question facing Americans: Do you believe it should be easier for workers to organize into a union to fight for better working conditions? That’s the question at the heart of the Employee Free Choice Act, yet it’s completely ignored in most media discussion of the bill.

Instead, reporters skip right to the Republican talking points, bashing unions and claiming that any strengthening of workers’ ability to organize will be bad for everyone. No, really. The National Right to Work Committee sent out an email claiming anyone who supports the Employee Free Choice Act is selling out “employees, customers, stockholders, and fellow employers.” I’m surprised they didn’t include pets.

So what would the Employee Free Choice Act do? According to Wikipedia, it “would require the [National Labor Relations Board] to certify the union as the bargaining representative without directing an election if a majority of the bargaining unit employees signed cards; however, employees may still request a secret ballot election if 30% of employees petition for one. The EFCA would, according to Christopher Beam, ‘allow the employees—rather than the employer—to decide whether to hold a secret-ballot election.’”

As then-Senator Barack Obama said:
The current process for organizing a workplace denies too many workers the ability to do so. The Employee Free Choice Act offers to make binding an alternative process under which a majority of employees can sign up to join a union. Currently, employers can choose to accept--but are not bound by law to accept--the signed decision of a majority of workers. That choice should be left up to workers and workers alone.
According to the AFL-CIO:
People call the current National Labor Relations Board (NLRB) election system a secret ballot election—but in fact it's not like any democratic election held anywhere else in our society. It's really a management-controlled election process because corporations have all the power. They control the information workers can receive and routinely poison the process by intimidating, harassing, coercing and even firing people who try to organize unions.
It’s a sad statement about how little we value workers’ ability to organize for a better deal that even minor process changes in union organization are met with such fierce, over-the-top resistance from big business and its allies on Capitol Hill.

A local organizer from the Service Employees International Union (SEIU) has asked for our campaign’s help to let our leaders know that we support the Employee Free Choice Act. We're hosting an event on Saturday at 1pm to write Senators Warner and Webb to urge them to support it. Hope you can join us!


Unknown said...

I am a management labor lawyer, so you can make of this what you will, but in my view the most misleading statement being made about EFCA is the assertion that it will not end the secret ballot process for deciding whether a majority of employees wish to become unionized.

You quote Christopher Beam as saying that EFCA would merely "allow the employees—rather than the employer—to decide whether to hold a secret-ballot election.” But that simply makes no sense, given what the law actually does.

Under EFCA, as drafted, a union may submit signed cards from a majority of employees and be automatically certified as the the bargaining representative of all employees in that unit, whether or not the employee signed a card asking for union representation (indeed, whether or not he or she even were AWARE that a union was gathering cards from fellow employees). So, have the employees "chosen" not to have a secret ballot election under those circumstances? Of course not.

First, it is the union not the "employees" who have bypassed the election -- the employee cards simply say "I wish to be represented," and who knows what the employees were told by organizers to get them to sign (that's really a different problem with EFCA). But even if you assume that 51% of the employees signed cards aware that this was the union's plan, the whole point of the EFCA debate is whether the traditional secret ballot election is the best way to discover the free choice of the employees on the question of unionization. Saying that the majority of employees "choose" not to have an election -- something which we know only by virtue of the non-secret ballot procees of card check -- is entirely circular.

Can unions still ask for an election under EFCA? Yes, but no union with majority support is ever going to ask for an election, especially when the whole point of their lobbying campaign is about how broken and corrupt the election process is. It would be hypocricy run wild, not to mention labor malpractice, for them to subject the employees to the horrors they describe as the current secret ballot process when their hard fought alternative of card check was available.

In short, I can listen respectfully, although I may disagree, to EFCA proponents who talk about why the secret ballot process is too employer friendly and that it would be impossible to fix, or even that card check is sufficiently democratic since (they argue) there will be little union coersion in the card signing process. I will debate those points, but they are in the real world. To say that employees will have the right to a secret ballot election after EFCA is an insult to the intelligence of anyone who understands the process.

Unknown said...

Hum, I am a Union lawyer who has been involved in numerous organizing drives: the Employee Free-Choice Act is not just about "card-check" recognition. More importantly (and what employers are concealing) is that in most organizing drives, the strongest supporters of a Union often get fired or suffer some retaliation from their employer for being pro-Union. The Employee Free-Choice Act substantially stiffens penalties for these actions and makes it less intimidating for workers to support and act upon their right to have Union representation.

Another aspect of the legislation that again the Employers tend ignore is that the Act will help the parties obtain an actual collective bargaining agreement if after a period of 90 or 120 days the parties have been unable to reach one. Under the current law, if an agreement is not reached after one year, the employer may walk away from continued negotiations.

The Employee Free-Choice Act is far from perfect; yet in comparison to our existing law, it's like a Cadillac.

This may be a bit technical, but if I could re-write the bill (and believe me our friends in management would hate this idea), I'd change the Board's rule to schedule a representation election within seven days of a petition's filing. All issued that relate to the scope of the unit would be resolved after the election, since this step is usually what ties up elections for weeks, if not months.