OK, the real title of what is arguably the worst proposal likely to come before the new Congress is “The Employee Free Choice Act.” But the reality is the proposal forces a choice – to support joining a union – on employees through coercion or the threat of it by killing secret ballots in workplace representation elections.
The U. S. Chamber is strongly critical of the proposal and recently delivered the following letter to all members of Congress:
TO THE MEMBERS OF THE UNITED STATES CONGRESS:
The U.S. Chamber of Commerce, the world’s largest business federation representing more than three million businesses and organizations of every size, sector and region, strongly opposes H.R. 800/S. 1041, the “Employee Free Choice Act,” which is expected to be reintroduced and considered in the early part of the 111th Congress. The Chamber urges you to oppose this legislation, and not cosponsor this legislation.
The Chamber believes this bill would undermine long standing principles of workplace democracy and fairness and result in employees having less ability to determine if they wish to be represented by a union. The Employee Free Choice Act (EFCA) is being promoted by organized labor as labor law reform to level the playing field and allow employees to more easily form unions. This bill does not represent “reform” in any sense of the word. Rather, the legislation will radically restructure 60 years of carefully crafted labor law balances that have served both unions and employers well for many decades.
The bill consists of three provisions, each of which is unacceptable:
* Elimination of Secret Ballot: This legislation mandates that a union be recognized if a majority of employees in a designated bargaining unit sign authorization cards. This is the provision from which the nickname for the bill, “card check,” comes. If this provision is enacted, the current system where a federally supervised election process with secret ballots determines whether employees will have a union in their workplace would be effectively eliminated. The secret ballot ensures that neither the employer nor the union knows how someone votes. If the bill becomes law, no union would take their chance on an election when getting a few more signatures would guarantee them victory. In contrast to the secret ballot, the card check process would expose employees to a “free for all” environment where any tactic for getting a signature could be used. It has been well established through court cases, precedent under the National Labor Relations Act, and testimony on Capitol Hill of former union organizers that the card check process of obtaining signatures is routinely characterized by harassment, intimidation, and coercion, including employees being threatened in their homes and other locations away from the workplace.
* Writing contracts through government imposed arbitration: The second provision would result in contracts being written by federal arbitrators instead of the process of collective bargaining and negotiating. Currently, after a union has been recognized, the parties bargain to a first contract where there are protections to make sure both sides negotiate in good faith. Under EFCA, if a first contract is not agreed to within 120 days (which is an extremely short time period for these negotiations) the matter would have to be submitted to binding interest arbitration and a contract developed by a panel with likely no understanding of the business, or the competitive forces it faces, would be imposed on the company for two years. This contract would cover precise details of how that business would operate for the duration of the contract such as the wages, benefits, ability to use employees most productively, and how many employees would be used for specific tasks. This process would virtually always result in a contract that is beyond what the employer is prepared to accept and provides a strong incentive for the union to undermine the collective bargaining process to ensure that the process lasts long enough to end in binding arbitration. Finally, this provision would result in employees losing a second vote since they would have no opportunity to ratify the contract as they currently have in most cases. In a recent poll of registered voters conducted by the Chamber, 75 percent of the respondents preferred a system that encourages good faith negotiations, while only 16 percent preferred a system where government arbitrators write the contract. While the card check provision has received most of the attention in the media, this provision is regarded as equally offensive to employers.
* Unreasonable and one-sided penalty expansion: Finally, the Employee Free Choice Act imposes dramatic new penalties on employers for violations of the National Labor Relations Act, but not a single new penalty on unions or labor organizers. Under one provision of the new penalty structure, employers would be vulnerable to an injunction reinstating a dismissed employee if that employee, or the union seeking to represent him or her, merely alleges that the dismissal was because of union activity. Such a low threshold makes a mockery of traditional labor law due process.
The Chamber believes that the Employee Free Choice Act would have a particularly devastating impact on small employers who, as the primary source for new jobs, would be counted on to reverse the current economic downturn. You may hear that the EFCA should be considered in the context of helping to revive the economy. This bill is an awful idea in good economic times and a catastrophic idea in the difficult economic times now upon us. For more information, analyses, and polling data, please go here.
Sincerely,
R. Bruce Josten
