Jottings By An Employer's Lawyer

Thursday, March 01, 2007

What's At Stake in Today's Vote on the Employee Free Choice Act


Today the House of Representatives will take up, and according to all predictions, pass the so-called Employee Free Choice Act. As reported in my earlier post, Deceptive Advertising - The Employee Free Choice Act, one but not the only aspect of the change to existing labor laws is to remove secret ballot elections as the mechanism for determining whether or not a union will represent employees in bargaining with their employer.

Although I don't normally read unpublished cases from the appellate courts, I did so by accident on one that was just handed down today by the 6th Circuit, Angel v. International Paperworkers (6th Cir. 3/1/07) [pdf]. The irony of the opinion in conjunction with today's vote by the House of Representatives was too much to pass up.

It seems that 115 employees of the Paperworkers Union sued claiming that they had not received severance pay because of the Union's failure to honor its own constitutions that called for a vote on collective bargaining agreements. As the Court summed up their argument:

Despite the requirement in the international union’s constitution and the local union’s bylaws that members ratify labor agreements negotiated by the Union, the EBP was never ratified by the membership. Rather, the international union’s bargaining representative and the local union’s president signed the EBP and it went into effect.

To be fair, the Court concluded that they were wrong in feeling that they were ultimately damaged by the failure of the union to follow its constitution, but it is clear that the employees felt differently — enough so to have pursued litigation to a federal court of appeals. And there did not appear to be any dispute that the Union did not follow its own constitution in failing to have the vote.

The point insofar as the EFCA debate goes is the impact on individual employees when a union becomes their legally designated representative. Actions which impact them in their pocket book, can be taken by a majority, and sometimes by a much smaller group as apparent in the case decided today. The selection of the entity with that power, should be based on what is best for employees, not what makes it easier for labor unions.

While there may well be problems with the current system, the abandonment of meaningful secret elections is not the solution. Meaningful is a key word because look for unions to offer a grand compromise in the Senate of allowing secret ballot elections that must be held within a few days of a petition being presented.

What would be nice is to have a considered view of the problems with the system and and a serious revision of the labor laws based on reason, rather than one side imposing a solution because they currently have the political upper hand. Nice, but not likely.

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