Jottings By An Employer's Lawyer

Monday, February 12, 2007

Deceptive Advertising - The Employee Free Choice Act

How else can you describe a proposed statute whose principal, although not only, significant restructuring of the National Labor Relations Act is to eliminate secret elections to determine if employees want to be represented for purposes of collective bargaining by a labor organization. But that is precisely what Section 2 of the inappropriately named Employee Free Choice Act (H.R. 800) does.

In the modestly entitled "Streamlining Union Certification" section, the key language to undo the cornerstone of free elections in the workplace is the following:

If the Board finds that a majority of the employees in a unit appropriate for bargaining has signed valid authorizations designating the individual or labor organization specified in the petition as their bargaining representative and that no other individual or labor organization is currently certified or recognized as the exclusive representative of any of the employees in the unit, the Board shall not direct an election but shall certify the individual or labor organization as the representative described in subsection (a).

It is with some irony that more than 230 members of the U.S. House of Representatives elected by secret ballot are rushing to remove that right in the workplace from the voters who elected them. How many do you think would vote to abolish elections for their own Congressional seat if another candidate could produce a petition signed by a majority of voters?
The Employee Free Choice Act was introduced in this Congress on February 5th, will be adopted by the House Committee on Education and Labor this Wednesday and probably pass the House by the end of February, no later than mid-March. (The bill already has more sponsors than is required for passage in the House.)

The real battle will be in the Senate, and if it should make it through the Senate, the Administration. If ever there were a time for the "cooling saucer" of the Senate — this is it.

Let there be no mistake, this portion of the bill exists for one reason only — unions have been spectacularly unsuccessful in convincing voters, i.e. the employees they seek to represent in collective bargaining, that the employees would be better off with a union than without it.

Anyone who has ever done any work, I dare say on either side, of a union organizing drive, knows that employees sign union authorization cards for a variety of reasons, only one of which is that they want the union to represent them. And almost always the cards will be signed having heard only the union side of the pitch. In non-right to work states, many will not know that signing an authorization card means that they may have to join the union, including paying union dues, in order to keep their jobs.

Now labor and its supporters, have and will argue the change is necessary because employers don't play fair in campaigns. There is no doubt that happens, but it works both ways; there are unions who don't play fair either. But that is not a valid reason to disenfranchise those who must live with the results if a union takes over the right to speak for them. Those arguments might make more sense for the discussion of other changes, some of which are proposed in other sections of the bill, but not, for all practical purposes, doing away with secret elections.

Although I hope that I am never put to the test, and if I do, that I am wrong — I strongly believe that the unintended consequences of this legislation if enacted would far outweigh the benefits to employees.

There are three groups who will benefit from the passage of this legislation: organized labor officials, the politicians they support, and people like me, who make our living representing employers. The short term benefit to those three groups will be tremendous; just I fear, as the long term detriment to all of us will be.


Calling this legislation the "Employee Free Choice Act" is positively Orwellian -- in the "1984" sense that "War is Peace" and "Freedom is Slavery."
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