Senate Democrats pull back on Specter’s card-check prediction

The Hill
September 17, 2009


Specter, Unions Disagree on Path for Overhaul of Labor Laws

The Wall Street Journal
September 16, 2009

more media


The Employee Free Choice Act (EFCA) would eliminate employee choice over union representation and substitute government dictation of wages and benefits for voluntary collective bargaining in newly unionized workplaces.

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Eliminating Employee Choice

Under current labor law, the U.S. National Labor Relations Board (NLRB) certifies a union as the exclusive representative of employees if the union is elected in a secret-ballot election conducted by the NLRB. The election is held if more than 30 percent of employees sign statements asking either for representation by a union, or for such an election. After a campaign period typically lasting 40 days—in which employees hear all sides of the issue from the union, the employer and coworkers—the election is held, supervised by the NLRB, which ensures that employees cast their ballots in a confidential manner with no coercion by either management or the union. Assuming EFCA became law, here’s what would happen:

If 50 percent of the employees plus one signed cards indicating they support the creation of a union, that would require the NLRB to certify the union as the official representative of the employees. There would be no secret ballot election. EFCA would not explicitly prohibit elections, but votes would only take place if a union or a group of employees filed a petition with authorization cards signed by less than a majority of the workers, which rarely occurs under current law.

Additionally, there are no time limits on card collection. The unions would be able to collect the signed cards from employees and independent contractors for as long as it takes to get the 50 percent plus one majority. Once a card is signed, it gets counted, even if employees change their minds. Employees never get their cards back. In fact, because of the lack of time limit, it is possible that some unions have already started collecting signed cards in anticipation of the passing of EFCA.

Government Dictation of Wages and Benefits

Under current law, once a union is elected, the union and the employer negotiate to reach a collective bargaining agreement. That agreement defines the wages, benefits and other critical workplace issues, such as seniority, promotions, overtime, job classifications, grievance procedures, compulsory union agency fees (except in “right-to-work” states) and myriad other issues.

Both parties are required by law to bargain in good faith to try to reach an agreement.

Under EFCA, bargaining would begin within 10 days after the union requested it. The union would serve as the exclusive bargaining representative for the unit of employees via the card check process.

If the union and employer cannot agree upon the terms of a first collective bargaining contract within 90 days, either party could request federal mediation. If after 30 days of mediation, there is no agreement, a panel of arbitrators appointed by the Federal Mediation & Conciliation Service would write the contract. Where government arbitration determines terms of the agreement, employees would not have a right to ratify the terms of that agreement. In other words, whatever the arbitrator decides, that's what everyone gets whether they like it or not, no matter how unfair it is. The terms of these agreements would include the arbitrator's decisions on wages, hours and all other work-related issues, including how people get promoted, what people's job descriptions are, how work gets assigned and who gets overtime.

Why EFCA Should Not Be Passed

Workers have traditionally decided the important question of whether to be represented by a union through a secret-ballot election supervised by the NLRB. The secret-ballot process ensures a number of protections for employees.

  • First, employees get to hear all sides in a campaign-style setting. They can gather information from their employers, coworkers and the union to help inform their decision on how to vote. Because card check is not an open process, the employees would not have the opportunity to make an informed decision.
  • Second, the secret-ballot process ensures employees are not coerced by management or the union at the critical moment when the employee indicates his or her preference. Under EFCA, authorization cards would be signed in the presence of an interested party—a pro-union co-worker or an outside union organizer—with no governmental supervision. Card check would make employees susceptible to pressure from union organizers or their peers.
  • Third, holding a secret-ballot election is a process that is a cornerstone of American democracy that has worked in NLRB elections for decades. According to the Bureau of National Affairs, unions won 67 percent of private-ballot representation elections in the first six months of 2008. EFCA would take away employees’ right to a secret-ballot vote, free from coercion or intimidation. Employees’ votes, either for or against forming a union, should be their own personal business, and no one else’s—just like on Election Day.

Finally, with first contract binding arbitration, the outsiders impose contract terms which are not presented to the EMPLOYEES for ratification. Employees have no say on their new wage rates, benefits or working conditions.

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