Will This National Election Jeopardize Workplace Elections?

It would be ironic if this Presidential election — hailed by so many around the world (myself included) as a shining example of the strength and success of American democracy — resulted in a drastic reduction in long-established democratic electoral rights in the workplace. But such a result is highly likely.

President-elect Obama and most Democrats in Congress support a proposed law, the Employee Free Choice Act, that would dramatically alter union organizing by, among other things, ending the right to a secret-ballot election as a means for employees to democratically self-determine whether to be represented by a union (and which union).

Contrary to its title, this Act will have the effect of restricting employee free choice by leaving employees vulnerable to pressure and coercion by union organizers and fellow employees. It has labor’s hopes soaring and business leaders vocally objecting.

Elimination of the Secret Ballot

The Employee Free Choice Act would substitute peer-pressure decision making for the current system of secret-ballot, vote-your-conscience representation elections administered by the National Labor Relations Board (NLRB or Board).

Currently, when a union is attempting to obtain bargaining representative status (which compels the employer to bargain with the union in good faith), it obtains signed authorizations in order to support a petition for an election.

Employees who may have felt pressured to sign such authorizations nevertheless have the right to vote against the union in the privacy of the election booth — just as people who felt pressured to tell their GOP neighbors and relatives they were voting for McCain were free on Election Day to cast their vote for Obama, or vice versa.

But if the “Free Choice” Act becomes law:

If the Board finds that a majority of the employees in a unit appropriate for bargaining has signed valid authorizations … the Board shall not direct an election but shall certify the individual or labor organization as the representative … .

These authorizations will be signed in the context of union organizers and fellow employees pressuring employees. The employees will have no choice but to disclose whether or not they support the union.

“Facilitating Initial Collective Bargaining Agreements”

The second main provision of the Employee Free Choice Act would mandate binding arbitration between a newly organized or certified union and the employer if the parties have not agreed on a first contract.

The arbitration would be preceded by mediation utilizing the Federal Mediation and Conciliation Service (FMCS), which either party could request “[i]f after the expiration of the 90-day period beginning on the date on which bargaining is commenced, or such additional period as the parties may agree upon, the parties have failed to reach an agreement.”

Then, if unable to resolve the contract issues within thirty days, the FMCS would “refer the dispute to an arbitration board [that would] render a decision ’settling the dispute’ and such decision [would] be binding upon the parties for … 2 years.”

In this context, “the dispute” is the actual terms of a collective bargaining agreement. Arbitration of labor disputes is a well established part of U.S. labor relations, but almost always the arbitrator is confined to interpreting and applying terms of a collective bargaining agreement, not creating those terms in the first place. This is a huge difference.

Strengthening Enforcement

The third and final provision of the Employee Free Choice Act would add some serious teeth to enforcement of existing labor laws in certain unfair labor practice situations involving alleged violations occurring “while employees … were seeking representation by a labor organization, or during the period after a labor organization was recognized as a representative … until the first collective bargaining contract was entered into between the employer and the representative … .”

Specifically, it would provide for:

• Investigation priority for such charges.
• Liquidated damages in an amount double the amount of any back pay awarded.
• “[A] civil penalty of not to exceed $20,000 for each violation, consider[ing] the gravity of the unfair labor practice and the impact of the unfair labor practice on the charging party, on other persons seeking to exercise rights guaranteed by [the National Labor Relations] Act, or on the public interest.”

In a subsequent post, I’ll discuss opinions pro and con on these provisions.

Photo credit: joebeone via flickr