CardCheck Under the Employee Free Choice Act — Will It End Free Choice for Workers?
The Employee Free Choice Act, Card Check Elections, and Binding Contract Arbitration — Two Views
In an opinion piece in a January 2009 of ere.net, recruiter Jessica Lee addresses the effect that the EFCA, with card check could have on recruiters who work within the confines imposed by union contracts.
Employment Blawg Founder and Managing Editor George Lenard, who has more than 20 years’ experience defending business in employment disputes, weighed in on the conversation.
Citing figures stating that, if passed, the EFCA, with card check, would increase union membership from the current eight percent to 20 percent of the work force, Jessica says:
If we use simple math and say 10% of the workforce is currently unionized, let’s also say that 10% of our recruiting colleagues recruit in a unionized environment for positions covered by a contract. I’ve been part of that 10% in the past and know firsthand the fun it is to read a collective bargaining agreement to determine how you can or cannot recruit.
Most recruiting guidelines for a unionized environment are all rule-driven and often restrict your ability to secure the best talent for your organization. … And once you get those rules out of the way, the contract also dictates compensation, and the focus is on tenure rather than performance. Even rarer are any trace of incentives to get high-performing candidates in the door. It’s a difficult recruiting environment to operate in.
In her piece, in the context of advocating against the card check and binding arbitration portions of the proposed law, Jessica mentions the potential difficulty for recruiters . She also cites that the bill’s opponents include the Chamber of Commerce and civil rights leader Al Sharpton.
Talk about your strange bedfellows.
Criticism of the Employee Free Choice Act’s Card Check and Arbitration Provisions
George has long been an opponent of card check and of imposing contracts on employers and employees through binding arbitration. In November 2008, George said:
Contrary to its title, the card check provision of 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. … 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 authorization cards in order to support a petition for an election.
Under current law, employees who may have felt pressured to sign such cards 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 (now-President) Obama, or vice versa. But if the “Free Choice” Act becomes law … these authorizations will be more likely to be signed in the context of union organizers and fellow employees pressuring employees. The employees may well feel they have no choice but to disclose whether or not they support the union.
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.
The Employee Free Choice Act Addresses a Real Problem — Unfair Labor Practices — But Card Check and Interest Arbitration Are the Wrong Solutions.
One thing George stresses in his comments on Jessica’s piece is that, while not as common as labor leaders claim, employers do commit unfair labor practices and they do pressure employees against joining unions. Explaining that under current law, employees sign cards or petitions to trigger a secret-ballot election, George said:
In the eyes of EFCA supporters, they are restoring free choice by eliminating [the] period between card signing and election in which employees are open to maximum employer influence, both lawful and unlawful (influence through campaign letters and forced attendance meetings being generally lawful; coercion and intimidation being unlawful, but not uncommon).
Rather than taking a hard line against the entire EFCA bill, George urges business leaders to be more moderate in their approach:
It is important for the business community to press hard, but do so in a way that recognizes that as a matter of federal law collective bargaining is deemed central to American labor policy, and that it may in fact help some workers in these times. The fundamentals of the National Labor Relations Act were, after all, passed as part of the New Deal — precisely for the reasons the EFCA may now look attractive.
Business opposition should also realistically recognize that the law could in fact use some reforms to improve enforcement and streamline a cumbersome process.
A successful compromise that does not give the unions all that they ask for would, I think, be in the best interests of the new administration and the country, and I think moderate business voices will be heard and considered by the Obama people just as much as the traditional Democratic Big Labor constituency.
EFCA Compromises Possible?
In his comments on Jessica’s piece, George says that even some of the original Democratic supporters of the EFCA are now having second thoughts. Given the moderate tone set by the first days of Obama’s administration — and his proven willingness to listen to all sides of a debate — there may well be an opportunity to create a compromise bill that takes both labor’s and employers’ needs into account.
As George has said, there are real issues with the current system for organizing workplaces. Employers do violate current law and, in ways both legal and illegal, pressure workers against collective bargaining.
On the other hand, George and other business leaders are right: the secret ballot is a fundamental right. It’s a right we have when electing our political representatives — why would we want to take that right away from workers by implementing the proposed card check provision?
Better approaches might include holding the organizing election on neutral ground, limiting the time between the initial card collection and the organizing election, and, yes — imposing harsh penalties on anti-union coercion of employees and foot-dragging bargaining tactics.
There are probably a host of other potential solutions as well. But we won’t find them unless everyone involved — labor leaders, business leaders, attorneys like George, recruiters like Jessica, and workers and all levels of management alike — become involved in the discussion.
Photo credit: joebeone via flickr
