More on the Employee Free Choice Act

by Michael Haberman on January 22, 2009 · 0 comments


I had the opportunity to attend a seminar/briefing conducted by two notable attorneys from two well known law firms in the Atlanta area, Bennet Alsher of Ford & Harrison LLP and Daniel Shea of Nelson Mullins Riley and Scarborough LLP. They discussed alot of the impending legislation that will be introduced by the Congressional Democrats, supported by the Obama administration. They, Dan Shea in particular, discussed the EFCA, starting with a little history.

But first, let me remind you of the provision of EFCA. First, there is card check recognition, which would allow unions to declare a victory in organizing employees simply by getting 50% plus 1 signatures. It would eliminate the use of secret ballot elections. Secondly, there is First Contract Arbitration. This would require the government to impose terms of agreement if no agreement is made within 180 days. This binding agreement would be in force for 2 years. Thirdly, there would be increased penalities for Unfair Labor Practices to the tune of $20,000 per violation and the potential for treble damages. Oh, by the way, these penalties are for managment only! Now onto the information.

Dan Shea pointed out that originally, the Wagner Act had card check as the prime method of unionization written in the original law. The abuses by the unions, such as coercion, intimidation and threats of physical violence, forced lawmakers in 1947, in the Taft-Hartley Act, to change the process to secret ballot election. Dan also pointed out that Canada, which has a workforce that is 30% union (down from 40%) originally had card check solely as the method of union organization. The abuse of this method was so bad that the two largest provinces changed to secret ballot election. I confirmed this by some investigation and found this bit of research from a researcher named Sarah Johnson. “In the last 25 years, a major change has occurred in the way unions are recognised in Canada. In 1976, every jurisdiction in Canada used card check. Today, more than 50% of the Canadian labour force is covered by mandatory vote legislation and union recognition procedures continue to be a matter of policy concern and debate …”

In case you think it is only business leaders and Republicans who find the use of secret ballot elections preferable here are quotes from some primary Democrat leaders. From The Union News we have “The leading House sponsor of card check is Rep. George Miller, who also served as campaign manager of Mr. Waxman’s race against Mr. Dingell, settled by secret ballot. What’s more, along with 10 House Democrats, Mr. Miller wrote a 2001 letter to Mexican government officials encouraging the “use of secret ballots in all union recognition elections.” The letter states: “We feel that the secret ballot is absolutely necessary in order to ensure that workers are not intimidated into voting for a union they might not otherwise choose.” In the inner workings of Congress representatives recognize the value of a secret ballot as evidenced by this quote about a vote to replace a key member of a committee. “Even Rep. Louise Slaughter, chairwoman of the House Rules Committee, told Congressional Quarterly she was relieved the vote would be a private one: “It’s a secret ballot. . . . Thank the Lord.” So there is just a bit of hypocrisy.

Dan and Bennet both thought that there may be some manauvering to soften the blow of EFCA, but they both believe that the bigger issue of EFCA is the First Contract Arbitration. Most first contracts are not usually negotiated in less than six months. The 180 day requirement is entirely unreasonable. And then to have the government impose your terms is disasterous. To give you an idea, in Canada, this method ended up with a WalMart Auto shop being forced to give employees a 32% increase in wages, despite a very competitive market that did not allow a comparable price increase. The result? WalMart closed the center the next day and all the newly unionized employees were out of work.

Another tidbit, the 50% +1 on card check is for the appropriate bargaining units, which you may not even know what that definition is until you are presented “your” union by the NLRB.

Lastly, there will be ABSOLUTELY NO SANCTIONS against unfair labor practices engaged in by the unions.

This law is the unions NUMBER 1 PRIORITY and they have alot of support. The NLRB will be heavily union biased as is the new Secretary of Labor (after all her father was a Teamster president.) So be aware, be educated and be active. Let your Congressional representatives know this is bad law. Here are a couple of educational resources. From UnionFacts. com info on intimidation. Lots of info from The Union News.

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