The “Employee Free Choice Act” is a proposed law that would change how unions are allowed to organize workers in the United States. Big labor unions like the AFL-CIO, SEIU and the Change to Win Coalition are pushing Congress to approve this law.  Union membership has been declining, currently about 7.5% in the private sector (higher in the public sector), and they hope this law will change the rules and reverse that trend.  The Virginia labor force currently has the second lowest percentage of union membership in the nation. A broad coalition of organizations, businesses and individuals oppose the legislation and related ‘compromise’ efforts to loosen current law regarding union elections and contract negotiations. The main problems of the bill are:

The current system is not broken:

• In 2008, unions won 68% of organizing elections.
• Only about 1% of union organizing elections are found to have involved some unfair practice. These investigations are taken very seriously by the NLRB.
• Allegations of wrong-doing are investigated by the regional NLRB office and those found to have merit are referred to an Administrative Law Judge who conducts a formal due process hearing.
• Even though the unions frequently talk about wrong-doing, they facts don’t substantiate their claims.
• Unions have the advantage in the current system of choosing the timing of the election. They can wait until they think they have the votes before petitioning to start the election process.
• Current law severely limits what employers can say during organizing elections, but the unions have very little prohibitions.
• The company must give workers the names and addresses of all employees. The union can visit them at their home, in parking lots and other private places.

The NLRB is becoming more union friendly:

• The NLRB Board is transitioning to a more union-friendly Board. President Obama nominated two labor lawyers including the Associate General Counsel of the SEUI and AFL-CIO to be new board members.
• The ‘balance of power’ issues will be corrected by the NLRB board changes.

Basic problem is with unions, not the organizing and elections process:

• Unions have not adapted to the new economy. Rather than focusing more attention on workforce training, education and skills to make their members more efficient, they are stuck in a 19th century mindset of believing their members deserve more money simply because they are a member of a union.
• Today’s rules were largely in place 50 years ago when unions represented 35% of the private sector workforce and 30 years ago when they represented 24% of the workforce.

Wrong Time

• This fundamental restructuring of the union-management relationship during this economic crisis adds additional stress to struggling businesses.
• The EFCA tips the balance of power decidedly in favor of unions, which will drive up costs at a time when many companies are trying to survive and to compete in a global market.
• The collapse of the U.S. auto industry was in part because of union wages and benefits widely out of proportion to foreign auto company counterparts.
• More union organizing will mean higher salary and benefit costs, some which will be passed along to consumers – who are also struggling.

Eliminates the Private Ballot – Card Check, Super Majority and Mail-In Ballots

• Fortunately, efforts to replace the current secret ballot process with a card check system have been rejected by lawmakers.  Efforts are now shifting to other ‘compromise’ proposals including a card check system with a supermajority (70%) or the use of mail-in ballots.
• A supermajority would only take a bad idea – card check – and make it slightly less onerous.  The current system of secret ballot elections overseen by neutral NLRB representatives works well.
• Mail-in ballots present the same problems raised by the original ‘card check’ idea.  Union officials could pressure employees to mail in ballots with the same intimidation and harassment that makes ‘card check’ such a bad idea.

Mandated Government Arbitration or Last, Best Offer Arbitration

• The right of business owners to enter into private contracts with employees is fundamental to a capitalist economic system.  Current law requires both sides to negotiate in “good faith,” which has been defined through years of National Labor Relations Board decisions.
• The original EFCA bill sought to take away this fundamental right and replace it with binding federal arbitration if both sides could not agree to a contract (after 90 days of direct negotiation and 30 days of mediation).  Some unions are now pushing a variation of mandated arbitration called Last, Best Offer Arbitration, which requires the parties to make a final offer and the government arbitrator would select the one they believe would be the fairest.
• Last, Best Offer Arbitration is fundamentally flawed because it presumes that the employer should relinquish his right to approve labor contracts with employees.  Only the private owner of a business should have the right to enter into a labor contract. They know their business, their industry and what wages they can afford in order to stay in business.
• Arbitration may impede the negotiating process because the union may simply wait for arbitration as their opportunity for the most favorable outcome for their members.
• Much of the debate over this issue presumes that when a contract cannot be reached between the parties that it’s the fault of the employer.  That fails to recognize that unions may create exaggerated expectations to get recognized and then not be able to deliver on inflated promises.

Expedited Elections:

Issue: Moving union elections from the current 42 days from filing a petition to 21 days.

• Moving the elections to a shorter time frame (21 days has been mentioned) will give the unions a new advantage because they will have months to quietly communicate with employees during the drive to set up the union (prior to the petition that starts the election process). The employer could be at a disadvantage by not having enough time to communicate why the union is not appropriate for that facility.
• Important decisions deserve more time for issues to be flushed out and debated, not less. Snap elections are intended to deprive workers of an informed choice.
• Less time will increase the ability for misleading information to be spread and not corrected.

Equal Workplace Access:

Issue:  To give unions equal access to employees under the same conditions afforded by employers.  For example, if the company meets with employees in a workplace cafeteria for two hours one week, the union would be given the same opportunity meet with employers in the company cafeteria for two hours.

• Unions already have access to employees in ways the employers do not (ability to visit them at home, parking lots and other public places).
• Employers are required to provide names and addresses of all employees to the union.
• Increased union access on company time would be disruptive and possibly expose workers to harassment.
• Employees sympathetic to the union can approach workers employees in the workplace and express support for the union.